JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)
11 September 2008
Case F-51/07
Philippe Bui Van
v
Commission of the European Communities
(Civil service – Officials – Recruitment – Classification in grade and step – Incorrect classification – Withdrawal of a measure tainted with illegality – Legitimate expectations – Reasonable period of time – Rights of the defence – Right to good administration)
Application: brought under Articles 236 EC and 152 EA, in which Mr Bui Van seeks annulment of the decision of the Director-General of the Joint Research Centre of the Commission dated 4 October 2006 reclassifying him in grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2, and the decision of the appointing authority of 5 March 2007 rejecting his complaint, and seeks the payment of one symbolic euro as compensation for the non-material damage allegedly suffered.
Held: The Commission is ordered to pay the applicant the sum of EUR 1 500 by way of damages and interest. The remainder of the action is dismissed. The applicant is to bear two thirds of his own costs. The Commission is to bear its own costs and one third of the costs incurred by the applicant.
Summary
1. Officials – Principles – Protection of legitimate expectations – Conditions
(Staff Regulations, Art. 85, first para.)
2. Acts of the institutions – Withdrawal – Unlawful acts – Conditions – Reasonable time – Calculation
(Staff Regulations, Art. 91(3))
3. Officials – Principles – Rights of the defence
(Charter of Fundamental Rights of the European Union, Art. 41(2))
1. While it must be acknowledged that any Community institution which establishes that a measure which it has just adopted is tainted with illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof, where he has not provoked the adoption of the measure by means of false or incomplete information. In that respect, the operative time for determining whether the addressee of an administrative act has acquired legitimate expectations is not the date on which the act was adopted or withdrawn but the date on which it was notified.
It is necessary to seek guidance in this regard in the case-law on the conditions justifying the recovery of overpayments by the administration, set out in the first paragraph of Article 85 of the Staff Regulations, especially the condition that the payment be patently incorrect.
Furthermore, even if the addressee of the unlawful measure had legitimate expectations, an overriding public interest, in particular in the sound management and protection of the institution’s financial resources, may prevail over the beneficiary’s interest in the maintenance of a situation which he could count on as stable.
(see paras 51, 53, 54, 56, 62)
See:
42/59 and 49/59 Snupat v High Authority [1961] ECR 53, 86 and 87; 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority [1962] ECR 253, 269 and 271; 14/81 Alpha Steel v Commission [1982] ECR 749, paras 10 to 12; 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paras 12 to 17; C-248/89 Cargill v Commission [1991] ECR I‑2987, para. 20; C‑365/89 Cargill [1991] ECR I‑3045, para. 18; C-90/95 P De Compte v Parliament [1997] ECR I‑1999, paras 35 to 37 and 39; C-183/95 Affish [1997] ECR I‑4315, para. 57 and the case-law cited therein.
T-38/93 Stahlschmidt v Parliament [1994] ECR-SC I‑A‑65 and II‑227, para. 19; T-205/01 Ronsse v Commission [2002] ECR-SC I‑A‑211 and II‑1065, para. 47; T-180/02 and T-113/03 Gouvras v Commission [2004] ECR-SC I‑A‑225 and II‑987, para. 110; T‑416/04 Kontouli v Council [2006] ECR-SC I-A-2-181 and II‑A‑2‑897, paras 161, 162 and 167; T-324/04 F v Commission [2007] ECR-SC I‑A-2-0000 and II-A-2-0000, para. 142
2. The withdrawal of an unlawful administrative measure must take place within a reasonable period which is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity, the conduct of the parties involved, whether the measure in question confers subjective rights, and the balance of interests. It must be considered, as a general rule, that a period for withdrawal corresponding to the three-month period for bringing proceedings laid down in Article 91(3) of the Staff Regulations is reasonable. Given that that period applies to the administration itself, it is appropriate to take, as the starting point, the date on which the administration adopted the measure which it intends to withdraw.
(see paras 63, 67-69)
See:
Snupat v High Authority, p. 86; Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority, p. 272; De Compte v Parliament, para. 35; C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, para. 187
T-20/96 Pascall v Commission [1997] ECR-SC I‑A‑361 and II‑977, paras 72 and 77; T-197/99 Gooch v Commission [2000] ECR‑SC I‑A‑271 and II‑1247, para. 53; T-144/02 Eagle and Others v Commission [2004] ECR II‑3381, para. 66; Kontouli v Council, para. 161
3. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle, which reflects the requirements of good administration, demands that the person concerned should have been afforded the opportunity to effectively make known his views on any matters which might be taken into account to his detriment in the measure to be taken. In that regard, Article 41(2) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000, provides that the right to good administration ‘includes ... the right of every person to be heard, before any individual measure which would affect him or her adversely is taken …’.
However, not every infringement of the rights of the defence is to be penalised by annulment of the contested measure. That is the case where the unlawfulness of the contested measure did not influence its content. Nevertheless, an unlawful act that constitutes an administrative fault is capable of giving rise to compensation.
Thus, an official to whom the administration has not afforded a hearing before adopting a decision adversely affecting him suffers non-material damage as a result of feeling that he has been presented with a fait accompli and must therefore be adequately compensated.
(see paras 72-74, 81, 84, 92-94)
See:
234/84 Belgium v Commission [1986] ECR 2263, para. 27; C‑301/87 France v Commission [1990] ECR I‑307, para. 31; C‑142/87 Belgium v Commission [1990] ECR I‑959, para. 48; C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, para. 99; C-288/96 Germany v Commission [2000] ECR I‑8237, paras 99 and 101; Limburgse Vinyl Maatschappij and Others v Commission, paras 318 and 324; C-344/05 P Commission v De Bry [2006] ECR I‑10915, paras 37 and 38
T-372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, para. 31; T-277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 64
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
11 September 2008 (*)
(Civil service – Officials – Recruitment – Classification in grade and step – Incorrect classification – Withdrawal of a measure tainted with illegality – Legitimate expectations – Reasonable period of time – Rights of the defence – Right to good administration)
In Case F‑51/07,
ACTION under Articles 236 EC and 152 EA,
Philippe Bui Van, official of the Commission of the European Communities, residing in Hettange-Grande (France), represented by S. Rodrigues and R. Albelice, lawyers,
applicant,
v
Commission of the European Communities, represented by J. Currall and G. Berscheid, acting as Agents,
defendant,
THE TRIBUNAL (Second Chamber),
composed of S. Van Raepenbusch (Rapporteur), President, I. Boruta and H. Kanninen, Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 5 June 2008,
gives the following
Judgment
1 By application received at the Registry of the Tribunal on 30 May 2007 by fax (the original being lodged on 4 June 2007), Mr Bui Van seeks annulment of the decision of the Director-General of the Joint Research Centre of the Commission of the European Communities (the ‘JRC’) dated 4 October 2006, in that it reclassifies him in grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2 (the ‘contested decision’) and the decision of the appointing authority of 5 March 2007 rejecting his complaint, and seeks the payment of one symbolic euro as compensation for the non-material damage allegedly suffered.
Legal context
2 Article 85 of the Staff Regulations of Officials of the European Communities (the ‘Staff Regulations’) provides as follows:
‘Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.
The request for recovery must be made no later than five years from the date on which the sum was paid. Where the Appointing Authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed.’
3 Under Article 13(1) of Annex XIII to the Staff Regulations, entitled ‘Transitional measures applicable to officials of the Communities’, which was introduced by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1) and which entered into force on 1 May 2004, officials who were included in a list of suitable candidates before 1 May 2006 and recruited after that date were classified, as regards the successful candidates in an open competition for grades B 5 and B 4, at grade AST 3.
4 The notice for open competition EPSO/B/23/04, which was held to constitute a reserve pool of laboratory technicians (B 5/B 4) in technical and research fields (OJ 2004 C 81A, p. 17; the ‘notice of competition’), included a footnote worded as follows:
‘These grades [B 5/B 4] are those used by the institutions under the current Staff Regulations. However, the Commission has formally transmitted to the Council a proposal to amend the Staff Regulations that would introduce a new career system. If placed on a reserve list, therefore, you may be offered a post on the basis of amended Staff Regulations, once they have been adopted by the Council. According to the rules laid down in Articles 11 and 12 of section 2 of Annex XIII to the amended Staff Regulations, grades B 5 and B 4 are to be replaced, throughout the transition period (1 May 2004 to 30 April 2006) by grade B*3 and thereafter by grade AST 3.’
Facts
5 The applicant is a successful candidate in the EPSO/B/23/04 competition.
6 After having been entered on the list of suitable candidates drawn up in December 2005 by the selection board for open competition EPSO/B/23/04, the applicant was recruited, by decision of the appointing authority of 28 June 2006, as a probationary official in function group AST, grade 4, step 2, with effect from 16 September 2006 and assigned to the Institute for Transuranium Elements in Karlsruhe (Germany) within the JRC. On 18 July 2006 the applicant acknowledged receipt of that decision, which he confirmed having read, by electronic medium, on 6 July 2006.
7 The applicant took up his duties, not on 16 September 2006, but on 1 October 2006.
8 By means of the contested decision annulling and replacing that of 28 June 2006, the applicant was classified in function group AST, grade 3, step 2, with effect from 1 October 2006. That decision was delivered to him personally on 19 October 2006.
9 By e-mail of 7 November 2006, recorded on that day to the Complaints Unit of the Personnel and Administration DG of the Commission, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations. In that complaint the applicant stated, essentially, that his reclassification three days after taking up his duties presented him ‘with a fait accompli’ and that he had resigned from his previous job for an appointment in grade AST 4, step 2.
10 On 15 December 2006, three other officials, Messrs B., H. and L., who had been recruited to the Institute for Transuranium Elements and who had likewise been reclassified from grade AST 4 to grade AST 3, also lodged a complaint against the reclassification decisions affecting them.
11 By a decision of 5 March 2007, the appointing authority rejected the applicant’s complaint. However, it upheld the complaints from the other three officials mentioned above.
Forms of order sought
12 The applicant claims that the Tribunal should:
– declare the application admissible;
– annul the decision of 5 March 2007 rejecting his complaint;
– annul the contested decision;
– specify to the appointing authority the effects that the annulment of the contested decision entails, especially as regards his classification, the backdating of the appointment to the date on which he took up his duties, the difference in remuneration, the interest for arrears and promotion;
– award him one symbolic euro by way of damages for non-material loss;
– order the Commission to pay the costs.
13 The Commission contends that the Tribunal should:
– dismiss the application;
– make an appropriate order as to costs.
Law
A – The claims, first, for annulment of the decision of 5 March 2007 and, secondly, that the Tribunal specify the effects that annulment of the contested decision would entail
14 Although the forms of order sought by the applicant are directed primarily at annulment of the appointing authority’s decision of 5 March 2007 dismissing the complaint lodged on 7 November 2006 under Article 90(2) of the Staff Regulations, in accordance with established case-law this action has the effect of bringing before the Tribunal the act adversely affecting the applicant against which the complaint was submitted (to that effect, see, in particular, Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8, and Case F‑100/05 Chatziioannidou v Commission [2006] ECR‑SC I‑A‑1‑129 and II‑A‑1‑487, paragraph 24). It follows that the object of the present action is annulment of the contested decision, taken on 4 October 2006, reclassifying the applicant to grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2.
15 Consequently, the plea formally directed against the decision rejecting the complaint must be considered as being equally directed against the contested decision and merges with the main claim for annulment raised against that decision.
16 Secondly, the applicant asks the Tribunal to specify the effects that annulment of the contested decision would have.
17 In this regard, it is sufficient to point out that the Tribunal may not give directions to a Community institution (see, in particular, Case T‑156/89 Valverde Mordt v Court of Justice [1991] ECR II‑407, paragraph 150, and Case F‑17/05 De Brito Sequeira Carvalho v Commission [2006] ECR‑SC I‑A‑1‑149 and II‑A‑1‑577, paragraph 134), apart from the general obligation, set out in Article 233 EC, for the institution whose act has been declared void to take the necessary measures to comply with the judgment annulling it.
18 As a result, the plea seeking to have the Tribunal issue orders is inadmissible and must therefore be dismissed.
1. Admissibility of the action for annulment
a) Arguments of the parties
19 The Commission observes that the essential argument set out in the applicant’s complaint is that the applicant had accepted the offer of appointment in grade AST 4. The expression ‘legitimate expectations’ was not used in the complaint, but the institution accepts that the applicant’s intention was to rely on that principle.
20 Nor, according to the Commission, was there any mention in the complaint of an alleged infringement of the principle of equal treatment. The Commission nevertheless recognises that the applicant could not raise this aspect until he had received a reply to his complaint and compared it with those given to the three other persons who had made similar complaints. In these circumstances, the Commission considers that the applicant could reasonably be excused for not complying strictly with the rule requiring consistency between the complaint and the application.
21 The applicant maintains that, according to case-law, it is not the purpose of Article 91(2) of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint (Case 52/85 Rihoux and Others v Commission [1986] ECR 1555, paragraph 12). Hence the submissions and arguments made to the Community Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it (Rihoux and Others v Commission, paragraph 13).
22 The applicant also points out that in its judgment in Del Amo Martinez v Parliament (Case 133/88 [1989] ECR 689, paragraph 11), the Court of Justice emphasised that since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind.
23 In the present case, the applicant observes that he lodged his complaint without the assistance of a lawyer and that in support of his complaint he relied on a reclassification error, in that he had allegedly been presented with a fait accompli and had not been classified in the grade that had led him to resign from his previous post. He maintains that the pleas raised in support of his action should be considered admissible in that they are closely linked to this head of claim.
b) Findings of the Tribunal
24 According to settled case-law, the subject-matter of the forms of order sought in actions brought by officials must be the same as that set out in the prior administrative complaint and the heads of claim must be based on the same legal basis as that relied on in the complaint (see, to that effect, Case T‑193/96 Rasmussen v Commission [1998] ECR‑SC I‑A‑495 and II‑1495, paragraph 47, and Case F‑31/07 Putterie-De-Beukelaer v Commission [2008] ECR‑SC I‑A‑0000 and II‑0000, which is the subject of an appeal pending before the Court of First Instance in Case T‑160/08 P, paragraph 43). However, those heads of claim may be developed by the submission of pleas and arguments not necessarily appearing in the complaint, but which are closely linked to it (Case C‑62/01 P Campogrande v Commission [2002] ECR I‑3793, paragraph 34; Case T‑58/91 Booss and Fischer v Commission [1993] ECR II‑147, paragraph 83; Case T‑496/93 Allo v Commission [1995] ECR‑SC I‑A‑127 and II‑405, paragraph 26; order in Case T‑293/02 Vranckx v Commission [2003] ECR‑SC I‑A‑187 and II‑947, paragraph 41; and Case T‑165/04 Vounakis v Commission [2006] ECR‑SC I‑A‑2‑155 and II‑A‑2‑735, paragraph 27).
25 In the present case, it is common ground that the subject-matter of the complaint and the action is the decision to reclassify the applicant, with retroactive effect, to grade AST 3, step 2, whereas when he was recruited he had been classified in grade AST 4, step 2. Furthermore, the heads of claim contained in the action rest on the same bases as those on which the complaint is grounded, namely the fact that the applicant had been denied the grade for which he claims to have resigned from his previous job and had been presented with a fait accompli. The plea based on infringement of the principle of the protection of legitimate expectations is therefore closely linked to these heads of claim.
26 Furthermore, as the Commission acknowledges, it was precisely the appointing authority’s response to the applicant’s complaint in comparison with that given to the complaints of Messrs B., H. and L. that led the applicant to raise, in his action, a plea based on infringement of the principles of equal treatment and non-discrimination.
27 It follows from the foregoing that the plea of inadmissibility raised by the Commission against the claim for annulment or, at least, the doubts expressed by the Commission in that regard must be dismissed.
2. Merits of the action for annulment
28 In support of his action, the applicant raises two pleas based, first, on infringement of the principles of equal treatment and non-discrimination and, second, on a manifest error of assessment and infringement of the principles of legal certainty and the protection of legitimate expectations.
29 The second plea can appropriately be examined first.
a) The second plea, alleging a manifest error of assessment and infringement of the principles of legal certainty and the protection of legitimate expectations
Arguments of the parties
30 In his second plea, the applicant states at the outset that, according to settled case-law, the withdrawal of an unlawful measure is permissible, provided that the withdrawal occurs within a reasonable time and provided that the institution that issued it has had sufficient regard to how far the addressee of the measure might have been led to rely on the lawfulness of the measure. If those conditions are not met, the withdrawal is contrary to the principles of legal certainty and of the protection of legitimate expectations and must therefore be annulled (Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paragraphs 12 and 17).
31 The applicant alleges that in the present case the appointing authority committed an error of assessment by taking as the starting point for calculating the reasonable period the date of notification of the decision to appoint, that is to say 6 July 2006, and not the date on which the initial appointment decision was adopted, namely 28 June 2006.
32 Although the date to be taken i
