C-259/96

* Original language: Danish. 1 — [1996] ECR-SC II-959. 3 Following [the Raioh-Denti judgment], 2 — Case T-22/9I Raioh-Denti and Others v Council[1993] which had acquired the force of res judicata, ECR II-69.

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COUNCIL v DE NIL AND IMPENS

the Council decided, first, to maintain the 6 On 9 February 1994 [Lieve de Nil and decisions reclassifying the 15 candidates who Christiane Impens] therefore submitted a had been successful in Competition B/228 request ... for compensation for damage suf­ with effect from 1 January 1991 and, sec­ fered as a result of the irregular decision of ondly, to publish on 1 September 1993 a the selection board in Competition B/228. notice of Internal Competition B/228a open They requested the appointing authority to to candidates who had been admitted to take "declare that the series of faults committed part in the tests for Competition B/228 by by the selection board in Competition B/228 individual notification dated 4 December had been the cause of both material and non- 1990 for the purpose of filling six adminis­ material damage". They requested the trative assistant posts in Grade B 5 by way appointing authority to pay them of the upgrading of Grade C 1 posts. The BFR 500 000 each by way of compensation nature and marking of the tests for Compe­ for material and non-material damage ... tition B/228a were identical to those for Competition B/228. The officials concerned were requested to confirm in writing by 15 November 1993 that they would be taking part in Competition B/228a ...

7 That request was rejected by implication ... and then by express rejection decision noti­ fied to [Lieve de Nil and Christiane Impens] 4 [Lieve de Nil and Christiane Impens] con­ by memoranda of 15 June 1994 from the firmed within the prescribed period that they Director for Staff and Administration. would be taking part in Competition B/228a and, after the tests had taken place, were placed on the list of successful candidates. Their posts were reclassified to Grade B 5 with effect from 1 January 1994.

4. In its judgment the Court of First Instance held that:

38 In refusing to reclassify [Lieve de Nil and Christiane Impens] retroactively from 1 January 1991 like the successful candidates in '34 ... in order to comply with the obligation Competition B/228, the Council caused laid down in Article 176 of the Treaty, it is them to lose their chances of earlier promo­ for the institution which adopted the act tion ... to Grade B 4 and then of earlier pro­ annulled by the Community judicature to motion to Grade B 3, and of seeing their determine the measures required to imple­ careers develop in the same conditions as the ment the judgment annulling the act in the careers of the candidates who had been suc­ exercise of the discretion which it has for cessful in competition B/228. As [Lieve de that purpose, complying with both the Nil and Christiane Impens] point out, with­ operative part and the grounds of the judg­ out being contradicted by the Council, 11 of ment which it is required to implement and the 15 candidates who were successful in with the provisions of Community law ... Competition B/228, who were reclassified in 1991, had already been promoted to Grade B 3 by 1 January 1996, including three who, in 1996, were eligible for promotion to Grade B 2; while the remaining four successful candi­ 35 Inasmuch is it is required, in order to dates had by that time been promoted to implement a judgment, to comply with Grade B 4, including three who, in 1996, Community law, the institution concerned were eligible for promotion to Grade B 3. In must ensure that it complies with the prin­ answer to a written question from the Court ciple of equal treatment of officials and the of First Instance, the Council acknowledged principle that officials are entitled to reason­ that if [Lieve de Nil and Christiane Impens] able career prospects, which are applicable in had been reclassified in Grade B 5 in January matters relating to the Community civil ser­ 1991 they could themselves ... have been eli­ vice gible for promotion to Grade B 4 in July 1991 and to Grade B 3 on 1 July 1993, by which date their net remuneration would have exceeded the remuneration then actu­ ally received by them.

45 Consequently, the Council is liable to pay compensation for the damage actually 42 Secondly, the two competitions were not suffered following that breach. separate entities. [The Raiola-Denti judg­ ment] only annulled the steps taken follow­ ing the decisions to admit [Lieve de Nil and Christiane Impens] to Competition B/228. It follows that that competition ... remained open and the applications admitted ... remained in abeyance before the appointing authority ... Consequently, when it organised Competition B/228a, the Council in reality merely re-opened the procedures in Compe­ 47 [Lieve de Nil and Christiane Impens] tition B/228 solely as regards those candi­ have ... established the existence of a right to dates who had not been included on the list compensation for the damage suffered as a of successful candidates drawn up following result of the fact that they were not reclassi-

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OPINION OF MR ELMER — CASE C-259/96 P

fied in Category B at the same time as the 51 The Court of First Instance evaluates the candidates who were successful in Compe­ combined material and non-material damage tition B/228, inasmuch as, although they suffered by [Lieve de Nil and Christiane would not have been entitled to promotion Impens] ex aequo et bono at BFR 500 000 ... after their reclassification, they have, at all The Council must therefore be ordered to events, lost the opportunity of seeing their pay that amount to [Lieve de Nil and Chris­ careers develop in the future in a manner tiane Impens].' comparable to the careers of the candidates who were successful in Competition B/228

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COUNCIL v DE NIL AND IMPENS

3 4 Justice, Commission v Albani and Parlia- required to take the necessary measures to ment v Meskens. The Council also consid­ comply with the judgment of the Court of ers that the Court of First Instance contra­ Justice.' dicts itself where, on the one hand, it states that it is not for itself to determine the mea­ sures required to implement a judgment and, on the other hand, it lists the measures which the Council might have taken. As a result, the case-law establishing the institution's dis­ 9. The Court of First Instance and the Court 6 cretion as regards the choice of measures is of Justice have consistently held that: deprived of all practical effect.

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OPINION OF MR ELMER — CASE C-259/96 P

sary measures to comply with the judgment comply with the judgment in question. Such of the Court but that it make good further review does not have the effect of rendering damage which may be caused by the unlaw­ the institutions' discretion illusory. Provided ful measure which has been annulled ... Thus that they choose measures which are suffi­ Article 176 of the Treaty does not make ciently effective to ensure compliance with compensation for the damage dependent on the judgment, the institutions are free to the existence of a new fault distinct from the determine the measures which they consider original unlawful measure which has been most appropriate in the specific case. annulled, but provides for compensation for the damage which results from that measure and which continues after its annulment and for compliance by the administration with the judgment whereby it was annulled.

12. The fact that the Court of First Instance indicates in paragraph 39 of the judgment the In this case the Court of First Instance estab­ measures which the Council might have lished the Parliament's fault, which consisted taken to comply with the judgment satisfac­ in the refusal to allow Mrs Meskens to take torily does not in any way affect the discre­ part in Competition No B/164 ... It remained tion which the institutions initially have, therefore to be ascertained whether the dam­ since the Court is merely providing examples age caused by that measure continued after it of the measures which the institution might had been annulled. have taken.

15. The Council's first plea in law must therefore be rejected.

'That principle is based on the need to rec­ oncile the interests of the candidates put at a disadvantage by an irregularity committed in the course of a competition and the interests of the other candidates. The Court is The Council's second plea in law required to take account not only of the need to restore the rights of the candidates who have been adversely affected but also of the legitimate expectations of the candidates 9 already selected.' 16. By its second plea the Council claims that in paragraph 42 of its judgment the Court of First Instance wrongly presumed that Competitions B/228 and B/228a consti­ 14. It follows from the foregoing, first, that tuted a single competition rather than two the institution is required to make good any separate competitions. damage which the candidates in a compe­ tition may have suffered as a result of the unlawful act. In order to do so it must seek a solution which also takes account of the other candidates. The judgment does not in any way affect the candidates in competition In that regard, the Council contends that the B/228, however, since there is no question of legitimate expectations of the 15 persons the Court of First Instance having required who were successful in Competition B/228 the Council to invalidate the result of the would not be protected if the view taken by competition in its entirety and annul the the Court of First Instance that Competition reclassifications effected following that com­ B/228 remained open for almost two years petition. The Court of First Instance merely were to be shared. Furthermore, it follows states in its judgment that Lieve de Nil and from Article 30 of the Staff Regulations that the appointing authority is to appoint a selection board for each competition, which 8 — Judgment cited in footnote 3, paragraph 33. is precisely what the Council did in the 9 — Judgment cited in footnote 4, paragraph 14. present case.

'An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the Court 21. By its third plea in law the Council of First Instance, a breach of procedure claims that it is contrary to the principle of before it which adversely affects the interests equality of treatment to reclassify the appli­ of the appellant as well as the infringement cations who were successful in Completion of Community law by the Court of First B/228a on the same date as those who were Instance.' successful in Competition B/228, since they were successful in a new competition with new questions, assessed by different persons.

were successful in Competition B/228a with 25. As stated above, it follows from case-law effect from 1 January 1991, which would also that the institutions are required to make be contrary to the principle of equality of good in full any damage suffered by their treatment. officials as a result of an irregular act. In that regard, budgetary problems cannot relieve the institutions of that obligation. In the present case, therefore, the Council should have endeavoured to find some means con­ sistent with its budget of reclassifying the six 22. Lieve de Nil and Christiane Impens con­ persons who were successful in Competition tend in that regard that Competition B/228 B/228a with effect from 12 January 1991 or was annulled on the ground of irregularities. should have compensated the person or per­ The damage which they suffered could only sons not reclassified on that date. be made good in full if they were placed in the same position as they would have been in the absence of irregularities.

26. I therefore consider that the Council's third plea must be rejected.

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OPINION OF MR ELMER — CASE C-259/96 P

titions. As stated in the context of the second fact as it existed at the date of the judgment plea, that question cannot be the subject of instead of examining the situation at the date an appeal. on which the application was lodged.

29. It follows from Article 45(2) that an offi­ cial may be transferred from one service to The Council refers to the fact that Lieve de another or promoted from one category to Nil and Christiane Impens stated in their another only on the basis of a competition. application the number of persons promoted As pointed out above, the Court of First in December 1994 out of the 15 who had Instance held that the candidates who were been successful in Competition B/228 and successful in Competition B/228 and those who had been reclassified on 1 January 1991. successful in Competition B/228a were to be The judgment, on the other hand, is based regarded as having been successful in a single on the information provided during the pro­ competition. No appeal can lie against that ceedings, relating to the situation existing in finding of fact. Accordingly, there has been January 1996. It follows from Article 48(2) no infringement of Article 45(2) of the Staff of the Rules of Procedure, however, that the Regulations, since the very ground on which introduction of new pleas in law in the Lieve de Nil and Christiane Impens demand course of proceedings is prohibited, unless to be reclassified with effect from 1 January those pleas are based on matters of law or of 1991 is that they were successful in Compe­ fact which came to light in the course of the tition B/228-B/228a. procedure.

33. Article 48(2) of the Rules of Procedure The Council's sixth plea in law of the Court of First Instance provides that no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure. If a 36. By its sixth plea in law the Council party were able to introduce before the claims, first, that an institution can be held Court of Justice, for the first time, a plea liable, according to the case-law, only on which he had not previously introduced three conditions, namely the illegality of the before the Court of First Instance, that conduct for which it is criticised, actual dam­ would amount to allowing such a party to age and the existence of a causal link bring before the Court of Justice a dispute between the conduct and the damage sus­ whose scope was wider than that of the dis­ tained. The first condition, relating to the pute submitted to the Court of First illegality of the conduct for which an institu­ Instance. At the appeal stage, the jurisdiction tion is criticised, is not satisfied, however, of the Court of Justice to rule on the judg­ since the Council did not act illegally when ment at first instance is therefore limited to adopting the decisions in question, which the pleas examined in that judgment. 1 1 were intended to give effect to the Raiola- Denti judgment. The Council further claims that the sum of BFR 500 000 which the Court of First Instance awarded to each of the parties by way of compensation for material and non-material damage is mani­ festly disproportionate to the amounts previ­ 34. The Council concedes that it failed to ously awarded by the Court of Justice and raise an objection in respect of the above- the Court of First Instance. In that regard, mentioned information in the course of the the Council has provided details of the proceedings before the Court of First amounts previously awarded to officials or Instance. The Council's plea alleging that the candidates in competitions. Court of First Instance has committed an error in law by considering the situation of fact existing at the date of the judgment instead of examining the situation as existing at the date when the application was lodged 37. As regards the first part of this plea in therefore constitutes a new plea which can­ law, Lieve de Nil and Christiane Impens not be introduced for the first time at the contend that the question as to whether the appeal stage. conditions giving rise to the obligation to make reparation are satisfied involves an objective assessment of the facts on the part of the Court of First Instance which cannot form the subject of an appeal. As regards the extent of the compensation awarded, Lieve de Nil and Christiane Impens maintain that 35. For that reason the merits of the Coun­ the Court of Justice has no jurisdiction, in cil's fifth plea cannot be examined. the context of an appeal, to determine whether the compensation awarded by the Court of First Instance to the persons con­ cerned is commensurate with the damage 11 — See, in particular. Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981. sustained.

38. As regards the first part of this plea in which the institution was criticised, was sat­ law, the Court of Justice has held, in relation isfied, since it found that the Council had acted illegally by failing to reclassify Lieve to the question of the assessment of the facts, 12 de Nil and Christiane Impens on 1 January that : 1991. In drawing that legal conclusion, the Court of First Instance did not in my view commit a fault, since it is apparent from the 13 '[The] Court of First Instance thus has case-file that as a result of the Council's exclusive jurisdiction to find the facts ... The conduct Lieve de Nil and Christiane Impens Court of First Instance has also exclusive suffered discrimination as compared with the jurisdiction to assess those facts ... On the officials who had successfully taken part in other hand, when the Court of First Instance Competition B/228. has found or assessed facts, the Court of Jus­ tice has jurisdiction to exercise the review required of it by Article 168a of the EC Treaty provided that the Court of First 41. This part of the Council's sixth plea in Instance has defined their legal nature and law must therefore be rejected. determined the legal consequences. In the present case that applies to the assessment by the Court of First Instance that the slowness of the preparatory procedure constituted a 42. The second part of the sixth plea in law fault...'. concerns the amount which the Council was ordered to pay by way of compensation for material and non-material damage, since the 39. In paragraph 44 of its judgment the Council claims that there has been a breach Court of First Instance, after establishing the of the principle of proportionality. facts of the case, held that the refusal of the Council to adopt the measures which would have enabled it to place Lieve de Nil and Christiane Impens on an equal footing with 43. The Court of Justice has held 14 that: their colleagues constituted a breach of Article 176 of the Treaty, in other words a fault. The Court of Justice has jurisdiction, on the basis of the facts established by the '... it is for the Court of First Instance alone Court of First Instance, to review the infer­ to assess, within the confines of the claim, ences in law drawn by the Court of First Instance. It is therefore necessary to examine the method and extent of compensation for the merits of this part of the plea in law. the damage'.

to substitute its own assessment of the extent tion for material damage and the compensa­ of the loss for the assessment of the Court of tion for non-material damage, since it merely First Instance. The determination of the indicated a global sum by way of compensa­ extent of a loss is thus a finding of fact and tion. the Court of Justice cannot rule on that point in an appeal. It also follows from the case-law cited above that the compensation must remain within the bounds of the claim and that it is for the Court of First Instance to determine the method and extent of the 47. The judgment contains no other calcula­ compensation of the damage. In my view the tions of the damage actually suffered by Court of Justice must have jurisdiction to Lieve de Nil and Christiane Impens in verify whether the Court of First Instance respect of which the Council, according to has awarded compensation within the con­ paragraph 45, is required to pay compensa­ fines of the claim and whether its judgment tion. After referring in paragraph 48 to the discloses with sufficient clarity the basis on claim for compensation for non-material which the amount of compensation was cal­ damage of 1 ecu and after establishing, in culated. paragraph 50, that Lieve de Nil and Chris­ tiane Impens did in fact suffer non-material damage, the Court of First Instance, in para­ graph 51, evaluated the combined compensa­ tion at BFR 500 000 each. By way of 45. In that regard, the Court of Justice held 15 grounds, it states quite laconically that 'the in a judgment of 20 February 1997 that: combined material and non-material damage suffered by each of the applicants will be evaluated ex aequo et bono at BFR 500 000'.

the inadequate reasoning is that the Court of the amount of compensation on the basis of Justice is not in a position to appraise the the information specifying the damage suf­ plea put forward by the Council alleging that fered by the persons concerned by reason of the award of BFR 500 000 constituted a the fact that they had not been reclassified breach of the principle of proportionality. on 1 January 1991 and the fact that they had not been promoted at the same time as those who had originally been successful in Com­ petition B/228, in comparison with the 49. In my opinion the Court of First advantage arising from the present payment. Instance should have made a clearer distinc­ tion in its judgment between an amount designed to make good the material damage and an amount designed to make good the non-material damage before assessing and 50. In my view it must be found, in the light evaluating those types of damage separately. of the foregoing considerations, that the As regards the material damage, it should not judgment does not contain an adequate state­ have confined itself to stating that Lieve de ment of reasons as regards the fixing of com­ Nil and Christiane Impens 'have ... lost the pensation. Accordingly, pursuant to Article opportunity of seeing their careers develop 54(1) of the EC Statute of the Court of Jus­ in the future in a manner comparable to the tice, the judgment should be set aside on this careers of the candidates who were success­ point and referred back to the Court of First 16 ful in Competition B/228 ...', but should Instance for judgment. The costs should be have stated precisely how it had calculated reserved.

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