Background
ZR took part in an EPSO competition to establish an EUIPO reserve list for AD 6 intellectual-property administrators. Although she obtained 97.5 points at the assessment centre, she was not included on the list. In earlier proceedings, the General Court found that the selection board had infringed the rule requiring stability in its composition, an essential procedural requirement, and annulled the decision rejecting ZR’s request for review.
To implement that judgment, EUIPO concluded that it could not rerun the relevant assessment without reproducing or creating irregularities and rejected proposed alternatives, including adding ZR to the reserve list through a corrective factor. It awarded EUR 5,000 in fair compensation. The General Court annulled that implementation decision because EUIPO had failed to take account of ZR’s lost opportunity of recruitment, and itself awarded EUR 10,000 ex aequo et bono. ZR appealed.
The Court’s Holding
The Court of Justice dismissed the appeal. It held that ZR could not appeal the General Court’s rejection of pleas supporting her annulment claim where the General Court had nevertheless annulled the contested EUIPO decision. Those grounds, as well as her complaint that the General Court did not examine another annulment plea, were inadmissible because they could not improve the operative part of the judgment in her favour.
The Court also upheld the EUR 10,000 award. Although the General Court could not rely on uncertainty about ZR’s prospective ranking or recruitment alone to refuse the usual loss-of-opportunity calculation, it was entitled to conclude that it was impossible to establish whether a more stable selection board would have placed her on the reserve list. Given that uncertainty, the General Court could assess the loss ex aequo et bono. The Court added that EUIPO must assess whether a further replacement decision is necessary to ensure full implementation of the earlier annulment judgment.
Key Takeaways
- A party whose annulment claim succeeded cannot appeal merely because some supporting pleas were rejected.
- Loss of an opportunity must be considered when compensating a candidate affected by an unlawful competition procedure.
- Where the chance of success cannot be reliably quantified, the General Court may assess compensation ex aequo et bono.
Why It Matters
The judgment confirms both the limits of appeals by a formally successful applicant and the broad discretion of the EU courts in quantifying loss-of-opportunity damage in civil-service disputes. It also underscores that inclusion on a reserve list is not a right to appointment, while recognising that procedural unlawfulness may still warrant financial redress.
For EU institutions, an award of compensation in annulment proceedings does not necessarily exhaust the Article 266 TFEU duty to take measures implementing the annulment judgment.