61984CO0241_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 241/84 R,
ERMINIO VALERIO PIZZINATO, REPRESENTED BY GIUSEPPE MARCHESINI, AVVOCATO, VINCENZA, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 18 A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY GUIDO BERARDIS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION TO SUSPEND THE OPERATION OF THE COMMISSION ' S DECISION FILLING A VACANCY FOR A LABORATORY TECHNICIAN FOLLOWING THE PROCEDURE INITIATED BY THE PUBLICATION OF VACANCY NOTICE NO COM/R/547/83,
Grounds
1 BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 4 OCTOBER 1984, ERMINIO VALERIO PIZZINATO BROUGHT AN ACTION AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES FOR THE ANNULMENT OF THE DECISION WHEREBY THE DIRECTOR OF THE JOINT RESEARCH CENTRE AT ISPRA FILLED THE POST OF LABORATORY TECHNICIAN IN THE APPLIED MECHANICS DIVISION COVERED BY VACANCY NOTICE NO COM/R/547/83 . MR PIZZINATO WAS HIMSELF A CANDIDATE FOR THAT POST .
2 IN ADDITION, BY AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, LODGED AT THE COURT REGISTRY ON THE SAME DATE, THE APPLICANT ASKED THE COURT TO ORDER THE COMMISSION TO SUSPEND THE OPERATION OF THE DECISION IN QUESTION .
3 NOTICE OF THE APPLICATION FOR INTERIM MEASURES WAS SERVED ON THE COMMISSION, WHICH SUBMITTED WRITTEN OBSERVATIONS . SINCE THE WRITTEN SUBMISSIONS CONTAIN ALL THE INFORMATION NECESSARY IN ORDER FOR THE COURT TO DECIDE ON THE APPLICATION FOR INTERIM MEASURES, IT HAS NOT BEEN NECESSARY TO HEAR ORAL ARGUMENT FROM THE PARTIES .
4 IT APPEARS THAT, FOLLOWING THE PUBLICATION OF VACANCY NOTICE NO COM/R/547/83 FOR THE RECRUITMENT OF A LABORATORY TECHNICIAN IN THE APPLIED MECHANICS DIVISION IN GRADE C 3 OR B 5/B 3, DEPENDING ON THE QUALIFICATIONS OF THE SUCCESSFUL CANDIDATE, MR PIZZINATO SUBMITTED AN APPLICATION AND MAINTAINED HIS CANDIDATURE IN THE SUBSEQUENT STAGE, WHEN AN OPEN COMPETITION WAS HELD .
5 WHEN IT CAME TO HIS NOTICE, THROUGH INDIRECT CHANNELS, THAT THE DIRECTOR OF THE JOINT RESEARCH CENTRE IN HIS CAPACITY AS APPOINTING AUTHORITY HAD
DECIDED TO APPOINT TO THE POST ONE OF THE OTHER CANDIDATES ON THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE SELECTION BOARD, THE APPLICANT LODGED A COMPLAINT, ON 17 SEPTEMBER 1984, PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . SUBSEQUENTLY, ON 4 OCTOBER 1984, HE LODGED THE PRESENT APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, TOGETHER WITH HIS MAIN APPLICATION, ON THE GROUND, INTER ALIA, THAT THE DECISION TAKEN BY THE APPOINTING AUTHORITY HAD FAILED TO OBSERVE THE RULES LAID DOWN WITH REGARD TO THE FILLING OF VACANCIES IN THE COMMUNITY INSTITUTIONS AND IN PARTICULAR AT THE JOINT RESEARCH CENTRE .
6 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE, THE APPLICANT MUST STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .
7 IN ORDER TO ESTABLISH URGENCY THE APPLICANT POINTS OUT, IN PARTICULAR, THAT HE WILL SOON ATTAIN THE AGE OF 35, WHICH IS NORMALLY THE AGE-LIMIT FOR ADMISSION TO OPEN COMPETITIONS . THE APPLICANT THEREFORE FEARS THAT, IF THE JOINT RESEARCH CENTRE WERE TO IMPLEMENT THE CONTESTED DECISION BY CONCLUDING A CONTRACT WITH THE CANDIDATE SELECTED, HE WOULD EFFECTIVELY BE PRECLUDED FROM PARTICIPATING IN THE COMPETITION WHICH WOULD REPLACE THE PREVIOUS COMPETITION IF THE LATTER WERE ANNULLED BY THE JUDGMENT IN THE MAIN PROCEEDINGS .
8 HOWEVER, IT APPEARS FROM THE COMMISSION ' S OBSERVATIONS THAT THE CONTRACT IN QUESTION HAS ALREADY BEEN CONCLUDED . ON 29 JUNE 1984 THE DIRECTOR OF THE JOINT RESEARCH CENTRE SIGNED A CONTRACT OF EMPLOYMENT FOR FIVE YEARS STARTING ON 1 NOVEMBER 1984 FOR CONCLUSION WITH THE SUCCESSFUL CANDIDATE . FOLLOWING THE SUCCESSFUL OUTCOME OF A MEDICAL EXAMINATION, THE CONTRACT WAS FORWARDED TO THE CANDIDATE BY A LETTER DATED 1 OCTOBER 1984 . SHE SIGNIFIED HER ACCEPTANCE OF THE CONTRACT BY A TELEGRAM DATED 12 OCTOBER 1984 .
9 IT APPEARS THEREFORE THAT, DESPITE THE COMPLAINT LODGED BY THE APPLICANT, THE DECISION AT ISSUE HAS BEEN IMPLEMENTED IN THE INTERVENING PERIOD . HOWEVER, THE DE FACTO SITUATION BROUGHT ABOUT BY THE COMMISSION MAY IN NO CASE PREJUDICE THE APPLICANT IF HE IS SUCCESSFUL IN HIS MAIN APPLICATION . AS THE COMMISSION ITSELF EXPRESSLY ACKNOWLEDGES IN ITS OBSERVATIONS, IF THE DECISION
AT ISSUE IS ANNULLED THE APPLICANT WILL BE REINSTATED IN HIS RIGHTS AS THEY EXISTED PRIOR TO THE ADOPTION OF THE DECISION AND DESPITE THE FACT THAT IN THE INTERVENING PERIOD HE HAS EXCEEDED THE AGE-LIMIT STIPULATED IN THE VACANCY NOTICE .
10 IT FOLLOWS THAT THE REQUIREMENT OF URGENCY HAS NOT BEEN SATISFIED AND HENCE THERE IS NO CAUSE TO ACCEDE TO THE APPLICANT ' S REQUEST FOR THE ADOPTION OF INTERIM MEASURES .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT OF THE SECOND CHAMBER,
ACTING UNDER ARTICLES 9 ( 4 ) AND 96 OF THE RULES OF PROCEDURE, AFTER HEARING THE ADVOCATE GENERAL,
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .
2.COSTS ARE RESERVED .