Judgment of the Court (First Chamber) of 28 October 1982. - Antonio Giannini v Commission of the European Communities. - Official: Promotion and transfer within the institution. - Case 265/81.



European Court reports 1982 Page 03865



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPLICATIONS TO THE COURT - INTEREST IN BRINGING PROCEEDINGS - APPLICATION FOR ANNULMENT OF AN OFFICIAL ' S PROMOTION LODGED BY A SERVANT WHO IS NOT AN OFFICIAL - ADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ARTS . 90 AND 91 )

2 . OFFICIALS - RECRUITMENT - PROCEDURE - PROMOTION OR TRANSFER - DUTY OF THE APPOINTING AUTHORITY - LIMITS - EXAMINATION OF THE RESPECTIVE MERITS OF OFFICIALS ELIGIBLE FOR PROMOTION OR TRANSFER COMPARED TO THE MERITS OF POTENTIAL APPLICANTS IN A FUTURE INTERNAL COMPETITION - NOT COMPULSORY

( STAFF REGULATIONS OF OFFICIALS , ART . 29 ( 1 ) ( A ))

3 . OFFICIALS - RECRUITMENT - PROCEDURE - ASSESSMENT OF THE MERITS AND ABILITIES OF THE OFFICIAL APPOINTED - JUDICIAL REVIEW - LIMITS

( STAFF REGULATIONS OF OFFICIALS , ART . 29 )

4 . OFFICIALS - RECRUITMENT - PROCEDURE - PROMISES OF ESTABLISHMENT GIVEN TO A TEMPORARY SERVANT DULY WARNED OF THE TEMPORARY NATURE OF HIS POST - NO EFFECT ON THE POSITION OF THE PERSON CONCERNED WITH REGARD TO THE RECRUITMENT PROCEDURE

( STAFF REGULATIONS OF OFFICIALS , ART . 29 )

Summary

1 . COMPETITIONS INTERNAL TO THE INSTITUTIONS ARE OPEN TO ALL PERSONS EMPLOYED BY THE INSTITUTION , IN WHATEVER CAPACITY . IT FOLLOWS THAT A SERVANT WHO IS NOT AN OFFICIAL HAS AN INTEREST IN BRINGING PROCEEDINGS AGAINST A DECISION FILLING A POST BY THE PROMOTION OF AN OFFICIAL BECAUSE IF THAT DECISION IS ANNULLED THIS MAKES IT POSSIBLE FOR HIM TO ENTER AN INTERNAL COMPETITION .

2 . AT THE TIME WHEN THE APPOINTING AUTHORITY ADOPTS THE DECISION TO FILL A POST BY PROMOTING OR TRANSFERRING AN OFFICIAL IT IS NOT UNDER THE DUTY TO COMPARE THE RESPECTIVE MERITS AND ABILITIES OF OFFICIALS ELIGIBLE FOR PROMOTION OR TRANSFER AND OF OTHER SERVANTS , WHO THOUGH NOT ELIGIBLE FOR PROMOTION OR TRANSFER COULD ENTER THE INTERNAL COMPETITION IF IT WAS ORGANIZED .

3 . IT IS NOT FOR THE COURT TO EVALUATE THE DEGREE OF SPECIALIZATION REQUIRED BY A POST IF NEITHER THE MATERIAL IN THE FILE ON THE CASE NOR THE APPLICANT ' S CONTENTIONS ADVANCED AGAINST THE DECISION MAKING THE APPOINTMENT TO THAT POST SHOW THAT THE COMMISSION MADE A MANIFEST ERROR OR MISUSED ITS POWERS WHEN ASSESSING THE MERITS AND ABILITIES OF THE OFFICIAL APPOINTED .

4 . PROMISES MADE TO A TEMPORARY SERVANT AS TO HIS ESTABLISHMENT AND AN AGREEMENT TO THAT EFFECT BETWEEN THE EMPLOYING INSTITUTION AND THE ADMINISTRATION FROM WHICH THAT SERVANT CAME CANNOT , EVEN IF PROVED , HAVE THE EFFECT OF PLACING THE PERSON CONCERNED , DULY WARNED OF THE TEMPORARY NATURE OF HIS POST , IN A SPECIAL POSITION AS REGARDS THE RECRUITMENT PROCEDURE TO A VACANT POST .

Parties

IN CASE 265/81

ANTONIO GIANNINI , A TEMPORARY SERVANT , RESIDING AT CEROUX-MOUSTY , REPRESENTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . BIVER , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOSEPH GRIESMAR , LEGAL ADVISER , ACTING AS AGENT AND ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE APPOINTMENT OF LUIGI CASELLA FOLLOWING INTERNAL VACANCY NOTICE NO COM/663/79 AND FOR THE RE-OPENING IN THE PROPER FORM OF THE PROCEDURE FOR RECRUITMENT TO THAT POST ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 5 OCTOBER 1981 ANTONIO GIANNINI , A TEMPORARY SERVANT IN GRADE A 5 AT THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE COMMISSION ' S DECISION OF 22 DECEMBER 1980 PROMOTING LUIGI CASELLA TO THE POST ADVERTISED IN VACANCY NOTICE NO COM/663/79 AND THE RE-OPENING OF THE PROCEDURE FOR RECRUITMENT TO THAT POST .

2 VACANCY NOTICE NO COM/663/79 WAS FOR A POST OF PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A 5/A 4 AT THE CUSTOMS UNION SERVICE IN THE SPECIALIZED SECTION DEALING WITH TARIFF QUESTIONS IN CONNECTION WITH AGREEMENTS . AMONGST THE QUALIFICATIONS REQUIRED MENTIONED IN THE VACANCY NOTICE WERE VERY GOOD KNOWLEDGE OF THE TARIFF NOMENCLATURE FOR TARIFF PRODUCTS AND WIDE EXPERIENCE RELEVANT TO THE POST .

3 IN ORDER TO FILL THE VACANCY IN QUESTION THE COMMISSION , ACTING IN ACCORDANCE WITH ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS OF OFFICIALS , FIRST EXAMINED WHETHER IT COULD BE FILLED BY PROMOTION OR TRANSFER WITHIN THE INSTITUTION . FROM THE THREE OFFICIALS WHO APPLIED FOR PROMOTION OR TRANSFER TO THAT POST THE COMMISSION APPOINTED MR CASELLA WHO IN THE OPINION OF THE CUSTOMS UNION SERVICE DESERVED PROMOTION ON ACCOUNT OF HIS MATURITY AS WELL AS HIS CONSIDERABLE ABILITIES AND WORKING EXPERIENCE IN GENERAL .

4 THE APPLICANT , BEING A TEMPORARY SERVANT , COULD NOT BE A CANDIDATE FOR PROMOTION OR TRANSFER . HOWEVER , AS HE ARGUED IN HIS COMPLAINT AND APPLICATION , HE CONSIDERS THAT HE ALONE MET IN FULL ALL THE CONDITIONS SET OUT IN THE VACANCY NOTICE WHEREAS MR CASELLA , WHOSE MERITS HE DOES NOT DISPUTE , DID NOT HAVE EITHER SPECIALIZED KNOWLEDGE OF THE TARIFF CLASSIFICATION OF TEXTILE PRODUCTS OR RELEVANT EXPERIENCE IN THAT FIELD .

ADMISSIBILITY

5 IN ITS DEFENCE THE COMMISSION EXPRESSED DOUBTS AS TO THE ADMISSIBILITY OF THE APPLICATION ON THE GROUND THAT THE APPLICANT HAD NO INTEREST IN BRINGING PROCEEDINGS . THOSE DOUBTS , WHICH APPARENTLY THE COMMISSION TO SOME EXTENT ENTERTAINED THROUGHOUT THE PROCEEDINGS , CALL FOR THE FOLLOWING CLARIFICATION .

6 ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS PROVIDES THAT BEFORE FILLING A VACANT POST THE APPOINTING AUTHORITY MUST FOLLOW THE PROCEDURE FOR COMPETITIONS ON THE BASIS EITHER OF QUALIFICATIONS OR OF TESTS OR OF BOTH QUALIFICATIONS AND TESTS ( KNOWN AS AN ' ' OPEN ' ' OR ' ' EXTERNAL ' ' COMPETITION ) HAVING FIRST CONSIDERED IN TURN WHETHER THE POST CAN BE FILLED BY PROMOTION OR TRANSFER WITHIN THE INSTITUTION , WHETHER TO HOLD COMPETITIONS INTERNAL TO THE INSTITUTION AND THE APPLICATIONS FOR TRANSFER MADE BY OFFICIALS OF OTHER INSTITUTIONS .

7 AS THE COURT HELD IN ITS JUDGMENT OF 31 MARCH 1965 IN CASE 16/64 RAUCH ( 1965 ) ECR 135 COMPETITIONS INTERNAL TO THE INSTITUTION ARE OPEN TO ALL PERSONS EMPLOYED BY THE INSTITUTION , IN WHATEVER CAPACITY , WHEREAS OPPORTUNITIES FOR PROMOTION AND TRANSFER ARE RESERVED TO OFFICIALS ALONE .

8 IT FOLLOWS THAT THE APPLICANT , AS THE COMMISSION MOREOVER EXPRESSLY ADMITTED AT THE HEARING , COULD ENTER AN INTERNAL COMPETITION IF THE CONTESTED DECISION WERE ANNULLED . THEREFORE THE APPLICANT HAS AN INTEREST IN BRINGING PROCEEDINGS .

THE SUBSTANCE OF THE CASE

9 THE APPLICANT ' S SUBMISSIONS MAY BE REDUCED TO TWO SETS OF COMPLAINTS . FIRST OF ALL HE ALLEGES THAT MR CASELLA ' S APPOINTMENT IS VITIATED BY MANIFEST ERRORS IN THE ASSESSEMENT OF THE FACTS AND APPLICATION OF THE LAW AND BY DISREGARD OF THE INTEREST OF THE SERVICE INASMUCH AS THE PERSON APPOINTED DID NOT FULFIL THE SPECIFIC REQUIREMENTS OF THE VACANCY NOTICE . NEXT , HE CONTENDS THAT IN APPOINTING MR CASELLA THE COMMISSION IGNORED THE PARTICULAR CIRCUMSTANCES IN WHICH THE APPLICANT HAD BEEN ENGAGED INASMUCH AS THE PURPOSE OF HIS ENGAGEMENT WAS PRECISELY TO PROVIDE THE CUSTOMS UNION SERVICE WITH A SERVANT QUALIFIED IN THE SPECIALIZED WORK OF THE TARIFF CLASSIFICATION OF TEXTILE PRODUCTS REFERRED TO IN VACANCY NOTICE NO COM/663/79 .

10 IN SUPPORT OF THE FIRST SET OF COMPLAINTS THE APPLICANT CONTENDS IN PARTICULAR THAT BECAUSE OF HIS PARTICULAR QUALIFICATIONS THE CUSTOMS UNION SERVICE WOULD HAVE PREFERRED HIM TO BE APPOINTED RATHER THAN MR CASELLA , THAT IN ANY CASE HE IS BETTER QUALIFIED THAN MR CASELLA TO CARRY OUT THE DUTIES INVOLVED IN THE VACANT POST AND THAT THEREFORE THE COMMISSION COULD NOT HAVE APPOINTED MR CASELLA WITHOUT INFRINGING THE STAFF REGULATIONS .

11 HOWEVER , THAT LINE OF ARGUMENT FAILS TO TAKE ACCOUNT OF THE FACT THAT AT THE TIME WHEN THE APPOINTING AUTHORITY ADOPTED THE CONTESTED DECISION IT WAS NOT UNDER THE DUTY TO COMPARE THE RESPECTIVE MERITS AND ABILITIES OF MR CASELLA AND THE APPLICANT BECAUSE THE LATTER WAS NOT A CANDIDATE FOR PROMOTION OR TRANSFER . THEREFORE MR CASELLA ' S APPOINTMENT TO THE VACANT POST MUST BE JUDGED ON ITS OWN .

12 IN THIS REGARD THE APPLICANT ' S SOLE CONTENTION IS THAT MR CASELLA WAS NOT SUFFICIENTLY SPECIALIZED IN THE TARIFF CLASSIFICATION OF TEXTILE PRODUCTS FOR HIS QUALIFICATIONS AND EXPERIENCE TO MATCH THE VACANT POST .

13 HOWEVER , IT IS NOT FOR THE COURT TO EVALUATE THE DEGREE OF SPECIALIZATION REQUIRED TO FILL A POST OF THE KIND IN QUESTION BECAUSE NEITHER THE MATERIAL IN THE FILE ON THE CASE NOR THE APPLICANT ' S CONTENTIONS SHOW THAT THE COMMISSION MADE A MANIFEST ERROR OF MISUSED ITS POWERS WHEN ASSESSING MR CASELLA ' S MERITS AND ABILITIES .

14 IN SUPPORT OF THE SECOND SET OF COMPLAINTS THE APPLICANT CONTENDS IN PARTICULAR THAT WHEN HE WAS RECRUITED IN 1976 AS A NATIONAL EXPERT ON SECONDMENT FROM THE ITALIAN MINISTRY OF FINANCE PROMISES WERE MADE AS TO HIS ESTABLISHMENT . VACANCY NOTICE NO COM/663/79 WAS INTENDED TO HONOUR THOSE PROMISES AND THIS IS EVIDENT FROM THE WORDING OF THE NOTICE AS WELL AS FROM THE DECLARED INTENTIONS OF THE CUSTOMS UNION SERVICE .

15 THE COMMISSION DENIES THAT IT GAVE AN UNDERTAKING TO ESTABLISH THE APPLICANT . IT REFERS HERE IN PARTICULAR TO THE LETTER DATED 20 JULY 1978 FROM THE DIRECTOR OF PERSONNEL WHICH ACCOMPANIED THE CONTRACT ENGAGING THE APPLICANT AS A TEMPORARY SERVANT AND WHICH STATED THAT HIS POST WAS A TEMPORARY POST AND COULD NOT THEREFORE LEAD TO ESTABLISHMENT AS AN OFFICIAL .

16 ALTHOUGH THAT LETTER CONTAINS AN ERROR INASMUCH AS IT REFERS TO OPEN COMPETITIONS AS BEING THE ONLY WAY IN WHICH THE APPLICANT MAY BECOME ESTABLISHED AND FAILS TO MENTION INTERNAL COMPETITIONS , IT BEARS OUT THE COMMISSION ' S VIEW THAT NO PROMISES TO ESTABLISH THE APPLICANT WERE GIVEN TO HIM .

17 IT IS TRUE THAT LETTERS INTERNAL TO THE CUSTOMS UNION SERVICE , WHICH ARE AMING THE PAPERS BEFORE THE COURT , HINT AT ITS INTENTION TO ESTABLISH THE APPLICANT AND REFER TO THE ' ' UNDERSTANDING ' ' OF THE ITALIAN CUSTOMS AUTHORITIES , THE ADMINISTRATION FROM WHICH THE APPLICANT CAME , AS REGARDS THAT INTENTION . HOWEVER , IT SHOULD BE POINTED OUT THAT EVEN AND IF AN AGREEMENT TO THAT EFFECT BETWEEN THE CUSTOMS UNION SERVICE AND THE ITALIAN CUSTOMS ADMINISTRATION WERE PROVED , IT CANNOT HAVE THE EFFECT OF PLACING THE APPLICANT , WHO WAS DULY WARNED OF THE TEMPORARY NATURE OF HIS POST , IN A SPECIAL POSITION AS REGARDS THE RECRUITMENT PROCEDURE AT ISSUE .

18 IT FOLLOWS THAT THE RECRUITMENT PROCEDURE FOLLOWED IN ORDER TO FILL THE VACANCY AT ISSUE HAS NOT BEEN PROVED TO BE IRREGULAR AND THAT THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THOSE RULES COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2.ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .