Judgment of the Court (Second Chamber) of 2 April 1981. - Adriano Pizziolo v Commission of the European Communities. - Leave on personal grounds - Reinstatement. - Case 785/79.



European Court reports 1981 Page 00969



Summary

Parties

Subject of the case

Grounds

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - VACANCY NOTICE - DUTY OF ADMINISTRATION TO FILL VACANCY - NONE - RIGHT OF OFFICIAL ON LEAVE ON PERSONAL GROUNDS TO BE REINSTATED - NONE

( STAFF REGULATIONS OF OFFICIALS , ARTS 4 , 29 AND 40 ( 4 ) ( D ))

2 . OFFICIALS - LEAVE ON PERSONAL GROUNDS - REINSTATEMENT - RIGHT OF PERSON CONCERNED - CANNOT BE CONTESTED ON GROUND OF AN ADMINISTRATIVE PRACTICE LIMITING RECRUITMENT TO TEMPORARY EMPLOYEES

( STAFF REGULATIONS OF OFFICIALS , ART . 40 ( 4 ) ( D ))

Summary

1 . NO PROVISION OF THE STAFF REGULATIONS STATES THAT ONCE A RECRUITMENT PROCEDURE HAS BEEN INITIATED THE APPOINTING AUTHORITY IS OBLIGED TO PURSUE IT BY FILLING THE POST WHICH HAS BECOME VACANT . IF FOR LEGITIMATE REASONS BASED IN PARTICULAR ON THE CURRENT REQUIREMENTS OF ITS DEPARTMENTS AND THE PRIORITY OF THE TASKS TO BE CARRIED OUT BY IT , THE APPOINTING AUTHORITY HAS DECIDED NOT TO FILL A POST FOR WHICH A VACANCY NOTICE HAS BEEN PUBLISHED , AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS MAY NOT INSIST ON BEING REINSTATED IN THAT POST .

2 . THE ADMINISTRATION CANNOT , WHEN FACED WITH A REQUEST FOR REINSTATEMENT BY AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS , RELY ON THE FACT THAT IT NOW EMPLOYS ONLY TEMPORARY EMPLOYEES , WHATEVER THE NATURE OF THE WORK UNDER CONSIDERATION , OTHERWISE THE RIGHT OF THE OFFICIAL TO BE REINSTATED , WHICH IS CONFERRED BY ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , WOULD BE RENDERED ILLUSORY .

Parties

IN CASE 785/79

ADRIANO PIZZIOLO , AN OFFICIAL ON THE SCIENTIFIC STAFF OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BOLOGNA , REPRESENTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR REINSTATEMENT OF THE APPLICANT AND FOR AN ORDER THAT THE COMMISSION SHOULD PAY COMPENSATION FOR THE DAMAGE SUFFERED BY HIM AS A RESULT OF THE DELAY IN REINSTATEMENT AND SHOULD RECONSTRUCT HIS CAREER ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 24 OCTOBER 1979 , MR PIZZIOLO , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES ON LEAVE ON PERSONAL GROUNDS , BROUGHT AN ACTION SEEKING , FIRST , A DECLARATION THAT THE COMMISSION SHOULD HAVE REINSTATED HIM IN ACCORDANCE WITH ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS OF OFFICIALS AT THE DATE OF EXPIRY OF HIS LEAVE , 1 MARCH 1971 , OR AT LEAST IN ONE OF THE POSTS MENTIONED BY HIM WHICH BECAME VACANT AFTER THAT DATE AND , SECONDLY , DAMAGES FOR LOSS SUFFERED AS REGARDS HIS SALARY AND THE PROGRESS OF HIS CAREER . IN THE ALTERNATIVE , HE REQUESTS THAT , BEFORE FINAL JUDGMENT IS GIVEN , THE COURT SHOULD ORDER AN EXPERT ' S REPORT ON HIS ABILITY TO FILL THE POSTS MENTIONED BY HIM .

2 THE APPLICANT WAS GRANTED LEAVE ON PERSONAL GROUNDS FROM 1 MARCH 1970 TO 28 FEBRUARY 1971 . PRIOR THERETO HE HAD BEEN ASSIGNED TO THE CERAMICS AND METALLURGY DEPARTMENT OF THE JOINT RESEARCH CENTRE IN KARLSRUHE AS AN OFFICIAL IN GRADE A 6 ON THE SCIENTIFIC STAFF . THE APPLICANT DID NOT REQUEST ANY EXTENSION OF HIS LEAVE BUT AS YET HE HAS NOT BEEN REINSTATED .

THE CLAIM FOR REINSTATEMENT WITH EFFECT FROM 1 MARCH 1971

3 THE APPLICANT SUBMITS IN THE FIRST PLACE THAT ON THE EXPIRY OF HIS LEAVE HE SHOULD HAVE BEEN REINSTATED IN THE POST WHICH HE HAD HELD BEFORE HIS DEPARTURE AND WHICH HAD APPARENTLY REMAINED VACANT UNTIL AT LEAST 15 JANUARY 1971 , THAT IS TO SAY UNTIL A DATE WHEN THE COMMISSION KNEW THAT HIS LEAVE WAS NOT TO BE EXTENDED BECAUSE , UNDER ARTICLE 40 ( 4 ) ( B ) OF THE STAFF REGULATIONS , ANY APPLICATION FOR AN EXTENSION REQUIRED TO BE MADE BEFORE 1 JANUARY 1971 .

4 ACCORDING TO THE COMMISSION ' S EXPLANATIONS , WHICH WERE GIVEN IN PARTICULAR AT THE ORAL HEARING AND WHICH THE APPLICANT WAS NOT IN A POSITION TO DISPUTE , THE POST HELD BY THE APPLICANT WAS THE SUBJECT OF A VACANCY NOTICE BEFORE HIS DEPARTURE BUT NO APPOINTMENT WAS MADE . LIKE ANY OTHER VACANT BUDGETARY POST THAT POST WAS SUBSEQUENTLY RESTORED TO THE GENERAL RESERVE OF POSTS AVAILABLE TO THE CENTRE , SO THAT IT COULD BE REASSIGNED , IF APPROPRIATE , IN ACCORDANCE WITH THE NEEDS OF THE VARIOUS DEPARTMENTS AND THE GENERAL PRIORITIES OF THE CENTRE . AT THE END OF 1970 A POST WAS TAKEN FROM THAT RESERVE AND TEMPORARILY ALLOCATED TO THE APPLICANT ' S FORMER DEPARTMENT SO THAT IT COULD EXECUTE WORK OF A LIMITED DURATION FOR A THIRD PARTY . AFTER BEING EXTENDED , THE CONTRACT OF THE TEMPORARY EMPLOYEE APPOINTED TO CARRY OUT THIS WORK LASTED FOR THREE YEARS , NAMELY FROM 15 JANUARY 1971 TO 15 JANUARY 1974 . THEREAFTER THE BUDGETARY POST WAS AGAIN RETURNED TO THE RESERVE OF THE CENTRE . THE COMMISSION EMPHASIZES THAT THIS VERY FLEXIBLE FORM OF MANAGEMENT WAS MADE NECESSARY BY THE BUDGETARY DIFFICULTIES WHICH IT MET IN THE AREA OF RESEARCH AFTER THE END OF THE 1960S AND WHICH RESULTED IN THE ABOLITION OF A LARGE NUMBER OF POSTS .

5 ARTICLE 40 ( 4 ) ( C ) AND ( D ) OF THE STAFF REGULATIONS PROVIDES THAT ANOTHER PERSON MAY BE APPOINTED TO THE POST OCCUPIED BY AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS BUT THAT ON THE EXPIRY OF HIS LEAVE THE OFFICIAL MUST BE REINSTATED IN THE FIRST POST CORRESPONDING TO HIS GRADE WHICH FALLS VACANT IN HIS CATEGORY OR SERVICE , PROVIDED THAT HE SATISFIES THE REQUIREMENTS FOR THAT POST . THESE PROVISIONS THEREFORE MEAN THAT THE OFFICIAL WILL NOT NECESSARILY BE REINSTATED IN HIS FORMER POST BUT MAY BE REINSTATED IN A POST WHICH GIVES HIM A POSITION EQUIVALENT TO THAT WHICH HE OCCUPIED BEFORE BEING GRANTED LEAVE .

6 IT FOLLOWS THAT THE APPLICANT MAY NOT COMPLAIN OF THE FACT THAT THE POST VACATED BY HIS DEPARTURE WAS RETURNED TO THE RESERVE OF VACANT POSTS AVAILABLE TO THE CENTRE FOR FURTHER USE IN THE INTERESTS OF THE SERVICE . IT ALSO FOLLOWS THAT IT WOULD NOT HAVE BEEN POSSIBLE FOR THE COMMISSION TO FULFIL ITS DUTY TO REINSTATE THE APPLICANT BY OFFERING HIM A POST WHICH HAD ONLY TEMPORARILY BEEN PUT AT THE DISPOSAL OF HIS FORMER DEPARTMENT IN ORDER TO ENABLE IT TO DEAL WITH WORK OF A LIMITED DURATION .

7 THE APPLICANT FURTHER SUBMITS THAT HE SHOULD HAVE BEEN REINSTATED IN A POST , WHICH MIGHT HAVE BEEN FILLED AT ABOUT THE SAME TIME AS THE ABOVE-MENTIONED EVENTS , IN THE TECHNOLOGY AND HIGH TEMPERATURE METALLOGRAPHY DEPARTMENT OF THE JOINT RESEARCH CENTRE AT KARLSRUHE AND WHICH WAS THE SUBJECT OF VACANCY NOTICES NOS COM/503/71 AND COM/510/71 , WHICH FIXED 4 AND 18 FEBRUARY 1971 RESPECTIVELY AS THE LAST DATE ON WHICH APPLICATIONS MIGHT BE MADE .

8 IN THIS RESPECT THE COMMISSION REPLIES IN PARTICULAR THAT RESTRICTIONS ON THE NUMBER OF POSTS PREVENTED IT FROM FILLING THAT POST . THE COMMISSION HAS EXPLAINED THAT MORE VACANCY NOTICES WERE PUBLISHED THAN BUDGETARY POSTS WERE AVAILABLE SO AS TO ALLOW FLEXIBLE MANAGEMENT AND TO OBVIATE FINANCIAL DIFFICULTIES . IT WAS FOR THIS REASON THAT ALL THE VACANCY NOTICES IN QUESTION IN THE PRESENT CASE STATED THAT ' ' THIS POST WILL BE FILLED WHEN FUNDS BECOME AVAILABLE ' ' . THIS STEP ALLOWED THE ADMINISTRATION TO TAKE ACCOUNT , WHEN ASSESSING NEEDS AND PRIORITIES , OF CHANGES OCCURRING AFTER THE PUBLICATION OF THE VACANCY NOTICE . IN THE EVENT THE ADMINISTRATION DECIDED TO HAVE THE DUTIES MENTIONED IN THE AFOREMENTIONED VACANCY NOTICES CARRIED OUT BY THE EXISTING STAFF .

9 IN ANSWER TO THOSE ARGUMENTS , THE APPLICANT CONTENDS THAT SUCH CONSIDERATIONS MAY NOT PREVAIL OVER THE OBLIGATION TO REINSTATE HIM .

10 THAT SUBMISSION CANNOT BE UPHELD . NO PROVISION OF THE STAFF REGULATIONS STATES THAT ONCE A RECRUITMENT PROCEDURE HAS BEEN INITIATED THE APPOINTING AUTHORITY IS OBLIGED TO PURSUE IT BY FILLING THE POST WHICH HAS BECOME VACANT . IF FOR LEGITIMATE REASONS BASED IN PARTICULAR ON THE CURRENT REQUIREMENTS OF ITS DEPARTMENTS AND THE PRIORITY OF THE TASKS TO BE CARRIED OUT BY IT , THE APPOINTING AUTHORITY HAS DECIDED NOT TO FILL A POST FOR WHICH A VACANCY NOTICE HAS BEEN PUBLISHED , AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS MAY NOT INSIST ON BEING REINSTATED IN THAT POST . THESE CONSIDERATIONS APPLY A FORTIORI IN THE CASE OF THE JOINT RESEARCH CENTRE , WHOSE POSTS HAVE BEEN CONSIDERABLY REDUCED THUS MAKING NECESSARY EVEN MORE CAREFUL MANAGEMENT OF THE AVAILABLE POSTS .

11 IT HAS NOT THEREFORE BEEN SHOWN THAT AT THE TIME WHEN THE LEAVE GRANTED TO THE APPLICANT EXPIRED THERE EXISTED VACANT POSTS IN WHICH THE COMMISSION COULD HAVE REINSTATED HIM . THE CLAIM FOR REINSTATEMENT WITH EFFECT FROM 1 MARCH 1971 MUST THEREFORE BE DISMISSED .

THE CLAIM FOR REINSTATEMENT WITH EFFECT FROM A DATE LATER THAN 1 MARCH 1971

12 THE APPLICANT SUBMITS IN THE SECOND PLACE THAT HE SHOULD HAVE BEEN REINSTATED IN ONE OF THE POSTS WHICH FELL VACANT AFTER THE EXPIRY OF HIS LEAVE . IN THIS RESPECT , HE REFERS TO THE POSTS FOR WHICH WERE PUBLISHED VACANCY NOTICES NOS COM/515/73 , 531/74 , 507/75 , 1530/75 , 1513/76 AND 1531/76 . IN REGARD TO THOSE POSTS HE CONTENDS NOT ONLY THAT HE POSSESSED THE QUALIFICATIONS REQUIRED BY THE NOTICES BUT ALSO THAT THERE IS EVERY REASON FOR DOUBTING WHETHER THE ADMINISTRATION CONSIDERED HIS QUALIFICATIONS BEFORE FILLING THOSE POSTS SINCE HE DID NOT EXPRESSLY APPLY FOR THEM . IN THE ALTERNATIVE , HE REQUESTS THAT HIS FITNESS FOR THE POSTS SHOULD BE THE SUBJECT OF AN EXPERT ' S REPORT .

13 TO THAT THE COMMISSION REPLIES THAT ALL THE RELEVANT DEPARTMENTS HAD BEEN MADE AWARE OF THE APPLICANT ' S WISH TO BE REINSTATED AND HENCE OF THEIR OBLIGATION TO CONSIDER OF THEIR OWN ACCORD HIS SUITABILITY FOR VACANT POSTS BUT THAT , IN VIEW OF THE SPECIALIZED NATURE OF THE SCIENTIFIC WORK IN QUESTION , THE APPLICANT DID NOT IN FACT SATISFY THE REQUIREMENTS FOR THE POSTS MENTIONED BY HIM . IN THE CASE OF POSTS COMING WITHIN THE CENTRE , THE COMMISSION REFERS IN THIS REGARD TO THE DETAILED EXPLANATIONS GIVEN BY THE DIRECTORATE OF THE CENTRE .

14 SINCE IN RELATION TO THE QUESTION WHETHER THE APPLICANT ' S ABILITIES MATCH THOSE REQUIRED BY THE VACANCY NOTICES BOTH PARTIES ' ARGUMENTS CONTAIN PARTICULARS OF AN EXTREMELY TECHNICAL NATURE , IT IS APPROPRIATE TO ORDER AN EXPERT ' S REPORT TO ENABLE THE COURT TO DECIDE THIS ASPECT OF THE DISPUTE .

15 BEFORE SUCH A REPORT IS OBTAINED , HOWEVER , IT IS NECESSARY TO DECIDE WHETHER THE REPORT SHOULD INCLUDE VACANCY NOTICE NO COM/1531/76 . THE COMMISSION STATES THAT THIS NOTICE WAS ANNULLED FOLLOWING COUNCIL REGULATION NO 2615/76 OF 21 OCTOBER 1976 AMENDING REGULATION NO 259/68 AS REGARDS THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICAL JOURNAL 1976 , L 299 , P . 1 ). THE PURPOSE OF THAT AMENDMENT WAS TO REPLACE BY A SYSTEM OF RECRUITMENT ON TEMPORARY CONTRACTS THE SYSTEM WHEREBY PERSONS REMUNERATED FROM RESEARCH APPROPRIATIONS WERE APPOINTED AS OFFICIALS . THE COMMISSION SUBMITS THAT , IN VIEW OF ITS OBLIGATION TO RECRUIT ONLY TEMPORARY EMPLOYEES IN THE FUTURE , THE ANNULMENT OF THIS NOTICE WAS JUSTIFIED AS RESPECTS THE APPLICANT AND ANYONE ELSE .

16 ON THIS POINT , HOWEVER , THE APPLICANT IS ENTITLED TO RELY ON THE PRIORITY OF HIS RIGHT TO BE REINSTATED . IF WHEN FACED WITH A REQUEST FOR REINSTATEMENT BY AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS THE COMMISSION WERE ALLOWED TO RELY ON THE FACT THAT IT NOW EMPLOYED ONLY TEMPORARY EMPLOYEES , WHATEVER THE NATURE OF THE WORK UNDER CONSIDERATION , THE RIGHT OF AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS TO BE REINSTATED , WHICH IS CONFERRED BY ARTICLE 40 ( 4 ) ( D ) OF STAFF REGULATIONS , WOULD BE ILLUSORY . THE VACANCY NOTICE MENTIONED ABOVE SHOULD THEREFORE BE INCLUDED IN THE EXPERT ' S REPORT .

17 IT FOLLOWS THAT AN ORDER SHOULD BE MADE FOR AN EXPERT ' S REPORT ON THE QUESTION WHETHER THE APPLICANT HAD THE REQUIRED QUALIFICATIONS AND THE NECESSARY ABILITY TO CARRY OUT THE DUTIES CONTEMPLATED BY VACANCY NOTICES NOS COM/515/73 , 531/74 , 507/75 , 1530/75 , 1513/76 AND 1531/76 .

18 THE PARTIES SHOULD BE ASKED TO SEND TO THE COURT , WITHIN TWO MONTHS FROM THE DATE OF DELIVERY OF THE PRESENT JUDGMENT , THE NAME OF THE EXPERT WHOM THEY AGREE TO APPOINT . FAILING SUCH AGREEMENT , THE PARTIES SHALL SEND TO THE COURT , WITHIN THE SAME PERIOD , THE NAMES OF THE EXPERTS WHOM THEY PROPOSE , SETTING OUT THEIR REASONS FOR REFUSING THE OTHER PARTY ' S PROPOSAL .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICANT ' S CLAIM TO BE REINSTATED WITH EFFECT FROM 1 MARCH 1971 ;

2.DIRECTS THAT , BEFORE JUDGMENT IS GIVEN ON THE CLAIM FOR REINSTATEMENT AT A LATER DATE , AN EXPERT ' S REPORT SHALL BE OBTAINED ON THE QUESTION WHETHER THE APPLICANT HAD THE REQUIRED QUALIFICATIONS AND NECESSARY ABILITIES TO CARRY OUT THE DUTIES CONTEMPLATED BY VACANCY NOTICES NOS COM/1515/73 , 531/74 , 507/75 , 1530/75 , 1513/76 AND 1531/76 ;

FOR THIS PURPOSE , DIRECTS THE PARTIES

( A ) TO SEND TO THE COURT , WITHIN TWO MONTHS FROM THE DATE OF DELIVERY OF THE PRESENT JUDGMENT , THE NAME OF THE EXPERT WHOM THEY HAVE AGREED TO APPOINT ;

( B)FAILING SUCH AGREEMENT , TO SEND TO THE COURT , WITHIN THE SAME PERIOD , THE NAMES OF THE EXPERTS WHOM THEY PROPOSE , SETTING OUT THEIR REASONS FOR REFUSING THE OTHER PARTY ' S PROPOSAL ;

3.RESERVES THE COSTS .