Opinion of Mr Advocate General Van Gerven delivered on 1 March 1989. - Bruno Giordani v Commission of the European Communities. - Officials - Reinstatement on the expiry of leave on personal grounds. - Case 200/87.



European Court reports 1989 Page 01877



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The dispute between Mr Bruno Giordani and the Commission raises the question of the scope of the administration' s duty to reinstate an official whose leave on personal grounds has expired . That duty is imposed by Article 40(4)(d ) of the Staff Regulations of Officials of the European Communities, the first sentence of which is worded as follows :

"On the expiry of his leave an 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 ".

Summary of the facts

2 . Mr Giordani, a scientific officer in Grade A 5, Step 4, at the Joint Research Centre at Ispra, was granted leave on personal grounds in 1971, and that leave was extended until 1974 .

3 . Before his leave expired, Mr Giordani informed the Commission that he wished to resume his duties . Subsequently, on several occasions, he submitted further requests to be reinstated, and, in a letter of 15 October 1983, stated that he would accept Ispra or any other place of employment and that he was interested not only in a scientific or technical post but also in an administrative post .

4 . No vacancy notice for a post in Grade A 5 was sent to the applicant until 1986 . The Commission states that the administration systematically considered all vacancies in the scientific service, that is to say the service for which Mr Giordani was, in its view, naturally suited in view of his training and professional experience . The administration considered, however, that the applicant did not possess the necessary qualifications for any of those posts . The Commission states, moreover, that during the same period the Joint Research Centre at Ispra published four vacancy notices for Category A posts in the administrative service for which provision had been made in the budget . Again, the administration considered that Mr Giordani did not possess the specific training or experience required for those posts .

5 . By a letter of 9 April 1986, Mr Giordani sent the Commission a request for reinstatement, basing it on Article 90 of the Staff Regulations .

6 . By a decision of 26 May 1986, Mr Giordani was reinstated as a scientific officer in Grade A 5 at the Joint Research Centre at Ispra, with effect from 1 September 1986 . That decision did not give details of the other conditions ( of step and seniority ) of reinstatement .

7 . On examining his salary statement of 14 October 1986, Mr Giordani found that the remuneration paid to him was that for an official in Grade A 5, Step 5 . He considered that his classification in Step 5 failed to take account of the delay in reinstating him .

8 . On 26 November 1986, pursuant to Article 90(2 ) of the Staff Regulations, Mr Giordani submitted a complaint to the appointing authority of the Commission, registered on 1 December 1986, seeking the implementation of the rules applied by the Court in cases of delayed reinstatement of an official after a period of leave on personal grounds .

As he received no reply to that complaint, the applicant brought the present appeal, registered on 30 June 1987, in which he makes, essentially, three claims :

( 1 ) A claim for the annulment of his classification in Grade A 5, Step 5;

( 2 ) A claim for reinstatement, with regard both to seniority in grade and step and to social security cover, with effect from the date on which the first post to which he could have been appointed in accordance with Article 40(4)(d ) of the Staff Regulations fell vacant;

( 3 ) A claim for compensation equal to the difference between the net remuneration to which he would have been progressively entitled as a Community official throughout the period of the delay in reinstating him and the net income he received from employment during that period, together with an adjustment of the salaries paid to him since 1 September 1986 to the rate for Step 8 .

Admissibility

9 . The Commission' s position on the question of admissibility fluctuates, to say the least . In the defence, the Commission first asked the Court to declare the application inadmissible for being out of time . In the rejoinder, it withdrew its claim of inadmissibility while still asserting that the application was registered after the expiry of the period laid down in the Staff Regulations . Then, in answer to a question put by the Court, the Commission claimed that the application was inadmissible because the second and third heads of claim should have been submitted as a request as provided for in Article 90(1 ) of the Staff Regulations before being submitted as a complaint to the appointing authority of the Commission as provided for in Article 90(2 ) of the Staff Regulations . Finally, at the hearing, Counsel for the Commission no longer maintained that argument, but did observe that a(too ) long period had elapsed between the date of the applicant' s reinstatement ( 26 May 1986 ) and the date of his complaint ( 26 November 1986 ). It is true that the decision to reinstate him failed to mention, inter alia, the step in which the applicant was to be classified and Counsel for the Commission stated that this was an "oversight ". Counsel nevertheless claimed that an official was under a duty to inquire . The applicant should therefore have inquired about his step at the time of his reinstatement and he was thus barred from regarding the date on which he received his first salary statement ( 14 October 1986 ) as the date from which the time allowed for the submission of a complaint began to run .

10 . In order to answer the question of admissibility, it is necessary first of all to put the appeal, and the complaint which preceded it, into perspective . The appeal and complaint presuppose that the Commission delayed unjustifiably in taking the decision to reinstate the applicant and that it is therefore guilty of an infringement of Article 40(4)(d ) of the Staff Regulations . The wording of the complaint and the application is obviously inspired by the Court' s previous decisions in cases of delayed reinstatement or failure to reinstate after leave on personal grounds ( judgment of 1 July 1976 in Case 58/75 Sergy v Commission (( 1976 )) ECR 1139, and judgment of 5 May 1983 in Case 785/79 Pizziolo v Commission (( 1983 )) ECR 1343 ). According to those decisions, when there has been an infringement of Article 40 of the Staff Regulations, the administration must actually give effect to the official' s reinstatement, as regards seniority in grade and step and for pension purposes, from the date on which he should have been reinstated . Also according to those decisions, an official adversely affected by a delay in reinstatement may be awarded compensation for the actual damage suffered by him as a result . The burden of Mr Giordani' s complaint and appeal is therefore that the Commission wrongly considered that there had been no infringement of Article 40 of the Staff Regulations and therefore failed to take those decisions of the Court into account when determining the terms of the applicant' s reinstatement .

11 . Those preliminary considerations make it possible to answer a question of principle which arises out of one of the Commission' s positions on the question of admissibility . When a complaint seeks to secure the adoption of a measure that the administration has failed to take ( in the present case, the measures referred to in the second and third heads of claim ), must it be preceded by a request, as provided for in Article 90(1 ) of the Staff Regulations, that it take the relevant measure? In its judgment of 1 December 1983 in Case 217/82 Depoortere v Commission (( 1983 )) ECR 4003, paragraph 6, the Court stated :

"In addition, according to Article 91(2 ) of the Staff Regulations, an appeal shall lie only if it is lodged following the express or implied rejection of a complaint, which, where it is directed against a failure to adopt a measure, must have been preceded by a request to the appointing authority that it take a decision, within the meaning of Article 90(1 )".

The Court gave that answer in a case of which the facts were extremely simple . The applicant had not stated, either in his application or during the course of the subsequent proceedings before the Court, what constituted the act adversely affecting him, nor had he previously submitted to the appointing authority a request that it take a decision relating to him . In the present case, the administration has taken a specific decision - the decision to reinstate the applicant . That decision was taken in such a way that it implicitly but unequivocally - the Commission has not denied this at any stage of the proceedings - expressed the administration' s refusal to acknowledge any infringement of Article 40 of the Staff Regulations and, therefore, its refusal to apply the Court' s decisions concerning late reinstatement . In those circumstances, there was no need to submit a request that the measures referred to in the second and third heads of claim be taken . The administration had already implicitly rejected those claims, which merely express the consequences which the Court attaches to an infringement of Article 40 . The applicant was thus entitled to set out those heads of claim directly in the complaint submitted to the appointing authority, as in fact he did .

12 . The date on which the applicant may be considered to have had full knowledge of the terms of his reinstatement remains to be determined . I agree with the applicant' s view that it was the date on which he was able to examine his salary statement of 14 October 1986, the first after his reinstatement . It is true that, in May 1986, the applicant had been informed of his reinstatement as a scientific officer in Grade A 5 with effect from 1 September 1986 . That decision did not, however, specify the other terms of his reinstatement, apparently as a result of an oversight ( see above, point 9 ). The step in which he was classified only became apparent on receipt of the salary statement and the time within which a complaint must be submitted therefore started to run from that date . The argument put forward by the Commission at the hearing, that the applicant should have inquired of his own initiative about the terms of his reinstatement and that, because he did not do so in good time, his complaint was submitted out of time, cannot be accepted inasmuch as the Commission itself acted wrongfully by failing to state those terms in the reinstatement decision .

13 . In view of the foregoing, I consider that the three-month period within which the applicant was obliged to submit his complaint started to run from the date on which he was able to examine his salary statement of 14 October 1986 . The complaint was submitted on 26 November 1986, and was therefore not out of time . As the remaining requirements for admissibility are satisfied, I propose that the Court should declare the whole application admissible .

Substance

14 . In his claims, the applicant does not indicate the post or posts in which he considers he should have been reinstated . His argument is based essentially on the fact that he was not reinstated until 12 years after the expiry of his leave on personal grounds and that no vacancy notice was sent to him during those 12 years . He considers that situation to be made more serious by the fact that in a letter of 15 October 1983 he had stated that he was willing to accept Ispra or any other place of employment and that he was interested not only in a scientific or technical post but also in an administrative post .

Because the situation to which the applicant draws attention is so surprising, given the appointing authority' s duty under Article 40(4)(d ) of the Staff Regulations to reinstate an official on the expiry of his leave, it is for the Commission to provide an explanation in its defence .

First of all, the Commission claims that the administration systematically considered all vacant posts in the scientific service at the time of their publication, but decided that the applicant did not possess the necessary qualifications for any of those posts . However, in the light of the documents addressed to the Court after the hearing, some doubt may be cast on how systematically the Commission considered vacant posts . Furthermore, the Commission has produced no evidence to suggest that vacant posts in any of its services other than the Research Centre at Ispra were considered .

Secondly, the Commission claims that, even assuming that the applicant was entitled to claim reinstatement in the administrative service - which the Commission denies - he did not have the abilities for reinstatement in any of the four posts in respect of which the Research Centre at Ispra ( again, no mention is made of the other Research Centre establishments, to say nothing of the other services of the Commission ) published vacancy notices .

Finally, the Commission makes the general remark that the applicant was continuously in employment, from 1 June 1971 to 31 January 1985, with the same company and that his desire to be reinstated was therefore not particularly urgent .

The defence put forward by the Commission raises three questions relating to the interpretation of Article 40(4)(d ) of the Staff Regulations . The first is whether the duty to reinstate an official whose leave on personals grounds has expired applies to part of the institution which employs him, or to the whole of it . The second question concerns the administration' s diligence in carrying out that duty to reinstate him . In particular, the question arises whether the degree of urgency of the official' s desire to be reinstated can affect that diligence . Finally, the third question concerns the application of the provision in question to officials in the scientific or technical services . May such officials claim a right to be reinstated in an administrative post if they have the skills required for such a post? I shall first answer those three general questions, and then apply the answers to the present case .

First question : The institution or establishment bound by the duty to reinstate

15 . Article 40(4)(d ) of the Staff Regulations does not specify the authority which is to ensure that an official whose leave on personal grounds has expired is reinstated . Article 40(4)(a ) of the Staff Regulations, on the other hand, specifies that leave on personal grounds is to be granted by the appointing authority . Can it be deduced from that provision that the obligation to reinstate an official on the expiry of his leave lies with the same authority and that, in consequence, only posts to which that authority has the power to make appointments can be taken into consideration for the purposes of reinstatement? What if the powers conferred on the appointing authority are exercised by delegation or even subdelegation? In such a case, are the posts to be taken into consideration those within the institution as a whole or those for which the power of appointment has been delegated or even subdelegated? This problem is of particular consequence for the staff of the Joint Research Centre . Within the Directorate-General for Science, Research and Development, the Joint Research Centre consists of four establishments ( Geel, Ispra, Karlsruhe and Petten ) set up by the Commission to carry out the Community' s research and training programmes . ( 1 ) If the Director of one of the Joint Research Centre establishments has granted an official leave on personal grounds, three levels might, theoretically, be envisaged when considering reinstatement : posts within the original establishment, posts within the Joint Research Centre and posts within the Commission as a whole .

16 . In my opinion, the duty to reinstate an official on the expiry of his leave falls on the institution to which the official is bound under the Staff Regulations . The institutions are the employers of the officials . In the absence of any provision to the contrary, it is their responsibility to carry out the duties owed to officials under the Staff Regulations . If that principle is applied to officials of the Joint Research Centre whose leave on personal grounds has expired, it means that they must be reinstated in the first post which falls vacant within the Commission as a whole, provided that the conditions laid down in Article 40 are satisfied . That position has in fact been implicitly endorsed by the Court in its judgment of 2 April 1981 in Case 785/79 Pizziolo v Commission (( 1981 )) ECR 969 and in its order of 11 October 1984 in Case 285/83 Nobili v Commission ( not reported ). ( 2 )

17 . It is true that such an interpretation of the duty to reinstate, while preserving to the greatest possible extent the possibilities for reinstating an official whose leave on personal grounds has expired, may entail the disadvantage that he will be offered a post in a place of employment which he does not find suitable . This is a consequence inherent in the application of Article 40(4)(d ) of the Staff Regulations, as the Court ruled in its judgment of 14 June 1988 in Case 12/87 Zeyen v Commission (( 1988 ) ECR 2943, paragraph 12 ):

"( an official does not have ) a right to be reinstated at a particular place of employment in accordance with his or her personal interests ."

In that same judgment, however, the Court made it clear that, while the appointing authority may legitimately take family interests into account, those interests cannot be decisive in the application of Article 40 of the Staff Regulations .

Second question : Diligence to be shown by the administration

18 . Pursuant to Article 40(4)(d ) of the Staff Regulations, an official whose leave on personal grounds has expired 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 . If he declines the post offered to him, he retains his right to reinstatement when the next vacancy occurs . If he declines a second time, he may be required to resign after the Joint Committee has been consulted .

19 . Two conclusions may be drawn from those provisions . The first derives from he fact that the authority is required to offer an official awaiting reinstatement a suitable post when "the first post ... falls vacant" and, if he declines, "when the next vacancy occurs ". It is clear from those words that the authority must offer an official awaiting reinstatement a post if the conditions relating to career and suitability referred to in the provision are satisfied . The provision does not authorize the authority to refrain from offering a vacant post on the ground that the official is satisfactorily employed at the time . It certainly does not authorize the administration to exercise less diligence on the basis of a criterion as vague as the degree of urgency of the official' s wish to be reinstated, when there is no doubt about his wish . ( 3 ) Under the rules it is for the official to decide whether it is in his interest to accept the first post falling vacant which he is offered . The Staff Regulations explicitly recognize his right to decline that first offer . If he does so, the administration must again offer him a post as soon as a second vacancy occurs . If that second offer is also declined, the official may, but need not, be required to resign after the Joint Committee has been consulted .

20 . The foregoing must, however, in my view, be qualified where the same vacant post could be offered to a number of officials whose leave on personal grounds has expired . In such a case, priorities must be determined, and I consider it legitimate for the authority thus to give priority to officials who are not in employment . It should, however, be noted that in the present case the Commission has not claimed that vacant posts occurred which could have been occupied by the applicant but which, for reasons of priority, had been offered to other officials awaiting reinstatement .

21 . The second conclusion which may be drawn from the provisions is that it is for the administration to determine whether the official satisfies the requirements for a vacant post . In my view, that process must take place automatically and systematically in the case of every post corresponding to his grade which falls vacant in the service to which an official awaiting reinstatement belongs . Normally, therefore, an official awaiting reinstatement need not seek out vacant posts . However, in addition to that automatic and systematic consideration, it is a matter of good administration for him to be sent any vacancy notices in which he is likely to be interested and to ask him to reply if he feels he satisfies the requirements for a given post .

Such a reinstatement procedure has in fact been established at the Joint Research Centre at Ispra, as may be seen from a standard letter of March 1981 which the head of the Administration and Personnel Division sent to the various officials whose leave on personal grounds had expired . Two passages may usefully be quoted :

( i ) "Each time a post corresponding to the grade and category of an official who has requested to be reinstated falls vacant, in particular in his original administrative unit, the Administration shall consider, before official publication, whether he satisfies the relevant requirements ."

( ii)"In parallel with the Administration' s own efforts to find a post for an official awaiting reinstatement and with a view to keeping him informed of vacancies occurring within the institution, the official shall systematically be sent, without any preliminary sorting, copies of all notices of vacancies corresponding to his grade and category, describing both the duties involved and the qualifications required as they are published .

It will be for the official to consider whether he is interested in those posts and, if so, to inform the Administration of his interest and, if need be, of any particular aptitudes - not shown in the standard personal information sheet - he may possess which are relevant to the duties involved in the post for which the vacancy has been published ".

Third question : Consideration of vacant administrative posts

22 . On the expiry of the leave on personal grounds of an official in the scientific or technical services, may the administration confine itself to considering only posts vacant in the scientific or technical services, or must it take posts vacant in the administrative service into consideration as well? Before that question is answered, it should be placed in its legal context .

Article 40(4)(d ) of the Staff Regulations provides that an official whose leave has expired 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 . The words "or service" seem, at first sight, to exclude any possibility that posts in the administrative service may be considered where the official to be reinstated belongs to the scientific or technical services . However, the second paragraph of Article 98, in Title VIII of the Staff Regulations, which contains special provisions applicable to officials in the scientific or technical services of the Communities, provides that the provisions of Article 45(2 ) are not to apply to officials in the scientific or technical services . Article 45(2 ) of the Staff Regulations is couched in the following terms :

"An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition ."

The effect of Articles 45 and 98, taken together, is that officials in the scientific or technical services may be appointed to the administrative service without going through the competition procedure, which demonstrates the desire of those who drew up the Staff Regulations to make posts in the scientific or technical services more attractive ( see the judgment of 20 October 1977 in Case 5/76 Jaensch v Commission (( 1977 )) ECR 1817 ). May it be deduced from the existence of that possibility that the administration has a duty to consider, in the case of a member of the scientific or technical staff, all posts vacant in the administrative service? Does the obligation to consider, automatically and systematically, the suitability of a member of the scientific or technical staff awaiting reinstatement for posts vacant in the scientific or technical services ( see paragraph 21 above ) extend to posts in the administrative service?

23 . In my opinion, the administration is not at fault in not automatically considering the suitability of a member of the scientific or technical staff awaiting reinstatement for vacant posts in the administrative service . That position is based on Article 40, which does not recognize any right of a member of the scientific or technical staff to be reinstated in a post in another service . However, if an official awaiting reinstatement informs the administration of his genuine interest in a specific post or in specific posts in the administrative service and specifies the aptitudes he has enabling him to occupy those posts, I feel that the principles of good administration require that such requests for reinstatement should be examined favourably . When carrying out that examination guided by the principles of good administration, the competent authority obviously has not only the right but the duty to ascertain whether the reinstatement of a member of the scientific or technical staff in the administrative service is in the interests of the service ( see Article 7(1 ) of the Staff Regulations, which gives the appointing authority the right, acting solely in the interests of the service, to assign each official to a post in his service which corresponds to his grade ).

Should the applicant have been reinstated sooner? An expert' s report should clarify this point for the Court

24 . Let us now apply the answers given above to the case of Mr Giordani, who is a scientific officer bound under the Staff Regulations to the Commission of the European Communities .

The administration should have automatically and systematically considered whether the Grade A 5 posts vacant in the scientific or technical services within the Commission corresponded as a whole to Mr Giordani' s abilities ( see paragraphs 16 and 21 above ). On consideration of the documents addressed to the Court, it may be doubted whether the posts vacant in that service were systematically considered . Furthermore, the Commission does not say whether posts vacant anywhere other than at the Ispra establishment were taken into consideration . That silence, together with other evidence in the written observations and the documents addressed to the Court, suggests that even posts vacant in the other Joint Research Centre establishments or administrative services of the Commission were not examined in connection with Mr Giordani' s reinstatement .

In my view, those conclusions justify a postponement of the Court' s decision on the substance of the application until such time as it has been possible to draw up a list of all the posts vacant in the scientific or technical services which should have been considered, and to determine to what extent the applicant' s abilities matched the requirements for those posts .

25 . On the other hand, the administration was under no strict legal duty to consider on its own initiative whether the applicant' s abilities met the requirements for appointment to the posts vacant in the administrative service . Nevertheless, in accordance with the principles of good administration, it should have done so if the applicant showed any real interest in specific administrative posts, without prejudice to the ascertainment of whether a transfer to another service was in the interests of the service ( see point 23 ).

In a letter of 15 October 1983, the applicant gave the first indication that he was interested in a post in the administrative service . In the same letter, he asked to be sent any vacancy notices in which he might be interested, including those for posts in the administrative service . During the period prior to that letter, therefore, Mr Giordani had not done anything which might have led the administration to consider posts vacant in the administrative service with a view to his possible reinstatement in an administrative post . He cannot therefore claim that he should have been reinstated to an administrative post for which a vacancy notice was published before the letter was sent . In the period subsequent to the letter, I take the view that the administration should have taken account of the interest shown by the applicant in a post in the administrative service and should have complied with his request to have vacancy notices in which he might be interested, including those for administrative posts, sent to him .

In view of the foregoing considerations, I consider that the list mentioned above should also take account of vacancies which occurred in the administrative service between 15 October 1983 and the reinstatement decision . If that list were to reveal one or more administrative posts to which Mr Giordani might have been appointed in the light of his abilities, the Commission would then have to state, subject to review by the Court, whether such a reinstatement would have been compatible with the interests of the service .

26 . Finally, with regard to the posts which were considered, the parties' positions differ as to the assessment of Mr Giordani' s qualification to carry out the duties in question . The Commission observes that the assessment of an official' s suitability for a given post is a matter for the appointing authority . The administration' s discretionary power in that regard is certainly very wide but for that very reason requires that the suitability of the official awaiting reinstatement for the vacant post should be examined with scrupulous care . The fact that not a single post was offered to the applicant for 12 years, and that not even a single vacancy notice was sent to him, is so astonishing that the diligence of the administration in this case may be doubted .

27 . In Case 785/79 Pizziolo v Commission, judgments of 2 April 1981 (( 1981 )) ECR 969, and 5 May 1983 (( 1983 )) ECR 1343, and in Case 285/83 Nobili v Commission, order of 11 October 1984 ( not reported ), the Court, before giving judgment, ordered an expert' s report in order to enable it to settle similar disputes . I propose that it should do likewise in the present case .

The expert appointed could be charged with reporting on the following two questions :

( 1 ) Having regard to the applicant' s abilities, could he have been reinstated to a post in Grade A 5 in the scientific or technical services within the Commission as a whole for which a vacancy notice was published during the period between the date of the expiry of his leave on personal grounds and that on which the decision to reinstate him was taken?

( 2 ) Regardless of whether such a reinstatement would have been in the interests of the service, could the applicant have been reinstated, having regard to his abilities, in a post in Grade A 5 in the administrative service within the Commission as a whole for which a vacancy notice was published during the period between 15 October 1983 and the date on which the decision to reinstate him was taken?

In conclusion, I propose that the Court should :

( 1 ) Declare the application admissible;

( 2 ) Order an expert' s report on the questions set out above ( see point 27 ).

(*) Original language : French .

( 1)1 Article 1 of Commission Decision 85/593/Euratom of 20 November 1985 on the reorganization of the Joint Research Centre ( JRC ) ( OJ 1985, L 373, p . 6 ).

( 2)2 In both those cases the applicants were scientific officers in a Joint Research Centre establishment whose leave on personal grounds had expired and who were claiming the right to be reinstated to various posts . In both cases the Court ordered an expert' s report in order to determine whether the applicants had the qualifications required to carry out the duties set out in a number of vacancy notices . Those notices related to posts both in the Commission' s administrative services and in the various Joint Research Centre establishments .

( 3)3 Should the applicant have left his desire to be reinstated in any doubt, it is self-evident that the administration is not bound to reinstate him until that doubt has been dispelled ( see the judgment of 27 October 1977 in Joined Cases 126/75, 34 and 92/76 Giry v Commission (( 1977 )) ECR 1937 ).