OPINION OF MRS ADVOCATE GENERAL ROZÈS

DELIVERED ON 15 JULY 1982 ( 1 )

Mr President,

Members of the Court,

An action against the Commisson of the European Communities has been brought before the Court by Antonio Giannini, a temporary servant in Grade A 5, for the annulment of the appointment of Mr Cassella as a principal administrator in the specialized division dealing with tariff questions in connection with agreements (Grade A 5, Step 4).

The facts are these:

I — During the last few years the crisis in the textile industry and the administration of agreements made to cope with that crisis (bilateral agreements, multifibre agreement) have grown in importance in the European Economic Community.

Such matters are the responsibility of the Customs Union Service which is directly answerable to the Members of the Commission and which at the time of the events in question was responsible more particularly to Commissioner Etienne Davignon. Nowadays it comes under Commissioner Karl-Heinz Narjes.

The Customs Union Service, which is headed by a director general, was and still is divided into two directorates:

Directorate A (Tariff Questions) which comprised the following divisions or specialized sections:

1. Common Customs Tariff,

2. Economic tariff questions,

3. Value for customs purposes and computer processing,

4. Tariff questions in connection with agreements.

Directorate B (Customs Legislation) comprising the following divisions and specialized sections:

1. Movement of goods procedures and coordination of agricultural questions,

2. Origin of goods,

3. General customs legislation and prevention and repression of fraud,

4. Customs procedures with economic impact and general matters.

From 2 February 1976 Antonio Giannini, who was born in 1941 and is an official at the Ministry of Finance in Rome, was seconded as an expert on textile nomenclature to the Customs Union Service, more particularly Divisions 1 and 4 of Directorate A. It appears that the cost of his secondment was born by the Italian authorities.

When the crisis grew worse the Customs Union Service procured the creation in 1978 of a temporary post in Grade A5/A4 and on 16 July 1978 Mr Giannini was engaged as a temporary servant to occupy that post under Article 2 (a) of the Conditions of Employment of Other Servants of the European Communities. His contract of employment was for an indifinite period and in fact came to an end on 30 June 1981.

Mr Giannini asserts, and some of his superiors and colleagues confirm ( 2 ), that at the time assurances were given to the Italian authorities as regards his future establishment in the Community administration.

For its part the Commission asserts that Mr Giannini's attention was expressly drawn to the temporary nature of his appointment and to the fact that he could not be established except after an open or external competition (to constitute a reserve) for an established post such as are organized from time to time at the Commission. Two letters (dated 8 March 1978 and 17 July 1978) are to this effect.

After completing a sixth-month probationary period and receiving a glowing report from the Director of (or Chief Adviser to) Directorate A and the Head of Division (or specialized section) 4 of that directorate he was placed in Grade A 5, Step 2, as a temporary servant with the title of principal administrator.

The Customs Unions Service wished Mr Giannini to be established and in September 1979 asked for a post in Grade A 5/A 4 in Division 3 (Value for Customs Purposes and Computer Processing) of Directorate A, which had been made vacant by the departure of Mr Pearce after his election as a Member of the European Parliament, to be transferred to Division 4 (Tariff Questions in connection with Agreements), the very division in which Mr Giannini worked, and for the transferred vacant post to be advertised.

However, on 23 November 1979 Division 2 (Careers) of Directorate A (Personnel) of Directorate General IX (Personnel and Administration) refused to agree to the transfer and publication of the vacancy until after it had received an assurance to the effect that the transfer of the post was not intended to “facilitate the establishment of a temporary servant at present in service”, namely Mr Giannini.

A vacancy notice (No COM/663/79) for a post in Career Bracket A 5/A 4 was thus brought to the attention of staff on 20 December 1979. It stated that the duties involved were administrative, advisory and supervisory duties relating to the tariff administration of textile agreements (matters relating to the tariff classification and nomenclature of textile products).

That description of duties matched perfectly Mr Giannini's qualifications and the work he did in Division 4.

Article 29 of the Staff Regulation of Officials provides:

“(1) Before filling a vacant post in an institution, the appointing authority shall first consider: (a) whether the post can be filled by promotion or transfer within the institution; (b) whether to hold competitions internal to the institution; (c) what applications for transfer have been made by officials of other institutions of the three European Communities; and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests ...

(2) A procedure other than the competition procedure may be adopted by the appointing authority for the recruitment of Grade A 1 or A 2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications.”

So at that stage the vacancy notice could only attract applications for promotion or transfer within the institution (Article 29 (1) (a)) and since he was a temporary servant there was no point in Mr Giannini's submitting an application.

The date by which applications had to be lodged was 18 January 1980. Three candidates submitted their applications for the post by that date.

One of them, Luigi Casella, born in 1939, had entered the service of the Commission on 1 June 1962 in Grade C 3, Step 1. His career had been a brilliant one because by 1 January 1976 he had reached Grade A 6. For some time he worked in Division 1 (Common Customs Tariff) of Directorate A (Tariff Questions) and then from 1 January 1978 he was transferred or moved under the policy of “mobility” to Directorate B (Customs Legislation), and more specifically to Division 4 (Customs Procedures with Economic Impact and General Matters). Nevertheless his application was initialled by the Head of Division 3 of that directorate (General Customs Legislation and Prevention and Repression of Fraud). It does not appear however that he had much in particular to do with “tariff questions in connection with agreements” (entrusted to Division 4 of Directorate A) which incidentally were handled by Mr Giannini.

On 6 February 1980 the Director Generał of the Customs Union Service, which had applied for the transfer of the post, rejected those three applications. In Mr Casella's case he considered that he deserved promotion to Grade A 5 “in the division to which he is at present assigned” because of his maturity as well as his considerable qualities and his experience; he stated however that Mr Casella did not possess the specific qualifications required for the post. He accordingly took the view that Mr Casella's application could not be accepted for the post to be filled in Division 4 of Directorate A and that only the adoption of the procedure laid down in Article 29 of the Staff Regulations, that is to say first the organization of a competition internal to the institution (Article 29 (1) (b)), could lead to the appointment of a qualified person.

The papers before the Court reveal the different views held by the cabinets of some of the Commissioners and Directorates General as regards the position of Mr Giannini and Mr Casella. In the end however the Director General of the Customs Union Service decided not to fill the post by means of “external” recruitment, to use his own words, and on 22 December 1980 Mr Casella was promoted to Grade A 5, Step 4, in the specialized section or division dealing with tariff questions in connection with agreements, with seniority in step from 1 September 1979.

It appears that at the present time Mr Giannini, whose contract has been renewed, continues to deal with all questions relating to the tariff classification of textile products in Division 4 of Directorate A. It would even appear that Mr Casella works in a division other than that to which he was assigned. However, as the Commission points out, that situation tends at most to prove that the real aim of the Customs Union Service in asking for an A 5/A 4 post to be transferred was to have Mr Giannini established or that the transfer was not really necessary.

II — Mr Giannini has brought an action before the Court seeking the annulment of Mr Casella's appointment and the reopening of the procedure for recruitment to post COM/663/79.

1. In support of his application the applicant complains first of all of manifest errors in the assessment of the facts, errors in law and disregard of the interest of the service (Article 7 of the Staff Regulations), which, he submits, led to Mr Casella's being deemed to fulfil the specific requirements of the vacancy notice. Mr Casella's appointment, which was made on that basis, was decided upon with the sole aim of preventing the applicant from taking part in an internal competition and occupying the post to be filled. It therefore amounts to a misuse of powers in his regard. (a) The Commission questions the admissibility of that line of argument: if Mr Casella's appointment were annulled it would be necessary for the recruitment procedure to be resumed from the beginning and Mr Giannini, being a temporary agent, would not qualify to be considered for a possible promotion. or transfer, the examination of which constitutes the mandatory starting-point under that procedure (Article 29 (1) (a)). Therefore he has no interest in seeking the annulment of the appointment. In fact if the appointment of Mr Casella were vitiated on the grounds alleged the Commission would, according to Mr Giannini, necessarily have to proceed to the second stage laid down in Article 29 (1) (b), that is to say an internal competition, which would also necessarily lead to his appointment. (b) At the hearing the Commission did not pursue its reservations on the issue of admissibility. The substance of the first submission must now be considered. In a case which is now quite old the Court held that the use of the term “whether” in Article 29 of the Staff Regulations “clearly indicates that the appointing authority is ... merely bound to consider in each case whether [promotion or transfer] may result in the appointment of an official of the highest standard of ability, efficiency and integrity”. It went on to say that “in so considering the appointing authority must take into account both the particular requirements of the post to be filled, viewed within the general framework of the departments, and the available officials”. ( 3 ) In that case the Court held that the Commission was not required to organize an internal competition. However the Court has repeatedly held that “the presence of several persons having the qualifications for promotion or transfer within the institutions may lead the appointing authority to conclude that the interests of the service and the impartiality of recruitment render an internal competition desirable”. ( 4 ) Even where only one candidate was suitable for promotion the Court has held that “the appointing authority, since it has available for consideration only one candidate suitable for promotion, may have all the more reason for holding an internal competition since it may rightly consider that it does not have a sufficiently wide choice to ensure recruitment in accordance as far as possible with the requirements of the post to be filled”. ( 5 ) However, on 5 December 1974 the Court (First Chamber) held that: “Article 29, which forms part of the chapter in the Staff Regulations devoted to recruitment, covers the various means of filling a vacant post. It lays down, for this purpose, that examination shall be made in order of preference, first of the possibilities of filling the post by promotion or transfer within the institution where the vacancy has occurred, next of the possibility of holding competitions internal to that institution, and, thirdly, of applications for transfer made by officials of other institutions”. ( 6 ) (emphasis added). Consequently the interests of the service do not require recourse to what is only a “possibility”. In this regard the appointing authority has a wide discretion which may not be criticized except on grounds of a manifest error of fact or of law or for misuse of powers. The Court has recognized that when comparing the candidates' merits the appointing authority has a wide discretion and that “ its assessment as to whether a candidate fulfills the conditions of eligibility required by the vacancy notice may be questioned only in the event of manifest error”. ( 7 ) The papers before the Court do not reveal any error of that kind. The vacancy notice contained very precise terms which at first caused the Director General to reject the three applications which had been submitted, including Mr Casella's. However, the Director General later changed his mind and was able properly to consider that Mr Casella's appointment would be in the interest of the service. Mr Casella's appointment was indeed made in difficult circumstances but its purpose was to fill the post declared vacant. Once that was done it was unnecessary to organize an internal competition and the fact that Mr Giannini could not apply for the vacant post is the result of the proper application af Article 29 and does not constitute a misuse of powers. In the Ranch judgment of 31 March 1965 ([1965] ECR 135) the Court (Second Chamber) held that any persons who at the time when internal competitions (Article 29 (1) (b)) are initiated are properly employed by the institution may take part in such competitions, whatever the legal nature of the obligation binding them to the institution. However, the Court did not extend that principle to either the promotion/transfer stage referred to in Article 29 (1) (a) or the transfer stage referred to in Article 29 (1) (c) because that would have been manifestly contrary to the Staff Regulations. If in fact the promotion/transfer stage were to be neglected or followed merely for formality's sake there would no longer be any distinction between the Staff Regulations of Officials and the Conditions of Employment of Other Servants as regards career development.

2. Mr Giannini alleges next that the Commission could not have been unaware of the particular circumstances in which he was engaged and that he could legitimately hope to obtain a permanent post matching his specialized field. I should observe in this regard that when he was engaged in 1978 as a temporary servant the Director General for Personnel especially drew his attention to the uncertain nature of his appointment and to the fact that it was necessary to pass an open (external) competition in order to be established. The conduct of the Commission, which is moreover justified by the interests of sound administration, cannot constitute a failure to fulfil its obligation to assist the applicant which derives from Article 24 of the Staff Regulations. ( 8 ) The duty to look after his wellbeing, which the applicant contends was disregarded, cannot be construed as a duty on the part of the Commission to establish him in order to enable him to perform certain duties, in utter disregard of the rules contained in the Staff Regulations. The assurances gives to him could not have created any legal certainty. Faced with facts which in some ways were not unlike this case the Court has held that the organization of an internal competition for the sole purpose of remedying the anomalous administrative status of a specific official and of appointing that same official to the post declared vacant is contrary to the aims of any recruitment procedure and thus constitutes a misuse of powers. ( 9 ) If the applicant had been engaged to fill temporarily a permanent post as referred to in Article 2 (b) of the Conditions of Employment of Other Servants of the European Communities he could not have been engaged for more than two years and his contract could not have been renewed for a period of more than one year. According to the second paragraph of Article 8 of the Conditions, “at the end of that time they [temporary staff] shall no longer be employed as temporary staff. On the expiry of their contracts such servants may be assigned to established posts in the institution only if they are appointed as officials in accordance with the Staff Regulations”, that is to say on condition that they pass an open (external) competition or are appointed as officials under the procedure laid down in Article 29 (2). The applicant occupies a temporary post; he remains under a contract for an indefinite period and there is nothing to prevent that contract from being regularly renewed until he reaches retirement age, provided that the post which he occupies remains a temporary one and he is considered indispensable in that post. I understand his concern to have legal certainty. However, in that regard he ought to have entered one of the two open competitions based on qualifications and tests for customs specialists which were announced in the Official Journal of the European Communities — Competition COM/A/184 (Official Journal C 277 of 6 November 1979, p. 7) and Competition COM/A/326 (Official Journal C 233 of 12 September 1981, p. 25). The age-limit for those competitions did not apply to candidates who, on the date by which applications had to be submitted, had been an official or.a servant of the European Communities for at least one year. The applicant's situation is no different from that of other temporary servants. Therefore my opinion is that the application should be dismissed and the parties should bear their own costs.

( 1 ) Translated from the French.

( 2 ) Sec the Director General's letter of 7 July 1980, the letter of the Director of Directorate A of 8 December 1980 and the letter of the Head of the Permanent Delegation of the Commission of the international organization at Geneva of 21 January 1981.

( 3 ) Joined Cases 12 and 29/64 Ley, 31 March 1965, Second Chamber, [1965] ECR 107 at p. 121.

( 4 ) Case 23/74 Klister, 12 March 1975, First Chamber, [1975] ECR 353, para. 24 at p. 367. Case 22/75 Kuiter, 29 October 1975, First Chamber, [1975] ECR 1267, para. 5 at p. 1271.

( 5 ) Case 123/75 Kuiter, 25 November 1976, First Chamber, [1976] ECR 1710, para. 17 at p. 1710.

( 6 ) Case 176/73 Van Belle, [1974] ECR 1361, paras 4 and 5 at p. 1370.

( 7 ) Case 151/80 De Hoe, 17 December 1981, First Chamber [1981] ECR 3161 para. 9 at p. 3173.

( 8 ) Case 157/77 Gilbeau, 5 April 1979, Secând Chamber [1979] ECR 1505, para. 23 at p. 1518.

( 9 ) Case 105/75 Giuffrida, 29 September 1976 [1976] ECR 1395, paras 10 and 11 at p. 1403.