C-101/77

Luigi Ganzini , an official of the Commission of the European Communities, residing in Luxembourg, 37 Avenue Alphonse Munchen, represented by Victor Biel, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Biel, 18A Rue des Glacis,

applicant, v

Commission of the European Communities, represented by its 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, Plateau de Kirchberg,

defendant,

APPLICATION principally for the annulment of the decision of the appointing authority not to accept the applicant's application for the post of clerical officer (C 3/C 2) in the Directorate General for Personnel and Administration, Luxembourg Directorate, which formed the subject of Notice of Vacancy COM/726/76,

1 — Language of the Case: French.

Facts and Issues

The facts of the case, the procedure and "detrimental downgrading") never­ the conclusions and submissions and theless applied a transitional measure to arguments of the parties may be him: summarized as follows: "... having regard to the rights which you have acquired, the High Authority has also decided to maintain on a I — Facts and written procedure personal basis the possibility of your The applicant, who was recruited on a being taken into consideration for contractual basis as a messenger by the transfer or promotion from what would High Authority of the ECSC in 1953, have been your position in Category C was established on 1 July 1956 in Grade to such vacant post in that category as 13, step 6, of Category C. On 1 January may interest you ..." 1958 he was promoted to Grade 12, Mr Ganzini was promoted to Grade step 5 (clerical assistant). At his request, D 1, step 6 (head of unit/messenger) supported by a medical certificate, he with effect from 1 November 1975. was transferred in June 1961 from the Publications Department to the Internal Following the posting of Notice of Services Branch as a messenger/ Vacancy COM /726/76, concerning a receptionist. post of clerical officer (C 3 /C 2) in the When the new Staff Regulations of "Dispatch" department of DG DC in Officials were applied the applicant was Luxembourg, application forms were classified in Grade 2, step 7, of the received from both Mr Ganzini (D 1) newly-created Category D. and Mr S. (C 4). A memorandum from the Directorate In a memorandum dated 26 November General for Administration and Finance 1976 from the Head of the dated January 1963 (confirmed on Administration Division to the Head of several occasions after requests by the the Personnel Division in Luxembourg applicant for an explanation of his the opinion was expressed that:

"... I cannot allow myself to be set 5. Order the defendant to pay the costs of the action. aside as a candidate when my application ought to have been The defendant contends that the Court accepted." should:

By a memorandum dated 17 May 1977 1. Dismiss the present application as the request for "reclassification" in unfounded; Category C was rejected. 2. Order the applicant to pay the costs. By a letter from the Commission of 29 September 1977, signed by Christopher III — Submissions and argu­ Tugendhat, the applicant (who claims never to have received the letter in ments of the parties question) was informed that: The applicant maintains that no reasons his "application was taken into were given for the decision in dispute consideration, that is, it was examined and that it is therefore contrary to on the same basis as that of another Article 25 of the Staff Regulations, official who put himself forward within unless the defendant can show that the context of the procedure laid down the unconditional rejection the of in Article 29 (1) (a) of the Staff Regu­ applicant's application does not lations, with a view to occupation of the constitute a decision adversely affecting post in question by way of promotion". him.

JUDGMENT OF 13. ♦ 1978 — CASE 151/77

As filled by promotion within the meaning regards the administration's reply to the of Article 45. No such comparative applicant's complaint concerning the assessment appears to have taken place. regularization of his administrative Finally, the rejection of the applicant's status, it does not provide any evidence application is based on considerations of ill-will towards the official which constitute a misuse of powers. concerned. The complaint in which he requested the regularization of his administrative The applicant replies that he contested a status received a reply which terminated quite specific decision, that is, the decision not to "entertain" his

It that the administration did not consider ought to have said so within the four whether the applicant's case was not different from that of the other officials months which followed receipt of the complaint. By failing to do so it who also suffered a downgrading and committed a serious wrongful act and that its desire to treat them all equally bears the entire liability for the caused it to lose sight of the obligation proceedings brought against it. The contained in Article 7 (1) of the Staff applicant might, at the very most, be Regulations, that is, to act solely in the interests of the service. able to consider discontinuing the proceedings if the defence would The Commission replies that by pre declare itself ready to bear the costs ferring the other candidate on the incurred. ground that he had longer and more The Commission replies that the recent experience in the field of dispatch it in no way exceeded its wording of the decision notified to the discretionary powers, since the post was applicant in January 1977 appears on filled on the basis of the interests of the the printed form used for any service and the promotion was by application. selection after consideration of the The delay involved in the preparation of comparative merits of the candidates in the reply given by the Commission on accordance with the terms of the first 29 September 1977 to the complaint of paragraph of Article 27 and Article 45 1 March 1977 is explained by the fact (1) of the Staff Regulations. that the Directorate General for

4 Mr S. was promoted to the post at issue by a decision dated 7 December 1976.

5 By an undated memorandum, which he claims to have received at the beginning of January 1977, the applicant was informed that the appointing authority "non ha potuto accogliere alla Sua candidatura per l'impiego resosi vacante" (has been unable to accept your application for the post to be filled).

JUDGMENT OF 13. 4. 1971 — CASE 101/77

6 By a memorandum dated 1 March 1977 Mr Ganzini submitted to the appointing authority a complaint under Article 90 (2) of the Staff Regu­ lations, to which the Commission failed to reply, with the result that, in accordance with the terms of that article, its silence constituted, with effect from 1 July 1977, an implied decision of rejection whose annulment is sought by the applicant in the present application.

7 It was only by a letter from the defendant dated 29 September 1977, signed by Christopher Tugendhat, that the applicant was informed that his "application was taken into consideration, that is, it was examined on the same basis as that of another official who put himself forward within the context of the procedure laid down in Article 29 (1) (a) of the Staff Regu­ lations, with a view to occupation of the post in question by way of promotion".

8 The applicant maintains that he never received the said letter.

14 Nevertheless, the submission is unfounded and must be rejected.

15 Secondly, the applicant alleges that the vacancy notice was irregular in that it did not contain either information enabling the candidate's chances of success to be judged or, at the least, the stria obligation to consider whether the post could be filled by promotion within the meaning of Article 45 of the Staff Regulations.

16 A reply has already been given in relation to the alleged absence of consideration of the comparative merits of the two candidates.

17 Furthermore, the contested notice gives full details of the post to be filled as well as of the nature of the duties and the qualifications required.

18 The submission cannot therefore be accepted.

19 Finally, the applicant alleges a misuse of powers, in that the administration did not consider whether Mr Ganzini's case was not different from that of the other officials who had also suffered a downgrading when the Staff Regulations were applied in 1959.

OPINION OF MR MAYRAS — CASE 181/77

25 However, in the light of the attitude of the Commission, which failed to dispel the applicant's misunderstanding of the meaning to be given to the rejection of his application, it is decided under the second subparagraph of Article 69 (2) of the Rules of Procedure to order the defendant to pav all the costs.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

Mr President, Category C. He was promoted to Members of the Court, Grade 12 (clerical assistant) with effect from 1 January 1958. Mr Ganzini, who was recruited by the ECSC on a contractual basis in 1953 as Subsequently, in compliance with his request, which was supported by a a messenger in the Publications medical certificate, he was transferred Department, was established in 1956, to the Internal Services Branch as a within the framework of the Staff Regu­ messenger/receptionist with effect from lations then in force, in Grade 13 of 26 June 1961.

I — Translated from the French.