C-785/79

T H E C O U R T (Second Chamber)

composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar

gives the following

PIZZIOLO v COMMISSION

JUDGMENT

The facts of the case, the course of the applicant's departure was put at the the procedure and the conclusions, sub- disposal of another department. Sub- missions and arguments of the parties sequently a budgetary post was allocated may be summarized as follows: to the Ceramics and Metallurgy Department for a limited period of two years in order to make it possible to deal with work for third parties which was substantial but of limited duration. A I — Facts and written p r o c e d u r e temporary employee, who started work on 15 January 1971, was engaged to carry out that work. In order to complete the work the temporary 1. Mr Pizziolo, who holds a "laurea" employee's contract was extended by one in chemistry of the University of Pisa, year. The employment of the temporary entered the service of the Commission employee was terminated on completion of the European Atomic Energy of the work on 15 January 1974. The Community in 1959 and was posted to budgetary post was subsequently the Joint Research Centre at Geel. In allocated to another department. March 1963 he was appointed an official in Grade A 7 on the scientific staff and in 1964 he was promoted to Grade A 6. In the same year he was transferred to 4. By letter of 24 March 1971 the Joint Research Centre at Karlsruhe. addressed to the Directorate-General for Personnal and Administration of the Commission, the applicant requested his reinstatement. By letter of 15 December 2. From 1 March 1970 to 28 February 1972 addressed to the Administration 1971 Mr Pizziolo was granted leave on and Personnel Division of the Joint personal grounds. Research Centre at Ispra, which was transmitted to the said Directorate- General, the applicant stated that he was 3. According to information supplied available for reinstatement in a post paid by the Commission, the post held by Mr from the operational budget. He Pizziolo in the Ceramics and Metallurgy submitted application forms on 20 March Department at Karlsruhe was the subject 1973, 5 October 1977 and 10 April 1978. of a vacancy notice in February 1970 but By letter of 10 August 1976 he requested no appointment was in fact made. reinstatement at the Karlsruhe Centre and his request was transmitted to all other Joint Research Centres. It appears from the information supplied by the Commission during the written procedure that, because of a redistri- According to the applicant, the Indi- bution of work within the department in vidual Rights and Privileges Division of question, the budgetary post vacated on the Directorate-General for Personnel

By a note dated 23 October 1978 the applicant lodged a request under Article The applicant received no reply to his 90 (1) in which he asked for re- complaint of 29 March 1979 and on instatement in a vacant post in his 24 October 1979 brought the present category and grade, for compensation action. for the loss suffered as a result of the delay in reinstating him and also for reconstruction of his career, failing which, for compensation under that 5. Upon hearing the report of the head. Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral By a second note of the same date the procedure without any preparatory applicant submitted a complaint under inquiry. The Court did, however, invite Article 9C (2) of the Staff Regulations the Commission to answer a number of against the failure to appoint him to the questions in writing before the hearing. posts which were the subject of Vacancy Notices Nos C O M / 3 6 4 to 371/78.

such compensation being equal to the the necessary abilities to fill some net emoluments which he would have or all of those posts is based on earned during the period in question factually erroneous or irrelevant less net earnings actually received in considerations, or whether it other employment during that period, appears to be a question of such damages being moreover judgment where arguments could increased by the addition of default validly be advanced on one side interest at the rate of 8% per annum or the other; running from the due date of each salary payment; (c) Reporting whether it may be said that prima facie the applicant 3. Order the Commission to reconstruct clearly does not have the his career since 1 March 1971 or, necessary abilities for some or all failing that, to compensate him for of the posts; the loss suffered in the development of his career, that loss being (d) Answering any relevant request estimated, subject to the right to made by the parties; amend the figure during the case, at BFR 150 000, together with default (e) Submitting a report stating the interest at the rate of 8°/o per annum reasons upon which it is based. from 23 October 1978; — In this event, reserve the decision on 4. Annul the implied decisions rejecting costs. the request of 23 October 1978 and the complaint of 29 March 1979; 2. The Commission contends that the 5. Order the Commission to pay the Court should: costs. 1. Dismiss the application as unfounded; In his reply the applicant requests, in the 2. Order the applicant to pay the costs. alternative, that the Court should by way of interlocutory measure:

had been made for an extension of that and to his abilities have been available leave. Under Article 40 (4) (b) an and declared vacant since the expiry of application for such an extension would his leave. According to him, it is not have had to be made before 1 January apparent from the documents produced 1971. In the applicant's view, the in the case whether his suitability for Commission should have waited until his those posts was considered at the time leave expired and then reinstated him in when the posts fell vacant.

According have the post temporarily filled by to the applicant, this question is another employee. In the further alter- extremely important so far as concerns native, he submits that even if it was the extent of the judicial review which essential to engage a temporary the Court of Justice is entitled to employee six weeks before the expiry of exercise. his leave, the employment should have been for a very limited duration or should not have been renewed at the The applicant states that if consideration expiry of its first term. The infringement was given to his qualifications, review by was even clearer because of the fact that the Court would consist in an exami- the temporary employee's contract was nation of the question whether the renewed at a time when the applicant's grounds upon which the appointing leave on personal grounds had come to authority decided not to reinstate the an end and when it was known that he applicant were not erroneous or had applied to be reinstated. irrelevant. If the answer to that question were to be in the negative, the Court would have to hold that the appointing authority was entitled to form the view

Staff Regulations. This was a matter of or irrelevant. Assuming they are not, the rational staff management dictated by applicant would be entitled to rely on the the higher interests of the service, parti- lack of examination when the posts in cularly at a time when the scientific staff question fell vacant even if ex post facto was being substantially reduced. the Commission produced arguments to the contrary, because it is impossible to tell how the competent authority would have decided if it had in fact carried out 3.

PIZZIOLO v COMMISSION

JUDGMENT OF 2. 4. 1981 — CASE 785/79

Assuming the appointing authority failed under secondary vacuum at high temper- to consider his ability to fill these posts atures. Measuring these temperatures when they fell vacant, it should at least entailed a certain knowlegde of radiation be accepted that it does not appear spectroscopy. clearly and at first sight that he did not have those qualifications and that hence he cannot rely on the failure to consider his qualifications. In regard to Vacancy Notice N o C O M / 1531/76, the Commission states that the question of the applicant's having priority in the filling or this post does not In regard to the posts which fell vacant arise inasmuch as the applicant could not in DG III, DG XII and DG XVII the be appointed since what was looked for Commission submits that the vacancy was thorough knowledge of the field of notices, namely Notices Nos C O M / solid state physics. That was absolutely 515/73, 531/74, 507/75, 514/78, 364 to necessary in order to be able to carry out 371//8 and 1237/78, and in particular measurements and to interpret the results the type of duties and the qualifications of auto-diffusion in ceramic fuels. It was required, show that the applicant did not specific scientific knowledge which was in any way have the very specialized demanded in these qualifications and not abilities required for each or these posts. experience, however extensive, of the technology applied to high temperature reaction kinetics.

9. Should the Court consider that the reasons which gave rise to the annulment 10. The applicant also considers that of Vacancy Notice No COM/1531/76 he has the qualifications required by may not prevail over the obligation to Vacancy Notice N o COM/1513/76, reinstate, the applicant reaches the same namely a university degree, experience in conclusion as regards that vacancy notice the preparative and analytical chemistry as for Notices Nos 515/73 and 507/75. of radio-nuclides with high specific activity and knowledge of standard methods of crystallographical analysis.

tallographical analysis was acquired Metallurgy Department at the end of during work on the production of 1970 had been drawn from the general uranium and plutonium carbides. reserve of posts available to the Joint Research Centre. The Commission argues in respect of Vacancy Notice No COM/1513/76 that The Commission conceded that Mr the description of tasks — "physico- Pizziolo had the qualifications necessary chemical studies of very pure actinide to fill that post but added that the work compounds" — means compounds of would have constituted a diminution in transplutonium elements which are his status. The Commission stressed that highly radioactive and rare, such as that appointment had been made for a amerícium, curium, californium, but not limited period. plutonium which, whilst it is an actinide, is neither rare nor highly radioactive. At the hearing on 15 January 1981. The Commission points out, moreover, Adriano Pizziolo, represented by E. that in scientific circles it is usual to Lebrun of the Brussels Bar, and the make a distinction between plutonium, Commission, represented by its Principal which is an actinide, and "other" Legal Adviser, R. Baeyens, acting as actinides. Mr Pizziolo's experience at Agent, assisted by G. Valsesia, Head of Karlsruhe was exclusively in the field of the Administrative Coordination Division the manufacture and analysis of fuels of the Joint Research Centre, presented based on plutonium. According to the oral argument. Commission, production and analysis of those fuels require very different Mr Valsesia stated in reply to a question methods of chemical analysis from those from the Court that the post made used to determine the physico-chemical vacant by Mr Pizziolo's departure was properties of actinide compounds. the subject of a vacancy notice before he left but no appointment was in fact made and the post was later transferred to the general reserve of posts at the Centre, in IV — O r a l p r o c e d u r e the same way as any other vacant budgetary post. In reply to a written question from the Court, the Commission stated that the The Advocate General delivered his post which had been temporarily put at opinion at the hearing on 26 February the disposal of the Ceramics and 1981.

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

PIZZIOLO v COMMISSION

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.

JUDGMENT OF 2. 4. 1981 — CASE 785/79

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.

1 1 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.

15 Before such a report is obtained, however, it is necessary to decide whether the report should include Vacancy Notice N o COM/1531/76. The Commission states that this notice was annulled following Council Regu- lation N o 2615/76 of 21 October 1976 amending Regulation N o 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 appropri- ations 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

JUDGMENT OF 2. 4. 1981 — CASE 785/79

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.

PIZZIOLO v COMMISSION

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.

Pescatore Touffait Due