C-265/81

JUDGMENT OF 28. 10. 1982 — CASE 265/81

that decision is annulled this makes it post if neither the material in the file possible for him to enter an internal on the case nor the applicant's competition. contentions advanced against the decision making the appointment to that post show that the Commission 2. At the time when the appointing made a manifest error or misused its authority adopts the decision to fill a powers when assessing the merits and post by promoting or transferring an abilities of the official appointed. official it is not under the duty to compare the respective merits and 4. Promises made to a temporary servant abilities of officials eligible for as to his establishment and an promotion or transfer and of other agreement to that effect between the servants, who though not eligible for employing institution and the admin­ promotion or transfer could enter the istration from which that servant internal competition if it was came cannot, even if proved, have the organized. effect of placing the person concerned, duly warned of the temporary nature of his post, in a 3. It is not for the Court to evaluate the special position as regards the recruit­ degree of specialization required by a ment procedure to a vacant post.

In Case 265/81

ANTONIO GIANNINI, a temporary servant, residing at Céroux-Mousty, represented by Georges Vandersanden of the Brussels Bar, with an address for service in Luxembourg at the office of J. Biver, 2 Rue Goethe, applicant,

v

: COMMISSION OI THE EUROPEAN COMMUNITIES, represented by Joseph Griesmar, Legal Adviser, acting as Agent and assisted by Robert Andersen of the Brussels Bar, with an address for service at the office of Oreste Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of Common Customs Tariff and to Division the procedure and the conclusions, CUS 4 which deals with tariff questions submissions and arguments of the parties in connection with agreements. In July may be summarized as follows: 1977 Mr Giannini was assigned to the "task force" headed by the Community's special representative for negotiations on textiles. I — Facts and written procedure

1. From 2 February 1976 Antonio Giannini, an official at the Ministry of Finance of the Italian Republic, was In 1978 the Customs Union Service seconded by his government to a branch obtained one of the temporary posts in of the Commission, the Administration Career Bracket A 5/A 4 provided for in of the Customs Union 1, as a national Supplementary Budget No 1/78 in expert. In that capacity he was assigned connection with crisis measures for steel to Division CUS 1 which deals with the and textiles. Mr Giannini was engaged in that post under a contract for an indefinite period dated 18 July 1978 as a 1 — This later became the specialized department known as the Customs Union Service. temporary servant in Grade A 5 within

JUDGMENT OF 28. 10. 1982 — CASE 265/81

the meaning of Article 2 (a) of the Wide experience relevant to the post." Conditions of Employment of Other Servants of the European Communities. In the letter which accompanied his Three officials, one of whom was Mr contract, Mr. Giannini's attention was Casella, submitted applications under drawn to the fact that he had been Article 29 (1) (a) of the Staff Regulations engaged to fill a post which the of Officials which requires the budgetary authority had classified as administration to consider first whether temporary and that consequently no one the post can be filled by promotion or could be appointed as an official to that transfer within the institution. Mr. post. Giannini, being a temporary servant, could not make an application at that stage of the procedure.

Very good knowledge of the tariff Considering that in view of the nomenclature for textile products; requirements of the vacancy notice there

GIANNINI v COMMISSION

3. After Commissioner Davignon, who wished Mr Giannini to be established as a official in vacant post COM / 663 / 79 , and Commissioner Tugendhat, who was In his reply of 25 February 1980 the opposed to this, had written to each Director General for Personnel and other and after the Commission, having Administration said that not only did the found that temporary servants in the letter of 6 February 1980 contradict the steel and textile sector had been assurances which had been given but also recruited under temporary contracts, had the reasons advanced for the rejection of decided at its meeting on 14 May 1980

JUDGMENT OF 28. 10. 1982 — CASE 265/81

(a) Admissibility Mr Giannini was informed of Mr Casella's promotion at the beginning of January 1981. On 3 March 1981 he The defendant contends that the lodged a complaint under Article 90 (2) applicant has no interest in bringing of the Staff Regulations seeking to have proceedings. The sole intention of the Mr Casella's appointment to post COM / Customs Union Service was to have the 663/79 annulled. When he did not applicant established. If the Directorate receive a reply to his complaint Mr General for Personnel and Admin­ Giannini made this application to the istration had turned a blind eye to this it Court on 5 October 1981. would have been a party to a misuse of powers (judgment of 29 September 1976 Upon hearing the report of the Judge in Case 105/75 Giuffrida [1976] ECR Rapporteur and the views of the 1402). What is more, the applicant has Advocate General the Court (First no interest in bringing proceedings Chamber) decided to open the oral because he was not and could not be a procedure without any preparatory candidate for promotion or transfer inquiry. (Article 29 (1) of the Staff Regulations).

In reply the applicant submits that the II — Conclusions of the parties sole basis if that argument is a premature and wrong evaluation of the outcome of the action judged on its substance. He The applicant claims that the Court claims to have a legitimate interest in should : bringing proceedings because Mr

GIANNINI v COMMISSION

Casella's appointment was made at the The applicant states that he was end of a procedure which, for the recruited as a national expert in February reasons given in the submissions on the 1976, before the measures to deal with substance of the case, is vitiated by the textile crisis were adopted, with a illegality. view to his being established at the Commission in a permanent post. The Italian authorities were given assurances to that effect and these were a determinant factor in their decision to (b) The substance of the case second Mr Giannini to Brussels.

That procedure was especially necessary because the appointing authority could not have been unaware of the fact that The applicant stresses that the statements the applicant possessed the appropriate made in support of his application were abilities and experience needed to fill the based on the quality and specific nature vacant post and therefore it was proper, of his work compared with the nature in the interest of the service, to organize and description of the duties attaching to an internal competition to enable the the post to be filled. They are wholly in applicant to take part in it. The words accordance with the interest of the "competitions internal to the institution" service and not intended to give pref­ appearing in Article 29 (1) (b) of the erence to the applicant or to harm other Staff Regulations have been widely candidates. In this regard the Director construed by the Court as covering any General of the Customs Union Service person employed by the institution, in has always been anxious to achieve a fait- whatever capacity (Case 16/64 Rauch allocation of the posts available in his [1965] 135). department according to everyone's abilities and duties, although he was still keen to acquire the applicant's services on a permanent basis precisely on Furthermore, the Commission misdi­ account of his abilities and working rected itself on the facts and the law. It experience. There was thus no was not a matter of transforming a "manoeuvre" on the part of the Customs temporary post into a permanent one but Union Service whilst Directorate General of allowing the applicant to apply for a IX and the appointing authority acting vacant post. on its proposal obviously wished to avoid

any such manoeuvre by compelling the agreements" and the Commission did Customs Union Service to agree to the not wish to establish such servants. That appointment of Mr Casella. The result of reason is not valid and cannot be relied all· this is absurd because the applicant upon as against the applicant because it still does the same work as before whilst is contrary to the Conditions of remaining a temporary servant and in Employment of Other Servants inasmuch actual fact does the work relating to the as it discriminates against those servants post occupied by Mr Casella whereas the in relation to other temporary servants. latter, now promoted to the post in question allocated to Division CUS 4, still only deals with exemptions from, customs duties, a matter handled by the Therefore it was not in order to appoint division to which he was previously the best candidate to the post in question assigned. but to prevent Mr Giannini from submitting his application that the appointing authority so arranged matters that Mr Casella was appointed to the With reference to Vacancy Notice No vacant post and an internal competition COM / 663 / 79 the applicant states that was not organized, in spite of the he has thirteen years' experience of requests from the competent authorities. the tariff administration of textile agreements. Mr Casella, on the other hand, has never taken part in the administration of such agreements. He is The defendant submits that the unknown in the directorates general appointing authority's first duty is to which deal with such agreements and in examine whether the vacant post can be the quarters concerned with them. The rilled by promotion or transfer within the conclusion which the applicant draws institution. When comparing candidates' from those facts is that the contested merits the appointing authority has a appointment was not made in the interest wide discretion. In this case it was not of the service (Article 7 of the Staff necessary to compare the applicant's Regulations). qualifications with those of Mr Casella; the question was whether the appointing authority could reasonably consider that Mr Casella was sufficiently qualified to The applicant further considers that by be appointed to the post in question. The not taking into account all the relevant applicant was not in fact a candidate at factors, including those relating to the that stage of the procedure. applicant's personal situation, the Commission failed in its duty to look after his well-being. The defendant observes however that the Customs Union Service had vacant post COM / 633 / 79 transferred in the hope or Finally the applicant contends that the even with the intention of appointing the Commission misused its powers. The sole applicant to that post by way of an reason for not initiating an internal internal competition. The appointing competition enabling the applicant to authority and Directorate General IX submit his application was that he had refused to be a party to such a been appointed as a temporary servant manoeuvre which would have amounted "in connection with the textile to a misuse of powers. After the

manoeuvre had been frustrated the lations (judgment of 13 May 1970 in Director General at the head of the Case 18/69 Fournier[l970] ECR 249). Customs Union Service went back on his letter of 6 February 1980 and proposed, in his letter of 16 December 1980, the promotion of Mr Casella who had many years' experience in the tariff field. In considering on the basis of his personal It was precisely the interest of the service record and periodic reports that which prohibited the defendant from Mr Casella possessed the specific assisting in the organization of an qualifications required by the vacancy internal competition tailor-made to notice and, on the proposal of the ensure that the applicant was established department concerned, promoting him to as an official. the post advertised in that vacancy notice, the appointing authority exer­ cised its powers of assessment reasonably even if at the outset the vacancy notice in question had been drawn up with the applicant in mind. The Commission denies that it neglected its duty to look after the applicant's well- being. The risk mentioned by him that his employment might come to an end is inherent in the temporary nature of the post which he occupies. When signing Therefore the defendant was not under a his contract of service he could not have duty to begin the second stage of the been unaware of the fact that as a recruitment procedure laid down in temporary servant he did not have the Article 29 (1) (b) of the Staff Regu­ same guaranteed employment as an lations. established official. The defendant is surprised to be accused of misusing its powers. There was nothing irregular about Mr Casella's appointment. Having been assured by the Customs Union Service that the transfer of the vacant As regards the allegations that the post met a genuine and permanent need Commission misdirected itself on the of the specialized Division CUS 4 the facts and the law the Commission points appointing authority put its trust in the out that the applicant could not have Customs Union Service and on its been unaware of the fact that he had proposal promoted Mr Casella to sup­ been engaged to fill a post which the plementary permanent post COM / budgetary authority had classified as 663/79. temporary and that no one could therefore be appointed as an official to that post. It denies that the applicant was recruited in February 1976 with a view to his establishment in a permanent post. No assurance to that effect was given to It is therefore wrong to claim that in the Italian authorities at that time. promoting Mr Casella the Commission Moreover, such assurances would have used its powers of appointment for a no legal effect because the establishment purpose which was not in the interest of of servants may only be effected in the service, namely to prevent the accordance with the requirements and applicant from taking part in an internal procedures laid down by the Staff Regu­ competition.

GIANNINI v COMMISSION

3 In order to fill the vacancy in question the Commission, acting in accordance with Article 29 (1) (a) of the Staff Regulations of Officials, first examined whether it could be filled by promotion or transfer within the institution. From the three officials who applied for promotion or transfer to that post the Commission appointed Mr Casella who in the opinion of the Customs Union Service deserved promotion on account of his maturity as well as his considerable abilities and working experience in general.

4 The applicant, being a temporary servant, could not be a candidate for promotion or transfer. However, as he argued in his complaint and application, he considers that he alone met in full all the conditions set out in the vacancy notice whereas Mr Casella, whose merits he does not dispute, did not have either specialized knowledge of the tariff classification of textile products or relevant experience in that field.

Admissibility

5 In its defence the Commission expressed doubts as to the admissibility of the application on the ground that the applicant had no interest in bringing proceedings. Those doubts, which apparently the Commission to some extent entertained throughout the proceedings, call for the following clarification.

6 Article 29 (1) of the Staff Regulations provides that before filling a vacant post the appointing authority must follow the procedure for competitions on the basis either of qualifications or of tests or of both qualifications and tests (known as an "open" or "external" competition) having first considered in turn whether the post can be filled by promotion or transfer within the institution, whether to hold competitions internal to the institution and the applications for transfer made by officials of other institutions.

11 However, that line of argument fails to take account of the fact that at the time when the appointing authority adopted the contested decision it was not under the duty to compare the respective merits and abilities of Mr Casella and the applicant because the latter was not a candidate for promotion or transfer. Therefore Mr Casella's appointment to the vacant post must be judged on its own.

12 In this regard the applicant's sole contention is that Mr Casella was not sufficiently specialized in the tariff classification of textile products for his qualifications and experience to match the vacant post.

GIANNINI v COMMISSION

13 However, it is not for the Court to evaluate the degree of specialization required to fill a post of the kind in question because neither the material in the file on the case nor the applicant's contentions show that the Commission made a manifest error of misused its powers when assessing Mr Casella's merits and abilities.

1 4 In support of the second set of complaints the applicant contends in particular that when he was recruited in 1976 as a national expert on secondment from the Italian Ministry of Finance promises were made as to his establishment. Vacancy Notice No COM / 663 / 79 was intended to honour those promises and this is evident from the wording of the notice as well as from the declared intentions of the Customs Union Service.

15 The Commission denies that it gave an undertaking to establish the applicant. It refers here in particular to the letter dated 20 July 1978 from the Director of Personnel which accompanied the contract engaging the applicant as a temporary servant and which stated that his post was a temporary post and could not therefore lead to establishment as an official.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

O'Keeffe Bosco Koopmans