C-200/87

OPINION OF MR VAN GERVEN — CASE 200/87

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 1 March 1989 *

Mr President, resume his duties. Subsequently, on several Members of the Court, 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 1. The dispute between Mr Bruno Giordani technical post but also in an administrative and the Commission raises the question of post. 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 4. No vacancy notice for a post in Grade follows: A 5 was sent to the applicant until 1986. The Commission states that the adminis­ tration systematically considered all vacancies in the scientific service, that is to 'On the expiry of his leave an official must say the service for which Mr Giordani was, be reinstated in the first post corresponding in its view, naturally suited in view of his to his grade which falls vacant in his training and professional experience. The category or service, provided that he administration considered, however, that the satisfies the requirements for that post'. 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 Summary of the facts 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 2. Mr Giordani, a scientific officer in Grade for those posts. 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.

Admissibility 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 9. The Commission's position on the implementation of the rules applied by the question of admissibility fluctuates, to say Court in cases of delayed reinstatement of the least. In the defence, the Commission an official after a period of leave on first asked the Court to declare the personal grounds. 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 As he received no reply to that complaint, expiry of the period laid down in the Staff the applicant brought the present appeal, Regulations. Then, in answer to a question registered on 30 June 1987, in which he put by the Court, the Commission claimed makes, essentially, three claims: that the application was inadmissible because the second and third heads of claim should have been submitted as a request as provided for in Anicie 90(1) of the Staff Regulations before being submitted as a (1) A claim for the annulment of his classi­ complaint to the appointing authority of the fication in Grade A 5, Step 5; 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 (2) A claim for reinstatement, with regard observe that a(too) long period had elapsed both to seniority in grade and step and between the date of the applicant's re­ to social security cover, with effect from instatement (26 May 1986) and the date of the date on which the first post to his complaint (26 November 1986). It is true

that the decision to reinstate him failed to him as a result. The burden of Mr mention, inter alia, the step in which the Giordani's complaint and appeal is therefore applicant was to be classified and Counsel that the Commission wrongly considered for the Commission stated that this was an that there had been no infringement of Oversight'. Counsel nevertheless claimed Article 40 of the Staff Regulations and that an official was under a duty to inquire. therefore failed to take those decisions of The applicant should therefore have the Court into account when determining inquired about his step at the time of his the terms of the applicant's reinstatement. 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. 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 adminis­ tration 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 10. In order to answer the question of Article 90(1) of the Staff Regulations, that it admissibility, it is necessary first of all to put take the relevant measure? In its judgment the appeal, and the complaint which of 1 December 1983 in Case 217/82 preceded it, into perspective. The appeal Depoortere v Commission [1983] ECR 4003, and complaint presuppose that the paragraph 6, the Court stated: 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 'In addition, according to Article 91(2) of Court's previous decisions in cases of the Staff Regulations, an appeal shall lie delayed reinstatement or failure to reinstate only if it is lodged following the express or after leave on personal grounds (judgment implied rejection of a complaint, which, of 1 July 1976 in Case 58/75 Sergy v where it is directed against a failure to Commission [1976] ECR 1139, and adopt a measure, must have been preceded judgment of 5 May 1983 in Case 785/79 by a request to the appointing authority that Pizziolo v Commission [1983] ECR 1343). it take a decision, within the meaning of According to those decisions, when there Article 90(1)'. 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 The Court gave that answer in a case of date on which he should have been re­ which the facts were extremely simple. The instated. Also according to those decisions, applicant had not stated, either in his an official adversely affected by a delay in application or during the course of the reinstatement may be awarded compen­ subsequent proceedings before the Court, sation for the actual damage suffered by what constituted the act adversely affecting

12. The date on which the applicant may be 14. In his claims, the applicant does not considered to have had full knowledge of indicate the post or posts in which he the terms of his reinstatement remains to be considers he should have been reinstated. determined. I agree with the applicant's His argument is based essentially on the fact view that it was the date on which he was that he was not reinstated until 12 years able to examine his salary statement of after the expiry of his leave on personal 14 October 1986, the first after his re­ grounds and that no vacancy notice was instatement. It is true that, in May 1986, the sent to him during those 12 years. He applicant had been informed of his rein­ considers that situation to be made more statement as a scientific officer in Grade serious by the fact that in a letter of 15 A 5 with effect from 1 September 1986. October 1983 he had stated that he was That decision did not, however, specify the willing to accept Ispra or any other place of other terms of his reinstatement, apparently employment and that he was interested not as a result of an oversight (see above, point only in a scientific or technical post but also 9). The step in which he was classified only in an administrative post. 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 Because the situation to which the applicant put forward by the Commission at the draws attention is so surprising, given the hearing, that the applicant should have appointing authority's duty under Article inquired of his own initiative about the 40(4)(d) of the Staff Regulations to reinstate

First question: The institution or estab- Secondly, the Commission claims that, even lishment bound by the duty to reinstate 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 15. Article 40(4)(d) of the Staff Regulations respect of which the Research Centre at does not specify the authority which is to Ispra (again, no mention is made of the ensure that an official whose leave on other Research Centre establishments, to personal grounds has expired is reinstated. say nothing of the other services of the Article 40(4)(a) of the Staff Regulations, on Commission) published vacancy notices. 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, Finally, the Commission makes the general in consequence, only posts to which that remark that the applicant was continuously authority has the power to make in employment, from 1 June 1971 to 31 appointments can be taken into con­ January 1985, with the same company and sideration for the purposes of reinstatement? that his desire to be reinstated was therefore What if the powers conferred on the not particularly urgent. appointing authority are exercised by dele-

GIORDANI v COMMISSION

'(an official does not have) a right to be reinstated at a particular place of 16. In my opinion, the duty to reinstate an employment in accordance with his or her official on the expiry of his leave falls on the personal interests.' 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 Regu­ In that same judgment, however, the Court lations. If that principle is applied to made it clear that, while the appointing officials of the Joint Research Centre whose authority may legitimately take family leave on personal grounds has expired, it interests into account, those interests cannot means that they must be reinstated in the be decisive in the application of Article 40 first post which falls vacant within the of the Staff Regulations. Commission as a whole, provided that the conditions laid down in Article 40 are 2 — In both those cases the applicants were scientific officers in satisfied. That position has in fact been a Joint Research Centre establishment whose leave on implicitly endorsed by the Court in its personal grounds had expired and who were claiming the right to be reinstated to various posts In both cases the judgment of 2 April 1981 in Case 785/79 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 vacano notices 1 — Article I of Commission Decision 85/593/Luralom of 20 Those nonces related to posts both in the Commission's November 1985 on the reorganization of the Joint administrative services and in the various Joint Research Research Centre (JRC) (OJ 1985, 1 373, p 6) Centre establishments

Second question: Diligence to be shown by he is offered. The Staff Regulations the administration 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 18. Pursuant to Article 40(4)(d) of the Staff Committee has been consulted. Regulations, an official whose leave on personal grounds has expired must be re instated 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

It should, however, be noted that in the present case the Commission has not 19. Two conclusions may be drawn from claimed that vacant posts occurred which those provisions. The first derives from he could have been occupied by the applicant fact that the authority is required to offer an but which, for reasons of priority, had been official awaiting reinstatement a suitable offered to other officials awaiting re post when 'the first post . . . falls vacant' instatement. and, if he declines, 'when the next vacancy occurs'.

for a given post.

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 (ii) 'In parallel with the Administration's vacant in his category or service, provided own efforts to find a post for an official that he satisfies the requirements for that awaiting reinstatement and with a view post. The words 'or service' seem, at first to keeping him informed of vacancies sight, to exclude any possibility that posts in occurring within the institution, the the administrative service may be considered official shall systematically be sent, where the official to be reinstated belongs to without any preliminary sorting, copies the scientific or technical services. However, of all notices of vacancies corresponding the second paragraph of Article 98, in Title to his grade and category, describing VIII of the Staff Regulations, which both the duties involved and the qualifi­ contains special provisions applicable to cations required as they are published. 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 Regu­ lations is couched in the following terms: 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 'An official may be transferred from one relevant to the duties involved in the service to another or promoted from one post for which the vacancy has been category to another only on the basis of a published'. competition.'

The administration should have auto­ matically and systematically considered 23. In my opinion, the administration is not whether the Grade A 5 posts vacant in the at fault in not automatically considering the scientific or technical services within the suitability of a member of the scientific or Commission corresponded as a whole to Mr technical staff awaiting reinstatement for Giordani's abilities (see paragraphs 16 and vacant posts in the administrative service. 21 above). On consideration of the That position is based on Article 40, which documents addressed to the Court, it may does not recognize any right of a member be doubted whether the posts vacant in that of the scientific or technical staff to be rein­ service were systematically considered. stated in a post in another service. However, Furthermore, the Commission does not say if an official awaiting reinstatement informs whether posts vacant anywhere other than the administration of his genuine interest in at the Ispra establishment were taken into a specific post or in specific posts in the consideration. That silence, together with administrative service and specifies the other evidence in the written observations aptitudes he has enabling him to occupy and the documents addressed to the Court, those posts, I feel that the principles of good suggests that even posts vacant in the other administration require that such requests for Joint Research Centre establishments or reinstatement should be examined administrative services of the Commission favourably. When carrying out that exam­ were not examined in connection with ination guided by the principles of good Mr Giordani's reinstatement. 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 In my view, those conclusions justify a post­ of the service (see Article 7(1) of the Staff ponement of the Court's decision on the

substance of the application until such time In view of the foregoing considerations, I as it has been possible to draw up a list of consider that the list mentioned above all the posts vacant in the scientific or should also take account of vacancies which technical services which should have been occurred in the administrative service bet considered, and to determine to what extent ween 15 October 1983 and the reinstate the applicant's abilities matched the ment decision. If that list were to reveal one requirements for those posts. 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

The administration's discretionary In a letter of 15 October 1983, the applicant power in that regard is certainly very wide gave the first indication that he was but for that very reason requires that the interested in a post in the administrative suitability of the official awaiting re service. In the same letter, he asked to be instatement for the vacant post should be sent any vacancy notices in which he might examined with scrupulous care. The fact be interested, including those for posts in that not a single post was offered to the the administrative service. During the period applicant for 12 years, and that not even a prior to that letter, therefore, Mr Giordani single vacancy notice was sent to him, is so had not done anything which might have astonishing that the diligence of the admin led the administration to consider posts istration in this case may be doubted. vacant in the administrative service with a view to his possible reinstatement in an administrative post.

OPINION OF MR VAN GERVEN — CASE 200/87

disputes. I propose that it should do likewise his leave on personal grounds and that in the present case. on which the decision to reinstate him was taken?

The expert appointed could be charged with reporting on the following two questions: (2) Regardless of whether such a re­ instatement would have been in the interests of the service, could the applicant have been reinstated, having (1) Having regard to the applicant's regard to his abilities, in a post in Grade abilities, could he have been reinstated A 5 in the administrative service within to a post in Grade A 5 in the scientific the Commission as a whole for which a or technical services within the vacancy notice was published during the Commission as a whole for which a period between 15 October 1983 and vacancy notice was published during the the date on which the decision to period between the date of the expiry of 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).