C-378/90
ECLI:EU:C:1991:469
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O P I N I O N OF MR D A R M O N — CASE C-378/90 P
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 10 December 1991 *
Mr President, 5. In November 1985 the Directorate- Members of the Court, General of the Customs Union Service instituted a recruitment procedure for the post of technical manager of the CD project, to work 'in cooperation with the project coordinator, with overall responsi- 1. In this appeal Mr Antonino Pitrone asks bility for the CD project'. the Court to set aside the judgment delivered on 23 October 1990 1 by the Court of First Instance of the European Communities. 6. On 23 April 1986 the Directorate- General for Customs Union and Indirect Taxation (DG XXI) was set up.
2. That judgment dismissed Mr Pitrone's 7. On 1 July 1986 Mr Walker was application for annulment of the decision of recruited as a temporary employee in 11 November 1987 appointing Mr Walker Grade A 4 on a five-year contract as to the post of Head of Specialized Technical Manager of the CD project, Department XXI-01 of the Commission and under the responsibility of Mr Pitrone. reinstatement of the applicant as the person responsible for data processing in Direc- torate-General XXI. 8. By memorandum No 6458 of 6 November 1986 Mr Klein, the Director- General of DG XXI, assigned to the appellant duties including the finalization of 3. Mr Pitrone, an administrator with the the legislation relating to the harmonized Commission from 1973, took over responsi- system, the combined nomenclature and the bility for the data processing work of the integrated customs tariff of the European Customs Union Service from 6 February Communities (Taric). This legislation was to 1984. On 20 February 1984 he was enter into force on 1 January 1988. appointed 'Information Systems Manager'.
9. Mr Pitrone had asked for and obtained a statement that he would only be 'temporarily' responsible for these new 4. On 20 November 1984 Mr Pitrone was tasks. appointed coordinator of the project on the development of computerized administrative procedures ('the CD project'). 10. The memorandum added that * Original language: French. Mr "Walker would temporarily assume 1 — Case T-46/89 [1990] ECR II-577. Mr Pitrone's responsibility for the coordi-
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nation of the CD project, and that 15. On 16 May 1988 Mr Pitrone lodged a Mr Strack was temporarily appointed complaint through official channels against Information Systems Manager in place of the abovementioned memorandum of Mr Pitrone. 17 February 1988, and repeated his request for reinstatement in his former position.
11. Following a change in the organiz- 16. The two administrative complaints of ational structure of DG XXI, Mr Walker 11 February 1988 were rejected by the was, by a decision of 11 November 1987, Commission on 7 July 1988. The complaint appointed to the new post of person of 16 May 1988 was impliedly rejected. responsible for computerization and data processing, which was directly attached to the Director-General. 17. By application of 7 October 1988 Mr Pitrone brought an action before the Court of Justice, pursuant to Article 91 of the Staff Regulations of Officials of the European Communities, for the annulment 12. In a memorandum to the Director- of the decision of 11 November 1987 General of 9 February 1988 Mr Pitrone, appointing Mr Walker to the post of Head having completed his work on the of Specialized Department XXI-01 and his implementation of the Taric, asked to return own reinstatement as the person responsible to his former duties . as CD Project Coor- for data processing in DG XXI. dinator and Information Systems Manager.
18. Following the establishment of the Court of First Instance, the case was 13. On 11 February 1988 the appellant, in remitted to that court by an order of the complaint No 19/88, sought annulment of Court of Justice of 15 November 1989. the decision of 11 November 1987 appointing Mr Walker and his own rein- statement as the person responsible for data processing. In a separate complaint, 19. The application was dismissed in the No 18/88, he requested true copies of all aforesaid judgment, which the Court is now the documents concerning the appointment asked to set aside. of Mr Walker.
20. Mr Pitrone had based his application to the Court of First Instance on seven pleas. As the Commission points out, without this 14. In memorandum No 1181 of being disputed by the appellant, he has only 17 February 1988 from the Director- maintained four of them in his appeal. General of DG XXI, Mr Pitrone was informed that his request for reinstatement was rejected, that the post of CD Project Coordinator had been abolished, and that 21. While in one of the pleas Mr Pitrone Mr Walker had been appointed Head of argues that the decision of 11 November the new specialized computer department. 1987 appointing Mr Walker as person
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responsible for computerization and data 1986·—which refers to a different post processing was intrinsically unlawful, the from that assigned to Mr Walker by the other three relate to the effect of decision of 11 November 1987 — are of no memorandum No 6458 of 6 November relevance in assessing the lawfulness of the 1986, which in his opinion had the conse- latter decision. That assessment will quence that he did not cease to occupy the therefore be made solely with regard to the post assigned to Mr Walker by the chal- plea based on the alleged breach of Article 4 lenged decision. of the Staff Regulations.
22. It is thus necessary to consider first of 25. With respect to Mr Pitrone's request all the pleas relating to the effect and conse- for reinstatement, three pleas are put quences of the memorandum of forward. 6 November 1986, since it is clear that if on 11 November 1987 Mr Pitrone was still the holder of the post assigned to Mr Walker, the decision appointing Mr Walker to a post which was not vacant could not have 26. The first plea argues that there were been lawful. breaches of Articles 5, 7, 86 and 89 and Annex IX of the Staff Regulations. 4 Mr Pitrone contends in effect firstly that the memorandum of 6 November 1986 was not an 'assignment' to another post and he 23. It should be noted at the outset that the therefore still continued in his previous post Court of First Instance clearly stated in with responsibility for data processing in findings of f act which are final and binding DG XXI, and secondly that the refusal to on the Court of Justice that Mr Pitrone had reinstate him in that post was a disguised never held the post of Head of Specialized disciplinary measure. Department assigned to Mr Walker, as this was a new post established following a change in the organizational structure of D G XXI. 2 Mr Pitrone cannot therefore validly maintain before this Court that 'on 27. The question whether the memorandum 11 November 1987 a temporary employee of 6 November 1986 is an 'assignment' was appointed to a post which was still within the meaning of Article 7 of the Staff occupied in law by an official'. 3 Regulations concerns the classification of that document as a matter of law. It is therefore a question of law which is subject to review by the Court. 5 24. It follows that the pleas based on the effect of the memorandum of 6 November
2 — . . . the applicant never held the post of Head of 28. The Court held in the Hecq judgment 6 Specialized Department XXI-01, but that of the person responsible for data processing in DG XXI, as he admits that assignment of 'a temporary task' to an in his reply; judgment of the Court of First Instance, cited above, paragraph 27; see also the text of the decision of U November 1987, in Annex I to the response: three units 4 — On disciplinary proceedings. are established, directly attached to the Director-General: 5 — See on this point the Opinion of Mr Advocate — Specialized Department XXI-01 computerization and General Tesauro in the Schwedler case, paragraph 2 data processing will take over some of the tasks of former (Case C-132/90 P [1991] ECR 5745). division X X I / A / 3 . . . Mr Walker . . . is . . . appointed 6 — Judgment of 7 March 1990, paragraphs 10 to 16 (Joined Head of the new Specialized Department XXI-01. Cases C-116/88 and C-149/88 [1990] ECR I-599, at 3 — Page 4 of the appeal. p. 625).
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official by a memorandum from his hier- expectations in that, according to archical superior is a lawful assignment if it Mr Pitrone, his hierarchical superiors had is done in the interests of the service and in undertaken to reinstate him in his post. conformity with the principle of assignment to an equivalent post. Mr Pitrone has not shown that these conditions were not complied with by the appointing authority. 34. In this respect, the Court of First Instance has already made a definitive finding that
29. Moreover, the appellant cannot maintain that the memorandum of 'examination of the terms of the Director- 6 November 1986 was not an 'assignment' General's memorandum of 6 November by relying on facts subsequent to that 1986 does not permit the conclusion that it memorandum, such as the failure to refer to could constitute a precise assurance that the the memorandum in a certificate delivered applicant could return to his former post'. 7 at the Commission or an incorrect entiy in his personal file.
35. The second plea, which is one of pure fact, must thus be declared inadmissible. 30. In support of the contention that the refusal to return him to his previous duties constituted a disguised disciplinary measure, 36. The third plea alleges a breach of the he maintains that he suffered enforced second paragraph of Article 25 of the Staff idleness from 11 November 1987 to Regulations, which provides that 'any 31 October 1988, when he was reassigned decision relating to a specific individual to the division for 'relations with State- which is taken under these Staff Regulations trading countries in Europe'. shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.' 31. This circumstance was not raised in the Court of First Instance. In any event, it is a point of fact which the Court of Justice 37. The appellant argues that if the cannot examine. memorandum of 6 November 1986 were to be interpreted as implying that the post he occupied was vacant, it would be void because the grounds on which it was based were not stated. 32. The first plea must therefore be rejected.
38. If the memorandum were to be inter- preted as such a decision, that decision, as 33. The second plea relies on a breach of 7 — Paragraph 43 of the judgment of the Court of Fist the principle of protection of legitimate Instance.
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the Court of First Instance found, 8was not vacant post must be notified to the staff challenged by the appellant within the once the appointing authority decides that proper period in accordance with Articles 90 the vacancy is to be filled. Mr Pitrone and 91 of the Staff Regulations, and can claims that in this case there was no vacant thus no longer be appealed against. post, since the post was still occupied by himself. 39. This plea must therefore be rejected. 41. As the Commission has pointed out, the 40. In his final plea Mr Pitrone argues that Court of First Instance dismissed this plea the appointment on 11 November 1987 of primarily on the ground that Article 4 Mr Walker, a temporary employee, as applies only to posts occupied by officials of Head of Specialized Department XXI-01 the Communities and does not apply by was contrary to Article 4 of the Staff Regu- analogy to temporary staff.9 lations, which provides that no appointment shall be made for any purpose other than 42. This last plea is unfounded and must that of filling a vacant post and that a thus be rejected.
43. Consequently, in m y opinion, the appeal should be dismissed, and the applicant ordered to pay the costs in accordance with Articles 69(2) and 122 of the Rules of Procedure.
8 — Paragraph 61 of the judgment of the Court of First 9 — Paragraph 26 of the judgment of the Court of First Instance. Instance.
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