T-48/90

JUDGMENT OF 1. 7. 1993 — CASE T-48/90

The procedure for verifying the ability of concerned in relation to a particular post is the person concerned to perform the duties necessary. pertaining to a post, which must not be taken to require a perfect match between his qualifications and those required by The failure to verify systematically the abili­ the post in question, must be effective ties of the official in question in relation to and must take its course in such a way that each vacant post to which he could have been the applicant for reinstatement and the reinstated constitutes a service-related fault Community courts can verify that the which may give rise to liability on the admin­ obligations imposed on the administration istration's part in so far as such failure delays by Article 40(4)(d) of the Staff Regulations the reinstatement of the person concerned have been fulfilled. In this connection, and deprives him of his remuneration from although the administration cannot be the date when he could possibly have been compelled to prove that it has examined reinstated to the date of his actual reinstate­ the abilities of the official awaiting rein­ ment. The calculation of the damage sus­ statement where there is a manifest diver­ tained by the person concerned must take gence between his abilities and the require­ account of the automatic advancement to ments of the vacant post, such proof must higher steps in his grade which he would be adduced in all cases where, in the absence have been given under Article 44 of the Staff of such a manifest divergence, a complete Regulations if he had been reinstated in the verification of the abilities of the person first vacant post suited to his abilities.

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Commission of the European Communities, represented by Antonio Aresu and Sean van Raepenbusch, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for compensation for the damage allegedly suffered by the appli­ cant by reason of the delay in his reinstatement with the Commission on the expiry of leave granted on personal grounds,

THE C O U R T O F FIRST INSTANCE O F THE EUROPEAN COMMUNITIES (Fifth Chamber),

1 In 1960 the applicant was appointed to a post in the scientific and technical ser­ vices of the Commission (EAEC). He had technical training in engineering, acquired at the Scuola Tecnica Industriale (Industrial Technical College) in Bol­ zano, Italy, and subsequently at the Höhere Technische Lehranstalt, Ingenieur- Schule (Fligher Technical College, Mechanical Engineering) in Bregenz, Austria,

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and was initially appointed at Grade Β 7, Step 3, and assigned to the Directorate- General for Personnel and Administration, Purchases Department. On 1 February 1962 he was transferred to the Joint Research Centre ('JRC), Ispra, where he was assigned to the Procurement and Stores Department as deputy head responsible for the technical purchases section. On 20 February 1963 he was appointed in Cate­ gory A, Grade 6, Step 2, and on 10 June 1965 he was promoted to Grade A 5, Step 2. On 15 October 1965 he was given the duties of head of the Procurement and Stores Department of the JRC, Ispra, which he had carried out on a provisional basis since 24 February 1965. In June 1970 the applicant's department was attached, within the JRC, Ispra, to the larger Finance and Procurement Department.

2 According to Vacancy Notice V/IS/126/65 of 3 August 1965 which concerned the post in question, the applicant's duties as head of the Procurement and Stores Department of the JRC, Ispra, required 'degree-level knowledge, preferably in the technical field, or equivalent professional experience; very good knowledge of materials and equipment used in a nuclear research centre; excellent experience of procurement technique and methods including, in particular, the purchasing orga­ nization and systems used in industry; experience of the problems and methods involved in the automation of purchasing and stock and inventory management; knowledge of the financial and administrative organization of the Community'.

6 Subsequently the applicant submitted six further requests for reinstatement to the authorities of the J R C , Ispra, on 30 September 1976, 24 September and 15 O c t o b e r 1983, 7 January 1984, 15 July 1985 and 20 March 1986, the responses to which were unfavourable.

7 O n 9 April 1986 the applicant again submitted a request for reinstatement, addressed t o the Directorate-General for Personnel and Administration of the C o m m i s s i o n , on the formal basis of Article 90 of the Staff Regulations of Officials of the E u r o p e a n C o m m u n i t i e s ('the Staff Regulations').

8 By letter of 12 May 1986 the C o m m i s s i o n informed the applicant that a post was vacant in the Infrastructure Division of the J R C , Ispra, in career bracket A8/A5 of the scientific and technical service.

1 1 O n 26 November 1986 the applicant submitted a complaint under Article 90(2) of the Staff Regulations against his classification in step in so far as it showed that the administration had not taken account of the period during which he had been involuntarily absent from the service and that, consequently, he had not been granted a step and seniority compensating for the delay in his reinstatement.

12 O n 30 June 1987, following the implied rejection of his complaint, the applicant brought an action before the Court of Justice seeking, first, the annulment of the reinstatement decision of 26 May 1986, as supplemented by his salary statement of 14 October 1986, in so far as that decision had awarded him Step 5 of Grade A5 and, secondly, the reconstitution of his career and compensation for the salary lost by reason of the delay in reinstatement.

1 3 On 30 September 1987, however, the Commission notified the applicant of a decision expressly rejecting his complaint of 26 November 1986 on the ground that it had not been possible to meet his requests for reinstatement before 26 May 1986 because he did not fulfil the conditions for reinstatement in any of the posts declared vacant since the end of his leave on personal grounds on 31 March 1974.

1 4 The Court of Justice gave judgment in that case on 27 June 1989 (Case 200/87 Giordani ν Commission [1989] ECR 1877), finding the claim for annulment admis­ sible because the time limit for the submission of a complaint by the applicant

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15 In the same j u d g m e n t the C o u r t dismissed the claims for the reconstitution of the applicant's career and for compensation as inadmissible on the g r o u n d that he had not submitted to the administration a prior request, pursuant to Article 90(1) of the Staff Regulations, for the reconstitution of his career and for compensation for the delay in reinstatement. T h e C o m m i s s i o n thus learnt of these grievances only as a result of the complaint of 26 N o v e m b e r 1986. As a result, the defendant institu­ tion had been unable t o adopt a decision, w h e t h e r express or implied, on these claims. T h e C o u r t added that the salary statement of 14 O c t o b e r 1986, which had been established on the basis of Article 40(3), and not Article 40(4)(d), first sen­ tence, of the Staff Regulations, on which the applicant based his claim for c o m p e n ­ sation for the damage caused by the delay in reinstatement, could not be regarded as an implied rejection of the applicant's request.

16 O n 29 September 1989 the applicant submitted a request t o the C o m m i s s i o n u n d e r Article 90(1) of the Staff Regulations, which was registered on the same day, for c o m p e n s a t i o n for the loss which he considered he had suffered by reason of the delay in reinstatement. As no reply was received, he submitted a complaint, regis­ tered on 10 April 1990, against the implied rejection of the request. N o reply was received to this complaint either.

Procedure

17 T h e applicant then b r o u g h t the present action, which was registered at the C o u r t of First Instance on 14 N o v e m b e r 1990.

20 The applicant claims that the Court should:

1. declare that he is entitled to be classified in Grade A5, Step 8, and to receive payment of the amounts due on that basis, subject to the claims in point 3, from a date to be determined on the outcome of the proceedings;

2. take account of the unjustified delay in reinstatement when calculating his seniority, to the extent found necessary for supplementing his pension rights;

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3. o r d e r the C o m m i s s i o n t o pay him a sum equal t o the difference between the C o m m u n i t y r e m u n e r a t i o n which he o u g h t to have been paid at each stage and the income he received for his private w o r k , which he is able to prove fully;

3. in the further alternative to that claim, rule that the damage suffered must be calculated in accordance with and within the limits set out by the C o m m i s s i o n in point II, paragraph 25, of the defence;

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4. dismiss all the applicant's claims for preparatory inquiries and, on the contrary, if necessary, order all the measures of inquiry referred to in point II, paragraph 26, of the defence and point D of the rejoinder;

5. dismiss any claim for interest on any amounts found to be payable to the appli- cant, or limit it as indicated in point II, paragraph 30, of the defence;

6. if the Commission is successful, order the applicant to pay the costs and, otherwise, order each party to bear its own costs.

24 According to the C o m m i s s i o n , the action is also inadmissible because, in the absence of a prior decision, w h e t h e r express or implied, bv the C o m m i s s i o n on the applicant's claims concerning the alleged delay in reinstatement, the step he t o o k on 26 N o v e m b e r 1986 is not a complaint, b u t a request within the meaning of Article 90(1) of the Staff Regulations, in accordance with the t h e o r y that the nature of legal measures is t o be interpreted so that they retain their effects, adopted by the C o u r t of Justice in its judgments which look to the substance, not the formal classification, of steps taken by officials u n d e r Article 90 of the Staff Regulations (Case 167/86 Rousseau ν Court of Auditors [1988] E C R 2705; Cases 23/87 and 24/87 Aldinger and Virgili ν Parliament E C R 4395). Consequently, the fact that the decision which impliedly rejected the applicant's request of 26 N o v e m b e r 1986 was not followed by the submission of a complaint within three m o n t h s , but by an action b r o u g h t directly before the C o u r t of Justice on 30 J u n e 1987, resulted in a g r o u n d of inadmissibility which continues t o the present day.

25 T h e C o m m i s s i o n adds that the applicant did not submit a complaint against the decision of which he was notified on 30 September 1987, which expressly rejected his request of 26 N o v e m b e r 1986. As that decision laid d o w n the C o m m i s s i o n ' s position on the applicant's requests it may n o longer be contested and consequently the present action is inadmissible.

27 T h e applicant stresses that the decision of 26 M a y 1986 gave n o indication of the step and the seniority granted to him o n reinstatement and that these particulars were given only in the salary statement of 14 O c t o b e r 1986, so that the salary state- ment, which enabled him to ascertain the damage which he was suffering in his classification, a m o u n t e d to the only decision on this point. Therefore, contrary to the C o m m i s s i o n ' s argument, his complaint of 26 N o v e m b e r 1986 fulfilled all the conditions of form and substance to be classified as such, as the C o u r t of Justice found in the judgment of 27 J u n e 1989 w h e n examining his claims for annulment. Consequently, in so far as the dismissal of his claims for compensation by the abovementioned judgment of the C o u r t of Justice was based o n the fact that his complaint of 26 N o v e m b e r 1986 had n o t been preceded b y a request u n d e r Article 90(1) of the Staff Regulations, it was open to him, w i t h o u t a time-limit, to submit such a request and a complaint against its dismissal. As he has therefore followed the pre-litigation procedure under Article 90 of the Staff Regulations, the applicant considers that his action is admissible.

Findings of the Court

28 In its abovementioned judgment of 27 June 1989, the Court of Justice found that the Commission did not learn that the applicant was claiming that his reinstatement was unduly delayed until he submitted his complaint on 26 November 1986 (para- graph 24). Therefore the Court of Justice dismissed the applicant's claims for the reconstitution of his career and for compensation as inadmissible only on the ground that his complaint of 26 November 1986 had not been preceded by a request within the meaning of Article 90(1) of the Staff Regulations, seeking a pre- liminary decision by the Commission on his claims.

3 1 It should be added that the admissibility of the action cannot be affected by the fact that the applicant did not submit a complaint, within the time-limit fixed by the Staff Regulations, against the decision of which he was notified by the C o m ­ mission on 30 September 1987 and which expressly rejected his complaint of 26 N o v e m b e r 1986. First, in the abovemcntioned j u d g m e n t of 27 J u n e 1989, the C o u r t of Justice clearly described the applicant's representation of 26 N o v e m b e r 1986 as a complaint, so that its implied rejection as a result of the expiry of the time-limits laid d o w n by the Staff Regulations could only be contested in an appeal to the C o u r t u n d e r Article 91 of the Staff Regulations. Secondly, the decision notified t o the applicant on 30 September 1987 was expressly adopted in response to the c o m ­ plaint of 26 N o v e m b e r 1986, merely confirmed the implied decision rejecting that complaint and was adopted after the expiry of the time-limits laid d o w n by the last subparagraph of Article 90(2) (Joined Cases 33/79 and 75/79 Kithner ν Commis­ sion [1980] E C R 1677, paragraph 9) and the latter part of the second indent of Article 91(3) of the Staff Regulations. T h a t implied rejection had already b e c o m e the subject-matter of the action b r o u g h t by the applicant before the C o u r t of Jus­ tice on 30 J u n e 1987 when he was notified, on 30 September 1987, of the confir­ m a t o r y decision relied u p o n by the C o m m i s s i o n . T h a t decision did not therefore give rise to any new element in the applicant's legal position not already submitted for the appraisal of the C o u r t of Justice and not determined by its judgment of 27 J u n e 1989, following which the applicant b r o u g h t the present action after complet­ ing the p r o c e d u r e prescribed by Articles 90 and 91 of the Staff Regulations.

33 In his view, the obligation to reinstate an official, as set out b y Article 40(4)(d) of the Staff Regulations, requires the C o m m i s s i o n to take all the necessary steps for that p u r p o s e in so far as it possesses all the information concerning the o p p o r t u - nities for such reinstatement, whereas the official can only decline the first post offered to him on that basis.

34 In this connection the applicant states, first, that the administration never sent him the vacancy notices for posts for which he might have applied, in spite of his requests of 30 September 1976, 24 September 1983, 7 January 1984 and 15 July 1985, and in spite of a standard letter, dated March 1981, from the head of the Administration and Personnel Division of the JRC, Ispra, stating that officials awaiting reinstatement systematically received current vacancy notices, so that they could make their interest known. Secondly, the applicant states that there was either no reply at all to his requests for reinstatement, as in the case of that of 30 Sep- tember 1976, or a late reply in the negative, as in the case of that of 15 March 1974, to which the administration replied only by a letter of 19 March 1981. Finally, some of his requests received only dilatory replies, as in the case of that of 24 September 1983, in which he asked to be sent vacancy notices which might be of interest to him and to which the administration replied on 10 October 1983 by asking him to state whether he wished to receive notices of vacant posts. Likewise, his request for reinstatement of 7 January 1984 in which, in addition to asking the administration to send him vacancy notices which might be of interest, he pointed out that he had to resume paid employment as a matter of urgency, was answered by letter of 25 May 1984 in which the administration asked him whether he was still interested in reinstatement and whether he was receiving in good time the vacancy notices which he requested.

38 Finally, with reference to his previous experience of contracting and his training in and experience of supervising fuels and engines, the applicant states that he could have been reinstated in the post published in Vacancy N o t i c e C O M / R / 1 5 7 1 / 8 5 , for which applications had to be submitted by 10 January 1986. T h e duties of this post were to assist the officer responsible for the R and D s u b - p r o g r a m m e for 'optimi- zation of the production and utilization of h y d r o c a r b o n s ' and to be responsible for, inter alia, analysing proposals for research, negotiating the technical programmes of contracts, monitoring contracts, writing technical and administrative reports and giving instructions to contractors with regard to the content of final reports.

39 F u r t h e r m o r e , the applicant maintains that he could have been reinstated in one of the posts in the administrative service because interpénétration between the scien- tific and technical service and the administrative service is possible under the Staff

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Regulations and in many cases a practice of the Commission, and because he had informed the Commission that he would be available for such a post at least from 15 October 1983.

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42 T h e C o m m i s s i o n c o n t e n d s that it was not objectively possible to reinstate the applicant before 26 May 1986 because there were n o vacant posts suited to his abil­ ities. It explains that the applicant's career profile is unusual in that, while he has basic technical and scientific training and a diploma — not, however, a degree-level diploma — in m o t o r engineering, he has also acquired commercial experience. Before he joined E u r a t o m , the applicant had been engaged in commercial w o r k dealing with matters of p r o c u r e m e n t , selling and p r o m o t i o n in the industrial engine and m o t o r vehicle industry, and after he joined E u r a t o m on the staff of the J R C , Ispra, he was responsible for making the purchases necessary for basic research, with a considerable involvement in the nuclear field, which required the ability to assess the qualities of sophisticated scientific equipment, not merely ordinary plant and machinery. According to the C o m m i s s i o n , these abilities are not fully a p p r o ­ priate for either the scientific sector or the administrative sector, which made it dif­ ficult t o reinstate him.

43 With regard to the posts in the scientific and technical service, the C o m m i s s i o n emphasizes that, although the applicant had to be reinstated in any case in a post in this service, because of his basic training and original recruitment, his special qual­ ifications and the fact that he did not possess a university qualification in engineer­ ing necessitated an ad hoc assessment of his abilities in relation t o all the available posts of which there were consequently very few or even none.

47 As regards the administrative service, the Commission states that the applicant could not have been reinstated in a post in this service because Article 40(4)(d) of the Staff Regulations imposes on the administration a legal obligation to reinstate an official in a vacant post only if the post is in the service to which he belongs. It considers that the administration has a discretionary power to reinstate an official of the scientific and technical service in an administrative service post, although it is not required to offer it to him first or to assess vacant posts in the administrative service with this in view. For those reasons, no such assessment was made in the applicant's case.

48 With regard in particular to the administrative post published in Vacancy Notice N o 393 of 3 October 1977, the Commission adds that its obligation under Article 40(4)(d) of the Staff Regulations relates only to notices of vacant posts within the meaning of Article 4(2) of the Staff Regulations and does not extend to notices of

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'internal transfer' such as the notice in question. It considers that 'internal transfer' notices d o not concern officials awaiting reinstatement, w h o n o longer have their post, but only officials w h o can be transferred, with their post, t o duties which are in essence similar t o those they previously performed.

v) Finally, with regard t o the administrative post published in Vacancy N o t i c e C O M / 3 5 5 / 8 5 , the C o m m i s s i o n accepts that the applicant held an administrative post 'in the wide sense' of the term in the Purchasing D e p a r t m e n t of the J R C , Ispra, but c o n t e n d s that his basic training and his membership of the scientific and technical service meant that he should be reinstated in that service only, because he had no specific preparation for a post in the administrative sector. Therefore the C o m m i s s i o n considers that the applicant did not possess the qualifications required for the post, namely 'specific experience in the p r o p e r t y sector, ... the management of buildings and all aspects of the logistics of the C o m m i s s i o n ' s services in Luxem­ bourg'.

51 The obligation to cany out a detailed examination to ensure that an official entitled to reinstatement satisfies the requirements for a vacant post, implied by Article 40(4)(d) of the Staff Regulations, also appears from the internal decision of the Commission of 14 January 1970, published in the Staff Courier N o 103, concern- ing leave on personal grounds. This decision requires the Directorate-General for Personnel and Administration of the Commission to offer the officials concerned, 'in accordance with the procedure prescribed in Article 40(4)(d) of the Staff Reg- ulations', a vacant post in their original Directorate-General or service even if the procedure for filling those posts has commenced and, failing such post in their original Directorate-General or service, to refer the matter to a reinstatement com- mittee consisting of three senior officials, appointed ad hoc for each case to be examined, with the task of determining the post to be offered to the official in question. Those procedural obligations are reiterated in the decision which replaced the abovementioned decision of 14 January 1970, published in Administrative Notices N o 569 of 5 September 1988, which provides that for purposes of rein- statement 'the Directorate-General for Personnel and Administration shall exam- ine all vacant posts and the qualifications of officials' awaiting reinstatement. The same decision also imposes on the administration an obligation to hold in abeyance procedures for filling any vacancy which 'appears to correspond' to the qualifica- tions of an official whose leave will expire within six weeks or less, or whose leave has expired, in order to give priority to permitting a successful outcome to the reinstatement procedure.

54 At the C o u r t ' s request, the C o m m i s s i o n has p r o d u c e d the applicant's personal file ( N o 21756) which contains, in annex A, part 1, an information sheet in his name entitled 'List of J R C officials on leave on personal g r o u n d s ' . It shows, inter alia, the dates of three of the applicant's requests for reinstatement (15 March 1974, 30 September 1976 and 24 September 1983) and the types of post which he could have been offered as a priority, involving 'purchasing and selling duties' and 'managerial duties'. T h e same information sheet refers t o the scientific and technical service vacancy notices C O M / R / 5 6 7 / 8 0 , 515/81, 523/81, 529-530/81, 531-532/81, 544/81, 545/81, 538-539/83, 508/84 and 517/84 which, according to a note on the list, were 'vacancies for which the official's abilities were verified (without an offer of rein­ statement)'. Finally, the same part of the applicant's file contains a note dated 22 May 1984 (XII-B-5(D)-84-12.505) recording the negative conclusions reached after verification of the applicant's abilities and those of four o t h e r officials awaiting reinstatement in relation to the post referred to by one of the abovementioned vacancy notices, C O M / R / 5 1 7 / 8 4 (and 520/84). T h e note indicates that the post entailed duties in connection with the FAST p r o g r a m m e and concludes that 'it is clear that M r G i o r d a n i , whose first post in the J R C was head of the p r o c u r e m e n t department, cannot meet the needs of FAST'.

57 This failure on the Commission's part, arising from conduct which is irregular by reference to Article 40(4)(d) of the Staff Regulations, constitutes a service-related fault which may give rise to liability to the applicant in so far as it prevented his reinstatement before 26 May 1986. The objective nature of the damage suffered by the applicant, which renders his claim for compensation admissible (Sergy ν Com­ mission, cited above, and Case 785/79 Pizziolo ν Commission [1983] ECR 1343) arises in the present case from being deprived of his remuneration as an official from the date when he could possibly have been reinstated to the date of his actual reinstatement.

58 Consequently it is necessary to ascertain whether the applicant could have been reinstated before 26 May 1986 on the basis, firstly, of his abilities as shown by the file and, secondly, the profile of the posts to which he contends he was entitled to be reinstated.

59 With regard to the posts in the scientific and technical service to which the appli­ cant was unquestionably entitled to be reinstated, the Court refers, first, to the post

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61 With regard to the commercial and contracting duties, the Court notes that the post held by the applicant before he took leave on personal grounds required, according to the vacancy notice in which the post was published (V/IS/126/65), 'excellent experience of procurement technique and methods ...'. It must also be observed that the Commission, in its replies to the Court's questions, stated that 'Mr Giordani's curriculum vitae shows a commercial training ...', that the applicant, in his above- mentioned post, was responsible for 'all the procedures for ordering, purchasing and receiving goods' and that he 'has always been engaged in work in the commer­ cial sector' and in particular in aspects 'connected with the purchase and manage­ ment of stocks of technical and scientific equipment', a sector in which 'he has consistently given proof of his qualities and skill'. Finally, at the hearing the Com­ mission confirmed that the applicant's experience 'revolved essentially around the area of marketing' and that he was responsible for 'purchases for a large research centre ...', entailing an ability 'to assess the quality of such raw material and scien­ tific equipment' and 'through contacts with suppliers, to obtain good prices thanks

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to negotiations ...'. Finally, it must be added that the post to which the applicant was reinstated on 26 May 1986 required 'ability in designing and drawing up spec- ifications, and estimating costs'. Therefore the defendant cannot, in the context of the present proceedings, cast doubt on the fact that the applicant manifestly pos- sessed the abilities required in commercial and contracting matters for the duties pertaining to the post published in notice COM/R/1523/85.

63 The Court refers, secondly, to the post in the scientific and technical service pub- lished in Vacancy Notice COM/R/1571/85, for which applications had to be

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submitted by 10 January 1986. According t o the notice, the duties of this post were as follows: ' t o assist the officer responsible for the R and D s u b - p r o g r a m m e for " o p t i m i z a t i o n of the p r o d u c t i o n and utilization of h y d r o c a r b o n s " in managing that s u b p r o g r a m m e , particularly in the following fields: synthetic fuels, deposits, engines and h y d r o c a r b o n fuels. Responsible, inter alia, for analysing research p r o ­ posals, negotiating technical contract p r o g r a m m e s , m o n i t o r i n g contracts, drafting technical and administrative reports and giving instructions t o contractors with regard to the content of final reports'. As for qualifications, the notice required: ' 1 . a university education attested by a diploma or professional experience at equiva­ lent level; 2. appropriate knowledge of the h y d r o c a r b o n s sector in general; 3. sev­ eral years' experience in industry'. According to the C o m m i s s i o n ' s observations at the hearing, this post required 'a university education appropriate to the hydrocar­ b o n s sector and experience in industry'.

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65 Consequently, the Commission has not shown that it was impossible for it to rein­ state the applicant on 26 July 1985 in the post published in Vacancy Notice COM/R/1523/85 or on 10 January 1986 in the post published in Vacancy Notice COM/R/1571/85, and it is unnecessary to determine whether he could also have been reinstated in the post published in Vacancy Notice COM/R/1561/85. In so far as the Commission actually assessed, in good time, the applicant's abilities by reference to the requirements pertaining to these two posts, its refusal to reinstate him appears to be based on insufficient grounds and, in part, to conflict with the applicant's actual abilities, particularly since Article 40(4)(d) of the Staff Regula­ tions does not require the qualifications of the person concerned to match perfectly the requirements of the post in question, but only requires him to be able to per­ form the duties pertaining to the post (Pizziolo ν Commission, cited above, para­ graph 5).

66 However, it is also necessary to consider whether the applicant ought to have been reinstated at a date earlier than either 26 July 1985 or 10 January 1986, in particular on 26 October 1977, which was the final date for the submission of applications for the post in the administrative service published in the JRC, Ispra, in Notice N o 393 of 3 October 1977, a post in which the applicant claims he was also entitled to be reinstated.

69 In the light of the foregoing considerations, it is not in issue that the Commission expressly acknowledged, in its written replies to the Court's questions and at the hearing, that the applicant possessed undoubted abilities in commercial matters, including the negotiation, conclusion and monitoring of both procurement and sales contracts, particularly suited to the needs of a joint research centre such as Ispra, as a result of his experience in this field acquired in the course of both his private work and his duties in the service of the Commission. The applicant's abil­ ities are also confirmed by the note on the abovementioned information sheet in his file, to the effect that he could be reinstated in a post entailing 'purchasing and selling'. In addition, before he took leave on personal grounds, the applicant per­ formed the duties of head of the Procurement and Stores Department of the JRC, Ispra, which, according to the vacancy notice concerning this post, required 'excel­ lent experience of procurement technique and methods including, in particular, the purchasing organization and systems used in industry'. Finally, according to the periodic reports in his file (part 3), to which the Commission referred in its replies to the Court's questions, the applicant, in his capacity as head of the Procurement Department of the JRC, Ispra, was responsible for 'all the procedures for ordering, purchasing and receiving goods'. It follows from the above findings that, in so fai­ as the post referred to by Notice N o 393 of 3 October 1977 entailed duties con­ nected with the conclusion and management of contracts, the applicant manifestly possessed the necessary abilities.

71 Finally, when the applicant joined the Commission, he was appointed to a post in the Directorate-General for Personnel and Administration and the post he held before he went on leave required 'knowledge of the administrative organization ... of the Community'. In addition, as has just been pointed out, the post to which he was reinstated on 26 May 1986 required 'experience of technical and financial man- agement of various services'. Furthermore, among the duties which could have been allotted to him on reinstatement, the abovementioned information sheet in his per- sonal file indicated 'managerial duties'. Finally, at the hearing the Commission, while refusing to accept the possibility of reinstating the applicant in an adminis- trative post, agreed that his post in the Purchasing Department of the JRC, Ispra, was of an 'administrative nature'. It follows that, in so far as the post referred to by Notice N o 393 of 3 October 1977 required candidates with experience of administrative management, the applicant possessed the requisite abilities.

72 Consequently it must be found that the applicant manifestly possessed all the abil- ities necessary for reinstatement in the administrative post published in the JRC, Ispra, by Notice N o 393 of 3 October 1977, corresponding to his category and, in the absence of any particulars in the notice concerning the grade to be filled, poten- tially to his grade.

73 The Commission does not expressly dispute that the applicant may have had the abilities necessary for reinstatement in that post, but contends that it had no legal obligation to reinstate him in it. On this point it considers, first, that the obligation to reinstate an official on the expiry of leave on personal grounds relates only to posts in the service to which he belongs and, secondly, that Article 40(4)(d) of the Staff Regulations imposes such obligation on the authority only where there is a notice of a 'vacant post' within the meaning of the second paragraph of Article 4 of the Staff Regulations, and not in the case of a notice of 'internal transfer' such as Notice N o 393 of 3 October 1977.

76 Having thus established that the post which was the subject of N o t i c e N o 393 of 3 O c t o b e r 1977 manifestly c o r r e s p o n d e d to the applicant's abilities and that he could have been reinstated in it on 26 O c t o b e r 1977, the final date for the submis­ sion of applications, the C o u r t finds that the C o m m i s s i o n ' s failure to reinstate him in this post and to remedy the consequences of the delay in reinstatement consti­ tutes a breach of Article 40(4)(d) of the Staff Regulations and a wrongful act which has caused the applicant actual damage for which he is justified in seeking c o m p e n ­ sation.

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JUDGMENT OF 1. 7. 1993 — CASE T-48/90

The consequences of the delay in reinstatement with regard to the applicant's step and seniority

Arguments of the parties

77 The applicant claims that the damage for which he seeks compensation by reason of the delay in reinstatement does not relate to the loss of his chances of promo­ tion to a higher grade, but only the loss of automatic advancement to higher steps which he would have been given, in the grade which he holds, if he had been rein­ stated at the proper time.

Compensation and calculation of damage

A r g u m e n t s of the parties

81 T h e applicant states that the damage he suffered by reason of the delav in reinstate­ ment extended over only 18 m o n t h s , from 1 February 1985 to 1 September 1986, during which time he had no earned income because, having given up private w o r k as a result of being forced to resign from the c o m p a n y where he was working, by reason of its personnel policy, he was not reinstated to the services of the C o m ­ mission and was therefore not receiving remuneration as an official. T h e applicant also claims interest on the sums owed to him as c o m p e n s a t i o n by the C o m m i s s i o n .

8 2 T h e C o m m i s s i o n c o n t e n d s that, if the applicant's claims for compensation are suc­ cessful, the damages payable should be limited to take account of the effect of the applicant's negligent conduct. O n this point the C o m m i s s i o n submits that the applicant has not s h o w n the necessary diligence and willingness to cooperate with the administration t o obtain reinstatement, thus failing in his d u t y to collaborate with the administration, a d u t y laid d o w n by a general principle of public law which also appears in the Staff Regulations (Article 2 1 , first paragraph). T h e con­ duct of the applicant, w h o showed only an intermittent interest in reinstatement, thus contributed to the alleged damage and b r o k e the causal relationship between the act of the administration and the damage suffered (Case 36/62 Aciéries du Tem- ple v High Authority [1963] E C R 289).

85 In evaluating the damage suffered by the applicant by reason of the loss of the remuneration to which he would have been entitled as an official had there been no delay in his reinstatement, it must first be borne in mind that his classification in Grade A 5, Step 5, on reinstatement was found to comply with Article 40(3) of the Staff Regulations by the Court of Justice in the Giordani ν Commission judgment cited above (paragraph 18), without prejudice to his right 'to request to be classi­ fied in a different step on the basis of other provisions of the Staff Regulations'. Secondly, account must be taken of the fact that the applicant limits the damage to the period from 1 February 1985, when his private paid employment ended, to 1 September 1986, when he began to receive his remuneration as an official following reinstatement on 26 May 1986. Therefore the compensation to which he is entitled must be equal, first, to the total net monthly remuneration which he would have received from 1 February 1985 to 1 September 1986, taking account of the auto­ matic advancement to higher steps which he would have been given under Article 44 of the Staff Regulations if he had been reinstated at Grade A 5, Step 5, on 26 October 1977 to the post published in Notice N o 393 of 3 October 1977 and, sec­ ondly, the difference between the net remuneration received from 1 September 1986 and the remuneration which he would have received from that same date if he had been reinstated to the abovementioned grade and step on 26 October 1977.

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GIORDANI ν COMMISSION

88 Finally, the c o m p e n s a t i o n received by the applicant on his resignation from Schnee- berger Italiana SpA was quite obviously not paid by way of r e m u n e r a t i o n for the period following his departure, but because of his e m p l o y m e n t relationship with the c o m p a n y d u r i n g the period when he had actually worked for it, up t o 31 Jan­ uary 1985. It thus c a n n o t be taken into account as r e m u n e r a t i o n for the period fol­ lowing his resignation from the abovcmentioned company, and the C o m m i s s i o n ' s application to that effect must therefore be dismissed.

89 Nevertheless, in calculating the compensation payable to the applicant, account must be taken of any net earned income which he may have received as sole

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JUDGMENT OF 1. 7. 1993 — CASE T-48/90

director and shareholder of Pfeil Italia Sri after his resignation from Schneeberger Italiana SpA, from 1 February 1985 to 1 September 1986.

90 Finally, the applicant's claim for interest must be allowed. The sums payable by the Commission must thus bear interest, to be fixed at 8% and calculated from 1 February 1985, a date by which the applicant ought already to have been reinstated and the beginning of the period during which he did not receive his remuneration as an official because he had not been reinstated at the proper time. However, the applicant did not request compensation for the damage suffered until 29 September 1989 and, following the rejection of the request, he lodged a complaint only on 10 April 1990, without claiming interest in either case. Therefore the date for the cal- culation of interest should be fixed as 14 November 1990, when he brought the present action, in which he has claimed interest.

On those grounds,

T H E C O U R T O F FIRST INSTANCE (Fifth Chamber)

hereby:

1. Orders the Commission to compensate the applicant for the financial dam­ age sustained as a result of not being reinstated on 26 October 1977 in Grade A 5, Step 5, in the post in the Joint Research Centre, Ispra, which was the subject of Notice N o 393 of 3 October 1977;

2. Declares that the sums payable to the applicant shall be equal to: (a) the dif­ ference between the net remuneration which he would have received between 1 February 1985 and 1 September 1986 if he had been reinstated on 26 October 1977 and the net earned income which he obtained from other work, and (b) the difference between the net remuneration received from 1 September 1986 and the net remuneration which he would have received from that same date, 1 September 1986, if he had been reinstated on 26 Octo­ ber 1977;

3. Declares that the amounts payable are to bear interest at the rate of 8% from 14 November 1990 until the date of actual payment;

Delivered in open court in Luxembourg on 1 July 1993.

H. Jung D. P. M. Barrington

Registrar President

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