C-398/93

* Original language: Italian. 3. The Court of First Instance dismissed the 1 — Rasmussen v Commission [1993] ECR II-765. action by its judgment of 6 July 1993, cited

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OPINION OF MR TESAURO — CASE C-398/93 P

above, in which it came to the conclusion Staff Regulations 2 from which it follows that 'the provisions of Articles 4, 29 and 45 that, when the appointing authority termi­ of the Staff Regulations are not applicable to nated the rotation procedure, it was under an the procedure at issue' (paragraph 42). obligation to restart the procedure from the beginning, that is to say, in accordance with the rules of procedure laid down by Arti­ cles 4 and 29 of the Staff Regulations. Mr Rasmussen also claims that, by making an arbitrary distinction between members of the temporary staff according to whether they are engaged to fill a permanent post or a In particular, the Court of First Instance, temporary post, the Court of First Instance after noting that the procedure initiated by has also infringed Article 9 of the Conditions Notice of Post No 587 is subject to the rota­ of Employment of Other Servants of the tion system established by the decision of 24 European Communities (hereinafter the November 1976 and that that system is 'employment conditions of other servants'), based on the principle that the official con­ which draws no distinction, for the purposes cerned is re-assigned together with his post of the recruitment procedure, between the (paragraph 35), concluded that in the case various categories of temporary staff listed in under consideration no vacant post existed Article 2 of those conditions. within the meaning of Articles 4 and 29 of the Staff Regulations (paragraph 37). The existence of a vacant post cannot, in the opinion of the Court of First Instance, be inferred either 'from the existence of a job, 4. Thus, in essence, it must be established of a permanent nature, as Director of the whether the Court of First Instance correctly Lisbon Office, or from the subsequent classified the recruitment procedure initiated engagement of a member of the temporary by publication of Notice of Post No 587 staff in Grade A 3 for that job' (paragraph and, more specifically, whether or not the 38). post to be filled was to be classified as a vacant post.

together with their budgetary posts in the meaning of the Staff Regulations, it follows course of the rotation procedures established that, once the rotation procedure has been by the Commission. 3The Court has also terminated, Articles 4 and 29 of the Staff expressly confirmed that the formalities pre­ Regulations should again become applicable. scribed by Articles 4 and 29 of the Staff Reg­ ulations 'do not apply when an official is re-assigned with his post because such a 4 transfer does not give rise to a vacant post'. In other words, the movement of staff pro­ vided for under the rotation system is not to be regarded as a transfer, but as a re-assignment to new places of employment In that connection, the Court of First — precisely because the posts held by those Instance, after observing that 'the existence members of staff are themselves re-assigned of a given "job", as opposed to a "post", falls together with their holders. within the competence of the institution with respect to its departmental organiza­ tion, whereas the question of the existence of a vacant post depends upon whether there is, amongst the total number of permanent posts set out in the budget, a post that is not filled' (paragraph 39), held that 'in so far as However, is the fact that the job in question the budget does not define the duties is for the press and information offices suffi­ amongst which the total number of posts is cient to preclude the existence of a vacant to be distributed, the existence at Lisbon of a post within the meaning of the Staff Regula­ vacant post within the meaning of the Staff tions, even where the post in question is not Regulations cannot be inferred from the filled by means of rotation, that is to say, by mere fact that the job of Director of the Lis­ re-assignment of the member of staff bon Office has remained temporarily unfilled together with his post? That is the issue following the re-assignment of the former raised by this appeal. director together with his post' (para­ graph 39).

The first complaint is therefore unfounded, since, in the circumstances under consider­ ation, no error in law can be discerned in the judgment delivered by the Court of First Instance. It follows that the existence of a vacant post within the meaning of the Staff Regulations cannot be inferred, as the Court of First Instance rightly emphasized, from the fact that in the present case, in order to fill the 8. With regard to the second complaint job in question, the administration did not alleging infringement of Article 9 of the proceed by way of re-assigning a member of employment conditions of other servants •— staff together with his post. The fact remains in so far as the Court of First Instance drew that, since the job of Director of the Lisbon a distinction between members of the tem­ Office is subject to the rotation system, it porary staff according to whether they are cannot give rise to a vacant post within the engaged to fill a permanent post or a tempo­ meaning of the Staff Regulations. rary post — the Commission raises an objec­ tion of inadmissibility under Article 113(2) of the Rules of Procedure. It claims that the second complaint represents a new ground for appeal which changes the subject-matter of the proceedings before the Court of First Instance, in so far as Mr Rasmussen seeks thereby to call in question the legality of the 7. That conclusion is borne out by the fact Commission's decision to fill the position that the administration, in order to be able to concerned by engaging a member of the tem­ engage a member of the temporary staff for porary staff. The Commission further con­ the position in question, arranged for a tem­ tends that the distinction at issue derives porary post to be added to the total staff of from Article 2 of the employment conditions the Directorate-General concerned. The of other servants and not from a question of member of the temporary staff who was sub­ law raised by the decision of the Court of sequently engaged for the Lisbon position First Instance. was recruited, as the Court of First Instance noted in paragraph 40 of its judgment, under Article 2(a) of the employment conditions of other servants, that is to say, 'to fill a post which is included in the list of posts Mr Rasmussen claims, on the other hand, appended to the section of the budget relat­ that the complaint in question challenges the legality of the reasoning contained in the judgment under appeal and does not, there­ 5 — See the cases cited above at footnote 3. fore, in any way alter the subject-matter of

I suggest that the appellant be ordered to bear the costs of these proceedings, including the defendant's costs in the appeal proceedings.

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