JUDGMENT OF 2.4.1981 — CASE 785/79 PIZZIOLO v COMMISSION

In Case 785/79

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Decision

The claim for reinstatement with effect from 1 March 1971

The claim for reinstatement with effect from a date later than 1 March 1971

I —. Facts and written procedure

1. Mr Pizziolo, who holds a laurea in chemistry of the University of Pisa, entered the service of the Commission of the European Atomic Energy Community in 1959 and was posted to the Joint Research Centre at Geel. In March 1963 he was appointed an official in Grade A 7 on the scientific staff and in 1964 he was promoted to Grade A 6. In the same year he was transferred to the Joint Research Centre at Karlsruhe.

2. From 1 March 1970 to 28 February 1971 Mr Pizziolo was granted leave on personal grounds.

3. According to information supplied by the Commission, the post held by Mr Pizziolo in the Ceramics and Metallurgy Department at Karlsruhe was the subject of a vacancy notice in February 1970 but no appointment was in fact made.

4. By letter of 24 March 1971 addressed to the Directorate-General for Personnal and Administration of the Commission, the applicant requested his reinstatement. By letter of 15 December 1972 addressed to the Administration and Personnel Division of the Joint Research Centre at Ispra, which was transmitted to the said Directorate-General, the applicant stated that he was available for reinstatement in a post paid from the operational budget. He submitted application forms on 20 March 1973, 5 October 1977 and 10 April 1978. By letter of 10 August 1976 he requested reinstatement at the Karlsruhe Centre and his request was transmitted to all other Joint Research Centres.

5. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry. The Court did, however, invite the Commission to answer a number of questions in writing before the hearing.

II —. Conclusions of the parties

1. In his application the applicant claims that the Court should:

2. The Commission contends that the Court should:

III —. Submissions and arguments of the parties

1. The applicant submits that the Commission has infringed Article 40 (4) (d) in the Staff Regulations and various principles and rules of law. In particular he relies on the principle according to which a wrongful act or omission renders the administration liable and gives a right to damages.

2. The Commission's answer to the foregoing is that the budgetary post corresponding to the post formerly filled by the applicant had been used and filled by another department and any immediate possibility of reinstatement after the expiry of the leave on personal grounds was therefore precluded by virtue of the absence of a vacant post within the meaning of Article 4 (1) of the Staff Regulations. This was a matter of rational staff management dictated by the higher interests of the service, particularly at a time when the scientific staff was being substantially reduced.

3. Secondly, the applicant submits that several posts corresponding to his grade and to his abilities have been available and declared vacant since the expiry of his leave. According to him, it is not apparent from the documents produced in the case whether his suitability for those posts was considered at the time when the posts fell vacant. Even if it is assumed that his qualifications were considered in the case of the vacant posts for which he expressly applied, that is to say the posts advertised under Nos COM/364 to 371/78, 514/78 and 1237/78, that is not necessarily so in the case of the other vacant posts. According to the applicant, this question is extremely important so far as concerns the extent of the judicial review which the Court of Justice is entitled to exercise.

4. On this point, the Commission considers that it has not failed to fulfil its obligations under Article 40 (4) (d) of the Staff Regulations because there were no vacant posts for which the qualifications required matched the applicant's abilities. The extremely specialized nature of research work, which was moreover subject to restrictions as a result of reductions in the number of posts, due to the lower level of budgetary appropriations and the reorientation of Euratom's scientific programmes decided by the Council, had the consequence of considerably reducing the immediate opportunities for reinstating officials on the scientific staff who were on leave on personal grounds.

5. In respect of the vacant posts for which the applicant did not expressly apply, the applicant and the Commission submit the following arguments in relation to the former's abilities:

6. In respect of Vacancy Notices Nos COM/503 and 510/71, the Commission states that restrictions on the number of posts prevented it from filling them.

7. As to Vacancy Notice No COM/1531/76, the Commission states that it was annulled.

8. The applicant considers that he has the qualifications required by Vacancy Notice No COM/515/73, namely, apart from a university degree in inter alia chemistry, knowledge of the properties of materials. In view of the nature of the duties, the materials in question consisted of nuclear fuel elements. By having taken part in the manufacture of fuel elements for radiation tests the applicant had acquired knowledge of such materials in particular.

9. Should the Court consider that the reasons which gave rise to the annulment of Vacancy Notice No COM/1531/76 may not prevail over the obligation to reinstate, the applicant reaches the same conclusion as regards that vacancy notice as for Notices Nos 515/73 and 507/75.

10. The applicant also considers that he has the qualifications required by Vacancy Notice No COM/1513/76, namely a university degree, experience in the preparative and analytical chemistry of radio-nuclides with high specific activity and knowledge of standard methods of crystallographical analysis.

IV —. Oral procedure

1. By application lodged at the Court Registry on 24 October 1979, Mr Pizziolo, an official of the Commission of the European Communities on leave on personal grounds, brought an action seeking, first, a declaration that the Commission should have reinstated him in accordance with Article 40 (4) (d) of the Staff Regulations of Officials at the date of expiry of his leave, 1 March 1971, or at least in one of the posts mentioned by him which became vacant after that date and, secondly, damages for loss suffered as regards his salary and the progress of his career. In the alternative, he requests that, before final judgment is given, the Court should order an expert's report on his ability to fill the posts mentioned by him.

2. The applicant was granted leave on personal grounds from 1 March 1970 to 28 February 1971. Prior thereto he had been assigned to the Ceramics and Metallurgy Department of the Joint Research Centre in Karlsruhe as an official in Grade A 6 on the scientific staff. The applicant did not request any extension of his leave but as yet he has not been reinstated.

3. The applicant submits in the first place that on the expiry of his leave he should have been reinstated in the post which he had held before his departure and which had apparently remained vacant until at least 15 January 1971, that is to say until a date when the Commission knew that his leave was not to be extended because, under Article 40 (4) (b) of the Staff Regulations, any application for an extension required to be made before 1 January 1971.

4. According to the Commission's explanations, which were given in particular at the oral hearing and which the applicant was not in a position to dispute, the post held by the applicant was the subject of a vacancy notice before his departure but no appointment was made. Like any other vacant budgetary post that post was subsequently restored to the general reserve of posts available to the Centre, so that it could be reassigned, if appropriate, in accordance with the needs of the various departments and the general priorities of the Centre. At the end of 1970 a post was taken from that reserve and temporarily allocated to the applicant's former department so that it could execute work of a limited duration for a third party. After being extended, the contract of the temporary employee appointed to carry out this work lasted for three years, namely from 15 January 1971 to 15 January 1974. Thereafter the budgetary post was again returned to the reserve of the Centre. The Commission emphasizes that this very flexible form of management was made necessary by the budgetary difficulties which it met in the area of research after the end of the 1960s and which resulted in the abolition of a large number of posts.

5. Article 40 (4) (c) and (d) of the Staff Regulations provides that another person may be appointed to the post occupied by an official on leave on personal grounds but that on the expiry of his leave the official must be reinstated 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. These provisions therefore mean that the official will not necessarily be reinstated in his former post but may be reinstated in a post which gives him a position equivalent to that which he occupied before being granted leave.

6. It follows that the applicant may not complain of the fact that the post vacated by his departure was returned to the reserve of vacant posts available to the Centre for further use in the interests of the service. It also follows that it would not have been possible for the Commission to fulfil its duty to reinstate the applicant by offering him a post which had only temporarily been put at the disposal of his former department in order to enable it to deal with work of a limited duration.

7. The applicant further submits that he should have been reinstated in a post, which might have been filled at about the same time as the above-mentioned events, in the technology and high temperature metallography department of the Joint Research Centre at Karlsruhe and which was the subject of Vacancy Notices Nos COM/503/71 and COM/510/71, which fixed 4 and 18 February 1971 respectively as the last date on which applications might be made.

8. In this respect the Commission replies in particular that restrictions on the number of posts prevented it from filling that post. The Commission has explained that more vacancy notices were published than budgetary posts were available so as to allow flexible management and to obviate financial difficulties. It was for this reason that all the vacancy notices in question in the present case stated that this post will be filled when funds become available. This step allowed the administration to take account, when assessing needs and priorities, of changes occurring after the publication of the vacancy notice. In the event the administration decided to have the duties mentioned in the aforementioned vacancy notices carried out by the existing staff.

9. In answer to those arguments, the applicant contends that such considerations may not prevail over the obligation to reinstate him.

10. That submission cannot be upheld. No provision of the Staff Regulations states that once a recruitment procedure has been initiated the appointing authority is obliged to pursue it by filling the post which has become vacant. If for legitimate reasons based in particular on the current requirements of its departments and the priority of the tasks to be carried out by it, the appointing authority has decided not to fill a post for which a vacancy notice has been published, an official on leave on personal grounds may not insist on being reinstated in that post. These considerations apply a fortiori in the case of the Joint Research Centre, whose posts have been considerably reduced thus making necessary even more careful management of the available posts.

11. It has not therefore been shown that at the time when the leave granted to the applicant expired there existed vacant posts in which the Commission could have reinstated him. The claim for reinstatement with effect from 1 March 1971 must therefore be dismissed.

12. The applicant submits in the second place that he should have been reinstated in one of the posts which fell vacant after the expiry of his leave. In this respect, he refers to the posts for which were published Vacancy Notices Nos COM/515/73, 531/74, 507/75, 1530/75, 1513/76 and 1531/76. In regard to those posts he contends not only that he possessed the qualifications required by the notices but also that there is every reason for doubting whether the administration considered his qualifications before filling those posts since he did not expressly apply for them. In the alternative, he requests that his fitness for the posts should be the subject of an expert's report.

13. To that the Commission replies that all the relevant departments had been made aware of the applicant's wish to be reinstated and hence of their obligation to consider of their own accord his suitability for vacant posts but that, in view of the specialized nature of the scientific work in question, the applicant did not in fact satisfy the requirements for the posts mentioned by him. In the case of posts coming within the Centre, the Commission refers in this regard to the detailed explanations given by the Directorate of the Centre.

14. Since in relation to the question whether the applicant's abilities match those required by the vacancy notices both parties' arguments contain particulars of an extremely technical nature, it is appropriate to order an expert's report to enable the Court to decide this aspect of the dispute.

15. Before such a report is obtained, however, it is necessary to decide whether the report should include Vacancy Notice No COM/1531/76. The Commission states that this notice was annulled following Council Regulation No 2615/76 of 21 October 1976 amending Regulation No 259/68 as regards the conditions of employment of other servants of the European Communities (Offical Journal 1976, L 299, p. 1). The purpose of that amendment was to replace by a system of recruitment on temporary contracts the system whereby persons remunerated from research appropriations were appointed as officials. The Commission submits that, in view of its obligation to recruit only temporary employees in the future, the annulment of this notice was justified as respects the applicant and anyone else.

16. On this point, however, the applicant is entitled to rely on the priority of his right to be reinstated. If when faced with a request for reinstatement by an official on leave on personal grounds the Commission were allowed to rely on the fact that it now employed only temporary employees, whatever the nature of the work under consideration, the right of an official on leave on personal grounds to be reinstated, which is conferred by Article 40 (4) (d) of Staff Regulations, would be illusory. The vacancy notice mentioned above should therefore be included in the expert's report.

17. It follows that an order should be made for an expert's report on the question whether the applicant had the required qualifications and the necessary ability to carry out the duties contemplated by Vacancy Notices Nos COM/515/73, 531/74, 507/75, 1530/75, 1513/76 and 1531/76.

18. The parties should be asked to send to the Court, within two months from the date of delivery of the present judgment, the name of the expert whom they agree to appoint. Failing such agreement, the parties shall send to the Court, within the same period, the names of the experts whom they propose, setting out their reasons for refusing the other party's proposal.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the applicant's claim to be reinstated with effect from 1 March 1971;

2 Directs that, before judgment is given on the claim for reinstatement at a later date, an expert's report shall be obtained on the question whether the applicant had the required qualifications and necessary abilities to carry out the duties contemplated by Vacancy Notices Nos COM/1515/73, 531/74, 507/75, 1530/75, 1513/76 and 1531/76;

(a) to send to the Court, within two months from the date of delivery of the present judgment, the name of the expert whom they have agreed to appoint;

(b) failing such agreement, to send to the Court, within the same period, the names of the experts whom they propose, setting out their reasons for refusing the other party's proposal;

3 Reserves the costs.