Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

An action against the Commisson of the European Communities has been brought before the Court by Antonio Giannini, a temporary servant in Grade A 5, for the annulment of the appointment of Mr Cassella as a principal administrator in the specialized division dealing with tariff questions in connection with agreements (Grade A 5, Step 4).

The facts are these:

I — During the last few years the crisis in the textile industry and the administration of agreements made to cope with that crisis (bilateral agreements, multifibre agreement) have grown in importance in the European Economic Community.

Such matters are the responsibility of the Customs Union Service which is directly answerable to the Members of the Commission and which at the time of the events in question was responsible more particularly to Commissioner Etienne Davignon. Nowadays it comes under Commissioner Karl-Heinz Narjes.

The Customs Union Service, which is headed by a director general, was and still is divided into two directorates:

Directorate A (Tariff Questions) which comprised the following divisions or specialized sections:

Directorate B (Customs Legislation) comprising the following divisions and specialized sections:

From 2 February 1976 Antonio Giannini, who was born in 1941 and is an official at the Ministry of Finance in Rome, was seconded as an expert on textile nomenclature to the Customs Union Service, more particularly Divisions 1 and 4 of Directorate A. It appears that the cost of his secondment was born by the Italian authorities.

When the crisis grew worse the Customs Union Service procured the creation in 1978 of a temporary post in Grade A5/A4 and on 16 July 1978 Mr Giannini was engaged as a temporary servant to occupy that post under Article 2 (a) of the Conditions of Employment of Other Servants of the European Communities. His contract of employment was for an indifinite period and in fact came to an end on 30 June 1981.

Mr Giannini asserts, and some of his superiors and colleagues confirm, that at the time assurances were given to the Italian authorities as regards his future establishment in the Community administration.

For its part the Commission asserts that Mr Giannini's attention was expressly drawn to the temporary nature of his appointment and to the fact that he could not be established except after an open or external competition (to constitute a reserve) for an established post such as are organized from time to time at the Commission. Two letters (dated 8 March 1978 and 17 July 1978) are to this effect.

After completing a sixth-month probationary period and receiving a glowing report from the Director of (or Chief Adviser to) Directorate A and the Head of Division (or specialized section) 4 of that directorate he was placed in Grade A 5, Step 2, as a temporary servant with the title of principal administrator.

The Customs Unions Service wished Mr Giannini to be established and in September 1979 asked for a post in Grade A 5/A 4 in Division 3 (Value for Customs Purposes and Computer Processing) of Directorate A, which had been made vacant by the departure of Mr Pearce after his election as a Member of the European Parliament, to be transferred to Division 4 (Tariff Questions in connection with Agreements), the very division in which Mr Giannini worked, and for the transferred vacant post to be advertised.

However, on 23 November 1979 Division 2 (Careers) of Directorate A (Personnel) of Directorate General IX (Personnel and Administration) refused to agree to the transfer and publication of the vacancy until after it had received an assurance to the effect that the transfer of the post was not intended to facilitate the establishment of a temporary servant at present in service, namely Mr Giannini.

A vacancy notice (No COM/663/79) for a post in Career Bracket A 5/A 4 was thus brought to the attention of staff on 20 December 1979. It stated that the duties involved were administrative, advisory and supervisory duties relating to the tariff administration of textile agreements (matters relating to the tariff classification and nomenclature of textile products).

That description of duties matched perfectly Mr Giannini's qualifications and the work he did in Division 4.

Article 29 of the Staff Regulation of Officials provides:

So at that stage the vacancy notice could only attract applications for promotion or transfer within the institution (Article 29 (1) (a)) and since he was a temporary servant there was no point in Mr Giannini's submitting an application.

The date by which applications had to be lodged was 18 January 1980. Three candidates submitted their applications for the post by that date.

One of them, Luigi Casella, born in 1939, had entered the service of the Commission on 1 June 1962 in Grade C 3, Step 1. His career had been a brilliant one because by 1 January 1976 he had reached Grade A 6. For some time he worked in Division 1 (Common Customs Tariff) of Directorate A (Tariff Questions) and then from 1 January 1978 he was transferred or moved under the policy of mobility to Directorate B (Customs Legislation), and more specifically to Division 4 (Customs Procedures with Economic Impact and General Matters). Nevertheless his application was initialled by the Head of Division 3 of that directorate (General Customs Legislation and Prevention and Repression of Fraud). It does not appear however that he had much in particular to do with tariff questions in connection with agreements (entrusted to Division 4 of Directorate A) which incidentally were handled by Mr Giannini.

On 6 February 1980 the Director Generał of the Customs Union Service, which had applied for the transfer of the post, rejected those three applications. In Mr Casella's case he considered that he deserved promotion to Grade A 5 in the division to which he is at present assigned because of his maturity as well as his considerable qualities and his experience; he stated however that Mr Casella did not possess the specific qualifications required for the post. He accordingly took the view that Mr Casella's application could not be accepted for the post to be filled in Division 4 of Directorate A and that only the adoption of the procedure laid down in Article 29 of the Staff Regulations, that is to say first the organization of a competition internal to the institution (Article 29 (1) (b)), could lead to the appointment of a qualified person.

The papers before the Court reveal the different views held by the cabinets of some of the Commissioners and Directorates General as regards the position of Mr Giannini and Mr Casella. In the end however the Director General of the Customs Union Service decided not to fill the post by means of external recruitment, to use his own words, and on 22 December 1980 Mr Casella was promoted to Grade A 5, Step 4, in the specialized section or division dealing with tariff questions in connection with agreements, with seniority in step from 1 September 1979.

It appears that at the present time Mr Giannini, whose contract has been renewed, continues to deal with all questions relating to the tariff classification of textile products in Division 4 of Directorate A. It would even appear that Mr Casella works in a division other than that to which he was assigned. However, as the Commission points out, that situation tends at most to prove that the real aim of the Customs Union Service in asking for an A 5/A 4 post to be transferred was to have Mr Giannini established or that the transfer was not really necessary.

II — Mr Giannini has brought an action before the Court seeking the annulment of Mr Casella's appointment and the reopening of the procedure for recruitment to post COM/663/79.

1. In support of his application the applicant complains first of all of manifest errors in the assessment of the facts, errors in law and disregard of the interest of the service (Article 7 of the Staff Regulations), which, he submits, led to Mr Casella's being deemed to fulfil the specific requirements of the vacancy notice. Mr Casella's appointment, which was made on that basis, was decided upon with the sole aim of preventing the applicant from taking part in an internal competition and occupying the post to be filled. It therefore amounts to a misuse of powers in his regard.

2. Mr Giannini alleges next that the Commission could not have been unaware of the particular circumstances in which he was engaged and that he could legitimately hope to obtain a permanent post matching his specialized field.

1 Translated from the French.

2 Sec the Director General's letter of 7 July 1980, the letter of the Director of Directorate A of 8 December 1980 and the letter of the Head of the Permanent Delegation of the Commission of the international organization at Geneva of 21 January 1981.

3 Joined Cases 12 and 29/64 Ley, 31 March 1965, Second Chamber, [1965] ECR 107 at p. 121.

4 Case 23/74 Klister, 12 March 1975, First Chamber, [1975] ECR 353, para. 24 at p. 367. Case 22/75 Kuiter, 29 October 1975, First Chamber, [1975] ECR 1267, para. 5 at p. 1271.

5 Case 123/75 Kuiter, 25 November 1976, First Chamber, [1976] ECR 1710, para. 17 at p. 1710.

6 Case 176/73 Van Belle, [1974] ECR 1361, paras 4 and 5 at p. 1370.

7 Case 151/80 De Hoe, 17 December 1981, First Chamber [1981] ECR 3161 para. 9 at p. 3173.

8 Case 157/77 Gilbeau, 5 April 1979, Secând Chamber [1979] ECR 1505, para. 23 at p. 1518.

9 Case 105/75 Giuffrida, 29 September 1976 [1976] ECR 1395, paras 10 and 11 at p. 1403.