Opinion of Advocate General Tesauro

Mr President,

Members of the Court,

1. In this appeal, Mr Rasmussen asks the Court to set aside the judgment delivered by the Court of First Instance on 6 July 1993 in Case T-32/92 and to uphold the original application for annulment of the Commission's decision rejecting his candidature for the post of Director of the Press and Information Office in Lisbon, together with the decision to fill the post in question by engaging a member of the temporary staff.

2. I shall briefly summarize the facts of the case. On 11 November 1990, the Commission published Notice of Post No 587 with a view to filling the post of Director of the Lisbon Office. As that notice indicated, the post in question was subject to the rotation system which the Commission had established for the staff of the press and information offices in the Member States by decision of 24 November 1976. That decision provided, inter alia, that the rotation would in principle be effected by means of a general redistribution and that, in the course of that redistribution, staff would be re-assigned together with their budgetary posts.

3. The Court of First Instance dismissed the action by its judgment of 6 July 1993, cited above, in which it came to the conclusion that the provisions of Articles 4, 29 and 45 of the Staff Regulations are not applicable to the procedure at issue (paragraph 42).

4. Thus, in essence, it must be established whether the Court of First Instance correctly classified the recruitment procedure initiated by publication of Notice of Post No 587 and, more specifically, whether or not the post to be filled was to be classified as a vacant post.

5. Mr Rasmussen claims that, since the post of Director of the Lisbon Office, like all the posts filled by means of the rotation system, is a permanent post entered in the budget of the institution concerned, and is therefore to be classified as a vacant post within the meaning of the Staff Regulations, it follows that, once the rotation procedure has been terminated, Articles 4 and 29 of the Staff Regulations should again become applicable.

6. That reasoning is not affected by Mr Rasmussen's claim that, since it is usually officials who fill the posts subject to the rotation system, the job of Director of the Lisbon Office must be included in the list of posts provided for in the budget, from which it follows that it must be a vacant post within the meaning of the Staff Regulations. However, no vacant post can arise under the rotation system precisely because, as the Court has confirmed in the relevant case-law, it involves the re-assignment of members of staff together with their respective posts.

7. That conclusion is borne out by the fact that the administration, in order to be able to engage a member of the temporary staff for the position in question, arranged for a temporary post to be added to the total staff of the Directorate-General concerned. The member of the temporary staff who was subsequently engaged for the Lisbon position 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 appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary.

8. With regard to the second complaint alleging infringement of Article 9 of the employment conditions of other servants — in so far as the Court of First Instance drew a distinction between members of the temporary staff according to whether they are engaged to fill a permanent post or a temporary post — the Commission raises an objection 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 Commission's decision to fill the position concerned by engaging a member of the temporary staff. The Commission further contends that the distinction at issue derives from Article 2 of the employment conditions of other servants and not from a question of law raised by the decision of the Court of First Instance.

9. In the light of the foregoing, I consider that the complaint at issue must be regarded as challenging the view expressed by the Court of First Instance to the effect that the very fact of having engaged a member of the temporary staff under Article 2(a) of the employment conditions of other servants, that is, for a position which the budgetary authorities have classified as temporary, precludes the existence of a permanent position and therefore of a vacant post within the meaning of the Staff Regulations. However, no question of inadmissibility on the ground of new subject-matter having been introduced can arise, in so far as the complaint challenges a statement made by the Court of First Instance.

10. In the light of the foregoing considerations, I therefore propose that the Court dismiss the appeal brought by Mr Rasmussen.

1 Original language: Italian.

2 Rasmussen v Commission [1993] ECR II-765.

3 That article states: The list of posts appended to the section of the budget relating to each institution shall indicate, for each category and each service, the number of posts in each grade for each career bracket.

4 See Joined Cases 161/80 and 162/80 Carbognant and Coda Zabetta v Commission [1981] ECR 543; Case 791/79 Démont v Commission [1981] ECR 3105; Case 117/81 Geist v Commission [1983] ECR 2191.

5 Sec Joined Cases 161/80 and 162/80, cited above, paragraph 19.

6 See the cases cited above at footnote 3.