Avis juridique important

Judgment of the Court (Third Chamber) of 2 April 1992. - Antonino Pitrone v Commission of the European Communities. - Appeal - Official - Reorganization of departments - Creation of a new post. - Case C-378/90 P. European Court reports 1992 Page I-02375

Summary Parties Grounds Decision on costs Operative part

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Appeals ° Pleas in law ° Incorrect assessment of the facts ° Appointment of an official when no vacancy existed ° Pleas inadmissible ° Rejection

(Statute of the EEC Court of Justice, Art. 51)

It is for the Court of First Instance to find whether or not the appointment of an official took place when there was no post vacant. This assessment of the facts by the Court of First Instance cannot be challenged in an appeal to the Court of Justice, since such an appeal is limited to points of law.

In Case C-378/90 P,

Antonino Pitrone, represented by Nicolas Decker, of the Luxembourg Bar, with an address for service at the latter' s Chambers, 16 Avenue Marie-Thérèse,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 23 October 1990 in Case T-46/89 between Antonino Pitrone and the Commission of the European Communities, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Sean van Raepenbusch, a member of its Legal Service, acting as Agent, assisted by Claude Verbraeken and Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (Third Chamber),

composed of: F. Grévisse, President of the Chamber, J.C. Moitinho de Almeida and M. Zuleeg, Judges,

Advocate General: M. Darmon,

Registrar: D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 14 November 1991,

after hearing the Opinion of the Advocate General at the sitting on 10 December 1991,

gives the following

Judgment

1 By application lodged at the Registry of the Court of Justice on 21 December 1990, Mr Pitrone brought an appeal under Article 49 of the Statute of the Court of Justice of the EEC and the corresponding provisions of the Statutes of the Court of Justice of the ECSC and the EAEC against the judgment of 23 October 1990 by which the Court of First Instance dismissed his application for annulment of the decision appointing Mr Walker to the post of Head of Specialized Department XXI-01 within the Directorate-General for Customs Union and Indirect Taxation (DG XXI) of the Commission of the European Communities and for his own reinstatement as the person responsible for data processing within DG XXI.

2 In support of his appeal, the appellant puts forward four pleas alleging breaches of Articles 5, 7 and 86 to 89 of the Staff Regulations and the provisions of Annex IX thereto, a breach of Article 4 of the Staff Regulations, a breach of the principle of protection of legitimate expectations and failure to honour the undertaking given by his hierarchical superiors to return him to his former duties after completion of the duties temporarily assigned to him, and finally a breach of the second paragraph of Article 25 of the Staff Regulations.

3 In his first plea, the appellant criticizes the finding made by the Court of First Instance that, by memorandum No 6458 of 6 November 1986 from the Director-General of DG XXI assigning him certain tasks, he had in fact been assigned to another post and had his duties as person responsible for data processing, which he had previously performed within that directorate-general, withdrawn from him.

4 In this respect, he submits first that the said memorandum cannot be regarded as an appointment or transfer within the meaning of Article 7 of the Staff Regulations and relies, as proof that he retained his post in the data-processing section, on the fact that the memorandum was not included in Part E of his personal file, in which are filed, in accordance with the explanatory note drawn up by the Commission, "in chronological order starting with the appointment, all documents relating to the official' s career, such as promotions, transfers, grading, secondments, ...". He states further that the alleged assignment was not mentioned in the certificate delivered to him by the Commission on 16 November 1990, in which were listed the "successive assignments of Mr Pitrone to the various departments of the Commission". Finally, he observes that after the said memorandum had been issued on 6 November 1986, the Director of Directorate XXI/A/3 and the Director-General of DG XXI continued, as hierarchical superiors, to sign administrative documents relating to the data-processing sector which he himself had initialled.

5 The appellant contends further that the tasks assigned him by virtue of the said memorandum of 6 November 1986 came under the Combined Nomenclature Directorate XXI/A/1. If from that date all responsibility in the data-processing sector had been withdrawn from the appellant, it would have been necessary to transfer him to that directorate.

6 Finally, the appellant maintains that for the period from 11 November 1987 to 31 October 1988, in other words before his transfer to the division for "relations with State-trading countries in Europe", he had suffered enforced idleness, contrary to Articles 5, 7, 86 to 89 and Annex IX of the Staff Regulations.

7 In his second plea, the appellant argues that the appointment on 11 November 1987 of Mr Walker, a temporary employee, to the post of Head of Specialized Department XXI-01 was contrary to Article 4 of the Staff Regulations, since at that date he himself legally occupied that post.

8 In his third plea, the appellant maintains that the Court of First Instance was wrong in rejecting his argument of a breach of the principle of protection of legitimate expectations and failure to honour the undertaking made by his superiors to return him to his former duties after completion of the tasks temporarily assigned to him. In the appellant' s opinion it followed, implicitly but clearly, from memorandum No 6458 of 6 November 1986 that he was to resume all his responsibilities once the tasks thus entrusted to him had been completed.

9 In his fourth plea, the appellant argues that, assuming that memorandum No 6458 was a decision withdrawing administrative responsibility for the data-processing sector from him, it did not state the grounds on which it was based and was thus in breach of the second paragraph of Article 25 of the Staff Regulations.

10 Reference is made to the Report for the Hearing for a fuller account of the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

11 In order to challenge the judgment of the Court of First Instance dismissing his application for annulment of Mr Walker' s appointment to the post of Head of Specialized Department XXI-01, Mr Pitrone argues in essence that the appointment was unlawful on the grounds that on the date when it was made the post was not vacant, since he still occupied it.

14 Any irregularities which might taint the decisions whose effect was to terminate Mr Pitrone' s responsibilities as person responsible for data processing, and the failure to fulfil the promise allegedly made to him to return him to that post, do not affect the validity of the contested appointment of Mr Walker to a different post.

15 In those circumstances, the pleas alleging that the Court of First Instance was wrong in its assessment of the decision contained in the aforesaid memorandum of 6 November 1986, the pleas alleging breaches of rights under the Staff Regulations, of the principle of protection of legitimate expectations and of undertakings made by Mr Pitrone' s hierarchical superiors, and consequently the pleas concerning breaches of Articles 4, 5, 7, 25 (second paragraph) and 86 to 89 of the Staff Regulations and the provisions of Annex IX thereto are invalid.

16 It follows from the above considerations that the appeal must be dismissed.

Costs

17 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Under Article 122 of those Rules, Article 70 does not apply to appeals brought by officials or other servants of the institutions. Since Mr Pitrone has failed in his submissions, he must be ordered to pay the costs of the present appeal.

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Dismisses the appeal;

2. Orders the appellant to pay the costs.