Report for the Hearing in Case C-378/90
I — Facts and procedure in the Court of First Instance
According to the judgment of the Court of First Instance of 23 October 1990 in Case T-46/89 Antonino Pitrone v Commission [1990] ECR II-577,
‘1. On 1 January 1973, Mr Pitrone was appointed a principal administrator with the Commission after having been successful in Open Competition COM/A/78. As from 6 February 1984, Mr Pitrone assumed responsibility for the data processing work of the Customs Union Service under the direct responsibility of the Director of Directorate A, Mr Chumas. On 20 February 1984, Mr Pitrone was appointed “Information Systems Manager”, with special responsibility for the data processing work of the Customs Union Service. In November 1984 the Commission submitted to the Council a communication on the coordinated development of computerized administrative procedures (“CD project”), and on 20 November 1984 Mr Pitrone was appointed coordinator of that project. 2. On 15 November 1985 Mr Chumas submitted to the Project Management Board of the CD project a document (CD/PMB/85/No 1) in which he declared that Mr Pitrone was the person qualified for the role of both project coordinator and permanent secretary of the CD Board; he added that it would be necessary nevertheless to recruit a team leader with technical qualifications, a computer analyst. 3. On 29 November 1985, the Director-General of the Customs Union Service set out, for the purpose of transmission to the various national customs administrations, the job description for the post of Technical Manager of the CD project, for which the Commission proposed to recruit a temporary employee. The job description indicated inter alia that the person concerned was to work “in cooperation with the Project Coordinator, with overall responsibility for the CD project”. 4. On 14 and 24 March 1986 Selection Group No 6 T/85 interviewed the candidates for the post of Technical Manager of the CD project. Its conclusion was to place Mr den Dekker and Mr Walker ex aequo, with “a slight preference for Mr Walker, whose personality seems more energetic”. 5. On 23 April 1986, the Commission decided to establish DG XXI — Directorate-General for Customs Union and Indirect Taxation. 6. Mr Walker was recruited, with effect from 1 July 1986, as a temporary employee in Grade A 4 on a five-year contract as Technical Manager of the CD project. At the time of his recruitment, Mr Walker was, as “Assistant Secretary” (a post comparable to A 3 grade), responsible for the development of the new system of computerized customs declarations in the United Kingdom and managed a staff of about 300 persons. 7. Mr Walker was assigned to the data-processing section of Division A 3, under the responsibility of Mr Pitrone. During the months which followed it became apparent that the separation of functions between the applicant and Mr Walker was not satisfactory, since those functions overlapped. 8. In November 1986 DG XXI was obliged, as a matter of urgency, to prepare and secure the adoption of the legislation necessary for the implementation of the Harmonised System, the Combined Nomenclature and the Integrated Customs Tariff of the European Communities (Taric), which was to enter into force on 1 January 1988. Mr Chumas suggested to the applicant that he should take on the job of coordinating and overseeing the adoption of that legislation. The applicant accepted the new tasks after asking for and obtaining an express statement that he would only be “temporarily” responsible for them. By memorandum No 6458 of 6 November 1986, Mr Klein, then Director-General of DG XXI, laid down the internal organizational arrangements necessary to accelerate preparation of the legislative programme in question and temporarily assigned the work to Mr Pitrone. The memorandum added that Mr Walker would temporarily assume Mr Pitrone's responsibility for the coordination of the CD project. Mr Strack was temporarily appointed Information Systems Manager in place of Mr Pitrone. 9. On 11 November 1987, following a change in the organizational structure of DG XXI, Mr Walker was made responsible, within the Directorate-General, for computerization and data processing under the direct authority of the Director-General. 10. The implementation of the Harmonized System, the Combined Nomenclature and the Taric was completed with the publication in the Official Journal of the European-Communities on 31 December 1987 of the various regulations relative thereto. 11. On 9 February, Mr Chumas sent a memorandum to the applicant in which he requested the latter to prepare a study on the future of the generalized system of preferences for the third decade. On the same day the applicant sent a memorandum to the Director-General of DG XXI, in which he reported on the completion of the tasks which had been assigned to him by memorandum No 6458 of 6 November 1986 and asked to return to his former post as CD Project Coordinator and Information Systems Manager. 12. On 11 February 1988, Mr Pitrone lodged two complaints through official channels: first, Complaint No 19/88, seeking annulment of Mr Walker's appointment as Head of Specialized Department XXI-01 and the reinstatement of the applicant as the person responsible for data processing and, secondly, Complaint No 18/88 seeking to obtain from the Commission true copies of all the documents concerning that appointment. 13. By memorandum No 1181 of 17 February 1988, Mr Vilar, the new Director-General, replied to the memorandum which the applicant had sent him on 9 February 1988. He rejected the request for reinstatement made by Mr Pitrone and informed him that the Directorate-General had undergone a reorganization in 1987 in the light of the role that data processing played in its work. Accordingly, a structure more appropriate to the needs of the directorate had been introduced and, in the restructuring, the post of CD Project Coordinator had been abolished. At the same time, an autonomous computerization unit had been created, and Mr Walker, a temporary employee with considerable computer experience, had been appointed head of the new specialized department. The memorandum added that in view of the fact that Mr Pitrone wished to be transferred to DG I, he had been assigned tasks which, while important, would permit his transfer to DG I without causing organizational problems in DG XXI. 14. In a second memorandum to the applicant of 16 May 1988, the Director-General emphasized that the reorganization of DG XXI, approved by the Commission in November 1987, reflected significant changes in its data processing work and that in order to meet the requirements of the new situation it had been necessary, in that sphere, to establish a clear structure and obtain staff with a high level of data processing experience. 15. On 16 May 1988, Mr Pitrone lodged a complaint through official channels against the Director-General's memorandum No 1181 of 17 February 1988, and requested reinstatement in his former position. 16. The applicant's staff reports for the period from 1 July 1983 to 30 June 1985 and from 1 July 1985 to 30 June 1987 make it clear that he was not fully trained in the field of computers. The report for the period 1983-85 states: “that the assignment of the applicant to the data processing sector produced a sort of ”cultural shock“, as he had to master an entirely new field of technical work with which he was unfamiliar”; “that he was not entirely familiar with this area”; similarly, the report for the period 1985-87 reveals: “that his talent could be better used in other areas”; “that he does not have the necessary experience for the operational implementation of large computer projects, but he is well qualified to resolve difficult policy problems”. 17. The two complaints of 11 February 1988 were rejected by the Commission on 7 July 1988. The complaint of 16 May 1988 was impliedly rejected.’
In these circumstances Mr Pitrone lodged an application on 7 October 1988, claiming that the Court of First Instance should:
i) declare the application admissible;
ii) declare it well founded; and therefore:
a) order the Commission to produce true copies of all the documents concerning the appointment of Mi-Maurice Walker to the post of Head of Specialized Department XXI-01;
b) annul the appointment of Mi-Maurice Walker to the post of Head of Specialized Department XXI-01;
c) order the reinstatement of the applicant as the person responsible for data processing in DG XXI;
d) order the defendant to pay all the costs of the proceedings.
The Commission contended that the Court of First Instance should:
i) dismiss the application in its entirety as unfounded;
ii) order the applicant to pay his own costs, in accordance with Articles 69(2) and 70 of the Rules of Procedure.
In support of his application to the Court of First Instance, Mr Pitrone put forward seven pleas alleging (1) a breach of Article 4 of the Staff Regulations and of the provisions of the Conditions of Employment of Other Servants of the European Communities concerning temporary employees; (2) a breach of Articles 5, 7 and 86 to 89 of the Staff Regulations and the provisions of Annex IX thereto; (3) a breach of the principle of protection of legitimate expectations and failure to fulfil the undertaking made by the applicant's superiors to reinstate him in his former post after completion of the urgent tasks which had been temporarily assigned to him; (4) deliberate deception of the applicant by Mr Chumas, Director of Directorate A and his direct hierarchical superior; (5) a breach of the second paragraph of Article 25 of the Staff Regulations; (6) an abuse of powers; and (7) a misuse of powers.
In his appeal Mr Pitrone challenges the reasoning which led the Court of First Instance to reject the first, second, third and fifth of the abovementioned pleas.
With reference to the first plea, alleging a breach of Article 4 of the Staff Regulations and of the provisions of the Conditions of Employment concerning temporary employees, the Court of First Instance stated in the contested judgment that:
‘26. As the Commission has quite rightly pointed out, Article 4 of the Staff Regulations applies only to posts occupied by officials of the European Communities and not to those occupied by temporary staff. Article 10 of the Conditions of Employment states that only Article 5(1), (2) and (4) and Article 7 of the Staff Regulations are to apply by analogy. 27. Moreover, the applicant is wrong to maintain that he continued to occupy the post in question, in view of the fact that by virtue of memorandum No 6458 of 6 November 1986 from the Director-General of DG XXI he was assigned, albeit temporarily, to another post. The fact that the posting was on a temporary basis in no way means that he retained his former post. What is more, the applicant never held the post of Head of Specialized Department XXI-01, but that of the person responsible for data processing in DG XXI, as he admits in his reply. 28. In the second place, the applicant observes that in relation to the designation of Mr Walker the Commission used the word “appointment”, whereas the Conditions of Employment nowhere use that term, but instead use the words “engagement” or “assignment”. Consequently, he considers the decision making that “appointment” null and void for breach of procedure. 29. In that connection it is sufficient to observe that the use of the word “appointment” instead of “assignment” or “engagement” as regards the designation of Mr Walker cannot have any significance, since Article 7 of the Staff Regulations, which is applicable to other staff by virtue of Article 10 of the Conditions of Employment, states that assignment is to be by appointment or transfer. 30. It follows from the foregoing that the first plea cannot be upheld.’
On the second plea, alleging a breach of Articles 5, 7 and 86 to 89 of the Staff Regulations and the provisions of Annex IX thereto, in that the Commission's refusal to reinstate Mr Pitrone in his former position amounted to a disguised disciplinary measure, the Court of First Instance stated in the contested judgment that:
‘32. The Court of Justice has consistently held that the Community institutions have a broad discretion to organize their departments to suit the tasks entrusted to them and for those purposes to assign staff available to them in the light of such tasks, on condition however that the staff is assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post (Case 69/83 Lux v Court of Auditors [1984] ECR 2447; Case 19/87 Hecq v Commission [1988] ECR 1681). Such a discretion is indispensable in order to achieve effective organization of work and to adapt the organization to varying needs (Case 263/81 List v Commission [1983] ECR 103). 33. As the defendant observes, while the Staff Regulations seek to ensure that an official retains the grade obtained and a post corresponding to that grade, they do not give him a right to any particular post, but instead leave to the appointing authority the power to assign officials in the interests of the service to the various posts which correspond to their grade (Case 21/68 Huybrechts v Commission [1969] ECR 85, and Case 46/69 Reinarz v Commission [1970] ECR 275). 34. Furthermore, the rule that the post must correspond to the grade, set out in particular in Article 7 of the Staff Regulations, involves, in the event of a change of the duties of an official, a comparison between his present duties and his grade and not between his present and previous duties (Joined Cases 33/79 and 75/79 Kühner v Commission [1980] ECR 1677). 35. In addition, for a measure to reorganize departments to affect adversely the statutory rights of an official, it is not sufficient that it should bring about a change or even any particular diminution in the official's responsibilities; it is necessary that, taken together, his residual responsibilities should fall clearly short of those corresponding to his grade and post, taking account of their character, their importance and their scope (Case 66/75 Macevicius v Parliament [1976] ECR 593, and Case 19/87 Hecq v Commission, cited above). 36. In the light of those considerations, it must be concluded that the decision appointing Mr Walker to the post of Head of Specialized Department XXI-01 was taken by the Commission within the limits of its discretion in the organization of its departments, having regard to their needs in the area of data processing and Mr Walker's background. 37. The question whether the duties that the Commission assigned to the applicant after he ceased to be head of the CD project are duties corresponding to his grade in the hierarchy is a separate one. However, as the applicant has not asked the Court to rule on the point, since he seeks only the annulment of the appointment of Mr Walker and reinstatement in his former post, the Court considers that it is not necessary to examine that question. 38. It follows from the foregoing that the second plea must be rejected.’
On the third plea, alleging a breach of the principle of protection of legitimate expectations and failure to fulfil the undertaking made by Mr Pitrone's superiors to reinstate him in his former post after completion of the urgent tasks which had been temporarily assigned to him, the Court of First Instance noted that:
‘42. An official may not plead a breach of the principle of the protection of legitimate expectations unless the administration has given him precise assurances (Case T-123/89 Chomel v Commission [1990] ECR II-131). 43. In the present case, examination of the terms of the Director-General's memorandum of 6 November 1986 does not permit the conclusion that it could constitute a precise assurance that the applicant could return to his former post. 44. Furthermore, the Court considers that the wide discretion that the Community institutions have in the organization of their departments means that a measure reorganizing those departments cannot in itself be regarded as a breach of legitimate expectations of the officials concerned. The circumstances referred to by the applicant do not permit the Tribunal to depart in the present case from that fundamental consideration. 45. It follows from the foregoing that the third submission cannot be upheld.’
On the fifth plea, alleging a breach of the second paragraph of Article 25 of the Staff Regulations by reason of the failure to state the grounds for the decision abruptly to deprive Mr Pitrone of administrative responsibility for the data processing sector, the Court of First Instance held that:
‘51. It is clear from an examination of the documents in the case that it was by a memorandum of 6 November 1986 that the Director- General withdrew from the applicant administrative responsibility for the data-processing sector. Since he did not make any complaint against that decision within the following three months, the applicant has not observed the procedure provided for in Articles 90 and 91 of the Staff Regulations. Consequently, he cannot, in support of the present application, plead an alleged irregularity which he failed to challenge in good time. 52. It follows from the foregoing that the fifth plea must be rejected as inadmissible.’
II — Subject matter of the appeal and forms of order sought
In an appeal lodged with the Court Registry on 21 December 1990 Mr Antonino Pitrone challenged the abovementioned judgment of the Court of First Instance, notified to him on 23 October 1990, on the grounds that it was in breach of Community law.
Mr Pitrone claims that the Court of Justice should:
i) declare the appeal admissible;
ii) declare it well founded;
iii) declare that memorandum No 6458 of 6 November 1986 from Mr Klein to the Heads of Directorates XXI/A and B does not constitute an assignment of the appellant to a new post under Article 7(1) of the Staff Regulations;
iv) declare that the Commission has failed to comply with the undertaking to reinstate the appellant in the performance of all his duties after completion of the urgent tasks which had been temporarily assigned to him;
v) declare that administrative responsibility for data processing was abruptly withdrawn from Mr Pitrone on 11 November 1987 by the appointment of Mr Walker as Head of Specialized Department XXI-OI (computerization and data processing);
vi) declare that the grounds on which the said responsibility was abruptly withdrawn from Mr Pitrone were not stated, contrary to the second paragraph of Article 25 of the Staff Regulations;
vii) consequently, set aside the judgment of the Court of First Instance of the European Communities of 23 October 1990;
viii) order the Commission to produce true copies of all documents relating to the appointment of Maurice Walker to the post of Head of Specialized Department XXI-01;
ix) annul the appointment of Maurice Walker to the post of Head of Specialized Department XXI-01;
x) order the reinstatement of the appellant as the person in charge of data processing in Directorate-General XXI;
xi) order the respondent to pay all the costs at first instance and on appeal.
The Commission contends that the Court should :
i) declare the appeal inadmissible, or alternatively unfounded;
ii) order the appellant to pay the costs.
III — Pleas in law and arguments of the parties
(a) Admissibility
The Commission observes to begin with that the appeal is more limited in scope than the appellant's original application, in that of the seven pleas put forward in the application, only four are still relied on:
1) a breach of Article 4 of the Staff Regulations and of the provisions of the Conditions of Employment of Other Servants of the European Communities, in that Mr Walker was appointed when there was no vacant post;
2) a breach of Articles 5, 7 and 86 to 89 of the Staff Regulations and Annex IX thereto, in that the Commission's refusal to reinstate the appellant in his former position amounted to a disguised disciplinary measure;
3) a breach of the principle of protection of legitimate expectations and failure to fulfil the undertaking made by the appellant's superiors to reinstate him in his former post after completion of the urgent tasks temporarily assigned to him;
4) a breach of the second paragraph of Article 25 of the Staff Regulations, in that the decision at issue did not state the grounds on which it was based.
The Commission considers that the appeal is manifestly inadmissible as regards the second and third of the above pleas. It argues in this respect that the appellant merely asserts that the Court of First Instance breached various provisions, but without setting out the reasons why he considers these provisions were breached and without challenging the reasoning followed by the Court of First Instance in dismissing these two pleas, namely the discretion enjoyed by the appointing authority to organize its departments and the lack of precise assurances on the part of the administration. Article 112 of the Court's Rules of Procedure, which provides that an appeal must contain ‘the pleas in law and legal arguments relied on’, has therefore not been complied with.
In the Commission's opinion, the appellant's appeal in actual fact consists merely of a challenge to certain points in the reasons given for the contested decision, relating to the rejection of the first and fourth of the above pleas.
(b) Substance
The arguments set out by Mr Pitrone in his appeal are intended to show that the Court of First Instance was wrong to consider that by virtue of memorandum No 6458 of 6 November 1986 addressed to the Heads of Directorates XXI/A and B of the Commission, firstly he had been assigned to another post under Article 7(1) of the Staff Regulations (paragraph 27 of the contested judgment), and secondly the Director-General had withdrawn from him administrative responsibility for data processing in DG XXI (paragraph 51 of the judgment).
In this respect Mr Pitrone argues as follows:
a) No formal decision of appointment or transfer addressed directly to the appellant was taken by the appointing authority either when memorandum No 6458 was drawn up or at a later date. Yet in paragraph 29 of the contested judgment the Court of First Instance observed that Article 7 of the Staff Regulations states that ‘assignment is to be by appointment or transfer’;
b) Memorandum No 6458 was not filed in part E of the official's personal file, whereas if that memorandum was to be regarded as an appointment or transfer of Mr Pitrone it should have been so filed. According to the explanatory note adopted by the Commission (Annex 3 to the appeal), there shall be filed in sub-file E, ‘Career’, in chronological order starting with the appointment, all documents relating to the official's career, such as promotions, transfers, grading, secondments, etc.;
c) Memorandum No 6458 was not mentioned in the certificate issued to the appellant by the Commission on 16 November 1990, listing Mr Pitrone's successive positions within the various departments of the Commission (Annexes 4 and 6 to the appeal), whereas if the said memorandum was to be regarded as a new assignment it should have been mentioned in that certificate;
d) Memorandum No 6458 did not state who had been given responsibility for data processing, which would have been the case if the Director-General had indeed withdrawn that responsibility from Mr Pitrone;
e) After memorandum No 6458 had been issued, the Head of Division XXI/A/3, the Director of Directorate XXI/A and the Director-General of DG XXI continued to sign, in their capacity as hierarchical superiors, administrative documents initialled by Mr Pitrone (Annexes 5a to 5g to the appeal);
f) The temporary urgent tasks assigned to Mr Pitrone by memorandum No 6458 belonged rather to the Combined Nomenclature Division XXI/A/1, to which he had however never been transferred. This circumstance confirms that Mr Pitrone was to resume all his responsibilities once the tasks assigned to him were completed, and that from the administrative point of view Mr Pitrone always retained his post as person responsible for data processing in DG XXI;
g) Finally, the appointment of Mr Walker on 11 November 1987, as person responsible for ‘computerisation and data processing’, XXI-01, to a post which was still legally occupied by Mr Pitrone meant that Mr Pitrone was abruptly deprived of his responsibilities in the data-processing sector and was not given a new posting until 1 November 1988, when he was assigned to the division for ‘relations with State-trading countries in Europe’ in DG I (Annex 4 to the appeal).
In its response the Commission makes observations only on the merits of the first and fourth of the pleas mentioned on page I-2384 above.
The Commission considers that the plea alleging a breach of Article 4 of the Staff Regulations and of the provisions of the Conditions of Employment must be rejected inasmuch as it attacks only one of the two reasons for which the Court of First Instance rejected that same plea. In paragraph 26 of its judgment that Court held that Article 4 of the Staff Regulations applied only to posts occupied by officials of the European Communities and not to those occupied by temporary staff. Mr Walker had been recruited as a temporary staff member, and there could thus be no question of a breach of Article 4 of the Staff Regulations. Only at a later point, in paragraph 27 of the contested judgment, did the Court of First Instance also note that the appellant had been assigned to another post by virtue of memorandum No 6458 and that Mr Walker had thus not been given duties which the applicant was still responsible for. In the Commission's opinion, therefore, even if the Court of Justice agreed with the appellant and considered that the Court of First Instance had been wrong to reject the plea for this latter reason, that would not be sufficient to quash the contested judgment.
The Commission goes on to argue that the plea is in any event unfounded. It considers that Mr Pitrone's argument, namely that memorandum No 6458 did not assign him to another post, raises a question of fact, not of law.
Finally, the Commission submits that the plea has no factual basis. Referring both to certain features of the factual situation before memorandum No 6458 and to the wording of that memorandum, the Commission makes the following points:
a) memorandum No 6458 dealing with changes in the distribution of work, by allocating Mr Pitrone temporary responsibility for the functions specified, in fact changed his duties without however depriving him of his post;
b) that alteration of Mr Pitrone's duties took place in identical manner to that used in the past for notifying him of his various duties, the only difference being that the memorandum of 6 November 1986 was signed by a director and not a director-general ;
c) that change of duties is within the appointing authority's normal power to organize the department. No administrative decision is involved, but only the communication of the change of duties to the person concerned and the departments in the same directorate-general or in other directorates-general which may have an interest in knowing the new distribution of functions. These changes were moreover noted on each occasion in the periodical reports signed by Mr Pitrone;
d) with respect to the specific duties assigned to Mr Pitrone by memorandum No 6458, it is not correct to consider that they were not within the province of the customs value and data-processing division. When those duties were assigned him, Mr Pitrone was made directly responsible to the Director of Directorate A, independently of the responsibilities which the various divisions in the directorate might cover at that time;
e) memorandum No 6458 was actually notified to Mr Pitrone, and his name moreover appears on the memorandum as one of the persons it was addressed to;
f) from the administrative point of view, Mr Pitrone did not keep his former post of person responsible for data processing, even if he still felt able to initial administrative decisions, after having been assigned his new duties. Memorandum No 6458 in fact assigned the two functions performed by Mr Pitrone to Mr Strack (‘Informatics System Manager’) and Mr Walker (‘CD Project Coordinator’) respectively;
g) memorandum No 6458 is included in Mr Pitrone's personal file. Contrary to the appellant's submissions, the explanatory note annexed to the appeal does not lay down an obligation to annex to the personal files of officials and employees all their assignments or transfers;
h) the certificate issued by the administration on 16 November 1990 should be corrected with reference to the period from 1 November 1984 to 31 October 1988, to take account of the amendment to the list of posts in DG XXI adopted by the Commission on 1 November 1987. The responsibilities of Division XXI/A/3, ‘value for customs purposes and data processing’, were amended with respect inter alia to data processing (Annex I). Administrative decisions of reassignment were taken with effect from 1 December 1987 for staff members who had changed department (Annex II); this was not the case of Mr Pitrone, who was still assigned precisely to the same division.
The Commission submits that there are thus no grounds for setting aside the contested judgment on the basis of the first plea in law.
With respect to the plea alleging a breach of the second paragraph of Article 25 of the Staff Regulations, the Commission points out that Mr Pitrone is thereby challenging the finding, in paragraph 51 of the contested judgment, that it is clear from an examination of the documents in the case that administrative responsibility for the data-processing sector was withdrawn from him by memorandum No 6458. In the Commission's opinion, this dispute relates to the assessment of facts, which is not subject to review by the Court of Justice on appeal.
It also notes that it is evident from an examination of the documents in the case that Mr Pitrone had ceased to perform the administrative duties in question for one year when Mr Walker was appointed Head of Specialized Department XXI-01.
In the Commission's opinion, the arguments put forward by Mr Pitrone to overturn the contested judgment in this respect must also be rejected.
J. C. Moitinho de Almeida
Judge-Rapporteur
1 Language of the case: French.