1.

Common Customs Tariff,

2.

Economic tariff questions,

3.

Value for customs purposes and computer processing,

4.

Tariff questions in connection with agreements.

1.

Movement of goods procedures and coordination of agricultural questions,

2.

Origin of goods,

3.

General customs legislation and prevention and repression of fraud,

4.

Customs procedures with economic impact and general matters.

“(1)

Before filling a vacant post in an institution, the appointing authority shall first consider:

and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests ...

(2)

A procedure other than the competition procedure may be adopted by the appointing authority for the recruitment of Grade A 1 or A 2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications.”

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.

In a case which is now quite old the Court held that the use of the term “whether” in Article 29 of the Staff Regulations “clearly indicates that the appointing authority is ... merely bound to consider in each case whether [promotion or transfer] may result in the appointment of an official of the highest standard of ability, efficiency and integrity”. It went on to say that “in so considering the appointing authority must take into account both the particular requirements of the post to be filled, viewed within the general framework of the departments, and the available officials”. ( 3 ) In that case the Court held that the Commission was not required to organize an internal competition.

However the Court has repeatedly held that “the presence of several persons having the qualifications for promotion or transfer within the institutions may lead the appointing authority to conclude that the interests of the service and the impartiality of recruitment render an internal competition desirable”. ( 4 )

Even where only one candidate was suitable for promotion the Court has held that “the appointing authority, since it has available for consideration only one candidate suitable for promotion, may have all the more reason for holding an internal competition since it may rightly consider that it does not have a sufficiently wide choice to ensure recruitment in accordance as far as possible with the requirements of the post to be filled”. ( 5 )

However, on 5 December 1974 the Court (First Chamber) held that:

“Article 29, which forms part of the chapter in the Staff Regulations devoted to recruitment, covers the various means of filling a vacant post.

It lays down, for this purpose, that examination shall be made in order of preference, first of the possibilities of filling the post by promotion or transfer within the institution where the vacancy has occurred, next of the possibility of holding competitions internal to that institution, and, thirdly, of applications for transfer made by officials of other institutions”. ( 6 ) (emphasis added).

Consequently the interests of the service do not require recourse to what is only a “possibility”. In this regard the appointing authority has a wide discretion which may not be criticized except on grounds of a manifest error of fact or of law or for misuse of powers.

The Court has recognized that when comparing the candidates' merits the appointing authority has a wide discretion and that “ its assessment as to whether a candidate fulfills the conditions of eligibility required by the vacancy notice may be questioned only in the event of manifest error”. ( 7 )

The papers before the Court do not reveal any error of that kind.

The vacancy notice contained very precise terms which at first caused the Director General to reject the three applications which had been submitted, including Mr Casella's. However, the Director General later changed his mind and was able properly to consider that Mr Casella's appointment would be in the interest of the service.

Mr Casella's appointment was indeed made in difficult circumstances but its purpose was to fill the post declared vacant. Once that was done it was unnecessary to organize an internal competition and the fact that Mr Giannini could not apply for the vacant post is the result of the proper application af Article 29 and does not constitute a misuse of powers.

In the Ranch judgment of 31 March 1965 ([1965] ECR 135) the Court (Second Chamber) held that any persons who at the time when internal competitions (Article 29 (1) (b)) are initiated are properly employed by the institution may take part in such competitions, whatever the legal nature of the obligation binding them to the institution. However, the Court did not extend that principle to either the promotion/transfer stage referred to in Article 29 (1) (a) or the transfer stage referred to in Article 29 (1) (c) because that would have been manifestly contrary to the Staff Regulations.

If in fact the promotion/transfer stage were to be neglected or followed merely for formality's sake there would no longer be any distinction between the Staff Regulations of Officials and the Conditions of Employment of Other Servants as regards career development.

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.

I should observe in this regard that when he was engaged in 1978 as a temporary servant the Director General for Personnel especially drew his attention to the uncertain nature of his appointment and to the fact that it was necessary to pass an open (external) competition in order to be established.

The conduct of the Commission, which is moreover justified by the interests of sound administration, cannot constitute a failure to fulfil its obligation to assist the applicant which derives from Article 24 of the Staff Regulations. ( 8 ) The duty to look after his wellbeing, which the applicant contends was disregarded, cannot be construed as a duty on the part of the Commission to establish him in order to enable him to perform certain duties, in utter disregard of the rules contained in the Staff Regulations. The assurances gives to him could not have created any legal certainty. Faced with facts which in some ways were not unlike this case the Court has held that the organization of an internal competition for the sole purpose of remedying the anomalous administrative status of a specific official and of appointing that same official to the post declared vacant is contrary to the aims of any recruitment procedure and thus constitutes a misuse of powers. ( 9 )

If the applicant had been engaged to fill temporarily a permanent post as referred to in Article 2 (b) of the Conditions of Employment of Other Servants of the European Communities he could not have been engaged for more than two years and his contract could not have been renewed for a period of more than one year. According to the second paragraph of Article 8 of the Conditions, “at the end of that time they [temporary staff] shall no longer be employed as temporary staff. On the expiry of their contracts such servants may be assigned to established posts in the institution only if they are appointed as officials in accordance with the Staff Regulations”, that is to say on condition that they pass an open (external) competition or are appointed as officials under the procedure laid down in Article 29 (2).

The applicant occupies a temporary post; he remains under a contract for an indefinite period and there is nothing to prevent that contract from being regularly renewed until he reaches retirement age, provided that the post which he occupies remains a temporary one and he is considered indispensable in that post.

I understand his concern to have legal certainty. However, in that regard he ought to have entered one of the two open competitions based on qualifications and tests for customs specialists which were announced in the Official Journal of the European Communities — Competition COM/A/184 (Official Journal C 277 of 6 November 1979, p. 7) and Competition COM/A/326 (Official Journal C 233 of 12 September 1981, p. 25). The age-limit for those competitions did not apply to candidates who, on the date by which applications had to be submitted, had been an official or.a servant of the European Communities for at least one year. The applicant's situation is no different from that of other temporary servants.

Therefore my opinion is that the application should be dismissed and the parties should bear their own costs.