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Document 61970CC0061
Opinion of Mr Advocate General Roemer delivered on 26 May 1971. # Gianfranco Vistosi v Commission of the European Communities. # Case 61-70.
Julkisasiamiehen ratkaisuehdotus Roemer 26 päivänä toukokuuta 1971.
Gianfranco Vistosi v. Euroopan yhteisöjen komissio.
Asia 61/70.
Julkisasiamiehen ratkaisuehdotus Roemer 26 päivänä toukokuuta 1971.
Gianfranco Vistosi v. Euroopan yhteisöjen komissio.
Asia 61/70.
ECLI identifier: ECLI:EU:C:1971:57
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 26 MAY 1971 ( 1 )
Mr. President,
Members of the Court,
The applicant in the case before the Court today entered the service of the Commission of the European Communies in 1958. At first an official in Category B, he was promoted to Grade A 6 on 1 April 1963. In October 1966 he was assigned to the Publications Division of the Joint Press and Information Department as an Italian language editor, replacing an official who had been appointed head of the New York office. The applicant remained in this post even after the merger of the executives, that is to say, after the Press and Information department had become the Directorate-General for Press and Information. It is not possible in order to define his functions to refer to a vacancy notice. But the periodic reports regularly issued in respect of the applicant do furnish important indications. Thus the periodic report relating to the period from 1 January 1966 to 30 June 1967 describes his main tasks as follows: ‘Editing in the Italian language: periodic and non-periodic publications’. The report covering the period from 1 July 1967 to 30 June 1969 defines the applicant's activity by adding ‘editing in the Italian language of periodic and non-periodic publications published by the division and/or the Rome office; revision of editorial texts; selection and preparation of information on Community activities’.
According to the undisputed allegations of the applicant, he was apparently for the most part concerned in editing the magazine ‘Comunita Europee’ which is published by the Commission's Rome office. His real duties were those of chief editor, although since July 1967 this publication no longer described him as such. In this capacity he was in particular required to participate in the monthly meetings of the editorial board. During 1970 there was a change in the department to which the applicant belonged. Another Italian official who previously belonged to the Spokesman's Group (that is to say, the group in charge of current information on events within the Commission) and who had been classified in Grade A 4 but who since 25 July 1969 had become Deputy Chief Executive Officer, in Grade A 3, in the Office of a Member of the Commission, was by decision of the Commission of 6 May 1970 after the dissolution of that Office appointed Italian language editor in the Publications Division of the Directorate-General for Press and Information. It is this official — assigned to Rome — who since 1 July 1970 has been concerned with editing the magazine ‘Comunita Europee’, whilst the applicant was no longer invited to the meetings of the editorial board and is no longer receiving the relevant documentation.
The applicant sees this as damaging his position. This is why on 7 July 1970 he wrote to the Director-General of the Directorate-General for Press and Information, protesting against his situation which he considered to be irregular. In particular he complained about the fact that he had not been entrusted with new tasks after his former duties with the editorial department of the before-mentioned magazine had come to an end and he asked that this situation be remedied in order to avoid his suffering non-material damage. On 13 July 1970 the applicant further made a formal complaint to the Commission of the European Communities in accordance with Article 90 of the Staff Regulations. In it he requested the annulment of the illegal procedure which forced him to abandon his duties without receiving equivalent duties in their stead.
Since he had not received a reply to his complaint, the applicant brought an action before the Court which was received at the Registry on 4 November 1970. In his application he seeks:
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the annulment of the implied refusal of his administrative complaint of 13 July 1970; |
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a declaration that the decision by which the Commission appointed another official as Italian language editor in the Publications Division of the Directorate-General for Press and Information is null and void; |
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the annulment of the decision by which the applicant was relieved of his duties. |
I shall now give my opinion on these facts and on these claims which the Commission considers inadmissible or at least unfounded.
I — As regards admissibility
Let us first examine the questions of admissibility to which the nature of the claims and the arguments of the Commission give rise. They will not keep us long, however.
1. |
This applies in particular to the last-mentioned head of claim, that is to say, the decision which changed the applicant's sphere of duties. In this respect one could think in terms of a purely internal act, not subject to legal action, involving the organization of the department to which the applicant belongs. But all things considered, such argumentation would not take into account as it ought to, the official's rights under the Staff Regulations which make it possible to determine whether there is an act adversely affecting him. Besides, we already have a case-law which says that to withdraw from an official one or more of the departments for which he was previously responsible may in certain circumstances amount to an infringement of his rights. (Case 16/67 [1968] ECR 293). Looked at from this point of view the admissibility of the application cannot therefore be questioned. |
2. |
As regards the head of claim in which the applicant contests the appointment of another official one wonders what interest he has in making such an application. In principle, measures of this kind can only be contested by officials who are themselves eligible for appointment. If they are not eligible they have no interest in bringing an action for naturally no official without personal grounds has the right to set in motion a general review of whether the requirements of the Staff Regulations have been observed. In this respect the present case might give rise to objections, for it is concerned with the filling of an A 4 post whilst the applicant is only classified in Grade A 6. His appointment can therefore only take place as the result of an internal competition, that is to say, after a preliminary consideration of the possibility of promotion or transfer within the institution as laid down by Article 29 of the Staff Regulations. Consequently, the applicant's chances of being appointed to the post in question are relatively small. This becomes still clearer if one bears in mind that after this official had temporarily carried out duties of a member of the staff in the Office of a Commissioner—with Grade A 3 — he had a prior claim to be assigned to a post corresponding to his initial grade, that is to say, to Grade A 4 and if moreover one considers that the applicant did not contest the ability of the official appointed (which in any event would hardly have been conceivable in view of the fact that the previous posting of this official had been to the Spokesman's Group). Nevertheless, I should not like to think in terms of inadmissibility of the second claim, although the applicant clearly had no chance of being appointed to the post in question instead of the official who was appointed. In the final analysis the decisive factor in this respect is that there is a close relationship between the appointment in question and the reduction in the duties initially entrusted to the applicant which, as we have seen, was properly made the subject of an application. The admissibility of the two claims therefore derives from their connexion and there is nothing to stand in the way of an examination of the arguments presented in support, that is to say, an examination of the substance of the case. |
II — As to the substance of the case
1. |
As regards the substance of the case we shall first consider the measure which altered the scope of the applicant's activities.
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2 |
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III — Summary
My opinion is therefore as follows: the application is admissible but all the claims formulated by the applicant must be rejected as unfounded. In the light of the outcome of this case the costs fall to be dealt with on the basis of Article 70 of the Rules of Procedure: the parties must bear their own costs.
( 1 ) Translated from the German.