61981CJ0105_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 105/81
DOMINIQUE NOELLE OBERTHUR, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 30 BATTICELAAN, ZAVENTEM, BELGIUM, ASSISTED AND REPRESENTED BY MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE, 34B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JACQUES DELMOLY, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY DANIEL JACOB, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF : THE DECISION ADOPTED BY MR LE GOY, APPEAL ASSESSOR, CONCERNING THE APPLICANT ' S PERIODIC REPORT FOR THE PERIOD FROM L JULY 1975 TO 30 JUNE 1977 ; THE FOURTH VERSION OF THE APPLICANT ' S PERIODIC REPORT FOR THE PERIOD FROM 1 JULY 1975 TO 30 JUNE 1977 ; AND THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978 TRANSFERRING THE APPLICANT TO DIRECTORATE GENERAL VII WITH EFFECT FROM 1 DECEMBER 1976,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 APRIL 1981, MISS OBERTHUR, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION PURSUANT TO ARTICLE 179 OF THE EEC TREATY AND ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS FOR THE ANNULMENT OF HER PERIODIC REPORT FOR THE PERIOD FROM 1 JULY 1975 TO 30 JUNE 1977, THE APPEAL ASSESSOR ' S DECISION CONCERNING THAT REPORT AND THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978 OF THE DIRECTOR FOR PERSONNEL TRANSFERRING THE APPLICANT TO DIRECTORATE GENERAL VII WITH EFFECT FROM 1 DECEMBER 1976 .
2 MISS OBERTHUR, WHO WAS ASSIGNED TO DIRECTORATE GENERAL VII FROM 1 JUNE 1972 TO 1 JUNE 1975, WAS SUBSEQUENTLY ASSIGNED TEMPORARILY TO THE ENVIRONMENT AND CONSUMER PROTECTION DEPARTMENT AND TO THE EUROPEAN SOCIAL FUND IN DIRECTORATE GENERAL V . BY DECISION OF 29 NOVEMBER 1976, SHE WAS ASSIGNED ONCE AGAIN TO DIRECTORATE GENERAL VII ( TRANSPORT ), SECRETARIAT OF THE DIRECTOR GENERAL, WITH EFFECT FROM 1 DECEMBER 1976, ALTHOUGH SHE CONTINUED TO WORK IN DIRECTORATE GENERAL V UNTIL APRIL 1977 WHEN SHE IN FACT TOOK UP HER DUTIES IN DIRECTORATE GENERAL VII . SINCE THE DECISION OF 29 NOVEMBER 1976 WAS VITIATED BY CERTAIN DEFECTS, A FRESH DECISION WAS ADOPTED ON 13 DECEMBER 1978 ASSIGNING THE APPLICANT TO DIRECTORATE GENERAL VII WITH RETROACTIVE EFFECT .
3 AS REGARDS HER PERIODIC REPORT, THE APPLICANT PUTS FORWARD THREE SUBMISSIONS BASED ON THE FOLLOWING FACTORS : THE LACK OF COMPETENCE OF DIRECTORATE GENERAL VII AND, CONSEQUENTLY, OF AN ASSESSOR THEREFROM ; THE MANNER IN WHICH THE REPORT WAS COMPILED ; THE FACT THAT IT WAS BASED ON INCORRECT OR INCOMPLETE FACTUAL CONSIDERATIONS ; THE FACT THAT IT WAS DRAFTED IN ENGLISH WHEREAS, ACCORDING TO THE GUIDE TO STAFF REPORTS ADOPTED BY THE DEFENDANT, IT SHOULD BE DRAFTED IN THE MOTHER TONGUE OR THE HABITUAL LANGUAGE OF THE OFFICIAL .
4 AS REGARDS THE DECISION OF THE APPEAL ASSESSOR, THE APPLICANT ARGUES THAT HE WAS NOT COMPETENT TO ACT AS APPEAL ASSESSOR SINCE DIRECTORATE GENERAL VII WAS ITSELF NOT COMPETENT TO DRAW UP HER PERIODIC REPORT . SHE ALSO OBSERVES THAT THE JOINT COMMITTEE ON STAFF REPORTS DID NOT EXPRESS AN OPINION ON THE
CONTENTS OF THE PERIODIC REPORT IN QUESTION AND THAT THE APPEAL ASSESSOR THEREFORE ADOPTED HIS DECISION WITHOUT TAKING THAT FACTOR INTO ACCOUNT, WHEREAS HE SHOULD HAVE REFERRED THE MATTER TO THE ADMINISTRATION TO ENABLE IT TO TAKE STEPS IN ORDER TO PERMIT THE JOINT COMMITTEE TO CARRY OUT ITS DUTIES .
5 AS REGARDS THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978 TRANSFERRING THE APPLICANT TO DIRECTORATE GENERAL VII, SHE MAINTAINS THAT THE FIRST DECISION WAS VITIATED BY CERTAIN ERRORS AND THAT THE SECOND DECISION, WHICH HAD RETROACTIVE EFFECT, WAS INVALID ON THE GROUND THAT IT WAS PREJUDICIAL TO HER INTERESTS . THE DECISION OF 13 DECEMBER 1978, REPLACING THAT OF 29 NOVEMBER 1976, WAS ADOPTED IN ORDER TO PERMIT THE APPLICANT TO BE ASSESSED BY AN ASSESSOR FROM DIRECTORATE GENERAL VII RATHER THAN BY AN ASSESSOR FROM DIRECTORATE GENERAL V, WHICH, ACCORDING TO HER, WOULD HAVE BEEN THE COMPETENT DIRECTORATE GENERAL IF THE SECOND DECISION HAD NOT BEEN TAKEN .
THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978
6 IT IS NECESSARY TO CONSIDER FIRST THE CLAIM FOR ANNULMENT OF THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978, WHICH MAY AFFECT THE OTHER CLAIMS CONTAINED IN THE APPLICATION .
7 BY DECISION OF 29 NOVEMBER 1976, THE DIRECTOR FOR PERSONNEL TOOK THE FOLLOWING DECISION :
' ' 1 . IN THE INTERESTS OF THE SERVICE, MISS DOMINIQUE OBERTHUR ( PERSONNEL NO 11 437 ), A TEMPORARY SERVANT IN GRADE B 3, AND THE POST WHICH SHE OCCUPIES IN CAREER BRACKET B 2-B 3 ARE HEREBY TRANSFERRED AS FOLLOWS :
FORMER ASSIGNMENT : DIRECTORATE GENERAL V, ( DIRECTORATE B ( EMPLOYMENT AND VOCATIONAL TRAINING )
NEW ASSIGNMENT : DIRECTORATE GENERAL VII ( TRANSPORT ), SECRETARIAT OF THE DIRECTOR GENERAL .
2.THIS DECISION SHALL TAKE EFFECT ON 1 DECEMBER 1976 .
3.THIS DECISION TERMINATES THE TEMPORARY ASSIGNMENT NOTIFIED ON 1 OCTOBER 1975 ' ' .
8 THAT DECISION WAS VITIATED BY TWO ERRORS . THE FIRST ERROR WAS THE DESCRIPTION OF THE APPLICANT, WHO WAS AN OFFICIAL, AS A TEMPORARY SERVANT . THE SECOND ERROR WAS THE DESCRIPTION OF THE APPLICANT ' S FORMER ASSIGNMENT, WHICH WAS DIRECTORATE GENERAL V, DIRECTORATE B ( EUROPEAN SOCIAL FUND ), AS ' ' DIRECTORATE GENERAL V, DIRECTORATE B ( EMPLOYMENT AND VOCATIONAL TRAINING ) ' ' .
9 HOWEVER, THE APPLICANT FAILED TO CHALLENGE THE VALIDITY OF THE DECISION WITHIN THE PERIOD PRESCRIBED BY THE STAFF REGULATIONS AND HER APPLICATION FOR ANNULMENT IS THEREFORE INADMISSIBLE . EVEN IF HER APPLICATION WERE ADMISSIBLE, IT WOULD BE UNFOUNDED . THE CONTESTED DECISION IDENTIFIED THE APPLICANT BY HER SURNAME AND FORENAME AND BY HER PERSONNEL NUMBER . HER NEW ASSIGNMENT AND THE DATE ON WHICH IT WAS TO TAKE EFFECT WERE CLEARLY SPECIFIED . IT FOLLOWS THAT THE APPLICANT COULD NOT HAVE BEEN IN ANY DOUBT AS REGARDS THE EFFECT OF THE DECISION AND THAT CONSEQUENTLY HER APPLICATION FOR ANNULMENT IS UNFOUNDED .
10 THE DIRECTOR FOR PERSONNEL ANNULLED AND REPLACED THE DECISION OF 29 NOVEMBER 1976 BY THE DECISION OF 13 DECEMBER 1978 . UNLIKE THE FIRST DECISION, THE SECOND DECISION CORRECTLY SPECIFIED THE APPLICANT ' S STATUS AND FORMER ASSIGNMENT ; ITS PURPOSE WAS MERELY TO RECTIFY THE ERRORS CONTAINED IN THE FIRST DECISION WHILST CONFIRMING THE EFFECTS THEREOF . IT FOLLOWS FROM THE CIRCUMSTANCES DESCRIBED ABOVE THAT, EVEN IN THE ABSENCE OF THE SECOND DECISION, THE APPLICANT WOULD STILL HAVE BEEN VALIDLY ASSIGNED TO DIRECTORATE GENERAL VII AND THAT, CONSEQUENTLY, SHE HAS NO INTEREST IN SEEKING THE ANNULMENT OF THAT DECISION . IN ANY EVENT, THE APPLICANT FAILED TO CHALLENGE IT WITHIN THE PERIOD PRESCRIBED BY THE STAFF REGULATIONS AND HER APPLICATION FOR ANNULMENT IS THEREFORE INADMISSIBLE .
11 THE APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978 MUST THEREFORE BE DISMISSED AS INADMISSIBLE AND, IN ANY EVENT, AS UNFOUNDED .
THE PERIODIC REPORT
12 THE APPLICANT ' S FIRST SUBMISSION IN SUPPORT OF HER APPLICATION FOR THE ANNULMENT OF HER PERIODIC REPORT IS THAT MR MUNRO, HER SUPERIOR IN DIRECTORATE GENERAL VII, WAS NOT COMPETENT TO COMPILE THE REPORT . THAT SUBMISSION IS BASED ON TWO FACTORS . IN THE FIRST PLACE, THE APPLICANT ARGUES
THAT, SINCE THE DECISIONS OF 29 NOVEMBER 1976 AND 13 DECEMBER 1978 ARE INVALID, SHE WAS ASSIGNED TO DIRECTORATE GENERAL V THROUGHOUT THE PERIOD OF ASSESSMENT, NAMELY FROM 1 JULY 1975 TO 30 JUNE 1977 . SECONDLY, SHE MAINTAINS THAT, EVEN IF SHE WAS ASSIGNED TO DIRECTORATE GENERAL VII AS FROM 1 DECEMBER 1976, THE PERIODIC REPORT SHOULD NOT HAVE BEEN COMPILED BY AN ASSESSOR FROM THAT DIRECTORATE GENERAL IN VIEW OF THE FACT THAT SHE DID NOT RETURN TO DIRECTORATE GENERAL VII UNTIL APRIL 1977 AND THEREFORE WORKED THERE FOR ONLY A LITTLE OVER TWO MONTHS DURING THE PERIOD OF ASSESSMENT .
13 AS REGARDS THE FIRST FACTOR, THE COURT NEED MERELY POINT OUT THAT FOR THE REASONS STATED ABOVE THE CONTESTED DECISIONS ARE NOT INVALID .
14 AS REGARDS THE SECOND FACTOR, IT IS APPARENT FROM THE GENERAL PROVISIONS FOR IMPLEMENTING ARTICLE 43 OF THE STAFF REGULATIONS ( HEREINAFTER REFERRED TO AS ' ' THE GENERAL PROVISIONS ' ' ) THAT, WHERE AN OFFICIAL WHO IS TO BE ASSESSED HAS MOVED FROM ONE DEPARTMENT TO ANOTHER DURING THE PERIOD OF ASSESSMENT, THE REPORT MUST, IF HE MOVED MORE THAN SIX MONTHS PREVIOUSLY, BE DRAWN UP BY HIS IMMEDIATE SUPERIOR AT THE TIME OF THE REPORT . THE APPLICANT WAS ASSIGNED TO DIRECTORATE GENERAL VII WITH EFFECT FROM 1 DECEMBER 1976, IN OTHER WORDS MORE THAN SIX MONTHS BEFORE THE END OF THE PERIOD OF ASSESSMENT . IT WAS THEREFORE PROPER FOR THE REPORT TO BE COMPILED BY MR MUNRO, HER SUPERIOR IN DIRECTORATE GENERAL VII, AND NOT BY AN ASSESSOR FROM DIRECTORATE GENERAL V .
15 THE APPLICANT MAINTAINS THAT THE REPORT IS INVALID ON THE GROUND THAT HER SUPERIOR IN DIRECTORATE GENERAL V WAS NOT CONSULTED IN ACCORDANCE WITH ARTICLE 4 OF THE GENERAL PROVISIONS . IT IS APPARENT FROM THE FILE, HOWEVER, THAT THE APPLICANT ' S SUPERIOR IN DIRECTORATE GENERAL V, MR WATHELET, WAS CONSULTED AND INDICATED THAT HE AGREED WITH THE REPORT . THE SAME IS TRUE OF MR VAN HEESEN, THE APPLICANT ' S IMMEDIATE SUPERIOR IN DIRECTORATE GENERAL VII .
16 THE APPLICANT ALSO ARGUES THAT HER PERIODIC REPORT IS NULL AND VOID BECAUSE IT WAS DRAWN UP IN ENGLISH, WHEREAS THE GUIDE TO STAFF REPORTS PROVIDES THAT THE FORM USED MUST BE IN THE MOTHER TONGUE OR MAIN LANGUAGE OF THE OFFICIAL
ASSESSED . DURING THE ORAL PROCEDURE, THE APPLICANT WITHDREW THIS SUBMISSION . ACCORDINGLY, THERE IS NO NEED TO CONSIDER IT .
17 SINCE THE SUBMISSIONS CONCERNING THE PERIODIC REPORT ARE UNFOUNDED, THE APPLICATION FOR ANNULMENT MUST BE DISMISSED .
REVIEW BY THE APPEAL ASSESSOR
18 AS REGARDS THE DECISION OF THE APPEAL ASSESSOR UPHOLDING THE PERIODIC REPORT COMPILED BY MR MUNRO, THE APPLICANT PUTS FORWARD THE FOLLOWING SUBMISSIONS :
1 . MR LE GOY WAS NOT THE COMPETENT APPEAL ASSESSOR SINCE DIRECTORATE GENERAL VII WAS NOT COMPETENT TO DRAW UP THE PERIODIC REPORT .
2.THE APPEAL ASSESSOR MAY NOT ADOPT A DECISION WITHOUT OBTAINING THE OPINION OF THE JOINT COMMITTEE ON STAFF REPORTS .
3.THE APPEAL ASSESSOR ' S DECISION WAS BASED ON FACTUAL INFORMATION WHICH WAS INCORRECT, INCORRECTLY INTERPRETED OR INCOMPLETE .
4.THE DECISION IS NULL AND VOID BECAUSE IT WAS NOT ADOPTED IN ACCORDANCE WITH ARTICLE 7 OF THE GUIDE TO STAFF REPORTS, ACCORDING TO WHICH THE APPEAL ASSESSOR MUST CONSULT THE ORIGINAL ASSESSOR, THE OFFICIAL ASSESSED, AND ANY OTHER PERSONS WHOM HE SEES FIT TO CONSULT .
19 AS REGARDS THE FIRST SUBMISSION, IT IS CLEAR FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE COMPETENT ASSESSOR AND APPEAL ASSESSOR ARE THOSE FROM DIRECTORATE GENERAL VII AND THAT, CONSEQUENTLY, THIS SUBMISSION IS UNFOUNDED .
20 IT SHOULD BE NOTED, MOREOVER, THAT BY LETTER OF 15 MAY 1979 THE APPLICANT WAS NOTIFIED BY MR PRATLEY, HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION, THAT IF SHE WISHED TO APPEAL THE APPEAL ASSESSOR WAS THE DIRECTOR GENERAL FOR TRANSPORT .
21 ON 23 MAY 1979, THE APPLICANT SENT A LONG LETTER TO MR LE GOY, DIRECTOR GENERAL FOR TRANSPORT, IN WHICH SHE TOOK FORMAL NOTE OF MR PRATLEY ' S STATEMENT CONCERNING THE IDENTITY OF THE APPEAL ASSESSOR .
22 BY LETTER OF 12 JUNE 1979, MR LE GOY ASKED THE APPLICANT WHETHER SHE HAD WRITTEN TO HIM IN HIS CAPACITY AS APPEAL ASSESSOR AND, IF SO, TO ARRANGE AN APPOINTMENT WITH HIM . IT IS CLEAR FROM THE EVIDENCE BEFORE THE COURT THAT AN APPOINTMENT WAS ARRANGED AND THAT ON 19 JUNE 1979 A MEETING TOOK PLACE BETWEEN THE APPLICANT AND MR LE GOY IN WHICH MR MUNRO TOOK PART . FOLLOWING THAT MEETING, THE APPLICANT ASKED FOR THE MATTER TO BE REFERRED TO THE JOINT COMMITTEE ON STAFF REPORTS .
23 IT APPEARS THAT BEFORE THE JOINT COMMITTEE THE APPLICANT ATTEMPTED TO CAST DOUBTS ON THE VALIDITY OF HER ASSESSMENT BY AN ASSESSOR FROM DIRECTORATE GENERAL VII . SINCE THE JOINT COMMITTEE WAS UNABLE TO EXPRESS AN OPINION ON THE MATTER, THE APPEAL ASSESSOR UPHELD THE PERIODIC REPORT .
24 THE GUIDE TO STAFF REPORTS DOES NOT SPECIFY THE PROCEDURE TO BE FOLLOWED IN CASES IN WHICH THE JOINT COMMITTEE DOES NOT EXPRESS AN OPINION ON A MATTER DULY REFERRED TO IT . THE GUIDE MAKES PROVISION FOR CASES IN WHICH THE JOINT COMMITTEE DOES NOT CONSIDER ITSELF OBLIGED TO ACCEPT THE OBSERVATIONS MADE BY THE OFFICIAL . IN SUCH A CASE, THE OPINION EXPRESSED IS MERELY ENTERED IN THE FILE .
25 WHEN THE JOINT COMMITTEE FOUND ITSELF UNABLE TO EXPRESS AN OPINION, THE APPEAL ASSESSOR WAS NOT OBLIGED TO REFRAIN FROM ADOPTING A DECISION UPHOLDING OR AMENDING THE REPORT . THE SUBMISSION BASED ON THE ABSENCE OF AN OPINION EXPRESSED BY THE JOINT COMMITTEE MUST THEREFORE BE REJECTED .
26 AS REGARDS THE SUBMISSION BASED ON ALLEGED ERRORS OF FACT, THE ERRORS IN QUESTION ARE THE OMISSION FROM THE REPORT OF THE COMMENTS MADE BY CERTAIN OFFICIALS AND THE INCORRECT APPRAISAL BY BOTH THE ASSESSOR AND THE APPEAL ASSESSOR OF THE APPLICANT ' S QUALITIES . THIS SUBMISSION CANNOT BE ACCEPTED . THE ASSESSOR IS NOT OBLIGED TO INCLUDE IN THE REPORT THE COMMENTS OF EVERY OFFICIAL
CONSULTED AND, AS FAR AS THE APPRAISAL OF THE APPLICANT ' S QUALITIES IS CONCERNED, IT IS NOT THE COURT ' S FUNCTION TO USURP THE ROLE OF THE ASSESSOR OR OF THE APPEAL ASSESSOR .
27 IN THE LIGHT OF ALL THOSE CONSIDERATIONS, THE APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .