61981CJ0207_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 207/81
KUNO DITTERICH, REPRESENTED BY MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCATE, CENTRE LOUVIGNY, 34B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JORN PIPKORN AND HENDRIK VAN LIER, MEMBERS OF ITS LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, PLATEAU DU KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE APPLICANT ' S PERIODIC REPORT FOR THE PERIOD 1 JULY 1975 TO 30 JUNE 1977 AND FOR DAMAGES FOR THE IRREGULARITIES AND DELAY IN THE DRAWING UP OF THAT REPORT AND, IN THE ALTERNATIVE, FOR AN ORDER REQUIRING THE DEFENDANT TO PRODUCE THE WHOLE FILE RELATING TO THE PERIODIC REPORT FOR THE PERIOD 1975 TO 1977 AND ALSO FOR AN ORDER REQUIRING VARIOUS FACTS SET OUT IN THE APPLICATION TO BE ESTABLISHED BY THE EVIDENCE OF WITNESSES,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 JULY 1981 KUNO DITTERICH, AN OFFICIAL IN THE SCIENTIFIC SERVICE IN GRADE A 5, STEP 8, AT THE JOINT RESEARCH CENTRE AT ISPRA, BROUGHT AN ACTION SEEKING :
1 . THE ANNULMENT OF THE APPLICANT ' S PERIODIC REPORT DRAWN UP ON 20 DECEMBER 1979 FOR THE PERIOD 1 JULY 1975 TO 30 JUNE 1977 AND OF THE
APPEAL ASSESSOR ' S DECISION DATED 22 OCTOBER 1980 ADOPTING THE DEFINITIVE VERSION OF THAT REPORT . IN HIS REPLY THE APPLICANT AMENDS HIS CLAIMS, AS HE RESERVED THE RIGHT TO DO IN HIS APPLICATION, TO INCLUDE A CLAIM FOR THE ANNULMENT OF THE DECISION OF 11 AUGUST 1981 BY WHICH THE COMMISSION EXPRESSLY REJECTED HIS COMPLAINT OF 1 DECEMBER 1980 AFTER THIS ACTION HAD BEEN BROUGHT .
2 . AN ORDER REQUIRING THE COMMISSION TO PAY HIM BFR 500 000 AS COMPENSATION FOR THE MATERIAL AND NON-MATERIAL DAMAGE WHICH THAT PERIODIC REPORT CAUSED HIM . IN HIS REPLY, HOWEVER, THE APPLICANT STATES THAT HE LEAVES IT TO THE COURT TO ASSESS THE AMOUNT OF DAMAGES WHICH HE MAY CLAIM .
3 . IN THE ALTERNATIVE, AN ORDER THAT THE COMMISSION MUST PRODUCE THE WHOLE FILE CONCERNING THE REPORT IN QUESTION AND THAT THE ACCURACY OF THE COMMENTS MADE IN THAT REPORT MUST BE VERIFIED BY THE EVIDENCE OF WITNESSES .
2 THE FILE ON THE CASE SHOWS THAT THE APPLICANT WAS ASSIGNED TO THE CHEMISTRY DIVISION OF DEPARTMENT C OF THE JOINT RESEARCH CENTRE AT ISPRA UNTIL 1 JANUARY 1977 AT WHICH TIME HE WAS ASSIGNED TO DEPARTMENT A .
3 ON 20 DECEMBER 1979 A PERIODIC REPORT ON MR DITTERICH FOR THE PERIOD 1 JULY 1975 TO 30 JUNE 1977 WAS DRAWN UP BY MR BISHOP, THE HEAD OF DEPARTMENT C AT THE JOINT RESEARCH CENTRE, AFTER CONSULTATION WITH THE HEADS OF DEPARTMENT TO WHICH MR DITTERICH HAD BEEN ASSIGNED .
4 THE REPORT CONTAINS A GENERAL ASSESSMENT WHICH REFERS TO A CERTAIN LACK OF SPIRIT OF COOPERATION ON THE PART OF MR DITTERICH, WHEREAS HIS ABILITY AND EFFICIENCY ARE MARKED AS ' ' ABOVE AVERAGE ' '
AND HIS CONDUCT IN THE SERVICE AS ' ' AVERAGE ' ' .
5 EXERCISING HIS RIGHT TO MAKE COMMENTS ON THE PERIODIC REPORT PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 43 OF THE STAFF REGULATIONS, MR DITTERICH REQUESTED THAT THE ASSESSOR ' S STATEMENT NOTING A LACK OF SPIRIT OF COOPERATION ON HIS PART SHOULD BE STRUCK OUT AND THAT THE APPEAL ASSESSOR, MR MAS, DEPUTY DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE AND DIRECTOR OF THE ISPRA ESTABLISHMENT, SHOULD TAKE UP THE MATTER . HOWEVER, MR MAS CONFIRMED THE PERIODIC REPORT ON 26 MARCH 1980 .
6 ON 31 MARCH 1980 MR DITTERICH THEN APPEALED TO THE JOINT COMMITTEE ON STAFF REPORTS WHICH GAVE ITS OPINION ON 15 JULY 1980 . AFTER NOTING THAT THE
APPLICANT ' S CONDUCT IN THE SERVICE WAS MARKED AS ' ' AVERAGE ' '
WHEREAS IN HIS PREVIOUS REPORT COVERING THE PERIOD 1973 TO 1975 IT HAD BEEN JUDGED TO BE ' ' ABOVE AVERAGE ' ', THE JOINT COMMITTEE ON STAFF REPORTS ASKED THE APPEAL ASSESSOR, MR MAS, TO JUSTIFY THE ASSESSMENT RELATING TO THE APPLICANT ' S CONDUCT .
7 IN COMPLIANCE WITH THAT REQUEST THE APPEAL ASSESSOR, MR MAS, QUALIFIED THE PERIODIC REPORT ON 22 OCTOBER 1980 BY EXPLAINING THAT THE ASSESSMENT IN QUESTION WAS DUE TO THE FACT THAT DURING THE PERIOD COVERED BY THE REPORT MR DITTERICH HAD ' ' SYSTEMATICALLY QUESTIONED ALL HIS SUPERIORS '
DECISIONS CONCERNING HIM ' ' .
8 BY MEMORANDUM DATED 1 DECEMBER 1980 MR DITTERICH LODGED A COMPLAINT PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE APPOINTING AUTHORITY ' S DECISION OF 22 OCTOBER 1980 ADOPTING THE DEFINITIVE VERSION OF THE PERIODIC REPORT . SINCE AFTER MORE THAN FOUR MONTHS NO REPLY TO THAT COMPLAINT HAD BEEN RECEIVED FROM THE ADMINISTRATION MR DITTERICH BROUGHT THIS ACTION .
THE CLAIMS FOR ANNULMENT OF THE PERIODIC REPORT
9 IN HIS WRITTEN SUBMISSIONS THE APPLICANT CLAIMED THAT THE APPEAL ASSESSOR WAS NOT ENTITLED TO GIVE AN EXPLANATION FOR THE ASSESSMENT OF HIS CONDUCT IN THE SERVICE BECAUSE IT HAD BEEN JUDGED TO BE ' ' AVERAGE ' ', AND ALSO THAT THE PERIODIC REPORT WAS NOT WRITTEN IN HIS NATIVE LANGUAGE . THOSE TWO CLAIMS WERE ABANDONED AT THE HEARING AND NEED NOT THEREFORE BE CONSIDERED .
10 IN THE APPLICANT ' S VIEW THE GENERAL ASSESSMENT NOTING A LACK OF SPIRIT OF COOPERATION ON HIS PART IS BASED ON INCORRECT INFORMATION AND IS CONTRADICTORY . THE FACT THAT DURING THE PERIOD COVERED BY THE REPORT HE PUBLISHED A NUMBER OF STUDIES IN COLLABORATION WITH COLLEAGUES CONTRADICTS THE GENERAL ASSESSMENT AND ALSO THE APPEAL ASSESSOR ' S ASSERTION REGARDING HIS ATTITUDE OF SYSTEMATIC QUESTIONING .
11 THE APPLICANT ALSO MAINTAINS THAT IF THE ASSESSOR ' S AND APPEAL ASSESSOR ' S ASSESSMENT HAD BEEN JUSTIFIED HIS MARK FOR CONDUCT IN THE SERVICE WOULD HAVE
HAD TO BE BELOW AVERAGE, WHICH WAS NOT THE CASE . THE PERIODIC REPORT THUS CONTAINS CONTRADICTORY ASSESSMENTS AND MARKS .
12 FINALLY THE APPLICANT CLAIMS THAT THE REAL BASIS OF THOSE ASSESSMENTS IS NOT HIS ABILITY, EFFICIENCY OR CONDUCT IN THE SERVICE BUT THE FRICTION WHICH AROSE BETWEEN HIM AND THE ADMINISTRATION AFTER HIS REQUEST FOR PROMOTION WAS REFUSED, THAT DISPUTE HAVING BEEN DEALT WITH BY THE COURT IN ITS JUDGMENT OF 12 OCTOBER 1978 IN CASE 86/77 ( 1978 ) ECR 1855 .
13 THE COURT HAS CONSISTENTLY HELD THAT PERIODIC REPORTS CONTAIN ASSESSMENTS WHICH CANNOT BE REVIEWED BY THE COURT SAVE IN ORDER TO IDENTIFY IRREGULARITIES OF FORM, MANIFEST FACTUAL ERROR OR MISUSE BY THE PERSONS INVOLVED IN THE DRAWING UP OF THE REPORTS OF THEIR POWER OF APPRAISAL .
14 AS REGARDS THE CONTRADICTIONS ALLEGED BY THE APPLICANT, IT MUST FIRST BE OBSERVED THAT, ALTHOUGH THE PUBLICATION OF STUDIES IN COLLABORATION WITH SOME OF HIS COLLEAGUES IS EVIDENCE OF HIS APTITUDE FOR WORKING WITH OTHERS IN CERTAIN WAYS, IT DOES NOT NECESSARILY MEAN THAT HE SHOWS THE SAME SPIRIT OF COOPERATION IN ALL HIS RELATIONS AT WORK . THE ASSESSMENT MADE BY THE FIRST ASSESSOR IS NOT THEREFORE CONTRADICTORY . SECONDLY, IT SHOULD BE NOTED THAT THE APPLICANT DOES NOT DENY THAT, IN SPITE OF INSTRUCTIONS WHICH HE RECEIVED, HE PURSUED RESEARCH WORK UNDER PROGRAMMES WHICH THE COUNCIL HAD DISCONTINUED . THAT ATTITUDE JUSTIFIED THE AWARD BY THE APPEAL ASSESSOR OF A MARK FOR CONDUCT IN THE SERVICE WHICH WAS LOWER THAN THAT AWARDED TO HIM IN THE PREVIOUS PERIODIC REPORT . THERE IS THEREFORE NO CONTRADICTION, EITHER, BETWEEN THE APPEAL ASSESSOR ' S ASSESSMENT AND THE MARK AWARDED FOR CONDUCT IN THE SERVICE .
15 IT MUST BE OBSERVED THAT THE REST OF THE APPLICANT ' S CRITICISMS DO NOT RELATE TO MANIFEST ERRORS OF FACT SUSCEPTIBLE OF OBJECTIVE VERIFICATION OR TO EVALUATIONS OR ASSESSMENTS CAPABLE OF OBJECTIVE REVIEW BUT RATHER TO VALUE JUDGMENTS WHICH BY THEIR VERY NATURE AND PURPOSE CANNOT BE REVIEWED BY THE COURT .
16 THE APPLICANT ' S COMPLAINTS MUST THEREFORE BE REJECTED, THERE BEING NO NEED TO VERIFY THE ACCURACY OF THE CRITICISMS CONTAINED IN THE PERIODIC REPORT IN QUESTION OR TO REQUIRE THE COMMISSION TO PRODUCE THE WHOLE OF THE FILE CONCERNING THE CONTESTED REPORT OR TO VERIFY, BY THE EVIDENCE OF WITNESSES, THE ACCURACY OF THE COMMENTS MADE IN THE REPORT, AS THE APPLICANT ASKS THE COURT TO DO BY WAY OF ALTERNATIVE CLAIM .
THE CLAIM FOR ANNULMENT OF THE EXPRESS DECISION REJECTING THE COMPLAINT
17 THE APPLICANT ALSO ASKS THE COURT TO ANNUL THE EXPRESS DECISION REJECTING THE COMPLAINT WHICH HE LODGED ON 1 DECEMBER 1980 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . HE MAINTAINS THAT THE DECISION WAS IRREGULAR ON THE GROUND THAT THE PROVISIONS OF THE 1971 VERSION OF THE GUIDE TO STAFF REPORTS, WHICH APPLIED TO REPORTS COVERING THE PERIOD FROM 1969 TO 1977, WERE NOT OBSERVED .
18 IN THE TERMS OF THE GENERAL REMARK ON PAGE 187 OF THE 1971 VERSION OF THE GUIDE TO STAFF REPORTS : ' ' WHEN THE JOINT COMMITTEE ON STAFF REPORTS HAS GIVEN A NEGATIVE OPINION ( SEE HEADING C.3 . A ) OR WHEN THE APPEAL ASSESSOR HAS TAKEN A FINAL DECISION ( SEE HEADING C.3.B ), OFFICIALS ARE ENTITLED TO LODGE A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS . THE JOINT COMMITTEE MUST BE CONSULTED REGARDING SUCH A COMPLAINT . IT WILL THEN BE FOR THE COMMISSION, AS APPOINTING AUTHORITY, TO GIVE A FINAL DECISION ON IT . ' '
19 ALTHOUGH IT DOES IN FACT APPEAR THAT, CONTRARY TO THE PROVISIONS CITED ABOVE, MR DITTERICH ' S COMPLAINT AGAINST THE DECISION ADOPTING THE DEFINITIVE VERSION OF HIS REPORT WAS NOT SUBMITTED TO THE JOINT COMMITTEE ON STAFF REPORTS, THAT FACT CANNOT BE REGARDED IN THIS INSTANCE AS AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT . THE JOINT COMMITTEE ON STAFF REPORTS HAD IN FACT ALREADY BEEN ASKED TO CONSIDER MR DITTERICH ' S CASE AND THE APPEAL ASSESSOR HAD SUPPLEMENTED THE PERIODIC REPORT IN ORDER TO COMPLY WITH THE OPINION ISSUED BY THAT COMMITTEE .
20 THE CLAIMS CONTAINED IN THE REPLY MUST THEREFORE BE REJECTED .
THE CLAIM FOR DAMAGES
21 THE APPLICANT POINTS OUT THAT THE PERIODIC REPORT IN QUESTION COVERING THE PERIOD 1975 TO 1977, WHICH SHOULD HAVE BEEN DRAWN UP BY THE END OF 1977, WAS NOT SIGNED BY THE ASSESSOR UNTIL 29 DECEMBER 1979 . THAT DELAY WAS, HE CLAIMS, MADE STILL WORSE BY THE FACT THAT, CONTRARY TO THE REQUIREMENTS OF THE GUIDE TO STAFF REPORTS, THE OPINION OF THE JOINT COMMITTEE ON STAFF REPORTS OF 15 JULY 1980 WAS NOT ACTED UPON UNTIL 22 OCTOBER 1980 .
22 THAT INSTANCE OF MALADMINISTRATION IS OF SUCH A NATURE AS TO JUSTIFY THE PAYMENT OF COMPENSATION FOR THE MATERIAL AND NON-MATERIAL DAMAGE CAUSED .
23 ARTICLE 43 OF THE STAFF REGULATIONS REQUIRES A PERIODIC REPORT TO BE MADE AT LEAST EVERY TWO YEARS ON EACH OFFICIAL ' S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE .
24 THAT DOCUMENT MUST BE DRAWN UP IN ORDER TO ENSURE THE PROPER ADMINISTRATION AND RATIONALIZATION OF THE SERVICES OF THE COMMUNITY AND IN ORDER TO SAFEGUARD THE INTERESTS OF OFFICIALS . IT CONSTITUTES AN INDISPENSABLE BASIS OF ASSESSMENT EACH TIME AN OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION .
25 ONE OF THE DUTIES OF THE ADMINISTRATION IS THEREFORE TO ENSURE THAT THE REPORT IS MADE PERIODICALLY AT THE INTERVALS PRESCRIBED BY THE STAFF REGULATIONS AND THAT IS IS DRAWN UP IN A PROPER MANNER . THE ADMINISTRATION HAS A REASONABLE PERIOD AT ITS DISPOSAL IN WHICH TO DO THIS AND ANY FAILURE TO ACT WITHIN THAT PERIOD MUST BE JUSTIFIED BY THE EXISTANCE OF SPECIAL CIRCUMSTANCES .
26 IN THIS CASE IT IS CLEAR BOTH FROM THE DOCUMENTS IN THE FILE AND FROM THE ORAL SUBMISSIONS MADE TO THE COURT THAT THE APPOINTING AUTHORITY OF THE JOINT RESEARCH CENTRE AT ISPRA EXCEEDED BY FAR THE REASONABLE PERIOD WHICH IT HAS ITS DISPOSAL IN ORDER TO ADOPT MR DITTERICH ' S REPORT AND THAT IT HAD BEEN UNABLE TO PROVE THE EXISTENCE OF SPECIAL CIRCUMSTANCES OF SUCH A NATURE AS TO JUSTIFY THAT DELAY .
27 UNDER THOSE CIRCUMSTANCES MR DITTERICH IS JUSTIFIED IN MAINTAINING THAT IN VIEW OF THE NATURE OF THE OMISSION ON ITS PART, THE ADMINISTRATION HAS INCURRED LIABILITY .
28 ALTHOUGH THE APPLICANT HAS NOT ESTABLISHED THAT THE OMISSION PREVENTED OR DELAYED ANY PROMOTION WHICH HE MIGHT OTHERWISE HAVE OBTAINED AND THUS CAUSED HIM MATERIAL DAMAGE, HE HAS HOWEVER ESTABLISHED THAT HE SUFFERED NON-MATERIAL DAMAGE ON ACCOUNT OF THE FACT THAT HIS PERSONAL FILE IS NEITHER IN GOOD ORDER NOR COMPLETE . HE IS THEREFORE ENTITLED TO SEEK COMPENSATION FOR THAT IRREGULARITY .
29 A FAIR ASSESSMENT OF THE AMOUNT OF COMPENSATION WHICH THE COMMISSION MUST PAY TO THE APPLICANT FOR THE DAMAGE SUFFERED ON THAT ACCOUNT IS BFR 20 000 .
Decision on costs
COSTS
30 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS MUST BEAR THEIR OWN COSTS . IN VIEW OF THE DELAY ON THE PART OF THE ADMINISTRATION AT ISPRA IN DRAWING UP THE PERIODIC REPORT AND ITS REPEATED FAILURE IN THAT REGARD, THE COMMISSION MUST BEAR THE WHOLE OF THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION FOR THE ANNULMENT OF THE PERIODIC REPORT ;
2 . DISMISSES THE APPLICATION FOR THE ANNULMENT OF THE EXPRESS DECISION OF 11 AUGUST 1981 ;
3 . ORDERS THE COMMISSION TO PAY BFR 20 000 BY WAY OF DAMAGES FOR THE DELAY IN THE DRAWING UP OF THE PERIODIC REPORT ;
4 . ORDERS THE COMMISSION TO BEAR THE WHOLE OF THE COSTS .