61979CJ0122_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 122 AND 123/79
MIRTIA SCHIAVO, AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING IN ROME, REPRESENTED BY MR ROSSI, OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34 RUE PHILIPPE II,
APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ANTONIO SACCHETTINI, ADVISER IN THE LEGAL DEPARTMENT OF THE SECRETARIAT OF THE COUNCIL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR P.-J . FONTEIN, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION IN CASE 122/79 FOR THE ANNULMENT OF THE DECISION OF 30 NOVEMBER 1978, 7/78, PUBLISHED IN THE MONTHLY STAFF BULLETIN OF THE EUROPEAN COMMUNITIES NO 158 OF JANUARY 1979 WHEREBY OFFICIALS OF THE LANGUAGE STAFF ( L/A ) OTHER THAN THE APPLICANT WERE PROMOTED WITH EFFECT FROM 1 JANUARY 1977 ;
IN CASE 123/79 FOR THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION WHEREBY MR HOMMEL, SECRETARY-GENERAL OF THE COUNCIL OF MINISTERS OF THE EUROPEAN COMMUNITIES, CONFIRMED THE OPINION OF THE REPORTS COMMITTEE OF 28 NOVEMBER 1978 REJECTING THE REQUEST OF THE APPLICANT OF 15 JUNE 1978 FOR A REVIEW OF THE PERIODIC REPORT FOR THE PERIOD 1 NOVEMBER 1975 TO 31 OCTOBER 1977 ;
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 3 AUGUST 1979, MRS SCHIAVO, WHO AT THE TIME WAS AN OFFICIAL IN GRADE L/A 7 AT THE COUNCIL OF THE EUROPEAN COMMUNITIES, BROUGHT TWO ACTIONS, WHICH WERE JOINED BY ORDER OF 31 JANUARY 1980, ONE FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING HER REQUEST FOR A REVIEW OF HER PERIODIC REPORT FOR THE PERIOD FROM 1 NOVEMBER 1975 TO 31 OCTOBER 1977 AND OF THE NOTE OF THE SECRETARY-GENERAL OF THE COUNCIL OF 8 DECEMBER 1978 CONFIRMING THE OPINION OF THE REPORTS COMMITTEE OF 28 NOVEMBER 1978 WHICH WAS NOT IN FAVOUR OF THAT REQUEST, AND THE OTHER FOR THE ANNULMENT OF A SERIES OF DECISIONS OF THE COUNCIL OF 30 NOVEMBER 1978 DECIDING ON THE PROMOTION OF CERTAIN OFFCIALS OF THE LANGUAGE STAFF .
THE BACKGROUND TO THE DISPUTE
2 THE APPLICANT WAS APPOINTED A PROBATIONARY OFFICIAL WITH THE COUNCIL ON 16 OCTOBER 1972 . IN ACCORDANCE WITH THE DECISION OF THE COUNCIL OF 25 MAY 1964 CONCERNING THE REPORT ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF OFFICIALS OF THE GENERAL SECRETARIAT OF THE COUNCIL, TWO PERIODIC REPORTS, GENERALLY CONTAINING THE ASSESSMENTS ' ' GOOD ' '
AND EVEN ' ' VERY GOOD ' ', WERE DRAWN UP FOR THE PERIODS 1972-73 AND 1974-75 WITHOUT OCCASIONING ANY REMARKS BY THE APPLICANT .
3 IN ACCORDANCE WITH NEW CRITERIA ESTABLISHED BY THE COUNCIL DECISION OF 18 OCTOBER 1977 LAYING DOWN THE GENERAL PROVISIONS FOR THE APPLICATION OF ARTICLE 43 OF THE STAFF REGULATIONS OF OFFICIALS ON PERIODIC REPORTS MRS SCHIAVO WAS THE SUBJECT OF A PERIODIC REPORT DATED 16 FEBRUARY 1978 FOR
THE PERIOD FROM 1 NOVEMBER 1975 TO 31 OCTOBER 1977 DRAWN UP BY HER HEAD OF DEVISION AND FIRST REPORTING OFFICER, MR VALERIO .
4 SINCE MRS SCHIAVO CONSIDERED THAT THIS PERIODIC REPORT DIFFERED FROM THE PREVIOUS REPORT IN A ' ' NEGATIVE ' '
SENSE, SHE FIRST OF ALL REQUESTED AN INTERVIEW WITH HER FIRST REPORTING OFFICER, FOLLOWING WHICH SHE OBTAINED POSITIVE AMENDMENTS ; NEVERTHELESS SHE ASKED IN WRITING FOR A REVIEW OF THE SAID REPORT WHICH HAD BEEN AMENDED IN HER FAVOUR . THAT REQUEST WAS REFUSED AND SHE THEN ASKED FOR A REVIEW OF THAT REPORT BY THE SECOND REPORTING OFFICER, MR DUCK, IN ACCORDANCE WITH ARTICLE 7 OF THE DECISION OF 18 OCTOBER 1977 . MR DUCK, IN A NOTE DATED 25 MAY 1978, MADE FAVOURABLE AMENDMENTS TO THE GENERAL ASSESSMENT .
5 HOWEVER, THE APPLICANT ALSO REFUSED TO ACCEPT THE CONCLUSIONS OF THE SECOND REPORTING OFFICER AND SUBMITTED A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS BY LETTER OF 11 SEPTEMBER 1978 ADDRESSED TO THE SECRETARY-GENERAL OF THE COUNCIL .
6 IN VIEW OF THAT COMPLAINT THE SECRETARY-GENERAL, PURSUANT TO ARTICLE 11 OF THE COUNCIL DECISION OF 18 OCTOBER 1977, REFERRED THE MATTER TO THE REPORTS COMMITTEE FOR WHOSE INTERVENTION PROVISION IS MADE BY THE DECISION FOR THE CASE WHERE AN OFFICIAL DISAGREES WITH THE PERIODIC REPORT OF WHICH HE IS THE SUBJECT .
7 ON 28 NOVEMBER 1978 THE REPORTS COMMITTEE DELIVERED AN OPINION WHICH WAS UNFAVOURABLE TO THE APPLICANT AND WHICH THE SECRETARY-GENERAL CONFIRMED BY NOTE OF 8 DECEMBER 1978 . THAT NOTE, ACCOMPANIED BY THE OPINION, WAS NOTIFIED TO THE APPLICANT WHO RECEIVED THEM ON 18 DECEMBER 1978 .
8 IN THE MEANTIME THE SECRETARY-GENERAL, ACTING ON THE OPINION TO THAT EFFECT OF THE ADVISORY COMMITTEE, TOOK ON 30 NOVEMBER 1978 A SERIES OF DECISIONS REGARDING THE PROMOTION OF CERTAIN OFFICIALS OTHER THAN THE APPLICANT . THE LIST OF OFFICIALS PROMOTED WAS POSTED IN THE PREMISES OF THE INSTITUTION ON 6 DECEMBER 1978 AND WAS PUBLISHED IN THE MONTHLY STAFF BULLETIN OF THE EUROPEAN COMMUNITIES, NO 158 OF JANUARY 1979 .
9 THEREUPON THE APPLICANT SENT ON 25 MARCH 1979 TWO LETTERS, THE FIRST REGISTERING A COMPLAINT CONCERNING THE DECISIONS ON PROMOTION AND THE SECOND FORMALLY REQUESTING THE SECRETARY GENERAL TO TAKE A DECISION CONCERNING THE PERIODIC REPORT DRAWN UP ON 16 FEBRUARY 1978 .
10 SINCE NO ANSWER WAS GIVEN TO THOSE TWO LETTERS THE APPLICANT LODGED THE TWO ABOVE-MENTIONED APPLICATIONS .
THE ADMISSIBILITY OF THE TWO APPLICATIONS
THE CLAIM FOR THE ANNULMENT OF THE PERIODIC REPORT
11 IN THE COURSE OF THE WRITTEN PROCEDURE THE COUNCIL MAINTAINED IN THE FIRST PLACE THAT THE APPLICATION WAS INADMISSIBLE BECAUSE A PRIOR COMPLAINT WAS NOT LODGED, AS THE LETTER OF 25 MARCH 1979 DOES NOT CONSTITUTE A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) EITHER FORMALLY, SINCE IT WAS BASED ON ARTICLE 175 OF THE EEC TREATY WHEREAS DISPUTES BETWEEN OFFICIALS AND THEIR INSTITUTIONS COME UNDER ARTICLE 179 OF THE EEC TREATY, OR SUBSTANTIVELY, SINCE IT CONSTITUTES A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ). EVEN IF IT WERE POSSIBLE TO CONSIDER THE LETTER AS A COMPLAINT, THE APPLICATION WOULD NEVERTHELESS BE INADMISSIBLE ON THE GROUND THAT THE COMPLAINT SHOULD HAVE BEEN SUBMITTED ON 19 MARCH 1979 AT THE LATEST .
12 AT THE HEARING THE COUNCIL, RELYING ON THE JUDGMENT OF 3 JULY 1980 ( GRASSI V COUNCIL, JOINED CASES 6 AND 97/79 ( 1980 ) ECR 2141 ), CONTENDED THAT, SINCE PROCEEDINGS AGAINST A PERIODIC REPORT MAY BE INSTITUTED WITHOUT THE NECESSITY OF A PRIOR COMPLAINT, THE APPLICANT SHOULD HAVE LODGED THE APPLICATION BEFORE 19 MARCH 1979 .
13 THE APPLICANT ON THE OTHER HAND MAINTAINS THAT, SINCE ALL INDIVIDUAL DECISIONS WHICH ADVERSELY AFFECT AN OFFICIAL MUST STATE THE REASONS ON WHICH THEY ARE BASED AND SINCE THE NOTE FROM THE SECRETARY-GENERAL OF 8 DECEMBER 1978 DID NOT STATE THE REASONS ON WHICH IT WAS BASED IT IS VOID AND THAT SHE WAS ACCORDINGLY JUSTIFIED IN SUBMITTING A ' ' FORMAL REQUEST ' '
ON 25 MARCH 1979 TO TAKE A DECISION .
14 IT SHOULD FIRST OF ALL BE RECORDED THAT, WITH REGARD TO PERIODIC REPORTS, THE COUNCIL DECISION OF 18 OCTOBER 1977 FIXES THE COURSE OF THE PROCEDURE BEFORE COURT PROCEEDINGS ARE INSTITUTED AND PROVIDES IN PARTICULAR IN ARTICLE 10 ( 5 ) THAT
' ' THE APPOINTING AUTHORITY SHALL CONFIRM THE REPORT AND SHALL TRANSMIT IT TO THE OFFICIAL WHO IS THE SUBJECT OF THE REPORT, THUS BRINGING TO AN END THE COMPLAINTS PROCEDURE ' ' .
15 IN THE PRESENT CASE THE APPLICANT SUBMITTED ON 11 SEPTEMBER 1978 A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) IN ORDER TO HAVE HER PERIODIC REPORT CORRECTED . THE SPECIAL PROCEDURE THUS INITIATED WAS CLOSED, IN ACCORDANCE WITH THE PROVISIONS OF THE COUNCIL DECISION OF 18 OCTOBER 1977, BY THE NOTE OF THE SECRETARY-GENERAL CONFIRMING THE OPINION OF THE REPORTS COMMITTEE WHICH THE APPLICANT RECEIVED ON 18 DECEMBER 1978 . AS FROM THAT DATE THE PERIODIC REPORT WAS REGARDED AS FINAL .
16 IT MAY ALSO BE NOTED THAT THE COURT, IN ITS ABOVE-MENTIONED JUDGMENT IN THE GRASSI CASE, HAS ALREADY MADE IT CLEAR THAT IN SUCH A SITUATION IT IS NOT A CONDITION OF INSTITUTING PROCEEDINGS BEFORE THE COURT THAT A PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS SHOULD HAVE BEEN LODGED :
' ' ACTION AGAINST THE PERIODIC REPORT LIES AS FROM THE DATE ON WHICH THAT REPORT MAY BE REGARDED AS FINAL AND . . . IT IS NOT POSSIBLE TO REQUIRE IN ADDITION THE PRIOR FORMALITY OF A COMPLAINT UNDER ARTICLE 90 ' ' .
THE APPLICANT SHOULD THUS HAVE BROUGHT THE MATTER DIRECTLY BEFORE THE COURT WITHIN THE PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS, THAT IS, BEFORE 19 MARCH 1979, WHEREAS HER APPLICATION WAS LODGED ON 3 AUGUST 1979 .
17 FURTHERMORE, EVEN IF IT WERE POSSIBLE TO CLASSIFY THE APPLICANT ' S LETTER OF 25 MARCH 1979 AS A COMPLAINT THROUGH OFFICIAL CHANNELS FOR THE PURPOSES OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, AND EVEN IF THE ERROR COMMITTED AS TO THE INAPPLICABILITY OF THAT ARTICLE, GIVEN THE PRESENT WORDING OF THE PROVISIONS, COULD BE REGARDED AS EXCUSABLE, THOSE CIRCUMSTANCES IN NO WAY ALTER THE FACT THAT THE COMPLAINT WAS OUT OF TIME SINCE IT WAS LODGED AFTER 19 MARCH 1979 .
18 IN CONSEQUENCE, SINCE THE APPLICATION IN CASE 123/79 WAS LODGED OUT OF TIME, IT MUST BE DECLARED INADMISSIBLE .
THE CLAIM FOR THE ANNULMENT OF THE DECISIONS ON PROMOTION
19 THE COUNCIL MAINTAINS THAT THE APPLICATION WAS LODGED OUT OF TIME SINCE THE COMPLAINT, WHICH WAS DATED 25 MARCH 1979, WAS AIMED AT PROCURING THE ANNULMENT OF THE DECISIONS ON PROMOTION POSTED ON 6 DECEMBER 1978, AND THAT IT WAS LODGED AFTER THE PERIOD OF THREE MONTHS FROM THE DATE OF PUBLICATION, THAT IS AFTER THE PERIOD FIXED AS A CONDITION OF ADMISSIBILITY BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . IN SUPPORT OF THAT ARGUMENT IT CLAIMS FIRST THAT, ACCORDING TO THAT PROVISION, THE PERIOD WITHIN WHICH A THIRD PARTY, WHO IS ADVERSELY AFFECTED BY AN INDIVIDUAL MEASURE, MUST LODGE AN APPLICATION, STARTS TO RUN ' ' ON THE DATE ON WHICH HE RECEIVES NOTIFICATION THEREOF BUT IN NO CASE LATER THAN THE DATE OF PUBLICATION ' ', WHICH IN THE PRESENT CASE IS THE DATE OF POSTING, AND SECONDLY, THAT THE REQUIREMENTS OF LEGAL CERTAINTY WOULD NOT BE FULFILLED IF PUBLICATION IN THE MONTHLY STAFF BULLETIN WERE TAKEN AS THE TIME FROM WHICH THE PERIOD STARTS TO RUN .
20 THE APPLICANT, RELYING ON ARTICLE 25 OF THE STAFF REGULATIONS WHICH PROVIDES THAT
' ' SPECIFIC DECISIONS REGARDING . . . PROMOTION . . . OF AN OFFICIAL SHALL AT ONCE BE POSTED IN THE PREMISES OF THE INSTITUTION TO WHICH THE OFFICIAL BELONGS AND SHALL BE PUBLISHED IN THE MONTHLY STAFF BULLETIN OF THE COMMUNITIES ' ',
MAINTAINS THAT A DECISION MAY ONLY BE CONSIDERED AS VALIDLY PUBLISHED AFTER IT HAS BEEN POSTED IN THE PREMISES OF THE INSTITUTION AND PUBLISHED IN THE MONTHLY STAFF BULLETIN OF THE COMMUNITIES . SINCE THAT LATTER PUBLICATION TOOK PLACE IN JANUARY 1979 THE COMPLAINT WAS LODGED WITHIN THE PERIOD REQUIRED BY THE STAFF REGULATIONS .
21 WHILST IT IS INDEED TRUE THAT ARTICLE 25 OF THE STAFF REGULATIONS SPECIFIES THAT ALL DECISIONS RELATING TO SPECIFIC INDIVIDUALS REGARDING THE PROMOTION OF AN OFFICIAL MUST BE POSTED AND PUBLISHED IT SHOULD BE NOTED THAT, WITH REGARD TO THIRD PARTIES WHO ARE CONCERNED, THE GENERAL SCHEME OF THE SECOND INDENT OF ARTICLE 90 ( 2 ) IMPLIES THAT THE PERIOD DURING WHICH A COMPLAINT MUST BE LODGED STARTS TO RUN AS FROM THE DAY WHEN THE THIRD PARTY CONCERNED RECEIVES NOTIFICATION OF THE MEASURE IN DISPUTE BUT IN NO CASE ' ' LATER THAN THE DATE OF PUBLICATION ' ' . IN THE CASE OF DECISIONS REGARDING THE PROMOTION OF OFFICIALS ' ' THE POSTING AT ONCE ' '
OF SUCH DECISIONS IN THE PREMISES OF THE INSTITUTION TO
WHICH THE OFFICIAL BELONGS IS WHOLLY IN CONFORMITY WITH THE OBJECTIVE OF THAT MEASURE WHICH IS TO BRING SUCH INDIVIDUAL DECISIONS TO THE ATTENTION OF THE RESTRICTED CLASS OF PERSONS CONCERNED WHEREAS THE SOLE PURPOSE OF PUBLICATION IN THE MONTHLY STAFF BULLETIN IS TO PROVIDE GENERAL INFORMATION WHICH DOES NOT HAVE ANY PARTICULAR LEGAL EFFECT .
22 WITH REGARD TO THE REQUIREMENTS OF LEGAL CERTAINTY THE COURT HAS DECLARED IN ITS JUDGMENT OF 12 DECEMBER 1967 ( MULLER NEE COLLIGNON ) CASE 4/67 ( 1967 ) ECR 365 ) THAT
' ' THE PERIODS PRESCRIBED FOR INSTITUTING PROCEEDINGS ARE MANDATORY IN NATURE AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT ' ',
WHICH ALSO APPLIES TO THE PERIODS FOR LODGING COMPLAINTS WHICH, FROM THE PROCEDURAL POINT OF VIEW, PRECEDE THEM AND ARE OF THE SAME NATURE SINCE THEY BOTH CONTRIBUTE, WITH THE OBJECTIVE OF ENSURING LEGAL CERTAINTY, TO THE REGULATION OF THE SAME REMEDY .
23 IF THE TIME FROM WHICH THE PERIOD FOR LODGING COMPLAINTS STARTED TO RUN COINCIDED WITH THE PUBLICATION OF THE MEASURES IN QUESTION IN THE MONTHLY STAFF BULLETIN, WHICH OFTEN OCCURS LONG AFTER PUBLICATION OF SUCH MEASURES THROUGH POSTING, THAT PERIOD WOULD BE RENDERED VARIABLE, WHICH IS CONTRARY TO THE INTERESTS OF THE PERSONS WHO BENEFIT FROM THOSE INDIVIDUAL MEASURES AND WOULD NOT CONFER ANY REAL ADVANTAGE UPON OFFICIALS ADVERSELY AFFECTED BY SUCH MEASURES AS THE LATTER ARE ABLE WITHOUT DIFFICULTY TO INFORM THEMSELVES OR TO BE INFORMED IN GOOD TIME OF IMPORTANT MEASURES WHICH HAVE BEEN POSTED IN ACCORDANCE WITH CLEARLY PRESCRIBED RULES WHICH WERE ADJUSTED WITHIN THE FRAMEWORK OF THE PERSONNEL MANAGEMENT WITHIN THEIR DEPARTMENT AND WHICH CONCERN THEIR PERSONAL ADMINISTRATIVE POSITION .
24 ACCORDINGLY IT MUST BE CONCLUDED THAT, SINCE THE APPLICANT ' S COMPLAINT WAS LODGED OUT OF TIME FOR THE PURPOSES OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS, THE APPLICATION IN CASE 122/79 MUST ALSO BE DECLARED INADMISSIBLE .
Decision on costs
25 ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) IN RELATION TO COSTS WHICH THE COURT CONSIDERS TO HAVE BEEN UNREASONABLY OR VEXATIOUSLY CAUSED, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES .
26 THE COURT CONSIDERS THAT THE APPLICANT SHOULD NOT HAVE THE BENEFIT OF THE PROVISIONS OF ARTICLE 70 . IT IS APPARENT FROM THE FOREGOING THAT SHE PERSISTED IN PURSUING JUDICIAL PROCEEDINGS WITHOUT BEING ABLE TO ESTABLISH A REAL INTEREST ALTHOUGH, AS A RESULT OF HER COMPLAINTS AND BY MEANS OF THE INTERNAL REVIEW PROCEDURE WITHIN THE COUNCIL ADMINISTRATION, SHE HAD THE ASSESSMENTS ON HER FAVOURABLY REVISED . IN THOSE CIRCUMSTANCES THE BRINGING OF AND PERSISTENCE IN A LEGAL ACTION MUST BE REGARDED AS VEXATIOUS . IT IS THEREFORE RIGHT TO ORDER THE APPLICANT TO PAY THE WHOLE OF THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATIONS AS INADMISSIBLE ;
2 . ORDERS THE APPLICANT TO PAY THE WHOLE OF THE COSTS .