61971C0088
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 24 MAY 1972 (
1
)
Mr President,
Members of the Court,
On 24 March 1971 the Director-General for Administration of the European Parliament gave notice of an internal competition on the basis of qualifications with a view to filling a vacant post of clerical officer in career bracket C3-C2 at the Directorate-General for Administration. The principal duty of the official to be appointed to this post was to consist in managing the stock of typewriters and calculating machines at the European Parliament. The applicant in this case, a chauffeur at that time in Grade D 2, who had entered the service of the Parliament on 1 December 1958, took part in this competition together with several other officials. Having examined the applications and the personal files of the candidates, the selection board, in a report dated 5 July 1971, awarded the applicant 32 points and placed him at the head of the list of suitable candidates. In second place, with 30 points, was Mr Lesire, who was also at that time a chauffeur in Grade D 2. Before filling the vacant post which was the subject of this competition on the basis of the above report, the appointing authority (in this case, the Secretary-General of the Parliament) sought the opinion of the relevant Director-General, namely the Director-General for Administration. In a memorandum of 13 July 1971 the latter indicated that the applicant's conduct had several times been criticized in writing in previous years and that, more recently still, he had been reprimanded for his poor conduct (as appears from a special memorandum from the Head of the Conferences Division of the European Parliament of 6 July 1971, attached to the opinion). In addition, at the last session, a Member of Parliament had expressed his displeasure with the applicant. On the other hand, there was only praise for the candidate placed second, who was already performing the duties relating to the post which was the subject of the notice of competition. Furthermore, in view of the fact that there was only a small difference between the points obtained by these candidates and that the applicant had obtained a higher number of points only by reason of his seniority and that the applicant had obtained a higher number of points only by reason of his seniority and his participation in previous competitions (which had nothing to do with the post to be filled), whereas the second candidate had shown himself to be very much better in the test of suitability, the Director-General for Administration proposed that the latter be appointed to the vacant post.
The appointing authority followed this proposal. By decision of the Secreatry General of 21 July 1971 the candidate placed second was promoted to Grade C3 with effect from 1 August 1971 and transferred to the post which was the sub-appointment was communicated to the staff of the Parliament by posting within the institution on 29 July 1971.
The applicant, who was unhappy with the outcome of this competition, appealed to the Court on 25 October 1971 and now asks you to annul the decision in question for various reasons.
I shall now examine and give an opinion on this application.
1.
First, it is necessary to say a brief word about the admissibility of the application. In the reply, the applicant in fact declared that he would have accepted the appointment of the other candidate if the Administration had not justified its choice by recourse to a method which is open to criticism. Again in the reply, he asserts that the procedure chosen by the Administration caused a certain disquiet among the whole staff. The defendant claims that that assertion renders the application inadmissible since it considers that the applicant brought his appeal not so much for the purpose of being appointed to the post declared vacant but by reason of the grounds relied on in support of the choice made, in other words, in order to ensure that the allegations made against him by the Administration were censured. Furthermore, the criticism is directed against the Administration in the same of the staff as a whole, which is not permissible in a personal application.
In fact, if we inquire whether the objections in question are indeed pertinent, in the final analysis it becomes difficult to accept the Parliament's argument.
In my opinion, the decisive fact is that the applicant has clearly brought and maintained an application for the annulment of the above-mentioned decisions making the appointment. What is more, at the oral hearing, when it was stated that in the meantime he had been promoted to Grade D1, he expressly emphasized that his principal intention was to achieve promotion to Category C and that in this case he was therefore properly pursuing his own interests. On the other hand, the Parliament's remark as to the probability that the application would not have been made if the grounds of the decision making the appointment had been different is scarcely relevant.
On the other hand, as for the allusion to the disquiet of the staff as a whole, I do not have the impression that the applicant is thereby making himself the spokesman of the staff of the European Parliament, and it is not therefore possible to say that he wished to bring an action in the general interest. If I properly understand this statement I would regard it as reinforcing the criticism which is made, above all, in his own interest.
Even if the Parliament's objections cannot be completely rejected, it must be concluded that there are no clear grounds for dismissing the application as inadmissible.
2.
In examining the merits of the application I shall deal first with the applicant's second submission. It concerns the opinion, already mentioned, of the Director-General for Administration of 13 July 1971. The applicant asserts that this opinion contained criticisms which did not appear in his personal file and with regard to which he was not able to give his comments. That could constitute an infringement of the principle laid down in Article 26 of the Staff Regulations. What is more, again according to the applicant, the contested decision was taken on the basis of a comparison between non-comparable factors. The candidate appointed, who was already pesforming the duties relating to the post concerned in the competition, received praise whereas the applicant was judged on the basis of the duties which he performed at that time, namely, that of a chauffeur.
As can be seen immediately, this allegation touches, at least in its first part, a problem of considerable importance. It is necessary for this purpose to clarify first of all the scope of Article 26 of the Staff Regulations, which states: ‘The personal file of an official shall contain:
(a)
all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;
(b)
any comments by the official on such documents
… the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed.
There shall be only one personal file for each official’.
When one asks whether it is really possible to base the principle invoked by the applicant on this provision, it must be admitted straight away that the text and context of the provision do not lend support to a negative reply. In my opinion, Article 26 of the Staff Regulations makes it clear that, in so far as it may be taken into consideration, any statement regarding an official's conduct must appear in his personal file. In fact the Staff Regulations contemplate only one personal file. In addition, it is necessary to give the official concerned the opportunity of making his own comments. It is only after this that an unfavourable opinion may be recorded against him.
Although, in my opinion, that emerges from the text and the spirit of the provision cited, reference can be made in support of the above argument to Euler's commentary on the Staff Regulations of European Officials. In volume I of his work, at page 238, Euler insists on the fact that secondary files containing opinions on officials are illegal. He also emphasizes that complaints against officials which refer in a general way to conduct in or outside the service must appear in the personal files because they are important factors in forming an assessment. In addition, according to Euler, the validity of an opinion on an official in the service depends, in all cases, on whether it has been communicated to the official concerned and whether the latter has had the opportunity of commenting upon it.
The same applies in national law relating to the public service. On this point, let me refer, for example, to Article 90 of the German law on the Staff Regulations of Federal German Officials, which states: ‘Even after termination of service the official is entitled to examine his complete personal file; all the documents concerning him shall be included therein. With regard to complaints and actual assertions which may be unfavourable or prejudicial to him, the official must be heard before these are included in his file. The official's comments must be attached to his file.’ Commentaries on this provision further emphasize that all opinions relating to the official's work must be included in the personal file; secret secondary files containing opinions of the same nature are illegal. In addition, the principle applicable is that consequences unfavourable to an official cannot be based upon a matter which does not appear in the file unless the person concerned has previously had the opportunity of expressing his own comments (see Note 2 on Article 90 in the commentary of Plog-Wiedow on the German law on the Staff Regulations of Federal German Officials). In this connexion, the statements contained in a judgment of the Bundesgerichtshof of 29 November 1956 (Neue Juristische Wochenschrift, 1957, p. 298) appear particularly important. According to that judgment, ‘It is incompatible with the situation of an official, based on a spirit of mutual confidence and frankness, that the Administration should form an unfavourable assessment of an official on the basis of matters on which he has not had the opportunity of commenting.’
Finally, the case-law of the Court also contains indications to this effect. I am thinking in particular of the judgment which the Court delivered in Case 21/70 ([1971] ECR 18). In the case which was there submitted to the Court for judgment, officers of the Commission had, during the process of making an appointment, expressed opinions with regard to the various candidates without informing them of those opinions. Since the opinions had been neither included in the personal file of the applicant in question, who had also participated in the competition for appointment, nor communicated to her, the Court spoke of a disregard of the provisions of Articles 26 and 43 of the Staff Regulations of Officials and consequently annulled the contested decision making the appointment.
Applying to the present case the conclusions drawn from Article 26, we arrive at the following assessment: As I have already mentioned, the Director-General for Administration emphasized, in his memorandum of 13 July 1971, that it was apparent from several written remarks made in past years that the conduct of the applicant left something to be desired. In my opinion, this part of the opinion does not justify any criticism of the Administration of the Parliament. In fact, the findings were included in the applicant's personal file before the organization of the competition and are moreover correct. They are confirmed by a probationary report on the applicant of 1959, a periodic report of 1965 and a memorandum of 13 July 1970, in which the applicant's behaviour on 22 June 1970 (namely his refusal to convey certain persons in a service vehicle) was censured on the ground of insubordination. Furthermore, the applicant has not challenged the accuracy of the opinions supplied. As regards the memorandum which I have just cited, he merely asked, one year later, that it be withdrawn from his personal file. However, the Administration only withdrew it because it contained neither a warning nor a reprimand within the meaning of the disciplinary rules. In the same way, even if it is admitted that the memorandum from the Director-General for Administration once again mentions the matters in question, it is certainly not possible to claim that they had already been considered by the selection board and that the applicant was therefore ‘penalized’ twice. In reality, it is by no means certain that the selection board had already made its assessment: in fact, its duty is above all to give its opinion on the suitability of the candidates, in other words, their vocational capabilities. In addition, it is impossible, in my opinion, to challenge the Administration's right to take special account of certain factors which are important for the appointment procedure when it gives its opinion on the selection board's report and the observations which it contains.
On the other hand, the opinion of the Director-General for Administration is the subject of objections from another point of view, because it refers to the memorandum from the Head of the Conferences Division of the Parliament of 6 July 1971, which is attached to it and which contains certain criticisms relating to a journey which the applicant made on mission to Basel in June 1971 and, secondly, because it refers to the oral complaint of a Member of Parliament, which was reported to the Director-General for Administration by another person. As for these criticisms, it is certain that they were not included in the applicant's personal file. Likewise, the applicant was unable to comment upon them or to succeed in minimizing their importance by any means of defence. Furthermore, the observations of the Director-General for Administration were used in forming an assessment and with the clear intention of showing the applicant to the appoint authority in an unfavourable light, which, having regard to the principles previously outlined with regard to Article 26 of the Staff Regulations, seems open to sharp criticism.
During the procedure, the Parliament, the defendant, attempted to show that the matters cited did not have a decisive influence on the appointing authority. It asserted, in particular, that it was under- standable that that authority should decide to appoint the second candidate, because he had obtained more points in respect of suitability. It is not however possible to say whether this assertion is correct. However this may be, were it not for the said criticisms, it may be assumed that the appointing authority, when making its decision, would have taken account, above all, of the total number of points obtained by the candidates, in other words, of a situation in which the applicant would have had a good chance of appointment on account of his seniority and his participation in previous competitions. That is why it is decisive in this case that the unfavourable comments of the Director-General for Administration might have been capable of having an influence on the assessment of the candidates by the appointing authority and on the decision making the appointment.
Therefore, in accordance with your previous case-law, according to which the Court cannot review assessments of this nature but only the procedure which led to them, I come necessarily to this conclusion: the contested decision making the appointment must be annulled because it appears that the procedure by which it was adopted was influenced in an illegal manner. Consequently, there is no need to deal with the second part of the first submission which I mentioned at the outset.
3.
The conclusion which I have reached by examining the second submission — to which I have given precedence — also renders it purposeless to study the first submission, namely that of misuse of powers. I will at least make the following comments in this connexion.
The applicant has claimed that the contested decision was taken on the basis of considerations which had no connexion with the merits of the candidates, in other words, solely for the purpose of transferring the chosen candidate to a different post because for some time he had been unable to perform his duties as a chauffeur and, for this reason, had already been seconded to various departments of the Administration. I find it difficult to accept this argument, however, and in fact, the applicant has put forward no conclusive allegation in support of it. At least I do not see in his written and oral submissions concerning the point with which I am now dealing ‘objective and relevant facts’ within the meaning of the Court's case-law (Joined Cases 18 and 35/65, Gutmann, [1966] ECR 103). If this point were important — there is now no need for me to enter upon a more thorough study — it would be possible to retort that the applicant's first submission cannot succeed.
4.
In conclusion, my opinion is as follows :
The application made by Mr Brasseur is admissible and well-founded. The decision to appoint another candidate to the post of clerical officer, in career bracket C 3-C2, which was the subject of the notice of competition must therefore be annulled and the defendant ordered to pay the costs.
(
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)	Translated from the French version.