61976C0061
OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 30 JUNE 1977 (
1
)
Mr President,
Members of the Court,
The proceedings with which we are dealing today essentially concern the transfer of a scientific officer of the European Atomic Energy Community from the Joint Research Centre at Patten to the Joint Research Centre at Ispra.
This official took up his duties with the Commission in 1962. In February 1963 he went to Petten. In 1963 and 1964 he was head of the Hydrodynamics and Measures (Hydrodynamique et Mesures) Division. He was chiefly employed on the programme applicable to molten salt breeder reactors (réacteurs surgénérateurs a sels fondus). In this connexion he was seconded to the USA in 1964 and 1965. After his return the applicant again became head of the abovementioned division and was promoted to Grade A 5 as from 1 January 1966.
In the summer of 1967 the Directorate of the Joint Research Establishment in Petten considered, in agreement with the Director General of the Joint Research Centre, as shown by a letter of 21 June 1967 addressed to the applicant and by a memorandum of April 1970, that the change in the second research programme of 1962, which had been decided by the Council in June 1965, no longer permitted the research in the applicant's special field (liquid fuel reactors — reacteurs a combustibles liquides) to be continued and that it necessitated concentrating the staff on the new duties which had been laid down. For that reason the group led by the applicant was disbanded on 24 July 1967.
The problem thus arose of employing the applicant appropriately elsewhere within the European Atomic Energy Community. He was, first, from April 1968, directly attached to the Director of the research establishment at Petten and later, from 1970, directly attached to the Director-General of the Joint Research Centre. In this position he continued his studies and research into molten salt breeder reactors (réacteurs surrégénéra-teurs a sels fondus). In this connexion he was sent on many missions to competent national agencies and international organizations and took part in 1973 in a conference and drew up a report on this subject.
It was at that time already contemplated transferring the applicant to Ispra because efforts to employ him in another Directorate-General were unsuccessful. This is shown by a memorandum from the Director General of the Joint Research Centre sent to the applicant in October 1973.
In 1975 the administration of the Joint Research Centre finally became convinced that it was impossible to justify continuing further the existing situation. For that reason the applicant had already been advised in the spring of that year to apply for the post of Scientific Attaché to the Community's delegation in Washington. The applicant did so. However, the post in Washington was filled by another candidate.
At the end of September 1975 the Directorate in Petten was informed in a memorandum from the Director-General of the Joint Research Centre that following the determination by the Council of a new research programme for Petten in August 1975 it was impossible to employ the applicant on that programme and for that reason it was necessary to consider transferring him to a post in the context of another programme. On 1 October 1975 the applicant was informed accordingly. This communication spoke of contacts with other Directorates-General and of the examination of the possibility of employing the applicant at other establishments. However, such attempts were likewise unsuccessful, as shown by a letter from the head of the Directorate General for Research, Science and Education of 9 October 1975 and a letter from the head of the Directorate General for Industry and Technology of 13 October 1975. The applicant was informed of this in a memorandum from the Director General of the Joint Research Centre of 17 November 1975. That letter also emphasized that there was no work either in Petten, Karlsruhe or Geel which corresponded to the applicant's qualifications but that there were however two posts available in Ispra for which the applicant came into consideration. The duties connected therewith were described to the applicant in detail and he was informed that it was envisaged transferring him to one of those posts by 1 March 1976. In addition, the applicant was requested to contact Ispra and to inform them by 1 December 1975 which post he preferred.
On 10 December 1975 (the applicant had not given his views on the choice he had been offered) the applicant was transferred from 1 March 1976 to the Heat Transfer and Fluid Mechanics Division, Department B at Ispra by decision of the Director-General of the Joint Research Centre.
At that time, and I mention this because it is also important with regard to the proceedings, the applicant was taking part in a conference of experts which was held in Vienna from 8 to 11 December 1975 at the International Atomic Energy Agency. In this connexion the applicant appears to have been elected chairman of this group of experts and was entrusted with the drawing-up of a report which concerned his special field. However the applicant was informed by the Director-General of the Joint Research Centre in February 1976 with regard to this work that it was not acceptable for the Vienna tasks to take up a major part of his time and that he was only allowed to perform work outside Ispra incidentally.
These events prompted the applicant to lodge a formal complaint to the appointing authority on 27 February 1976, that is, before taking up his duties in Ispra on 8 March 1976 after a period of leave. In this complaint he objected primarily that the transfer involved serious disadvantages for him both with regard to his family circumstances and in relation to his career and that it did not enable him adequately to continue the work in Vienna. In addition he complained that the post in Washington, which has already been mentioned, was filled by another official. Moreover, he objected that in 1967 and 1969 incorrect reports within the meaning of Article 43 of the Staff Regulations of Officials had been drawn up concerning him and that on that account he had brought proceedings before the Joint Reports Committee in which it was acknowledged that his complaint was well founded, and that during the subsequent period such reports had not been drawn up at all with a description of his duties. Accordingly he requested,
—
the annulment of the transfer decision.
—
permission to deal exclusively with the work in Vienna,
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the adoption of a viewpoint on the comments he had made concerning the two reports of 1967 and 1969,
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a description of his work during the years 1966 to 1976,
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the drawing-up of reports under Article 43 for the years 1965 and 1975,
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his appointment as head of a service as from 1965,
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the payment of corresponding arrears of salary and
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the payment of damages.
The applicant received no decision regarding this complaint. For that reason he lodged an application before the Court of Justice on 30 June 1976 and thus instituted the present proceedings.
In the application a large number of requests were formulated, starting with the annulment of the implied refusal of his complaint, continuing with the annulment of the refusal to give a description of the applicant's duties and to draw up reports concerning him under Article 43, and ending with an order for the payment of material and non-material damages for various reasons.
These requests were partially amended and partially completed in the reply. In the oral procedure it was finally made clear that the applicant's requests are merely as follows:
1.
The annulment of the decision providing for his transfer to Ispra;
2.
An order that the Commission pay non-material and material damages in view of the fact that the transfer is illegal, that no reports under Article 43 of the Staff Regulations of Officials were drawn up concerning him and that it was made impossible for him to devote himself sufficiently to the work in Vienna.
My attitude to these issues is as follows:
1. The transfer decision
In the applicant's view the transfer decision is defective both as to form and as to substance.
(a)
I shall first examine whether the objections relating to formal and procedural requirements are well founded.
(aa)
In this connexion it is necessary first to deal with the question whether the Commission was in breach of the second paragraph of Article 25 of the Staff Regulations of Officials which provides that decisions adversely affecting officials shall state the reasons on which they are based. In the opinion of the applicant this is so because the decision of the Director-General of the Joint Research Centre of 10 November 1975 does no more than mention the interests of the service of the Commission in a transfer and gives no further details. On the other hand the Commission objected principally that a decision providing for a transfer for official reasons requires no statement of the reasons upon which it is based. Moreover, it takes the view that such a statement of reasons, if considered necessary, is sufficiently contained in letters which were sent to the applicant in connexion with the transfer decision.
With regard to this issue it is necessary first to state that transfer decisions which are taken against the wishes of the person concerned must certainly be regarded as measures adversely affecting an official within the meaning of the second paragraph of Article 25 of the Staff Regulations of Officials and therefore require a statement of the reasons upon which they are based. This is clearly shown by the decision in Case 35/72 (Walter Kley v Commission of the European Communities, judgment of 27 July 1973, [1973] ECR 688) after a different view had been put forward in the judgment in Joined Cases 18 and 35/65 (Max Gutmann v Commission of the European Atomic Energy Community, judgments of 5 May 1966 and 15 March 1967, [1966] ECR 103 and [1967] ECR 75).
On the other hand, it is however also of importance that the duty to give a statement of reasons depends upon decisions previously taken with regard to the person concerned (Case 36/64, Société Rhénane d'Exploitation et de Manu-tention (SOREMA) v High Authority of the ECSC, judgment of 2 June 1965, [1965] ECR 329, and Case 1/69, Government of the Italian Republic v Commission of the European Communities, judgment of 9 July 1969, [1969] ECR 277), and that with regard to that statement of reasons, as emphasized very generally in Case 35/72, the circumstances in which a decision is made are relevant.
Seen in this way, it is necessary to take into consideration in the present case the fact that the applicant had already been informed in a letter of 1 October 1975 from the Director-General to whom he was responsible that the development of the molten salt breeder reactor (réacteur surgénérateur à sels fondus) was not catered for in the programme of the Joint Research Centre and will in addition not be catered for in the foreseeable future and that for that reason it was impossible, under the programme laid down by the Council of Ministers for Petten, to employ the special knowledge of the applicant there. It is even more important that, in a letter of 11 December 1975 from the Director-General of the Joint Research Centre accompanying the transfer decision, reference is made to a memorandum of 17 November 1975. In that memorandum which was also from the Director-General of the Joint Research Centre it was explained to the applicant that the work relating to molten salt breeder reactors could not be continued within the sphere of the Joint Research Centre. In addition his attention was drawn to the fact that other Directorates. General likewise had no tasks of this nature to offer. For that reason it was necessary to entrust the applicant with tasks which formed part of the programme of the Joint Research Centre. As it was impossible to employ the applicant in Petten, Karlsruhe or Geel in accordance with his knowledge and abilities, and because there were two opportunities of this nature in Ispra, which were described in detail, it was necessary to consider transferring him to Ispra.
I have a mind to accept that the duty to give a statement of reasons was, in the circumstances, fulfilled in that way. However, I consider that the fact that the contents of the abovementioned memoranda were not repeated in the transfer decision itself does not justify speaking of an infringement of essential procedural requirements. Consequently, it is impossible to justify annulment of the transfer decision by a reference to the second paragraph of Article 25 of the Staff Regulations of Officials.
(bb)
Secondly, the applicant takes the view that the issue of a transfer decision presupposes an examination of the personal file. In his case it is necessary to take into consideration in this connexion the fact that his personal file did not include any reports under Article 43 of the Staff Regulations with a description of his duties, since the last report concerning him was made in 1969 and, in addition, was criticized by the competent committee in reply to his complaint. It may therefore be said that the transfer decision has no substantial basis because it was not drawn up with knowledge of all facts relating to the career of the applicant and his work.
In this connexion it is necessary, and I shall come back to this fact again in another connexion, to acknowledge that since the abovementioned date no reports concerning the applicant have in fact been drawn up under Article 43 of the Staff Regulations, reports which, as you know, must also contain a description of the duties. However I am, with the Commission, of the opinion that it is nevertheless impossible to say that the transfer decision has no substantial basis. In fact it is necessary to bear in mind that the applicant, as described at the outset, was directly attached to the Director of the research establishment at Petten and, from 1970 onwards, to the Director-General of the Joint Research Centre. Therefore it can immediately be assumed that the Director-General of the Joint Research Centre was indeed informed of the work and abilities of the applicant and that the transfer decision made by him was therefore issued with knowledge of all important factors.
(cc)
It is claimed that the fact that there was no vacant post available in Ispra is a further defect in the transfer procedure. It is alleged that in any case there was no vacancy notice in accordance with Article 4 of the Staff Regulations, a notice which is necessary so that the officials concerned and, if necessary, the Court of Justice can examine whether the post to which the applicant is being transferred corresponds to his grade and abilities.
With regard to this allegation, it is, first, important that the applicant was transferred from Petten to Ispra together with his post. This explains why there was no vacant post in Ispra and no vacany notice as provided for in the Staff Regulations. In fact, according to the case-law of the Court, (see the judgment in Case 61/70, Gianfranco Vistosi vCommission of the European Communities, judgment of 16 June 1971, [1971] ECR 535), a vacancy notice is not necessary if the official who occupied a post is transferred together with it, in other words if the appointing authority considers that a post must be transferred from one service to another service in which it can be more usefully employed. In this connexion, and at this stage I shall do no more than point this out, if the administrative structures and the classification of duties are not to become intolerably rigid it is irrelevant in the case of scientific officers whether there are some changes in the duties of the official concerned.
On the other hand it is essential with regard to the present case that the examination considered necessary by the applicant (as to whether the duties and grade correspond) can in fact be carried out. In this respect the description of duties contained in the abovementioned memorandum from the Director-General of the Joint Research Centre of 17 November 1975 in respect of the posts at Ispra which came into consideration at that time ought in fact to be sufficient.
It is likewise hardly possible to criticize the transfer decision from the aspect with which I have just dealt.
(dd)
Finally, and I shall say it at once, the same thing applies to the fourth objection that the transfer decision was not posted up, in breach of the third paragraph of Article 25 of the Staff Regulations, but first brought to the applicant's knowledge through a staff notice of 29 April 1976 that he had been transferred to Ispra as from 1 March 1976.
In my opinion it is quite clear that the intention of the provision on which the applicant bases his argument is only to inform the staff of such events so that officials concerned may duly lodge a complaint if necessary. On the other hand it is incorrect to regard the requirement laid down in the third paragraph of Article 25 as a condition for the validity of decisions of that nature. Therefore a breach of the third paragraph of Article 25 of the Staff Regulations can likewise not lead to the annulment of the transfer decision.
(b)
The further question which must now be examined is of central importance with regard to the proceedings, in other words the question whether it is possible to object to the transfer decision on the ground that it does not correspond to the requirements of the service or is in any case defective because it did not take into consideration essential interests of the applicant.
(aa)
In this connexion it must be pointed out from the beginning that the appointing authority has wide discretion in respect of the issue of measures of that nature which are closely connected with the exercise of the power of the administration. Accordingly, the Court of Justice cannot in such a case enter into all questions of detail, particularly not those which involve considerations of expediency. In a case such as this judicial review by the Court of Justice rather amounts in essence to determining whether convincing reasons have been brought forward to show that the applicant could not appropriately be further employed in his former context and that it appeared possible to employ him usefully in the field to which he was transferred. Moreover, in examining the question whether this decision is appropriate it is perhaps also possible to consider the question whether the appointing authority took essential personal interests into consideration to a reasonable extent and whether, before issuing a decision involving radical changes, it took sufficient pains to find less drastic solutions.
From this point of view the starting-point of the applicant's criticism is already inappropriate. In my opinion it is impossible to justify the applicant's view that the appointing authority is under a duty to give absolute priority to the consideration of ensuring that the applicant can continue to work in his special field. Likewise, the opinion that the transfer decision may only be regarded as correct if evidence is produced that other conceivable solutions, in other words employment of the applicant outside Ispra, did not come into question at all is unacceptable.
(bb)
The important point is therefore whether serious material reasons were shown for not retaining the applicant in the post and the duties which he had occupied until the end of 1975.
In this connexion events which took place a considerable time ago are relevant. Thus, a decision of the Council adopted in 1965 on the modification of the research programme for Petten led to the dissolution of the Hydrodynamics and Measures Division of which the applicant had been the head from 1963 onwards. The applicant, for whom employment within the research programme for Petten properly speaking did not at that time come into consideration, was subsequently entrusted with the continuation of his previous work and studies and, it is true, in an unusual post; he was first attached directly to the Director of the research establishment at Petten and later directly attached to the Director-General of the Joint Research Centre.
This seemed justifiable for a while, that is, for so long as there were surplus scientific staff at the Joint Research Centre who could not be employed within the context of programmes which had been laid down. However, following the continuous reduction in the total staff this was apparently also no longer the case in Petten from 1974 onwards. Accordingly a memorandum from the Director-General of the Joint Research Centre of 27 May 1974 stated that from 1974 onwards the Council no longer authorized surplus scientific staff.
In addition, in 1975 a new programme was laid down for Petten on which all employees had to concentrate. There was apparently no room in this context either for the studies of the applicant and no solution could be found in that context for an appropriate use of the applicant's knowledge and abilities.
In view of this situation, which the applicant does not seriously call in question, it can in fact be assumed that there was an essential starting-point for the issue of the transfer decision, in other words the necessity of employing the applicant elsewhere. In any case it is impossible in this respect to see anything which indicates a misuse of discretionary power.
(cc)
So far as the further question of interest in this connexion is concerned, whether the appointing authority took sufficient pains to find a less radical measure before deciding the transfer to Ispra, I can see no reason here either for a convincing criticism.
In this respect I need not dwell on the fact that the applicant was advised at the beginning of 1975 to apply for the post of scientific attaché in Washington and that this was unsuccessful because another candidate was preferred. In the present proceedings there is no need to consider or decide whether this vacancy was filled correctly since the applicant has failed to lodge a direct action within the prescribed period against the abovementioned measure.
It is important, rather, that, as the Court was shown by means of the letter mentioned at the outset, attempts were made at certain Directorates-General in Brussels. However, they were unsuccessful because the applicant's special field could apparently not be appropriately fitted into any of the current projects of the Directorate-General to whom letters were written. It is also important, and the applicant was unable to refute this fact, that the appointing authority examined the possibility of employment in other research establishments (Karlsruhe, Geel and Mol). It seems that this did not lead to any satisfactory result either, on account, first, of the small staff of those establishments, and, secondly, because of their special areas of work for which the applicant's specialist knowledge was not of interest.
This is sufficient to assume that the appointing authority made reasonable efforts and that therefore this is not a case of misure of discretionary powers. On the other hand, there is no reason to consider the question whether it would not have been possible to extend the efforts further since the applicant was unable to prove sufficiently that obvious opportunities of employment existed at other Directorates-General. It is likewise impossible to prove a misuse of powers by reference to the fact that the appointing authority did not examine whether the applicant could be employed in the context of agreements with national or international agencies or even seconded, as provided for in Article 6 of the EAEC Treaty. There is likewise insufficient clear evidence thereof quite apart from the fact that considerations in this connexion would encroach too far on the margin of discretion reserved to the appointing authority within which it alone must come to a decision on the priorities in the treatment of certain subjects and the employment of the staff at its disposal.
(dd)
In his criticisms the applicant lays great stress, which brings me to a further consideration, on the fact that his transfer was not agreed with the head of the Joint Research Centre at Ispra responsible and that he was given no clearly defined duties in Ispra. Accordingly it cannot be assumed that the requirements of the service necessitated his transfer to Ispra. In addition, it is important that the duties which were mentioned in the transfer decision were of a lower level than his former tasks and that he was also assigned to a lower position in the hierarchy of officials.
The first part of this criticism is clearly unfounded. The Commission has assured the Court, and I see no reason to doubt the truth of its statement, that the Director of the research establishment at Ispra agreed orally to the transfer of the applicant. It is not therefore correct that the administration of the establishment did not see any reasonable employment for the applicant. It is likewise incorrect that the duties to which the applicant was newly assigned were not clearly defined. In this connexion it is possible to refer to the abovementioned letter of the Director-General of the Joint Research Centre of 17 November 1975 which preceded the transfer. Secondly, a telex sent on 12 March 1976 by one of the applicant's superiors to the Director General of the Joint Research Centre shows that the applicant had been informed about his new duties.
Moreover, so far as the nature and level of the duties to which the applicant was assigned and his position in the hierarchy of officials are concerned, it is necessary to make the following observations.
I do not consider decisive the fact that a certain change in duties occurs when an official is transferred so long as a sufficiently close connexion exists with the activities carried out until then and with the education and knowledge of the official concerned. I am convinced that it has not been sufficiently clearly shown that this was lacking in the present case. In particular the statement that the duties assigned to the applicant in Ispra are really those of a technician in Grade B 1 is in no way substantiated. In this respect, it should in particular be borne in mind that the applicant is an official in Grade A 5 and as such is in a career bracket containing several grades (Grade A 5 to Grade A 8). In my opinion it is not particularly surprising that in this connexion the level of the duties are not always clearly enough contrasted with one another.
On the other hand, the fact that the applicant was intergrated into the hierarchy of officials in Ispra and accordingly has four levels of superiors above him is of no importance because this is the normal rule in the case of an official in Grade A 5. This cannot be regarded as a downgrading even if it is a fact that the applicant was for a long time directly attached to the Director of a research establishment and subsequently directly attached to the Director-General of the Joint Research Centre. As I have already mentioned, this occurred after the disbanding of the service of which the applicant had originally been the head when the problem arose how appropriately to employ him further. However it is impossible to say that in this way the applicant became an ‘adviser’, and in particular it is impossible to derive from this a claim that the special situation caused by the difficulties of which this Court is aware had to continue as before and that the applicant had always to remain outside the hierarchy provided for under the Staff Regulations of Officials.
(ee)
Finally, I have still to examine the question whether it is possible to call in question the legality of the transfer decision on the ground that it led to a restriction of the duties with which the applicant was entrusted in the context of a committee of experts formed within the International Atomic Energy Agency and which were supposed to be completed in 1977. In addition, it is necessary to examine whether it is possible to object to the transfer decision on the ground that it did not take into consideration the fact that the applicant as the innocent party to a divorce has custody of three children who are minors, two of whom were born in the Netherlands, and that their Netherlands' governess is not willing to move with them to Italy for a long period of time.
With regard to the first point, the activities of the applicant in Vienna, it is necessary to emphasize first that, in a memorandum from the Director-General of the Joint Research Centre of 28 November 1975 in which the applicant was authorized to accept the invitation to the conference in Vienna from 8 to 11 December 1975, it was expressly emphasized that activities in this field could not be pursued further because they no longer formed part of the Community research programme. In this way it was made clear, and in so doing the transfer of the applicant was certainly already envisaged, that the applicant was not supposed to undertake important duties which required a long period of time. Moreover, reference was once more made thereto in a telex from the Director-General of the Joint Research Centre which was sent to one of the applicant's superiors on 19 March 1976. The fact that the applicant was only left marginal time for the activities in Vienna (10 % was mentioned as the criterion in a letter) can therefore hardly be put forward against the transfer decision. In my opinion it would be of no importance even if the above-mentioned restriction had not been imposed at the outset, for it is obviously within the discretion of the appointing authority to re-organize work if it takes the view that certain duties must take precedence in the Community programme. An official never has a right to the continuation of certain activities which have at one time been entrusted to him or which he has at one time been authorized to perform.
On the other hand with regard to the applicant's family situation it should not be ignored that the transfer involved problems for him in so far as the Netherlands' governess of his children is not prepared to move to Italy permanently. However, I take the view that this is not an absolute bar precluding a transfer decision if the latter seems appropriate for official reasons. In addition, I cannot agree that these are insoluble problems. In the proceedings the applicant, who was, after all, prepared to go to the USA in 1975, did nothing to counteract the impression that he has not yet made any special efforts to solve this problem, which is certainly difficult.
(ff)
On the basis of the examination of all the foregoing aspects it can be stated that the Commission cannot be reproached with a misuse of powers in the adoption of the contested transfer decision. Since, in addition, other evidence which is intended to show that this is a disguised disciplinary measure is not sufficiently weighty — the applicant puts forward in this connexion the fact that the Hydrodynamics and Measures Division was disbanded, his secretary was taken away, his office in Petten was cleared without his knowledge together with other related threatened sanctions — it can be stated all in all that the principal claim for the annulment of the transfer decision is unfounded
2. The claims for damages
After this it is still necessary to examine how matters stand with regard to the claims for damages made by the applicant. These are based on three grounds:
—
the transfer to Ispra which, in the opinion of the applicant, is illegal and which is alleged to have caused both material damages (travelling expenses, expenditure on rent, telephone and food are mentioned in this connexion) and also non-material damages (the applicant speaks of a capitis diminutio);
—
in addition, the fact that the applicant was authorized to continue the work in Vienna only to a very limited extent,
—
and, finally, the tact that no reports under Article 43 of the Staff Regulations containing descriptions of his activities existed in respect of the applicant since 1967, which prejudiced his chances of a promotion and prevented the application of Articles 97 and 99 of the Staff Regulations of Officials.
(a)
I can be very brief with regard to the first point in support of his claim. In my view the transfer decision is not defective, in other words not illegal. In particular, it has not been shown that it is linked in the applicant's case with a downgrading. The transfer decision can therefore not lead to the payment of any damages.
(b)
With regard to the activities of the applicant in Vienna, the latter considers that the abovementioned restriction is in breach of the duty of assistance laid down in the third paragraph of Article 24 of the Staff Regulations of Officials since it does not leave the applicant sufficient scope for work in his special field, which is important with regard to his further career.
Basically, everything important has already been said in this respect as also in connexion with the examination of the transfer decision in which this aspect, as you know, is also alleged to be relevant. In this connexion I shall recall once more that in the case-law of the Court (see for example the judgment in Case 21/68 André Huybrechts v Commission of the European Communities, judgment of 6 May 1969, [1969] ECR 85) it has been emphasized repeatedly that no one has a right to specific duties; rather, an official is entrusted with duties in the context of the power of the administration which includes a margin of discretion. There is no doubt that there is a further margin of discretion with regard to the question how far activities in the context of further training and instruction, which is mentioned in the third paragraph of Article 24 of the Staff Regulations, are compatible with the requirements of the service. In the present case I can see no indications that this discretion was not exercised correctly, since the applicant was for all that permitted to devote himself to the activities in Vienna to a certain extent although his special field does not at present form part of the programme of the Communities. Therefore the aspect which I have just dealt with certainly does not permit the applicant to be awarded damages.
(c)
On the other hand the absence of reports concerning the applicant under Article 43 of the Staff Regulations is more problematic. As we have seen, the most recent report concerning the applicant dates from 1969. In addition, the applicant had lodged a complaint against it which was declared well founded by the Joint Reports Committee. The report was however not corrected.
To this extent it is necessary to acknowledge that the Commission has evidently not fulfilled its duties under the Staff Regulations. In view of the special situation in which the applicant found himself since 1967 this is, I agree, not wholly incomprehensible; however his direct attachment to the Director-General of the Joint Research Centre certainly cannot constitute a justification for the absence of reports.
It is, I admit, questionable whether it can be considered to have been shown that this had an adverse affect on the salary and career of the applicant and whether claims for damages can therefore be justified. In particular, as regards the loss of chances of promotion it is in my opinion necessary to have considerable doubts.
It is necessary therefore to recall at the outset that at the time in question the applicant was directly attached to the Director of the research establishment at Petten and subsequently to the Director-General of the Joint Research Centre. These superiors knew him and his work very well and could have, if they considered it appropriate, put forward corresponding proposals for promotion, especially since the Director-General of the Joint Research Centre is apparently a member of the Promotion Committee at the Commission.
It also seems to me important that the applicant indeed repeatedly indicated in letters to the Director-General of the Joint Research Centre and to the Director-General for Personnel and Administration that there were no reports under Article 43 of the Staff Regulations but never took effective steps to remedy this deficiency, such as lodging a complaint or instituting legal proceedings. In the same way, he apparently did not protest that his name was not put on lists of proposals for promotion which, under the system applied at the Commission, were drawn up by promotion committees.
In these cirumstances, I cannot accept that the applicant's chances of promotion may have been reduced or that his prospects of the application of the abovementioned provisions of the Staff Regulations may have been lessened. It would at least be necessary to speak of considerable contributory liability on the part of the applicant. Thus by reference to the absence of reports under Article 43 of the Staff Regulations.
The last point which may be examined in this connexion, and with this I am also bringing this section to an end, is the taking into consideration of the abovementioned fact in making a decision as to costs. This has already been done in cases in which, although it was held that there had been a wrongful act or omission, in the absence of evidence of damage claims for damages were not granted. If this decision is also reached in the present case it would be possible to envisage ordering the Commission to bear a quarter of the applicant's expenses in the proceedings, taking into account the importance of this claim in the context of the whole proceedings and bearing in mind in this connexion two unsuccessful applications for the issue of interim measures.
3.
To summarize, I therefore propose that the application should be completely rejected and that the Commission should be ordered to bear one-quarter of the costs incurred by the applicant as a result of the proceedings.
(
1
)	Translated from the German.