61979CJ0156(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 156/79 AND 51/80,
PIERRE GRATREAU, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN FRASCATI ( ITALY ), ASSISTED AND REPRESENTED BY ERNEST ARENDT OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 34B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JORN PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR, 93 AVENUE BRILLAT-SAVARIN, 1050 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, JEAN MONNET BUILDING, KIRCHBERG, LUXEMBOURG,
DEFENDANT,
Subject of the case
APPLICATIONS, AT THIS STAGE OF THE PROCEEDINGS FOR :
1 . THE ANNULMENT OF THE COMMISSION ' S DECISIONS DATED 9 NOVEMBER AND 20 DECEMBER 1978 LAYING DOWN, IN THE CASE OF OFFICIALS EMPLOYED IN CONNECTION WITH ' ' INDIRECT ACTIONS ' ', THE LIST OF OFFICIALS IN CATEGORY A PAID FROM RESEARCH APPROPRIATIONS JUDGED TO BE THE MOST DESERVING OF PROMOTION TO GRADE A 4 FOR THE FINANCIAL YEAR 1978 AND THE LIST OF OFFICIALS ACTUALLY PROMOTED FOR THAT YEAR, ON THE GROUND THAT THE APPLICANT ' S NAME DID NOT APPEAR ON EITHER LIST ;
2 . THE CLASSIFICATION OF THE APPLICANT, BY WAY OF COMPENSATION FOR THE DAMAGE SUFFERED BY HIM, IN GRADE A 4, STEP 7, AS FROM 1 JANUARY 1981 .
Grounds
15 IN ITS INTERIM JUDGMENT OF 18 DECEMBER 1980, THE COURT ( SECOND CHAMBER ) TOOK THE VIEW THAT IN CIRCUMSTANCES SUCH AS THOSE OF THE PRESENT CASE, THE IRREGULARITY IN THE PROMOTION PROCEDURE IN THE CASE OF THE APPLICANT WHICH WAS ESTABLISHED IN THAT JUDGMENT, NAMELY THE IMPROPER INCLUSION IN THE FILE OF HIS PERIODIC REPORT FOR 1973 TO 1975 AND THE FACT THAT HIS REPORT FOR 1975 TO 1977 WAS NOT FINAL, WAS INSUFFICIENT TO INVALIDATE THE PROMOTIONS MADE UNLESS IT WAS ESTABLISHED THAT THE IRREGULARITY IN QUESTION MIGHT HAVE HAD A DECISIVE INFLUENCE ON THE PROMOTION PROCEDURE .
16 THE DOCUMENTS SUBSEQUENTLY PRODUCED BY THE COMMISSION PERMIT THE FINDING TO BE MADE THAT, EVEN IF THE APPLICANT ' S PERIODIC REPORT FOR 1973 TO 1975 HAD BEEN AMENDED IN THE SAME MANNER AS HIS REPORT FOR 1975 TO 1977, AND EVEN IF THE LATTER REPORT HAD BEEN FINAL WHEN THE PROMOTION PROCEDURE COMPLAINED OF WAS IN PROGRESS, THE ASSESSMENTS AWARDED IN RESPECT OF THOSE PERIODS TO THE
OFFICIALS ACTUALLY PROMOTED WOULD, IN THE AGGREGATE, HAVE BEEN BETTER THAN THOSE AWARDED TO THE APPLICANT . THERE IS NOTHING IN THE DESCRIPTIVE PARTS OF THE FINAL REPORTS TO SUGGEST THAT THE RELEVANT ASSESSMENTS WERE NOT FOUNDED ON AN OBJECTIVE APPRAISAL .
17 IT HAS THEREFORE NOT BEEN SHOWN THAT THE IRREGULARITY ESTABLISHED BY THE COURT MIGHT HAVE HAD A DECISIVE INFLUENCE ON THE PROMOTION PROCEDURE . FOR THAT REASON, THE COURT CANNOT ACCEPT THE PRINCIPAL SUBMISSIONS RELIED UPON BY THE APPLICANT IN HIS OBSERVATIONS OF 9 AUGUST 1981 .
18 AS REGARDS THE SECONDARY SUBMISSIONS OF THE APPLICANT REQUIRING THE COMMISSION TO PRODUCE ADDITIONAL DOCUMENTS, IT MUST BE EMPHASIZED FIRST OF ALL THAT THE APPLICATION IS DIRECTED EXCLUSIVELY AGAINST THE PROMOTION PROCEDURE FOR THE FINANCIAL YEAR 1978 . IN THAT RESPECT, THE DOCUMENTS RELATING TO THE FINANCIAL YEARS 1979 AND 1980, THE PRODUCTION OF WHICH IS SOUGHT BY THE APPLICANT, ARE NOT MATERIAL .
19 SECONDLY, IT MUST BE RECALLED THAT THE SOLE ARGUMENT RELIED UPON BY THE APPLICANT IN HIS APPLICATION IS CONFINED TO HIS PERIODIC REPORTS FOR 1973 TO 1975 AND FOR 1975 TO 1977 . THE FACT THAT IN HIS OBSERVATIONS OF 9 AUGUST 1981 THE APPLICANT QUESTIONS WHETHER THE PROMOTION BODIES AND THE APPOINTING AUTHORITY HAVE TAKEN SUFFICIENT ACCOUNT OF OTHER CIRCUMSTANCES CONSTITUTES THE RAISING OF A FRESH ISSUE . THAT ISSUE IS NOT BASED ON MATTERS OF LAW OR OF FACT WHICH HAVE COME TO LIGHT IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT . THIS MATTER MUST THEREFORE BE DISMISSED AS INADMISSIBLE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE .
20 ON THOSE GROUNDS, IT IS ALSO UNNECESSARY TO UPHOLD THE SECONDARY SUBMISSIONS PUT FORWARD BY THE APPLICANT IN HIS OBSERVATIONS ON 9 AUGUST 1981 .
Decision on costs
21 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, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
22 AS REGARDS CASE 51/80 IN WHICH THE APPLICATION WAS DISMISSED AS INADMISSIBLE BY THE INTERIM JUDGMENT OF 18 DECEMBER 1980, THE PARTIES MUST BEAR THEIR OWN COSTS, PURSUANT TO THE AFORESAID PROVISIONS .
23 AS REGARDS CASE 156/79, THE PARTIES HAVE AGREED THAT THE COMMISSION IS TO BEAR ALL THE COSTS . ACCORDINGLY THE COMMISSION MUST BE ORDERED TO PAY ALL THE COSTS, INCLUDING THOSE OF THE APPLICANT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION IN CASE 156/79 ;
2 . IN THAT CASE, ORDERS THE COMMISSION TO PAY ALL THE COSTS, INCLUDING THOSE OF THE APPLICANT ;
3 . IN CASE 51/80, IN WHICH THE APPLICATION WAS DISMISSED AS INADMISSIBLE BY INTERIM JUDGMENT OF 18 DECEMBER 1980, ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .