61979CJ0156_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN JOINED CASES 156/79 AND 51/80
PIERRE GRATREAU, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT FRASCATI ( ITALY ), ASSISTED AND REPRESENTED BY ERNEST ARENDT OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT, 34 B RUE PHILIPPE-II,
APPLICANT,
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,
DEFENDANT,
Subject of the case
APPLICATIONS SEEKING THE ANNULMENT OF :
1 . 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 ;
2 . THE LIST OF OFFICIALS PROMOTED TO THAT GRADE ( CASE 156/79 ); AND
3 . THE COMMISSION ' S DECISION OF 30 OCTOBER 1979 REJECTING THE COMPLAINT, DIRECTED AGAINST THE AFOREMENTIONED LISTS, MADE BY THE APPLICANT THROUGH OFFICIAL CHANNELS ( CASE 51/80 ),
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 5 OCTOBER 1979 AND 6 FEBRUARY 1980 PIERRE GRATREAU, A SCIENTIFIC OFFICER OF THE COMMISSION EMPLOYED IN CONNEXION WITH ' ' INDIRECT ACTIONS ' ', WHO CARRIES OUT HIS DUTIES AT FRASCATI IN THE CONTEXT OF THE EURATOM-CNEN ASSOCIATION CONTRACT, BROUGHT TWO ACTIONS AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES .
2 THE FIRST OF THESE ACTIONS ( CASE 156/79 ) SEEKS THE ANNULMENT OF :
( A ) 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 ;
( B)THE LIST OF THOSE OFFICIALS WHO WERE PROMOTED TO GRADE A 4 FOR THE SAID FINANCIAL YEAR ;
BOTH OF WHICH WERE DRAWN UP BY THE APPOINTING AUTHORITY .
3 THE SECOND ACTION ( CASE 51/80 ) SEEKS THE ANNULMENT OF THE COMMISSION ' S DECISION OF 30 OCTOBER 1979 REJECTING THE APPLICANT ' S COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE ABOVE-MENTIONED LISTS .
4 BY ORDER OF 29 MAY 1980 THE COURT JOINED THE TWO CASES . IN ADDITION, THE COMMISSION HAVING RAISED AN OBJECTION OF INADMISSIBILITY AGAINST THE SECOND ACTION, THE COURT, BY THE SAME ORDER, DECIDED TO RESERVE A DECISION ON THE OBJECTION FOR THE FINAL JUDGMENT .
SCOPE AND ADMISSIBILITY OF THE ACTIONS
5 THE TWO LISTS UNDER CHALLENGE WERE PUBLISHED IN ' ' ADMINISTRATIVE NOTICES ' '
ON 20 NOVEMBER AND 20 DECEMBER 1978 RESPECTIVELY . THE APPLICANT SUBMITTED TO THE APPOINTING AUTHORITY A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH WAS REGISTERED ON 5 MARCH 1979
AND WAS DIRECTED AGAINST THE TWO LISTS . SO FAR AS RELEVANT TO THE PRESENT CASES, THE APPLICANT CONTENDED IN PARTICULAR THAT WHEN THE LISTS WERE DRAWN UP HIS PERSONAL FILE WAS NOT IN ORDER SINCE THE PERIODIC REPORT FOR THE 1973 TO 1975 PERIOD HAD BEEN IRREGULARLY INCLUDED IN HIS FILE AND THE PERIODIC REPORT FOR THE 1975 TO 1977 PERIOD WAS NOT YET FINAL .
6 THE COMMISSION NEGLECTED TO REPLY TO THAT COMPLAINT WITHIN THE FOUR-MONTH PERIOD PROVIDED FOR IN THE SAID ARTICLE 90 WITH THE RESULT THAT ON 5 JULY 1979 IT WAS DEEMED TO HAVE TAKEN AN IMPLIED DECISION OF REJECTION, UPON WHICH THE APPLICANT BROUGHT THE FIRST ACTION ON 5 OCTOBER 1979 ( CASE 156/79 ).
7 ON 22 NOVEMBER 1979, AFTER THE EXPIRY OF THE PERIOD, THE COMMISSION SENT THE APPLICANT AN EXPRESS DECISION REJECTING HIS COMPLAINT . IN SO FAR AS THE PERIODIC REPORT FOR THE 1973 TO 1975 PERIOD IS CONCERNED, THE COMMISSION CONFINED ITSELF TO STATING THAT THE APPLICANT HAD NOT AVAILED HIMSELF OF THE APPEAL THROUGH OFFICIAL CHANNELS AGAINST THAT REPORT AND THAT THE REPORT HAD THEREFORE BECOME FINAL . THE SECOND ACTION ( CASE 51/80 ) OF 6 FEBRUARY 1980 IS DIRECTED AGAINST THAT EXPRESS DECISION .
8 SO FAR AS CONCERNS THE FIRST ACTION, THE ADMISSIBILITY OF WHICH IS NOT DISPUTED BY THE COMMISSION, IT SHOULD BE NOTED THAT THE DISPUTED LISTS INCLUDE OFFICIALS EMPLOYED IN THE JOINT RESEARCH CENTRE AS WELL AS OFFICIALS WHO, LIKE THE APPLICANT, WERE EMPLOYED IN CONNEXION WITH ' ' INDIRECT ACTIONS ' ' . HOWEVER, IT APPEARS FROM THE FILE THAT, AS REGARDS THE LATTER, THE LISTS WERE DRAWN UP ON THE BASIS OF SEPARATE DECISIONS OF THE COMMISSION DATED 9 NOVEMBER AND 20 DECEMBER 1978 RESPECTIVELY . THE ACTION SHOULD THEREFORE BE UNDERSTOOD AS SEEKING THE ANNULMENT OF THE LISTS ONLY IN SO FAR AS THEY ARE BASED ON THOSE DECISIONS .
9 SO FAR AS THE SECOND ACTION IS CONCERNED, ITS ADMISSIBILITY IS DISPUTED BY THE COMMISSION ON THE GROUND OF THE PURELY CONFIRMATORY NATURE OF THE EXPRESS DECISION .
10 IT APPEARS IN FACT FROM THE WORDING OF THAT DECISION THAT IT DOES NOT ADD ANY NEW FACTOR TO THE ACTS ADVERSELY AFFECTING THE APPLICANT AGAINST WHICH THE FIRST ACTION IS DIRECTED . THE EXPRESS DECISION REJECTING THE APPLICANT ' S COMPLAINT DOES NOT THEREFORE CONSTITUTE IN ITSELF A DECISION WHICH MAY BE CHALLENGED . IT FOLLOWS THAT THE SECOND ACTION SERVES NO PURPOSE AND IS THEREFORE INADMISSIBLE .
THE SUBSTANCE
11 THE APPLICANT ADVANCES THE SINGLE SUBMISSION THAT THE DISPUTED LISTS WERE DRAWN UP IN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT BECAUSE THE APPOINTING AUTHORITY WAS NOT ABLE TO CARRY OUT, AS REQUIRED BY ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS, A ' ' CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM ' ' . THE REASON FOR THIS IS ALLEGED TO BE THAT THE APPLICANT ' S PERSONAL FILE WAS IRREGULAR AND INCOMPLETE INASMUCH AS THE PERIODIC REPORT FOR THE 1973 TO 1975 PERIOD WAS WRONGLY INCLUDED IN IT WHILST THE REPORT FOR THE 1975 TO 1977 PERIOD WAS STILL UNDER REVISION .
12 IT IS APPROPRIATE THEREFORE TO CONSIDER WHETHER THE APPLICANT ' S PERSONAL FILE WAS IN FACT IRREGULAR AND INCOMPLETE AND, IF SO, TO ASCERTAIN WHETHER THAT CIRCUMSTANCE AFFECTS THE VALIDITY OF THE LISTS WHICH HAVE BEEN CHALLENGED .
A - THE PERIODIC REPORTS
13 IT APPEARS FROM THE FILE IN THE CASE THAT THE TWO REPORTS WERE COMPILED WITH CONSIDERABLE DELAY . THE APPLICANT ONLY RECEIVED THE PERIODIC REPORT RELATING TO THE PERIOD FROM 1 JULY 1973 TO 30 JUNE 1975 ON 24 MAY 1977 AND THE REPORT RELATING TO THE PERIOD UP TO 30 JUNE 1977 WAS ONLY SENT TO HIM ON 14 SEPTEMBER 1978 .
14 THE COMMISSION HAS EXPLAINED THESE DELAYS AS ARISING FROM THE FACT THAT OFFICIALS WHO WORK WITHIN THE FRAMEWORK OF ASSOCIATION CONTRACTS DO NOT HAVE IMMEDIATE SUPERIORS ON THE SPOT . THEY COME DIRECTLY UNDER THE DIRECTOR OF THE RELEVANT PROGRAMME . THE DIRECTOR OF THE ' ' FUSION ' '
PROGRAMME, UNDER WHOM THE APPLICANT COMES, IS THUS REQUIRED TO COMPILE REPORTS ON 72 OFFICIALS SPREAD OVER SIX MEMBER STATES AND EIGHT DIFFERENT CITIES .
15 IN THIS REGARD IT SHOULD BE EMPHASIZED THAT THE COMMISSION MAY NOT PUT FORWARD ITS INTERNAL ADMINISTRATIVE ORGANIZATION AS A JUSTIFICATION FOR THE NON-OBSERVANCE OF ITS OBLIGATIONS TOWARDS ITS OFFICIALS . AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 14 JULY 1977 IN CASE 61/76 GEIST V COMMISSION ( 1977 ) ECR 1419, ONE OF THE BOUNDEN DUTIES OF THE ADMINISTRATION IS TO ENSURE THAT THE REPORTS ARE DRAWN UP PERIODICALLY ON THE DATE LAID DOWN BY THE STAFF REGULATIONS AND THAT THEY ARE DRAWN UP IN A PROPER FORM . IN THE PRESENT CASE, THE COMMISSION HAS FAILED IN THAT DUTY .
16 AFTER RECEIVING HIS PERIODIC REPORT FOR 1973 TO 1975 THE APPLICANT RETURNED IT WITHIN THE PRESCRIBED PERIOD ON 6 JUNE 1977 AND INFORMED THE REPORTING OFFICER THAT, FOR REASONS WHICH HE EXPLAINED, HE WAS ' ' REGRETFULLY UNABLE TO ACCEPT THE ASSESSMENT RELATING TO ABILITY ' ' . DESPITE SEVERAL REMINDERS AND A PERSONAL INTERVIEW WITH THE REPORTING OFFICER ON 16 NOVEMBER 1977, THE LETTER OF 6 JUNE 1977 REMAINED UNANSWERED UNTIL 12 SEPTEMBER 1978 WHEN THE REPORTING OFFICER INFORMED THE MEDIATOR, MR DE GROOTE, TO WHOM THE APPLICANT HAD MEANTIME REFERRED THE MATTER, THAT HE HAD TAKEN ACCOUNT OF THE COMMENTS OF THE OFFICIAL UNDER ASSESSMENT IN DRAWING UP THE REPORT RELATING TO THE 1975 TO 1977 PERIOD . IN FACT, THE REPORTING OFFICER HAD CAUSED THE REPORT FOR THE PRECEDING PERIOD AND THE APPLICANT ' S COMMENTS TO BE FILED IN THE APPLICANT ' S PERSONAL FILE WITHOUT INFORMING EITHER THE APPLICANT OR THE MEDIATOR OF THIS .
17 ACCORDING TO THE COMMISSION, THE NOTE OF 12 SEPTEMBER 1978 WHICH WAS SENT BY THE REPORTING OFFICER TO THE MEDIATOR BY IMPLICATION INFORMED THE APPLICANT OF THE FACT THAT THE REPORTING OFFICER REGARDED THE REPORT RELATING TO THE 1973 TO 1975 PERIOD AS FINAL . THE COMMISSION SUBMITS THAT IF THE APPLICANT HAD WISHED TO INSIST ON THE MATTER HE OUGHT TO HAVE APPEALED TO THE APPEAL ASSESSOR .
18 THIS ARGUMENT MUST BE REJECTED . IT APPEARS CLEARLY FROM THE COMMENTS OF 6 JUNE 1977 THAT THE APPLICANT FORMALLY CHALLENGED THE ASSESSMENT . ACCORDING TO THE GUIDE TO STAFF REPORTS ISSUED BY THE COMMISSION, THE REPORTING OFFICER MUST, IF CONFIRMING THE REPORT AFTER HEARING THE OFFICIAL, INFORM THE OFFICIAL OF THIS BY A NOTE DRAWN UP IN ACCORDANCE WITH A SPECIMEN WHICH CONTAINS, INTER ALIA, EXPRESS REFERENCE TO THE OPPORTUNITY OF APPEALING TO THE APPEAL ASSESSOR . THE NOTE SENT ALMOST A YEAR AFTER THE INTERVIEW, NOT TO THE APPLICANT BUT TO THE MEDIATOR, WHICH CONCERNED THE REPORT FOR THE SUBSEQUENT
PERIOD, CANNOT, ON ANY VIEW, BE SUBSTITUTED FOR SUCH INFORMATION . IT IS NECESSARY THEREFORE TO HOLD THAT THE PERIODIC REPORT FOR THE 1973 TO 1975 PERIOD WAS NOT FINAL AND THAT, ACCORDINGLY, IT WAS WRONGLY INCLUDED IN THE APPLICANT ' S PERSONAL FILE .
19 ALTHOUGH THE REPORT FOR 1975 TO 1977 CONTAINED IMPROVEMENTS, THE APPLICANT AGAIN SENT COMMENTS TO THE REPORTING OFFICER WITHOUT OBTAINING THE DESIRED ALTERATIONS . HE THEN APPLIED TO THE APPEAL ASSESSOR WHO AMENDED THE REPORT AND SENT IT TO THE APPLICANT ON 7 SEPTEMBER 1979 . THAT REPORT WAS THEREFORE NOT FINAL AT THE TIME WHEN THE DISPUTED LISTS WERE DRAWN UP .
B - THE EFFECTS OF THE IRREGULARITY IN THE PERSONAL FILE
20 ACCORDING TO THE APPLICANT, THE IRREGULAR AND INCOMPLETE STATE OF HIS PERSONAL FILE MADE IT IMPOSSIBLE FOR THE PROMOTION COMMITTEES AND THE APPOINTING AUTHORITY TO CARRY OUT, IN HIS CASE, THE CONSIDERATION OF COMPARATIVE MERITS WHICH IS PROVIDED FOR IN ARTICLE 45 OF THE STAFF REGULATIONS . THE APPLICANT ARGUES IN PARTICULAR THAT IT IS WELL KNOWN THAT AN OFFICIAL WHOSE ASSESSMENT FOR EFFICIENCY AND ABILITY IS NO HIGHER THAN ' ' AVERAGE ' ', AS WAS THE CASE IN HIS REPORT FOR 1973 TO 1975, IS AUTOMATICALLY ELIMINATED, ESPECIALLY WHERE THERE ARE 75 CANDIDATES FOR THREE AVAILABLE POSTS .
21 THE COMMISSION EMPHASIZES THAT, FOR THE PURPOSE OF GIVING CONSIDERATION TO COMPARATIVE MERITS, THE PROMOTION COMMITTEES AND THE APPOINTING AUTHORITY HAD AVAILABLE A GREAT DEAL OF INFORMATION AND DOCUMENTS RELATING TO THE OFFICIALS OF WHICH THE PERIODIC REPORTS CONSTITUTED ONLY A PART . IN SO FAR AS THE APPLICANT IS CONCERNED, THE COMMISSION STRESSES ABOVE ALL THE EXISTENCE OF A PROPOSAL FOR PROMOTION WHICH SPOKE HIGHLY OF HIM AND A COMPLETE LIST OF HIS SCIENTIFIC PUBLICATIONS .
22 ON SEVERAL OCCASIONS, AND MOST RECENTLY IN ITS JUDGMENT OF 5 JUNE 1980 IN CASE 24/79 OBERTHUR ( 1980 ) ECR 1743, THE COURT HAS STRESSED THE IMPORTANCE OF THE PERIODIC REPORT AS A CRITERION OF ASSESSMENT EACH TIME AN OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION . THUS, PURSUANT TO ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS, OFFICIALS MAY BE PROMOTED
ONLY AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM . ALTHOUGH IT IS TRUE THAT IN EXCEPTIONAL CIRCUMSTANCES THE ABSENCE OF PERIODIC REPORTS MAY BE COMPENSATED FOR BY THE EXISTENCE OF OTHER INFORMATION ON AN OFFICIAL ' S MERITS, SUCH IS NOT, HOWEVER, THE CASE WITH A REPORT IRREGULARLY INCLUDED IN A PERSONAL FILE AFTER IT HAS BEEN CHALLENGED BY THE OFFICIAL . MOREOVER, THE MERE EXISTENCE OF A PROPOSAL FOR PROMOTION, EVEN IN EULOGISTIC TERMS, AND A LIST OF THE OFFICIAL ' S PUBLICATIONS, DRAWN UP BY HIM AND CONTAINING NO OBJECTIVE ASSESSMENT OF THEIR SCIENTIFIC VALUE, CANNOT MAKE UP FOR THE ABSENCE OF A PROPER PERIODIC REPORT .
23 FROM THE FOREGOING CONSIDERATIONS IT FOLLOWS THAT, SO FAR AS THE APPLICANT IS CONCERNED, THE PROMOTION PROCEDURE WAS TAINTED BY AN IRREGULARITY .
24 HOWEVER, IN A CASE SUCH AS THE PRESENT, WHERE 75 OFFICIALS ARE ELIGIBLE FOR PROMOTION WHILST THE AVAILABLE POSTS ARE THREE IN NUMBER, THE FACT THAT THE PERSONAL FILE OF ONE OF THOSE OFFICIALS IS IRREGULAR AND INCOMPLETE IS NOT SUFFICIENT TO RENDER THE PROMOTIONS GRANTED VOID UNLESS IT IS ESTABLISHED THAT THAT FACT WAS CAPABLE OF HAVING A DECISIVE EFFECT ON THE PROMOTION PROCEDURE .
25 THE INFORMATION AVAILABLE TO THE COURT IS NOT SUFFICIENT TO EXCLUDE SUCH A POSSIBILITY . IT APPEARS FROM THE FILE IN THE CASE THAT THE APPLICANT ' S NAME WAS ENTERED UNDER ' ' SECOND PRIORITY ' '
BY THE JOINT GROUP KNOWN AS THE ' ' INSTANCE ZERO ' '
EVEN THOUGH HIS NAME DISAPPEARED AT FIRST AND SECOND INSTANCE . IT ALSO APPEARS THAT FOLLOWING UPON THE INTERVIEW RESPECTING THE 1973 TO 1975 PERIOD, THE REPORTING OFFICER UPGRADED THE ASSESSMENT FOR EFFICIENCY FOR THE 1975 TO 1977 PERIOD BY AWARDING A RATING OF ' ' ABOVE AVERAGE ' ', WHICH RATING THE APPEAL ASSESSOR, TO WHOM THE APPLICANT APPEALED, TRANSFERRED TO THE HEADING ' ' ABILITY ' ' .
26 HOWEVER, SINCE THE COURT DOES NOT HAVE BEFORE IT ANY INFORMATION CONCERNING THE POSITION OF THE OTHER OFFICIALS ELIGIBLE FOR PROMOTION OR IN PARTICULAR ANY INFORMATION ON THE POSITION OF THOSE WHO WERE IN FACT
PROMOTED, IT IS ALSO IMPOSSIBLE TO HOLD THAT, IN THE ABSENCE OF THE IRREGULARITY WHICH HAS BEEN ESTABLISHED, THE PROMOTION DECISION MIGHT HAVE BEEN TO DIFFERENT EFFECT .
27 IN ORDER TO GIVE JUDGMENT ON THE APPLICATION IT IS THEREFORE NECESSARY TO ASK THE COMMISSION TO SUPPLY THE COURT WITH THE INFORMATION AVAILABLE TO THE PROMOTION COMMITTEES AND THE APPOINTING AUTHORITY IN SO FAR AS THAT INFORMATION IS NECESSARY TO ENABLE THE COURT TO JUDGE WHETHER THE IRREGULARITY IN THE APPLICANT ' S PERSONAL FILE WAS CAPABLE OF HAVING AN EFFECT UPON THE DISPUTED DECISIONS .
28 HOWEVER, IN VIEW OF THE FACT THAT IN THE FOREGOING CONSIDERATIONS THE COURT HAS ALREADY DECIDED SEVERAL OF THE ISSUES BETWEEN THE PARTIES IT IS APPROPRIATE FIRST TO GIVE THEM THE OPPORTUNITY OF RECONSIDERING THE APPLICANT ' S POSITION IN THE LIGHT OF THOSE CONSIDERATIONS AND, IF APPROPRIATE, OF SEEKING TO REACH AN EXTRA-JUDICIAL SETTLEMENT ON THE METHOD WHEREBY ANY DAMAGE SUFFERED BY THE APPLICANT MAY BE MADE GOOD AND ACCOUNT ALSO BE TAKEN OF THE LEGITIMATE INTERESTS OF THE OTHER OFFICIALS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
BY WAY OF AN INTERIM DECISION GIVEN ON THE APPLICATION FOR ANNULMENT BROUGHT BY PIERRE GRATREAU IN CASE 156/79, HEREBY :
1 . ORDERS THE PARTIES TO REPORT TO THE COURT BEFORE 30 APRIL 1981 EITHER NOTIFYING IT OF ANY EXTRA-JUDICIAL SETTLEMENT WHICH THEY MAY HAVE REACHED OR PROVIDING IT WITH ALL ADDITIONAL INFORMATION NECESSARY TO ENABLE IT TO GIVE FINAL JUDGMENT IN THE DISPUTE ;
2.DISMISSES THE APPLICATION IN CASE 51/80 AS INADMISSIBLE ;
3.RESERVES THE COSTS .