61969C0058
OPINION OF MR ADVOCATE-GENERAL GAND
DELIVERED ON 14 MAY 1970 (
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Mr President,
Members of the Court,
1.
A periodic report dated 15 January 1968 was made on Mr Elz, who is at present a principal assistant in the Directorate-General for Financial Control in Brussels. Although at the time he had been first in the service of the High Authority and then of the Commission for almost 14 years and although it was contrary to Article 37 of the former Staff Regulations of the ECSC and Article 43 of the new Staff Regulations of the ECSC and the Staff Regulations of the EEC, this was the first time a report had been made on him.
This is no doubt the reason why he attached special importance to it and, as he did not feel satisfied with certain assessments which it contained, he submitted a complaint under Article 90 on 27 March 1968, following which a new amended report was made on 22 May 1968. However, in spite of this Mr Elz requested in an application lodged on 25 July 1968 that the first report of 15 January be annulled.
The objection raised by the Commission was sustained and the application was dismissed as inadmissible in a judgment of 25 February 1969. In fact, on the date when the application was lodged the contested measure had already been replaced by the report of 22 May 1968. No doubt Mr Elz, relying on the second paragraph of Article 26 of the Staff Regulations, refused to acknowledge that the second report had any legal effect, because he had declined to sign it when it was given to him. As, however, he had become acquainted with the report at the end of May, the judgment held that this document could be used against the applicant and be accepted as sufficient evidence that the report of January 1968 had been withdrawn. The application lodged against this report was of course inadmissible because it had no purpose from the start.
Unfortunately, Mr Elz was no more satisfied with the report of 22 May 1968 than he had been with the previous report, so he submitted a complaint through official channels against this report on 14 March 1969 immediately after the judgment to which I have just referred was delivered. The President of the Commission informed him on 8 July that it could only simply confirm it, and the letter referred to the findings contained in the judgment of the Court of 25 February 1969.
In these circumstances Mr Elz asked you on 8 October to annul the periodic report of 22 May this time (the date of which he wrongly gives as 31 May, which is the date when he became acquainted with it in its final form). In his reply he stated that his application was to be deemed to be directed against the decision of the President of the Commission of 8 July 1969.
2.
The question of the admissibility of the application arises once more, but this time with regard to the period for lodging an application.
Mr Elz was well aware of this since he emphasizes in his application that the period for lodging the application can only start to run on the day after the Court gave judgment and decided that the periodic report of 15 January 1968 should be substituted retroactively for the report of 22 May. Moreover, as the complaint through official channels was submitted on 14 March 1969 and rejected on 8 July, the applicant claims to be within the time-limit laid down in Article 91 (2) of the Staff Regulations, especially since the Commission's decision rejects the complaint, not on the ground of inadmissibility, but by confirming the contested periodic report on the merits.
His argument springs from the following view which was set out in the application and expanded in the reply, namely that the Court decided finally that the communication of the report in the circumstances which it describes satisfied the conditions laid down in Article 26 of the Staff Regulations. He claims that the document could therefore only be used against the applicant from the date of the judgment which caused the periods laid down in Article 91 to start to run, and that in fact this judgment constitutes a fresh factor with regard to the parties to the action.
This opinion is wrong. The judgment of 25 February 1969 dismissed Mr Elz's application on the grounds that the report of 22 May 1968 had been communicated to the applicant on 31 May and that it replaced the report of 15 January; these grounds have the force of res judicata because they are necessarily the basis of the operative part of the judgment dismissing Mr Elz's application. But the judgment merely stated that the new report existed and decided nothing at all on this point, contrary to what the applicant alleges. Therefore it does not constitute a fresh factor as it in no way alters the legal situation which existed beforehand. Moreover, only a judgment which grants an annulment can alter the legal situation which existed before it was given, by retroactively cancelling an administrative measure.
In other words, both before and after the judgment of the Court the period for lodging an application or submitting a complaint against the report of 22 May 1968 actually began to run from 31 May 1968, the date of the letter to the applicant. This period had long since expired when Mr Elz submitted his complaint through official channels of 14 March 1969 and afterwards his application of 8 October.
Moreover, the letter of the President of the Commission of 8 July could not have altered this state of affairs in any way. It was in response to a complaint submitted out of time and merely confirmed a decision which had become final when the period expired. There is a large number of decided cases which establish this point.
3.
Therefore I shall only deal briefly with Mr Elz's argument against certain points in the period report of 22 May 1968.
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First, he criticizes certain differences or contradictions which he claims to find there. He says that although the first reporting officer assessed his efficiency as ‘Fair’ and the second as ‘Normal’ the analytical assessment gives him the mark ‘Good’.
Frankly, I cannot see how this difference could cause the applicant any harm. In any case, this criticism does not accord with the facts. In fact, the first reporting officer gave the following assessment—‘Fair, but excellent in matters relating solely to bookkeeping’. The analytical mark is thus an average and, contrary to Mr Elz's claim, an average can be taken from two value-judgments.
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Secondly, the applicant accuses the reporting officers of having added comments to their assessment, this being obligatory only for the marks ‘Very Good’ and ‘Unsatisfactory’, and more particularly he accuses the second reporting officer of having used the mark ‘Normal’ which is not laid down as a criterion of assessment.
My reply to this is that the report form does not expressly prohibit comments being made for marks other than ‘Very Good’ and ‘Unsatisfactory’. Moreover, the adjective ‘Normal’ is shown on the form itself as being equivalent to ‘Good’.
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Finally, Mr Elz challenges the criticism made of him that his applications for leave were ill-timed although he adhered to the provisions of the Staff Regulations. In addition, he maintains that these criteria of assessment are irrelevant.
My reply to this is that this issue is linked with ‘Conduct in the service’ which is expressly referred to in Article 43 of the Staff Regulations. Besides, the circumstances in which leave is taken are important for the running of the department to which an official belongs. Therefore it is not abnormal for Mr Elz's superiors to draw his attention to the need to improve his sense of responsibility on this point.
None of the criticisms made by the applicant seems to me to bear examination. However, I am of the opinion that Mr Elz's application should be dismissed as inadmissible for the reasons I have pointed out without the need for any reply to be made to it. The question of costs should be settled in accordance with the terms of Article 70 of the Rules of Procedure.
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)	Translated from the French.