61979CJ0006_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 6 AND 97/79
DANIELE GRASSI, AN OFFICIAL AT THE SECRETARIAT GENERAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, OF TERVUEREN, BELGIUM, REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBRES OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,
APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ANTONIO SACCHETTINI, ADVISER IN THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT OF THE COUNCIL, ACTING AS AGENT, ASSISTED BY JOHN CARBERY, ALSO AN ADVISER IN THE SAID DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR VAN DEN HOUTEN, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF VARIOUS PERIODIC REPORTS ON THE APPLICANT,
Grounds
1 THE APPLICANT, AN OFFICIAL IN GRADE L/A 4 AND A REVISER IN THE ITALIAN DIVISION OF THE LANGUAGE DEPARTMENT OF THE COUNCIL, BROUGHT TWO ACTIONS IN SUCCESSION ON 5 JANUARY AND 20 JUNE 1979 FOR THE PARTIAL ANNULMENT OF THE PERIODIC REPORT ON HIM FOR THE PERIOD FROM 1 NOVEMBER 1975 TO 31 OCTOBER 1977 .
THE EVENTS PRIOR TO THE ACTION
2 THE REPORT BY THE FIRST REPORTING OFFICER, THE HEAD OF THE FIRST DIVISION OF THE LANGUAGE DEPARTMENT, WAS DRAWN UP ON 16 FEBRUARY 1978 AND FORWARDED TO THE APPLICANT WHO ON 21 FEBRUARY MADE A NUMBER OF OBSERVATIONS AND REQUESTED ITS AMENDMENT .
3 THE REPORT BY THE SECOND REPORTING OFFICER, DIRECTOR OF OPERATIONS AND TRANSLATION, WAS DRAWN UP ON 15 MARCH 1978 AND FORWARDED TO THE APPLICANT WHO ON 21 MARCH AGAIN MADE OBJECTIONS TO THE ASSESSMENTS BY THE SECOND REPORTING OFFICER AND GAVE NOTICE OF HIS INTENTION TO MAKE A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS . THAT COMPLAINT WAS SUBMITTED ON 9 JUNE 1978 TO THE SECRETARY GENERAL OF THE COUNCIL .
4 IN VIEW OF THAT COMPLAINT AND PURSUANT TO THE COUNCIL DECISION OF 18 OCTOBER 1977 LAYING DOWN THE GENERAL PROVISIONS FOR THE APPLICATION OF ARTICLE 43 OF THE STAFF REGULATIONS THE SECRETARY GENERAL PUT THE MATTER TO THE REPORTS COMMITTEE WHOSE INTERVENTION IS PROVIDED FOR BY THAT DECISION WHERE AN OFFICIAL DOES NOT ACCEPT A PERIODIC REPORT ON HIM . ON 13 JULY 1978 THE SELECT COMMITTEE OF THAT COMMITTEE GAVE AN OPINION WHICH WAS FORWARDED TO THE APPLICANT .
5 FOLLOWING THAT OPINION THE SECOND REPORTING OFFICER ON 28 JULY 1978 AMENDED THE WORDING OF HIS ASSESSMENT, IN PARTICULAR UPON AN ISSUE WHICH HAD PROVOKED PARTICULARLY SHARP CRITICISM FROM THE APPLICANT . THE REPORT SO AMENDED WAS FORWARDED TO THE APPLICANT ON 5 SEPTEMBER 1978 BY THE SECRETARY GENERAL . THE APPLICANT REFUSED TO ACCEPT THE AMENDED REPORT AND THE SECRETARY GENERAL THEN DECIDED ON 24 OCTOBER 1978 TO SUBMIT THE MATTER TO THE FULL REPORTS COMMITTEE .
6 WITHOUT AWAITING THAT OPINION THE APPLICANT BROUGHT THE FIRST ACTION REGISTERED AS CASE 6/79 ON 5 JANUARY 1979 .
7 THE REPORTS COMMITTEE GAVE ITS OPINION ON 15 FEBRUARY 1979 . THE COMMITTEE WAS OF THE OPINION THAT SUBJECT TO CERTAIN AMENDMENTS THE ASSESSMENT IN THE AMENDED REPORT ' ' MIGHT CONSTITUTE AN APPROPRIATE BASIS ' ' . FOLLOWING THOSE OBSERVATIONS THE SECOND REPORTING OFFICER DREW UP ON 2 MARCH 1979 A FINAL WORDING OF THE PERIODIC REPORT TAKING INTO ACCOUNT THE OBSERVATIONS OF THE REPORTS COMMITTEE .
IN A NOTE DATED 20 MARCH 1979 THE SECRETARY GENERAL INFORMED THE APPLICANT AS FOLLOWS : ' ' I CONFIRM THE REPORT, WHICH I ENCLOSE, THUS BRINGING TO AN END THE COMPLAINTS PROCEDURE ' ' .
8 ON 29 MARCH 1979 THE APPLICANT COUNTERSIGNED THE FINAL REPORT BUT RESERVED HIS RIGHTS REGARDING PURSUIT OF HIS LEGAL ACTION . ON 20 JUNE 1979 HE BROUGHT HIS SECOND ACTION REGISTERED AS CASE 97/79 CONCERNED WITH THE FINAL VERSION OF THE PERIODIC REPORT AND ASKED THAT THAT ACTION BE JOINED TO THE PREVIOUS ACTION .
9 BY APPLICATION DATED 23 JULY 1979 UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE THE COUNCIL ASKED THE COURT FOR A PRELIMINARY DECISION ON THE ADMISSIBILITY OF THE SECOND ACTION . BY ORDER DATED 16 OCTOBER 1979 THE COURT DECIDED TO RESERVE ITS DECISION FOR THE FINAL JUDGMENT .
10 BY ORDER DATED 16 NOVEMBER 1979 THE COURT ORDERED THAT THE TWO ACTIONS BE JOINED .
11 IT MUST BE OBSERVED THAT THE PARTIES AGREE IN TREATING THE JOINED ACTIONS AS CONCERNING THE FINAL PERIODIC REPORT AFTER THE AMENDMENTS MADE BY THE SECOND REPORTING OFFICER TO HIS ASSESSMENT ON 2 MARCH 1979 FOLLOWING THE OBSERVATIONS OF THE REPORTS COMMITTEE . IT IS THEREFORE UNNECESSARY TO GIVE A DECISION ON THE COMPLAINTS MADE BY THE APPLICANT IN RESPECT OF THE FIRST VERSION OF THE PERIODIC REPORT IN SO FAR AS IT DOES NOT COINCIDE WITH THE FINAL REPORT .
ADMISSIBILITY
12 THE COUNCIL CHALLENGES THE ADMISSIBILITY OF BOTH THE FIRST AND SECOND ACTIONS . THE SUBMISSION OF INADMISSIBILITY AGAINST THE FIRST ACTION IS MAINLY BASED ON THE FACT THAT IT WAS PREMATURE SINCE THE APPLICATION BROUGHT IT BEFORE THE INTERNAL PROCEDURE PROVIDED FOR BY THE COUNCIL DECISION OF 18 OCTOBER 1977 WAS EXHAUSTED . THE COUNCIL ' S OBJECTIONS WITH REGARD TO THE SECOND ACTION ARE MAINLY BASED ON THE FACT THAT THERE WAS NO PRIOR COMPLAINT TO THE APPOINTING AUTHORITY IN ACCORDANCE WITH ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .
13 HAVING REGARD TO THE FACT THAT THE ACTIONS CONCERN THE FINAL VERSION OF THE PERIODIC REPORT IT IS NECESSARY FIRST TO CONSIDER THE ADMISSIBILITY OF CASE 97/79 .
14 IT IS APPARENT FROM THE APPLICATION LODGED ON 20 JUNE 1979 THAT THE APPLICANT INTENDED TO CHALLENGE THE PERIODIC REPORT WHICH BECAME FINAL AS A RESULT OF THE NOTE FROM THE SECRETARY GENERAL ON 20 MARCH 1979 .
15 IN THE CIRCUMSTANCES THAT NOTE MAY BE REGARDED AS HAVING MARKED THE COMMENCEMENT OF THE PERIOD FOR BRINGING AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS WITHOUT ITS BEING POSSIBLE TO REQUIRE IN ADDITION THE PRIOR FORMALITY OF A FORMAL COMPLAINT UNDER ARTICLE 90 . IN VIEW OF THE NATURE OF THE PERIODIC REPORT WHICH EXPRESSES THE OPINION FREELY DRAWN UP OF THE REPORTING OFFICERS AND NOT THE ASSESSMENT BY THE APPOINTING AUTHORITY, THE MAKING OF A FORMAL COMPLAINT UNDER ARTICLE 90 DOES NOT APPEAR TO BE A NECESSARY PRE-CONDITION TO BRINGING AN ACTION . IT IS THEREFORE NECESSARY TO HOLD FOR REASONS SIMILAR TO THOSE EXPRESSED BY THE COURT REGARDING THE DECISIONS OF SELECTION
BOARDS IN COMPETITIONS ( CF . THE JUDGMENT OF THE FIRST CHAMBER OF THE COURT OF 16 MARCH 1978 IN CASE 7/77 WULLERSTORFF UND URBAIR V COMMISSION ( 1978 ) ECR 769 ) THAT ACTION AGAINST THE PERIODIC REPORT LIES AS FROM THE DATE ON WHICH THAT REPORT MAY BE REGARDED AS FINAL AND THAT IT IS NOT POSSIBLE TO REQUIRE IN ADDITION THE PRIOR FORMALITY OF A COMPLAINT UNDER ARTICLE 90 . IN THE PRESENT CASE THE PERIODIC REPORT MUST BE REGARDED AS BEING FINAL FROM THE TIME AT WHICH THE LETTER FROM THE SECRETARY GENERAL OF 20 MARCH 1979 WAS SENT TO THE APPLICANT .
16 THE SUBMISSION OF INADMISSIBILITY MADE BY THE COUNCIL AGAINST CASE 97/79 MUST THEREFORE BE REJECTED . SINCE THAT ACTION WAS CONCERNED WITH THE WHOLE PERIODIC REPORT IN QUESTION IN ITS FINAL FORM IT IS NO LONGER NECESSARY TO REACH A DECISION ON THE SUBMISSION OF INADMISSIBILITY AGAINST CASE 6/79 .
SUBSTANCE
17 AFTER ELIMINATION OF THE CRITICISM DIRECTED SPECIFICALLY AGAINST CERTAIN ASPECTS OF THE FIRST VERSION OF THE PERIODIC REPORT THE APPLICANT PERSISTS AS REGARDS THE FINAL PERIODIC REPORT WITH THREE COMPLAINTS REGARDING THE DESCRIPTION OF HIS DUTIES, THE ASSESSMENT OF HIS CONDUCT IN THE SERVICE AND CERTAIN OBSERVATIONS COMING UNDER THE HEADING ' ' GENERAL ASSESSMENT ' ' .
18 BEFORE CONSIDERING THOSE COMPLAINTS IT IS WELL TO SPECIFY THE NATURE OF PERIODIC REPORTS AND THE SCOPE OF THE REVIEW BY THE COURT TO WHICH THEY MAY BE SUBMITTED .
19 ARTICLE 43 OF THE STAFF REGULATIONS PROVIDES THAT ' ' THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF EACH OFFICIAL . . . SHALL BE THE SUBJECT OF A PERIODICAL REPORT MADE AT LEAST ONCE EVERY TWO YEARS AS PROVIDED FOR BY EACH INSTITUTION IN ACCORDANCE WITH ARTICLE 110 . THE REPORT SHALL BE COMMUNICATED TO THE OFFICIAL . HE SHALL BE ENTITLED TO MAKE ANY COMMENTS THEREON WHICH HE CONSIDERS RELEVANT . ' '
20 AS AN INTERNAL DOCUMENT WHOSE PRIMARY FUNCTION IS TO PROVIDE THE ADMINISTRATION WITH PERIODIC INFORMATION ON THE PERFORMANCE OF THEIR DUTIES BY OFFICIALS THE PERIODIC REPORT IS NOT INCLUDED AMONG THE DOCUMENTS WHICH
DIRECTLY DETERMINE THE POSITION OF OFFICIALS UNDER THE STAFF REGULATIONS AND MUST AS SUCH BE FULLY SUBJECT TO A REVIEW OF THEIR LEGALITY AS PROVIDED FOR BY THE TREATY AND THE STAFF REGULATIONS . AS THE COURT HAS HAD OCCASION TO STRESS IN OTHER CASES ( JUDGMENT OF THE SECOND CHAMBER OF 17 MARCH 1971 IN CASE 29/70 MARCATO ( 1971 ) ECR 243 AND JUDGMENT OF THE FIRST CHAMBER OF 25 NOVEMBER 1976 IN CASE 122/75 KUSTER ( 1976 ) ECR 1685 ) PERIODIC REPORTS COMPRISE ASSESSMENTS WHICH, APART FROM FORMAL IRREGULARITIES OR PATENT FACTUAL ERRORS, ARE SUBJECT TO REVIEW BY THE COURT ONLY FROM THE ASPECT OF ANY MISUSE OF THEIR DISCRETION BY THE PERSONS CALLED UPON TO PARTICIPATE IN DRAWING UP THOSE DOCUMENTS . NORMALLY THE EXERCISE OF THE RIGHT GIVEN BY ARTICLE 43 OF THE STAFF REGULATIONS TO OFFICIALS TO APPEND THEIR OBSERVATIONS TO THE PERIODIC REPORTS TOGETHER WITH THE INTERNAL PROCEDURES FOR COMPLAINTS AS PROVIDED BY THE COUNCIL DECISION OF 18 OCTOBER 1977 ARE A SUFFICIENT SAFEGUARD . IT IS IN THE LIGHT OF THOSE CONSIDERATIONS THAT THE APPLICANT ' S COMPLAINTS MUST BE CONSIDERED .
COMPLAINT RELATING TO THE DESCRIPTION OF DUTIES
21 IN THE FIRST PLACE THE APPLICANT COMPLAINS THAT THE AUTHORS OF THE PERIODIC REPORT STATED THAT HE HAD DONE CERTAIN UNREVISED TRANSLATIONS OUTSIDE HIS WORK OF REVISION . IN FACT AS A REVISER AND APART FROM CERTAIN EXCEPTIONS HE HAD NOT HIMSELF DONE TRANSLATIONS DURING THE PERIOD IN QUESTION . HE THEREFORE CONSIDERS THAT DESCRIPTION OF HIS DUTIES AS AN ATTEMPT TO BELITTLE HIS WORK AS A REVISER .
22 THAT COMPLAINT REPRESENTS A MISCONCEPTION BY THE APPLICANT OF HIS DUTIES INASMUCH AS THE WORK OF A REVISER CANNOT BE DISSOCIATED FROM THE WORK OF TRANSLATION IN A WIDE SENSE SINCE EVERY REVISER MUST BE ABLE IF NECESSARY TO DO TRANSLATIONS NOT SUBJECT TO SUBSEQUENT REVISION, ESPECIALLY WHERE THE TRANSLATIONS ARE VERY DIFFICULT . MOREOVER IN THE CONTEXT IT IS OBVIOUS THAT THE PASSAGE IN QUESTION REVEALS RECOGNITION BY THE REPORTING OFFICERS OF THE EXCEPTIONAL QUALITY OF THE TRANSLATIONS MADE BY THE APPLICANT . AS THE REPORTS COMMITTEE HAS ALREADY OBSERVED IN ITS REPORT OF 15 FEBRUARY 1979, IT IS THEREFORE NOT POSSIBLE TO CONSIDER THAT THE DESCRIPTION OF THE DUTIES CONTAINED IN THE PERIODIC REPORT CAN ADVERSELY AFFECT THE APPLICANT .
CONDUCT IN THE SERVICE
23 IN THE SECOND PLACE THE APPLICANT COMPLAINS THAT IN THE SCALE OF ASSESSMENT OF ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE CONTAINING CLASSIFICATIONS ' ' OUTSTANDING ' ', ' ' VERY GOOD ' ', ' ' GOOD ' ', ' ' ACCEPTABLE ' '
AND ' ' HAS SHORTCOMINGS ' ', HIS RELATIONS WITH HIS SUPERIORS AND COLLEAGUES ARE DESCRIBED AS ' ' ACCEPTABLE ' '
IN CONTRAST TO THE REPORTS ON OTHER OFFICIALS OF THE SAME DIVISION AND ON HIMSELF IN PREVIOUS REPORTS . IN ADDITION NO REASONS ARE GIVEN FOR SUCH ASSESSMENTS .
24 THE COURT CONSIDERS THAT, BY THEIR NATURE, THE STATEMENTS UNDER THIS HEADING, CONSTITUTING, AS THEY DO, A COMPOSITE ASSESSMENT BY THEIR SUPERIOR OFFICERS OF THE ABILITY, EFFICIENCY AND CONDUCT OF OFFICIALS, REQUIRES THAT THEY MUST BE CAPABLE OF BEING GIVEN WITHOUT RESTRICTION EVEN IF THEY EXPRESS MORE OR LESS ADVERSE ASSESSMENTS . IT IS NORMAL FOR ASSESSMENTS UNDER THIS HEADING TO EMPHASIZE DIFFERENCES BETWEEN DIFFERENT OFFICIALS AND WITH REGARD TO THE SAME OFFICIAL AS REGARDS SUCCESSIVE REPORTING PERIODS . THERE IS A PLACE UNDER THE HEADING ' ' GENERAL ASSESSMENT ' '
FOR THE STATEMENT OF ANY REASONS WHERE THE ASSESSMENTS ARE UNUSUAL IN ONE WAY OR ANOTHER . IT MUST BE POINTED OUT THAT THE TWO REPORTING OFFICERS HAVE GIVEN REASONS UNDER THAT HEADING FOR THEIR CRITICAL ASSESSMENT OF THE CONDUCT OF THE APPLICANT WITH REGARD TO HIS SUPERIORS AND COLLEAGUES .
25 THAT COMPLAINT MUST THEREFORE BE REJECTED AS UNFOUNDED .
GENERAL ASSESSMENT
26 THE APPLICANT ' S MAIN COMPLAINT CONCERNS THE ASSESSMENTS ON HIM BY THE FIRST AND SECOND REPORTING OFFICERS REGARDING HIS INTRANSIGENCE IN HIS RELATIONS IN THE DEPARTMENT WHICH IS AT THE ORIGIN OF A NUMBER OF INCIDENTS WITH HIS SUPERIORS AND COLLEAGUES CAUSING THE WORKING ATMOSPHERE IN THE ITALIAN DIVISION TO DETERIORATE . WITHOUT DENYING THAT THE INCIDENTS BETWEEN HIMSELF AND THE ADMINISTRATIVE AUTHORITY DID OCCUR THE APPLICANT COMPLAINS THAT THE ADMINISTRATION ATTRIBUTED TO HIM PERSONAL RESPONSIBILITY FOR INCIDENTS WHICH WERE CAUSED BY THE GENERAL CLIMATE OBTAINING WITHIN THE SECTION TO WHICH HE WAS ASSIGNED . HE SAYS THAT THE REMARKS IN THE PERIODIC REPORT ARE INSUFFICIENT
TO REVEAL WHAT REALLY OCCURRED AND THAT THE ASSESSMENTS MADE REFLECT PERSONAL ANIMOSITY TOWARDS HIM .
27 IT IS APPARENT FROM THE INFORMATION REVEALED DURING THE PROCEEDINGS AND FROM THE DOCUMENTS IN THE FILE, ESPECIALLY THOSE PRODUCED BY THE APPLICANT HIMSELF, THAT DURING THE REPORTING PERIOD IN QUESTION THE APPLICANT ' S RELATIONS WITH THE ADMINISTRATION WERE MARKED BY INCIDENTS IN WHICH THE APPLICANT TOOK AN ACTIVE, IF NOT DECISIVE, PART . BY WAY OF EXAMPLES THE SECOND REVISER REFERS TO AN ARGUMENT BETWEEN THE APPLICANT AND A GROUP OF REVISERS IN DECEMBER 1975 AND ANOTHER DISPUTE RELATING TO THE APPOINTMENT OF TRANSLATORS INSTRUCTED TO ACCOMPANY CERTAIN COMMUNITY DELEGATIONS TO NON-MEMBER COUNTRIES AND IN PARTICULAR A MISSION TO THE FIJI ISLANDS .
28 HAVING REGARD TO THE NUMBER OF INCIDENTS AND THE HEATED NATURE OF THE APPLICANT ' S UTTERANCES, THE ASSESSMENTS MADE OF HIM BY THE REPORTING OFFICERS, FAR FROM EXCEEDING THE DISCRETION WHICH SUPERIOR OFFICERS HAVE IN THE MATTER, MAY BE REGARDED AS A PARTICULARLY MODERATE REACTION TO INCIDENTS OBVIOUSLY INCOMPATIBLE WITH THE WELL-BEING OF THE DEPARTMENT . THE OBJECTIVITY OF THE REPORTING OFFICERS WITH REGARD TO THE APPLICANT APPEARS FROM THE FACT THAT THEY GAVE IN THE SAME REPORT PARTICULARLY EULOGISTIC RECOGNITION TO THE QUALITY OF THE LINGUISTIC WORK PERFORMED BY THE APPLICANT .
29 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT ' S COMPLAINT IN RELATION TO THE GENERAL ASSESSMENTS IN THE PERIODIC REPORT MUST ALSO BE REJECTED .
30 IT IS THEREFORE APPARENT THAT THE ACTION MUST BE REJECTED AS A WHOLE .
Decision on costs
31 ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) IN RELATION TO COSTS WHICH THE COURT CONSIDERS TO HAVE BEEN UNREASONABLY OR VEXATIOUSLY CAUSED, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
32 THE COURT CONSIDERS THAT THE APPLICANT SHOULD NOT HAVE THE BENEFIT OF THE PROVISIONS OF ARTICLE 70 . IT IS APPARENT FROM THE FOREGOING THAT AS A RESULT OF HIS COMPLAINTS AND BY MEANS OF THE INTERNAL REVIEW PROCEDURE WITHIN THE COUNCIL ADMINISTRATION HE COULD HAVE HAD THE ASSESSMENTS ON HIM REVISED AND REASONS GIVEN THEREFOR IN A WAY WHICH OUGHT TO HAVE SATISFIED HIM . IN THOSE CIRCUMSTANCES THE BRINGING OF AND PERSISTENCE IN A LEGAL ACTION MUST BE REGARDED AS VEXATIOUS . IT IS THEREFORE RIGHT TO ORDER THE APPLICANT TO PAY THE WHOLE OF THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT TO PAY THE WHOLE OF THE COSTS .