61965C0028
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 19 OCTOBER 1966 (
1
)
Summary
Introduction (Facts, conclusions of the parties, procedure) . .
Legal consideration
A — Admissibility of the applications
B — Substance
I — Case 28/65
1. The applications for annulment
(a) Do the Staff Regulations provide for a ‘change in the place of employment’ ?
(b) Is the effect of the contested measure really only a change in the place of employment?
2. The claim for payment by the Commission of the daily subsistence allowance for an official on mission …
3. The claim that the Commission should be ordered to pay damages
4. The Commission's preliminary objection (still to be decided)
5. Summary and decision on costs
II — Case 31/65
1. Characteristics of the promotion procedure followed by the Commission
2. Specific complaints
3. Summary
C — Conclusions
Mr President,
Members of the Court,
The applicant in both the cases on which I give my opinion today is already known to us through earlier proceedings (Cases 27 and 30/64). There it was a question — as you know — of the legitimacy of certain decisions on promotion taken by the Commission, the legality of a disciplinary measure against the applicant and his allocation to Brussels, as well as the grounds for his complaint that the Commission did not protect him from certain intrigues of other officials which were prejudicial to his honour. From those proceedings we have become familiar with the applicant's history and a considerable part of his problems at work, and so I need not now go into all the detailed facts of the case.
All that requires to be said in explanation of the present proceedings is the following:
After first working as a scientific officer for the Euratom Commission in Brussels the applicant moved, still as a scientific officer in Grade A 5, to the Ispra nuclear research station known as the Joint Nuclear Research Centre, where his work in the European Centre for the Processing of Scientific Information (CETIS) continued into 1964. From there he moved to Brussels following an order of the Commission on 24 June 1964, an order which, on his appeal against it, was held by the judgment in Case 30/64 to be an internal departmental matter which could not be the subject of an appeal to the Court. On returning from his annual leave in 1964 the applicant was informed at Ispra by a letter from the Director-General for Personnel and Administration dated 12 October 1964 (received by the applicant on 15 October 1964) that on 7 October 1964 the Commission had decided to send him to the Directorate-General for Personnel and Administration in Brussels, while maintaining his position under the Staff Regulations, that is to say, in the same post, there to carry out a list of particular duties directly under the head of the purchasing department. The accompanying letter from the Directorate-General for Administration informed the applicant that he was to present himself at the Commission by 19 October 1964 at the latest. The applicant appealed against the order on the ground of illegality, but at the same time wrote to the Director General for Administration on 19 October 1964 saying that he would comply with its terms, as in fact he did on 26 October 1964. Later, on 10 December 1964, the applicant made an appeal through official channels against the Commission's decision under Article 90 of the Staff Regulations. He was informed by a letter from the Director General for Administration dated 5 February 1965 (which he received on 7 February 1965) that the Commission had rejected the appeal.
On the basis of that decision the first application (28/65) was lodged at the Court on 12 May 1965.
The applicant also felt, as he had done in 1963 (Cf. Case 27/64), that he was passed over when the 1964 promotion decisions were taken; these were posted on the notice board at Ispra on 9 October 1964. In this matter, too, he made an official complaint to the administration, of which the Commission was notified by letter of 10 December 1964. Here again, however, a letter from the Director-General for Administration of 16 February 1965 (which the applicant received on 17 February 1965) informed him that his appeal was rejected by the Commission at its meeting on 3 February 1965. His second application (Case 31/65, received by the Court on 28 May 1965) is directed against this decision of rejection.
Oral proceedings covering all the issues in dispute set out above took place on 6 October 1966, so without the need for a formal order joining the two I can now discuss both cases in one opinion.
These are the individual conclusions which are to be considered:
1.
Case 28/65:
—
Annulment of the Commission's decision of 7 October 1964;
—
Annulment of the Commission's decision of 3 February 1965 rejecting the applicant's appeal through official channels;
—
An order that the Commission pay the subsistence allowance for an official on mission for the period of the applicant's stay in Brussels ordered by the decision of 7 October 1964 (this claim was supplemented in the reply with a request that the Commission be ordered to pay interest at 5 % on the sum asked for in the application starting from the day payment fell due, and a request for payment of 600000 francs as compensation for the material and non-material injury caused, inter alia, by the allegedly false statements made concerning the contents of the minutes of the 249th meeting of the Commission on 24 June 1964).
2.
Case 31/65:
—
Annulment of the Commission's promotion decisions for 1964, in so far as they concern scientific officers in Grade A 5;
—
Annulment of the Commission's decision of 3 February 1965 rejecting the applicant's appeal through official channels.
On the other side, the Commission's main submission in both cases is that the application be rejected on the ground of inadmissibility. Alternatively, they should be dismissed as unfounded.
It must also be said, concerning the legal proceedings in Case 28/65, that a request submitted by the applicant on 9 June 1965 to suspend the operation of the contested decision of 7 October 1964 was rejected by an order of the President on 7 July 1965. On the Commission's request that a preliminary decision be given on the admissibility of the application in accordance with Article 91 of the Rules of Procedure the decision given by the First Chamber on 8 July 1965 was that this question should be reserved for the final judgment. Lastly, on 10 March 1966 the First Chamber issued an order on a second application by the Commission of 15 January 1966 seeking to have excluded from the proceedings certain documents produced by the applicant in his reply, and to have certain conclusions, submitted by the applicant for the first time in his reply, rejected as inadmissible. By virtue of this order the draft minutes of the Commission's meeting on 24 June 1964, presented as Schedule 23 to the reply, must be disregarded in the proceedings. As regards the content of the minutes of the Commission's meeting on 24 June 1964, this was judged to be authentic, so far as it is relevant to the proceedings, by the same order of the First Chamber, on the basis of an investigation conducted by the Judge-Rapporteur with the aid of the Commission's record of proceedings and the original text of the minutes. The remaining applications on procedural issues submitted by the Commission are also to be dealt with in the final judgment. Moving on to consider these facts, which are not uncomplicated from the procedural point of view, in the light of the law, I shall first examine an objection by the Commission as to admissibility which touches on both cases equally. I shall then consider whether the applicant's request for the annulment of the decision of 7 October 1964 to transfer him is well-founded (Case 28/65) and what is the legal nature of the Commission's promotion decisions challenged in Case 31/65. Within the framework of this analysis I shall also consider the subsidiary conclusions which were submitted with the main conclusions.
Legal consideration
A — Admissibility of the applications
In the Commission's view the applications for annulment are not admissible because they are out of time. This is certainly the case as regards the application for the annulment of the Commission's decision of 7 October 1964 and the promotion decisions for 1964 since, reckoning from the date of communication of the former (15 October 1964) and of publication of the latter (9 October 1964) till submission of the applications (Case 28/65: 12 May 1965; Case 31/65: 28 May 1965) more than three months plus any possible extension on account of distance have elapsed. Even assuming that the making of an appeal through official channels affects the running of the period for an appeal to the Court the result is the same, for in any case there can only be question of an interruption of the period prescribed for an appeal to the Court whilst the complaint through official channels is dealt with, not of its restarting from the date of notification of the decision rejecting the complaint. Finally, even on the theory most favourable to the applicant, that the period runs from the date of communication of the decisions rejecting the appeals through official channels, the applications would still not be admissible, since the extension on the ground of distance is, for the applicant, not that for Italy (10 days) but that for Belgium (2 days).
Only the last of these arguments is worthy of serious consideration, as even the Commission's representative appears to concede, since judgments of the Court already exist which contradict the other arguments of the Commission (cf. Joined Cases 27 and 30/64). According to these it is proper and desirable in staff cases for acts adversely affecting officials not to be challenged immediately before the Court. On the contrary it is the right of the officials concerned first to seek through official channels the alteration or rescission of the measures taken and only when this fails to bring an application before the Court. This view means that the running of the limitation period is not merely interrupted by the introduction of an appeal through official channels, but that once decisions have been expressly given rejecting the appeal, as happened in the present case too, the period of three months begins to run afresh. In addition, provided the appeal to the Court is made within that period it is permissible to seek not only the annulment of the decision rejecting the appeal through official channels but also a review of the legality of the original measure.
And so the only question in our case which raises doubt is whether the two applications were received by the Court within the period for lodging appeals, calculated from the date of communication of the decisions rejecting the appeals through official channels (7 February 1965 and 17 February 1965), which, bearing in mind the dates on which the applications were in fact lodged (12 and 28 May 1965), can only be the case if the extension of the time-limit on the ground of distance is that given for Italy and not for Belgium. As we know, the Commission's view is that the Belgian extension applies on the basis of the fact that at the time of communication of the decisions rejecting the appeals and from then until the date when the application was lodged in respect of the administrative decision challenged in the first application, the applicant resided in Brussels; the applicant, on the other hand, inclines to the view that the decisive circumstance is that when the administrative decision concerning him, the legality of which he challenges, was issued and communicated, and also when the contested promotion decisions were adopted and published, his habitual residence was in Italy. Also to be taken into account, he says, is the fact that in the proceedings he is conducting his case with the aid of a legitimately chosen Italian lawyer, that is to say, from chambers in Italy.
Now it cannot be denied that there are some considerations which at least favour the theory that the extension of the time-limit on account of distance under Article 81 (2) (in conjunction with Annex II to the Rules of Procedure) depends on the location of the chambers of a party's representative. According to the Staff Regulations and the Rules of Procedure of the Court private parties (including Community officials) must be represented by Counsel, that is, the latter must sign the pleadings, attest copies and lodge the application at the Court. Then it must be remembered that the Rules of Procedure allow the applicant freedom to choose the language of the case, and this must also influence the choice of a lawyer. It would prejudice this freedom of choice for a non-French speaking official working at the Commission's headquarters if, in order to employ the time allowed for appeal efficiently, he were forced to select a lawyer from the place where the Commission has its seat, when an extension on account of distance based on the location of the legal representative's chambers would make it easier to select a lawyer of his own mother tongue.
It must be admitted, however, that the applicant's interpretation of Annex II to the Rules of Procedure is excluded not only by the unambiguous words of the Rules of Procedure, but also by other objective considerations. The provision speaks clearly of the parties to proceedings, not of their legal representatives. Obviously, when used generally in adjectival law the term ‘party’ does not include the lawyer. All through the Community texts the distinction is kept between parties and lawyers. Even the provisions referred to by the applicant (Articles 42 (2), 43, 44 (1), 47 (1) (2) and (3), 49 (5), 50, 64) do not convince one that the term ‘party’ is used in them in a wider sense to include the lawyer. They mention the accomplishment of certain procedural steps by the parties or against them, but this simply means that where there is a legal representative he acts on behalf of the party. Against the applicant's view there is also the fact remarked on by the Commission that to allow the extension to be determined on the basis of the legal representative's chambers would introduce an element of chance into the calculation of the time-limit which could be exploited by the applicant; and finally, one must see that this interpretation would to some extent deprive part of Annex II to the Rules of Procedure of meaning, for it refers to places of residence in non-European countries, whilst legal representatives before the Court must be members of the Bar in a Member State of the Communities.
Strictly speaking, then, it is the party's habitual or permanent place of residence which determines the period of extension to be granted; a conclusion which, admittedly, does not exhaust the difficulties in the present case.
The significant point with regard to the present facts is that the applicant party's change of residence occurred after communication and publication of the original act adversely affecting him and that it is precisely the legality of the order to change his place of work that the applicant is challenging. However, the final conclusion must be that the Commission has the right answer to the questions which have been raised.
The decisive consideration is, in fact, that at the start of the limitation period, that is, when the disputed decisions rejecting the appeals through official channels were communicated to him and thereafter until he lodged his appeal at the Court (to be precise, since October 1964) the applicant resided exclusively in Brussels. The Commission also seems to make a valid point when it says that the notion of residence relates to the factual, not legal, circumstances and that consequently one must call a habitual residence any place where a person has taken up residence for a considerable length of time, and irrespective of whether he did so of his own volition or on instructions. It must not be forgotten that the Commission's order for the transfer of his duties to Brussels had to be complied with and could be enforced, unless operation of it were suspended by the Court on an application to that end (which could only be made after an appeal had been lodged at the Court). Lastly, contrary to the applicant's argument, he was in no doubt, at least after he was notified of the decision rejecting his appeal through official channels, that he was sent to Brussels not merely temporarily, on the basis of a mission order (‘ordre de mission’) but that this was a permanent alteration of his place of employment (‘lieu d'affectation’). In consequence, at the time of communication of the contested decision and at the time when he made his appeal to the Court, the applicant was, to all intents and purposes, under an obligation to reside in Brussels for a considerable time to come. He had therefore to conduct his case from there, which means that according to our Rules of Procedure the time extension allowed for Belgium (2 days) must be observed. This leads to the following calculations:
Case 28/65:
—
communication of the decision rejecting the appeal through official channels on 7 February 1965;
—
expiry of the limitation period (three months and two days) on 9 May 1965;
—
appeal brought on 12 May 1965.
Case 31/65:
—
communication of the decision rejecting the appeal through official channels on 17 February 1965;
—
expiry ot the limitation period (three months and two days) on 19 May 1965;
—
appeal brought on 28 May 1965.
So it is that in both cases the applications for annulment are inadmissible because they are out of time. Since this was the only purpose of Case 31/65 it should be dismissed in its entirety as inadmissible. In Case 28/65 the claim for payment of the daily subsistence allowance based on the annulment sought must likewise be held inadmissible. On the other hand, no question as to the expiry of the limitation period arises with regard to the claim for damages. But the question of admissibility does arise here, too, in that it was only formulated for the first time in the reply. I do not think a strict view need be taken of this, especially when the claims for damages are made in connexion with other claims. For this reason, but also because the question of the observance of the limitation period is a somewhat thorny problem in the present case, I think I must not limit my examination of the case to the sphere of admissibility of the applications, but must consider also the substance of the case, at least as a secondary matter.
B — Substance
I — Case 28/65
1. The applications for annulment
The main issue in Case 28/65 is whether the decision of 7 October 1965‘directing’ the applicant to go to Brussels is lawful.
This did not, in the Commission's view, involve a transfer to another post in the technical sense, but meant that the applicant's sphere of duty was moved to another place, where he was to be employed in a different service whilst retaining his previous classification.
Let us consider each of the arguments brought against the lawfulness of these instructions.
(a) Do the Staff Regulations provide at all for such a ‘change in the place of employment’ ?
The applicant points out that the relevant measures of this type recognized by the Staff Regulations apart from occupation of a post ad interim, are only appointment, transfer, and secondment to another post, and each of those cases is dependent on the existence of a vacant post. On the other hand, there is no mention in the Staff Regulations of removal to another place of employment while remaining in the same post.
This is quite correct, but it does not necessarily imply that the Commission's instructions are illegal. It is conceivable that there are gaps in the Staff Regulations which it may rightly be thought possible to fill having regard to its fundamental principles and to the basic rules of national law relating to civil servants. This is what the Commission seemed to have in mind in the present case. National law relating to civil servants (cf. Plog-Wiedow, Kommentar zum Bundesbeamtengesetz, note 7 to paragraph 26) also provides for a change in place of employment, and one does not speak of a change of post if the place of employment is not specifically associated with any particular work. Such a measure is less drastic than transfer, because it does not involve a change of job. It ought not therefore to be unknown to the law relating to Community officials, which recognizes transfer, (See also Euler, Europäisches Beamtenstatut, 1966, volume 1, p. 92); no objection can be made to it when the most important prerequisite for a transfer, that is, that it is in the interests of the service, is present. In that case, since the nature of the measure adopted shows that it is not a change of post, the intervention of the Staff Regulations Committee is not required. Similarly there is no need to post a vacancy notice since there is no vacant post to be filled. Nor (according to the prerequisites for transfer) are such instructions possible only on request or after hearing the applicant, and subject to the strict requirements deemed necessary by the applicant (urgent need or a crisis which cannot be overcome in any other way; instructions confined to a limited period). Lastly, the authority issuing the instructions is not bound by the obligation to state reasons under Article 25 of the Staff Regulations. For if as the Court has held (Joined Cases 18 and 35/65) there is no necessity for this in the event of a transfer, then it cannot be required for the milder measure, based similarly on the interests of the service.
(b) Is the effect of the contested measure really only a change in the applicant's place of employment?
Having made those preliminary observations of principle, we must now consider in detail whether the instructions issued by the Commission fit into the definition given above or whether they have more far-reaching consequences and thus led to a change of post.
In the first place it is not disputed that the applicant was given duties in Brussels which did not fully correspond with his work at Ispra. But this is not in itself significant because the correct view is that some modification of the duties to be performed and the manner of doing so do not necessarily mean a change of post (Cf. Plantey, Traité pratique de la fonction publique, 1963, No 1152). If that were the case, together with all the consequences arising under the Staff Regulations, one might indeed argue that this imposed an intolerable rigidity on the duties attaching to a post, which unduly complicate the exercise of powers of organization.
However, it does appear that the Commission did not in the present case observe the limits described. This is shown even in the definition it has given in the proceedings of what can be regarded as a permissible modification of the duties attaching to a post. Thus, for the Commission the only consideration is whether the level and nature of the duties performed in a post remain the same when the place of employment is changed, and whether the duties of a post, after modification, match those capabilities of the official concerned which were taken into account on his appointment. But it will instantly be seen that this means reducing the concept of a ‘post’ to a mere generic term, when rightly the actual duties attached to the post ought not to be separated from it. These must remain fundamentally unaltered if the authority wishes to avoid the troublesome process of transfer.
There is an indication that the Commission overstepped the bounds of permissible modification of the duties attaching to the post in the applicant's case when one compares the work assigned to the applicant at Ispra with the duties he had to carry out after being sent to Brussels, although on the basis of the proceedings so far we cannot be completely clear about this. At Ispra the applicant was employed as a scientific officer in CENTIS (the European Centre for the Processing of Scientific Information) that is to say, in a service engaged in the computation and processing of scientific information. He was responsible for relationships with the other Communities within his sphere of work. The disputed decision sent him to the purchasing department of the Directorate-General for Administration, where he had to take care of problems relating to the processing of the materials purchased. (Later modifications of and additions to his duties in Brussels must be ignored for the purposes of these proceedings, in the first place because strictly speaking all that can be considered is the immediate effect of the contested decision, but also because any additional duties given to the applicant subsequently—‘adjoint du chef de service d'achat’ and the extension of his sphere of duty to other services in the Commission — scarcely contribute to a more favourable assessment in this case). Now, one may well be inclined to see in the fact that the technical equipment with which the applicant was concerned in Brussels was of the same kind as at Ispra evidence that his duties were also similar. But ultimately it must be the difference in the material handled which must decide the issue. On the information we have gathered from the proceedings we must accept that the applicant was assigned to duties in Brussels which departed considerably from his line of work at Ispra. And according to his statements there is even reason to doubt that the work in Brussels was that appropriate for an official in Grade A, a question which, admittedly, if it is found to be significant, will have to be probed more deeply because the Commission firmly denies the applicant's assertions in this respect.
There is also the fact that the applicant, a scientific officer, was taken from the Community's scientific services and placed in a purely administrative body. Such a transfer of posts and duties from the research budget to the general administration, contrary to the Commission's view, raises not only budgetary problems, the solution of which does not concern the applicant; but, more important, it entails legal consequences which effect his administrative status. The Staff Regulations (and also the Commission's definition of basic posts) expressly distinguishes scientific officers from officials in the general career brackets. For the former there exist a number of special regulations, for instance they may become eligible for bonuses which are not available to officials in the general career brackets. Admittedly such bonuses cannot be claimed as of right, but it is true to say that a scientific officer's prospects of getting them may be reduced if he is performing typical administrative duties in an administrative section. And it is not impossible that such a situation might also influence to some degree the nature of his promotion prospects. In my view it can scarcely be denied that the chances of promotion for a scientific officer may be prejudiced by his being given purely administrative duties. Besides this, his eligibility for promotion will be judged and influenced at least partly— owing to the inclusion of his post in the administration — by superiors and promotion bodies who are not in a position to assess his scientific capabilities. When these points are taken together they lead one to the conclusion that the Commission did more than merely modify the duties attaching to a post when they sent the applicant to Brussels whilst keeping him in his original post. In reality this was an assignment to a new post without observing the requirements set out in the Staff Regulations.
The Commission cannot argue against this by saying that to refer to the conditions for transfer in the Staff Regulations would be an empty formality which would not afford the applicant any additional security or safeguard, because even in the case of transfer the only deciding factor is the interests of the service (Cf. Plantey, ibid, No 744). The crucial point is that a transfer can only take place to fill a vacant post, which must previously be advertised with a description of the duties it involves. This circumstance may be significant for the officials about to be transferred, but it is also significant as regards the interests of other officials applying for the advertised posts. The simple switching of jobs arranged by the Commission in this manner will prejudice the prospects to which they are entitled. Moreover it seems highly questionable whether a simple transfer from the scientific career bracket, for which special provisions apply, to a career bracket in the administration is permissible under the Staff Regulations where there has been no competition.
Lastly, doubts remain as to the problem of the interests of the service, which must be shown to be served in all cases, that is to say, even if the method of moving the applicant chosen by the Commission is considered permissible.
The interest of the service in moving the applicant's activities is supposed to have been based on two grounds: it is said that it was necessary to remove the applicant from CETIS and from the Ispra Nuclear Research Centre, and the purchasing department in the Directorate-General for Administration is supposed to have stood in urgent need of the service of an official with the applicant's training and capabilities.
Now, to start with, the background to the first reason is the particular conduct of the applicant, complained of by the Commission, towards his colleagues and his superiors (he collected information on them through a private detective agency), which led to disciplinary action (a reprimand). In connexion with this the confidence of the staff within the applicant's department at Ispra was undermined. In principle no objection can be made to this as a basis for a decision to move the applicant, since in certain cases where an official fails to conduct himself properly only his removal from the department where he works can restore the latter's ability to function properly (Cf. Plantey, ibid, No 748). Nor is it correct here to speak of a breach of the principle non bis in idem, because the decision to remove the applicant must not constitute a disciplinary measure. But, on the other hand, particular care and conscientiousness must be required of the administrative authority in just such a case where the reasons for the move are subjective, if it wishes to avoid giving the impression that a disciplinary measure is being concealed.
So one is entitled to ask whether the circumstances which have resulted in the imposition of a mild disciplinary measure were sufficiently grave as to make the removal of the official concerned from his department seem imperative. One might also ask whether the Commission did not act over-hastily, solely owing to a measure of apprehension, when it was to have been expected of it that after disciplinary action had been taken it would have continued to observe the applicant's conduct for a while, and thus would have come to the conclusion that the atmosphere in the applicant's department had been irreparably harmed. In the present case, however, it is clear that from June 1964 onwards, that is, a short time after the abovementioned disciplinary measure had been imposed (24 April 1964), and after he had taken a fairly long leave in the month of May, the applicant ceased for a number of reasons to be given duties at Ispra. Then in a case like the present careful consideration should have been given to the question whether the applicant's behaviour was the sole cause of the disturbances in the atmosphere of the department or whether other factors played a part. One reason for going more deeply into this question could be the applicant's argument that the general atmosphere caused many scientific employees to leave Ispra after his departure. Finally, the Commission should have given careful thought to the possibility of finding the applicant some other work at Ispra, before deciding on the move to Brussels, and especially because the applicant had undertaken duties as a member of the Ispra Staff-Committee which are, according to Annex II to the Staff Regulations, to be deemed to be part of his normal duties in the service, and which seem to make a unilateral decision to transfer him particularly difficult (Cf. Plog-Wiedow, ibid, note 35 to paragraph 26). As the proceedings have shown, the two alternatives mentioned by the applicant himself must of course be rejected in this respect (for the compelling reasons given us by the Commission); but that does not solve the whole problem by any means. We are now left with a general picture which leaves considerable doubt whether the circumstances named by the Commission called for the speedy and complete removal of the applicant from the Ispra Nuclear Research Centre.
But there are also doubts whether at the time when the contested decision was issued it was imperative for the Brussels purchasing department to have an official with the applicant's qualifications. The applicant claims that the Head of the purchasing department had evidently never submitted a request to that effect. Also, the applicant was given in Brussels no duties at all at first, and later only those of a Grade B 3 employee, so that his capabilities were not exploited to the full. Not until the subsequent measures were taken in 1965 (Note of 28 January 1965; Commission decision of 13 October 1965) was he assigned duties which corresponded to Grade A.
To summarize, then, the conclusion we reach as to whether the applicant's conclusions are well-founded is that they seem to be so, which calls for further investigation of the facts if not the annulment of the contested decision if, contrary to my view, the application is held to be admissible.
2. The claim for payment by the Commission of the daily subsistence allowance for an official on mission
On the basis of the application for annulment the applicant concludes that if the decision to move him was unlawful the Commission was obliged to treat him as if he had been sent to Brussels on mission. On that basis it should pay him — as with other officials in that position — a daily subsistence allowance as required by the Staff Regulations.
I cannot see this as a necessary deduction. The Commission rightly argues that payment of the daily subsistence allowance for officials on mission is based on an absence which is only temporary, not intended to be of long duration, and a specific directive, that is, a mission order. It cannot possibly be an automatic consequence of a decision to move or transfer an official which is held to be unlawful.
Bearing in mind the fact that the applicant received a series of compensatory payments under Annex VII to the Staff Regulations (Articles 5, 7, 9 and 10) on the basis of the decision to move him, his subsidiary claim for payment by the Commission of the daily allowance must in any event be dismissed even if it were deemed admissible.
3. The claim that the Commission should be ordered to pay damages
In his reply the applicant submitted an additional claim that the defendant be ordered to pay him damages on the ground that in the previous proceedings instituted by the applicant (Case 30/64) it had made false statements concerning the content of one of its resolutions. On the subject of this claim it was also stated in the oral proceedings that it was justified on the ground of the costs incurred by the applicant in Case 30/64 and by his being removed from his scientific work.
Even if this claim is admissible despite the fact that it is not to be found in the application it must be rejected on the basis of the two first-named reasons which relate to proceedings which are now closed. The claim regarding the costs in Case 30/64, in particular, could in my view only be considered if that case were reopened. That the applicant's reasons are also invalid has been shown in the proceedings on the procedural issues, where the Chamber was able to assure itself from the documents produced that the final minutes of the meeting of the Commission during which it decided that the applicant should go to Brussels contain no more than the statement presented by the Commission to the Court in the previous application. So there can be no question of false information.
The alleged damage to his career prospects by reason of his removal to Brussels might lend some shadow of substance to the applicant's claim. But it must be admitted that the applicant has not so far supported his argument and that he has not even begun to provide proof of it. This relieves the Court of any obligation to consider further the claim for damages.
To conclude, the claims for damages must similarly meet with rejection, if not for inadmissibility then on the ground that they are unfounded.
4. The preliminary objection by the Commission which remains to be decided
After all that, there remains one last word to be said in connexion with the first application concerning an application on a procedural issue made by the Commission in a separate document dated 15 January 1966 the decision on which was reserved, by an order of the First Chamber of the Court of 10 March 1966, for the final judgment. It was a request that two documents produced by the applicant be removed from the file of the case, namely a report by a private detective agency on the qualifications of two former colleagues of the applicant and a telex message from the President of the Ispra Staff Committee to the Commission's Director-General for Administration of 16 October 1964 (Schedules 22 and 34 to the applicant's reply).
In my view, neither document is relevant to a decision in the case; they may therefore be ignored. However, only the removal from the file of the first document need be considered, for the telex message might conceivably bear some relation to the case and is obviously not capable of prejudicing the rights of third parties. Whether the Court orders the removal from the file of the private detective agency's report depends on how far it goes in judging the decision to move the applicant, that is to say, whether it considers significant the point about the interests of the service, to which the report might in certain circumstances be relevant. If it does not, then it must order that the report be removed from the file on the ground that it is capable of prejudicing persons who are not involved in the proceedings.
5. Summary and decision on costs
My view of the first application may be summarized as follows: the conclusions seeking annulment must be rejected on the ground of inadmissibility; the claims for damages from the Commission and for payment of the daily subsistence allowance are in any case unfounded. The applicant therefore fails on all counts and must bear his own costs in accordance with Article 70 of the Rules of Procedure.
There remains the decision on costs for the application for a suspension made by the applicant and for the two applications on procedural issues made by the Commission. The decision on costs in the application for a suspension, where the applicant's request was refused, can follow the decision in the main application.
The first application on a procedural issue, concerning the admissibility of the main application, resulted in a decision by the Chamber to reserve the question for the final judgment, and the second, concerning the admissibility of the main application, resulted in a decision by the Chamber to reserve the question for the final judgment, and the second, concerning the admissibility of the presence of certain documents resulted, at least partly, in an immediate decision in the Commission's favour. However I do not think this makes it necessary to alter the decision which I have suggested for the main application because of the applications on procedural issues since the decision on the questions raised by the Commission in them was essentially in the Commission's favour. Accordingly the decision on costs in the first application can follow in all respects Article 70 of the Rules of Procedure.
II — Case 31/65
The issue in Case 31/65 is the legality of certain promotion decisions adopted for the year 1964 and communicated to staff at the Euratom Commission by being posted in its establishments on 9 October 1964. It is alleged that, so far as they concern promotions from the applicant's category, Grade A 5, they are unlawful for a variety of reasons, mostly concerning the adoption of the procedure to be followed in making the promotions and the drawing up of a list of suitable candidates for the promotions (‘liste d'aptitude’).
1. What are the characteristics of the promotion procedure?
It should be recalled from Case 27/64 that the Euratom Commission, departing from the practice of the other two institutions, has adopted a special promotion procedure (in Circular No 3/64 of 8 April 1964, for the year 1964). It is special in that various local ‘comites d'avancement’ and a central ‘comité d'avancement’ are introduced for the preliminary examination of candidates eligible for promotion. Next the appropriate appointing authority (for Category A, the Commission itself) draws up an alphabetical list of suitable candidates based on the work of these committees and this is communicated to staff (in the present case this was done by a notice posted up on 24 July 1964).
Lastly, it is on the basis of this list that the Commission adopts the promotion decisions.
2. Specific complaints
The applicant's detailed grounds of complaint concerning this selection procedure and the assessment of his own merits coincide to a great extent with the arguments he adduced in Case 27/64 concerning the adoption of the promotion decisions drawn up after the same procedure for the year 1963, and I may therefore be brief in the present case.
Thus, we know already that the Commission is not guilty of any infringement of Article 110 of the Staff Regulations, although its circular on the promotion procedure was drawn up without consulting the Staff Committee and the Staff Regulations Committee. For the Court considers that Article 45 of the Staff Regulations, concerning the promotion of officials, applies without the need to issue implementing provisions in accordance with Article 110 of the Staff Regulations. It should also be emphasized that the circular at issue only concerns the preliminary procedure and that the ‘comites d'avancement’ taking part have no decisive influence on the drawing up of the promotion decisions. So that Commission has not surrendered its responsibility for the promotion of officials in Grade A; on the contrary, it undertakes itself, without being bound by the proposals of those committees, a comparative assessment of the merits on the basis of which the list of suitable candidates was drawn up, and this it does on the basis of the relevant reports on officials and their personal files. Since the role of the ‘comites d'avancement’ was only that of preparatory consultation with subordinate bodies, the results of their work can no more be the object of a duty to state reasons than are the promotion decisions themselves in the case-law of the Court. There is accordingly nothing contrary to law in the fact that the criteria of assessment and working procedures of the ‘comites d'avancement’, and the results of their work, were not published.
Nor can it be objected that the Euratom Commission made promotions without regard to the requests submitted by the officials concerned. No such requirement is imposed by the Staff Regulations, nor does there seem any good reason why it should be thought unlawful to take into consideration all eligible candidates before making the promotions.
As for the applicant's particular case, the fact that his name does not appear on the Commission's list of suitable candidates does not mean, any more than it did in Case 27/64, that he was not considered in the comparative assessment of eligible candidates. The Commission strenuously denies any such exclusion from the promotion procedure; no kind of proof to the contrary has been produced by the applicant. Lastly, in this first group of complaints, the allegation that the assessment of the applicant's suitability for promotion was inadequate and defective in that at least in the first phase of the promotion procedure his observations on his annual report were disregarded, cannot be accepted. In fact one sees from the documents that the applicant's annual report is dated 4 June 1964 whilst the local ‘comité d'avancement’ finished its work on 8 June. It was therefore possible to take the applicant's observations on his report into account from the start. It was certainly possible — and this fact is decisive — at the point when the Commission itself commenced the normal assessment of the merits of suitable candidates.
One further argument of the applicant should be discussed in detail, however, because it could not be considered in Case 27/64 owing to the fact that it was submitted too late. It is that Articles 4 and 5 of the Staff Regulations, to the effect that staff must be notified of any vacant post in an institution as soon as the appointing authority has decided it should be filled, were infringed. This was not done as it should have been in the present case because the Commission omitted to publish at the proper time, for Grade A 4 posts which were filled by the promotion decisions in question, the number of the vacant posts, the duties attached to them, the requirements to be met by candidates and the time-limit for applications.
It cannot be denied, in fact, that a promotion of scientific officers from Grade 5 to Grade 4 cannot be accomplished within the same career bracket, for according to Annex I (b) to the Staff Regulations there is no career bracket embracing the two. Any such promotion presupposes therefore a vacant post in Grade A 4 and this vacant post must, according to Article 4 of the Staff Regulations, be advertised in a vacancy notice.
So we must ask whether this requirement was sufficiently observed in the present case when the Commission set out the Grade A 4 posts to be filled in Vacancy Notice V/P/4/64 of 4 October 1964. There is no doubt that is was, in so far as the prior publication of vacant posts is required, for the Commission's decisions were taken on 7 October 1964, and they were adopted without taking into account the requests of interested officials. But, more than that, unlike the applicant I have no doubts either about the content of the vacancy notice, for the details of which I refer the Court to page 5 of the rejoinder. It is divided into career brackets; for each career bracket the number of posts to be filled is given. It also states in which Directorate-General, directorate and department the vacant posts are available, and for Ispra in particular, for which spheres of work, described exactly, posts exist. In my opinion with this information the appointing authority has indicated with sufficient clarity the requirements which it wishes to lay down for the individual posts. Thereby it guarantees an objective selection from amongst the suitable candidates. But to require in addition to this that the vacancy notice should state how the Commission intends to fill the vacant posts is, as the defendant rightly observes, not permissible because this would prejudice the selection procedure provided for in Article 29 of the Staff Regulations. Lastly the Commission is also correct in saying that even a detailed definition of the vacant posts would not have affected the question of the applicant's promotion since he was excluded on the basis of a comparative assessment of his past performance. For this assessment the principal consideration would be the duties corresponding to Grade 5, not the abilities required for Grade 4.
3. Result
Accordingly the application for annulment in Case 31/65 must be dismissed, if not for inadmissibility, then because it is unfounded.
C — Conclusions
To summarize, my opinion on the two cases before us is as follows: the applications are, as regards the requests for annulment, to be dismissed as inadmissible; Application 31/65 is in any case unfounded; the claims in Case 28/65 for damages from the Commission and for the payment of the daily subsistence allowance are at the least unfounded. The decision on costs for both cases, including the proceedings on procedural issues, will be in accordance with Article 70 of the Rules of Procedure.
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