61976CJ0031_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 31/76
MARGHERITA HEBRANT ( NEE MACEVICIUS ), AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT 6, RUE LEANDRE LACROIX, LUXEMBOURG, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BIEL, 18A RUE DES GLACIS,
APPLICANT,
V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN, 22, COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION PRINCIPALLY FOR THE ANNULMENT OF THE PERIODIC REPORT ON THE APPLICANT FOR THE PERIOD 1973 TO 1974 AND FOR AN ORDER THAT THE DEFENDANT PAY HER 1 FLUX BY WAY OF DAMAGES,
Grounds
1 THE PRESENT APPLICATION, WHICH WAS LODGED ON 24 MARCH 1976, IS PRINCIPALLY FOR THE ANNULMENT OF THE APPLICANT ' S PERIODIC REPORT, WHICH WAS DRAWN UP IN RESPECT OF THE PERIOD 1973/1974 AND FOR AN ORDER THAT THE DEFENDANT SHOULD PAY SYMBOLIC DAMAGES OF ONE LUXEMBOURG FRANC .
2 THE REPORT IN QUESTION, DATED 19 MARCH 1975, BEARS THE RATING ' GOOD '
UNDER THE HEADING ' ABILITY ', UNFAVOURABLE ASSESSMENTS WITH REGARD TO EFFICIENCY AND CONDUCT IN THE SERVICE AND A GENERAL REPORT WHICH IS ALSO UNFAVOURABLE .
3 BECAUSE THESE ASSESSMENTS DID NOT CORRESPOND TO THOSE CONTAINED IN THE PRECEDING REPORTS, THE APPLICANT DESCRIBED THEM IN HER OBSERVATIONS ON THAT REPORT AS ' SERIOUS ACTS OF ABUSE OF POWERS BY A DIRECTOR GENERAL IN THE PERFORMANCE OF HIS ADMINISTRATIVE DUTIES ' .
4 A REPLY IN THE AFFIRMATIVE WAS GIVEN TO THE QUESTION PUT BY THE COURT TO THE DEFENDANT AS TO WHETHER THE COMPETENT DIRECTOR GENERAL HAD REPLIED TO THE OBSERVATIONS OF THE APPLICANT ON THAT REPORT BEFORE THE PERIODIC REPORT IN QUESTION WAS SIGNED, AS IS OBLIGATORY, BY THE SECRETARY GENERAL OF THE PARLIAMENT .
ADMISSIBILITY
5 THE DEFENDANT ALLEGES FIRST OF ALL THAT A PERIODIC REPORT CANNOT BE AN ACT WHICH MAY BE CONTESTED UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS BECAUSE IT IS ONLY A PURELY INTERNAL ACT THE REMEDIES FOR WHICH LIE SOLELY IN THE RIGHT OF THE PERSON AFFECTED TO ADD ANY OBJECTIONS AND OBSERVATIONS .
6 SINCE ARTICLE 43 OF THE STAFF REGULATIONS PROVIDES FOR THE MAKING OF A PERIODIC REPORT EVERY TWO YEARS THESE ARE THUS MANDATORY MEASURES WHICH MUST BE COMMUNICATED TO THE PERSON CONCERNED .
7 IT IS CLEAR THAT THESE PERIODIC REPORTS GENERALLY CONSTITUTE A MORE OR LESS IMPORTANT FACTOR EACH TIME THE OFFICIAL CONCERNED IS CONSIDERED FOR ANY PROMOTION OR TAKES PART IN COMPETITIONS WITHIN THE MEANING OF ARTICLE 29 OF THE STAFF REGULATIONS .
8 ALTHOUGH IT IS TRUE THAT THESE REPORTS ARE MADE UP OF ASSESSMENTS WHICH IT IS DIFFICULT FOR A COURT TO REVIEW, THIS FACT DOES NOT PREVENT THEIR ADOPTION FROM BEING VITIATED FOR LACK OF AUTHORITY, IRREGULARITY OF FORM AND PROCEDURE OR PATENT ERROR AND MISUSE OF DISCRETIONARY POWER - DEFECTS CAPABLE OF MAKING THEM UNLAWFUL .
9 ACCORDINGLY THE ARGUMENT THAT AN APPLICATION AGAINST A PERIODIC REPORT IS IPSO FACTO INADMISSIBLE CANNOT BE ACCEPTED .
10 THE DEFENDANT PUTS FORWARD IN THE ALTERNATIVE THE ARGUMENT THAT THE REPORT WAS NOTIFIED TO THE APPLICANT ON 24 APRIL 1975 AT THE LATEST, SO THAT HER COMPLAINT THROUGH OFFICIAL CHANNELS LODGED ON 7 OCTOBER 1975 WAS OUT OF TIME .
11 THE REPORT IN QUESTION WAS COUNTERSIGNED BY THE SECRETARY GENERAL OF THE PARLIAMENT ON 19 OCTOBER 1976 IN THE FORM IN WHICH IT HAD BEEN COMMUNICATED TO THE APPLICANT .
12 IT BECAME DEFINITIVE ONLY ON THAT DATE .
13 ACCORDINGLY, THE FACT THAT THE APPLICANT, IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED FOR THE DRAWING UP OF PERIODIC REPORTS, HAD KNOWLEDGE OF THE CONTENTS BEFORE THAT DATE IS NOT CAPABLE OF CAUSING THE PERIOD FOR LODGING AN APPEAL TO START TO RUN OR OF SHORTENING IT .
14 THE APPLICATION IS THEREFORE ADMISSIBLE .
THE SUBSTANCE OF THE CASE
15 THE APPLICANT CONSIDERS THAT THE REPORT IS ILLEGAL FIRST OF ALL BECAUSE IT WAS DRAWN UP BY THE VERY PERSON AGAINST WHOM SHE HAD ALREADY SUBMITTED HER COMPLAINT THROUGH OFFICIAL CHANNELS IN A PREVIOUS CASE ( CASE 66/75, ( 1976 ) ECR 593 ).
16 SHE CLAIMS THAT IN SO DOING, THE DIRECTOR GENERAL IS MAKING HIMSELF JUDGE AND WITNESS IN HIS OWN CAUSE .
17 THE APPLICANT HAS PUT FORWARD NO FACTOR WHICH IS CAPABLE OF PROVING THAT THE PERSON MAKING THE REPORT WAS NOT IMPARTIAL AND SOUGHT BY HIS ASSESSMENTS ADVERSELY TO AFFECT THE APPLICANT ' S CAREER .
18 ON THE CONTRARY IT APPEARS FROM THE FILE THAT THE PERSON CONCERNED HAS SHOWN THAT AT LEAST HER ' CONDUCT '
LEFT MUCH TO BE DESIRED THROUGH HER REFUSAL TO COOPERATE WITH THE MEASURES PUT IN HAND FOR THE PURPOSES OF THE REORGANIZATION OF THE SERVICE .
19 FOR THESE REASONS, THE FIRST SUBMISSION CANNOT BE ACCEPTED .
20 THE APPLICANT SECONDLY ALLEGES A MISUSE OF POWERS INASMUCH AS, WHILE THE CONCLUSIONS OF THE REPORT TENDED TO SHOW HER INEFFICIENCY, IMPORTANT DUTIES WERE STILL ENTRUSTED TO HER .
21 THIS FACT IS NOT BY ITSELF CAPABLE OF ESTABLISHING A MISUSE OF POWERS .
22 IT APPEARS FROM THE PROCEEDINGS THAT THE SECRETARY GENERAL ONLY SIGNED THE REPORT ON 19 OCTOBER 1976 .
23 IT IS APPROPRIATE FOR THE COURT TO EXAMINE OF ITS OWN MOTION WHETHER THIS DELAY IS SUCH AS TO MAKE THE REPORT LEGALLY VOID .
24 A PERIODIC REPORT MUST BE DRAWN UP IN RESPECT OF EVERY TWO-YEAR PERIOD AND SIGNED BY THE SECRETARY GENERAL .
25 THE EXPLANATIONS SUPPLIED BY THE DEFENDANT CONCERNING INTER ALIA THE SPECIAL VICISSITUDES ARISING FROM THE LODGING OF TWO SUCCESSIVE APPLICATIONS OVERLAPPING IN TIME ARE HOWEVER CONVINCING AND ENABLE THE COURT TO ACKNOWLEDGE THAT THE DELAY OF THE SECRETARY GENERAL OF THE PARLIAMENT IN COUNTERSIGNING IS EXPLAINED BY HIS CONCERN TO OBTAIN FROM THE DIRECTOR GENERAL A REPLY TO THE OBSERVATIONS OF THE APPLICANT .
26 THEREFORE THE PERIODIC REPORT IS NOT VITIATED BY THE FACT THAT THE SIGNATURE OF THE SECRETARY GENERAL WAS BELATEDLY GIVEN .
27 THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED .
Decision on costs
COSTS
28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
29 THE APPLICANT HAS FAILED IN HER SUBMISSIONS .
30 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY SUCH INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .