I —

In judging this case it is first necessary to consider certain objections which the defendant Parliament has made on the admissibility of the action. 1. First the Parliament takes the view that reports under Article 43 of the Staff Regulations are not measures which may be contested. On this it refers to Article 90 (2) of the Staff Regulations and concludes that apart from failure to adopt a measure only decisions can be regarded as acts adversely affecting an official. It refers further to the case-law in Joined Cases 177/73 and 5/74 Andreas Reinarz v Commission of the European Communities [1947] ECR 819, according to which only acts ‘capable of directly affecting a precise legal position can be regarded as adversely affecting an official’(ibid, at p. 828). Moreover the Parliament stresses that it is expressly provided in the Staff Regulations that officials are entitled to make comments on the reports concerning them; properly construed this exhausts their remedies. Finally it must be considered that an action can result only in a review of legality, that is, an assessment cannot be replaced by one made by the Court. If the matter is referred back to the administration, the latter remains free to assess the efficiency of an official. In my view it should first of all be borne in mind that reports under Article 43 of the Staff Regulations are of considerable importance for the career of officials. This appears from Article 45 according to which promotions are made after consideration of the reports. In addition such reports, as we have repeatedly noticed, have great importance in the carrying out of selection competitions. It must therefore be acknowledged that defective reports may affect the legal position of officials and therefore they have an interest in having them reviewed by the Court. This is not affected by the opportunity provided by Article 43 of the Staff Regulations to make comments on the reports since they do not in every case remove a wrong assessment and, as such comments originate from the person concerned, they often do not have much weight. In addition it seems significant to me — though I have not attempted an exhaustive study of comparative law — that under legal concepts prevailing in certain Member States such assessments are included as legal acts which may be contested before the courts. This is the case with regard to German law as appears from the Kommentar zum Bundesbeamtengesetz (Commentary on the Federal Civil Service law) by Plog-Wiedow and the decisions of the Bundesverwaltungsgericht (Federal Administrative Court) cited there in Note 17 to Article 172. The same applies now in French law too (originally the case-law was negative). In this respect I refer to Plantey, Traité pratique de la fonction publique, 3rd Edition, Vol. 2, Nos. 2311 and 2312 and the case-law of the Conseil d'État cited there. This naturally does not mean undertaking a comprehensive examination and replacing the assessment made by the administration. Certain errors can be pointed out however in legal proceedings — such as procedural errors, wrong statements of fact and obvious omissions or contradictions — resulting in the annulment of the assessment, which the administration must accordingly undertake afresh without the errors which have been pointed out. For these reasons I take the view that the concept of ‘decision’ in Article 90 (2) of the Staff Regulations is not to be understood in a narrow technical sense and that in the interests of proper legal protection of officials of the Communities, which is not to be taken as lower than the national standard, reports under Article 43 of the Staff Regulations are also to be regarded as measures which may be contested before the Court. Otherwise in fact the only opportunity of referring to any errors would be in proceedings against measures in which the reports have played a part. This might well impede the taking of important staff decisions and such a procedure is certainly not in the interests of efficient administration. The first objection to admissibility should therefore be rejected as invalid. 2. A second objection is that the applicant has not brought his complaint through official channels, for which Article 90 of the Staff Regulations provides a period of three months, in time. The criterion is alleged to be the notification of the report to the person concerned, which was done at the latest on 5 March 1975 as the signature of the applicant shows, and it is irrelevant that the report was not finally signed by the Secretary-General of the Parliament until 17 April 1975. In this connexion it is significant in my view that Article 43 of the Staff Regulations expressly provides that the official is entitled to add to the assessment any comments which he considers appropriate. The applicant made use of this and his Director-General replied as we have seen on 12 March 1975. Further a letter dated 21 March 1975 expressly invited the applicant to submit his comments, which he did in a letter dated 16 April 1975. In these circumstances it can certainly be said that the assessment procedure was not terminated by the communication of the report to the applicant and therefore the applicant, who had started the discussion for which there was provision, had no cause to take formal steps immediately after communication of the report to bring the matter before the Court. It is also significant that a ‘Note de service’ No 66/19 of 21 December 1966 expressly states that assessments made by the Directors-General become final only ‘après visa du Secrétaire général’. Accordingly the applicant could rightly assume that this act was necessary to complete the procedure. Since in view of the fact that the Secretary-General signed on 17 April 1975 the complaint which was made on 17 June 1975 appears in time, it only remains to observe that the second objection to admissibility is also invalid. 3. Finally the complaint is also alleged to be inadmissible because in view of the first-class assessment which the report contains of the applicant it can in no way be said adversely to affect him. My view of this objection is that when considering admissibility the only criterion is whether the contested act adversely affects the applicant according to his own arguments. This may indeed be said, as the applicant points out that compared with previous reports the contested report contains worse assessments which are factually unjustified. Whether there is in fact a ground for complaint and whether the position is contrary to the Staff Regulations is a matter not of admissibility but to be gone into only on considering the substance of the action. There is therefore no ground for rejecting the application as inadmissible.