JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

26 October 1994

Case T-18/93

Antonio Marcato

V

Commission of the European Communities

‛Officials — Action for annulment — Admissibility — Definitive staff report — Delay in drawing up — Promotion — Refusal to include the applicant on the list of officials considered the most deserving — Action for damages — Material damage — Nonmaterial damage’

Full text in French II-681

Application for:

annulment of die applicant's staff report for the period from 1 July 1985 to 30 June 1987, as definitively drawn up by the appeal assessor on 24 April 1992;

compensation for material and nonmaterial damage.

Decision:

Order that die Commission compensate the applicant for die nonmaterial damage suffered; for the rest, application dismissed.

Abstract of the Judgment

The applicant, a retired B 3 Grade official, challenged his staff report for the period from 1 July 1985 to 30 June 1987 and requested that the matter be referred to the appeal assessor and, subsequently, to the Joint Committee on Staff Reports (JCSR) for an opinion. Although the JCSR did not share the applicant's negative view of his staff report, it asked the appeal assessor to review the report, and the ‘definitive’ report was drawn up on 10 June 1991.

On 31 July 1991 the applicant lodged his first complaint, which was directed against the definitive report and which received another favourable opinion from the JCSR on 9 December 1991. The Director-General of the Directorate-General of Personnel and Administration upheld the complaint, and a new definitive staff report, replacing the earlier one, was drawn up on 24 April 1992.

On 13 July 1992 the applicant lodged his second complaint, directed against the appeal decision of 24 April 1992 establishing the definitive staff report, which the applicant considered did not state sufficient reasons and did not correspond with the recommendations of the JCSR.

On 8 October 1992, without having ruled on the applicant's second complaint, the appointing authority decided not to include the applicant on the list of officials considered most deserving of promotion to Grade B 2 for the year 1988 - a decision which subsequently formed the subject-matter of the applicant's third complaint.

In the meantime, on 6 November 1992, the applicant received a copy of a memorandum previously issued by the chairman of the JCSR, stating that, in the committee's view, the staff report on appeal did not take the committee's opinions fully into account and that the applicant's second complaint was therefore well founded. That complaint was rejected by a decision of 18 December 1992, which was notified to the applicant on 2 February 1993.

On 3 February 1993 the applicant lodged his third complaint, directed against the decision of 8 October 1992, in which he argued that, since the staff report for 1985 to 1987 was still subject to a disputes procedure, the latter decision was taken on the basis of an incomplete file. The Commission rejected the applicant's third complaint, but the applicant did not bring any action against its decision.

The claim for annulment of the staff report of 24 April 1992

Admissibility

The claim for annulment is admissible, first, because a staff report constitutes such a measure as may adversely affect an official. Secondly, the Commission cannot deny the applicant's interest in bringing proceedings on the ground that he would not have appeared anyway on the list of officials considered to be the most deserving of promotion, even if the Promotions Committee had had a different staff report at its disposal, which took the opinions expressed by the JCSR into account, or even had no staff report at all. There is nothing to justify the Commission in thus prejudging the opinion which the Promotions Committee would have issued if it had had a different staff report at its disposal, nor is there anything in the documents before the Court to show that the applicant should not, in any event, appear on the list of candidates considered to be the most deserving. Thirdly, the fact that the applicant has not brought an action for the annulment of the Commission's decision rejecting his complaint of 3 February 1993 does not necessary deprive him of his interest in bringing an action for the annulment of the decision which established his staff report. Quite apart from the nonmaterial interest which any official has in seeing his staff reports correctly drawn up, the applicant has sufficient interest to challenge the contested decision because, if the staff report in question were to be annulled for a particularly serious reason, that could lead to the decision of 8 October 1992, which has not created rights either in relation to the applicant or in relation to third parties, being withdrawn, since the new staff report, drawn up in compliance with the judgment, would show that that decision was made in reliance on manifestly incorrect information (paragraphs 26 to 29).

See: 29/70 Marcato v Commission [1971] ECR 243; 105/81 Oberthür v Commission [1982] ECR 3781

Substance

(a) The alleged breach of the staff reports procedure

The length of the staff reports procedure and the delays involved do not in themselves affect the legality of the resultant report (paragraph 36).

See: 36, 37 and 218/81 Seton v Commission [1983] ECR 1789

(b) The alleged breach of the principles of good faith, sound management and proper administration

It has been consistently held that review by the Community judicature of the content of staff reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers. The task of the appeal assessor is to check, quite independently, the assessments made by the first assessor. He is therefore perfectly entitled to confirm the first assessment if he thinks that appropriate (paragraphs 45 and 46).

See: Seton v Commission, cited above

The Court finds that the general assessments in the contested staff report are sufficiently close to those in the initial report and, in any event, do not reveal any significant, or even noticeable, worsening in the assessments of the applicant such as to affect the legality of the report in the light of the principles invoked by the applicant. In those circumstances, it is unnecessary to decide the question, argued between the parties, whether the report procedure on appeal and the various administrative procedures offered to the official reveal a worsening, as far as he is concerned, of the report on appeal compared with the report by the original assessor (paragraph 49).

The applicant's allegations, first, that he has suffered as a result of defamatory remarks made against him in the Promotions Committee without his knowledge and, secondly, that he has been the victim of a strained relationship between the Court of Auditors and the Commission department in which he worked, are not supported by any information enabling the Court to determine whether they are well founded or to infer any disregard by the appeal assessor of the principles of good faith and sound administration (paragraph 50).

The second plea must therefore be rejected (paragraph 51).

(c) The alleged misuse of powers

This plea must be rejected because the applicant's allegations are not supported by any information making it possible to determine whether they are well founded and, in particular, the attestations by his superiors do not in any way show, on the basis of objective, precise and consistent evidence, that in drawing up the contested staff report the appeal assessor used his powers for any purposes other than those for which they were conferred (paragraphs 54 and 55).

The compensation claims

Admissibility

It is only where there is a direct link between an action for annulment and an action for damages that the latter is admissible as incidental to the action for annulment, without having to be preceded by a request from the party concerned inviting the appointing authority to grant compensation for the damage allegedly suffered and by a complaint in which the complainant disputes the validity of the implied or express rejection of his request (paragraph 58).

See: T-27790 Latham v Commission [1991] ECR II-35; T-29/91 Castellettiv Commission [1992] ECR II-77, para. 29

In this case, the Court finds that the damage alleged by the applicant does show a sufficiently direct link with the content of the staff report challenged in the annulment action or the conditions under which it was drawn up, and also with the consequences of that report for the promotion procedure; the alleged faults of the Commission and the delays found to have occurred relate to the contested staff report alone. Since the claims for annulment in this action are themselves admissible, the compensation claims are also admissible (paragraph 59).

Substance

(a) The claim for material damage

The fact that a file is irregular or incomplete for lack, in particular, of a staff report at the time when the comparative merits of the candidates are examined is not sufficient to entail the annulment of a promotion decision, unless it is shown that that fact could have had a decisive effect on the promotion procedure. Moreover, if a staff report is missing, the appointing authority may seek other information capable of compensating for its absence (paragraph 73).

See: 27/77 De Roubaix v Commission [1978] ECR 1081; 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943; 7/86 Vincent v Parliament [1987] ECR 2473; 140/87 Bevan v Commission [1989] ECR 701; T-58/92 Moat v Conunission [1993] ECR II-1443

Secondly, it is clear from the documents before the Court that the Promotions Committee made its decision with full knowledge of the facts, having regard to a complete file and with a definitive staff report at its disposal for the purposes of Article 7 of the guide to staff reports in force at the Commission (paragraph 74).

Thirdly, the applicant cannot rely, in support of his compensation claim for material damage, on claims challenging the legality of the contested staff report which have all been dismissed by this judgment (paragraph 75).

The claim for material damage is therefore dismissed (paragraph 77).

(b) The claim for nonmaterial damage

It is mandatory for a staff report to be drawn up in the interests of the proper administration and the rationalization of the Community's services and in order to safeguard the interests of officials. That report constitutes an indispensable basis for assessment whenever an official's career comes under consideration by the administrative authority. One of die imperative duties of the administration is therefore to ensure that that report is drawn up periodically at the times prescribed by the Staff Regulations and established in proper form. The absence of a staff report is likely to put the person concerned in an uncertain and anxious state of mind with regard to his professional future, giving rise to nonmaterial damage capable of justifying compensation (paragraph 78).

See: 61/76 Geist v Commission [1977] ECR 1419; Bevati v Commission, cited above; T-73/89 Barbi v Commission [1990] ECR II-619

Although, in the present case, the delay in drawing up the applicant's definitive staff report was partly due to the applicant himself, who, legitimately, used all the procedures available to him under the guide to staff reports, the Court also finds that it was due in large part to the administration. In those circumstances, the Court considers it justified to grant, within the limits of the claims submitted to it, one ecu by way of compensation for the nonmaterial damage suffered by the applicant (paragraphs 79 and 80).

Operative part:

1. The Commission is ordered to pay the applicant one ecu for the nonmaterial damage he has suffered.