Judgment of the Court (Second Chamber) of 17 March 1971. - Antonio Marcato v Commission of the European Communities. - Case 29-70.



European Court reports 1971 Page 00243

Danish special edition Page 00037

Greek special edition Page 00725

Portuguese special edition Page 00061



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - OCCUPATIONAL ABILITY - ASSESSMENT BY THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

Summary

THE COURT IS NOT IN A POSITION TO DETERMINE WHETHER THE ASSESSMENT BY THE ADMINISTRATION OF THE OCCUPATIONAL ABILITY OF AN OFFICIAL IS WELL-FOUNDED WHEN THIS ASSESSMENT INVOLVES COMPLEX VALUE-JUDGMENTS WHICH, BY THEIR VERY NATURE, ARE NOT CAPABLE OF OBJECTIVE PROOF .

Parties

IN CASE 29/70

ANTONIO MARCATO, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG, REPRESENTED BY EDMOND WIRION, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE AT HIS CHAMBERS, 1 PLACE DU THEATRE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE PERIODIC REPORT ON THE APPLICANT FOR THE PERIOD FROM 1 JULY 1967 TO 30 JUNE 1969,

Grounds

1 THIS APPLICATION SEEKS THE ANNULMENT OF THE PERIODIC REPORT MADE ON THE APPLICANT IN ACCORDANCE WITH ARTICLE 43 OF THE STAFF REGULATIONS OF OFFICIALS FOR THE PERIOD FROM 1 JULY 1967 TO 30 JUNE 1969 .

2 UNLIKE PREVIOUS REPORTS, WHICH WERE FAVOURABLE, THE REPORT MADE IN 1969 CONTAINS UNFAVOURABLE ASSESSMENTS, IN PARTICULAR WITH REGARD TO THE ABILITY AND EFFICIENCY OF THE APPLICANT .

3 THE COMMISSION EXPLAINS THIS CHANGE IN THE ASSESSMENT OF THE APPLICANT BY REFERENCE TO THE RAPID TECHNICAL PROGRESS MADE IN THE COMPUTER FIELD, WHICH OVERTOOK THE KNOWLEDGE AND ABILITIES OF THE APPLICANT .

4 FOR HIS PART, THE APPLICANT HAS OFFERED TO PROVE BY INVESTIGATION, EXPERT REPORT OR COMPETITION HIS ABILITY TO CARRY OUT ALL THE WORK ON THE MOST MODERN COMPUTER EQUIPMENT IN OPERATION IN HIS BRANCH AND, MORE GENERALLY, HIS CAPACITY FOR WORK AND ORGANIZATION .

5 HE SUBMITTED, IN ADDITION, TESTIMONIALS CONTAINING ASSESSMENTS CONTRASTING WITH THOSE OF THE PERIODIC REPORT .

6 EVEN THOUGH THE UNFAVOURABLE ASSESSMENT OF THE APPLICANT IN THE REPORT AT ISSUE MAY APPEAR SURPRISING WHEN COMPARED WITH PREVIOUS ASSESSMENTS, IT APPEARS TO BE BASED EXCLUSIVELY ON THE OBSERVATIONS OF THE ADMINISTRATION AND ON THE JUDGMENTS WHICH IT MADE WITH REGARD TO THE OCCUPATIONAL ABILITY OF THE OFFICIAL CONCERNED .

7 THE COURT IS NOT IN A POSITION TO DETERMINE WHETHER THE ASSESSMENT BY THE ADMINISTRATION OF THE OCCUPATIONAL ABILITY OF AN OFFICIAL IS WELL-FOUNDED WHEN THIS ASSESSMENT INVOLVES COMPLEX VALUE-JUDGMENTS WHICH, BY THEIR VERY NATURE, ARE NOT CAPABLE OF OBJECTIVE PROOF .

8 FURTHERMORE, THE APPLICANT HAS BEEN UNABLE TO PROVE EITHER IRREGULARITY IN THE REPORT PROCEDURE OR AN OBVIOUS ERROR OF FACT, OR ANY BREACH OF THE OTHER LEGAL SAFEGUARDS CONTAINED IN THE STAFF REGULATIONS .

9 THE OFFER OF PROOF WITH A VIEW TO CORRECTING THE ASSESSMENTS IS INADMISSIBLE IN THE CIRCUMSTANCES .

10 THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

12 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

13 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .