Judgment of the Court (First Chamber) of 13 July 1972. - Giorgio Bernardi v European Parliament. - Case 90-71.



European Court reports 1972 Page 00603

Danish special edition Page 00149

Greek special edition Page 00097

Portuguese special edition Page 00201



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - PROCEEDINGS FOR ANNULMENT - COMPLAINT OF IRREGULARITIES RESULTING FROM APPLICANT' S OWN BEHAVIOUR - INADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 91 )

2 . OFFICIALS - PROMOTION - STATEMENT OF REASONS WITH REGARD TO UNSUCCESSFUL CANDIDATES - NOT REQUIRED

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 45 )

Summary

1 . A PARTY CANNOT INVOKE BEFORE THE COURT IRREGULARITIES WHICH MAY HAVE BEEN THE CONSEQUENCE OF HIS OWN BEHAVIOUR .

2 . THE APPOINTING AUTHORITY HAS NO DUTY AS AGAINST UNSUCCESSFUL CANDIDATES TO PROVIDE A STATEMENT OF THE REASONS ON WHICH DECISIONS OF PROMOTION ARE BASED .

Parties

IN CASE 90/71

GIORGIO BERNARDI, AN ASSISTANT TRANSLATOR WITH THE EUROPEAN PARLIAMENT, RESIDING AT 5 RUE EUGENE-WELTER, LUXEMBOURG-HOWALD, REPRESENTED BY ITALO D' AVANZO, ADVOCATE, OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 71 RUE DES GLACIS, APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ASSISTED BY ALEX BONN, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN, 22 COTE-D' EICH, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT DATED 7 SEPTEMBER 1971 POSTED UP ON 8 OCTOBER 1971, PROMOTING MRS ANNA-MARIA DELL' OMODARME TO THE CAREER BRACKET OF A TRANSLATOR IN GRADE L/A6,

Grounds

1 BY AN APPLICATION LODGED AT THE REGISTRY ON 8 NOVEMBER 1971 THE APPLICANT HAS BROUGHT BEFORE THE COURT AN APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT OF 7 SEPTEMBER 1971, POSTED UP ON 12 OCTOBER 1971, PROMOTING MRS DELL' OMODARME TO THE CAREER BRACKET OF TRANSLATOR IN GRADE L/A6 .

2 IN SUPPORT OF HIS APPLICATION THE APPLICANT CLAIMS THAT THERE HAS BEEN AN INFRINGEMENT OF ARTICLES 25 AND 45 OF THE STAFF REGULATIONS OF OFFICIALS AND OF THE DECISION OF THE BUREAU OF THE PARLIAMENT OF 12 DECEMBER 1962 ON THE ESTABLISHMENT OF APPOINTING AUTHORITIES FOLLOWING THE ENTRY INTO FORCE OF THE STAFF REGULATIONS OF OFFICIALS AND THAT THERE HAS ALSO BEEN A MISUSE OF POWERS .

THE SUBMISSION OF INFRINGEMENT OF ARTICLE 45 OF THE STAFF REGULATIONS

3 ARTICLE 45 OF THE STAFF REGULATIONS PROVIDES THAT PROMOTION SHALL BE MADE IN PARTICULAR AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORT ON THEM .

4 THE APPLICANT, WHO HAD APPLIED FOR THE PROMOTION IN DISPUTE, RELIES ON THE FATE THAT IN THE PRESENT CASE THE COMPARATIVE CONSIDERATION WAS INCOMPLETE SINCE THE ADMINISTRATION DID NOT HAVE AT ITS DISPOSAL AS FAR AS HE WAS CONCERNED THE PERIODIC REPORT, PROVIDED FOR IN ARTICLE 43 OF THE STAFF REGULATIONS, FOR THE YEAR 1969 TO 1970 .

5 IN FACT WHEN THE PROPOSED REPORT ON THE APPLICANT WAS SENT TO HIM BY LETTER OF 15 JULY 1971 HE RETAINED IT IN ORDER TO DRAFT HIS COMMENTS SO THAT DURING THE PERIOD IN WHICH THE CONTESTED DECISION WAS BEING DRAWN UP THE COMPETENT AUTHORITY DID NOT HAVE A REPORT ON THE APPLICANT AT ITS DISPOSAL .

6 THE PROPOSED REPORT WAS NOTIFIED TO THE APPLICANT ON 15 JULY 1971 WITH A REQUEST TO RETURN IT WITHIN A MAXIMUM PERIOD OF FIVE DAYS DULY SIGNED AND WITH ANY COMMENTS HE MIGHT HAVE .

7 INSTEAD OF COMPLYING WITH THIS REQUEST THE APPLICANT, BY LETTER OF 29 SEPTEMBER 1971, REQUESTED THE PRODUCTION OF CERTAIN DOCUMENTS WHICH HE REQUIRED IN ORDER TO DRAW UP HIS COMMENTS .

8 INSTEAD OF RETURNING THE PROPOSED REPORT AND HIS COMMENTS TO THE COMPETENT ADMINISTRATION THE APPLICANT ANNEXED THEM TO HIS APPLICATION INITIATING THE PRESENT PROCEEDINGS ON 8 NOVEMBER 1971 .

9 ASSUMING THAT A PROPOSED PERIODIC REPORT COMMUNICATED TO THE PERSON CONCERNED IN ORDER TO OBTAIN HIS SIGNATURE AND COMMENTS MAY ALREADY BE CONSIDERED, BEFORE IT IS RETURNED, AS A REPORT CAPABLE OF BEING SUBJECTED TO THE COMPARATIVE CONSIDERATION REFERRED TO IN ARTICLE 45 OF THE STAFF REGULATIONS, IT IS IN ANY EVENT CLEAR FROM THE FOREGOING THAT THE " REPORT " COULD NOT FEATURE IN THE SAID COMPARATIVE CONSIDERATION FOR THE SOLE REASON THAT THE APPLICANT RETAINED IT FOR FOUR MONTHS .

10 IN THOSE CIRCUMSTANCES, THE APPLICANT CANNOT INVOKE BEFORE THE COURT IRREGULARITIES WHICH MAY HAVE BEEN THE CONSEQUENCE OF HIS OWN BEHAVIOUR .

11 CONSEQUENTLY THE SUBMISSION MUST BE DISMISSED .

THE SUBMISSION OF INFRINGEMENT OF ARTICLE 25 OF THE STAFF REGULATIONS

12 ARTICLE 25 OF THE STAFF REGULATIONS PROVIDES THAT ANY DECISION ADVERSELY AFFECTING AN OFFICIAL IS TO STATE THE REASONS ON WHICH IT IS BASED .

13 THE APPLICANT ASSERTS THAT THE DECISION TO PROMOTE ANOTHER CANDIDATE ADVERSELY AFFECTS HIM AND CLAIMS THAT THE REASONS ON WHICH IT WAS BASED SHOULD ACCORDINGLY HAVE BEEN STATED .

14 IT MUST BE STATED THAT IT WAS UNNECESSARY TO PROVIDE A STATEMENT OF REASONS FOR THE DECISION WITH REGARD TO THE PERSON TO WHOM IT WAS ADDRESSED, THAT IS TO SAY, WITH REGARD TO THE SUCCESSFUL OFFICIAL, WHO CANNOT BE ADVERSELY AFFECTED BY IT .

15 UNDER ARTICLE 45 OF THE STAFF REGULATIONS THE APPOINTING AUTHORITY HAS NO DUTY AS AGAINST THE UNSUCCESSFUL CANDIDATES TO PROVIDE A STATEMENT OF THE REASONS ON WHICH DECISIONS OF PROMOTION ARE BASED AND MOREOVER THE RECITALS OF SUCH A STATEMENT OF REASONS MIGHT BE PREJUDICIAL TO THE LATTER .

THE SUBMISSION OF INFRINGEMENT OF THE DECISION OF THE BUREAU OF THE PARLIAMENT

16 THE DECISION OF 12 DECEMBER 1962 STATES IN PARTICULAR THAT WITH REGARD TO THE APPLICATION OF ARTICLE 45 OF THE STAFF REGULATIONS TO OFFICIALS IN CATEGORY A AS FAR AS GRADE 7 INCLUSIVE AND IN THE LANGUAGE SERVICE AS FAR AS GRADE 6 INCLUSIVE, THE PRESIDENT SHALL, ACTING ON THE PROPOSAL OF THE SECRETARY GENERAL, EXERCISE THE POWERS CONFERRED BY THE STAFF REGULATIONS ON THE APPOINTING AUTHORITY .

17 THE SAME PROVISION ADDS IN FINE THAT THE BUREAU SHALL NEVERTHELESS BE NOTIFIED IN ADVANCE OF DECISIONS RELATING TO POSTS IN CATEGORY A .

18 THE APPLICANT ASSERTS THAT THE BUREAU WAS NOT NOTIFIED IN ADVANCE OF THE CONTESTED DECISION AND MAINTAINS THAT THIS FACT RENDERS THE DECISION UNLAWFUL .

19 SINCE THE PROVISION INVOKED DISTINGUISHES FIRST OF ALL BETWEEN OFFICIALS IN CATEGORY A AND THOSE IN THE LANGUAGE SERVICE IT FOLLOWS THAT THE PROVISO IN FINE RELATING TO DECISIONS CONCERNING POSTS IN CATEGORY A MUST BE INTERPRETED AS NOT REFERRING TO POSTS IN THE LANGUAGE SERVICE .

20 THE SUBMISSION MUST THUS BE REJECTED .

THE SUBMISSION OF MISUSE OF POWERS

21 THE APPLICANT MAINTAINS THAT THE BEHAVIOUR OF THE ADMINISTRATION IN THE PROMOTION IN DISPUTE WAS PROMPTED BY THE DESIRE TO RULE OUT ANY APPLICATION WHICH HE MIGHT MAKE .

22 IN THIS CONNEXION HE REFERS TO THE FACT THAT THE VACANCY NOTICE WAS POSTED UP FROM 7 TO 20 JULY 1971 DURING WHICH PERIOD HE WAS ON HOLIDAY .

23 HE ALLEGES THAT THIS PERIOD OF POSTING WAS SELECTED DELIBERATELY SO AS TO PREVENT HIM FROM SUBMITTING HIS APPLICATION .

24 FURTHERMORE BOTH THE DOCUMENTS PRODUCED IN THE COURSE OF THE WRITTEN PROCEDURE AND THE OBSERVATIONS SUBMITTED BY THE APPLICANT AT THE HEARING WERE COUCHED IN TERMS WHICH PRE-SUPPOSE A MALICIOUS ATTITUDE ON THE PART OF THE ADMINISTRATION TOWARDS HIM AND A CLEAR INTENTION TO HANDICAP HIM .

25 THE VACANCY NOTICE WAS PROPERLY POSTED .

26 FURTHERMORE, THE VERY FACT THAT THE APPLICANT SUBMITTED HIS APPLICATION ON 19 JULY 1971 SHOWS THAT HE WAS NOT HANDICAPPED BY THE CHOICE OF THE PERIOD OF POSTING .

27 IN ADDITION NONE OF THE FACTORS ASCERTAINED IN THE CASE CONFIRMS THE ALLEGATIONS OF THE APPLICANT .

28 CONSEQUENTLY THE SUBMISSION IS UNFOUNDED AND THE APPLICATION MUST BE DISMISSED .

Decision on costs

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

30 THE APPLICANT HAS FAILED IN HIS APPLICATION .

31 HOWEVER UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BY OFFICIALS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .