Judgment of the Court (Second Chamber) of 17 December 1981. - Pierre Gratreau v Commission of the European Communities. - Official - Promotion. - Joined cases 156/79 and 51/80.



European Court reports 1981 Page 03139



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Parties

IN JOINED CASES 156/79 AND 51/80 ,

PIERRE GRATREAU , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN FRASCATI ( ITALY ), ASSISTED AND REPRESENTED BY ERNEST ARENDT OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 34B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , 93 AVENUE BRILLAT-SAVARIN , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG , LUXEMBOURG ,

DEFENDANT ,

Subject of the case

APPLICATIONS , AT THIS STAGE OF THE PROCEEDINGS FOR :

1 . THE ANNULMENT OF THE COMMISSION ' S DECISIONS DATED 9 NOVEMBER AND 20 DECEMBER 1978 LAYING DOWN , IN THE CASE OF OFFICIALS EMPLOYED IN CONNECTION WITH ' ' INDIRECT ACTIONS ' ' , THE LIST OF OFFICIALS IN CATEGORY A PAID FROM RESEARCH APPROPRIATIONS JUDGED TO BE THE MOST DESERVING OF PROMOTION TO GRADE A 4 FOR THE FINANCIAL YEAR 1978 AND THE LIST OF OFFICIALS ACTUALLY PROMOTED FOR THAT YEAR , ON THE GROUND THAT THE APPLICANT ' S NAME DID NOT APPEAR ON EITHER LIST ;

2 . THE CLASSIFICATION OF THE APPLICANT , BY WAY OF COMPENSATION FOR THE DAMAGE SUFFERED BY HIM , IN GRADE A 4 , STEP 7 , AS FROM 1 JANUARY 1981 .

Grounds

15 IN ITS INTERIM JUDGMENT OF 18 DECEMBER 1980 , THE COURT ( SECOND CHAMBER ) TOOK THE VIEW THAT IN CIRCUMSTANCES SUCH AS THOSE OF THE PRESENT CASE , THE IRREGULARITY IN THE PROMOTION PROCEDURE IN THE CASE OF THE APPLICANT WHICH WAS ESTABLISHED IN THAT JUDGMENT , NAMELY THE IMPROPER INCLUSION IN THE FILE OF HIS PERIODIC REPORT FOR 1973 TO 1975 AND THE FACT THAT HIS REPORT FOR 1975 TO 1977 WAS NOT FINAL , WAS INSUFFICIENT TO INVALIDATE THE PROMOTIONS MADE UNLESS IT WAS ESTABLISHED THAT THE IRREGULARITY IN QUESTION MIGHT HAVE HAD A DECISIVE INFLUENCE ON THE PROMOTION PROCEDURE .

16 THE DOCUMENTS SUBSEQUENTLY PRODUCED BY THE COMMISSION PERMIT THE FINDING TO BE MADE THAT , EVEN IF THE APPLICANT ' S PERIODIC REPORT FOR 1973 TO 1975 HAD BEEN AMENDED IN THE SAME MANNER AS HIS REPORT FOR 1975 TO 1977 , AND EVEN IF THE LATTER REPORT HAD BEEN FINAL WHEN THE PROMOTION PROCEDURE COMPLAINED OF WAS IN PROGRESS , THE ASSESSMENTS AWARDED IN RESPECT OF THOSE PERIODS TO THE OFFICIALS ACTUALLY PROMOTED WOULD , IN THE AGGREGATE , HAVE BEEN BETTER THAN THOSE AWARDED TO THE APPLICANT . THERE IS NOTHING IN THE DESCRIPTIVE PARTS OF THE FINAL REPORTS TO SUGGEST THAT THE RELEVANT ASSESSMENTS WERE NOT FOUNDED ON AN OBJECTIVE APPRAISAL .

17 IT HAS THEREFORE NOT BEEN SHOWN THAT THE IRREGULARITY ESTABLISHED BY THE COURT MIGHT HAVE HAD A DECISIVE INFLUENCE ON THE PROMOTION PROCEDURE . FOR THAT REASON , THE COURT CANNOT ACCEPT THE PRINCIPAL SUBMISSIONS RELIED UPON BY THE APPLICANT IN HIS OBSERVATIONS OF 9 AUGUST 1981 .

18 AS REGARDS THE SECONDARY SUBMISSIONS OF THE APPLICANT REQUIRING THE COMMISSION TO PRODUCE ADDITIONAL DOCUMENTS , IT MUST BE EMPHASIZED FIRST OF ALL THAT THE APPLICATION IS DIRECTED EXCLUSIVELY AGAINST THE PROMOTION PROCEDURE FOR THE FINANCIAL YEAR 1978 . IN THAT RESPECT , THE DOCUMENTS RELATING TO THE FINANCIAL YEARS 1979 AND 1980 , THE PRODUCTION OF WHICH IS SOUGHT BY THE APPLICANT , ARE NOT MATERIAL .

19 SECONDLY , IT MUST BE RECALLED THAT THE SOLE ARGUMENT RELIED UPON BY THE APPLICANT IN HIS APPLICATION IS CONFINED TO HIS PERIODIC REPORTS FOR 1973 TO 1975 AND FOR 1975 TO 1977 . THE FACT THAT IN HIS OBSERVATIONS OF 9 AUGUST 1981 THE APPLICANT QUESTIONS WHETHER THE PROMOTION BODIES AND THE APPOINTING AUTHORITY HAVE TAKEN SUFFICIENT ACCOUNT OF OTHER CIRCUMSTANCES CONSTITUTES THE RAISING OF A FRESH ISSUE . THAT ISSUE IS NOT BASED ON MATTERS OF LAW OR OF FACT WHICH HAVE COME TO LIGHT IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT . THIS MATTER MUST THEREFORE BE DISMISSED AS INADMISSIBLE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE .

20 ON THOSE GROUNDS , IT IS ALSO UNNECESSARY TO UPHOLD THE SECONDARY SUBMISSIONS PUT FORWARD BY THE APPLICANT IN HIS OBSERVATIONS ON 9 AUGUST 1981 .

Decision on costs

21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

22 AS REGARDS CASE 51/80 IN WHICH THE APPLICATION WAS DISMISSED AS INADMISSIBLE BY THE INTERIM JUDGMENT OF 18 DECEMBER 1980 , THE PARTIES MUST BEAR THEIR OWN COSTS , PURSUANT TO THE AFORESAID PROVISIONS .

23 AS REGARDS CASE 156/79 , THE PARTIES HAVE AGREED THAT THE COMMISSION IS TO BEAR ALL THE COSTS . ACCORDINGLY THE COMMISSION MUST BE ORDERED TO PAY ALL THE COSTS , INCLUDING THOSE OF THE APPLICANT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION IN CASE 156/79 ;

2 . IN THAT CASE , ORDERS THE COMMISSION TO PAY ALL THE COSTS , INCLUDING THOSE OF THE APPLICANT ;

3 . IN CASE 51/80 , IN WHICH THE APPLICATION WAS DISMISSED AS INADMISSIBLE BY INTERIM JUDGMENT OF 18 DECEMBER 1980 , ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .