2.

This leaves only the submissions relating to the defects inherent in the Decision on promotion, that is to say, the complaint that there was no statement of reasons and the evaluation of the facts was made in the wrong way. (a) Absence of a statement of reasons Article 25 of the Staff Regulations provides that any decision taken under the Regulations is to be communicated in writing to the official concerned and that any decision adversely affecting an official is to state the reasons on which it is based. The applicant deduces from this provision, taken in conjunction with the view — rightly held — that decisions on promotion are to be regarded as adversely affecting, within the meaning of Article 91 of the Staff Regulations (right of appeal), the candidates not selected, that the appointing authorities have a duty also to state the reasons on which decisions on promotion are based. No-one can deny that this line of reasoning appears at first sight to be attractive. But at the same time one is struck by the doubt whether it is possible that years of administrative practice by Community institutions, corresponding largely to the practice of national administrative authorities, can have been wrong owing to a failure to observe the obligation to state reasons. Before we give a definitive reply, the problem requires closer consideration. First, it can justly be doubted that the concept of ‘act adversely affecting’ has the same meaning in Article 25 as in Article 91 of the Staff Regulations. in the one case it is used to help to define the right of appeal, and thus to introduce judicial control over administrative practice, the right of appeal being — as in French practice — extremely wide, since all that is required is that some interest be adversely affected. In the other case (Article 25) it creates an obligation for the administrative authorities to act positively, to give reasons for the act adopted, with the consequence that failure to observe the obligation brings about the annulment of the act without any need to examine its content. It is therefore quite reasonable to maintain that because of the different ways in which the administration's actions are affected by them, there is justification for defining the phrase ‘an act adversely affecting’ an official differently in the two instances. On this view, the obligation to state reasons which is not indeed general in the law relating to public servants, but exists in a restricted form, would also have to be limited to acts which prejudice the rights of officials, which cannot include decisions on promotion since no right to promotion is recognized. On the other hand, the following line of thought occurs: whatever else it may entail, the obligation to state reasons must include a duty to inform the. persons affected by a decision of the legal and factual basis of that decision. Where a decision on promotion is concerned, if one concedes that there is a duty to state the reasons for it for the benefit of unsuccessful applicants, one must at the same time acknowledge that they must be notified of the decision on promotion, since otherwise there would be no certainty that it would come to their knowledge, assuming that one leaves aside the — unthinkable — possibility of publishing the decision in full with all its negative aspects. But this would add an unreasonable burden to the obligations of the appointing authority. It may therefore be assumed that the obligation to notify under Article 25 (1) of the Staff Regulations only applies to persons whose rights are affected and not to all those who in some way have an interest in the decision within the context of an application for annulment, that is to say, a relationship must be established between the obligation to notify and the obligation to state reasons, in the sense that the latter appears to be necessary solely for the benefit of the person to whom the decision is addressed. Since in the present case one cannot speak of a measure adversely affecting the person who is necessarily the ad dressee of the decision, but only of a measure in his favour, the reasons could be omitted without infringing Article 25 of the Staff Regulations. (b) As regards the consideration of the comparative merits of the various candidates required by Article 45 of the Staff Regulations, the applicant's last complaint is that the Commission based its Decision on promotion on irrelevancies and was not in possession of all the necessary facts to assess when it took its Decision. This argument, which in its original form was completely unsubstantiated, gained considerable support from a reply given by the Commission on 14 June 1963 to the applicant's questions concerning the comparative criteria which were decisive for the purposes of the Decision, and from the documents produced which the Commission used in drawing up the contested decision. These provide grounds for looking more closely at the promotion procedure. In the first place, it is clear from the said documents that at the time the Commission took its Decision, written reports of the work of candidates for promotion in the service of the European Economic Community were not at its disposal. Must one deduce from this, as does the applicant, that the promotion decision is necessarily illegal because according to the Staff Regulations, promotion may only be granted after the procedure for providing reports under Article 43 has been set in motion? Or is the Commission correct in its view that by virtue of Article 108 of the Staff Regulations it was entitled to dispense with reports at the time of the promotion? As far as the applicant's interpretation of the law is concerned, I feel unable to follow it in view of the opinion I have expressed on Article 5 of the Staff Regulations. The practice applied under the Staff Regulations for ECSC officials makes it possible to state from experience that the establishment of a proper procedure for assessment would be a lengthy process. Merely to exclude promotion during that time would not be in accordance with the requirements of good administration. Nor, on the other hand, does the Commission's interpretation of the law appear any more correct, since, as is rightly stressed by the applicant, Article 108 merely permits, for a transitional period of precisely defined duration, the prerequisite for promotion under Article 45 (minimum length of service completed by the candidates for promotion) to be waived, but it does not permit a proper examination procedure to be dispensed with altogether. Whatever the circum stances, this must include an assessment of the candidates service records. If it cannot be made on the basis of the reports provided for by Article 43, the Commission has a duty to find some serviceable alternative, and, for example to have ad hoc reports on the candidates made which, in view of their objectivity and the care with which they are prepared, can be regarded as acceptable substitutes for the reports provided for in Article 43. In the present case, since no such reports were made despite the fact that the Commission, as it has admitted, regarded a consideration of the comparative merits of the candidates necessary, I can only conclude that there is a serious defect in the promotion procedure which justifies the annulment of the Decision on promotion. There is this, too, to be borne in mind: while it may be true that in taking the Decision on promotion, the Administration has discretionary powers which are to a great extent the deciding factors, and in the exercise of which it is not subject to judicial review in all its details, it must be ensured that the appointing authority is in possession of all the essential facts which might enter into account when making a promotion. No decision on promotion can be taken when only some of the documents relevant to the candidatures have been considered. In this respect the procedure which was followed is open to criticism. Examination of the file reveals that prior to the decisive sitting on 13 February 1963 the members of the Commission received a communication from the President which was intended to familiarize them with the applications received. Admittedly this communication merely lists the names of the candidates together with a resume of the curriculum vitae of each candidate. As regards the applicant, he claimed during the oral procedure, and was not challenged, that the summary of his career did not correspond to the one submitted by him on entering the service and on making his application for the post. He maintains that not only did it contain inaccuracies but that there were serious omissions from it. For instance, the date of the commencement of his career as a national public servant was incorrectly stated (1947 instead of 1935), there was no mention in the curriculum vitae of the distinctions and prizes awarded to him, nor of his publications, whilst it was otherwise in the case of the successful candidate; and the fact that the applicant had assumed the duties of the advertised post for several months by way of temporary replacement was omitted. It is quite obvious that these facts are such as must have influenced the assessment of his suitability for promotion. It has not been established that the members of the Commission were nevertheless aware of these facts when they took the Decision on promotion, because neither can we assume that they have always in their possession precise details concerning their officials, even in the highest grades, nor is it established that they obtained for themselves full details of the information required from the personal files of individual candidates before they took the contested Decision. Consequently the Court has no alternative but to find that the members of the Commission were not sufficiently well-informed before they took the Decision on promotion. This defect is all the more serious since the curriculum vitae of the candidate promoted included far more details, a fact which, bearing in mind the age gap, must necessarily have weighed against the applicant. Lastly, the applicant is also right as regards the fact that a reading of the documents produced by the Commission does not reveal whether any examination was made of the linguistic requirements stipulated for the advertised posts in the vacancy notice. Naturally, these facts taken together are not sufficient to support a complaint of misuse of powers in the sense that the contested Decision was knowingly ill-founded; however, they do reveal defects in the assessment procedure so grave that the Decision on promotion itself must appear defective, because one cannot exclude the possibility that the end result might have been different had the assessment been carried out correctly. The Court will therefore have to annul the Decision on promotion; and it is not necessary to go into the applicant's conclusions seeking the production of the minutes in full and of the personal file of the successful candidate.