Judgment of the Court (First Chamber) of 12 October 1978. - Kuno Ditterich v Commission of the European Communities. - Case 86/77.



European Court reports 1978 Page 01855

Greek special edition Page 00585

Portuguese special edition Page 00639



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - INDIVIDUAL DECISIONS - NOTIFICATION - METHOD

( STAFF REGULATIONS OF OFFICIALS , SECOND PARAGRAPH OF ART . 25 )

2 . OFFICIALS - TRANSFER - DECISION ADVERSELY AFFECTING AN OFFICIAL - STATEMENTS OF GROUNDS

( STAFF REGULATIONS OF OFFICIALS , SECOND PARAGRAPH OF ART . 25 )

Summary

1 . THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS , BY PROVIDING THAT ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED , DOES NOT LAY DOWN THE METHOD BY WHICH THAT DECISION IS TO BE COMMUNICATED . SUCH COMMUNICATION IS DEEMED TO HAVE TAKEN PLACE WHEN THE DECISION IN FACT REACHES THE OFFICIAL CONCERNED , WHATEVER THE MEANS WHEREBY IT IS TRANSMITTED .

2 . A DECISION TO TRANSFER AN OFFICIAL IS TO BE DEEMED TO STATE THE GROUNDS ON WHICH IT IS BASED WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS IF THE STAFF MEMORANDA IN SUPPORT THEREOF HAVE BEEN BROUGHT TO THE NOTICE OF THE PERSON CONCERNED , CLEARLY INFORMED HIM OF THE REASONS BEHIND THE SAID DECISION AND INCLUDE ALL THE ESSENTIAL FACTORS WHICH ARE SUFFICIENT FOR THE PURPOSES OF A REVIEW BY THE COURT .

Parties

IN CASE 86/77 ,

KUNO DITTERICH , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES AT THE EURATOM JOINT RESEARCH CENTRE AT ISPRA , RESIDING AT CADREZZATE , VARESE ( ITALY ), REPRESENTED BY VICTOR BIEL , ADVOCATE OF LUXEMBOURG , 18 RUE DES GLACIS , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , THOMAS CUSAK , ACTING AS AGENT , ASSISTED BY ALEX BONN , ADVOCATE OF LUXEMBOURG , 22 COTE D ' EICH , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT :

- OF THE LIST OF PORPOSALS FOR PROMOTION FROM GRADE A 5 TO GRADE A 4 FOR 1976 ;

- OF THE COMMISSION DECISION OF 20 JANUARY 1977 TRANSFERRING THE APPLICANT ,

Grounds

1BY APPLICATION SUBMITTED ON 5 JULY 1977 THE APPLICANT , AN OFFICIAL OF GRADE A 5 AT THE JOINT RESEARCH CENTRE ( JRC ) AT ISPRA , CLAIMS THE ANNULMENT OF THE LIST OF PROPOSALS FOR PROMOTION TO GRADE A 4 TO WHICH REFERENCE IS MADE IN THE DECISION OF THE DIRECTOR GENERAL OF THE JRC OF 19 NOVEMBER 1976 , ON WHICH HIS NAME DID NOT APPEAR .

2IN THE SAME APPLICATION THE APPLICANT CLAIMS THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 20 JANUARY 1977 , RELATING TO HIS TRANSFER WITHIN THE JRC .

A - THE FIRST HEAD OF THE APPLICATION

3AS REGARDS THE FIRST HEAD OF THE APPLICATION THE APPLICANT MAINTAINS THAT THE LIST OF PROPOSALS IN QUESTION IS IRREGULAR BECAUSE IT WAS DRAWN UP IN THE CONTEXT OF A PROCEDURE WHICH LACKED ANY LEGAL FOUNDATION .

4IN FACT THE RULES CONCERNING THAT PROCEDURE WERE NOT DRAWN UP BY THE COMMISSION IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN ARTICLE 110 OF THE STAFF REGULATIONS OF OFFICIALS .

5THE LIST OF PROPOSALS IN QUESTION WAS DRAWN UP PURSUANT TO THE ' ' GENERAL PROVISIONS FOR IMPLEMENTING THE PROCEDURE FOR PROMOTING STAFF PAID FROM RESEARCH APPROPRIATIONS ' ' , ADOPTED BY THE COMMISSION ON 6 DECEMBER 1971 , AS AMENDED BY DECISION OF THAT INSTITUTION OF 9 OCTOBER 1973 .

6IT IS COMMON GROUND THAT THOSE GENERAL PROVISIONS WERE DRAWN UP BY THE COMMISSION FOLLOWING CONSULTATIONS WITH THE STAFF COMMITTEE AND AFTER IT HAD OBTAINED THE OPINION OF THE STAFF REGULATIONS COMMITTEE .

7THEY THUS SATISFY THE CONDITIONS REQUIRED BY ARTICLE 110 OF THE STAFF REGULATIONS AND HAVE THAT PROVISION AS THEIR LEGAL BASIS .

8THE AMENDMENTS MADE TO THOSE PROVISIONS BY THE DECISION OF THE COMMISSION OF 9 OCTOBER 1973 DO NOT IN ANY ESSENTIAL MANNER AFFECT THE RULES LAID DOWN THEREBY , SINCE THEY CONSIST MERELY IN CHANGES IN THE DESCRIPTIONS OF CERTAIN MEMBERS OF THE PROMOTION COMMITTEES OF FIRST AND SECOND INSTANCE DUE TO THE INTERNAL REORGANIZATION OF CERTAIN DEPARTMENTS OF THE COMMISSION .

9ACCORDINGLY , THE FACT THAT SUCH AMENDMENTS WERE MADE WITHOUT CONSULTING THE STAFF COMMITTEE AND OBTAINING THE OPINION OF THE STAFF REGULATIONS COMMITTEE DOES NOT CONSTITUTE A DEFAULT IN RELATION TO ARTICLE 110 OF THE STAFF REGULATIONS SUCH AS TO AFFECT THE VALIDITY OF THE PROMOTION PROCEDURE ESTABLISHED BY THE ABOVE-MENTIONED GENERAL PROVISIONS .

10THE APPLICANT FURTHER CLAIMS THAT THE LIST OF PROMOTION PROPOSALS IN QUESTION IS IRREGULAR IN RELATION TO ARTICLE 45 OF THE STAFF REGULATIONS BECAUSE IT WAS DRAWN UP IN THE CONTEXT OF A PROCEDURE WHICH DID NOT ALLOW THE APPOINTING AUTHORITY , IN ACCORDANCE WITH THAT PROVISION , TO UNDERTAKE A COMPARATIVE EXAMINATION OF THE MERITS OF ALL OFFICIALS ELIGIBLE FOR PROMOTION .

11FURTHERMORE , THE INFRINGEMENT OF ARTICLE 45 IN QUESTION IS SAID TO BE ALL THE MORE MARKED IN SO FAR AS THE APPLICANT IS CONCERNED IN THAT HIS PERSONAL FILE , WHICH SHOULD HAVE FORMED THE BASIS OF THE COMPARATIVE EXAMINATION OF THE MERITS , WAS INCOMPLETE .

12ACCORDING TO PARAGRAPH 1 OF THE ' ' GENERAL PROVISIONS FOR IMPLEMENTING THE PROCEDURE FOR PROMOTING STAFF PAID FROM RESEARCH APPROPRIATIONS ' ' , THE PURPOSE OF THOSE PROVISIONS IS TO ESTABLISH AN ' ' ADVISORY ' ' PROCEDURE TO BE FOLLOWED BEFORE PROMOTING SUCH STAFF .

13TO THAT END THE PROCEDURE THUS LAID DOWN PROVIDES FOR THE ESTABLISHMENT OF PROMOTION COMMITTEES OF FIRST AND SECOND INSTANCE , THE TASK OF EACH OF WHICH IT IS TO ' ' DRAW UP A PROVISIONAL LIST OF OFFICIALS . . . CONSIDERED TO BE MOST DESERVING OF PROMOTION AFTER COMPARING THE MERITS OF ALL OFFICIALS . . . ELIGIBLE FOR PROMOTION ON 31 DECEMBER OF THE CURRENT YEAR AND AFTER COMPARING THE STAFF REPORTS ON THOSE PERSONS ' ' .

14PARAGRAPH 8 OF THE PROVISIONS FURTHER LAYS DOWN THAT THE PROVISIONAL PROMOTION LISTS DRAWN UP BY EACH PROMOTION COMMITTEE IN EACH CASE SHALL BE TRANSMITTED TO THE APPOINTING AUTHORITY ' ' TOGETHER WITH THE REASONED REPORTS OF THE PROMOTION COMMITTEES AND THE PROMOTION PROPOSALS ' ' .

15IT IS CLEAR FROM THE STATEMENTS MADE BY THE COMMISSION THAT THE COMMITTEES OF FIRST AND SECOND INSTANCE , REQUIRED TO DRAW UP PROVISIONAL LISTS OF THOSE OFFICIALS JUDGED TO BE MOST DESERVING OF PROMOTION , HAD AT THEIR DISPOSAL , INTER ALIA , INDEXED FILES SETTING OUT THE COMPLETE CAREER OF EACH OFFICIAL ELIGIBLE FOR PROMOTION , TABLES SETTING OUT THE PRESENT STATE OF THE CAREER OF EACH OFFICIAL ELIGIBLE FOR PROMOTION IN RELATION TO HIS GRADE AND AGE , TOGETHER WITH THE DEFINITIVE PERIODIC REPORTS FOR 1971 TO 1973 AND 1973 TO 1975 .

16MOREOVER , THOSE COMMITTEES COULD HAVE HAD MADE AVAILABLE TO THEM , AT THE REQUEST OF ONE OF THEIR MEMBERS , THE PERSONAL FILE OF ANY OFFICIAL ELIGIBLE FOR PROMOTION WHENEVER IT APPEARED NECESSARY TO REFER THERETO .

17FURTHERMORE , IT APPEARS FROM THE RECITALS OF THE PREAMBLE TO THE DECISION OF THE DIRECTOR GENERAL OF THE JRC OF 19 NOVEMBER 1976 BY WHICH HE ADOPTED , IN HIS CAPACITY AS APPOINTING AUTHORITY , THE DEFINITIVE LIST OF JRC OFFICIALS OF GRADE A 5 JUDGED TO BE THE MOST DESERVING OF PROMOTION TO GRADE A 4 , THAT THAT AUTHORITY HAD HAD THE OPPORTUNITY OF CONSULTING THE PERSONAL FILES AND OF EXAMINING IN PARTICULAR THE PERIODIC REPORTS OF ALL THE OFFICIALS ELIGIBLE FOR PROMOTION , AND HAD UNDERTAKEN A COMPARATIVE EXAMINATION OF THE MERITS OF THOSE OFFICIALS .

18IN VIEW OF ALL THESE CIRCUMSTANCES THE FACT RELIED ON BY THE APPLICANT , NAMELY THAT HIS PERSONAL FILE WAS INCOMPLETE IN THAT IT DID NOT CONTAIN THE PERIODIC REPORTS RELATING TO THE PERIODS 1971 TO 1973 AND 1973 TO 1975 , CANNOT BE HELD TO SUPPORT A FINDING THAT THE PROMOTION LIST IN QUESTION WAS IRREGULAR IN RELATION TO ARTICLE 45 OF THE STAFF REGULATIONS .

19EVEN WITHOUT THOSE PERIODIC REPORTS THE MEMBERS OF THE VARIOUS COMMITTEES HAD IN FACT AT THEIR DISPOSAL THE VERY WIDEST POWERS TO OBTAIN ALL THE INFORMATION NECESSARY TO UNDERTAKE A COMPARATIVE EXAMINATION OF THE MERITS OF THOSE ELIGIBLE .

20THE APPLICANT ' S STATEMENTS DO NOT ALLOW IT TO BE SAID THAT THOSE COMMITTEES DID NOT SEEK SUCH INFORMATION IN HIS CASE .

21FINALLY , THE APPLICANT MAINTAINS THAT THE PROMOTION LIST IN QUESTION IS INVALIDATED BY A MISUSE OF POWERS WITH REGARD TO HIM IN THAT THE OMISSION OF HIS NAME FROM THE LIST WAS DICTATED BY REASONS ALIEN TO THE INTERESTS OF THE SERVICE .

22IN SUPPORT OF THAT COMPLAINT THE APPLICANT RELIES IN PARTICULAR ON A NOTE SENT TO THE COMMISSION BY MR BISHOP , OF WHICH HE OBTAINED KNOWLEDGE DURING A CONVERSATION WITH AN OFFICIAL IN THE PERSONNEL BRANCH AND WHICH HE ALLEGED HAD AN UNFAVOURABLE EFFECT UPON HIS CHANCES FOR PROMOTION .

23HE FURTHER CLAIMS THAT THE REASON FOR THE OMISSION OF HIS NAME FROM THE PROMOTION LIST IN QUESTION IS TO BE FOUND IN THE HOSTILITY SHOWN TOWARDS HIM BY CERTAIN OF HIS SUPERIORS OR COLLEAGUES .

24IT IS NOT DISPUTED THAT THE NOTE IN QUESTION WAS SENT BY MR BISHOP TO THE PERSONNEL AND ADMINISTRATION DIVISION AT ISPRA AFTER THE APPLICANT HAD , ON 8 DECEMBER 1976 , SUBMITTED A COMPLAINT THROUGH OFFICIAL CHANNELS CONCERNING THE OMISSION OF HIS NAME FROM THE PROMOTION LIST IN QUESTION , AND THAT IT WAS INTENDED TO REINFORCE THE REPLY BY THE COMMISSION TO THAT COMPLAINT .

25SINCE THAT NOTE COULD NOT ACCORDINGLY HAVE PROMPTED THAT OMISSION IT CANNOT SUPPORT THE COMPLAINT OF A MISUSE OF POWERS AS ALLEGED .

26NOR DO THE OTHER ARGUMENTS ADDUCED BY THE APPLICANT PROVIDE ADEQUATE EVIDENCE FOR LEGAL PURPOSES THAT HE WAS THE VICTIM OF A MISUSE OF POWERS .

27FOR ALL THESE REASONS THE FIRST HEAD OF THE APPLICATION APPEARS TO BE UNFOUNDED .

B - THE SECOND HEAD OF THE APPLICATION

ADMISSIBILITY

28THE DEFENDANT CONTENDS THAT THE SECOND HEAD OF THE APPLICATION IS INADMISSIBLE IN THAT IT WAS SUBMITTED BEFORE THE EXPIRY OF THE PERIOD OF FOUR MONTHS , FIXED BY THE FINAL SUBPARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , FROM THE DATE ON WHICH THE COMPLAINT WAS LODGED .

29IT DENIES THAT THERE IS ANY FOUNDATION TO THE APPLICANT ' S CLAIM THAT HIS COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE DECISION TO TRANSFER HIM MAY BE LINKED TO THE COMPLAINT THROUGH OFFICIAL CHANNELS PREVIOUSLY SUBMITTED IN RELATION TO THE PROMOTION LIST WITH WHICH THE FIRST HEAD OF THE APPLICATION IS CONCERNED .

30IT IS COMMON GROUND THAT BY NOTE OF 1 MARCH 1977 THE APPLICANT SUBMITTED TO THE AUTHORITY WHICH HAD ADOPTED THE SAID DECISION TO TRANSFER HIM A COMPLAINT RELATING TO THAT DECISION .

31IN VIEW OF ITS PURPORT , OF ITS EXPRESS REFERENCE TO ARTICLE 90 OF THE STAFF REGULATIONS AND OF THE AUTHORITY TO WHICH IT WAS ADDRESSED THAT NOTE MUST BE HELD TO HAVE BEEN A COMPLAINT THROUGH OFFICIAL CHANNELS WITHIN THE MEANING OF THE SAID ARTICLE 90 .

32THE AUTHORITY TO WHICH THAT COMPLAINT WAS SUBMITTED REPLIED BY A MEMORANDUM OF 27 JUNE 1977 STATING THE REASONS FOR THE TRANSFER DECISION IN QUESTION .

33IN VIEW OF THESE FACTS THE PRESENT APPLICATION , RECEIVED AT THE COURT REGISTRY ON 5 JULY 1977 , MUST BE HELD TO BE ADMISSIBLE AS TO ITS SECOND HEAD .

SUBSTANCE

34THE APPLICANT MAINTAINS THAT THE DECISION IN DISPUTE IS IRREGULAR WITH RESPECT TO ARTICLE 25 OF THE STAFF REGULATIONS BECAUSE IT WAS NOT NOTIFIED TO HIM THROUGH HIS IMMEDIATE SUPERIOR BUT WAS HANDED TO HIM BY A SECRETARY .

35FURTHER , HE ALLEGES THAT THE SAID DECISION WAS NOT IN CONFORMITY WITH THAT ARTICLE BECAUSE IT DID NOT CONTAIN A STATEMENT OF REASONS .

36FINALLY , IT IS SAID NOT TO HAVE BEEN JUSTIFIED BY REASONS RELATING TO THE INTERESTS OF THE SERVICE BUT TO HAVE INVOLVED A MISUSE OF POWERS WITH RESPECT TO HIM DUE TO THE ALLEGEDLY STRAINED PERSONAL RELATIONS BETWEEN HIMSELF AND MR BRESESTI .

37THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS , WHILE PROVIDING THAT ' ' ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL . . . SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED ' ' , DOES NOT LAY DOWN THE METHOD BY WHICH THAT DECISION IS TO BE COMMUNICATED .

38SUCH COMMUNICATION IS DEEMED TO HAVE TAKEN PLACE WHEN THE DECISION IN FACT REACHES THE OFFICIAL CONCERNED , WHATEVER THE MEANS WHEREBY IT IS TRANSMITTED .

39ARTICLE 25 OF THE STAFF REGULATIONS FURTHER PROVIDES , IN THE SECOND PARAGRAPH , THAT ' ' ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE GROUNDS ON WHICH IT IS BASED ' ' .

40IN ORDER TO DECIDE WHETHER THE REQUIREMENTS OF ARTICLE 25 RELATING TO A STATEMENT OF REASONS WERE FULFILLED CONSIDERATION SHOULD BE GIVEN NOT ONLY TO THE TRANSFER DECISION ITSELF BUT ALSO TO THE STAFF MEMORANDA IN SUPPORT THEREOF WHICH WERE BROUGHT TO THE NOTICE OF THE PERSON CONCERNED AND WHICH CLEARLY INFORMED HIM OF THE REASONS BEHIND THE SAID DECISION .

41IN THE PRESENT INSTANCE THE TRANSFER DECISION WAS PRECEDED BY A MEMORANDUM FROM MR BRESESTI OF 13 SEPTEMBER 1976 , TO WHICH REFERENCE IS MADE IN THE COMPLAINT OF 8 DECEMBER 1976 , AND WAS FOLLOWED BY THE ABOVE- MENTIONED MEMORANDUM OF 27 JUNE 1977 FROM THE RELEVANT DIRECTOR INFORMING THE APPLICANT OF THE REASONS FOR THE ADOPTION OF THE CONTESTED DECISION .

42REASONS WERE THEREFORE STATED FOR THE SAID DECISION OF WHICH THE APPLICANT COULD NOT HAVE BEEN IN IGNORANCE AND WHICH CONVEY ALL THE ESSENTIAL FACTORS WHICH GUIDED THE ADMINISTRATION IN ITS DECISION AND WHICH ARE THEREFORE SUFFICIENT FOR THE PURPOSES OF A REVIEW BY THE COURT .

43IN VIEW OF THAT STATEMENT OF REASONS THE ARGUMENTS ADDUCED BY THE APPLICANT IN SUPPORT OF HIS COMPLAINT OF A MISUSE OF POWERS CONTAIN NO FACTOR SUCH AS TO SUPPORT THE VIEW THAT THE TRANSFER IN QUESTION WAS EFFECTED FOR REASONS ALIEN TO THE INTERESTS OF THE SERVICE .

44FOR ALL THESE REASONS THE SECOND HEAD OF THE APPLICATION ALSO APPEARS TO BE UNFOUNDED .

Decision on costs

COSTS

45PURSUANT TO THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

46HOWEVER , PURSUANT TO ARTICLE 70 OF THE SAME RULES , IN PROCEEDINGS INSTITUTED BY OFFICIALS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .