(b)

The applicant's periodic report for 1973 to 1975 was only sent to him on 24 May 1977. In the analytical assessment it showed “average” for ability and efficiency and “above average” for conduct in the service. Mr Gratreau returned the report to the reporting officer on 6 June with his comments and asked to be heard by him in the event of disagreement. In the comments he stated that he was regretfully unable to accept the assessment relating to his ability. Despite two letters of reminder on Mr Gratreau's part, the interview requested, which is mandatory under Article 6 of the General Provisions for Implementing Article 43 of the Staff Regulations (to which reference is made in paragraph B 7.3.1. of the Guide to Staff Reports), did not take place until 16 November 1977. Following that discussion the reporting officer ought, pursuant to paragraph B 7.3.2. of the Guide to Staff Reports, either to have simply confirmed the original report or to have amended all or part of it. But in either event, he ought to have informed the applicant officially by means of a confidential and urgent note drawn up in conformity with the specimen provided. That procedure was not followed and the report in question was simply filed in Mr Gratreau's personal file. In view of this further failure to reply, Mr Gratreau turned to , the Commission's mediator who got in touch with the reporting officer by two notes of June and September 1978. In answer, the reporting officer indicated to the mediator that he had taken account of the applicant's observations “disputing the analytical assessment relating to ability” in his periodic report for 1975 to 1977 which “was drafted shortly afterwards but has only just been sent”. He had awarded “S” (above average) for efficiency but not for ability since he considered that the applicant's main argument for an improvement in the assessment (the number of his publications and internal reports) fell more under the head of efficiency than ability. A copy of that note was sent by the mediator to the applicant who thus had knowledge of it. From that, the Commission reasons that, as from his receipt of that copy, the applicant knew that the reporting officer was not minded to alter the report and that, if he insisted on challenging the report, it was for him to appeal to the appeal assessor. That, moreover, is what he did. By telex message of 6 March 1979 Mr Gratreau asked the appeal assessor to regard the request for a revised report, which he had meantime presented in regard to the 1975 to 1977 report, as referring also to the preceding report. However, on 21 June 1979 the appeal assessor intimated to the applicant his refusal to examine that report on the ground that the applicant had not expressly asked him to do so in his comments. That refusal appears to be based on the applicant's failure to observe paragraph B 7.4 of the Guide to Staff Reports which provides in the first place that “after his dialogue with the assessor, and regardless of its outcome, the official has 15 days in which to sign his report and to make comments thereon”. That reasoning appears to me to be mistaken. This last error merely comes on top of the infringements of the Guide to Staff Reports which I have already mentioned and it appears to me that it ill becomes the defendant to accuse the applicant of not having observed a text which is binding as much on it as on its officials. In my view, there is no doubt but that Mr Gratreau's 1973 to 1975 report was wrongly put in his file. I consider on the other hand that that irregularity was disadvantageous to the applicant when the appropriate promotion bodies considered his merits and compared them with those of other officials eligible for promotion. It is quite possible that his prospects would have been better if the reporting officer had given him an “S” for efficiency in the report in question and not, as he in fact did, in the subsequent report or if the appeal assessor had been able to effect that alteration. But the “Instance Zero” constituted at the level of the fusion programme and entrusted with carrying out a preliminary examination of the merits of all officials eligible for promotion met on 19 June 1978, that is to say, at a time when the mediator was endeavouring to make the reporting officer break his silence. Likewise, when the Promotion Committee of First Instance — which has power to deal with staff paid from research appropriations and assigned to duties not coming under the Joint Research Centre — and the Promotion Committee of Second Instance — which has power in relation to the entire staff remunerated out of research appropriations — met on 28 September and 10 October 1978 respectively, it is clear that, as subsequent events demonstrated, the applicant did not consider that his report was duly compiled, final and beyond challenge.