1.

A first and indeed the main complaint in the proceedings is to the effect that the contested decision was adopted although at the time the applicant, one of the two candidates for the vacant post, had not yet returned the only existing periodic report concerning him or the comments which he intended to make on it and that the appointing authority thus did not have these factors at its disposal in its consideration of the comparative merits of the officials. He alleges that this is to be considered as an infringement of Article 45 of the Staff Regulations in conjunction with Article 43 thereof. In this connexion it is important to bear in mind the following: as became clear in the proceedings, during the period from 16 June to 30 July 1971 the applicant was either taking his annual holiday or on leave for further training and instruction. It appears that he made a brief return to Luxembourg on 19 July 1971 solely to submit his written application from which it follows that despite his absence he had become aware of the vacancy notice. On 15 July 1971, that is, during his absence, the report for the years 1969 and 1970 was transmitted to him with the request to return it before 20 July 1971 after appending any observations he might have. The applicant is clearly not satisfied with this report; in particular he considers that he has discovered contradictions in its appraisal of him. He consequently wished to clarify it and to provide a detailed vindication. He maintains that, with this end in view, even before the start of his leave and immediately after his return from it, he requested his superior officer to transmit to him certain documents (translations made by the applicant) but that he did not obtain them immediately. In any event it is clear from the file that on 29 September 1971 the applicant addressed a letter to his superior in which as an incidental matter (since the main purpose of the letter related to another matter) he requested the transmission of his translations with any corrections which might have been made. Then on 26 October 1971 the applicant drew up the comments provided for on the periodic report but, instead of transmitting them together with the report directly to the appointing authority he brought it before the Court of Justice, together with his application, on 8 November 1971 only. During this period the decision as to promotion had long since been adopted and it is therefore certain that this was done without taking into account the comments appended by the applicant to this report. It is not quite clear whether the decision was adopted without taking into account the report either. I shall shortly return to this point. Various inquiries and considerations seem called for. It cannot be doubted mat promotions can only take place after consideration of the comparative merits of the candidates concerned and on the basis of the periodic reports relating to them. This is already clear from the wording of Article 45 of the Staff Regulations of Officials. The Court has already delivered numerous judgments to this effect (Cases 94 and 96/63 [1964] ECR 297 and 97/63 [1964] ECR 515). In addition it may be thought right that the comments submitted by the persons concerned on their reports are relevant to the adoption of decisions on promotion. They frequently contain justifications and clarifications on matters of fact as against the necessarily subjective appraisals of superiors and can thus have an effect on the emphasis to be attached to the latter. At least they form part of the personal file which must be taken into consideration in promotions. With regard to the periodic report on the applicant it is not, as I have already said, quite clear whether proper account was taken of it by the appointing authority in adopting the decision of promotion. The defendant, the Parliament, indeed gave an assurance in the proceedings that it was taken into consideration. Nevertheless it is not quite clear whether, for example, a copy of the report retained by the ap plicant was to hand and could be referred to or whether the appointing authority merely obtained its knowledge of the contents of the report by asking the Secretary-General who had signed it on 13 July 1971. If only the latter, then a large measure of doubt must in fact exist as to whether this is sufficient; it can scarcely be credited that the Secretary-General, without written records, could have precise knowledge of the contents of the report such a considerable time after signing it and that he was able to impart this to the appointing authority for the adoption of its decision. Ultimately, this question can indeed remain open since in my opinion other considerations permit a reliable appraisal of the first complaint, and furthermore not merely with regard to taking account of the periodic report but also with regard to the comments formulated by the applicant with regard to his report which were incontestably left out of account. Even if the appointing authority was indeed entirely ignorant of the contents of the report as well as of the comments drawn up with regard thereto by the applicant, this stems unequivocally from the wholly unjustified conduct of the applicant himself. It is indeed difficult to reproach the applicant for having failed to return the periodic report together with his comments, as was requested in the letter of the Director General of Administration of 15 July 1971, within a period of five days since for the period in question he was on leave and it is clear that on 19 July 1971 he was only very briefly in Luxembourg. Nevertheless after his return from leave, that is to say immediately after 2 August 1971, he should have taken pains to exercise all the necessary despatch in preparing his comments and in thereupon delivering them immediately to the Administration together with the report. There was a good reason for doing so because the applicant was a candidate for promotion and had therefore cause to obtain for the appointing authority all the necessary information for this purpose, that is, including the periodic report together with any comments, that is to say, information which he knew was of decisive importance in the consideration of the comparative merits of the candidates. When one considers the content of the comments which were subsequently submitted, in my opinion it is scarcely credible that it was impossible for him to do this within the time remaining prior to the adoption of the decision of promotion. If serious reasons for the delay really existed however, the applicant should at least have informed the appointing authority of them so as to obtain an extension of the time-limit and to stop the appointment procedure. In fact nothing of the sort was done. Thus, whilst the Staff Regulations themselves do not prescribe a time-limit for the return of the periodic report, the applicant lays himself open to the reproach that even if he had not failed to comply with an instruction from his superior to return the report he had at any rate failed to observe the fundamental duty of loyalty and cooperation owed by all officials as it is defined in the case-law of the Court (cf. for example Case 3/66). In any case it must be presumed that in the special procedure to decide upon a promotion in which the applicant was an interested party, it was incumbent upon him to do everything to ensure that the necessary decisions were taken in a regular fashion. Since the applicant did not act accordingly it was in fact possible for the appointing authority to adopt the view that he had no objections to submit in connexion with his periodic report and perhaps even that he was not interested in maintaining his candidature. Whoever neglects the defence of his own interests and without an acceptable justification remains inert in proceedings which are essentially dependent on his own initiative cannot be heard to complain that the Administration has failed to conduct the proceedings properly on the ground that it did not do everything to take due account of the applications submitted. In this connexion particular reference must be made to the decisions of the Court in comparable cases in which it was likewise emphasized that failure to have regard to documents does not constitute a procedural defect when it may be ascribed to the applicant. In this respect I refer for example to the judgments in Case 3/66 ([1966] ECR 437), Case 3/67 ([1968] ECR 25) and Case 76/69 ([1971] ECR 298). The only conclusion thus remaining is that, in view of the behaviour of the applicant himself, or, if I may express it thus, because he has forfeited his rights in the matter, no ground for the annulment of the contested decision can be based on any possible failure to consider the periodic report on the applicant and the actual failure to consider the comments submitted by the applicant in response thereto.