Opinion of Mr Advocate General Vilaça delivered on 21 January 1988. - Santo Picciolo v Commission of the European Communities. - Official - Periodic report. - Case 1/87.



European Court reports 1988 Page 00711



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The facts and the background to the case

1 . This case arises from the periodic report of the applicant, an official of the Commission of the European Communities, for the period from 1 July 1981 to 3 June 1983 .

2 . Claiming that there were several irregularities in the preparation of that report, the applicant seeks the annulment of the decision of 5 March 1986 of the Member of the Commission approving his final periodic report, together with compensation of one franc in respect of non-material damage .

3 . During the period to which the report relates, the applicant was employed in the Office for Official Publications of the European Communities, until 1 January 1983, and thereafter in Directorate-General XVIII . On 24 June 1982 he was elected a member of the Staff Committee in Luxembourg, subsequently becoming its vice-president .

4 . The first version of the periodic report, drawn up in November 1983 by the Director of the Publications Office and also signed by a director in DG XVIII, was challenged by the applicant, who made a number of objections to it .

5 . The first assessor, after trying to undertake - unsuccessfully, in view of the applicant' s refusal to participate - the discussions provided for in Article 6 of the General Provisions for implementing Article 43 of the Staff Regulations ( hereinafter referred to as "the General Provisions "), then

referred the matter in April 1984 to the ad hoc group of assessors set up to participate in reporting on officials who hold office as staff representatives . The views of that group were sent to the applicant in December 1984, together with a new periodic report .

6 . Besides giving a more detailed description of the applicant' s duties, that periodic report included a comment specifically designed to explain the downgrading of the analytical assessment made concerning the applicant' s sense of responsibility ( from "excellent" to "very good ").

7 . Not satisfied, the applicant asked for the matter to be referred to the appeal assessor, Mr Nic Mosar, a Member of the Commission . Initially, after hearing the views of the official, Mr Mosar adhered entirely to the terms of the first report . Having subsequently consulted the Joint Committee on Staff Reports, at the request of the applicant, the appeal assessor adopted the final periodic report on 5 March 1986, which was identical to the one prepared by the first assessor, except for a different comment regarding the sense of responsibility of the official . There was no response to the complaint subsequently submitted by the official, and it was therefore deemed to have been rejected .

8 . For more details concerning the facts of the case, the Report for the Hearing may be consulted .

2 . The application for annulment : analysis of the grounds of the application

9 . The applicant has put forward no more and no fewer than nine submissions in support of his claim for annulment .

10 . I shall analyse them one by one, in the same order as that adopted by the applicant and followed in the Report for the Hearing .

( a ) The first submission

11 . The applicant maintains that an appeal assessor cannot amend the periodic report unfavourably after receiving the opinion of the Joint Committee, and a fortiori not without due justification .

12 . However, he claims that that was done in the present case, in breach of the third and fourth paragraphs of Article 7 of the General Provisions and point C.2 of the guide to staff reports .

13 . This submission appears unfounded .

14 . In the first place, the appeal assessor did not change the analytical assessment made of the applicant, which was maintained at the same level as in the preceding report - he merely changed the content of the optional comment intended to explain that assessment .

15 . Moreover, the latter change was made "having regard to the opinion of the Joint Committee", which had considered the comment by the first assessor to be "ambiguous" and the "assessment of a general nature" in the first report to be lacking in detail .

( b ) The second submission

16 . The applicant alleges a breach of the second paragraph of Article 7 of the General Provisions and of point B.9.3 . of the guide to staff reports because the appeal assessor did not hear the views of the first assessor and adopted his decision on the basis of a file which did not contain the initial periodic report .

17 . This submission must be regarded as unfounded .

18 . The Commission explained in its defence and in its answers to the questions put to it by the Court that the report of 28 November 1983 was already in the applicant' s personal file when it was signed by Mr Mosar, the Member of the Commission, and that the original assessor' s views were heard by Mr Mosar in a telephone conversation of 19 February 1985 which constituted a detailed exchange of views on the reporting procedure in respect of the applicant .

19 . Those statements by the Commission have not been challenged by the applicant and moreover the latter has not given any evidence or further information in support of his allegations of irregularities .

20 . It should also be made clear that the guide to staff reports, whose purpose - as the Court stated in its judgment in Blasig ( 1 ) - is to "provide guidelines for senior officials responsible for preparing periodic reports pursuant to Article 43 of the Staff Regulations", does not lay down any mandatory procedure for consultation of the first assessor .

( c ) The third submission

21 . The applicant alleges infringement of Article 6 of the General Provisions and point B.8.1 . of the guide to staff reports, and breach of the general principles guaranteeing the right to a fair hearing : the lack of discussions with the first assessor, following the applicant' s refusal to take part in them under conditions which, in his view, were irregular, deprived him of a "right of recourse ". According to the applicant, the irregularity which prompted him to decline to take part in any discussions lay in the fact that the initial report did not contain the views of the ad hoc assessors and was thus incomplete .

22 . What is to be made of these allegations?

23 . The purpose of the discussion referred to in Article 6 of the General Provisions and point B.8.1 . of the guide to staff reports is, as is apparent from the wording used, to facilitate direct contact to enable the matter to be discussed "freely and thoroughly" so that the two parties "can clearly see the nature and implications of any differences of opinion" and "come to a better mutual understanding and a more correct appreciation of the report" which will, where necessary, be changed .

24 . It was to discussions of that kind that the first assessor repeatedly invited the applicant, by memoranda of 13 February 1984, 5 March 1984 and 9 March 1984; the applicant expressly refused, and countered by requesting, first in the observations which he appended to the report and then in a memorandum dated 1 March 1984, that the matter should be referred to the appeal assessor .

25 . Apparently, therefore, it was the applicant himself who indicated that the discussions should be dispensed with .

26 . Nor is there any clear reason for considering that consultation of the ad hoc group of assessors - which the assessor must undertake in accordance with point B.1.2.2.2.I of the guide to staff reports - is a precondition for entering into such discussions .

27 . It must be emphasized that Article 6 of the General Provisions clearly provides that the discussion between the assessor and the official is to begin within 15 days after the periodic report is referred to the official, and no precondition is laid down in that regard .

28 . It may even be considered that, in this case, such discussions would enable the applicant to put forward stronger arguments and at the same time might provide information or views which would enhance the procedure of consultation of the ad hoc assessors . In those circumstances, the dialogue would not only not be prejudicial to the applicant, it might even be helpful to the proper conduct of the reporting procedure .

29 . Be that as it may, the first assessor in the meantime arranged for the ad hoc assessors to be consulted and sent their observations to the applicant, as an annex to the new periodic report . The applicant received the report on 10 January 1985 and on the 17th of the same month again asked for it to be referred to the appeal assessor .

30 . In those circumstances, it does not seem legitimate for him to claim now that he was denied the right to a fair hearing .

31 . Moreover, it appears that the applicant had a meeting with the appeal assessor, and there is no evidencec to indicate - inter alia in view of the conclusions reached regarding the previous submission - that the meeting was "purely formal ".

32 . Accordingly - and even if it were assumed that the applicant was right to decline discussions - any omission was remedied by the subsequent discussion with the appeal assessor, as is clear from the judgment of the Court in Turner ( 2 ) in 1985 . As in that case, the present application relates to the final periodic report, which is the responsibility of the appeal assessor, and its validity is not affected by any absence of discussions at an earlier stage in the procedure .

( d ) The fourth submission

33 . The applicant alleges infringement of the second paragraph of Article 3 of the General Provisions and of point B.5.2.2 . of the guide to staff reports through lack of consultation of his immediate superior in DG XVIII, the head of the specialized department "Receipts and Payments", in so far as approval was obtained only from a director in DG XVIII ( but there was no prior consultation ).

34 . In my view, the alleged omissions are not such as to bring about the nullity of the periodic report .

35 . In the first place, as far as the claimed lack of consultation of the applicant' s immediate superior in his new department is concerned, it must be recognized that, in the first version of the periodic report, the latter merely gave his approval on 5 December 1983, after the report had been signed by the first assessor ( apparently on 28 November 1983 ).

36 . As regards the new periodic report drawn up by the first assessor, that also bears the signature of the Director of DG XVIII, which was appended on 12 December 1984, one day before it was signed by the assessor .

37 . Article 3 of the General Provisions, after referring to prior consultation of the other superiors, makes it clear that they are to sign the report and may append their comments if they disagree with the assessor .

38 . In addition, point B.5.2 . of the guide to staff reports provides that "consultation should take place before the assessor prepares his analytical and general assessments" and that, in practice, the consultation will take the form of completing parts 10 and 11 of a specimen staff report .

39 . However, the latter statement does not constitute a mandatory requirement but is rather, as is apparent from its wording, a practical recommendation .

40 . Moreover, I consider that, in the present case, it would be excessive to require a fresh consultation of the superior since, when the second report was drawn up by the first assessor, that superior had already been heard and had an opportunity to make his views known, at least when he was called upon to give his judgment on the first report .

41 . With respect to both the first and the second reports, the Director of Directorate-General XVIII, having received the draft thereof, signed it without making any objections, and that would certainly not have happened if he had not been in agreement with the assessments contained in it .

42 . In any event, it must be borne in mind that, as is made clear in point B.5.2 . of the guide to staff reports, such consultations are intended to provide guidance for the assessor and in no way reduce his own responsibility . It is thus incumbent upon him, after the consultation, to decide, in principle and subject to the correction of any error or omission, whether the details he has obtained enable him to consider himself duly informed .

43 . As regards the alleged failure to consult the applicant' s immediate superior in DG XVIII, it must be emphasized that point B.5.2.2(a ) of the Guide merely provides that, in the event of the official' s having changed department during the reference period, the assessor must consult the official who would have prepared the report in the other department ( which, for Category A officials, is the director ), and that the superiors of the person assessed in that department should only be consulted if it is appropriate to do so ( last subparagraph of point B.5.2.2 .).

44 . It should also be noted that the applicant does not allege or show that any of those omissions prejudiced his position in the context of the reporting procedure or that, if the consultations had taken place as he claims they ought to have, he would be or might have been in a more favourable position .

45 . Furthermore, the unfavourable assessment of which the applicant complains relates to the period when he was employed in the Publications Office ( as appears from the comment accompanying it ) whereas the failure to consult at issue here concerns his new superiors in the department to which he was transferred, in DG XVIII . But no unfavourable assessment was made about him regarding his period of employment in the latter department, which coincides with the last six months of the period covered by the contested report .

46 . The situation is thus completely different from that with which the Turner judgment was concerned, because in that case no account had been taken of the opinion of the previous superior of the applicant, which the latter knew to be more favourable than the one contained in her report, for which reason it was possible to conclude that she actually suffered damage . ( 3 )

( e ) The fifth submission

47 . The applicant complains of infringement of the third paragraph of Article 2 of the General Provisions and of point B.5.2.1 . of the guide to staff reports since, on the one hand, the head of specialized department OP 4 in the Publications Office, who was consulted during the reporting procedure, was not, in his view, entitled to be regarded as his superior because he was a member of the auxiliary staff and, on the other, the consultation was improper in any case because it did not take place in advance but merely took the form of a signature .

48 . I would refer, as regards the latter allegation, to the considerations which I put forward and the conclusion which I reached regarding the previous submission; mutatis mutandis, they apply here with equal force, in so far as the signature of that head of department on the "revised" report antedated that of the first assessor by two days .

49 . As regards the first allegation, I also consider it to be unfounded : the issue here concerns the duties entrusted to an employee which enable him to be regarded as the superior of another person and not the nature of the relationship between that employee and the institution .

50 . It is interesting to note in that connection that point B.1.2.1 . of the guide to staff reports, in clarifying who is to be the assessor, is very explicit in stating that "once an official or other member of staff is appointed to a post he is fully authorized to exercise all the responsibilities attaching to it, including assessment of the officials in the administrative unit of which he is the head ."

51 . Moreover, members of the auxiliary staff are, by virtue of Article 54 of the conditions of employment of other servants, covered by the provisions of Articles 11 to 25 of the Staff Regulations, including Article 21, which provides that "an official ... shall be responsible for the performance of the duties assigned to him" and that "an official in charge of any branch of the service shall be responsible to his superiors in respect of the authority conferred on him and for the carrying out of the instructions given by him ". In the present case it should also be noted that the official of whom the consultation is criticized by the applicant had already participated in exactly the same capacity in the two previous periodic reports without any complaint having been made by the applicant .

( f ) The sixth submission

52 . The applicant alleges infringement of the second paragraph of Article 5 of the General Provisions, which requires explanations to be provided "for any change in the analytical assessment since the previous report ".

53 . There is no apparent basis for this allegation . The version of the periodic report dated 13 December 1984 included an explanation for the new assessment of the applicant' s sense of responsibility, which the final report by the appeal assessor modified, taking account of the opinion of the Joint Committee on Staff Reports . There is no reason to consider the explanation inadequate, particularly since the change in the analytical assessment was merely from "excellent" to "very good ".

54 . Moreover, the assessment made by the assessors as to the qualities of the official is a matter for their discretion which cannot, as the Court has consistently held, ( 4 ) "be reviewed by the Court save in order to identify irregularities of form, manifest factual error or misuse ... of power ". To take review by the Court any further in this case would be tantamount to its improperly substituting itself for the assessors themselves . ( 5 )

( g ) The seventh submission

55 . This submission relates to the delay in preparing the final periodic report until 5 March 1986, that is to say more than 14 months after the date ( 31 December 1984 ) by which it should have been ready, pursuant to Article 7 of the General Provisions .

56 . Quite apart from the delays attributable to the applicant himself, in particular owing to his refusal to enter into discussions with the first assessor, and those occurring in consulting the various committees ( in particular the group of ad hoc assessors ), it must be conceded that the preparation of the final report took more than seven months after the issue of the opinion of 29 July 1985 by the Joint Committee on Staff Reports .

57 . However, previous decisions of the Court have already made it abundantly clear that delay in preparing a periodic report does not of itself give grounds for its annulment; this only occurs where it is shown that the official suffered loss as a result . ( 6 )

58 . That would be the case in particular, as is apparent from Castille, ( 7 ), where a decision favourable to an official, such as a promotion, ought to have been taken during the period when the periodic report was left unprepared, and the official in question does not have to prove a connection between the non-adoption of such a decision and the non-existence of the report ( see Turner, supra, paragraph 16 ).

59 . In this case, the applicant does not even claim that, during that period, there was any failure to adopt a favourable decision which might otherwise have been adopted ( see Turner, supra, paragraph 10 ).

( h ) The eighth submission

60 . In support of this submission, the applicant alleges contravention of the general principles of the protection of legitimate expectations and of equality of treatment .

61 . It is true that, in analysing the nature of an ordinary internal directive of the Commission, the Court held in its judgment in Louwage v Commission, ( 8 ) that even though it could not describe it as "a rule of law which the administration is always bound to observe, it nevertheless sets forth a rule of conduct indicating the practice to be followed, from which the administration may not depart without giving the reasons which have led it to do so, since otherwise the principles of equality of treatment would be infringed ".

62 . Nevertheless, the considerations which led me to conclude that the previous submissions should be rejected justify my proposing that the Court should also reject this eighth submission, in view of the absence of any irregularity affecting the reporting procedure .

63 . Moreover, the applicant does not adduce any further evidence in support of this submission . In particular, there is nothing to show that, as the applicant claims, the administration deliberately infringed the General Provisions for implementing Article 43 of the Staff Regulations or the instructions contained in the guide to staff reports; and as far as the principles of equality are concerned, no information is given which might indicate what form the alleged infringement took .

( i ) The ninth submission

64 . The applicant claims that the internal rules of the Publications Office were infringed because the first assessor failed in his obligation to consult the Management Committee of the Office in advance .

65 . The applicant does not indicate the precise provisions which he considers infringed but it appears that he is referring in particular to Article 5 ( 1 ) of the Decision of 16 January 1969 establishing the Office for Official Publications of the European Communities ( 69/13/Euratom/ECSC/EEC ), ( 9 ) amended by the Decision of 7 February 1980 ( 80/443/EEC/Euratom/ECSC ). ( 10 )

66 . That provision refers expressly to the exercise by the Commission of the powers of the appointing authority as regards the Director of the Office and other officials and servants in category A and, if necessary, LA .

67 . The relationship between the two parts of the first subparagraph of Article 5 ( 1 ) ( the first refers to the favourable opinion of the Management Committee for appointments and promotions of certain officials and servants and the second provides that the Committee is to be closely involved in any procedures to be followed before appointments ) and also the relationship between that subparagraph and the second subparagraph of Article 5 ( 1 ), which provides that "the same shall apply" as regards "official acts, such as staff reports" are such that doubts remain as to the inferences which should be drawn from those provisions regarding the definition, in this case, of the obligations of the Director of the Office, as the person with authority over the staff of the Office ( Article 8 of the decision ).

68 . Pursuant to Article 4 ( 1 ) of the decision, the Management Committee approved the Internal Rules of the Publications Office ( with effect from 5 May 1980 ), which are concerned in particular with personnel management ( Title IV ).

69 . They provide that ( Chapter I - Article 45 ) "the Management Committee shall, by agreement with the appointing authority, determine the procedures by means of which it will be closely involved" in ( a ) procedures to be followed before appointments are made, and ( b ) other official measures relating thereto .

70 . And with respect to "officials in category A and officials and servants assimilated thereto" ( Chapter II ), Article 48 merely lays down that the Director of the Office is under a duty to inform ( not consult ) the Management Committee regarding "staff reports on officials and other servants" and regarding the observations made by the latter and any other information which might influence the reports .

71 . Accordingly, it does not seem to me that the applicant has shown that there was even the slightest non-observance of any procedures with which the assessor was bound to comply by virtue of the internal rules of the Publications Office .

72 . But, even if there had been, the considerations which I expounded regarding the fourth submission, to the effect that the absence of consultation might be irrelevant as far as the official' s situation was concerned, could also be applied to the present submission .

3 . The claim for compensation

73 . In respect of the delay incurred in the preparation of his periodic report, the applicant seeks compensation of one franc for the non-material damage suffered by him .

74 . I do not consider that claim to be well founded .

75 . It is true that in its judgment in Ditterich, ( 11 ) the Court considered that non-observance of the time-limits for the preparation of periodic reports, without special mitigating circumstances, was such as to constitute a fault liable to render the administration liable . In that case the Court granted compensation, since it considered that "although the applicant has not established that the omission prevented or delayed any promotion which he might otherwise have obtained and thus caused him material damage, he has however established that he suffered non-material damage on account of the fact that his personal file is neither in good order nor complete ".

76 . It does not seem to me that in the present case the same conclusion necessarily follows .

77 . There does not appear to be sufficient evidence of non-material damage suffered by the applicant .

78 . The delay in completion of the reporting procedure is in part attributable to the applicant' s own conduct, as are the delays in the issue of the opinions by the committees whose participation he called for .

79 . There remains, however, the "residual" delay in preparation of the final periodic report by the appeal assessor after the issue of the opinion of the Joint Committee on Staff Reports - for which no mitigating circumstances have been pleaded .

80 . It does not follow from the decision cited that the existence of non-material damage must be presumed whenever there is a delay attributable to the administration in the preparation of a periodic report .

81 . Everything depends on the circumstances of the case .

82 . In this instance, the delay after the issue of the Joint Committee' s opinion was seven months, and the period allowed by the rules was exceeded by a total of 14 months .

83 . However, in the Ditterich case, the appeal assessor' s delay in preparing the final report was almost two years 10 months and in the Castille case, in which damages were also awarded, the delay amounted to almost four years . In the Seton case, on the other hand, a period of four years three months elapsed between the date on which the applicant submitted his observations on the first version of his periodic report and the final confirmation by the appeal assessor, and the Court did not consider that any compensation was payable ( paragraph 11 ).

84 . In the Castille case, moreover, in the absence of the delayed report, promotion decisions were taken in which the applicant was left out of account . For that reason, the Court took the view that "in the particular circumstance of (( the )) case" ( paragraph 37 of the decision ), harm had been suffered which should be assessed ex aequo et bono .

85 . In the case under review here, it should also be noted that the final report which was ultimately prepared, without there having occurred, in my view, any irregularity capable of affecting its validity, contained a number of very favourable assessments and, as the Commission pointed out, the applicant was even promoted to grade A 5 during the reference period .

86 . The conclusion that the claim for compensation for late preparation of the periodic report must be rejected also seems to me to follow from the recent decision of the Fourth Chamber in Vincent, ( 12 ) which rejected a claim for compensation based on the late preparation of a periodic report and on the absence of the report at the beginning of a promotion procedure in which the applicant was involved . Notwithstanding the allegation of non-material damage and mental suffering, the Court took the view that, since the individual procedure relating to the applicant was subsequently completed and the promotion decisions were reviewed and confirmed in the light of the new information, no damage had been caused to the applicant; for those reasons, the Court decided ( paragraph 25 ) to take due account of the differences between that case and the authority laid down in the Geist judgment of 14 July 1977, ( 13 ) where the complete absence of several periodic reports on the applicant was very difficult, or even impossible, to make up for, "in view of the time which has elapsed and the dispersal or departure of the authorities who drew up the reports ". ( 14 )

4 . Conclusion

87 . In view of the foregoing considerations, I propose that the Court should dismiss both the application for annulment and the claim for damages, making an order for costs in accordance with the combined provisions of Articles 69 ( 2 ) and 70 of the Rules of Procedure .