JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

29 February 1996

Case T-547/93

Orlando Lopes

v

Court of Justice of the European Communities

‛Officials — Staff Reports — Rejection of candidatures for promotion — Application for annulment and for compensation’

Full text in French II-185

Application for:

annulment of two memoranda concerning the quality of the applicant's work, his staff report for the period 1991-1992 and two decisions rejecting his application for promotion, and for compensation for the material and nonmaterial damage which he claims to have suffered as a result of his superiors' conduct and the contested decisions.

Decision:

Partial annulment of the decision concerning complaint Cont. 11/93-R; for the rest, application dismissed.

Abstract of the Judgment

On 17 September 1991 the applicant, a Portuguese language lawyer-linguist, submitted a first complaint, registered under Cont. 12/91-R, contesting his staff report for the period 1989-1990, two memoranda of 30 and 31 May 1991 sent by his superiors to the Consultative Committee on Staff Reports, before which he had brought the matter in the course of the staff reports procedure in question, and, implicitly, against his staff report for the period 1987-1988.

That complaint was rejected by a decision of the Administrative Committee of the Court of Justice of 9 December 1991. The applicant did not initiate any action against that decision.

On 2 May 1993 the applicant submitted a second complaint, registered under Cont. 10/93-R, seeking annulment of the memoranda of 30 and 31 May 1991, and of the decision rejecting his application for the post of lawyer-reviser which had been the subject matter of vacancy notice No CJ 62/92, and claiming compensation for the material and nonmaterial damage which he claimed to have suffered.

On 24 May 1993 the applicant submitted a third complaint, registered under Cont. 11/93-R, seeking annulment of his staff report for the period 1991-1992 and of the decision to reject his application for one of the two posts of principal lawyer-linguist referred to in vacancy notice No CJ 68/92 and claiming compensation for the damage which he claimed to have suffered.

Complaints Cont. 10/93-R and Cont. 11/93-R were rejected by a single decision of 12 July 1993, in which the Administrative Committee of the Court of Justice:

— found the complaint against the memoranda of 30 and 31 May 1991 to be inadmissible;

— confirmed the decision to reject the applicant's applications for the posts referred to in vacancy notices Nos CJ 62/92 and CJ 68/92, essentially because, in the opinion of the applicant's superiors and contrary to the conditions laid down in the vacancy notices, he was not able to translate, normally and without revision, from three languages;

— found that the complaint against the applicant's staff report for the period 1991-1992 was premature, and therefore inadmissible, on the ground that the report had not been final when he submitted that complaint.

The applicant's request submitted under Articles 48 and 114 of the Rules of Procedure

The applicant cannot rely on Article 114 of the Rules of Procedure in order to challenge a decision in which the Court of First Instance, exercising its discretion, decided not to include in the file a document by which the applicant sought to comment, under Article 48(2) of the Rules of Procedure, on certain new pleas in law alleged to be contained in the rejoinder. Article 48 of the Rules of Procedure lays down a specific way of dealing with requests connected with the submission of a new plea in law, to which the procedure laid down in Article 114 of the Rules of Procedure does not therefore apply.

Such a decision does not impair the applicant's rights of defence, which are sufficiently assured by the opportunity which each party has during the oral procedure to develop any arguments which it thinks expedient.

See: 34/65 Mosthaf v Commission of the EAEC [1966] ECR 541

The admissibility of the action in so far as it seeks annulment of the memoranda of 30 and 31 May 1991

Acts preparatory to a decision do not adversely affect an official within the meaning of Article 90(2) of the Staff Regulations and may therefore be contested only incidently in an action against measures capable of being annulled. In the present case, it is clear that the sole purpose of the two memoranda of 30 and 31 May 1991 was to prepare the applicant's staff report for the period 1989-1990. It follows that the claim for annulment is inadmissible in so far as it seeks annulment of those memoranda.

See: 11/64 Weighardt v Commission of the EAEC [1965] ECR 285; 346/87 Bossi v Commission [1989] ECR 303; T-108/92 Caló v Commission [1994] ECRSC II-213; T-6/93 Pérez Jimenez v Commission [1994] ECRSC II-497

The Court of First Instance also observes that those memoranda were explicitly contested in complaint Cont. 12/91-R, which was directed principally against that staff report. Since the decision rejecting that complaint was not contested within the period laid down in Article 91 of the Staff Regulations, the plea that the applicant's request was inadmissible because it was made out of time must be upheld.

The Court of First Instance considers in any event that the fact that the applicant has also brought a claim for compensation is irrelevant to the question whether his claim for annulment is admissible. A claim for compensation submitted jointly with an inadmissible claim for annulment is either itself inadmissible, if it is closely linked with the latter claim, or, in so far as the alleged damage is caused by a wrongful act or omission on the part of the administration unrelated to the measure whose annulment is sought, is admissible only on condition that it was preceded by a complaint which itself followed a request sent to the administration inviting it to make reparation for the damage suffered.

See: T-50/92 Fioroni v Parliament [1993] ECR II-555, paras 45 and 46

The claims for annulment

The first plea: infringement of rules of competence when examining the applicant's applications for the posts in question

The Staff Regulations empower the appointing authority to consider the comparative merits of officials eligible for promotion in accordance with the procedure or method which they consider to be the most appropriate.

In the circumstances of the present case, the Court of First Instance considers that the appointing authority was legitimately entitled to make its choice on the basis of the Registrar's proposal, to which were annexed the detailed opinions of the Head of the Personnel Division, the Director of Translation and the Head of the Portuguese Language Translation Division, and the average mark obtained by each of the candidates.

See: T-76/92 Tsirimokos v Parliamentm [1993] ECR II-1281, para. 18

The second plea: infringement of Article 26 of the Staff Regulations when examining the applicant's applications for the posts in question

The puipose of Articles 26 and 43 of the Staff Regulations is to guarantee an official's right to a fair hearing by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not on his personal file. A decision based on such matters is therefore contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

See: 21/70 Rittweger v Commission [1971] ECR 7, paras 29 to 41; 88/71 Brasseur v Parliament [1972] ECR 499, paras 9 to 11; 233/85 Bonino v Commission [1987] ECR 739, para. 11; T-82/89 Marcato v Commission [1990] ECR II-735, para. 78; T-78/92 Perakis v Parliament [1993] ECR II-1299, para. 27; Tsirimokos v Parliament, cited above, para. 33; T-109/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 68

So, the abovementioned provisions do not, in principle, cover opinions given to the appointing authority by superiors consulted in the course of a promotion or transfer procedure. Such opinions do not need to be brought to the attention of the candidates concerned in so far as they contain solely a comparative evaluation of their qualifications and merits, based on factual matters referred to in their personal file or communicated to the persons concerned, who have accordingly already had an opportunity to submit their observations.

See: Tsirimokos v Parliament, cited above, para. 34; Perakis v Parliament, cited above, para. 28; Lacruz Bassols v Court of Justice, cited above, para. 64

However, that is not the case where those opinions also contain, as well as a comparative assessment of candidatures, matters concerning the ability, efficiency or conduct of a candidate which have not previously been included in his personal file. In such circumstances, Article 26 of the Staff Regulations puts the administration under an obligation to place those matters on the personal file of the person concerned.

See: Bonino v Commission, cited above, para. 12; Rittweger v Commission, cited above, para. 35; Brasseur v Parliament, cited above, para. 18; Perakis v Parliament, cited above, para. 29; Tsirimokos v Parliament, cited above, para. 35; Lama Bassols v Court of Justice, cited above, para. 69

It must therefore be established whether, as the applicant claims in this case, the fact that the opinions given regarding his application by the Director of Translation and by the Head of the Portuguese Translation Division were not placed on his personal file, or brought to his attention prior to the adoption of the contested decisions, invalidated those decisions.

The Court finds that the abovementioned opinions contain an evaluation of the applicant's merits in comparison with the other candidates, in the light of the specific requirements for the post for which he had applied; that the appraisals so made of his application in no way contradict his staff reports, which were up-to-date and formed an integral part of the administrative file, and that, consequently, they are not based on any fresh matter of which the applicant was unaware and on which he had not had an opportunity to comment. It follows that the defendant did not infringe Article 26 of the Staff Regulations.

The third plea: infringement of the second subparagraph of Article 45(1) of the Staff Regulations in the examination of the applicant's applications for the posts in question

The second subparagraph of Article 45(1) of the Staff Regulations lays down the minimum period which officials must have completed in their grade in order to be eligible for promotion. That minimum period, which must in principle be calculated with effect from the date of establishment of the person concerned, cannot be used as a criterion for classifying candidates when their comparative merits are considered under the first subparagraph of Article 45(1) of the Staff Regulations.

See: T-30/90 Zoder v Parliament [1991] ECR II-207, para. 22

The Court of First Instance considers that the defendant duly took account of the requirements of that provision by first ensuring that the applications registered in the course of the procedure to fill the post referred to in vacancy notice No CJ 62/92 did indeed satisfy the requirement for completion by applicants of a minimum period in their grade, as laid down by that provision, even though when considering the comparative merits of the four candidates eligible for promotion pursuant to the first subparagraph of Article 45(1) of the Staff Regulations, the appointing authority then went on to apply what was in fact a secondary criterion based on the total period served in the institution.

The fourth plea: the appointing authority failed to observe the conditions set out in points II and III of vacancy notices Nos CJ 62/92 and CJ 68/92

The Court of First Instance observes that the applicant, on whom the burden of proof lies, has not submitted any evidence or pointed to anything which might prove a failure to observe those conditions, so that this plea has no factual basis.

The fifth plea: infringement of the first subparagraph of Article 45(1) of the Staff Regulations

To allow an official who has allowed the mandatory period laid down in Articles 90 and 91 of the Staff Regulations to expire, without challenging the validity of his staff report under the procedure provided for by those articles, to call into question its validity incidentally in an action brought against an annullable act for which that report was a preparatory step would be incompatible with the principles governing the legal remedies established by the Staff Regulations and would impair the stability of that system and the principle of legal certainty by which it is guided.

The Court therefore dismisses as inadmissible the applicant's complaints that the defendant, when adopting the contested decisions, refused to reconsider his staff reports for the periods 1987-1988 and 1989-1990, the decision to reject complaint Cont. 12/91-R or the acts preparatory thereto, despite his criticism of those various measures.

See: 156/77 Commission v Belgium [1978] ECR 1881, at p. 1896 et seq.; 23/80 Grasselli v Commission [1980] ECR 3709, para. 25; T-87/91 Boessen v ESC [1993] ECR II-235, para. 27

As regards the merits of the plea, the Court observes that, having regard to the appointing authority's broad discretion in considering the comparative merits of candidates for promotion, as provided for in Article 45 of the Staff Regulations, judicial review must be limited to considering whether, having regard to the various considerations which might have influenced the administration in making its assessment, the appointing authority exercised its discretion reasonably, in a way which was not manifestly improper. In any event, the Court cannot substitute its own assessment of the candidates' qualifications and merits for that of the appointing authority. Likewise, it is not for the Court to review the administration's assessment of an official's aptitude for a post, which entails complex value judgments, which, by their very nature, cannot be objectively verified, especially in a case such as this, which concerns value judgments of the quality of translation work, which by their nature include a significant subjective element.

See; 140/87 Bevan v Commission [1989] ECR 701, para. 34; T-169/89 Frederiksen v Parliament [1991] ECR II-1403, para. 69; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 64; T-496/93 Allo v Commission [1995] ECRSC II-405, paras 39 and 46

The Court considers that it is not possible to attribute to the appointing authority a manifest error of appraisal in the circumstances of the present case. The allegation of misuse of powers does not appear to be supported by any sound evidence. It is settled case-law that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for puiposes other than those relied on.

See: Lacruz Bassols v Court of Justice, cited above, para. 52

The sixth plea: infringement of Article 90(2) of the Staff Regulations

The defendant admits that it committed an error of law in taking the view that the applicant's staff report for the period 1991-1992 had not become final at the date of the submission of complaint Cont. 11/93-R on 24 May 1993. Since that error led it to refuse to consider that complaint, at least in so far as it was directed against that staff report, the defendant thereby misconstrued the second indent of Article 90(2) of the Staff Regulations and its decision must be annulled to that extent.

The applicant's failure to exercise the right, given to an official by Article 43 of the Staff Regulations, to add his comments to the staff report or to use the internal appeal procedure has no bearing on such an irregularity, since the exhaustion of those procedures, although normally desirable, is not a necessary step prior to lodging a complaint within the meaning of Article 90 of the Staff Regulations.

See: T-54/92 Schneider v Commission [1994] ECRSC II-887

That being the case, the Court must, by virtue of the action brought before it under Article 91 of the Staff Regulations, also consider the challenge to the legality of the staff report in question, the applicant expressly claiming that the report should be annulled. That plea is rejected as unfounded.

See: T-l/91 Della Pietra v Commission [1992] ECR II-2145. para. 24

The claim for compensation

An applicant who has failed to bring, within the periods laid down in Articles 90 and 91 of the Staff Regulations, an action to annul the measures alleged to have adversely affected him cannot repair that omission and thus obtain further time for bringing proceedings by lodging a claim for compensation for the damage caused by that measure.

See: T-20/92 Moat v Commission [1993] ECR II-799

The position is the same where the omission concerns not the measure adversely affecting the official as such, but a measure preparatory thereto, to which an effective challenge could have been made, incidentally, in proceedings contesting that measure.

Consequently, the claim for compensation must be dismissed as inadmissible in the present case inasmuch as it concerns reparation of the damage allegedly caused by the memoranda of 30 and 31 May 1991.

For the rest, the Court observes that the claim is for reparation of the damage allegedly caused by the measures adversely affecting the applicant, whose annulment is also requested, and, as the case may be, by acts preparatory to those measures. Those applications are therefore closely linked to each other, so that the dismissal of the claim for annulment must entail dismissal of the claim for compensation.

See: T-82/91 Latham v Commission [1994] ECRSC II-61 ;T-558/93 Düchs v Commission [1994] ECRSC II-837

Costs

The Court considers that the applicant himself contributed to the defendant's failure to examine his complaints by refusing to sign his staff report for the period 1991-1992 or to initiate internal appeal procedures. The Court has, moreover, dismissed as unfounded the applicant's claim for annulment of that report. In those circumstances and although it is necessary to annul part of one of the contested measures, each party must bear its own costs.

Operative part:

The application submitted by the applicant to the Court of First Instance on 13 October 1994 is dismissed and the document annexed thereto is excluded from the case-file.

The action is dismissed as inadmissible in so far as it seeks, first, annulment of the memorandum of 30 May 1991 of the Head of the Portuguese Translation Division and of the memorandum of 31 May 1991 of the Director of Translation and, secondly, reparation of the damage allegedly caused by those documents.

The defendant's decision of 16 July 1993 is annulled in so far as it states that it is not necessary to consider the part of complaint Cont. 11/93-R concerning the applicant's staff report for the period 1991-1992.

The remainder of the application is dismissed.

The parties are to bear their own costs.