3.

As I stated at the beginning of my opinion the Commission stresses that it did not in fact fail to take any administrative action. On the contrary it accepted part of the applicant's complaint and replaced the report which he criticized with a second report of 22 May 1968. In the absence of any interest which can be legally protected it follows that the applicant cannot now ask for a judicial review of the first report which has been withdrawn but can at most ask for a review of the second report by means of an application to the Court. I will now examine this aspect of the dispute in greater detail. In the first place it cannot be denied that the applicant's superiors, who prepared the report of 15 January 1968 for the period from 1 July 1965 to 30 June 1967, produced a second report on the applicant for the same period dated 22 May 1968. This report differs in important respects from the first. It contains no additional observations of the applicant's illnesses and his short periods of leave; moreover the note on his capacity to carry out his duties with despatch is more satisfactory. The second report is not therefore simply a repetition of the first report but a new and improved document more favourable to the applicant. Whether it was expressly pointed out to the applicant — which he denies — that the second report was intended to replace the first does not seem to me to be conclusive. Two reports covering exactly the same period which differ from each other obviously cannot exist simultaneously. In a case such as this it is therefore self-evident that only the report which was made later and was moreover more favourable to the applicant should have effect. This view is not altered by the fact that in the list of documents in the applicant's personal file the reference to the first report withdrawn from the file was not erased, because the view can be taken that the designation in the same list of the second report (‘Rapport de notation, rectificative’) (‘Amended periodic report’) is sufficient to clarify the position, a fact which appears to make unnecessary a declaration sought by the applicant that the report of 15 January 1968 is no longer on his personal file. It is none the less doubtful whether the second report was at all effective in law and could therefore replace the first report. The applicant resolutely disputes this view. He bases his argument on Article 43 of the Staff Regulations which provides that the periodic report shall be communicated to the official for whom it is intended. He refers to rules issued by the Commission of the EEC relating to Article 43 which provide that the periodic report must be signed by the official concerned. Finally he invokes Article 26 of the Staff Regulations which contains provisions on the keeping of the personal files of officials. These provisions show that periodic reports cannot be used or cited against an official by a Community institution ‘unless they were communicated to him before they were filed’. In addition the third paragraph of Article 26 provides that ‘The communication of any document to an official shall be evidenced by his signing it, or, failing that, shall be effected by registered letter’. The applicant takes the view that these provisions contain essential procedural requirements which must be observed. As, however, he never signed the second report and as his refusal to sign was not followed by the communication of it to him by registered letter, it must be regarded as having no legal effect and indeed as having no existence in law. It could not therefore have overridden and replaced the first report. Let us examine whether these inferences hold good. In our examination Article 43 of the Staff Regulations can be disregarded, because it only provides that the periodic report shall be communicated to the official and does not prescribe any formalities at all for this purpose. The second report was communicated to the applicant at any event on the day it was made (22 May 1968) by his superiors and on 31 May 1968 by an official of the Directorate-General of Administration. This emerged clearly from the oral procedure during which the applicant stated that he refused to sign the report, because he wanted to examine certain statements in it and submit his comments. This however raises the presumption that he had succeeded in ascertaining the content of the report. Similarly the rules issued by the Commission of the EEC relating to Article 43 of the Staff Regulations of Officials of the EEC do not help our case at all, because it cannot simply be assumed that they apply after the entry into force of the new common Staff Regulations (of 4/3/1968) of the single Commission and of all officials of the European Communities, including former ECSC officials. However, this question and the question whether there are similar rules of the former High Authority need not in the final analysis be answered, since Article 26 of the Staff Regulations contains corresponding if not more far-reaching rules. Article 26 of the Staff Regulations is in fact crucial for the solution of our problem. Indeed a careful examination of this provision immediately raises doubts whether it supports the interpretation placed upon it by the applicant. It is important first of all to note the categorical statement that a document may not be used against an official unless it was communicated to him before it was filed. The communication of a document (or its notification) is therefore the condition precedent to its validity in accordance with the general principle of administrative law that a document only has legal effect when it is published. The relevant sentence of Article 26 however says nothing about the procedure to be adopted for the communication of documents. The same deficiency is also found in the third paragraph of Article 26 — if it is properly interpreted. This paragraph, at least in its first part, only mentions the way in which a communication shall be evidenced. In any case the relevant commentaries nowhere put forward the view that, unless the formalities of the third paragraph are complied with, a document made under the Staff Regulations must be denied any existence in law. Nor is this the opinion of Euler, who in fact states in Volume 2, page 343, of his Commentary on the European Staff Regulations of Officials, that a periodic report on an official must be regarded as not being in existence unless it has been communicated to the official. In Fact the view that a document communicated to an official must be regarded as not being in existence unless it has been evidenced in accordance with the third paragraph of Article 26 seems to be a very unusual doctrine. This is shown to be the case if it is borne in mind that the Court (departing from the view which it held in an earlier case) in Joined Cases 8 to 11/66 laid down the general principle that the proper form of the service of a decision has no effect on its legal nature (one could also say: on its legal existence) (Rec. 1967, p. 117). The applicant's argument also seems to be far-fetched in the light of national law. In German law I can refer to paragraph 175 of the Bundesbeamtengesetz (German Law of Federal Civil Servants) and to the commentaries which have appeared on this subject. According to this section the requirement of formal service only applies to decisions concerning officials which are of great importance. In general a narrow interpretation of this provision is advocated and, if service is defective, any form of evidence can be adduced as proof that an administrative document has been communicated (cf. Plog-Wiedow, Kommentar zum Bundesbeamtengesetz, note 12 to paragraph 175). I would therefore submit that, in order to establish also under the provisions of the Staff Regulations that a document is legally in existence, there is no reason to require under the law applicable to officials of the communities more than its communication to the official concerned. It should therefore be accepted that proof of communication can be safely adduced in a form other than that provided by the third paragraph of Article 26. I endorse the Commission's argument on this point that a communication by registered letter is primarily intended for officials who cannot be found at their normal place of work. In other cases the direct communication of a document to the official concerned is the appropriate method and, if he refuses to give an acknowledgement of service, this refusal is replaced by an official declaration of a superior. If any other procedure were adopted and if the interpretation of Article 26 advocated by the applicant were accepted, the administration would have to carry the burden of complicated and expensive formal requirements without in any way increasing the protection of the legal interests of the official. As, however, in our case the report of 22 May 1968 was in fact brought to the notice of the applicant, and since his refusal to confirm that he had notice of it — as we have been told — is in fact explained by his wish to be able to submit his comments on the report and, as finally an official note of this refusal was made by one of the officials of the Directorate-General for Administration there can be no objection to holding the view that the requirements of Article 26 have been observed. This means at the same time that the report of 22 May 1968 has at least acquired a legal existence and has replaced the original report. The final inference to draw from all this is that the application is inadmissible, since the applicant did not show that he had any interest in a declaration that the first report was defective (for example he could have an interest if there was the danger that the defect would be repeated or if he intended to base certain claims on the original report).