Judgment of the Court (Second Chamber) of 27 January 1983. - Harald List v Commission of the European Communities. - Official - Work of an inadequate level and quantity. - Case 263/81.



European Court reports 1983 Page 00103



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - POST - REQUIREMENT THAT DUTIES CORRESPOND TO GRADE AND POST - ALLOTMENT OF TRANSLATION AND REVISION WORK TO OFFICIALS WHO ARE MEMBERS OF THE LANGUAGE STAFF - DISCRETION ON THE PART OF THE ADMINISTRATION

( STAFF REGULATIONS , ARTS 5 AND 7 ( 1 ))

2 . OFFICIALS - APPOINTMENT - CONSIDERATION OF COMPARATIVE MERITS - CONDITIONS FOR LAWFULNESS - TAKING ACCOUNT OF PERIODIC REPORTS - CONDITIONS

( STAFF REGULATIONS , ARTS 43 AND 45 ( 1 ))

3 . PROCEDURE - COSTS - COSTS CAUSED UNREASONABLY OR VEXATIOUSLY

( RULES OF PROCEDURE , SECOND SUBPARAGRAPH OF ART . 69 ( 3 ))

Summary

1 . THE APPOINTING AUTHORITY HAS , IN THE INTERESTS OF THE SERVICE , A WIDE DISCRETION IN ALLOTTING TO OFFICIALS WHO ARE MEMBERS OF THE LANGUAGE STAFF TRANSLATION AND REVISION WORK WHICH MUST BE DONE AT ANY PARTICULAR TIME . SUCH DISCRETION IS INDISPENSABLE IN ORDER TO ACHIEVE EFFECTIVE ORGANIZATION OF WORK AND TO ADAPT THE ORGANIZATION TO VARYING NEEDS .

2 . THE PERIODIC REPORT CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION .

AN APPOINTMENT PROCEDURE IS TAINTED WITH IRREGULARITY IN SO FAR AS THE APPOINTING AUTHORITY HAS NOT BEEN ABLE TO CONSIDER THE COMPARATIVE MERITS OF THE CANDIDATES BECAUSE THERE HAS BEEN A SUBSTANTIAL DELAY ON THE PART OF THE ADMINISTRATION IN DRAWING UP THE PERIODIC REPORTS OF ONE OR MORE OF THEM .

IT IS NOT , HOWEVER , NECESSARY THAT WHEN THE APPOINTMENT DECISION IS MADE ALL APPLICANTS SHOULD BE AT EXACTLY THE SAME STAGE REGARDING THE STATE OF THEIR PERIODIC REPORTS OR THAT THE APPOINTING AUTHORITY SHOULD POSTPONE ITS DECISION IF THE MOST RECENT REPORT ON ONE OR OTHER OF THE APPLICANTS IS NOT YET FINAL BECAUSE IT HAS BEEN REFERRED TO THE APPEAL ASSESSOR OR TO THE JOINT COMMITTEE . FURTHERMORE , AT LEAST WHERE A LARGE NUMBER OF APPOINTMENTS ARE CHALLENGED , THE FACT THAT THE PERSONAL FILE OF ONE APPLICANT IS IRREGULAR AND INCOMPLETE IS NOT A SUFFICIENT GROUND FOR THE ANNULMENT OF THE APPOINTMENTS UNLESS IT IS ESTABLISHED THAT THIS WAS CAPABLE OF HAVING A DECISIVE EFFECT ON THE APPOINTMENT PROCEDURE .

3 . WHEN PROCEEDINGS ARE INDUCED BY THE CONDUCT OF THE APPOINTING AUTHORITY AND BY THE LACK OF REGARD IT HAS SHOWN THE APPLICANT , THE LATTER SHOULD NOT BE PENALIZED , EVEN IF HE HAS FAILED IN THE MAJORITY OF HIS SUBMISSIONS , FOR REQUESTING THE COURT TO REVIEW THE EFFECT THAT THAT CONDUCT MIGHT HAVE UPON THE LAWFULNESS OF THE MEASURES IN QUESTION . IT IS THEREFORE APPROPRIATE IN SUCH CIRCUMSTANCES TO APPLY THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , ACCORDING TO WHICH THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY THE COSTS IN PROCEEDINGS WHICH HAVE ARISEN AS A RESULT OF THE CONDUCT OF THAT PARTY .

Parties

IN CASE 263/81

HARALD LIST , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED AND ASSISTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , OF THE LUXEMBOURG BAR , 34B RUE PHILLIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JACQUES DELMOLY , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR :

ANNULMENT OF THE DISGUISED DISCIPLINARY MEASURE WHEREBY THE APPLICANT WAS DEPRIVED OF WORK FOR THE PERIOD FROM 1 OCTOBER 1979 TO NOVEMBER 1980 AND IN THE ALTERNATIVE DAMAGES THEREFOR ;

ANNULMENT OF THE APPLICANT ' S ASSIGNMENT TO DIRECTORATE GENERAL II IN VIEW OF HIS WORKING CONDITIONS THERE ;

PAYMENT OF COMPENSATION FOR THE DAMAGE CAUSED BY THAT ASSIGNMENT ;

ANNULMENT OF THE PROCEDURE RELATING TO THE APPOINTMENT OF HEADS OF GROUP FOLLOWING VACANCY NOTICES NOS COM/895 TO 901/80 , INCLUDING APPOINTMENTS ALREADY MADE , ALTERNATIVELY THE PAYMENT OF DAMAGES THEREFOR ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 SEPTEMBER 1981 HARALD LIST , AN OFFICIAL OF THE EUROPEAN COMMUNITIES IN GRADE LA 4 , BROUGHT AN ACTION , ON THE ONE HAND , FOR THE ANNULMENT OF CERTAIN MEASURES TAKEN BY THE COMMISSION WITH REGARD TO HIM AND , ON THE OTHER , FOR AN ORDER THAT THE COMMISSION PAY DAMAGES FOR THE MATERIAL AND NON-MATERIAL DAMAGE CAUSED BY THOSE MEASURES .

2 THE APPLICANT TOOK UP EMPLOYMENT WITH THE COMMUNITIES IN 1961 AND HAS BEEN WITH THE COMMISSION SINCE 1965 . HE WAS CLASSIFIED IN GRADE LA 4 WITH EFFECT FROM 1 JANUARY 1973 . IN 1974 HE WAS ASSIGNED TO THE TRANSLATION GROUP OF THE ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS WHERE HE WORKED FROM THE SECOND HALF OF 1975 AS COORDINATOR OF THE GERMAN TRANSLATION GROUP . FOLLOWING DIFFICULTIES IN WORKING WITH HIS COLLEAGUES IT WAS DECIDED IN 1977 TO RELIEVE HIM OF HIS DUTIES ; SHORTLY AFTERWARDS HE WAS ASSIGNED TO THE TASK FORCE FOR NEGOTIATIONS WITH PORTUGAL . SINCE THE APPLICANT DID NOT WISH TO TRANSLATE INTO A LANGUAGE OTHER THAN HIS MAIN LANGUAGE , NAMELY GERMAN , THAT ASSIGNMENT WAS REVOKED THREE MONTHS LATER AND THE APPLICANT WAS PLACED AT THE DISPOSAL OF MR CIANCIO , DIRECTOR RESPONSIBLE FOR TRANSLATION , DOCUMENTATION , REPRODUCTION AND THE LIBRARY , PENDING A FRESH ASSIGNMENT . IN ITS JUDGMENT OF 12 JULY 1979 ( CASE 124/78 ( 1979 ) ECR 2499 ) THE COURT DISMISSED AN ACTION BROUGHT BY THE APPLICANT SEEKING , INTER ALIA , THE ANNULMENT OF CERTAIN OF THE ABOVE-MENTIONED MEASURES .

3 IN FEBRUARY 1978 THE APPLICANT LODGED A COMPLAINT THAT THE WORK ENTRUSTED TO HIM BY MR CIANCIO WAS OF AN INADEQUATE QUANTITY AND LEVEL . THAT COMPLAINT WAS REJECTED AND THE APPLICANT DID NOT BRING THE MATTER BEFORE THE COURT .

4 ON 20 FEBRUARY 1981 THE APPLICANT WAS SECONDED TO DIRECTORATE GENERAL II . ON 26 FEBRUARY 1981 HE LODGED A COMPLAINT THAT HE HAD BEEN DEPRIVED OF WORK FOR A PERIOD OF MORE THAN 12 MONTHS AND THAT AFTER BEING RE-ASSIGNED TO DIRECTORATE GENERAL II HE HAD RECEIVED ONLY TRANSLATION WORK OF INSUFFICIENT QUANTITY , WHEREAS HE WAS A REVISER IN GRADE LA 4 .

5 IN THE MEANTIME THE APPLICANT HAD APPLIED , INTER ALIA , FOR POSTS OF HEAD OF GROUP IN THE GERMAN TRANSLATION DIVISION ADVERTISED IN VACANCY NOTICES NOS COM/895 TO COM/901/80 . UPON BEING INFORMED IN MARCH 1981 THAT HIS APPLICATION HAD BEEN UNSUCCESSFUL AND KNOWING THAT HIS PERIODIC REPORT FOR THE YEARS 1977 TO 1979 HAD NOT BEEN MADE AVAILABLE TO THE APPOINTING AUTHORITY , THE APPLICANT LODGED ON 20 MARCH 1981 A COMPLAINT RELATING TO THE REJECTION OF HIS APPLICATION AND THE DELAY IN COMPILING HIS PERIODIC REPORT .

6 THE CONTESTED MEASURES , AS DESCRIBED IN THE APPLICATION AND SPECIFIED IN THE ORAL PROCEDURE , ARE AS FOLLOWS :

THE DISGUISED DISCIPLINARY MEASURE WHEREBY THE APPLICANT WAS DEPRIVED OF WORK FOR MORE THAN 12 MONTHS ;

THE ASSIGNMENT OF THE APPLICANT TO DIRECTORATE GENERAL II IN VIEW OF HIS WORKING CONDITIONS THERE ;

THE PROCEDURE RELATING TO THE APPOINTMENT OF HEADS OF GROUP FOLLOWING THE AFORESAID VACANCY NOTICES , INCLUDING APPOINTMENTS ALREADY MADE .

THE ALLEGED DISGUISED DISCIPLINARY MEASURE

7 THE APPLICANT STATES THAT HE WAS DEPRIVED OF WORK FROM OCTOBER 1979 UNTIL NOVEMBER 1980 . TO DEPRIVE AN OFFICIAL OF WORK IS TO AFFECT HIM ADVERSELY AND IS THUS A DISCIPLINARY MEASURE . IN THE PRESENT CASE SUCH A DISCIPLINARY MEASURE IS QUITE UNJUSTIFIED AND , MOREOVER , WAS TAKEN WITHOUT OBSERVANCE OF THE FORMALITIES FOR DISCIPLINARY MEASURES PROVIDED IN PARTICULAR IN ANNEX IX TO THE STAFF REGULATIONS .

8 THE COMMISSION HAS BEEN UNABLE TO PROVIDE THE COURT WITH DETAILS OF THE AMOUNT OF WORK ENTRUSTED TO THE APPLICANT BEFORE HIS SECONDMENT TO DIRECTORATE GENERAL II BUT ADMITS THAT FOR A CERTAIN PERIOD HIS WORK LOAD WAS MINIMAL . IT DENIES HOWEVER THAT THE APPLICANT ' S WORK SITUATION AMOUNTED TO A DISCIPLINARY MEASURE .

9 IN THE ABSENCE OF SUFFICIENT INFORMATION FROM THE COMMISSION IT MUST BE CONCLUDED THAT FOR A PERIOD OF MORE THAN A YEAR THE APPLICANT WAS LEFT VIRTUALLY WITHOUT WORK . ALTHOUGH THE DIFFICULTIES PREVIOUSLY ENCOUNTERED BY THE APPOINTING AUTHORITY IN ATTEMPTING TO FIND A SUITABLE POSTING FOR THE APPLICANT MAY JUSTIFY A CERTAIN DELAY , THERE IS NO EXCLUSE FOR THE ADMINISTRATION ' S FAILURE TO FIND WORK FOR HIM FOR SUCH A LONG PERIOD . HOWEVER , WHILST IT MUST BE ADMITTED THAT THE APPLICANT HAS SUFFERED FROM AN ABNORMAL ADMINISTRATIVE SITUATION IT CANNOT BE EQUATED WITH A DISCIPLINARY MEASURE . THE APPLICANT HAS BEEN UNABLE TO SHOW THAT THE COMMISSION INTENDED TO PENALIZE HIM IN ANY WAY . SINCE THE CLAIMS FOR ANNULMENT AND FOR DAMAGES ARE LINKED IN THE APPLICANT ' S CONCLUSIONS TO THE EXISTENCE OF A DISGUISED DISCIPLINARY MEASURE , THAT FINDING IS IN ITSELF A SUFFICIENT GROUND FOR THE DISMISSAL OF THE TWO CLAIMS .

THE ASSIGNMENT TO DIRECTORATE GENERAL II

10 THE APPLICANT ALLEGES THAT HIS ASSIGNMENT TO DIRECTORATE GENERAL II HAS INVOLVED DEMOTION IN SO FAR AS THE LEVEL OF HIS DUTIES IS CONCERNED , INASMUCH AS THE WORK ENTRUSTED TO HIM IN HIS NEW POST IS NOT ONLY OF AN INSUFFICIENT QUANTITY BUT ALSO OF A LEVEL LOWER THAN THAT CORRESPONDING TO HIS GRADE AND PREVIOUS POST . THAT ASSIGNMENT THUS CONSTITUTES A MEASURE ADVERSELY AFFECTING HIM , WHICH ACCORDING TO ARTICLE 25 OF THE STAFF REGULATIONS SHOULD HAVE STATED THE REASONS ON WHICH IT WAS BASED AND BEEN NOTIFIED TO HIM IN WRITING . MOREOVER , IT CONSTITUTES AN INFRINGEMENT OF ARTICLES 5 AND 7 OF THE STAFF REGULATIONS , WHEREBY EVERY OFFICIAL MUST BE ASSIGNED TO A POST CORRESPONDING TO HIS GRADE .

11 THE COMMISSION EMPHASIZES THAT THE APPLICANT AGREED TO THE PROPOSED SECONDMENT AFTER HAVING EVERY OPPORTUNITY DURING HIS MEETINGS WITH HIS SUPERIORS TO OBTAIN INFORMATION ABOUT THE DUTIES WHICH AWAITED HIM . MOREOVER , THE ASSIGNMENT DID NOT ADVERSELY AFFECT THE RIGHTS OF THE APPLICANT UNDER THE STAFF REGULATIONS SINCE IT WAS SIMPLY AN INTERNAL ADMINISTRATIVE MEASURE , AS ALL NON-LEGAL TRANSLATORS WORKING AT THE COMMISSION IN BRUSSELS ARE ASSIGNED TO THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION . THEREFORE THE DECISION IN QUESTION CANNOT BE REGARDED AS A MEASURE ADVERSELY AFFECTING THE APPLICANT . SINCE THE APPLICANT AGREED TO PERFORM HIS NEW DUTIES WITH KNOWLEDGE OF THE WORK INVOLVED , IT FOLLOWS THAT , IF THE REQUIREMENT TO STATE REASONS AND TO GIVE NOTIFICATION DID APPLY , THAT REQUIREMENT WAS MET .

12 AS REGARDS THE LEVEL AND QUANTITY OF TRANSLATION WORK IN DIRECTORATE GENERAL II , THE COMMISSION , AT THE REQUEST OF THE COURT , SUPPLIED INFORMATION ON THE TRANSLATION WORK ENTRUSTED TO THE APPLICANT AND HIS TWO COLLEAGUES , OF WHOM ONE IS OF FRENCH AND THE OTHER OF ENGLISH MOTHER TONGUE DURING A MONTH WHICH THE PARTIES AGREE TO BE REPRESENTATIVE . IT APPEARS THAT DURING THE MONTH IN QUESTION THE APPLICANT RECEIVED 25 PAGES TO TRANSLATE WHILE HIS TWO COLLEAGUES RECEIVED 23 AND 33 PAGES RESPECTIVELY . IT IS , MOREOVER , APPARENT THAT THE LEVEL OF WORK ENTRUSTED TO THE THREE OFFICIALS IS LARGELY COMPARABLE AND CONSISTS OF COMMUNICATIONS TO THE COUNCIL , MINUTES OF COMMITTEE MEETINGS AND PRESS RELEASES .

13 THE COMMISSION ADMITS THAT THE WORK DOES NOT INCLUDE REVISION BUT STATES THAT EITHER THE TEXTS ARE HIGHLY TECHNICAL OR THE TRANSLATIONS ARE INTENDED TO BE PUBLISHED WITHOUT REVISION . IT ALSO ADMITS THAT THE AMOUNT OF WORK IS FAR LOWER THAN THE STANDARD FOR TRANSLATORS WORKING FOR THE COMMUNITIES BUT EMPHASIZES THAT TRANSLATORS SECONDED TO DIRECTORATES GENERAL MUST BE READY TO PRODUCE TRANSLATIONS AT ANY TIME WITHIN EXTREMELY SHORT PERIODS .

14 THE BASIC POSTS AND CORRESPONDING CAREER BRACKETS FOR LANGUAGE STAFF ARE SHOWN IN ANNEX I TO THE STAFF REGULATIONS . IT IS APPARENT THAT CAREER BRACKET LA 4 - LA 5 COVERS BOTH THE BASIC POST OF PRINCIPAL TRANSLATOR AND THAT OF REVISER . THE BASIC POST OF TRANSLATOR FALLS IN CAREER BRACKET LA 6 - LA 7 . THE DESCRIPTIONS OF THE FUNCTIONS AND DUTIES WHICH THOSE BASIC POSTS INVOLVE ARE LAID DOWN BY A COMMISSION DECISION . IT IS APPARENT FROM THAT DECISION THAT THE DUTIES RELATING TO THOSE BASIC POSTS OVERLAP TO SOME EXTENT .

15 THERE IS NO DOUBT THAT THE APPOINTING AUTHORITY HAS , IN THE INTERESTS OF THE SERVICE , A WIDE DISCRETION IN ALLOTTING TO OFFICIALS WHO ARE MEMBERS OF THE LANGUAGE STAFF TRANSLATION AND REVISION WORK WHICH MUST BE DONE AT ANY PARTICULAR TIME . SUCH DISCRETION IS INDISPENSABLE IN ORDER TO ACHIEVE EFFECTIVE ORGANIZATION OF WORK AND TO ADAPT THE ORGANIZATION TO VARYING NEEDS .

16 NEVERTHELESS THAT DISCRETION DOES NOT EXTEND TO THE CASE WHERE THE OFFICIAL IS SOLELY OR MAINLY OCCUPIED WITH DUTIES WHICH , IN VIEW OF THEIR CHARACTER , THEIR IMPORTANCE AND THEIR SCOPE , ARE NORMALLY ENTRUSTED TO OFFICIALS OF A LOWER GRADE .

17 IT IS APPARENT FROM THE AFORESAID DESCRIPTION SUPPLIED BY THE COMMISSION ITSELF OF THE QUANTITY AND NATURE OF THE WORK ENTRUSTED TO THE APPLICANT THAT SUCH IS THE CASE HERE . THAT IS , MOREOVER , CORROBORATED BY THE FACT THAT THE APPLICANT ' S TWO COLLEAGUES IN DIRECTORATE GENERAL II ARE BOTH TRANSLATORS IN CAREER BRACKET LA 6 - LA 7 AND THAT THE REQUEST SENT BY THE DIRECTORATE GENERAL TO THE APPLICANT ' S SUPERIORS CONCERNED THE SECONDMENT OF A TRANSLATOR .

18 SINCE IT HAS NOT BEEN SHOWN THAT THE APPLICANT AGREED TO BE SECONDED TO DIRECTORATE GENERAL II IN THOSE CIRCUMSTANCES , THAT AMOUNTS TO A MEASURE ADVERSELY AFFECTING HIM . MOREOVER , IT WAS ADOPTED IN INFRINGEMENT OF ARTICLES 5 AND 7 OF THE STAFF REGULATIONS .

19 THE DECISION SECONDING THE APPLICANT TO DIRECTORATE GENERAL II IS THEREFORE UNLAWFUL AND MUST BE ANNULLED .

20 SINCE THE APPLICANT HAS NOT SHOWN THAT BY REASON OF THAT DECISION HE HAS SUFFERED DAMAGE CAPABLE OF BEING COMPENSATED BY A PECUNIARY AWARD HIS CLAIM FOR DAMAGES MUST , ON THE OTHER HAND , BE DISMISSED .

THE PROCEDURE RELATING TO THE APPOINTMENT OF HEADS OF GROUP

21 THE APPLICANT EMPHASIZES THAT , SINCE HIS PERIODIC REPORT FOR THE YEARS 1977 TO 1979 HAD NOT BEEN COMPILED WHEN THE APPOINTING AUTHORITY DECIDED ON THE APPOINTMENTS FOR THE POSTS OF HEADS OF GROUP , THE APPOINTING AUTHORITY COULD NOT COMPARE THE MERITS OF THE APPLICANT WITH THOSE OF THE OTHER APPLICANTS . THERE WAS THUS AN INFRINGEMENT OF ARTICLE 45 OF THE STAFF REGULATIONS . MR CIANCIO ' S RECONSIDERATION OF THE APPLICATION ON 11 DECEMBER 1981 IS IRRELEVANT SINCE IT OUGHT TO HAVE BEEN CARRIED OUT BY THE AD HOC JOINT COMMITTEE RESPONSIBLE FOR DRAWING UP THE LIST OF OFFICIALS TO BE PROMOTED AND ABOVE ALL BY THE APPOINTING AUTHORITY ITSELF . FURTHERMORE , THE RECONSIDERATION OUGHT TO HAVE BEEN POSTPONED UNTIL THE FINAL PERIODIC REPORT WAS AVAILABLE .

22 THE COMMISSION MAINTAINS THAT IT IS NOT POSSIBLE TO RELY ON ARTICLE 45 OF THE STAFF REGULATIONS IN THE PRESENT CASE SINCE THAT ARTICLE IS CONCERNED WITH PROMOTIONS AND NOT APPLICATIONS FOR POSTS IN THE SAME CAREER BRACKET ( LA 4 - LA 5 ) AS THAT OF THE APPLICANT . MOREOVER , THE COMMISSION AGREED TO RECONSIDER THE APPLICATION FROM THE APPLICANT IN THE LIGHT OF HIS PERIODIC REPORT WHEN IT HAD BEEN COMPILED AND HIS COMMENTS HAD BEEN APPENDED . THE CONFIRMATORY DECISION OF THE APPOINTING AUTHORITY ADOPTED FOLLOWING THAT RECONSIDERATION SHOWS THAT THE ABSENCE OF THE SAID REPORT WAS NOT A FACTOR CONTRIBUTING TO THE ORIGINAL REJECTION OF THE APPLICATION .

23 IT APPEARS FROM THE FILE THAT THE PERIODIC REPORT ON THE APPLICANT FOR THE YEARS 1977 TO 1979 WAS SIGNED BY THE ASSESSOR ON 8 JUNE 1981 , THE APPLICANT ADDED HIS COMMENTS ON 9 JUNE 1981 , THE REPORT WAS AMENDED BY THE APPEAL ASSESSOR ON 30 OCTOBER 1981 AND THE JOINT COMMITTEE ON PERIODIC REPORTS , TO WHICH THE APPLICANT REFERRED THE MATTER , MET ON 29 JULY 1982 . THE COURT HAS NOT BEEN INFORMED OF ANY FINAL RESULT OF THAT MEETING .

24 MOREOVER , IT APPEARS FROM THE FILE THAT THE COMMISSION DECIDED DURING THE WRITTEN PROCEDURE TO RECONSIDER MR LIST ' S APPLICATION FOR THE POSTS IN QUESTION WHEN HIS PERIODIC REPORT HAD BEEN DRAWN UP AND NOTIFIED TO HIM . WHEN THAT CONDITION WAS SATISFIED MR CIANCIO PROCEEDED ON 11 DECEMBER 1980 TO RECONSIDER THE APPLICATIONS IN QUESTION BUT TOOK THE VIEW THAT MR LIST ' S APPLICATION COULD STILL NOT MEET WITH SUCCESS . SUBSEQUENTLY , ON 17 JUNE 1982 , THAT IS TO SAY BEFORE THE MEETING OF THE JOINT COMMITTEE ON PERIODIC REPORTS , THE APPOINTING AUTHORITY ADOPTED A DECISION CONFIRMING THE REJECTION OF THE APPLICATION .

25 AS THE COURT HAS ALREADY EMPHASIZED , INTER ALIA , IN ITS JUDGMENT OF 5 JUNE 1980 IN CASE 24/79 OBERTHUR V COMMISSION ( 1980 ) ECR 1743 , THE PERIODIC REPORT CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION . THE FACT THAT THE PROCEDURE IN QUESTION DOES NOT RELATE TO PROMOTION WITHIN THE MEANING OF THE STAFF REGULATIONS IS THEREFORE NOT DECISIVE .

26 THE COURT HAS CONSISTENTLY HELD THAT SUCH A PROCEDURE IS TAINTED WITH IRREGULARITY IN SO FAR AS THE APPOINTING AUTHORITY HAS NOT BEEN ABLE TO CONSIDER THE COMPARATIVE MERITS OF THE CANDIDATES BECAUSE THERE HAS BEEN A SUBSTANTIAL DELAY ON THE PART OF THE ADMINISTRATION IN DRAWING UP THE PERIODIC REPORTS OF ONE OR MORE OF THEM .

27 IT SHOULD , HOWEVER , BE EMPHASIZED THAT THAT DOES NOT MEAN THAT WHEN THE APPOINTMENT DECISION IS MADE ALL APPLICANTS MUST BE AT EXACTLY THE SAME STAGE REGARDING THE STATE OF THEIR PERIODIC REPORTS OR THAT THE APPOINTING AUTHORITY MUST POSTPONE ITS DECISION IF THE MOST RECENT REPORT ON ONE OR OTHER OF THE APPLICANTS IS NOT YET FINAL BECAUSE IT HAS BEEN REFERRED TO THE APPEAL ASSESSOR OR TO THE JOINT COMMITTEE . FURTHERMORE , IT SHOULD BE NOTED THAT THE COURT , IN A CASE IN WHICH A LARGE NUMBER OF APPOINTMENTS WERE CHALLENGED ( INTERIM JUDGMENT OF 18 DECEMBER 1980 IN JOINED CASES 156/79 AND 51/80 GRATREAU V COMMISSION ( 1980 ) ECR 3943 ), EMPHASIZED THAT THE FACT THAT THE PERSONAL FILE OF ONE APPLICANT WAS IRREGULAR AND INCOMPLETE WAS NOT A SUFFICIENT GROUND FOR THE ANNULMENT OF THE APPOINTMENTS UNLESS IT WAS ESTABLISHED THAT THIS WAS CAPABLE OF HAVING A DECISIVE EFFECT ON THE APPOINTMENT PROCEDURE .

28 IN THE PRESENT CASE THERE IS NO DOUBT THAT THE APPLICANT ' S PERIODIC REPORT FOR THE YEARS 1977 TO 1979 WAS DRAWN UP WITH CONSIDERABLE AND INEXPLICABLE DELAY AND FOR THAT REASON THE ORIGINAL APPOINTMENT PROCEDURE WAS TAINTED WITH IRREGULARITY . ON THE OTHER HAND IT IS COMMON GROUND THAT THE APPOINTING AUTHORITY RECONSIDERED THE APPLICATION AFTER IT RECEIVED THE PERIODIC REPORT AND THE COMMENTS APPENDED THERETO BY THE APPLICANT . MOREOVER , IN VIEW OF THE CIRCUMSTANCES OF THE CASE AND ABOVE ALL THE CONFIRMATORY DECISION WHICH THE APPOINTING AUTHORITY TOOK FOLLOWING THAT RECONSIDERATION , THERE ARE NO GROUNDS FOR A FINDING THAT THE ABSENCE OF THE PERIODIC REPORT WAS CAPABLE OF HAVING A DECISIVE EFFECT UPON THE ORIGINAL APPOINTMENT PROCEDURE .

29 FOR THOSE REASONS IT IS NECESSARY TO DISMISS THE CLAIMS FOR ANNULMENT AND DAMAGES BASED ON THE IRREGULARITY OF THE PROCEDURE RELATING TO THE APPOINTMENT OF HEADS OF GROUP FOLLOWING VACANCY NOTICES NOS COM/895 TO 901/80 .

Decision on costs

COSTS

30 ALTHOUGH THE APPLICANT HAS FAILED IN THE MAJORITY OF HIS SUBMISSIONS , IT IS NECESSARY FOR THE PURPOSES OF COSTS TO TAKE ACCOUNT OF THE ABOVE-MENTIONED CONSIDERATIONS RELATING TO THE CONDUCT OF THE DEFENDANT . IT IS APPARENT THAT THE PROCEEDINGS WERE INDUCED BY THAT CONDUCT AND BY THE LACK OF REGARD FOR THE APPLICANT WHICH IT DEMONSTRATED . IT MUST BE REMEMBERED THAT FOR A VERY LONG PERIOD THE COMMISSION GAVE THE APPLICANT ONLY WORK OF AN INSUFFICIENT QUANTITY AND LEVEL IN SPITE OF HIS COMPLAINTS AND IN SPITE OF HIS LONG EXPERIENCE AND HIS UNDENIABLE AND UNDENIED ABILITY AND THAT THE COMMISSION HAS GIVEN NO EXPLANATION TO JUSTIFY THE CONSIDERABLE DELAY IN DRAWING UP HIS PERIODIC REPORT FOR THE YEARS 1977 TO 1979 . IN THOSE CIRCUMSTANCES THE APPLICANT SHOULD NOT BE PENALIZED FOR REQUESTING THE COURT TO REVIEW THE EFFECT THAT THOSE MATTERS MIGHT HAVE UPON THE LAWFULNESS OF THE MEASURES IN QUESTION .

31 IT IS THEREFORE APPROPRIATE TO APPLY THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , ACCORDING TO WHICH THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY THE COSTS IN PROCEEDINGS WHICH HAVE ARISEN AS A RESULT OF THE CONDUCT OF THAT PARTY .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) ANNULS THE ASSIGNMENT OF THE APPLICANT TO DIRECTORATE GENERAL II ;

( 2 ) DISMISSES THE REMAINDER OF THE APPLICATION ;

( 3 ) ORDERS THE COMMISSION TO PAY THE WHOLE OF THE COSTS .