B.

1. (a) In his first submission the applicant objects to the fact that the provisions adopted by the Commission for implementing Article 43 of the Staff Regulations, on which the Guide to Staff Reports is based, were adopted on 27 July 1979 with retroactive effect as regards the period from 1 July 1977 to 30 June 1979. He contends that an administrative provision may not be brought into force with retroactive effect. In reply the Commission points out that in the decision of 27 July 1979 it is expressly stated that it relates to the assessment period from 1977 to 1979 and that the new implementing provisions do not moreover involve the application of retrospective rules to previous facts and circumstances but constitute a guide for the assessors as to how they must assess past performance of officials in the future. (b) It must be acknowledged that the implementing provisions adopted in July 1979 are not true retrospective measures. The provisions do not retrospectively interfere with the rights of officials but merely provide the assessors with a different system for assessing the performance of officials in a previous period. It must also be pointed out that in administrative law the prohibition of adopting retroactive legislation is not as stringent as in criminal law for example. Even if it would have been more expedient if the assessors had known during the assessment period itself, that is from 1 July 1977 to 30 June 1979, the criteria of assessment according to which they were to evaluate their subordinates, the Commission's adoption of new implementing provisions governing the staff reports of officials which are to be prepared directly after the adoption of the implementing provisions cannot be regarded as unlawful. Consequently, the first submission does not stand up to examination. 2. (a) In his second submission the applicant points out that the report does not mention all the consultation which, in view of his various assignments, ought to have taken place. The report was prepared on 19 February 1981 by Deputy Director General Pizzuti when he was no longer Head of Directorate VI A, (International Affairs relating to Agriculture). Moreover, his former Head of Division, Mr Marinucci, could no longer give him instructions after 1 January 1979. The Commission points out that, owing to the fact that the applicant's transfer planned for 15 January 1979 did not take place, it was impossible for the assessor to consult officials other than those belonging to the Directorate for International Affairs relating to Agriculture. (b) From sections 12 and 13 of the contested report we learn that the report was prepared by Deputy Director General Pizzuti, who was also Head of the Directorate for International Affairs relating to Agriculture, after consultation with Mr Marinucci, the former Head of Division VI A 3 (International Organization for Agriculture). The assessors therefore consulted the official who was the applicant's immediate superior until at least 1 January 1979 (and who in fact had also been his superior in the periods to which the two previous reports related). The fact that Mr Marinucci apparently no longer worked in the aforementioned Division in the period from 1 January 1979 to 20 February 1979 — the day on which the applicant had his accident and became unfit for work — cannot affect the legality of the report, including the consultations required, in view of the fact that he was still the applicant's superior for 18 months of the assessment period and had been his superior for many years. Furthermore, the applicant has not indicated who in particular the assessor ought to have consulted. Consequently, this submission must also fail. 3. (a) In his third submission the applicant observes that the analytical assessment changed considerably compared with the previous report and yet no reasons were given for the change. In reply the Commission points out that a new system of assessment was introduced in 1979 so that it was impossible or at any rate very difficult to make a reasonable comparison with previous reports. For that reason the Commission expressly pointed out to assessors that comparisons were not to be made with previous reports. Although Article 5 of the implementing provisions of 27 July 1979required assessors to provide explanations for any change in the analytical assessment, this could only apply to assessments which were made on the basis of the same criteria. For that reason it is also pointed out on page 46 of the Guide to Staff Reports that assessors are free from the obligation to state reasons for changes as regards the period from 1977 to 1979. This is also apparent from a letter addressed by the Member of the Commission responsible for Personnel and Administration to the officials. ( 46 ) (b) At this juncture it must first be noted that there is a marked contrast between the applicant's report for the period from July 1977 to June 1979 and his previous reports. Whereas from 1973 to 1977 he received the highest ratings for his ability, efficiency and conduct in the service on a scale consisting of three ratings, for the period from July 1977 to June 1979 he received, on a scale of five ratings, the middle or third rating — ‘good’ — except that his ‘adaptation to the requirements of the service’ in Section II, ‘Efficiency’, was judged to be only ‘adequate’, which is only the fourth best or second worst rating. It must also be pointed out that the report in question as well as the two previous reports were prepared by the same assessor after consultation with the same Head of Division. It is certainly possible to agree with the Commission's argument that, according to the case-law of the Court, staff reports are not to be measured against the second paragraph of Article 25 of the Staff Regulations, which provides that any decision adversely affecting an official must state the grounds on which it is based, since the third paragraph of that provision shows which types of decision are meant. ( 47 ) However, the third paragraph of Article 25 mentions only the decisions which must be posted in the premises of the institution to which the official belongs and published. There may therefore be some doubt as to whether the third paragraph of Article 25 really contains an exhaustive list of all the measures which may possibly adversely affect officials. However, that question may be left aside since the second paragraph of Article 5 of the Implementing Provisions adopted by the Commission on 27 July 1979 expressly requires the assessor to state the reasons for any change in the analytical assessment. Even the Member of the Commission responsible for Personnel and Administration could not exempt assessors from that obligation to state reasons — if that is what the quite vague statements in undated letter No IX/2418/69-F ( 48 ) were taken to mean. In order to depart from the decisions of the Commission taken as a collegiate body, special authorization would have been needed; however, as the defendant stated at the hearing, such authorization had not been granted. Nor could a footnote in the yellow pages of the 1979 Guide to Staff Reports dispense assessors from that duty to state reasons. That guide, published by the Commission's Directorate General for Personnel and Administration, comprises, besides a cover sheet and an index, an introduction by the Member of the Commission responsible for Personnel and Administration, then the implementing provisions adopted by the Commission on 27 July 1979 and from page 13 onwards yellow pages with practical points on the drawing up of reports. The Guide therefore contains a series of texts of varying legal status and does not expressly state who is the author of the ‘yellow pages’, that is to say page 13 et seq. Even the Commission did not clearly say at the hearing who the author was; however, it may be assumed from the layout of the guide that from page 13 onwards the text was prepared by the Commission's administration. At any rate, it is clear that the ‘yellow pages’ printed at the end of the Commission's decision of 27 July 1979 do not form part-of the Commission's decision, since the decision contains no reference at all to any explanatory remarks. It cannot therefore be assumed/that, by adding aifootnote on page 46 of the Guide to Staff Reports, the Commission's administration Could dispense with the duty to state reasons laid down in the second paragraph of Article 5.of the General Implementing provisions. Since in its judgment in Küster, cited-, above, the Court acceptedthat there was a duty to state reasons for staff reports if such a duty was laiid down;in (the implementing provisions of the Community institution in question, ras is clearly: the case an this instance, it is no longer, neeessary to examine the question whether at lleast a deterioration in a staff report requires an explanation by virtue Article 25 of the Staff Regulations. As regards the special case of reports in respect of the period 1977 to 1979, it must also, however, be noted that special circumstances exist in view of the transition: from a simple to a more analytical ysstem of assessment. Thus, it may be justifiable to consider that & detailed statement of reasons is perhaps unnecessary if a slight difference in the report is merely due to due to a refinement of the system, for example where an official who received the best of three marks under the old system receives only the second best of five marks under the new system. In such a case it would have been sufficient to give the introduction of the new system as the reason for the change in assessment. However, where the assessment of the official's work was clearly worse even taking account of the adjustment of the report brought about by the refinement of the system, it was absolutely necessary to state reasons for the poorer assessment. However, since the report in question provides no explanation as to why the report as a whole is clearly worse and, on the particular point of the applicant's ‘adaptation to the requirements of the service’, even substantially worse, this submission is well founded, and consequently the applicant's staff report for the period 1977 to 1979 must be annulled. At the hearing the Commission sought to explain the reasons for the adverse change in the applicant's analytical assessment. It stated in particular that at the end of 1978 and the beginning of 1979 the Directorate General for Agriculture, to which the applicant had belonged at the material time, was in a difficult situation since the basic orientation of agricultural policy was in dispute in the Council of Ministers and at the same time the Directorate General had to be restructured. In addition to those difficulties, a new Director General had been appointed who first had to establish himself in his Directorate General. At that time the applicant resisted being assigned to another division of his Directorate General and thus created further difficulties for the newly appointed Director General for Agriculture at a time when he was facing considerable difficulties. This may be true. In fact, it is clear from two letters written by the applicant on 10 and I-9 January 1979 that he had learnt by chance in conversations that he was to be transferred within die Directorate General for Agriculture. However, it must be borne in mind that the actual transfer decision taken by the Directorate General for Personnel and Administration dates from only 13 March 1979, that is to say from a time when the applicant was already unfit for work following his accident on 20 February 1979. Moreover, the applicant denies having received that decision and, unlike in the case of other documents, there is no acknowledgment of receipt by the applicant attached to the decision on his personal file. According to the second paragraph of Article 26 of the Staff Regulations, that document cannot therefore be used against him. It must also be stated that in the letter of the Director General for Agriculture of 12 March 1980, ( 49 ) in which the applicant was requested to assume his duties in his new division, there is no reference at all to his having been informed of his transfer within the Directorate General for Agriculture. Consequently, the Commission's argument suggesting unsatisfactory ‘adaptation to the. requirements of the service’ may be disregarded in this case. Besides, that argument would have to be dismissed for having; been submitted out of time since no such argument was advanced in the complaint, procedure or in the written procedure, before the Court. 4. (a) In his fourth submission the applicant contends that the assessor and appeal assessor based their judgment on events which happened after 30 June 1979 and were therefore outside the period of assessment. Since he has no right to inspect files, he must at any rate make that presumption. In reply the Commission contends that there is nothing in the files which could support the applicant's assertion. (b) Since the applicant has not in fact adduced any evidence which could support his fourth submission, it must be dismissed. 5. (a) In his'fifth Submissionen applicant contends that- the assessor as well, as the appeal assessor committed: a misuse- of; power bėeauserthey prepared and approving a report which was bound' tovpreyenr him. from- being; promoted from- Grade. A 5 to Grade.A. 4 i To-support tHati assertion- the: applicane reliéson the same, presumptionss which; he indicated im thee fourth submission. The Commission objects that the applicant hasi not. suggested', any- evidence; which, could supporti the; assertion o£ a, misuse of power. (b) Since once agaim the, applicant bases his fifth Submission on presumptions only and has: no, shown any actual evidence to substantiate it, this submission must also be dismissed. 6. (a) In his. sixth submission the applicant points; out that in his final decision of 7 July 1983 ( 50 ) confirming the report the appeal assessor also failed to give any reasons at all for the adverse change in the analytical assessment. This, in his view, constitutes an infringement of Article 25 of the Staff Regulations; even if the appeal assessor was not obliged to comply with the opinion of the Joint Committee on Staff Reports, he should nevertheless have heeded the Committee's remarks about the duty to state reasons. The Commission replies to that argument by referring to the case-law of the Court, cited above, according to which staff reports do not need to state the reasons on which they are based. (b) The first point which must be made in this regard is that the Commission's General Implementing Provisions of 27 July 1979do not provide for any express obligation on the appeal assessor's part to state reasons for his decision. However, it is clear from point C 2 (2) on page 67 of the Guide to Staff Reports that, if the Joint Committee on Staff Reports considers the objection of the person assessed to be justified, the appeal assessor must review the staff report file. This was in fact the case in the present procedure since the Joint Committee on Staff Reports pointed out a number of weaknesses in the applicant's report. As we have already seen, no reasons were given for the adverse change in the applicant's analytical assessment, and this was contrary to the second paragraph of Article 5 of the Commission's General Implementing Provisions of 27 July 1979. Even if one did decide that Article 25 of the Staff Regulations does not generally require reasons to be stated for adverse changes in an official's report and that this is only necessary where a special duty exists, as in this case, it must be remembered that, as far as the appeal assessor's duties are concerned, he is not in principle obliged to give reasons for his decision if he endorses a report which is correct in itself; however, if the report referred to him shows evidence of a procedural irregularity — like the failure to state reasons for an adverse change in the analytical assessment — it is then the duty of the appeal assessor to provide the missing exphnation in a decision upholding the report. Since the appeal assessor did not do this, the applicant's sixth submission is well founded. 7. (a) In his seventh, alternative submission the applicant claims damages for the considerable delay in the preparation of his report for the period July 1977 to June 1979, which was not finalized until 7 July 1983. He leaves it to the Court to decide the amount of damages; however, he considers an amount of BFR 100000 appropriate. The Commission admits that there was considerable delay in the preparation of the repon; however, it also leaves it to the Court to decide whether the applicant should be awarded token damages. In any event, it disputes that the delay in the preparation of the report caused the applicant any measurable harm. (b) I have already stated that the considerable delay in the preparations of the staff report, for which the Commission has provided no legitimate excuse, is a serious omission on the part of its administration. Although the applicant has not produced evidence showing that the omission prevented or delayed a possible promotion, he has established that he has suffered nonmaterial damage due to the fact that his personal file is neither in good order nor complete. He is therefore entitled to claim damages for that irregularity in addition to the damages which he may claim in Case 157/83.