1.

To these belongs the argument raised in the written procedure that the decision on promotion in Case 94/63 was illegal because it was not posted in the premises of the institution immediately after its adoption and published in the Monthly Staff Bulletin as provided by Article 25 of the Regulations. Indeed it may be asked whether this complaint was not dropped, since the applicant did not go further into it in the oral proceedings; but it can easily be shown that it could not invalidate the contested Decision. In my opinion the second paragraph of Article 25 which requires publication of certain decisions regarding staff contains no essential requirement of form as a condition for the validity of measures. This would be quite unusual in the case of measures affecting the individual; aliter in the case of legislative measures which necessarily require publication. In particular Article 25 does not constitute a provision, the observance or non-observance of which influences the content of a decision. Its sense and purpose seem to me rather to lie in establishing the material content of a staff decision, bringing it to the notice of the staff and enabling officials who may be affected thereby to safeguard their rights in administrative or judicial proceedings. If, as in the present case, it is not observed to the extent that the publication did not immediately follow and was not made until four weeks had gone by, then the only consequence to be drawn from the tenor of Article 25 is that the time-limits for bringing an action begin to run in favour of officials concerned from a later date (for example from the date on which the official became aware of the decision). There can however be no possibility of annulling the decision in question. Of greater significance is another argument which was put up in both cases and which relates to the legality of the promotion procedure. This argument can be split up into several different complaints and I now turn to the most important of these. It became of real importance after production of the documents distributed to members of the Commission for preparation of the decisions on promotion and it must be considered especially in relation to particular requirements set out in the Raponi case for the preparation and adoption of decisions on promotion. The question, in short, is whether the members of the Commission were sufficiently well informed on the necessary facts, and first and foremost on the merits of the applicants whom they had to consider and compare in the adoption of their decisions. It will be necessary to draw a distinction in the legal examination because in one of the two cases (Case 96/63) the decision was made at a meeting of the Commission whilst in the other (Case 94/63) the written procedure was chosen. (a) Let us first see how the promotion procedure evolved in Case 94/63. It began when on 2 July 1963 a note was sent by the Secretariat of the Commission to the members of the Commission in which the President of the Commission made a definite proposal for the promotion and gave his reasons. It was mentioned in the note that the Director-General of Administration had carefully examined the applications and had interviewed the candidates. He had decided to propose for the promotion the candidate whose promotion the President of the Commission later supported. There were annexed to the note, in addition to the vacancy notice, the application forms of the various candidates (that is, a personal questionnaire for each candidate). The President's proposal was to be deemed to be accepted unless any observations reached the secretariat of the Commission by 6 p.m. on 8 July. The only sources of information available to the members of the Commission were therefore the President's note, which anyhow applied only to the candidate promoted, along with the questionnaires filled in by the candidates themselves which, apart from other personal details, contained in general no more than a few brief remarks about their previous activities in the service of the Commission. We must consider whether this can be accepted as adequate for the application of a provision which in the normal case requires examination of reports on the ability, efficiency and conduct of officials in order that, after consideration of the comparative merits of the candidates, a proper selection can be made for the purposes of promotion. I personally have serious doubts, which I do not feel are dispelled by the Raponi judgment; rather the reverse. In this judgment great emphasis is laid on the fact that a decision on promotion requires an ‘examen scrupuleux de dossiers comparables’, in order that the decision on promotion may be taken ‘en toute connaissance de cause’ and stress is laid on the need to consider the comparative merits on a ‘base égalitaire et au vu de sources d'information et de renseignements comparables’. In my view the investigation procedure did not meet these requirements in Case 94/63. The rule of equality of treatment was broken because only in the case of the candidate proposed were details available on his past career and merits from a third party; but in particular the instruction that the merits of the individual candidates must be fully considered was not observed. For this purpose the particulars furnished by the candidates themselves on their activities in the service of the Commission are inadequate and it makes no difference whether they are relatively detailed or — as was the rule — only in a very summary form. They do not enable an assessment of merits to be made because the most that is said in the application forms is what the candidates have done and not in what manner, with what result and with what efficiency they have done it. For such an opinion for the purposes of selection for promotion to be of any use it could only be given by an impartial third party and not by the individual candidates. Since no possible sources of additional information for the members of the Commission (such as, for example, personal files) are discernible, we must say then on ail the evidence available in Case 94/63 that the decision on promotion was made after inadequate preparation and this of necessity involves its annulment. (b) The position in Case 96/63 is similar. Here too the decision on promotion was prepared from a communication from the Secretariat of the Commission to the members of the Commission in which the fact was mentioned that the various candidates had been interviewed by the Director-General of Administration and that on his proposal the President of the Commission had decided to propose the appointment of the candidate who was later promoted. The communication contains a detailed statement of reasons for the proposal and an indication that observations on the other candidates would be made orally. According to the statement of the Commission in the written procedure, the questionnaires of the individual candidates were moreover transmitted to the members of the Commission as in Case 94/63. Although in this case the decision on promotion was taken at a meeting of the Commission and not by means of a written procedure, there can be no difference in the assessment of the case so far as the preparation of the decision is concerned. Before the meeting the members of the Commission learned nothing more about the candidates who were not promoted than was to be gleaned from their personal questionnaires and on this there are still justified doubts because it is not clear from the communication from the Secretariat that the questionnaires to applicants were actually distributed. There is however a total lack of any indication in the minutes of the Commission that any additional examination of the merits of the candidates took place either on the basis of other documents or of oral observations. We can therefore establish that in Case 96/63, too, the decision on promotion was not prepared as required by Article 45. Here too an annulment of the contested decision is inevitable for this reason.