Judgment of the Court (First Chamber) of 15 December 1982. - John Philip Cowood v Commission of the European Communities. - Official - Decision not to promote. - Case 60/82.



European Court reports 1982 Page 04625



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - PROMOTION - DECISION NOT TO PROMOTE

( STAFF REGULATIONS , ART . 45 ( 1 ))

Parties

IN CASE 60/82

JOHN PHILIP COWOOD , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY PIERRE LEGROS OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GASTON VOGEL , RESIDENCE VERLAINE , 5 RUE C.-M.-SPOO ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY BERNARD PAULIN AND HENDRIK VAN LIER , RESPECTIVELY CHIEF ADVISER AND A MEMBER OF THE LEGAL DEPARTMENT THEREOF , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 19 MARCH 1981 , REJECTING THE APPLICANT ' S APPLICATION FOR A POST AS HEAD OF A TRANSLATION GROUP AND FOR COMPENSATION FOR THE NON-MATERIAL DAMAGE SUFFERED AS A RESULT OF THAT REJECTION ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 11 FEBRUARY 1982 , JOHN PHILIP COWOOD , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE LA 4 , BROUGHT AN ACTION FOR ANNULMENT OF THE DECISION OF 17 MARCH 1982 APPOINTING ANOTHER OFFICIAL AS HEAD OF A GROUP IN THE ENGLISH TRANSLATION DIVISION OF THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION AND FOR AN ORDER THAT THE COMMISSION PAY HIM COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED .

2 THE CONTESTED DECISION IS ONE OF SEVEN DECISIONS APPOINTING OFFICIALS TO THE SEVEN POSTS WHICH WERE DECLARED TO BE VACANT BY VACANCY NOTICES NOS COM/915/80 TO COM/921/80 . THE APPLICANT WAS AMONG THE THIRTEEN CANDIDATES FOR THOSE POSTS .

3 THE APPLICANT STATES IN HIS APPLICATION THAT ON 23 JANUARY 1981 HE WAS APPOINTED BY THE CENTRAL STAFF COMMITTEE AS STAFF REPRESENTATIVE ON THE LA PROMOTION COMMITTEE FOR THE YEAR 1980 AND THAT AT THE FIRST MEETING OF THAT COMMITTEE ON 17 FEBRUARY 1981 THE APPLICANT PUT FORWARD THE NAME OF AN OFFICIAL TO BE ENTERED ON THE LIST OF THE CANDIDATES MOST DESERVING OF PROMOTION TO GRADE LA 4 . HE CLAIMS THAT THE ONLY OBJECTIONS RAISED TO THAT PROPOSAL WERE THOSE OF THE DIRECTOR GENERAL OF PERSONNEL WHO ALLEGED THAT THE CANDIDATE IN QUESTION WAS ' ' WELL KNOWN AS A TRADE UNIONIST ' ' . THE APPLICANT FURTHER STATES THAT AFTER HIS PROPOSAL HAD BEEN PUT TO THE VOTE HE EXPRESSED RESERVATIONS ABOUT THE WORDING OF THE MINUTES OF THE MEETING OF THE PROMOTION COMMITTEE WHICH BROUGHT HIM INTO CONFLICT WITH THE CHAIRMAN OF THE COMMITTEE .

4 THE APPLICANT INFERS FROM THOSE EVENTS THAT THE DECISION NOT TO PROMOTE HIM TO HEAD OF A GROUP IS CLOSELY CONNECTED WITH THE ATTITUDE HE ADOPTED AT THE MEETING OF THE PROMOTION COMMITTEE IN ORDER TO HAVE THE MINUTES OF THAT MEETING ALTERED . HE CLAIMS , THEREFORE , THAT HIS APPLICATION WAS REJECTED BECAUSE OF HIS TRADE-UNION ACTIVITY WITHIN THE COMMITTEE .

5 ON THAT BASIS , THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION INFRINGES CERTAIN PROVISIONS OF THE STAFF REGULATIONS AND CERTAIN GENERAL PRINCIPLES OF LAW BY REASON OF THE ATTACK ON FREEDOM OF TRADE UNIONS AND FREEDOM OF OPINION .

6 THE COMMISSION CONTENDS THAT THE APPLICANT ' S ALLEGATIONS ARE NOT SUPPORTED BY THE FACTS AS THE DECISION TO APPOINT ANOTHER CANDIDATE TO THE VACANT POST WAS BASED ON OBJECTIVE CRITERIA ENTIRELY UNCONNECTED WITH THE APPLICANT ' S TRADE-UNION ACTIVITIES .

7 IN THAT REGARD THE COMMISSION RELIES ON A MEMORANDUM FROM THE DIRECTOR FOR TRANSLATION , DOCUMENTATION , REPRODUCTION AND LIBRARY ADDRESSED TO THE DIRECTOR OF PERSONNEL , WHICH CONTAINED RECOMMENDATIONS CONCERNING THE FILLING OF CERTAIN POSTS , ONE OF WHICH IS THE SUBJECT OF THIS ACTION . THAT MEMORANDUM IS DATED 22 JANUARY 1981 ; IT THEREFORE ANTEDATES THE APPLICANT ' S APPOINTMENT AS A MEMBER OF THE LA PROMOTION COMMITTEE ON 23 JANUARY 1981 .

8 THE MEMORANDUM OF 22 JANUARY 1981 CONTAINS THE FOLLOWING PASSAGE REFERRING TO THE POST AT ISSUE :

' ' MR COWOOD PERFORMED HIS DUTIES AS HEAD OF A GROUP IN AN ENTIRELY SATISFACTORY MANNER AT A TIME WHEN THE ENGLISH DIVISION WAS ORGANIZED IN EIGHT GROUPS . AS A RESULT OF THE RATIONALIZATION OF THE GROUPS IN ALL THE LINGUISTIC DIVISIONS CARRIED OUT IN 1980 THE LATTER HAVE BEEN RE-ORGANIZED INTO SEVEN GROUPS AND IT HAS BECOME NECESSARY TO REDUCE THE NUMBER OF GROUPS IN THE ENGLISH DIVISION BY ONE . MR COWOOD IS CONSEQUENTLY IN COMPETITION WITH ANOTHER VERY EXPERIENCED HEAD OF GROUP . AS THE TWO CANDIDATES ARE OF EQUAL MERIT I CONSIDER THE MORE SUITABLE CANDIDATE TO BE MR SCHAFER , WHO HAS GREATER LENGTH OF SERVICE AND SENIORITY AS A REVISER IN GRADE LA 4 . HOWEVER , I SHOULD LIKE TO DRAW ATTENTION BOTH TO MR COWOOD ' S MERITS AND TO HIS GOOD WORK . ' '

9 IT HAS BEEN ESTABLISHED THAT THE ABOVE RECOMMENDATION WAS SENT BY THE DIRECTOR GENERAL FOR PERSONNEL AND ADMINISTRATION TO THE MEMBER OF THE COMMISSION WITH RESPONSIBILITY FOR PERSONNEL ON 18 FEBRUARY 1981 WITH A MEMORANDUM TO THE EFFECT THAT THE DIRECTOR GENERAL HAD NO OBJECTION THERETO .

10 THE APPLICANT HAS NOT DISPUTED EITHER THE ASSESSMENT OF THE QUALITIES OF THE CANDIDATES OR THE FACTS ON WHICH THE MEMORANDUM OF 22 JANUARY WAS BASED .

11 IN THOSE CIRCUMSTANCES , THE COURT ( FIRST CHAMBER ) INVITED THE APPLICANT TO SUBMIT WRITTEN PROOF OR TO INDICATE ANY WITNESS EVIDENCE WHICH MIGHT SHOW THAT THE COMMISSION , IN MAKING THE DISPUTED DECISION , WAS INFLUENCED BY CONSIDERATIONS OTHER THAN THOSE CITED IN THE MEMORANDUM OF 22 JANUARY 1981 AND IN PARTICULAR BY ASSESSMENTS REGARDING THE APPLICANT ' S TRADE-UNION ACTIVITY OR THE ATTITUDE ADOPTED BY HIM WITHIN THE PROMOTION COMMITTEE .

12 IN HIS REPLY TO THAT REQUEST , THE APPLICANT PROPOSES THAT WITNESS EVIDENCE SHOULD BE HEARD FROM THE PEOPLE WHO WERE PRESENT AT THE MEETING OF THE LA PROMOTION COMMITTEE ON 17 FEBRUARY 1981 , IN THE COURSE OF WHICH THE PROPOSAL TO ENTER THE NAME OF ANOTHER OFFICIAL ON THE LIST OF THE MOST DESERVING CANDIDATES WAS REJECTED , ALLEGEDLY ON THE GROUND OF HIS TRADE-UNION ACTIVITIES . IN ADDITION THE APPLICANT CLAIMS THAT CERTAIN SENIOR OFFICIALS IN THE COMMISSION HAVE AN UNFAVOURABLE ATTITUDE TOWARDS TRADE-UNION ACTIVITY , ALTHOUGH HE HAS BEEN UNABLE TO ESTABLISH A PRECISE LINK WITH HIS OWN CASE .

13 THE FACTS REGARDING WHICH THE APPLICANT OFFERS PROOF DO NOT AFFECT THE DECISION NOT TO PROMOTE HIM . EVEN IF THEY WERE PROVED , THEY WOULD NOT SUPPORT THE CONCLUSION THAT THE CONTESTED DECISION WAS NOT BASED ON THE GROUNDS CITED BY THE HEAD OF THE DIRECTORATE IN WHICH THE APPLICANT WORKED IN THE MEMORANDUM OF 22 JANUARY 1981 , NAMELY THAT AS THE CANDIDATES WERE OF EQUAL MERIT PREFERENCE SHOULD BE GIVEN TO THE CANDIDATE WHO HAD GREATER SENIORITY , OR THE CONCLUSION THAT IT WAS FOUNDED ON OTHER CONSIDERATIONS , IN PARTICULAR ASSESSMENTS REGARDING THE APPLICANT ' S TRADE-UNION ACTIVITY .

14 IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

15 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THOSE INSTITUTIONS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .