2.

In examining the merits of the application I shall deal first with the applicant's second submission. It concerns the opinion, already mentioned, of the Director-General for Administration of 13 July 1971. The applicant asserts that this opinion contained criticisms which did not appear in his personal file and with regard to which he was not able to give his comments. That could constitute an infringement of the principle laid down in Article 26 of the Staff Regulations. What is more, again according to the applicant, the contested decision was taken on the basis of a comparison between non-comparable factors. The candidate appointed, who was already pesforming the duties relating to the post concerned in the competition, received praise whereas the applicant was judged on the basis of the duties which he performed at that time, namely, that of a chauffeur. As can be seen immediately, this allegation touches, at least in its first part, a problem of considerable importance. It is necessary for this purpose to clarify first of all the scope of Article 26 of the Staff Regulations, which states: ‘The personal file of an official shall contain: (a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct; (b) any comments by the official on such documents … the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed. There shall be only one personal file for each official’. When one asks whether it is really possible to base the principle invoked by the applicant on this provision, it must be admitted straight away that the text and context of the provision do not lend support to a negative reply. In my opinion, Article 26 of the Staff Regulations makes it clear that, in so far as it may be taken into consideration, any statement regarding an official's conduct must appear in his personal file. In fact the Staff Regulations contemplate only one personal file. In addition, it is necessary to give the official concerned the opportunity of making his own comments. It is only after this that an unfavourable opinion may be recorded against him. Although, in my opinion, that emerges from the text and the spirit of the provision cited, reference can be made in support of the above argument to Euler's commentary on the Staff Regulations of European Officials. In volume I of his work, at page 238, Euler insists on the fact that secondary files containing opinions on officials are illegal. He also emphasizes that complaints against officials which refer in a general way to conduct in or outside the service must appear in the personal files because they are important factors in forming an assessment. In addition, according to Euler, the validity of an opinion on an official in the service depends, in all cases, on whether it has been communicated to the official concerned and whether the latter has had the opportunity of commenting upon it. The same applies in national law relating to the public service. On this point, let me refer, for example, to Article 90 of the German law on the Staff Regulations of Federal German Officials, which states: ‘Even after termination of service the official is entitled to examine his complete personal file; all the documents concerning him shall be included therein. With regard to complaints and actual assertions which may be unfavourable or prejudicial to him, the official must be heard before these are included in his file. The official's comments must be attached to his file.’ Commentaries on this provision further emphasize that all opinions relating to the official's work must be included in the personal file; secret secondary files containing opinions of the same nature are illegal. In addition, the principle applicable is that consequences unfavourable to an official cannot be based upon a matter which does not appear in the file unless the person concerned has previously had the opportunity of expressing his own comments (see Note 2 on Article 90 in the commentary of Plog-Wiedow on the German law on the Staff Regulations of Federal German Officials). In this connexion, the statements contained in a judgment of the Bundesgerichtshof of 29 November 1956 (Neue Juristische Wochenschrift, 1957, p. 298) appear particularly important. According to that judgment, ‘It is incompatible with the situation of an official, based on a spirit of mutual confidence and frankness, that the Administration should form an unfavourable assessment of an official on the basis of matters on which he has not had the opportunity of commenting.’ Finally, the case-law of the Court also contains indications to this effect. I am thinking in particular of the judgment which the Court delivered in Case 21/70 ([1971] ECR 18). In the case which was there submitted to the Court for judgment, officers of the Commission had, during the process of making an appointment, expressed opinions with regard to the various candidates without informing them of those opinions. Since the opinions had been neither included in the personal file of the applicant in question, who had also participated in the competition for appointment, nor communicated to her, the Court spoke of a disregard of the provisions of Articles 26 and 43 of the Staff Regulations of Officials and consequently annulled the contested decision making the appointment. Applying to the present case the conclusions drawn from Article 26, we arrive at the following assessment: As I have already mentioned, the Director-General for Administration emphasized, in his memorandum of 13 July 1971, that it was apparent from several written remarks made in past years that the conduct of the applicant left something to be desired. In my opinion, this part of the opinion does not justify any criticism of the Administration of the Parliament. In fact, the findings were included in the applicant's personal file before the organization of the competition and are moreover correct. They are confirmed by a probationary report on the applicant of 1959, a periodic report of 1965 and a memorandum of 13 July 1970, in which the applicant's behaviour on 22 June 1970 (namely his refusal to convey certain persons in a service vehicle) was censured on the ground of insubordination. Furthermore, the applicant has not challenged the accuracy of the opinions supplied. As regards the memorandum which I have just cited, he merely asked, one year later, that it be withdrawn from his personal file. However, the Administration only withdrew it because it contained neither a warning nor a reprimand within the meaning of the disciplinary rules. In the same way, even if it is admitted that the memorandum from the Director-General for Administration once again mentions the matters in question, it is certainly not possible to claim that they had already been considered by the selection board and that the applicant was therefore ‘penalized’ twice. In reality, it is by no means certain that the selection board had already made its assessment: in fact, its duty is above all to give its opinion on the suitability of the candidates, in other words, their vocational capabilities. In addition, it is impossible, in my opinion, to challenge the Administration's right to take special account of certain factors which are important for the appointment procedure when it gives its opinion on the selection board's report and the observations which it contains. On the other hand, the opinion of the Director-General for Administration is the subject of objections from another point of view, because it refers to the memorandum from the Head of the Conferences Division of the Parliament of 6 July 1971, which is attached to it and which contains certain criticisms relating to a journey which the applicant made on mission to Basel in June 1971 and, secondly, because it refers to the oral complaint of a Member of Parliament, which was reported to the Director-General for Administration by another person. As for these criticisms, it is certain that they were not included in the applicant's personal file. Likewise, the applicant was unable to comment upon them or to succeed in minimizing their importance by any means of defence. Furthermore, the observations of the Director-General for Administration were used in forming an assessment and with the clear intention of showing the applicant to the appoint authority in an unfavourable light, which, having regard to the principles previously outlined with regard to Article 26 of the Staff Regulations, seems open to sharp criticism. During the procedure, the Parliament, the defendant, attempted to show that the matters cited did not have a decisive influence on the appointing authority. It asserted, in particular, that it was under- standable that that authority should decide to appoint the second candidate, because he had obtained more points in respect of suitability. It is not however possible to say whether this assertion is correct. However this may be, were it not for the said criticisms, it may be assumed that the appointing authority, when making its decision, would have taken account, above all, of the total number of points obtained by the candidates, in other words, of a situation in which the applicant would have had a good chance of appointment on account of his seniority and his participation in previous competitions. That is why it is decisive in this case that the unfavourable comments of the Director-General for Administration might have been capable of having an influence on the assessment of the candidates by the appointing authority and on the decision making the appointment. Therefore, in accordance with your previous case-law, according to which the Court cannot review assessments of this nature but only the procedure which led to them, I come necessarily to this conclusion: the contested decision making the appointment must be annulled because it appears that the procedure by which it was adopted was influenced in an illegal manner. Consequently, there is no need to deal with the second part of the first submission which I mentioned at the outset.