OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 27 MARCH 1980 ( 1 )

Mr President,

Members of the Court,

I —

Before considering the merits of the present action it is worthwhile running briefly over certain stages in the applicant's career in the service of the Communities.

Following a competition the applicant was promoted from Grade C 2 to Grade Β 5 as from 1 January 1967 and appointed “administrative assistant” in the Directorate for Internal Affairs, Library and Documentation Division of the Directorate-General for Administration.

Her posting has subsequently been frequently altered.

Until 1 June 1975 she was in Division VII-A-4, Social harmonization department, and thereafter she was “reassigned” for a trial period of six months to the Environment and Consumer Protection Service.

That “temporary” reassignment was again altered with effect from 1 October 1975: the applicant was “reassigned” for a fresh trial period of six months to Directorate V-B — European Social Fund.

On 1 December 1976 the reassignment of the applicant — curiously described as “temporary staff” — to Directorate V-B — Employment and Vocational Training (the previous decision spoke of the European Social Fund) was terminated and she and her post were transferred to the Secretariat of the Director-General in Directorate-General VII — Transport.

The tribulations of the applicant were not to stop there: by decision of the Personnel Director of 13 December 1978, taking effect from 1 December 1976, the “temporary” nature of the applicant's reassignment was retroactively terminated thus belatedly allowing a claim which she had made on 28 February 1977 and which had been rejected on 4 October of the same year.

II —

Those changes, which were apparently necessary because of the applicant's health, were not without consequence on the assessment of her work made by her assessors and on the difficulties which resulted from the point of view of her career.

Since she had been in Grade Β 3 since 1 June 1972 and had reached 48 years of age, the applicant was included in the duplicated list published on 10 March 1978 by the Personnel Directorate containing the names of some 269 officials in Category Β 3 paid from operating appropriations and satisfying the conditions of minimum seniority required for competing for promotion to Grade Β 2 during the 1978 financial year. It related to promotion “within the career bracket”. The budgetary provisions allowed the promotion of only 40 officials in all to Grade Β 2.

The applicant's name, however, was not included in the three names of officials in Directorate-General VII recommended by the Directors-General in order of priority for promotion and published on 26 April 1978.

Nevertheless, apart from the list of those three names the relevant Promotion Committee received the list of all the officials eligible for promotion, including the applicant, and according to the answer dated 13 November 1978 to the complaint made by the applicant on 20 July 1978 her case “was the subject of special consideration by the Promotion Committee for Category Β as were those of all officials eligible for promotion who had not been proposed by the Directorates-General but had considerable seniority by reason of age and length of service and considerable seniority in the grade”.

Ultimately from among the three names referred to only that of Mrs J. S. was included from Directorate-General VII in the list of 40 officials considered to be most deserving of promotion to Grade Β 2 and that list was notified to the staff as from 17 July 1978. It is apparent from that publication that the appointing authority had adopted that list in accordance with the opinion of the relevant Promotion Committee and that the latter had not used the opportunity to include in its provisional list a number of officials 25 % higher than the number of posts “likely to be available” for promotions to Grade Β 2, that is 50 names.

The formal decision was taken on 24 July 1978 and notified to the staff on 23 August 1978. It is the express rejection on 13 November 1978 by the Member of the Commission with responsibility for staff matters to the complaint made by the applicant on 20 July 1978 concerning the lists brought to the knowledge of the staff on 26 April 1978 and 17 July 1978 which is the subject of the present application.

III —

1. The Decision of 24 July 1978 is based inter alia on the following grounds: “They (the Director for Personnel, the Director for Personnel and Administration (Luxembourg) and the Director of the Publications Office) have had an opportunity of referring to the personal files and of considering the staff reports of all officials eligible for promotion. They have compared the merits of all the officials eligible for promotion.” As regards the applicant's staff reports it must be observed that she is right in saying that as far as she is concerned that is not correct: neither the departments, the relevant Promotion Committee nor the appointing authority had available to them the last two staff reports on the applicant covering the years 1973 to 1975 and 1975 to 1977. That lacuna was pointed out in the minutes of the meetings of 7 and 13 June in Luxembourg and Brussels of the Promotion Committee for Category B: “finally the Committee noted that the last staff report (1975 to 1977) was missing from the personal files of many officials. The representatives of the directors-general and of the heads of department were asked to remedy the situation by the next meeting of the Committee.” That meeting took place on 26 June but just as at the previous two meetings the two reports relating to the applicant were not produced. The staff report which is provided for in Article 43 of the Staff Regulations and which is made only every two years is an indispensable factor for assessment each time that the career of the official is the subject of consideration by the appointing authority and especially in the case of promotion. The first paragraph of Article 45 (1) provides: “Promotion shall be by decision of the appointing authority. ... Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them”. It is certainly true that it is not for the Court to substitute its discretion for that of the administrative authority in this field but it has the duty to review the ways and means which may have led to that assessment. In the absence of a staff report the authority is not in a position properly to exercise its discretionary power. In the case of promotion the reports are even more important since in the case of competitions, at least competitions based on tests, it is the latter which constitute the main criterion. Article 45 of the Staff Regulations cannot be applied unless Article 43 is itself complied with. As I said in my opinion in the case of Hebrant née Macevicius v Parliament (Case 31/76 [1977] ECR 883 at p. 895-896) “Such reports constitute measures which the appointing authorities within the institutions must in effect act upon, which are thus binding on those authorities and which are of definite and even obvious importance in respect of the development of the careers of officials, particularly as regards any possible promotion ...”. “For you have noted”, I added (at page 898), “not only the importance of the biennial periodic reports as regards the evolution of the careers of officials, but also the mandatory nature of periodical and regular reports. It is obvious that in so far as it is principally on the basis of those reports that the possibilities of promotion and access to internal competitions are examined, the obligation imposed on the institutions by Article 43 of the Staff Regulations of Officials to comply with that frequency is a fundamental rule. Disregard of it is such as to vitiate the report procedure, infringe the rights of officials and exert an unfavourable influence on the evolution of their careers.” I cited (at p. 899) Advocate General Dutheillet de Lamothe as saying “the annual or biennial report and its communication are ... no more than a farce, if it is not the report which is taken into account in considering the qualifications of the servant” (Opinion in the Rittweger case, Case 21/70, [1971] ECR at p. 21; judgment of 3 February 1971, [1971] ECR 7). The Court itself has stated (Hebrant née Macevičius, at p. 889): “It is clear that these periodic reports generally constitute a more or less important factor each time the official concerned is considered for any promotion or takes part in competitions within the meaning of Article 29 of the Staff Regulations.” As for “consideration of the comparative merits of the officials eligible for promotion” I see evidence that the applicant's case has not been considered with the necessary care in the fact that it was not until 1 December 1978 that the Member of the Commission with responsibility for staff matters, who had dismissed the applicant's complaint the previous 13 November, became aware that she had not been assigned to Directorate-General VII-A-4 but tq the Secretariat of the Directorate-General in Directorate-General VII-Transport and that, as I stated at the beginning, on 13 December 1978 the Director for Personnel retroactively terminated, with effect from 1 December 1976, the applicant's “temporary” assignment to Directorate V-B-European Social Fund which was notified to her on 17 October 1975. Without prejudging what will result from the staff report on the applicant covering the period 1975 to 1977 I note finally that it is apparent from the file that the Joint Committee on Staff Reports, to which the report relating to the period 1973 to 1975 had been submitted and of which the agent representing the Commission in the present case was a member, “found that everywhere there had been disregard and therefore incorrect application of the established rules” and took the view on 17 February 1978 that that report had not been drawn up properly. In these circumstances I am inclined to think that neither the Promotion Committee nor the appointing authority knew precisely what the applicant's posting and real duties were. The description of those duties is the subject of a special section in the staff report and, as we have seen, the last two reports relating to the applicant were not available either to the Committee or to the appointing authority at the appropriate moment.

2. If this first submission were recognized as well founded it would justify annulling the express rejection of the applicant's complaint. She further complains that the Promotion Committee responsible did not apply paragraph 6 of the General Provisions for Implementing the Procedure for Promotion within a Career Bracket (Commission Decision of 21 December 1970 as amended by the Decision of 14 July 1971), according to which “The number of officials to be entered on the provisional lists [of officials considered to be most deserving of promotion] shall be approximately 25 % higher than the number of posts likely to be available in each relevant grade”. The fact was cited only in the reply but the matter was already in question at the meeting on 26 June 1978 since at that time the Promotion Committee had already unanimously recommended to the appointing authorities “to decide in each grade the maximum number of promotions having regard to the information made available to the staff”. It relates to Administrative Notices No 196 of 26 April 1978, subsequently amended somewhat obscurely by the Administrative Notices No 205 of 17 July 1978, both of which are annexed to the defence. As for the allegation that this is a “fresh” issue, I agree like Mr Warner, the First Advocate General, in his opinion in Case 30/78 The Distillers Company Limited of 12 March 1980, with the opinion expressed by Mr Advocate General Capotorti in Case 112/78, Kohor v Commission [1979] ECR 1573 at p. 1581, which opinion was by implication accepted by the Court in that case. Mr Capotorti stated that “too rigid an interpretation of Article 42 (2) [of the Rules of Procedure] does not seem justified: the important point is to establish whether the party against whom the new complaint has been raised has been handicapped in resisting it as a result of the other party's conduct of the procedure”. In the present case the Commission was able to make observations both in writing and at the hearing (and it certainly did not fail to do so) on that aspect of the matter. All the arguments put forward by the Commission against the admissibility of the claim appear to me ill-conceived even if Article 42 (2) is strictly interpreted. I therefore think this claim is admissible. I consider it also well founded. The last subparagraph 6 of the aforementioned “General Provisions for Implementing the Procedure for Promotion ...” states: “However, the Committees shall be entitled to frame proposals, stating reasons, for promotion of numbers of officials above or below that number.” I find no reason stated to justify the fact that the Committee did not include 25 % more names on the list notified to the staff on 17 July 1978 to which the appointing authority could not add any name and from which it ultimately did not depart. The Committee thus restricted the discretion given to the appointing authority by Article 45 and that fact adversely affects the applicant for, although it is true she would not necessarily have been included among the ten additional officials, it is also obvious that the possibility cannot be ruled out that she may have been included: from that aspect she has thus also been deprived of an opportunity of promotion.

IV —

If these two claims or at least one of them is upheld by the Court the express rejection of the applicant's complaint must be annulled. The question then arises as to the measures needed to implement such a judgment ordering annulment. Although that question is primarily a matter for the institution from which the contested measure emanates, I should like to make some observations on the subject in view of the catastrophic consequences which such annulment would involve according to the Commission.

In the judgment of 23 January 1975 in the Dapper case ([1975] ECR 35) the First Chamber simply held, in accordance with the opinion of Mr Advocate General Warner, that consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done, failed to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.

The Second Chamber held (judgment of 14 July 1977 in the Geist case [1977] ECR 1419) that “it is not in dispute” that an official suffers non-material damage resulting from the fact that he possesses a personal file which is irregular and incomplete, when the compulsory periodic report is a guarantee to an official for the regular progress of his career.

The case of Ditterich v Commission on which the First Chamber delivered judgment on 12 October 1978 ([1978] ECR 1855) concerned the annulment of a transfer decision and on that occasion the procedure for promoting an official in Grade A 5 paid from research appropriations was at issue.

In his opinion in that case (at p. 1871) Mr Advocate General Warner stated “I confess, however, that I entertain doubts as to whether those Provisions [he was referring to the General Provisions for Implementing the Procedure for the Promotion of Staff paid from Research Appropriations, which are very similar to the provisions in question in the present case] are in other respects compatible with the Staff Regulations. Article 45 must be read in conjunction with Articles 4, 27 and 29 of the Regulations. Together those articles seem to me to lay down a procedure for filling each vacant post by promoting or otherwise appointing to it whoever is best qualified for it. A mass annual selection of persons to be promoted, unrelated to the demands of any specific post, seems to be at variance with that procedure”. I also think that the necessary corrective to the massive and indiscriminate nature of such procedure is provided by consultation of the staff reports for otherwise there is a risk of their becoming arbitrary.

The reason why Mr Advocate General Warner did not propose the annulment of the promotions in question, as he had done in the Dapper case, is that such annulment “could cause to officials whose names were on it [that is the list of officials for promotion] hardship disproportionate in the aggregate to the wrong suffered by the applicant”. Since the applicant did not ask for damages his action was ultimately dismissed. However, in the case of Fiddelaar (Case 44/59 [1960] ECR 535) even where the conclusions were lacking due form the Court, of its own motion, ordered the payment of damages.

I should like to say that the French Conseil d'Etat has not hesitated (this is only one example among many others) to annul (5 May 1961, Juste Rec. p. 302) all the appointments of “administrateurs de classe exceptionnelle” of the Ministry of Finance for 1958 because the marks relating to an administrator who had not been promoted had not been passed to him.

I still think that the only effective remedy to a practice which seems unfortunately frequent is not to award damages, where they are asked for in the conclusions, but to provide redress as regards the applicant's career. It is not all necessarily a question of money and the best means of improving the conduct of administrative procedures is not to quantify the damages.

In the present case it is not a matter of calling in question the promotion to Grade Β 2 of 40 officials but at most the single promotion which has been allocated to Directorate-General VII-Transport, which in itself is regrettable enough. Since it is no longer possible to add the applicant's name to the list of officials considered to be most deserving of promotion during the 1978 financial year since the validity of that list expired on 31 December 1978, I think the most satisfactory solution to restore the applicant's rights is to recognize that she has the right to be included automatically in the next list.

In this respect I think the Court can be guided by certain precedents: in the case of Richez-Parise v Commission (judgment of 28 May 1970, [1970] ECR 325) the First Chamber did not hesitate to reopen a period which had expired; that same Chamber followed the same course in the Fiebn case (judgment of 9 July 1970, [1970] ECR 547).

The use of the power to make such an order I leave, however, to the Court's discretion and for my part I propose that the express rejection of the applicant's complaint of 13 November 1978 should be annulled and that the Commission should pay the costs.

( 1 ) Translated from the French.