Judgment of the Court (Second Chamber) of 15 March 1989. - Malcolm Bevan v Commission of the European Communities. - Officials - Staff reports - Promotion - Action for damages. - Case 140/87.



European Court reports 1989 Page 00701

Pub.RJ Page Pub somm



Summary

Parties

Operative part



Keywords

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1.Officials - Action - Staff report - Prior submission of an official complaint - Optional

( Staff Regulations, Arts 90 and 91 )

2.Officials - Drawing-up of staff report - Delay - Irregularity incapable of leading to annulment - Award of compensation - Conditions - Damage - Maladministration

( Staff Regulations, Art . 43 )

3.Officials - Staff report procedure - Review by the Court - Limits

( Staff Regulations, Art . 43 )

4.Officials - Promotion - Consideration of comparative merits - Procedures - Taking account of staff reports - Incomplete personal file - Consequences

( Staff Regulations, Arts 43 and 45 )

5.Officials - Promotion - Administration' s discretion - Review by the Court - Limits

( Staff Regulations, Art . 45 )

Summary

1.An action against a staff report lies as from the date on which that report may be regarded as final and it is not possible to require in addition the prior formality of the submission of a complaint under Article 90(2 ) of the Staff Regulations ( judgment of 19 February 1981 in Joined Cases 122 and 123/79 Schiavo v Council (( 1981 )) ECR 473 ).

2.The delay in completing the reporting procedure cannot of itself affect the validity of the staff report in any circumstances or, in consequence, justify the annulment thereof ( judgment of 9 February 1988 in Case 1/87 Picciolo v Commission (( 1988 )) ECR 711 ).

However, the absence of a staff report may put the official concerned in an uncertain and anxious state of mind with regard to his professional future, giving rise to non-material damage, where the existence of maladministration is established ( judgment of 14 July 1977 in Case 61/76 Geist v Commission (( 1977 )) ECR 1419 ).

3.Staff reports contain assessments whose substance cannot be reviewed by the Court save in order to identify manifest factual errors or misuse, by the persons involved in the drawing-up of the reports, of their power of appraisal ( judgment of 5 May 1983 in Case 207/81 Ditterich v Commission (( 1983 )) ECR 1359 .

4.The fact that the personal file of a candidate is irregular or incomplete, as a result in particular of the absence of a staff report, is not a sufficient ground, when the comparative merits of candidates are examined, for the annulment of promotions unless it is established that this was capable of having a decisive effect on the procedure ( judgment of 10 June 1987 in Case 7/86 Vincent v Parliament (( 1987 )) ECR 2473 ).

5.In considering the comparative merits of the candidates for promotion pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion, and in that connection the Court' s review must be confined to the question whether the administration has remained within reasonable bounds and has not used its power in a manifestly incorrect way . The Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority ( judgment of 4 February 1987 in Case 324/85 Bouteiller v Commission (( 1987 )) ECR 529 .

Parties

In Case 140/87

Malcolm Bevan, an official of the Commission of the European Communities, represented and assisted by C . Vajda, barrister, of Gray' s Inn, and G . Vandersanden, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of J . Biver, 8 rue Zithe, 1011 Luxembourg,

applicant,

v

Commission of the European Communities, represented by P . Kalbe, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the applicant' s staff report for the period 1983-85 and the Commission' s decisions concerning the promotion of officials from Grade A 5 to Grade A 4 for 1986, from which the applicant was excluded, and for damages,

THE COURT ( Second Chamber )

composed of : T . F . O' Higgins, President of Chamber, G . F . Mancini and F . Schockweiler, Judges,

( the grounds of the judgment are not reproduced )

hereby :

Operative part

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .