MORE IMPORTANT SINCE THE REPORT WAS MADE DURING A TIME WHEN THERE WAS A CONFLICT BETWEEN DR TURNER AND THE COMMISSION . THE JOINT COMMITTEE ON STAFF REPORTS WAS AWARE OF THAT FACT SINCE IT EXPRESSED THE WISH THAT THE APPEAL ASSESSOR SHOULD CONSULT DR SEMILLER .
20 IN SPITE OF THE CIRCUMSTANCES THAT HAVE JUST BEEN RELATED THE APPEAL ASSESSOR DID NOT PERSONALLY QUESTION DR SEMILLER , ALTHOUGH HE HAD NO DETAILED KNOWLEDGE OF HIS OPINION SINCE , CONTRARY TO ARTICLE 26 OF THE STAFF REGULATIONS , IT HAD NOT BEEN PLACED ON THE APPLICANT ' S PERSONAL FILE . IN THOSE CIRCUMSTANCES , THE APPEAL ASSESSOR FAILED TO FULFIL HIS OBLIGATION TO OBTAIN INFORMATION AS REQUIRED BY THE AFORESAID PROVISIONS OF THE GUIDE TO STAFF REPORTS .
21 IT MUST THEREFORE BE CONCLUDED THAT , SINCE NEITHER OF THE ASSESSORS CONSULTED DR SEMILLER AS REQUIRED BY THE GUIDE TO STAFF REPORTS , THE PROCEDURE WHICH LED TO THE CONTESTED STAFF REPORT WAS VITIATED BY THE INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT . SINCE IT IS APPARENT THAT DR SEMILLER WAS MORE FAVOURABLE TO DR TURNER , SHE HAS EVERY REASON TO CONSIDER THAT THE REPORT WAS NOT MADE ON THE BASIS OF THE FULLEST INFORMATION AND THAT SHE WAS THUS ADVERSELY AFFECTED . ON THAT GROUND THE CONTESTED STAFF REPORT MUST BE ANNULLED .
ERRORS OF APPRAISAL IN THE STAFF REPORT AND MISUSE OF POWERS
22 IN HER SECOND SUBMISSION , DR TURNER CHALLENGES THE VALIDITY OF THE ANALYTICAL ASSESSMENTS AND THE GENERAL ASSESSMENT MADE IN THE CONTESTED REPORT . IN HER THIRD SUBMISSION , SHE ALLEGES A MISUSE OF POWERS EVIDENCED BY VARIOUS CIRCUMSTANCES AND EXPLAINED BY THE FACT THAT THE REPORT WAS MADE AT A TIME WHEN THE CONFLICT BETWEEN HER AND THE COMMISSION WAS ACUTE .
23 THE COMMISSION STATES FIRST OF ALL THAT , ACCORDING TO ESTABLISHED CASE-LAW , THE COURT CANNOT SUBSTITUTE ITS OWN ASSESSMENT OF THE FACTS FOR THAT OF THE ASSESSORS . AS REGARDS THE ALLEGATION OF MISUSE OF POWERS , THE COMMISSION CONSIDERS THAT DR TURNER HAS NOT SHOWN THAT THE ASSESSMENTS CONTAINED IN THE CONTESTED REPORT WERE INTENDED TO HARM HER .
24 SINCE THE COURT HAS ALREADY HELD THAT THE CONTESTED REPORT MUST BE ANNULLED AS A RESULT OF THE INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT , IT IS NOT NECESSARY TO EXAMINE THE SECOND AND THIRD SUBMISSIONS PLEADED BY THE APPLICANT .
Decision on costs
COSTS
25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) ANNULS THE DECISION OF MR C . TUGENDHAT ESTABLISHING THE FINAL STAFF REPORT ON DR TURNER FOR THE PERIOD FROM 1 JULY 1977 TO 4 MAY 1979 ;
( 2)ORDERS THE COMMISSION TO