CELEX: 61981CC0207
Language: en
Date: 1983-03-17
Title: Opinion of Mr Advocate General Reischl delivered on 17 March 1983. # Kuno Ditterich v Commission of the European Communities. # Application for annulment of a periodic report - Application for damages - Alternative application for evidence to be given by witnesses. # Case 207/81.

OPINION OF ADVOCATE GENERAL
      REISCHL
      DELIVERED ON 17 MARCH 1983 (
            1
         )
      
         Mr President
      
      
         Members of the Court,
      
      The applicant in this case, Kuno Ditterich, took up his duties with the European Atomic Energy Commission in 1954 and is now employed as an official in the scientific service in Grade A 5, Step 8, at the Ispra research establishment of the Joint Research Centre (JRC). In his application he contests his periodic report for the period 1 July 1975 to 30 June 1977 drawn up pursuant to Article 43 of the Staff Regulations.
      In. part 6 of the report (Analytical assessment), which Mr Bishop, the Director of Department C, to which the applicant belonged until 1976, signed on 20 December 1979 after consulting Mr Hannaert, the Head of the Chemistry Department, and Mr Helms, the Director of Department A, to which the applicant now belongs, the applicant's ability and efficiency are assessed as above average while his conduct in the service is judged to be average. In part 8 (General assessment) the report states:
      “Mr Ditterich certainly has the right abilities for systems analysis which, together with a greater spirit of cooperation, could be of more benefit to himself and to the JRC programme.”
      On 17 January 1980 the applicant, relying upon the second paragraph of Article 43 of the Staff Regulations, made a written comment on that assessment requesting that the last clause be struck out on the ground that it did not correspond with the objectively verifiable facts since in the period of assessment in question he wrote, inter alia, a number of published works in collaboration with colleagues. In his view the phrase of more benefit to himself... represents the assessor's subjective opinion and conflicts with the above-average appraisal of his conduct in the service in his previous report.
      On 26 March 1980 Mr Mas, Deputy Director-General of the Joint Research Centre and Director of the Ispra research establishment, confirmed the periodic report in his capacity of appeal assessor following a talk with the applicant. The latter then appealed to the Joint Committee on Staff Reports which on 15 July 1980 delivered an opinion regretting that no express reasons were given to explain why the assessment of the applicant's conduct in the service was less favourable than in his previous report.
      When asked to reconsider the report with regard to that assessment the appeal assessor informed the applicant in a letter dated 22 October 1980 that after consulting Mr Bishop he had added to the report the following reason for the appraisal of his conduct in the service :
      “During this period Mr Ditterich systematically questioned all his superiors' decisions concerning him.”
      By a letter dated 1 December 1980, which was received at the General Secretariat of the Commission on 16 December 1980, Mr Ditterich lodged a complaint against the definitive version of his report pursuant to Article 90 (2) of the Staff Regulations. Since he did not receive any reply within the period stipulated in that provision he brought an action on 8 July 1981. After his complaint had been expressly rejected in a letter dated 11 August 1981 from the Vice-President of the Commission, Mr Davignon, the applicant requested the Court in his reply to:
      
               —
            
            
               Declare his periodic report for the period 1 July 1975 to 30 June 1977, the appeal assessor's decision of 22 October 1980 and also the decision contained in the Commission's letter dated 11 August 1981 to be null and void;
            
         
               —
            
            
               Order the defendant to pay the applicant, on account of the irregularities and delay which occurred, such sum as the Court considers fair and equitable by way of compensation for the material and nonmaterial damage;
            
         
               —
            
            
               In any event order the defendant to pay the costs.
            
         My opinion is as follows:
      1. The first head of claim
      Under this head of claim the applicant asks the Court to annul his periodic report for the period 1975 to 1977, the definitive version of which was adopted after the appeal assessor's decision of 22 October 1980. He objects first to the general assessment according to which, despite having the right abilities for systems analysis, he could, with a greater spirit of cooperation, have been of more benefit to himself and the Joint Research Centre programme. Secondly, he objects to the appraisal of his conduct in the service as “average”, which was less favourable than the previous appraisal and was later justified on the ground that he systematically questioned all his superiors' decisions concerning him.
      
               (a)
            
            
               The applicant's first submission is that there is an obvious contradiction between those assessments and the facts on which they are based. He maintains that his willingness to cooperate is quite plain from the fact that during the period in question he wrote a number of articles in collaboration with colleagues. There can be no question, either, of his systematically questioning all his superiors' instructions during that time. That criticism ought in any case to have been substantiated by specific facts.
               When this submission is considered it should be remembered at the outset that for reasons which arc quite understandable the Court has hitherto always refused to substitute its own assessment of officials' abilities and performance for that which the Administration is required to give by Article 43 of the Staff Regulations (cf. the cases referred to on page 11 of the Report for the Hearing (
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                  )). In so doing the Court has always stressed that periodic reports consist of complex value judgements which by their very nature are not capable of objective verifixation and has therefore merely confined itself to verifying whether they are vitiated by lack of authority, irregularity of form or procedure or by manifest error or misuse of discretionary power.
               To anticipate the result, however, I can see no such serious defects in this case and they alone could make the contested report unlawful. Admittedly the general assessment in question is not absolutely clear and unequivocal and to some degree may not even necessarily relate to ability and performance. However, I cannot agree with the applicant when he says that it is self-contradictory, conflicts with the analytical assessment and has no meaning at all. When read together with the analytical assessment it means in fact that despite having above-average ability and efficiency the applicant could be of more benefit to the Joint Research Centre if his willingness to cooperate were greater.
               The meaning of the statement becomes perfectly clear if regard is had to the reason which the appeal assessor later gave at the request of the Joint Committee on Staff Reports to justify the fact that, by contrast with his previous report, his conduct in the service was assessed as average, namely that the applicant systematically questioned all his superiors' instructions. Contrary to what the applicant thinks, that finding does not however mean that his conduct in the service ought to have been marked as below average and not as average. The correct view must simply be that such behaviour is not considered to be serious enough to render his conduct in the service unsatisfactory yet, on the other hand, it would not be appropriate to mark his conduct in the service as above average.
               Contrary to the opinion held by the applicant, since the reason provided is quite clear and explicit about the facts on which it is based, it cannot be objected in the case of a periodic report, which has to be issued in accordance with Article 43 of the Staff Regulations and is necessarily drafted very concisely, that the facts on which that explanatory statement is based have not been sufficiently specified.
               Moreover, the applicant has not in my view succeeded in showing that those findings conflict with the facts. In particular, the fact that his name frequently appeared as coauthor of various articles during the period in question provides no evidence, as the Commission rightly points out, of his willingness to cooperate effectively at his place of work. Nor can I agree with the applicant when he says that the statement of reasons later provided by the appeal assessor is wrong on the ground that the most for which he may be criticized is the disclosure of papers he had written, whereas he certainly did not systematically question all his superiors' instructions. Here again it must be borne in mind that that statement was simply intended to explain why the applicant's conduct in the service was assessed as average, and thus by no means unsatisfactory; it cannot therefore be considered serious enough for him to be charged with misconduct on the ground that the action complained of was repeated. It is therefore quite plausible for the Commission to assure the Court that the applicant's file contains no comments about his behaviour in response to oral instructions from his superiors and it is within the assessor's discretion to take that into consideration in assessing the applicant's conduct in the service which necessarily involves a subjective assessment the correctness of which cannot be reviewed by the Court.
               Lastly, the fact that the appeal assessor did not take up his duties at the Ispra research establishment until after the end of the period of assessment in question does not constitute an irregularity of form. According to paragraph B.8.3.1. of the November 1973 version of the Guide to Staff Reports in force at the material time, the role of the appeal assessor is to tone down the dispute by hearing both sides. This is unquestionably what happened in this case. In particular, the applicant had the opportunity when he met the appeal assessor on 5 March 1980 to put his case and point out any errors before the passage in question was inserted in the report. The applicant had the same opportunity to rectify matters when he met the assessor on 11 January 1980.
            
         
               (b)
            
            
               These considerations make it clear that the applicant's second submission, namely that the assessment made by the assessor and the explanation given by the appeal assessor for the mark awarded for conduct are inconsistent, cannot be a ground for annulling the report either.
               As I have already explained, the statement which the appeal assessor later added to the report at the request of the Joint Committee on Staff Reports was not a new, adverse appraisal, as the applicant believes, but, it is to be assumed, was merely intended to justify the assessment which was less favourable than that in the previous report.
            
         
               (c)
            
            
               It follows from what I have said so far that the third submission, namely that the reason given by the appeal assessor was ambiguous, must be rejected as well. To my mind it cannot be seriously doubted that his comment, which was made for the express purpose of explaining the appraisal of the applicant's conduct in the service, cannot relate to either his ability or his efficiency in the service.
            
         
               (d)
            
            
               At the hearing the applicant expressly stated that he no longer wished to pursue the fourth, fifth and eight submissions which he had originally put forward. Those submissions were that the assessor and appeal assessor should not add any comments to the report if the mark awarded is average, that the report was not written in the applicant's native language and that the Commission's reply to his complaint is void. It therefore merely remains to consider the applicant's seventh submission by which he complains of a procedural defect. In his view, it follows from the general remark on page 149 of the 1973 version of the Guide to Staff Reports that after a complaint has been lodged the Commission must give its decision before the period for reply stipulated in Article 90 (2) of the Staff Regulations has expired and after consulting the Joint Committee on Staff Reports.
               That general remark reads as follows :
               “When the Joint Committee on Staff Reports has given a negative opinion (see heading C.3.a) or when the appeal assessor has taken a final decision (see heading C.3.b), officials are entitled to lodge a complaint under Article 90 of the Staff Regulations. The Joint Committee must be consulted regarding such a complaint. It will then be for the Commission, as appointing authority, to give a final decision on it.”
               In answer to that argument the general point must be made that, no matter how it may be legally classified, the Guide to Staff Reports ranks below the Staff Regulations in any event and cannot therefore derogate from the mandatory procedural provisions of the Staff Regulations according to which the absence of any reply to a complaint within the prescribed period must be considered to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.
               Furthermore, the meaning and purpose of such a derogation would not be immediately clear. On a proper view that general remark, which is at the end of the chapter dealing with references to the Joint Committee on Staff Reports and beginning with a note on the principle of preliminary proceedings, can, as the Commission rightly points out, only be understood as indicating that after the Joint Committee on Staff Reports has given a negative opinion or the appeal assessor has come to a final decision a complaint under Article 90 of the Staff Regulations may be lodged. Obviously, the whole point is to ensure that the matter is referred to the Joint Committee on Staff Reports at least once before the Commission replies to the complaint. If this has been done and the appeal assessor has complied with the Committee's request, it would be pointless for the Committee to have to deal with the matter a second time in connection with the complaint since it has no power to substitute its own assessment for that of the assessor. Therefore it is not possible to infer from the paragraph headed “General” that after the Joint Committee on Staff Reports has been consulted more than once the Commission has any duty to reply to the complaint within the period stipulated in Article 90 (2) of the Staff Regulations, although I should in any case emphasize again that in my view such a failure to reply is not consonant with good administration.
            
         2. The claim for damages
      The applicant's sixth submission is that the Commission was guilty of maladministration in not drawing up the report for the period 1975 to 1977 until after the next reference period from 1977 to 1979 had ended. That delay was made worse, he contends, by the fact that the appeal assessor did not comply with the request made by the Joint Committee on Staff Reports on 15 July 1980 within eight days as required by the Guide to Staff Reports, but added the statement justifying the assessment of the applicant's conduct in the service only on 22 October 1980. Owing to that delay which was reprehensible and caused his personal file to be incomplete during the period in question, he claims that he suffered material or nonmaterial damage because his chances of promotion were reduced.
      In reply the Commission points out that the Guide to Staff Reports does not lay down any strict time-limit for the drawing up of periodic reports and by way of defence maintains that the delay was caused by an internal reorganization which meant that several of Mr Ditterich's superiors or former superiors had to be consulted. Furthermore, the applicant can prove neither material nor nonmaterial damage as during the time in question only an infinitely small proportion of officials eligible for promotion were actually promoted and, what is more, their reports were on the whole no worse than the applicant's.
      As to that argument, I cannot however agree with the Commission that delay in drawing up periodic reports does not constitute maladministration. Article 43 of the Staff Regulations provides in fact that a periodic report on an official's ability, efficiency and conduct in the service must be drawn up at least once very two years. As the Court stressed in inter alia the Geist case, (
            3
         ) the report “must compulsorily be drawn up for the good administration and the rationalization of the services of the Community and in order to safeguard the interests of officials. It constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration. One of the bounden duties of the administration is therefore to ensure that that report is drawn up periodically on the dates laid down by the Staff Regulations and that it is drawn up in proper form”.
      In my view it is clear from the letter and spirit of that rule the report must be drawn up within a reasonable time after the end of the period which it covers and at all events before the end of the next reference period. As the Court held in the Geist case, (
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         )failure by the Commission to do so constitutes a breach of the Staff Regulations.
      Finally, I agree with the applicant that such delay cannot be defended or excused on the ground that, as the applicant had been employed in several different departments, several of his superiors had to be consulted, or on the ground that the appeal assessor, Mi-Mas, had just taken up his duties at Ispra. It only remains to be said that in a relatively small, self-contained administrative unit like the Ispra research establishment it should not, with a little goodwill, take more than two years to consult the various superiors and the arrival of newcomers to posts ought not to cause the rights guaranteed by the Staff Regulations to be infringed.
      This raises the further question whether the applicant has suffered material damage as a result of the delay in the drawing up of his report. Such damage, which, as the Court held in the Gratreau case, (
            4
         ) requires “that the irregularity established by the Court might have had a decisive influence on the promotion procedure”, does not however appear to me to have been adequately demonstrated. It must be remembered that, by contrast with the Oberthiir case (
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         ) which he cites, the applicant did not during the period in question challenge the promotion of any other official on the ground that he was at a disadvantage in the promotion procedure because his periodic report had not been drawn up in good time. Nor has he provided the Court with any evidence that his chances of promotion were actually reduced as a result of the administration's omission. Relevant here, not least, are the figures which in my view show that the damage which the applicant claims to have suffered has not been adequately established. The Commission has stated that in 1979 only eight officials were promoted from amongst 208 eligible for promotion. In 1980 the ratio was 5 to 203, in 1981 0 to 201 and, finally, in 1982 0 to 207. That means that during those four years only 13 officials were promoted from 809 officials eligible for promotion.
      On the other hand, in view of the considerations on which the Geist judgment (
            6
         ) is based, I think that there is justification for awarding the applicant compensation for the nonmaterial damage which he has suffered from the fact that his personal file was not properly maintained or complete whereas the compulsory report is meant to guarantee an official proper career development. Even though the delay in this case was not so flagrant as in Geist, the fact still remains that the absence of reports for which the appointing authority alone must be responsible has made the applicant uncertain and worried about his future as an official. An award of compensation for the nonmaterial damage seems to me all the more appropriate because, as was disclosed in Case 102/74 (
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         ) (in which, however, the action was subsequently withdrawn), the applicant's reports for 1969 to 1971 and 1971 to 1973 were not notified to him until the middle of 1975. I ought not to fail to mention the. other irregularities relating to earlier periodic reports of the applicant. Those emerge in particular from the opinion of Mr Advocate General Warner of 13 July 1978 in the previous Ditterich case (
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         ) to which I would refer. In my view a token amount of BFR 10000 ought however be enough to compensate the applicant.
      3. Costs
      Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs. However, under Article 70 of those rules costs incurred by the institutions in proceedings by servants of the Communities must be borne by the institutions. Since the applicant has in my view been only partly unsuccessful, the Commission ought to bear half his costs.
      
               4.
            
            
               To sum up, I therefore suggest that the first head of claim should be rejected and that the Commission should be ordered to pay the applicant damages of BFR 10000 for its failure to draw up the periodic report for 1975 to 1977 in due time. Consequently, the Commission must pay its own and half of the applicant's costs. The applicant must bear half his own costs.
            
         (
            1
         )	Translated from the German.
      (
            2
         )	Translator's note: These arc: Case 31/76 Macevičiu v Parliament [1977] ECR 883. Kilsteri Parliament [1976] ECR 1685. Case 29/70 Marcalo v Commission [1971] ECR 2-13 and Joined Cases 35/62 and 16/63 Lemy v High Authority of the £CSC [1963] ECR 197.
      (
            3
         )	Judgment of 14 July 1977 in Case 61/76 Jcan-Jacqum Geist v Commission of the European Communities [1977] ECR 1419.
      (
            4
         )	Judgment of 17 December 1981 in Joined Cases 156/79 and 51/80 Pierre Gratreau v Commission of the European Communities [1981] ECR 3139.
      (
            5
         )	Judgment of 5 June 1980 in Case 24/79 Dominique Noëlle Oberthiir v Commission of the European Communities [1980] ECR 1743.
      (
            6
         )	Judgment of 14 July 1977 in Case 61/76 Jean-Jacques Geist v Commission of the European Communities [1977] ECR 1419.
      (
            7
         )	Case 102/74 Kuno Ditterich v Commission of the European Communities, withdrawn.
      (
            8
         )	Judgment of 12 October 1978 in Case 86/77 Kuno Ditterich v Commission of the European Communities [1978] ECR 1855.