CELEX: 61982CC0060
Language: en
Date: 1982-12-02 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 2 December 1982. # John Philip Cowood v Commission of the European Communities. # Official - Decision not to promote. # Case 60/82.

OPINION OF MR ADVOCATE GENERAL REISCHL
   DELIVERED ON 2 DECEMBER 1982 (
         1
      )
   
      Mr President,
   
   
      Member of the Court,
   
   The applicant in this case, Mr Co wood, who has been in the service of the Commission since 1974 and is at present an official in Grade LA 4 in the Directorate General for Personnel and Administration, English Translation Division, applied for a post on 19 November 1980 as head of a translation group.
   By a memorandum of 23 January 1981 the Director of Translation, Documentation, Reproduction and Library, Mr Ciancio, informed the Director of Personnel, Mr Baxter, of his recommendations for the vacant post. As regards the applicant's candidature he observed inter alia:
   “Mr Cowood is ... in competition with another very experienced head of group. As the two candidates are of equal merit I consider the more suitable candidate to be Mr Schäfer, who has greater length of service and seniority as a reviser in Grade LA 4. However, I should like to draw attention both to Mr Cowood's merits and to his good work.”
   On 18 February 1981 the Director General of Personnel and Administration, Mr Baichère, notified Mr O'Kennedy, the member of the Commission with responsibility for personnel, of the promotion nominations for the post in question and informed him that he had no objections thereto. As a result Mr O'Kennedy decided to appoint Mr Schäfer as head of a group in the English Translation Division. Accordingly Mr Cowood was informed on 19 March 1981 that the appointing authority was unable to accept his application for the vacant post as head of a translation group. On 22 June 1981 Mr Cowood lodged a complaint through official channels against that decision under Article 90 (2) of the Staff Regulations, on the ground that his rejection had been based solely on his trade-union activity. The Commission rejected his complaint by a decision of 25 October 1981, which was notified to the applicant on 16 November 1981.
   On 11 February 1982 Mr Cowood brought an action for annulment of the Commission's decision of 19 March 1981 and of its rejection of 15 November 1981 and for an order that the Commission should pay compensation for the nonmaterial damage which he had suffered.
   My opinion on this case is as follows:
   
            1. 
         
         
            The Commission considers that Mr Cowood's application for annulment of the rejection of his complaint is, by virtue of well-established case-law of the court, inadmissible inasmuch as it merely confirms the rejection of 19 March 1981. In the applicant's view, on the other hand, the rejection of the complaint is to be seen as an independent decision which adversely affects him and which was made in an attempt to obscure the real motives behind the decision not to promote him by making false allegations.
            As that claim is closely linked with the question whether the action is well founded it seems appropriate first to give an opinion on that matter.
         
      
            2. 
         
         
            In that regard, the applicant submits essentially that the failure to consider his application is closely linked with an incident which occurred in the course of a meeting of the LA Promotion Committee for 1980 held on 17 February 1981, in which he took part as staff representative. At that meeting the applicant's proposal to include the name of another official on the list of candidates suitable for promotion was, according to the applicant, rejected by the Director General of Personnel on the ground, inter alia, that the official was well known as a trade-union representative and that his activity as such left him insufficient time for his work as a translator. Subsequently the applicant sought unsuccessfully to have a statement to that effect addded to the minutes of the meeting. In his view, that fact, together with the incident which occurred at the meeting, is evidence not only of bias in the Promotion Committee but also of the fact that certain senior officials in the Directorate General for Personnel and Administration have an unfavourable attitude towards trade unions. Indeed, it reveals the motive behind the failure to grant his application. This view is also supported by the fact that with the exception of the applicant all the former coordinators of specialized groups in the English Translation Division have been appointed as heads of translation groups. It follows that the failure to grant his application constitutes an infringement of Article 1 of Annex II to the Staff Regulations of Officials of the European Communities and the second paragraph of Article 13 of the Agreement on Relations between the Commission and Trade Unions and Staff Associations, of 20 September 1974, which are designed to guarantee that officials' careers are not adversely affected by reason of their activity as staff representatives or in connexion with trade unions. In addition the failure to grant his application constitutes a breach of the general principles governing freedom of opinion as regards thought, politics and trade unions.
            Rejecting that allegation, the Commission states that, quite apan from the fan that the applicant has misinterpreted the observations in question, trade-union activity has never been an obstacle to promotion. In particular there is no link between the events which took place in connection with the promotion of the other official and consideration of the applicant's candidature, which was not accepted on purely objective grounds.
            As those opposing submissions show, the outcome of the anion depends on whether the decision rejecting the applicant's candidature, adopted by the appointing authority at its meeting on 17 March 1981 and notified to him on 19 March 1981, was based on extraneous considerations. It must be established whether or not the decision was taken on the basis of the recommendation made by Mr Ciancio, the Director responsible for translation, to which neither Mr Baxter nor Mr Baichère raised any objection when it was forwarded to them through official channels. It is not disputed that that recommendation, which gives preference to Mr Schäfer, is based on objective criteria. In that respect Mr Ciancio expressly emphasized that Mr Schäfer and the applicant were of equal merit and that preference was given to the former solely on the grounds of his greater length of service. The objective nature of that criterion is shown by the wording of the vacancy notice which required inter täta that the candidates should be experienced translators and revisers and, in addition, should possess management qualitities evidenced by experience of work involving organization, coordination and rationalization in the relevant field.
            All that remains to be established therefore is whether the decision of the appointing authority might have been influenced by any other extraneous considerations. In that respect the decisive fact is that Mr Ciancio's decision to give preference to Mr Schäfer which, in the final analysis, was the sole ground for rejection of the applicant by the appointing authority had already been made on 22 January 1981. As the applicant was first selected as staff representative on 23 January and the incident in question took place at a meeting of the Promotion Committee on 17 February, the chronological sequence excludes any possibility of the bias presumed by the applicant regarding the rejection of his application. It follows that it is not necessary to examine the events at the meeting of the Promotion Committee, which was concerned with the promotion of another official.
            In addition the Court of Justice asked the applicant in the course of the written procedure to furnish evidence that the Commission had allowed itself to be influenced in its decision in this case by considerations other than those to which I have referred, in particular with regard to his trade-union activity or to his attitude in the Promotion Committee. The applicant was unable to produce any conclusive evidence in either the written or the oral proceedings to show that there was any causal connection between his union activity or the incidents in question and the Commission's decision.
            It should also be noted that the fact that all former coordinators of English translation groups with the exception of the applicant were appointed as heads of group cannot be interpreted as lending weight to the applicant's claim. That state of affairs resulted from a reorganization which reduced the number of translation groups, with the inevitable and obvious consequence that not all former coordinators could be appointed as heads of the new translation groups.
            As the applicant has not been able to establish that the decision which was notified to him on 19 March 1981 was based on extraneous considerations, his claims are without foundation: I propose in conclusion therefore that the application be dismissed and that costs be awarded in accordance with Article 70 of the Rules of Procedure.
         
      (
         1
      )	Translated from thi German.