CELEX: 61979CC0122
Language: en
Date: 1980-12-11
Title: Opinion of Mr Advocate General Reischl delivered on 11 December 1980. # Mirtia Schiavo v Council of the European Communities. # Official - Periodic reports - Promotion. # Joined cases 122/79 and 123/79.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 11 DECEMBER 1980 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      Of the two cases on which I shall give my opinion today the first relates to individual decisions regarding promotion which the Secretary-General of the Council took on 13 November 1980 and the second concerns the periodic report for the period 1 November 1975 to 31 October 1977 made on the applicant in accordance with Article 43 of the Staff Regulations.
      Mrs Schiavo, who instituted the proceedings, entered the service of the Council with effect from 16 December 1972 as a probationary official (assistant translator in Grade L/A 7). She was made an established official with effect from 16 July 1973. From 1 September 1978 to 31 August 1979 she took leave of absence on personal grounds, which was subsequently extended until 31 July 1980. As we have heard, she resigned in the course of these proceedings from the service of the Community, receiving the compensation provided for in the Staff Regulations.
      A first periodic report on her “ability, efficiency and conduct in the service” was made on 31 October 1973 and a second on 31 October 1975. The applicant had no objections to either of the reports. On the other hand she did not concur in the report for the period from 1 November 1975 to 31 October 1977 since the first reporting officer; her head of division, arrived at a less favourable assessment than that contained in the first two repons although it was certified in a note from her head of division of 14 June 1976 that her knowledge of Italian, English and French was very good, although on 23 June 1976 she was detailed to participate in a Greek course which she successfully completed in August 1976 and although on 16 December 1976 her head of division put her forward for promotion. When she made verbal representations her head of division in fact amended the assessment in the report on 16 February 1978 in her favour. In spite of this the applicant made a written request on 6 March 1978 for a further revision of the report which was however refused by the first reporting officer on 9 March 1978. On 17 March 1978 the applicant successfully submitted a request for a review to a second reporting officer who on 25 May 1978 appended a report which may be considered favourable. Nevertheless the applicant intimated on 15 June 1978 that she intended to lodge a complaint against the report which she in fact did in due form on 11 September 1978. As a result the periodic report on her was submitted on 17 June 1978 to the Reports Committee set up by the Council. However, the Committee, after hearing the applicant on 6 November 1978, arrived on 20 November 1978 at a negative view of the applicant's request. The Secretary-General of the Council, in a note dated 8 December 1978, confirmed the report and transmitted it together with the views of the Reports Committee to the applicant, who received it on 18 December 1978. The applicant signed the report and returned it on 28 December 1978 whilst reserving her right subsequently to challenge its accuracy.
      At this time the decisions regarding promotion for the year 1977 were also being prepared. The competent Promotion Committee met in the period from 13 October to 9 November 1978 and submitted its opinion on 22 November 1978. The promotions were then announced on 30 November 1978 and a list of the officials promoted was posted on 6 December 1978 in the premises of the Council.
      The applicant, who was not promoted, submitted against this on 25 March 1979 a complaint which was received by the Council on 4 April 1979. In her complaint the applicant requested that the decisions regarding promotion should be set aside on grounds which I shall subsequently discuss.
      The applicant sent a second letter, also dated 25 March 1979, pursuant to Article 175 of the EEC Treaty, to the Secretary-General of the Council. In her letter she requested that a formal, reasoned decision should be taken on her request for a review of the report complained of and also that that report should be set aside.
      The Secretary-General replied on 18 June 1979 to the last-mentioned letter. He pointed out that Article 175 of the EEC Treaty was not applicable to this case and in addition referred to his note of 8 December 1978 which indicated that the appointing authority had taken a decision on the applicant's request for a review. In another letter, dated 18 June 1979, the Secretary-General notified the applicant that her complaint relating to the decisions regarding promotion must be rejected as inadmissible because it had not been lodged within the period laid down in Article 90 (2) of the Staff Regulations, that is within three months of the time when the decisions regarding promotion were posted in the Council's premises.
      In response, the applicant lodged two applications on 3 August 1979.
      In Case 122/79 she claims that the decision of 30 November 1978 concerning the promotion of officials of the language staff together with all prior and preparatory measures including the opinion of the Promotion Committee should be annulled.
      In Case 123/79 she claims that the communication of 8 December 1978, the implied decision of rejection of her request of 24 March 1979 and all prior and preparatory measures including the opinion of the Reports Committee should be annulled.
      My opinion on these cases is as follows :
      I — Admissibility
      In both procedures the defendant Council has raised objections of inadmissibility, and in Case 123/79 its objections are even contained in a separate document in accordance with Article 91 of the Rules of Procedure.
      1. Case 122/79
      
               (a)
            
            
               First of all the Council has raised the question of the weight to be attached to the fact that, contrary to the provisions of Article 37 (3) of the Rules of Procedure, the application was not dated.
               The applicant's views that the absence of a date does not prejudice the proceedings should be upheld not only because the Rules of Procedure do not expressly attach the consequences of inadmissibility of the application to failure to observe the said provision but also because it is provided in Article 37 (3) that “in the reckoning of time-limits for taking steps in proceedings the only relevant date shall be that of lodgment at the Registry”. This date — in the present case 3 August 1979 — can be ascertained with certainty. Furthermore I am unable to discern any general principle of procedural law that the date of the application is so important that its absence entails the inadmissibility of the action.
            
         
               (b)
            
            
               In the view of the Council, however, the application is in any case inadmissible because it was not preceded by a complaint, as is prescribed in Article 91 (2) of the Staff Regulations, submitted within the period laid down in Article 90 (2). Article 90 (2) provides that the time-limit for lodging complaints by another person who is adversely affected by a measure affecting a specified person starts to run “on the date on which he [the former] receives notification thereof but in no case later than the date of publication”. The decisions regarding promotion of 13 November 1978 which are at issue in this procedure were published by posting on 6 December 1978. Reckoned from that date the complaint lodged on 4 April 1979 must in fact be considered out of time.
               The applicant however considers that the relevant date to be taken as the start of the time-limit for lodging complaints is that of the publication of the decisions on promotion in the Monthly Staff Bulletin of the Communities which appeared only in January 1979. Article 25 of the Staff Regulations draws a clear distinction — one of which is also applicable precisely to decisions regarding promotion — between publication by posting and publication in the Monthly Staff Bulletin. The conclusion to be drawn from this is that — because cumulative conditions are concerned — such measures first take effect on publication. This however indicates that only publication in the Monthly Staff Bulletin is to be considered as “publication” for the purposes of Article 90 of the Staff Regulations and it should not be overlooked in this connexion that the applicant was then on leave on personal grounds and it was accordingly impossible for her to learn of the decisions concerning promotion through posting in the premises of the Council.
               On this point I am inclined to favour the view of the Council.
               In the first place, the view that individual measures only begin to take effect on publication — which is said to follow from Article 25 — seems to be misconceived. In fact they take effect from the time when they are notified to the person concerned and it is clear that the purpose of the publication provided for in Article 25 of the Staff Regulations is that of providing general information only. Further the French version alone of the Staff Regulations may not be relied upon to conclude from the use of the words “publication” or “publié” in Articles 90 and 25 of the Staff Regulations that one and the same procedure is referred to. It is in any event significant that the German version of the Staff Regulations uses the word “Bekanntmachung” [publication] [in Article 90] and that in the German version of Article 25 of the Staff Regulations this word is used in conjunction with “Aushang” [posting].
               Finally the general context of the second indent of Article 90 (2) must not be overlooked. According to that provision the period within which a specified person may lodge a complaint starts to run in principle on the date on which that person receives notification of the act affecting him but in no case later than the date of its publication. This means that when it cannot be established that notification of the measure has in fact been received the time to be adopted is that at which it was possible to receive notice. In the case of decisions regarding promotion, which relate exclusively to officials of an institution, the posting of these decisions however suffices as the usual means of information. Furthermore the Council properly referred to the requirements of legal certainty which are of particular importance in matters relating to the observance of time-limits and which would not in fact be met if reference were made exclusively to publication in the Monthly Staff Bulletin which is sometimes received only a considerable time after the adoption of the measures in question and their publication through posting. Such flexibility in the period for lodging complaints certainly cannot be approved as being in the interests of persons benefiting from a decision even in the case of officials who for any reason are not present at their place of service and who are able, in their own interest and without difficulty, to obtain information in good time on important measures of staff policy through notices which are in fact posted.
               Since the applicant's complaint, calculated from the posting of the decisions regarding promotion in the premises of the defendant, was unquestionably lodged out of time, there is in fact no other course than to rule, with reference to Article 91 (2) of the Staff Regulations, that the application is inadmissible.
            
         
               (c)
            
            
               This in fact precludes the need to consider two further objections. First, the objection that the complaint was not submitted through the applicant's immediate superior as is prescribed in Article 90 (3). Secondly, the Council considers that there is a manifest error in the applicant's case because in the application it was claimed that no express decision was taken on the complaint, which was rejected by implication, whereas in fact the complaint was expressly rejected on 18 June 1979.
               In this connexion the following brief remarks may be made.
               It is possible to concur with the applicant's view that the first-mentioned circumstance has no adverse effects because the complaint duly reached its destination and because in the decision taken by the Secretary-General on 18 June 1979 no complaint was made on the subject of the error in transmission.
               As regards the second-mentioned point it is unnecessary to pursue the question whether there can also be an implied rejection of a complaint when a decision in due form is taken which, however, does not deal with the matters raised in the complaint because the latter is regarded as being submitted out of time. The application and the description of the subject-matter of the action make it clear that the applicant is concerned with the lawfulness of the decisions regarding promotion taken on 30 November 1978. Accordingly, in my view, the question whether in the application the prior complaints procedure and its outcome were properly set out and appraised is irrelevant.
            
         2. Case 123/79
      In these proceedings, too, various objections concerning admissibility were raised.
      
               (a)
            
            
               In so far as it was contended that this application also bears no date, I refer to what I have said concerning Case 122/79.
            
         
               (b)
            
            
               The contention that the application was lodged out of time depends upon the circumstance that the applicant in this case is concerned to obtain a review by the Court of the report which was made on 16 February 1978 on her “ability, efficiency and conduct in the service” in accordance with Article 43 of the Staff Regulations and which covers the period from 1 November 1975 to 31 October 1977. After the applicant was unsuccessful in her request that the first reporting officer should amend the report she submitted on 17 March 1978 a request for its review to the second reporting officer who on 25 May 1978 modified and supplemented the report to a certain degree. Since this too did not satisfy the applicant she declared on 15 June 1978 that she intended to lodge a complaint which she formally did on 11 September 1978, with reference to her note of 15 June 1978. According to the Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations, the declaration of an intention to submit a complaint has as its consequence, as Article 9 in conjunction with Article 6 shows, that the matter is referred to the Reports Committee. This was done in the present case on 17 July 1978. The Committee gave its opinion on 28 November 1978. In that opinion, following an examination of the applicant's submissions, it was pointed out in conclusion that no factor had emerged “plaidant en faveur d'une remise en cause des appréciations portées dans le rapport ...” [“indicating that there are grounds for again calling in question the assessments made in the report ...”]. The Secretary-General of the Council, as appointing authority, accordingly found in the above-mentioned note of 8 December 1978 that the opinion of the Reports Committee should be transmitted to the second reporting officer who subsequently considered that amendment of the report was unnecessary. Accordingly — as was also stated in the note — the contested report, which the Secretary-General also confirmed, became final, thus bringing to an end the complaints procedure. The note, together with the definitive report, was communicated to the applicant on 18 December 1978.
               On the other hand, in accordance with Article 3 of the said Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations, an official who does not accept a report of which he is the subject may, after informing the administration of his intention of doing so, submit a complaint pursuant to Article 90 of the Staff Regulations, within three months. In accordance with Article 6 this period begins on the date on which the report is transmitted to the official by the second reporting officer. The Reports Committee, to which the matter is then referred, communicates, in accordance with Article 10, its opinion to the second reporting officer who subsequently draws up the definitive report. In accordance with Article 10 the appointing authority also confirms the report and transmits it to the official who is the subject of the report, thus, as is expressly stated in Article 10 (5), bringing to an end the complaints procedure. Article 12 of the Council decision provides in conclusion that the final report may be the subject of an application to the Court of Justice of the European Communities pursuant to Article 91 of the Staff Regulations.
               It is accordingly clear that in this case the formal complaint of 11 September is to be considered the decisive step taken by the applicant with regard to a correction of her assessment. The special procedure which she thereby initiated concluded with an express measure on the part of the appointing authority, that is, with the note of the Secretary-General of 8 December 1978. The applicant, then, should have applied to the Court of Justice within the period laid down in Article 91 of the Staff Regulations which began to run on receipt of the note (18 December 1978). A further request to the appointing authority in March 1979 was no longer permissible. This is clear from Article 10 (5) of the said Council decision; in this connexion reference may also be made to the judgment of the Court in Joined Cases 6 and 97/79 (Daniele Grassi v Council, judgment of 3 July 1980) according to which an application against a final report may be submitted without a prior complaint. The lodging of the application, which was only submitted against the reaction of the appointing authority to the applicant's further appeal to it in March 1979, must thus be considered out of time and accordingly inadmissible because that reaction merely constitutes a confirmatory measure which does not initiate a new period for lodging an application.
               In this connexion the applicant's reference to the fact that the Secretary-General's note of 8 December 1978 had no legal effects and could not be considered a decision since it did not state the reasons on which it was based, contrary to the provisions of Article 25 of the Staff Regulations, is of no avail. Quite apart from the fact that, according to the case-law of the Court there is only a limited obligation to state the reasons on which reports under Article 43 of the Staff Regulations are based and that the reference to the opinion of the Reports Committee may be considered as a statement of reasons, this view disregards the fact that a measure which does not state the reasons on which it is based is not without legal effects but at most is regarded as tainted by an error to which objection may be taken in the course of the proceedings before the Court. Even if it were necessary to accept that the before-mentioned note of the Secretary-General must be disregarded on the grounds adduced it would still be necessary, in accordance with Article 90 (2) of the Staff Regulations, to consider it, after the lapse of four months from the date of lodging the complaint, as having been rejected by implication, so that in this case too it would not have become in due time the subject of an action before the Court.
               It may thus be stated, without any need to consider further objections on the issue of inadmissibility, that application 123/79 is also inadmissible.
            
         II — Accordingly, though it is doubtful whether any reasonable ground still remains for considering in addition the merits of the application, I should none the less like to add the following brief remarks on this subject.
      1. On Case 122/79
      The decisions regarding promotion which were adopted on 30 November 1978 were contested on the ground that the applicant was unreasonably excluded from those promotion procedures and that she was completely ignored both by the Promotion Committee and by the appointing authority when they adopted their decisions. In her reply the applicant further made reference — whether this constitutes inadmissible new issues may remain open — to the existence of a right to promotion vested in her which, although she fulfilled all the conditions, was disregarded, and to the fact that there was a deliberate intention to exclude her from promotion, which is proved by the circumstance that, although the matter was referred to the second reporting officer as early as March 1978, he did not give his views on it until 25 May 1978, thereby contravening the provisions contained in the Guide to Staff Reports according to which the second reporting officer is required to proceed within a period of 14 days.
      All these considerations do not enable the application to succeed.
      
               (a)
            
            
               The Council has properly referred to the fact that no reasons need be stated for decisions regarding promotion in relation to officials who are not promoted. This emerges clearly from the extensive case-law which is set out on page 10 of the defence. It is thus certain that there is no validity in the contention that there has been a failure to state the grounds on which the decision is based.
            
         
               (b)
            
            
               Similarly, it has already been emphasized many times in the case-law of the Court that there is no right to promotion. Where the conditions for promotion are met the appointing authority, having in appropriate cases taken the opinion of a promotion committee, must undertake a comparative assessment of the merits and then take its decision, which is only to a very limited degree open to review by the Court. In the present case it is certain that the negative outcome for the applicant of that comparative appraisal cannot be described as manifestly erroneous because favourable assessments of her are contained in two documents, which furthermore indicate that they came within the knowledge of the appointing authority as elements of her personal file. I bear in mind in this respect the above-mentioned proposal by her head of division of 16 December 1976 that she should be promoted and his note, also mentioned above, of 14 June 1976 which testified to the applicant's excellent knowledge of Italian, English and French and thorough university education. In this connexion it must not be simply overlooked that the assessment which was decisive for promotions was made in November 1978 on the basis of the totality of the existing facts and circumstances as they were at that time, according to which the applicant was no doubt less worthy of promotion than other officials.
            
         
               (c)
            
            
               Although the applicant believes it possible to discern further evidence of an attitude negative towards her from the outset in the promotions procedure in the fact that the second reporting officer did not complete his opinion in good time on her request for a review, that delay is very easily explained by the fact that, at that time, following the replacement of the previously-applicable Decision of the Council of 25 May 1964 by the Council Decision of 18 October 1977, a new method of reporting had to be applied to a large number of officials. Accordingly what the applicant has pointed out certainly does not establish that there existed an intention to pass her over for promotion because she was a member of the executive committee of the trade union.
            
         
               (d)
            
            
               In so far as she finally expresses doubts whether parts of her personal file having an important bearing on promotion had been submitted to the Promotion Committee — as the Court is aware those doubts stem from the fact that the report on her for the period from 1 November 1975 to 31 October 1977 had then been submitted to the Reports Committee for consideration and that the Promotion Committee made its decision eight days earlier than the Reports Committee — the decisive factor is that the Council has stated without being challenged that the Promotion Committee had the relevant parts of the personal files of the candidates for promotion at its disposal in the reports stipulated by Article 43 of the Staff Regulations. In the applicant's case, in so far as the report for the period from 1 November 1975 to 31 October 1977 is concerned, it was possible to provide it without difficulty by means of copies.
               On the other hand it is irrelevant whether such copying is in accordance with Article 26 of the Staff Regulations and with the said Council Decision 184/78 in which the secret nature of such documents is emphasized. However the Council was in any event able to counter such arguments by referring to the fact that the duplication is entrusted, on its own premises, to certain officials who are required to observe particular discretion.
               In addition the Council was also able to claim in this connexion that the fact that the Reports Committee issued its opinion later than that of the Promotion Committee is irrelevant because it considered that the report made on the applicant did not need to be reviewed. Furthermore the decisions concerning promotion were themselves only issued after the opinion of the Reports Committee had been issued. The appointing authority, which took these decisions, had at any rate at its disposal all the necessary documents, including the definitive report on the applicant which in fact remained unaltered because of the opinion of the Reports Committee.
            
         
               (e)
            
            
               Accordingly the application in Case 122/79 would undoubtedly have to be dismissed as unfounded even if it were recognized, contrary to my opinion, as admissible.
            
         2. On Case 123/79
      In order to substantiate her second application the applicant claims first that the note of 8 December 1978, to which reference has frequently been made, constitutes only a confirmation of the opinion of the Reports Committee but does not constitute a reasoned opinion, and furthermore that it was not duly notified to her, as it was merely sent through the post. Secondly, in order to establish that the report made on her for the period from 1 November 1975 to 31 October 1977 was erroneous, she refers to the two reports for the previous period which were much more favourable, and to the said note of her former head of division of 16 December 1976 in which she was put forward for promotion. Appraised against that background the report in question constitutes a logical inconsistency. This is also further substantiated by the fact that, for the period covered by the report, it was never indicated to the applicant that her work had deteriorated.
      
               (a)
            
            
               In this connexion the Council rightly pointed out that the note of the Secretary-General of 8 December 1978 is a confirmation not of the opinion of the Reports Committee but of the final report, in accordance with Article 10 (5) of the Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations. Furthermore, as emerges from the judgment of 25 November 1976 in Case 122/75 (Berthold Küster v European Parliament [1976] ECR 1685), this field is governed by special provisions, and not by the general duty to state the reasons on which a decision is based as required by Article 25 of the Staff Regulations. However, since the Council Decision of 18 October 1977, which is to be considered such a special provision, does not require a statement of the reasons on which the final confirmation of a report for the purposes of Article 10 is based, and since in addition the Secretary-General in his note adopted the opinion of the Reports Committee, it is in fact clear that the note of 8 December 1978 cannot be contested on the ground that it does not contain a sufficient statement of the reasons on which it is based.
               With regard to the way in which that note was communicated, reference need only be made to the judgment of 12 October 1978 in Case 86/77, (Kuno Ditterich v Commission [1978] ECR 1855), in which it is expressly pointed out that Article 25 of the Staff Regulations does not lay down the method by which a decision is to be communicated; it is thus deemed to have been communicated when the decision in fact reaches the official concerned “whatever the means whereby it is transmitted”.
            
         
               (b)
            
            
               With regard to the errors in a periodic report for the purposes of Article 43 of the Staff Regulations, which are relevant in the context of the review by the Court, the above-mentioned judgment in Case 122/75 should again be recalled. In that judgment it was emphasized, rightly in my view, that in proceedings before the Court it is only possible to ascertain whether there are irregularities of form and procedure in the adoption of the reports or whether they are based on a blatant error or misuse of discretionary power. The above-mentioned judgment in Joined Cases 6 and 97/79 is also on the same lines. It also pointed out that there is no full review of the legality of reports under Article 43 of the Staff Regulations; instead regard could be had only to breaches of procedural requirements, patent factual errors or misuse of discretion.
               In this respect it is clear that the applicant cannot succeed with her arguments that earlier reports on her were more favourable and that she was put forward for promotion in December 1976. In this connexion it is not only important that in 1977 the Council altered the system in relation to periodic reports, which may in itself explain certain divergences from earlier reports: one is also in conformity with the explanations of the second reporting officer — inevitably left with the impression that the earlier reports made on the applicant, upon which the before-mentioned proposal for promotion was no doubt based, were certainly not clearly more favourable but on the whole are in accordance with the assessments contained in the present report. The contested report however contains nothing less than good assessments and in five out of 18 heads one finds the assessment “very good”. With regard to the applicant's knowledge of languages it was stated that her Italian and English were “very good” and her French “good” which is fully in accordance with the two earlier reports. In addition it was certified — after amendment — that the applicant displayed not only a “certa buona volontà” [a certain willingness] but a “notevole buona volunta” [particular willingness]. I cannot understand how, in view of this information, it can be maintained that there is “logical inconsistency” in the reports which justifies the amendment of the last report.
            
         
               (c)
            
            
               Accordingly, even assuming that the second application is admissible, it is quite impossible to regard it as well founded.
            
         III — With regard to the costs of the proceedings, in view of what we have learnt in the oral proceedings concerning the applicant's resignation from the service of the Community, it might be asked whether, since there was no interest in continuing the proceedings, there were not grounds for discontinuing the action and whether it would not be proper to make the applicant bear all of the costs arising after that time on the ground that they were abusively incurred. I hesitate to do so, however. The existence of an interest in the continuation of the proceedings may be accepted, first because the contested report remains on the file and might be significant if the applicant wished in future to re-enter the service of the Community, and secondly because the conditions of the termination of her service might be influenced by the question whether the applicant was wrongfully excluded from the promotions for the year 1977, in which connexion the contested report is likewise important.
      Secondly the question arises whether in fact in the present situation, as the representative of the Council considers, at any rate with regard to the application in Case 123/79, they may be said to be a vexatious institution of legal proceedings and accordingly, following Cases 6 and 97/79, whether the entire costs incurred in these proceedings are to be borne by the applicant. If the Court concurs in my view of the admissibility of the actions I would not consider this to be appropriate because the situation was only clarified by virtue of the above-mentioned judgment which, however, was only issued after the institution of proceedings in the present case. Furthermore it must be admitted, so far as this case is concerned, that in the administrative procedure the applicant succeeded in obtaining a certain improvement in the report of which she complained and that thereafter it is scarcely possible to consider that the report in question differs appreciably from the reports covering earlier periods. On the other hand the fact must not be overlooked that, particularly when one considers the two notes from the year 1976, a certain problem may have remained from the applicant's point of view and that furthermore it might appear unsatisfactory to her that the appointing authority, on her complaint of September 1978, failed to provide any independent, reasoned decision on the report criticized by her.
      In these circumstances it does not appear to me obvious that the bringing of the application was vexatious and I would accordingly suggest that the decision on costs should continue to be governed by Article 70 of the Rules of Procedure.
      IV — I accordingly propose that both actions brought by Mrs Schiavo should be dismissed as inadmissible and that a ruling on costs should be given in accordance with Article 70 of the Rules of Procedure of the Court of Justice.
      (
            1
         )	Translated from the German.