CELEX: 61963CC0094
Language: en
Date: 1964-05-05
Title: Opinion of Mr Advocate General Roemer delivered on 5 May 1964. # Pierre Bernusset v Commission of the European Economic Community. # Joined cases 94-63 and 96-63.

OPINION OF MR ADVOCATE-GENERAL ROEMER
   DELIVERED ON 5 MAY 1964 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   As in the recently decided proceedings 27/63 (Raponi v Commission of the European Economic Community), the present cases relate to the consideration of decisions on promotion by the Commission. They were taken in one case on 3 July 1963 in order to fill a post in the Personnel Administration Division (Grade A4) and in the other on 8 July 1963, following the completion of the written procedure, in order to fill the post of Assistant to the Director-General of Administration (also Grade A4). In both cases the applicants, already officials of the Commission classified in Grade A5, submitted applications, but in both cases the Commission selected other candidates. Hence the applicant's decision to contest the aforementioned decisions on promotion by applications for annulment.
   The legal consideration of the present cases is made very much easier by the fact that the arguments advanced are largely covered by arguments we have heard in the Raponi case. This applies especially to the complaint of infringement of Articles 5, 25, 45 and 110 of the Staff Regulations. As the parties have decided not to argue their cases in oral procedure and as the Court has not to consider any fresh views of its own motion I can content myself with a reference to my opinion and to the judgment of the Court in the Raponi case.
   Accordingly:
   
            1.
         
         
            The defendant is not the European Economic Community as such, but only the Commission of the EEC.
         
      
            2.
         
         
            There is no infringement of Article 110 of the Staff Regulations because Article 45 of the Regulations (the provision relating to the promotion of officials) does not require that, before decisions on promotion are made, general provisions for giving effect to the Regulations shall be adopted with regard to the rules for promotion procedure. In particular the appointing authority is not bound to define in advance, over and above the conditions laid down in the vacancy notice, the criteria by which an assessment of the abilities of the various applicants is made and to state their relative importance.
         
      
            3.
         
         
            Article 5 of the staff Regulations, which lays upon each institution the duty of defining its posts, is not infringed because a decision on promotion does not depend upon such prior definition.
         
      
            4.
         
         
            Article 25 of the Staff Regulations is not infringed because a statement of reasons for decisions on promotion is not required in relation to applicants not promoted.
         
      
            5.
         
         
            Finally in the case of Raponi v Commission of the EEC the Court did not criticize the promotion procedure although there were no reports on the comparative merits of the candidates for promotion requiring to be considered under Article 45. The general reports under Article 43 of the Staff Regulations were not in existence at the time when the decision on promotion was adopted (13 February 1963 in the Raponi case). Contrary to what I think is right, ad hoc reports could not be required from the Administration. A similar decision will have to be made in the present cases even though the promotion was not decided on until July 1963 because even at that time the ‘période d'adaptation’ to the new Regulations could not in my opinion be considered as having been completed.
         
      On the other hand some special problems of fact and law must be treated in depth because so far no solution of them has been indicated in other cases.
   
            1.
         
         
            To these belongs the argument raised in the written procedure that the decision on promotion in Case 94/63 was illegal because it was not posted in the premises of the institution immediately after its adoption and published in the Monthly Staff Bulletin as provided by Article 25 of the Regulations.
            Indeed it may be asked whether this complaint was not dropped, since the applicant did not go further into it in the oral proceedings; but it can easily be shown that it could not invalidate the contested Decision.
            In my opinion the second paragraph of Article 25 which requires publication of certain decisions regarding staff contains no essential requirement of form as a condition for the validity of measures. This would be quite unusual in the case of measures affecting the individual; aliter in the case of legislative measures which necessarily require publication. In particular Article 25 does not constitute a provision, the observance or non-observance of which influences the content of a decision. Its sense and purpose seem to me rather to lie in establishing the material content of a staff decision, bringing it to the notice of the staff and enabling officials who may be affected thereby to safeguard their rights in administrative or judicial proceedings. If, as in the present case, it is not observed to the extent that the publication did not immediately follow and was not made until four weeks had gone by, then the only consequence to be drawn from the tenor of Article 25 is that the time-limits for bringing an action begin to run in favour of officials concerned from a later date (for example from the date on which the official became aware of the decision). There can however be no possibility of annulling the decision in question.
            Of greater significance is another argument which was put up in both cases and which relates to the legality of the promotion procedure. This argument can be split up into several different complaints and I now turn to the most important of these. It became of real importance after production of the documents distributed to members of the Commission for preparation of the decisions on promotion and it must be considered especially in relation to particular requirements set out in the Raponi case for the preparation and adoption of decisions on promotion. The question, in short, is whether the members of the Commission were sufficiently well informed on the necessary facts, and first and foremost on the merits of the applicants whom they had to consider and compare in the adoption of their decisions.
            It will be necessary to draw a distinction in the legal examination because in one of the two cases (Case 96/63) the decision was made at a meeting of the Commission whilst in the other (Case 94/63) the written procedure was chosen.
            
                     (a)
                  
                  
                     Let us first see how the promotion procedure evolved in Case 94/63.
                     It began when on 2 July 1963 a note was sent by the Secretariat of the Commission to the members of the Commission in which the President of the Commission made a definite proposal for the promotion and gave his reasons. It was mentioned in the note that the Director-General of Administration had carefully examined the applications and had interviewed the candidates. He had decided to propose for the promotion the candidate whose promotion the President of the Commission later supported. There were annexed to the note, in addition to the vacancy notice, the application forms of the various candidates (that is, a personal questionnaire for each candidate). The President's proposal was to be deemed to be accepted unless any observations reached the secretariat of the Commission by 6 p.m. on 8 July.
                     The only sources of information available to the members of the Commission were therefore the President's note, which anyhow applied only to the candidate promoted, along with the questionnaires filled in by the candidates themselves which, apart from other personal details, contained in general no more than a few brief remarks about their previous activities in the service of the Commission.
                     We must consider whether this can be accepted as adequate for the application of a provision which in the normal case requires examination of reports on the ability, efficiency and conduct of officials in order that, after consideration of the comparative merits of the candidates, a proper selection can be made for the purposes of promotion. I personally have serious doubts, which I do not feel are dispelled by the Raponi judgment; rather the reverse.
                     In this judgment great emphasis is laid on the fact that a decision on promotion requires an ‘examen scrupuleux de dossiers comparables’, in order that the decision on promotion may be taken ‘en toute connaissance de cause’ and stress is laid on the need to consider the comparative merits on a ‘base égalitaire et au vu de sources d'information et de renseignements comparables’.
                     In my view the investigation procedure did not meet these requirements in Case 94/63. The rule of equality of treatment was broken because only in the case of the candidate proposed were details available on his past career and merits from a third party; but in particular the instruction that the merits of the individual candidates must be fully considered was not observed. For this purpose the particulars furnished by the candidates themselves on their activities in the service of the Commission are inadequate and it makes no difference whether they are relatively detailed or — as was the rule — only in a very summary form. They do not enable an assessment of merits to be made because the most that is said in the application forms is what the candidates have done and not in what manner, with what result and with what efficiency they have done it. For such an opinion for the purposes of selection for promotion to be of any use it could only be given by an impartial third party and not by the individual candidates.
                     Since no possible sources of additional information for the members of the Commission (such as, for example, personal files) are discernible, we must say then on ail the evidence available in Case 94/63 that the decision on promotion was made after inadequate preparation and this of necessity involves its annulment.
                  
               
                     (b)
                  
                  
                     The position in Case 96/63 is similar. Here too the decision on promotion was prepared from a communication from the Secretariat of the Commission to the members of the Commission in which the fact was mentioned that the various candidates had been interviewed by the Director-General of Administration and that on his proposal the President of the Commission had decided to propose the appointment of the candidate who was later promoted. The communication contains a detailed statement of reasons for the proposal and an indication that observations on the other candidates would be made orally. According to the statement of the Commission in the written procedure, the questionnaires of the individual candidates were moreover transmitted to the members of the Commission as in Case 94/63.
                     Although in this case the decision on promotion was taken at a meeting of the Commission and not by means of a written procedure, there can be no difference in the assessment of the case so far as the preparation of the decision is concerned. Before the meeting the members of the Commission learned nothing more about the candidates who were not promoted than was to be gleaned from their personal questionnaires and on this there are still justified doubts because it is not clear from the communication from the Secretariat that the questionnaires to applicants were actually distributed. There is however a total lack of any indication in the minutes of the Commission that any additional examination of the merits of the candidates took place either on the basis of other documents or of oral observations.
                     We can therefore establish that in Case 96/63, too, the decision on promotion was not prepared as required by Article 45. Here too an annulment of the contested decision is inevitable for this reason.
                  
               
      
            3.
         
         
            A third argument relates to Case 96/63 alone. It rests upon the fact that the contested decision was adopted on 3 July 1963 but was to take effect from 1 November 1963 because not until then could the promoted candidate have completed two years' service in his former grade.
            In the view of the applicant Article 45 of the Staff Regulations requires that the promoted candidate must show that, at the time of the adoption of the decision on promotion, he had already completed two years in the grade from which he is promoted.
            This concept of the requirements for promotion is supported by the wording of Article 45 of the Staff Regulations. This reads: ‘Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade …’ (The French text reads: ‘Elle se fait exclusivement au choix, parmi les fonctionnaires justifiant d'un minimum d'ancienneté dans leur grade’). It follows that when the decision on promotion is adopted the minimum period (two years) set out in the second paragraph of Article 45 (1) must have expired.
            There are also good grounds for saying that this meaning best suits the sense of Article 45. Since promotion is made by selection with reference to merits acquired obviously the requirement of the period of service should ensure that the appointing authority can observe the conduct and activity of candidates eligible for promotion during a minimum period. To allow decisions on promotion before the expiry of this period would mean accepting that the appointing authority starts with a comparison of merits, which, if it had been made later, might have had a more favourable outcome for a candidate not promoted as for example if, as in the present case, a candidate at the time of the adoption of the decision on promotion and for some while thereafter temporarily performs the duties of the post occupied by him by way of promotion.
            Consequently we must say that a decision on promotion is not taken in conformity with the legal requirements when it is in favour of a candidate who, as in the present case, still has some four months to serve in order to complete two years' service in his former grade.
            On the other hand the objection of the Commission that in the present case the promotion procedure was set in motion before 31 March 1963, that is at a time when under Article 108 of the Staff Regulations a derogation could be made from the requirements of Article 45, seems unacceptable. Certainly Article 108 of the Staff Regulations (in its amended form up to 31 March 1963) allows promotions to be made without the requirements of Article 45 as to the period of service being completed. Here however we are dealing with a transitional provision, which constitutes a derogation overriding the general rule contained in Article 45 and which for this reason must be interpreted restrictively. Properly understood, it requires that the decision on promotion must be taken before 31 March 1963. It is not therefore enough that the promotion procedure was set in motion before this date. If the Commission was unable to take a decision before then for administrative reasons then, in the absence of express derogating provisions, it could grant promotions only in accordance with the rule contained in Article 45.
            I am accordingly of the opinion that in Case 96/63 the decision on promotion should be annulled because it was made in infringement of Article 45 of the Staff Regulations.
         
      
            4.
         
         
            In Case 96/63 the complaint was also made that the promotion was made on account of the nationality of the candidate; that from the outset the post filled was kept for an official of a particular nationality.
            From the legal standpoint all necessary information on this objection can be ascertained from the judgment in Lassalle v European Parliament (Case 15/63). According to this judgment nationality cannot ever be made in advance the decisive factor in filling vacant posts by promotion. The most that can be conceded is that, where several candidates are equally efficient, nationality may be taken into account as an additional factor where this appears necessary to maintain or create a ‘geographical balance’ within the framework of the European public services.
            As to the fact relating to the complaint the position is not sufficiently clear. The Commission indeed argues that it did not attach decisive weight to nationality in the matter of the promotion. It explains that a remark said by the applicant to have been made by the Head of the Personnel Department on this point was merely a private expression of opinion from which no conclusions can be drawn as to the Commission's motives.
            To make the position absolutely clear, it would have been necessary to hear witnesses because only after this had been done would it be possible to determine the attitude of the Personnel Department towards questions of the nationality of candidates in the formulation of its proposal for promotion to the members of the Commission and to infer from this that the decision of the Commission had been influenced.
            In any event, having regard 10 the results of my investigations hitherto, I consider that taking evidence in this way would serve no useful purpose. I accordingly refrain from submitting any such proposal to the Court and suggest that this particular point at issue can be left aside.
         
      
            5.
         
         
            For the above reasons it seems to me that there is no need to investigate the applicant's further arguments which although put forward in the written procedure were not taken up at the hearing. I will not therefore go further into the complaint of misuse of powers made in Case 96/63 on the grounds that the candidate promoted was a specialist in customs law whilst the applicant possessed a thorough knowledge of Community public service law as required in the vacancy notice and for the same reasons I shall not investigate the complaints in Case 94/63 in relation to the provisions for giving effect to the written procedure (admissibility of the written procedure in the adoption of decisions on promotion; failure to publish the provisions for the application of Article 11 of the internal regulations of the Commission; absence of any grounds showing that the written procedure is necessary; setting in motion of the written procedure on the proposal of the executive secretary and not on that of the President of the Commission).
         
      
            6.
         
         
            To sum up, I conclude that in both cases on promotion submitted to the Court serious deficiencies in the promotion procedure are to be found. On these grounds the contested decisions must be annulled and under Article 69 of the Rules of Procedure the Commission must be ordered to bear the costs.
         
      (
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      )	Translated from the German.