CELEX: 61979CC0006
Language: en
Date: 1980-06-26 00:00:00
Title: Opinion of Mr Advocate General Capotorti delivered on 26 June 1980. # Daniele Grassi v Council of the European Communities. # Officials - Periodic reports. # Joined cases 6/79 and 97/79.

OPINION OF MR ADVOCATE GENERAL
      CAPOTORTI
      DELIVERED ON 26 JUNE 1980 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In this case the Court is called upon to decide the lawfulness of a periodic report relating, as prescribed by Article 43 of the Staff Regulations, to “the ability, efficiency and conduct in the service” of a Community official. Before however going into the substantive question it will be necessary to consider the procedural aspects of the case, which the parties have dealt with at length in their pleadings.
               The applicant, Mr Daniele Grassi, is an official in Grade L/A 4 with the Council, with the duties of reviser in the Italian Division of the language department. On 17 February 1978 he was sent the periodic report on him for the period from 1 November 1975 to 31 October 1977 and made certain written observations thereon. The reporting officer persisted in his assessment, and the applicant asked on 2 March 1978 for a review by a second reporting officer. As requested a fresh report was made on 15 March 1978. On 6 June 1978 Mr Grassi made a complaint against that report pursuant to Article 90 of the Staff Regulations challenging in particular the following matters: the description of the duties performed, the assessment of his ability and his conduct in the service and finally the general assessment.
               The complaint was forwarded by the Secretary General of the Council to the “Select Committee” of the Reports Committee and that body expressed the opinion that the report in question could not be regarded as “being drawn up in an entirely satisfactory manner”. Pursuant to that the second reporting officer made an amended report which was forwarded to Mr Grassi on 5 September 1978. The latter however objected that when the Appointing Authority received the opinion of the Select Committee it ought to have submitted the case to the Reports Committee or if it declined to do so should have sent the applicant the unamended report by the second reporting officer. In view of that the Secretary General after once again consulting the Select Committee decided to put the case to the Reports Committee.
               In the meantime Mr Grassi, taking the view that there had been an implied decision rejecting his complaint of 6 June 1978, decided to put the case to the Court of Justice. The action which he brought on 5 January 1979 was registered as Case 6/79.
               On 15 February 1979 the Reports Committee, after considering the complaint, gave as its opinion that although the report did not adversely affect the applicant, nevertheless certain amendments were necessary. Pursuant to the observations contained in that opinion the second reporting officer amended his report giving it its final form which was forwarded to Mr Grassi on 20 March 1979. On 20 June 1979 the applicant brought a second action against that document and the case was given the number 97/79.
               On 16 November 1979 the Court ordered that the two actions brought by Mr Grassi should be joined for the purpose of the oral procedure.
            
         
               2. 
            
            
               The procedural questions must be discussed in the light of the Council's Decision of 18 October 1977 which laid down specifically the procedure for drawing up periodic reports and the means of complaint with regard thereto available to an official against the administration. The quite complex rules of the said decision must however be reconciled with the Staff Regulations regarding remedies (Articles 90 and 91) without forgetting that the provisions of the decision are subordinate to those of the Staff Regulations in so far as they fall within the general implementing provisions which each institution has the power to adopt on the basis of Article 110 of the Staff Regulations themselves. In particular the Decision of 18 October 1977 implemented Article 43 of the Staff Regulations which, as I have said, govern periodic reports.
               With those preliminary remarks I should like to consider the admissibility of the first action (Case 6/79). The Council challenges the admissibility, contending that when the action was brought (5 January 1979) the complaint of 6 June 1978 was still being considered by the Reports Committee (which gave its own opinion only on 15 February 1979) and that the second reporting officer made his final report in March. The action therefore had been brought when the steps through official channels were still being pursued and against a decision of the administration which was not definitive.
               To accept that argument it would be necessary to hold that the period available to the administration to decide a complaint under the special procedure laid down for periodic reports may be longer than the four months laid down by Article 90 (2) of the Staff Regulations. In this case if that view were well-founded the action could not have been brought before the date on which the final report by the second reporting officer was forwarded to the official, that is to say before 20 March 1979 when another nine months had passed since the complaint through official channels. The Council's view however cannot be shared for two valid reasons. In the first place Article 90 (2), which is the general rule relating to complaints, requires the Appointing Authority to notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged. Such a strict principle can certainly not be subject to derogation by means of a rule implementing the Staff Regulations. In the second place Article 9 of the same Council Decision of 18 October 1977 lays down that the complaints procedure provided for there may not exceed four months: that, rule is obviously intended to bring the decision into accord with Article 90 of the Staff Regulations.
               Confirmation of that interpretation is provided by the Guide to Staff Reports adopted by the Council in November 1977 (that is to say, after the adoption of the provisions implementing Article 43 of the Staff Regulations). In the second part in Section C of that document under the heading: “Complaint under Article 90 of the Staff Regulations” (foot of p. 35), it is stated that where there is disagreement with the first and second reporting officers the official “has a period of three months to make a complaint (first subparagraph of Article 90 (2))” and that “as from the date of that complaint the authority has a period of four months to notify the person concerned of its decision (second subparagraph of Article 90 (2))”. Thus it clearly emerges from the Guide that the procedure laid down by the Decision of 1977 must be coordinated with Article 90 of the Staff Regulations.
               There is however more. As the applicant's Counsel has rightly observed, the Council, after the complaint was made challenging the report by the second reporting officer, not only did not observe the period of four months which we have been discussing so far, but did not even comply with Article 11 (4) of the Council Decision. According to that article when an official who does not accept the report of the second reporting officer has made a complaint through official channels, the Appointing Authority, after consulting the Select Committee, may choose one of two possibilities; either to confirm the report which then becomes final (thus bringing the complaints procedure to an end) or to place the matter before the Reports Committee for it to express an opinion which will then be forwarded to the second reporting officer for him to make an amended report. In this case the Council followed neither course. On 14 June 1978 it sought the opinion of the Select Committee and after that invited the second reporting officer to amend his report without consulting the Reports Committee. It thereby demonstrated that it wished to conclude the complaints procedure, albeit irregularly. That ambiguous and uncertain conduct which was clearly irregular from the point of view of the procedure would probably have been sufficient to justify the official's resolve to bring his action even if there had not otherwise been good cause as I have pointed out.
               Finally I cannot accept the argument to the effect that Mr Grassi had no interest in bringing the action when he did. On the contrary on 5 January 1979 he had a precise interest in the report concerning him being amended, since his request to that effect had been made by way of complaint and had not been acceded to within the period of four months laid down both in Article 90 of the Staff Regulations and Article 9 of the Council Decision. Thus from this aspect too the action in question must be regarded as admissible.
            
         
               3. 
            
            
               In spite of that there is a circumstance of quite another nature which precludes consideration of Case 6/79: namely a new fact arising after it was brought. On 20 March 1979 the Council confirmed the report by the second reporting officer as amended pursuant to the opinion given by the Reports Committee and forwarded it to Mr Grassi. There is no doubt that that amended report by implication withdrew the report by the same reporting officer dated 15 March 1978. In fact the two reports relate to the same person and the same period and the later report naturally represents the final decision in the matter by the administration. From this observation it follows that the case brought on 5. January 1979 has lost its purpose. Thus the Court in my opinion should take notice of that and declare that it is unnecessary to give a decision in that case.
            
         
               4. 
            
            
               The Council also put forward an objection of inadmissibility in relation to the action brought on 20 June 1979 and registered as Case 97/79. The basis of the objection is that Mr Grassi failed to make a prior complaint through official channels against the amended report by the second reporting officer dated 2 March 1979 and forwarded as we have seen on 20 March 1979.
               That argument seems to me to lack substance. It must be assumed that the administration, in spite of the omissions which I have pointed out, followed the complaints procedure laid down in the decision of 1977 by putting the matter to the Reports Committee and subsequently confirming the amended report by the second reporting officer. That procedure begins with the making of a complaint through official channels (in this case on 6 June 1978) and concludes with a decision by the administration which, in so far as it is final, is not subject to a second complaint.
               When the Council maintains that the final report ought to have been the subject of a fresh complaint through official channels pursuant to Article 90 in order to be challenged in the Court, it overlooks the fact that that amended report, which was obviously substituted for the first, was drawn up following the first complaint. It would be unreasonable to consider the amended report to be unconnected with the other for which it was substituted: what is in question is an administrative decision on a single question effected first of all by way of a measure open to complaint (the report of 15 March 1978) and then by a final measure challengeable directly before the Court.
               As a matter of principle, the final nature of the amended report approved by the Council is confirmed by the provisions governing the special procedure under which the defendant institution has acted in this case. Article 10 (5) of the frequently cited decision of 1977 establishes in fact that the complaints procedure is brought to an end by the transmission to the official of the definitive report made after the Reports Committee has given its opinion. A similar wording is used in Article 11 (4) (b) with reference to the case in which the Appointing Authority, after hearing the opinion of the Select Committee, decides not to refer the case to the Reports Committee and to recognize the report by the second reporting officer as definitive without amendments being made thereto.
               As for the fact that the Council did not completely follow the procedure laid down in the decision of 1977, it does not seem to me that that can lead to any other view. It would be truly paradoxical if an irregularity committed by the Council should force the official concerned to begin the procedure in question again by placing other obstacles in the way of his bringing an action within a reasonable time.
            
         
               5. 
            
            
               It is time to pass to a consideration of the objections relating to the substance of the case. It is necessary to bear in mind in this respect that counsel for the applicant in answer to a question put by the Court clarified his claims in a document dated 8 May 1980. According to that document the applicant is seeking the partial annulment of the periodic report made by the second reporting officer on 2 March 1979 in three respects which I shall shortly specify.
               To clarify the limits within which this Court must remain in considering objections to periodic reports on officials may I cite the established case-law to the effect that “although it is true that these reports are made up of assessments which it is difficult for a court to review, this fact does not prevent their adoption from being vitiated for irregularity of form and procedure or patent error and misuse of discretionary power — defects capable of making them unlawful” (see in particular the judgment of 25 November 1976 in Case 122/75 Küster v Parliament [1976] ECR 1685 at paragraph 9 of the decision; and the judgment of 12 May 1977 in Case 31/76 Hehrant (née Macevičius) v Parliament [1977] ECR 883 to the same effect). That does not mean, as Mr Advocate General Mayras pertinently pointed out in his opinion on 27 March 1980 in Case 24/79, that the Court must substitute its own assessment for that of the administrative authority, but only that it is for the Court to review the ways and means which may have led to such an assessment.
               Let us now consider in detail each of the three objections made by Mr Grassi to the periodic report on him.
               
                        (a)
                     
                     
                        In the first place the applicant seeks the deletion of the phrase which attributes to him “a limited number of unrevised translations”. Those words are to be found in the first part of the report in Section II. In that respect he maintains that only once, on a mission to Florence from 20 to 22 November 1975, did he do translations in the period covered by the report in question. Moreover details of that kind are of little importance in the context of a periodic report and reveal an intention to belittle the applicant's capacity and duties.
                        This alleged defect cannot be regarded as a patent error of fact. Undoubtedly Mr Grassi also did the work of translator on the occasion of the mission to Florence. That is enough, it seems to me, to rule out an error of fact.
                        Nor can mention of doing the work of translator be regarded as a misuse of powers. No evidence has been adduced that the administration has put it in the report for reasons other than are normal for so doing. Further it has emerged from uncontested statements by the Council's representative that in the description of the duties of all the revisers in the periodic reports for 1975 to 1977 there is mention of the work of translator. That means that mention of the work of translator cannot have amounted to discrimination against the applicant and further confirms the weakness of the argument to the effect that reference to such (limited) duties represented a misuse of powers on the part of the administration.
                        A different view might prevail with regard to the usefulness of the reference with which we are concerned for the purpose of assessing the ability and efficiency of an official. But the question seems to me to be covered by the discretion of the administration, for whose special assessment the Court cannot substitute its own. Further even from the objective point of view it is difficult to say whether the reference in question represents an unjustified underestimation of the applicant or rather proper recognition of the work done outside his specific duties.
                     
                  
                        (b)
                     
                     
                        In the second place the applicant seeks the deletion of the observation “acceptable” in reference to his working relations with his superiors and colleagues in the second part in Section ĪII (2). He maintains that the reasons on which that observation was based should have been stated since it represents an adverse assessment of the official.
                        Let me say first of all that according to the case-law of the Court periodic reports do not come within the category of decisions relating to specific individuals in respect of which Article 25 of the Staff Regulations provides that the grounds shall be stated, but are “governed by the special provisions” adopted to implement Article 43 of the Staff Regulations (cf. the already cited judgment of 25 November 1976 in Case 122/75 at paragraphs 21 to 26 of the decision). As regards the Council the sole criteria applicable are those contained in the Guide to Staff Reports to which I have referred. That document, which contains internal provisions implementing the Decision of 18 October 1977, is confined to laying down in the first part at Section E (I) (4) (b) (p. 16) that “‘outstanding’ and ‘has shortcomings’ must be accompanied by an explanation ...”. In those circumstances it Qoes not seem to me that in this case “an explanation” was essential as a matter of form since the contested classification (“acceptable”) was not one of those mentioned above. Therefore the alleged lack of a statement of reasons seems to me not to be relevant either in relation to Article 25 of the Staff Regulations or in relation to the special provisions contained in the Guide.
                        It is nevertheless proper to observe that in the report in question the classification “acceptable” is confined to the relations with superiors and colleagues and is accompanied by a brief comment and the citation of certain incidents which, in the opinion of the administration, justified it. I mean to refer to the clause: “He is, however, so rigid ...” which figures in the report under the heading “Continuation of Part III” and with which I shall deal briefly.
                        In any event there is no defect of form or procedure in the classification “acceptable”. It appears in fact to have been used in accordance with the criteria laid down in the Guide. In the same way it is out of the question to speak of misuse of powers since there is no evidence that the authority inserted that classification for any purpose other than that for which the document is prescribed. Finally, there is no patent error of fact in the classification “acceptable”, since it is an appraisal and thus an act which expresses the discretionary assessment of the administration.
                     
                  
                        (c)
                     
                     
                        Thirdly the applicant seeks the deletion of a phrase in Part 3, Section III of the report. That contains assessments of the applicant's conduct in the service relating mainly to his personality. Mr Grassi is alleged to be excessively “rigid” and his conduct is said to have had a negative effect on the atmosphere in the Italian Division. In particular the reporting officer writes of him “He is, however, so rigid in his attitudes that his relations with his superiors and colleagues of his own grade are much less satisfactory” than those he has with those junior to him (that is, the translators). Further on there is mention of two unpleasant incidents of which details are given (an altercation with a group of revisers in December 1975 and his written comments on his two superiors in March 1977 on the occasion of a mission to Fiji).
                     
                  The main objection the applicant has against that part of the periodic report is, according in particular to the arguments put forward at the hearing, that no reasons are given. In this connexion I think I ought to stress that the Staff Regulations do not make a statement of reasons in the periodic report mandatory. Against that Counsel for Mr Grassi contends that reasons are necessary when the assessments contained in a report are particularly adverse. I have however already pointed out that the Guide to Staff Reports requires explanatory comments only in respect of extreme assessments expressed according to the prescribed summary formula and not in the case of assessments in the descriptive part of the report which clearly includes those with which we are at present concerned.
               It seems fitting for me to add that in fact the whole sentence with which we are concerned constitutes to some extent a statement of reasons for the assessment of “acceptable” used in reference to the relationships with superiors and colleagues in another part of the report. I must further point out that the assessments contained in the sentence in question are justified by means of the reference to the two specific incidents which I mentioned above. It follows that the objection that no reasons are given must be held to be without foundation not only from the formal point of view but also as a matter of fact.
               Counsel for the applicant makes observations likewise in relation to the use which the report seems to make of the two incidents in 1975 and 1977. Such incidents, he maintains, show the correctness of Mr Grassi's conduct in the service and cannot therefore be used to support negative or particularly adverse assessments. The critical attitude adopted in 1975 by the applicant towards the head of the Italian Division, Mr Tommaso Valerio, was due to the fact that Mr Grassi did not approve of the way in which the translators were chosen for missions abroad. In 1977 the disagreement was renewed, prompted by the appointment of a particular official to a mission outside Europe, because of the way the missions were organized and in a general way the methods by which the division was directed (cf. the dossiers numbered 16 and 17 annexed to the application dated 20 June 1979).
               I do not think that the Court can follow the applicant's lawyer in investigating those incidents or undertake to establish who was responsible. If it did so the Court would be substituting its own discretion for the administration's assessment of the officials' conduct in the service, whereas, as is well-known, that kind of assessment does not fall within its jurisdiction. The Court, in my opinion, must confine itself to observing that the incidents referred to in the report in fact took place and thus to find that the administration supported its assessment with a statement of specific facts. That seems to me sufficient to rule out not only the defect of lack of statement of reasons (which moreover it is not possible to see even in the abstract) but also that of patent error.
               As for the misuse of powers, once again I observe that reference to the two incidents does not appear to have been made by the administration for purposes other than those proper to Article 43. Moreover the applicant himself speaks only generally or misuse of powers and in fact confines himself to denying his own responsibility for those incidents. He does not succeed in showing that the administration mentioned them in the report for improper purposes.
               Finally, as regards the form and procedure I would observe that reference to specific incidents to supplement assessments is a correct application of the criteria which, according to the principles in the relevant Guide, must be followed in drawing up periodic reports.
            
         
               6. 
            
            
               As regards the two joined actions brought by Mr Daniele Grassi against the Council on 5 January and 20 June 1979, my opinion therefore is that the Court should declare that it is not necessary to arrive at a decision in the first and that the second should be dismissed.
               Regarding the cost of the two joined actions, I propose that pursuant to Article 70 of the Rules of Procedure the parties should each bear their own costs.
            
         (
            1
         )	Translated from the Italian.