CELEX: 61970CC0029
Language: en
Date: 1971-02-03
Title: Opinion of Mr Advocate General Dutheillet de Lamothe delivered on 3 February 1971. # Antonio Marcato v Commission of the European Communities. # Case 29-70.

OPINION OF MR ADVOCATE-GENERAL
   DUTHEILLET DE LAMOTHE
   DELIVERED ON 3 FEBRUARY 1971 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   This is one of those cases where we all feel the obligation, regretfully, to consider the merits of the application solely from the legal point of view.
   Mr Marcato is a deserving man.
   Engaged by the Communities to perform almost exclusively manual work, he succeeded through hard work and. i energy in becoming a qualified technician in a particularly difficult field, that of computers, having been a punchedcard operator at the Centre in Brussels since 1963.
   After receiving good reports from 1963 to 1967, he received a clearly unfavourable biennial report in 1969.
   He was all the more upset by this change in the opinion of his superiors because it coincided with a change of the people involved, the official who had given him a favourable report, being replaced by someone else.
   The Joint Reports Committee was consulted, in accordance with the appropriate procedure in force, but it merely expressed the opinion that even though the zeal and output of the official concerned were unquestioned, there was reason to consider transferring him to another post.
   It is in these circumstances that Mr Marcato has requested you in this application to annul his periodic report of 1969.
   As you know, you yourselves have laid down very strict limits for the review which you exercise in these matters.
   
            1.
         
         
            You refuse to review the Administration's assessment of the occupational aptitude of the official (5 December 1963, Leroy, [1963] ECR 206; 8 July 1965, Prakash, [1965] ECR 551; and especially 8 July 1965Fonzi, [1965] ECR 481).
         
      
            2.
         
         
            You review only
            
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                     the regularity of the procedure which has led to the assessment of the merits of the official;
                  
               
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                     the material accuracy of the facts on which the administration has based this assessment and the ‘compatibility’ between facts and assessment (Prakash cited above);
                  
               
                     —
                  
                  
                     and finally any error of law or misuse of power.
                  
               In this case, no defect in the report procedure is claimed to exist and although an allegation of misuse of power was initially made, the applicant's counsel, realizing that it would have been impossible to substantiate such an allegation, expressly withdrew it the other day in court.
            Therefore the only matters remaining for discussion are the material accuracy of the facts and any error of law.
            As regards the first matter, the applicant, by invoking quite impressive testimony and by offering to prove his case before the Court, tries to show that he is a far better man than those who reported on him thought him to be.
            But none of this testimony proves that the authorities entrusted with the task of drawing up the report based their judgment on incorrect facts or that they committed an obvious error.
            But even if this assessment goes too far, which one is tempted to think when reading certain documents in the file, the judge of the legality of the act cannot take account of this factor since to do so would transform his review into a review of a matter of expediency, which is clearly out of the question.
            There remains therefore error of law.
            I considered the question for a few moments.
            In fact, I asked myself whether the report should not relate solely to the official's future and whether it could legally, as it did here, make a judgment on his ability to perform the duties of the post corresponding to his career bracket, a post to which he has been properly appointed.
            But I do not think that this line of thought can be followed for two reasons:
            
                     1.
                  
                  
                     Assessment of the aptitude of an official for the post which he occupies is very difficult to dissociate from assessment of his aptitude for a higher post.
                  
               
                     2.
                  
                  
                     Article 43 of the Staff Regulations of Officials of the Communities merely stipulates that the report must cover ‘the ability, efficiency and conduct in the service of each official’ and consequently does not prohibit, the authority entrusted with the task of drawing up the report, from pronouncing on future prospects and equally does not require it to do so.
                  
               Therefore in my opinion there appears to be no error of law.
            These are the reasons which lead me, morally with a certain regret but legally with not much doubt, to propose that you dismiss Mr Marcato's application.
            Perhaps, having regard to all the circumstances of the case, you could relieve him of the costs which he would normally have to bear on the dismissal of his application.
         
      In conclusion, I am of the opinion that the Court should
   
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            dismiss the application,
         
      
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            relieve Mr Marcato of payment of the costs which he should bear in accordance with Article 70 of the Rules of Procedure.
         
      (
         1
      )	Translated from the French.