Heinz-Jörg Moritz v Commission of the European Communities.
Date: 1992-12-17
16 As the Court has consistently held (see, in particular, the judgment in Case 7/86 Vincent v Parliament [1987] ECR 2473, paragraph 16) the periodic report constitutes an indispensable criterion of assessment each time the official' s career is taken into consideration by the administration and a promotion procedure is tainted with irregularity in so far as the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay on the part of the administration in drawing up the periodic reports of one or more of them.
17 However, that case-law does not mean that when the appointment decision is made all applicants must be at exactly the same stage regarding the state of their periodic reports or that the appointing authority must postpone its decision if the most recent report on one or other of the applicants is not yet final because it has been referred to the appeal assessor or to the Joint Committee (judgment in Case 263/81 List v Commission [1983] ECR 103, paragraph 27).
18 The Court has also held that in exceptional circumstances the absence of a periodic report may be compensated for by the existence of other information on an official' s merits (judgment in Joined Cases 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, paragraph 22).
21 In those circumstances, in order to respond to the plea raised before it, the Court of First Instance had to set out, on the one hand, the reasons showing that the absence of that periodic report from the file was compensated for by other information and, on the other hand, the reasons why it considered that the hearing of the Director-General by the Consultative Committee ° whatever was stated about Mr Moritz ° were sufficient to offset the absence of the periodic report without its being necessary to enable Mr Moritz to be heard at the same time as the Director-General or, at least, in refutation of him.
22 Paragraphs 30 and 31 of the contested judgment are essentially confined to holding that the Consultative Committee was entitled to hear the views of the Director-General without this making the procedure unlawful. They do not state any views either on the reasons justifying recourse in this case to information other than the periodic report or on the sufficiency of hearing the Director-General in order to compensate for the absence of the periodic report.
23 Nor does paragraph 41 of the contested judgment rule on those two issues. It relies on minor differences between the draft periodic report and the periodic report, that is to say, on facts which occurred after the date of the contested decision, as appears from paragraph 43 of the contested judgment, in order to deny that the absence of the periodic report had any effect on the lawfulness of the decision.
24 Consequently, the Court of First Instance failed to show that the hearing of the Director-General, without hearing the other party, validly compensated for the absence from the file of the periodic report and that therefore the procedure followed by the Consultative Committee was not unlawful.
25 Next, the Court of First Instance did not show that the Commission could not be accused of any unlawfulness or, as a result, of any service-related fault in this connection, and has not justified paragraph 42 of the contested judgment, according to which, since none of the complaints advanced by the appellant in order to demonstrate the existence of a service-related fault committed by the Commission can be upheld, the claim for compensation for material damage must be dismissed.
30 The Court of First Instance went on to find (in paragraphs 45 and 46) that, according to the case-law of the Court of Justice, the administration had to ensure that reports were drawn up periodically on the dates laid down by the Staff Regulations (judgment in Gratreau v Commission, cited above), and that it had a reasonable period at its disposal in which to do this but any failure to act within that period must be justified by the existence of special circumstances (judgment in Case 207/81 Ditterich v Commission [1983] ECR 1359). It found, however, that the duty of loyalty and cooperation which all officials owed to the administration precluded them from complaining of delay in the drawing up of their periodic reports when that delay was attributable to them.