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.

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.

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.

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.