ECLI:EU:C:1985:458

Full text

LENZ

delivered on 14 November 1985 ( *1 )

Mr President,

Members of the Court,

I — Background common to the three cases

The proceedings on which I give my Opinion today concern problems which have arisen in connection with the promotion of the applicant, a Principal Administrator in Grade A 5, within his career bracket to Grade A 4. Case 186/84 concerns the further issue whether the applicant's periodic report for the period 1 July 1977 to 30 June 1979 is valid.

Before I summarize the faces, of the three cases, I think that I should outline the stages of the promotion procedure ( 1 ) as applied by the Commission.

At the first stage the administration draws up a list of all the officials who may be promoted in accordance with Article 45 (2)j of the Staff Regulations, in other words thelist of officials eligible for promotion..

At the second stage every Directorate General or comparable unit chxaoses frorm the list of officials eligible for promotion those official's whom it proposes for promotion.

At the third stage a Joint Promotion Committee becomes involved. This has before it the list of officials: eligible for promotion, their personal records and the reasoned promotion proposals of the Directorates General. It is not bound by those. proposals but may make its owił

The Promotion Committee has the task of considering the merits of all the officials eligible for promotion and of drawing up ai draft list of officials who are considered to be deserving of promotion. The Commission has laid down methods, of assessment to be applied in making, this selection. ( 2 ) Those methods of assessment comprise a points system under which the order of officials on the lists proposed by the Directorates General, the assessments contained in periodic reports, seniority im grade, seniority in service as well as the age of the offieialis are taken into account. In particular, officials placed first, second and third on the lists drawn up by the Directorates Generall may receive 70, 45 or 20 points, depending on the fengjåi of the lists, whilst a maximum of 28 points may be awarded for periodic reports, up to 28 points for seniority in grade, up to 20 points for seniority in service and up to 65 points, for age. Additionali points, aire to be awarded to officials who have been in the same grade for 15 years or more (4 points) or who were appointed directly to Grade A 5 as probationary officials. (7 points:). Finally, every official who was placed on the list, proposed by the Promotion Committee in the previous; year but was not promoted receives an additional 25 points. Using that points, system the Promotion Committee draws up a list of those officials whom it considers to be deserving of promotion. It sends that list together with a reasoned report to the appointing authority.

At. the fiaurth stage the appointing authority establishes; the list of those officials; wiw appear to be most deserving of promotion.

At the fifth stage the appointing authority promotes officials depending on the budgetary situation. However, in so doing it may consider only those officials, whose names appear on the list drawn up> at the fourth stage.

Now the facts.:

On 1 October 1969 the applicant, who was. born in 1927, entered the service of the Commission as a probationary official charged with the duties of a Principle Administrator (Grade A 5, Step 3) under the special procedure provided for in Article 29 (2), which did not require him to pass a competition.. On 1 April 11970 he was. appointed an established official. He was employed successively in various divisions within Directorate General VI (Agriculture); since 1973 he has been working in Division VI-A-3 (International Organizations for Agriculture).

Under a plan to reorganize Directorate General VI (Agriculture) which the Commission adopted on 22 November 1978 the applicant was to be assigned, according to a decision adopted on 13 March 1979, to Division VI-B-3 (Legislation relating to crop products and animal nutrition) as from 15 January 1979. ( 3 ) Unlike the other documents which are on the applicant's personal file, this decision is not accompanied by any acknowledgement of receipt. In the first draft of the applicant's periodic report for the period 1 July 1977 to 30 June 1979 ( 4 ) the date of his transfer is stated to be 15 January 1979; in the corrected version, however, it is stated to be 12 March 1980.

In a letter dated 10 January 1979 sent to the Director General of Directorate General VI (Agriculture) ( 5 ) and in a further letter dated 19 January 1979 sent to the Director General for Personnel and Administration ( 6 ) the applicant stated that he had learned that he was to be transferred to the newly created Directorate B of the Directorate General for Agriculture. Referring to his previous work — negotiations on non-tariff trade barriers within GA11/technical barriers to trade — the applicant requested to be transferred to Directorate General III, Directorate A, whose task was inter alia die elimination of technical barriers to trade. In 1977 aite responsibilities of Directorate H of the Directorate General for Agriculture, to which the applicant had belonged until then, were transferred to that Directorate General. A copy of the letter of 10 January 1979 addressed to the Director General for Agriculture had been sent by the applicant to the Member of the Commission responsible at that time for agriculture and fisheries.

On 20 February 1979 the applicant had an accident on his way to work which led to incapacity for work, initially of 35% and later of 50%.

By letter of 12 March 1980 ( 7 ) the Director General for Agriculture informed the applicant that it had been decided to employ him as from 15 January 1979 in the Division responsible for legislation relating to crop products and animal nutrition. The applicant's new employment meant a change of building. However, in a letter of 8 April 1980, ( 8 ) the Commission's Medical Service advised against such a change.

When taking up his duties at his new place of work on 16 June 1980 the applicant pointed out that the way to it was considerably more difficult than the way to his old office and therefore conflicted with the directions of the Commission's Medical Service. ( 9 ) Through the intervention of the Medical Service and the Personnel Division in 1981 it was then arranged for the applicant to be driven to work from his home and back again in an official Commission car. ( 10 )

On 1 April 1982 the applicant was transferred to Directorate General XI (Environment, Consumer Protection and Nuclear Safety), Division B 1 (Physical Protection of Consumers). Proposed for promotion by his new Directorate General in 1983 and 1984, the applicant was promoted to Grade A 4 as from 1 January 1984.

II — Case 173/82

In 1977 and 1978, the applicant, who had already been classified in Grade A 5 at the time of his recruitment, was proposed for promotion to Grade A 4 by his Directorate General. He was seventeenth on a list of eighteen candidates. ( 11 ) From 1979 to 1982 his Directorate General did not propose him again for promotion. Indeed, the lists of officials proposed for promotion from 1979 to 1982 were shorter; they no longer comprised the names of 18 officials, as in 1977 and 1978, but only eight, six, eight and 11 names respectively.

In 1977 and 1978 the Promotion Committee had not included the applicant's name on its list, so that he could not be promoted.

On 23 June 1982 the applicant lodged a complaint ( 12 ) and on 28 June 1982 an appeal against the decision of his Directorate General not to propose him for promotion. On 28 June 1982 the applicant also lodged an application at the Court for the adoption of interim measures to suspend the operation of the procedure for promoting officials to Grade A 4 in 1982. The Court dismissed that application by order of 29 November 1982 ( 13 ) on the ground that a delay in the promotion procedure would prejudice the interests of the service and constitute a breach of the principle of sound administration. It also held that the applicant had not adduced any evidence to establish prima facie that his application was well founded and that in any event there was nothing to prevent any damage which might be suffered by him from being properly made good.

By a decision of 17 September 1972 ( 14 ) the Commission dismissed the complaint pointing out that the proposals of the Directorates General were merely preparatory measures which did not affect the legal position of officials and thus did not constitute measures adversely affecting them. Only the decision of the appointing authority to promote a number of officials at the end of the promotion procedure could be the subject of a complaint and appeal; any irregularities in the preparatory measures could be challenged at that stage. The application in Case 173/82 is directed against that decision rejecting his complaint.

On 22 July 1982 the Commission, having received the proposal from the Promotion Committee, ( 15 ) drew up the list of officials most deserving of promotion to Grade A 4 and published this list on 6 August 1982. ( 16 ) In his reply in Case 173/82 of 17 November 1982 the applicant also requested the annulment of that list.

The applicant claims that the Court should:

(1)

Annul the defendant's decisions not to include him in either

(a)	the Directorate General's list of officials recommended for promotion or

(b)	the list of officials most deserving of promotion;

(2)	Annul the entire procedure of the Promotion Committee for 1982 in so far as promotions to Grade A 4 are concerned;

(3)	Order the defendant to pay the costs.

The defendant contends that the Court should:

(1)	Dismiss the application as inadmissible or in any event as unfounded;

(2)	Order the applicant to pay the costs.

(a)	The Commission considers that the application and the amended application are inadmissible since they are directed only against a preparatory act. The application should be directed against the final decision, in this case the decision establishing the list of officials promoted to Grade A 4.

(b)

The first thing which must be said about the Commission's argument is that, according to the decisions of the Court, actions against purely preparatory acts are indeed inadmissible. The Court has so held in inter alia its decision of 9 June 1980 in Case 123/80 ( 17 ) and in its judgment of 1 July 1964 in Case 80/63. ( 18 ) In the last case the Court stated inter alia that:

‘It emerges from Article 91 (1) of the Staff Regulations that disputes between the Community and any person to whom the Staff Regulations apply refer to the legality of an act “adversely affecting such a person”. Only acts which are capable of directly affecting the legal position of servants can be considered as adversely affecting a person.’

In that case the Court then dismissed the application as inadmissible in so far as it referred to an opinion of an Establishment Committee, although that Committee's opinion was binding on the appointing authority. The Court considered that only the decision to dismiss the applicant based on the Committee's opinion was an act adversely affecting him.

A preparatory measure was quite clearly involved in Case 123/80, in which the applicant had challenged the draft of a decision notified to him in order that he could make known his views before the adoption of the decision.

In the light of those criteria it must first be stated that on the whole the promotion proposals of the Directorates General undoubtedly have special importance in the promotion procedure. Particularly when an official is placed at the top of the list his chances of being considered by the Promotion Committee are good.

Nevertheless, the proposals made by the Directorates General are preparatory measures which are not binding, since when making its selections the Promotion Committee is not confined to the recommendations of the Directorates General. An official not considered for promotion by his Directorate General may request his case to be considered by the Promotion Committee, which is what the applicant did.

Only the list of officials most deserving of promotion established by the appointing authority constitutes a final measure, since an official not appearing on that list cannot be promoted ( 19 ) (this also applies to the establishment of the list of officials eligible for promotion since an official whose name does not appear on it cannot be included in the promotion procedure).

In the result I therefore consider the original application in Case 173/82 inadmissible.

In case the Court should nevertheless consider the application admissible (the judgment of 11 July in Case 236/82 ( 20 ) is perhaps an indication that the requirements for admissibility are not so strict in staff cases), it must first be observed that the amendment of the application extending the subject-matter of the dispute would in any event be inadmissible. The amendment is not confined to fresh issues which came to light in the course of the written procedure, such as would be admissible under Article 42 (2) of the Rules of Procedure. The challenging of the procedure of the Promotion Committee and the list of officials most deserving of promotion is a fresh dispute within the meaning of Article 38 (1) (c), which will be dealt with in connection with the second action (Case 157/83).

For the sake of completeness I must therefore consider the merits of the application.

(a)

In his first submission the applicant contends that the Director General of the Directorate General in which he was working in the period in question drew up the recommendations for promotion despite the fact that the reports provided for in Article 43 of the Staff Regulations had not been prepared for the period 1977 to 1979 or for the period 1979 to 1981 and that the consideration of the comparative merits of officials provided for in Article 45 of the Staff Regulations could not take place.

The Commission points out with reference to the case-law of the Court that in the case of an irregularity involving the absence of a periodic report the official concerned must show that that circumstance had a decisive effect on the promotion procedure. In other words, it must be established that the decisions at issue would have been different if the reports concerned could have been taken into account. However, the applicant has not adduced any evidence which would allow such a conclusion to be made.

(b)

In a consistent line of decisions ( 21 ) the Court has held that the periodic report which Article 43 of the Staff Regulations requires to be made at least every two years on an official constitutes an indispensible criterion of assessment whenever the administration must ‘take the official's career into consideration’. Thus, according to Article 45 (1) of the Staff Regulation, an official may be promoted only after consideration of the merits of the officials eligible for promotion and of the reports on them. Consideration of the merits of candidates does not satisfy the requirements under Article 45 if reports on some of them had already been made in accordance with Article 43 whilst the reports on other candidates were still outstanding.

Contrary to the defendant's view, in the aforementioned judgment the Court did not however lay down the principle that the plaintiff must prove that the absence of the report had a decisive effect on the promotion procedure. In Case 156/79 the Court formed the view on the basis of its own examination that even if a report had been drawn up in good time it would not have led to the applicant's promotion.

Case 263/81 did not involve the question of promotion but an application for a vacancy in the same career bracket as that to which the applicant belonged. This gave the Court the opportunity to state that its previous case-law did not imply that at the time when the appointment decision was taken all the applicants had to be at exactly the same position regarding the state of their periodic reports.

Finally, the only reason why the Court, in its judgment in Case 24/79, refused to grant the applicant's application for the annulment of the promotions which had been made, was that it considered the annulment of the promotions of 40 officials who were actually promoted to be excessive compared with the infringement found to have been committed. Instead of annulling the promotions and although the applicant had made no such application, the Court ordered the Commission to pay a certain sum by way of damages for its omission.

Although the Commission fails to find support for its views in the decisions of the Court, I nevertheless take the view that the absence of the report does not necessarily mean that the Directorate General's list of officials recommended for promotion must be annulled.

The absence of the report — indeed of two reports for the periods 1977-1979 and 1979-1981 — is undoubtedly a serious omission on the Commission's part. It must, however, be borne in mind that, even in a Directorate General comprising around 700 officials, the number of Principal Administrators in Grade A 5 eligible for promotion is not unduly large. It would seem from the Commission's list of posts set out in the Budget for 1982, ( 22 ) in conjunction with the organization plan for that period, that at that time about 40 to 50 Principal Administrators in Grade A 5 were working in the Directorate General for Agriculture. The number of those officials was therefore not so great as to prevent the Director General concerned, after consulting his Directors and Heads of Division, from forming a picture of the ability, performance and conduct in the service of the proposed officials, even if the reports provided for in Article 43 of the Staff Regulations were still not available.

(a)

In his second submission the applicant maintains that he was no longer included in the Directorate General's list of officials recommended for promotion because the Director General of his Directorate General took the view that he was no longer capable of performing the duties which could be expected of him. That view was based in particular on the fact that he could not perform the post assigned to him because his office was situated in a building which was difficult for him to reach and thus involved risks for his health.

The Commission contests this and points out that because of the limited possibilities for promotion the lists drawn up by Directorate General VI became shorter on the whole from 1979 onwards. The original number of officials proposed for promotion fell from 18 in 1977/1978 to six in 1980 and then rose to 11 in 1982. Moreover, the proposals of the Directorates General were published before the Promotion Committee came to consider them. Consequently, it was open to officials whose names were not considered to address themselves directly to the Promotion Committee. The applicant made use of that right.

(b)

In my view, the Commission's arguments on this point are convincing. The applicant has not adduced any conclusive evidence to support his assertion. In particular, his statements about the Director General's reasons are based entirely on letters which the applicant himself wrote; they are not appropriate evidence in this regard.

The Commission has also convincingly argued that the reduction of numbers on the lists of officials proposed for promotion was related to the limited possibilities for promotion. There is no evidence to suggest that, with a reduced number of officials proposed for promotion, the applicant necessarily had to be included amongst the proposed officials, since firstly the possibilities for promotion were fewer and secondly it cannot be ruled out that Principal Administrators in Grade A 5 with less seniority could move up in the group of officials eligible for promotion under Article 45.

I therefore suggest that the Court should also reject the second submission.

(a)

In his third submission the applicant alleges that the Commission abused its discretion; he bases that charge on the arguments he put forward to support his second submission and also on his Director General's unfriendly, hostile attitude towards him. In particular, his Director General refused to permit him to carry forward 19 days' leave which he had not taken, in previous years.

The Commission maintains that, as far as the applicant's place of work is concerned, it has followed the suggestions of the Medical Service. On the question of the refusal to allow a number of days' leave to be carried forward, it states that, according to the first paragraph of Article 4 of Annex V to the Staff Regulations, the carrying forward of leave is normally limited to 12 days unless the official was unable to take his leave because of the requirements of the service. The applicant was not therefore entitled to carry forward a greater number of days' leave. Besides, the number of days' leave to be carried over was not 19 but 12 1/2, so that the applicant lost only half-a-da^s leave.

(b)

As I stated above with regard to the second submission, the applicant has not produced any evidence of a fundamentally hostile attitude on the part of his Director General. The additional argument about the carrying forward of leave is answered quite simply by reference to the first paragraph of Article 4 of the Annex V to the Staff Regulations. According to that provision, where an official, for reasons other than the requirements of the service, has taken only part of his annual leave, the amount of leave which may be carried over must not exceed 12 days. The applicant has not even argued that he was prevented by the requirements of the service from taking his leave.

5.	In the result, I would therefore suggest that the Court should dismiss the application in Case 173/82.

Although I consider that the applicant will not win his case, I nevertheless suggest that the successful defendant should be ordered to pay the costs under the second paragraph of Article 69 (3) of the Rules of Procedure, the reason being that this dispute is to a large extent attributable to gross maladministration on the defendant's part, namely to the absence of reports for the years 1977 to 1979 and 1979 to 1981. According to Article 6 (1) of the Commission's General Implementing Provisions of 27 January 1979, the applicant's report should have been referred to him by 30 November 1979. However, this was not done until 24 February 1981, entailing a delay, therefore, of just under 15 months. Besides, it cannot be assumed that the periods laid down in the implementing provisions are at the disposal of the Commission's officials since in view of the limitations of human memory they are thoroughly justified.

It must be borne in mind that at the time when the contested promotion proposals were made the applicant's last report covered a period which ended on 30 June 1977, which was five years earlier. The Commission has not given any cogent reasons for this considerable inexplicable delay and so I consider it appropriate to require it to pay the costs.

III — Case 157/83

On 22 July 1982 the Commission drew up the list of the officials most deserving of promotion to Grade A 4. By a complaint of 27 October 1982 ( 23 )the applicant objected that his name did not appear on the 1982 list. By decision of 16 February 1983 ( 24 ) that complaint was rejected. For the grounds of its decision the Commission referred to its decision of 17 September 1982 rejecting the applicant's earlier complaint and also stated that officials had no right to promotion under Article 45 of the Staff Regulations since they were promoted on the basis of a selection after consideration of the comparative merits of the officials most deserving of promotion.

On 11 January 1983 the Commission published the list of officials promoted in the 1982 promotion procedure. ( 25 ) Because his name was not on that list, the applicant lodged a complaint on 23 February 1983, ( 26 )which was rejected by a decision of the Commission of 10 May 1983. ( 27 )

The reason given for that decision was that the applicant's name had not been on the list of officials most deserving of promotion; therefore the Commission was unable to promote him. The application in Case 157/83 challenges that decision.

The applicant claims that the Court should :

(1)	Annul the decision not to include him on the list of officials promoted to Grade A 4 in 1982 and, so far as necessary, annul the promotions made;

(2)	Order the defendant to pay the costs.

The Commission contends that the Court should:

(1)	Dismiss the application as unfounded;

(2)	Order the applicant to pay the costs.

The applicant's legal arguments in this case are identical to those in Case 173/82. It is therefore possible, with regard to his second and third submission, to refer entirely to the points made in relation to Case 173/83. ( 28 )

Only the first submission must be considered separately since it now relates to further developments.

In his first submission the applicant contends that at the time when the Directorates General drew up their promotion recommendations his reports for the periods 1977 to 1979 and 1979 to 1981 had not yet been prepared.

The Commission uses the same arguments which it used in Case 173/82 to refute this submission.

In Case 173/82 I came to the view that, although the absence of the two reports constituted gross maladministration on the Commission's part, the Directorate General was still able to form a picture of the merits of the Principal Administrators in Grade A 5 eligible for promotion and thus to draw up proposals recommending promotion. I came to the conclusion that the number of eligible officials could not have been so great as to make it impossible for the management of the Directorate General to assess the ability, efficiency and conduct in the service of the officials, even if the reports of individual officials were still not available.

The question now to be examined whether that argument may also be valid for the further course of the promotion procedure.

It must be pointed out in this regard that, as appears from the final report of the Joint Promotion Committee of 14 July 1982, ( 29 ) that committee had to deal with the promotion of all officials in Grades A 7, A 6 and A 5. We do not know how many officials the Committee dealt with individually; however, we do know how many permanent posts in Grades A 7 to A 5 were available to the Commission in the 1982 budget year. In its administration alone, there were more than 1200. If one adds the staff working at the Joint Research Centre and the staff of the subordinate authorities, the number of posts is above 1600.

Even on the assumption that probably not all the posts were occupied at the relevant time and also that not all of those officials could be promoted, the number of officials eligible for promotion must have been so great that it was no longer possible for the Promotion Committee to reach its decisions on the basis of personal knowledge of the officials concerned. In order to assess the merits of the individual officials it was therefore indispensible for the Promotion Committee to have their periodic reports at its disposal.

Since the applicant's report was not however available to the Promotion Committee, it was therefore not in a position in his case properly to take into account his analytical assessments in its deliberations.

At the hearing the Commission argued, however, that in cases in which no report is available, the previous report is automatically referred to and if it is not altogether good the highest possible total of 28 points is generally awarded to the official concerned.

The first point to be made in this regard is that in 1982 the report for the previous period Quly 1977 to June 1979) was not available either. Furthermore, the Commission has indicated only in general terms what happens in such cases. It has not shown that this procedure — to which there is no clear reference in the 1981 General Implementing Provisions ( 30 ) — was actually applied by the Promotion Committee in the applicant's case.

The Promotion Committee's report, ( 31 ) in the version produced by the Commission, does not at any rate contain any evidence that such a procedure was followed but merely states in general terms that the committee had examined the applicant's case and that he has been given new work which ought to allow him to prove his merits so as to enter into consideration for promotion in the future. In general, it may be stated that the number of points which may be awarded for individual staff reports (a maximum of 28) are not decisive in a system of appraisal in which over 200 points may be awarded. Nevertheless, the possibility cannot be excluded that even a slight difference in the number of points may determine whether or not the official concerned is ultimately put on the Committee's promotion list.

I also have strong reservations about whether the small importance attached to individual staff reports in the promotion procedure is compatible with Article 45 (1) of the Staff Regulations, which provides that promotion shall be exclusively by selection after consideration of the comparative merits of the officials. In my view, it is repugnant to that provision that only a total of 28 points — around 15% of the total number of points awardable — may be awarded for staff reports whereas up to 65 points may be awarded for age alone. Even with respect to a more performance-related factor such as an official's position on the Directorate General's promotion list, the Court has indicated in its judgment of 1 July 1976 in Case 62/75 ( 32 ) that it has reservations about whether the assessments made by the Directors General carry too much weight compared with the other evaluation factors — and this was after the previous evaluation system in which somewhat greater importance was attached to the evaluation of officials' performance.

Furthermore it is not clear to me why the marks ‘excellent’, ‘very good’ and ‘good’ are each given the same number of points (2). ( 30 ) It is not clear why the Commission introduced a more analytical evaluation system in 1979 when its results are then hardly taken into account when they matter, namely in the promotion procedure. However, I will not pursue this point any further since the applicant has not made any submission in this regard.

As regards the absence of the staff report, I refer to the Court's judgment of 30 October 1974 in Case 188/73, ( 33 ) in which the Court stated in paragraphs 25 and 26 of the decision that:

‘Article 45 provides that promotion shall be exclusively by selection after consideration of the comparative merits of the officials eligible for promotion and of the reports on them. While the appointing authority enjoys wide discretion in this matter, there is ipso facto an assumption that the exercise of this discretion will include careful examination of the files...’.

It is clear that such an examination could not have taken place and consequendy the promotion procedure is open to challenge.

However, in spite of that conclusion I do not consider that the Commission's decision regarding the promotions of officials to Grade A 4 in 1982 must be annulled.

In the first place it must be pointed out that, according to the case-law of the Court, the appointing authority has a wide discretion when deciding on promotions. It follows that, whilst an official eligible for promotion is entitled to a decision of the appointing authority free from any abuse of its discretion, he has no right to promotion itself. In the present case there is no evidence to suggest that the applicant would have been promoted if his staff report had been available. Therefore his application for an order annulling the Commission's promotion decision in so far as he was not considered for promotion cannot succeed.

The view I have taken ( 34 ) is that such a decision is not necessary. An official entitled to participate in a promotion procedure may challenge the list of officials most deserving of promotion even before the promotions have actually taken place and seek to safeguard his rights by means of an interlocutory injunction. However, after that there is no more scope for challenging the promotion of other officials.

As regards the applicant's further application seeking the annulment, so far as is necessary, of the other promotions to Grade A 4, if it must first be pointed out that at the hearing the applicant indicated that he does not necessarily insist on this; however, he has not formerly withdrawn this application.

To annul the Commission's decision to promote 51 other officials to Grade A 4 in 1982 would of course constitute a disproportionate hardship for the officials concerned. I refer in this regard to the Court's judgment in Case 24/79, ( 35 ) which I cited earlier. In that judgment the Court stated that:

‘The Court considers that annulment of the promotions of the 40 officials who have in fact been promoted to Grade B 2 would constitute an excessive penalty for the irregularity committed and that it would be arbitrary to annul the promotion of the only official from Directorate General VII who was in fact promoted to Grade B 2.’

However, the Court did not let the matter rest there but immediately went on to state that:

‘Nevertheless since this case involves proceedings in which the Court has unlimited jurisdiction it has, even in the absence of proper conclusions to that effect, the power not only to annul but also, if need be, of its own motion to order the defendant to pay compensation for the nonmaterial damage caused by the wrongful act or omission on its part. The award of such damages constitutes in the present case the form of compensation which best meets both the applicant's interests and the requirements of the department’.

I suggest that the Court should follow that precedent in this case.

In its judgment in Oberthiir the Court stated that in assessing the damage suffered it had to be borne in mind that the applicant would be able to take part in the next promotion procedure which the Commission would take care to conduct in accordance with the rules. In view of that fact the Court assessed the damage suffered ex aequo et bono and considered that the award of the sum of BFR 20000 was sufficient compensation for the applicant.

The applicant was a female official in Grade B 3 who was not promoted to Grade B 2 in 1978.

In the case of an official in Grade A 5 who was not promoted to Grade A 4 in 1982 I consider that compensation of BFR 40000 is sufficient in view of the difference in administrative status and the subsequent increases in salaries.

In conclusion, I shall therefore suggest that the Court should order the defendant to pay the applicant an amount of BFR 40000 as compensation for the absent report and that it should dismiss the remainder of the application and order the defendant to pay the costs.

IV — Case 186/84

Case 186/84 concerns the applicant's staff report for the period 1 July 1977 to 30 June 1979. ( 36 ) The first version of that report was drawn up on 10 February 1981 and some individual points were changed in September and December 1981. After various conversations the appeal assessor was called upon to adjudicate, and, after hearing the views of the Reports Committee ( 37 ) on 7 July 1983, he decided to uphold the staff report without alteration and without any statement of reasons. ( 38 )

It must be pointed out in this regard that by decision of 27 July 1979 the Commission adopted a new form of assessment procedure. Staff reports were set out differently: under the old assessment system ability, efficiency and conduct in the service were marked as ‘above average’, ‘average’ or ‘below average’; under the new system the individual assessments of ability, efficiency and conduct in the service are subdivided with the number of comments being extended to five: — excellent, very good, good, adequate and unsatisfactory. ( 39 )

Article 5 of the decision of 27 July 1979 provides that explanations must be provided for any change in assessment since the previous report. However, at the bottom of page 46 of the Guide to Staff Reports published by the Commission's Directorate General for Personnel and Administration, there is a footnote explaining that assessors are not required to make a comparison with the last staff report in reports covering the period 1977-1979. Something similar is to be referred from an undated letter sent by the Member of the Commission responsible for Personnel and Administration. ( 40 ) In the last paragraph on the first page of that letter it is pointed out that the new system differs considerably from the previous system and that consequently everyone concerned must to some extent disregard the previous reports as regards analytical assessments (‘... et réclame donc que tous les intéressés fassent dans une certaine mesure abstraction des notations précédentes, en ce qui concerne les appréciations analytiques’).

If the report for 1977 to 1979 is compared with the previous report it will be seen that in the previous report the marks for ability, efficiency and conduct in the service were each ‘above average’ whereas in the report for the period 1977 to 1979 the evaluations were ‘good’ in each case'; however, in the evaluation of his efficiency, his ‘adaptation to the requirements of the service’ was rated as only ‘adequate’.

Both reports were drawn up by the same official after consultation with the immediate superior, who was also the same person as before. No reasons were given for the poorer analytical assessment which was lowered from the highest of three possible ratings under the old system to the middle rating of five possible ratings under the new system.

According to the third paragraph of Article 7 of the decision of 27 July 1979, an official can apply to the Joint Committee on Staff Reports if he also disagrees with the appeal assessor's assessment. In its opinion of 15 June 1983 ( 41 ) that Committee first criticized the fact that the time-limits for the various assessment stages had not been observed. It also found that no reasons had been given for the significant change in the analytical assessment and also that the general assessment suggested no reasons for the analytical assessment. On the substance of the matter the Committee expressed doubt as to whether the report related exclusively to the period of assessment. Finally, the Committee requested the appeal assessor to explain the individual comments, in particular the comment ‘adequate’ for ‘adaptation to the requirements of the service’.

Although an unsigned and undated opinion of the appeal assessor sent to the Report Committee ( 42 ) contained some explanations of a general nature about the applicant's report, the final appeal decision does not state any reasons.

On 3 October 1983 the applicant lodged a complaint against the final report, ( 43 ) in which he essentially relies on the statements of the Joint Committee on Staff Reports.

In its reply to the complaint, ( 44 ) adopted in the written procedure on 18 April 1984, the Commission first of all acknowledged that it had not observed the time-limits for the issue of the report. As regards the contents of the report, the Commission refers to the aforementioned opinion which the appeal assessor prepared for the Joint Committee on Staff Reports. The Commission also points out that it cannot take the place of the assessor and alter the assessments in the report. Finally, it also points out that the individual marks ‘excellent’, ‘very good’ and ‘good’ are rated the same in the promotion procedure, namely with 2 points. ( 45 ) To that extent, apart from one exception — only one point is awarded for ‘adequate’ — the report could not have had any damaging effect in the promotion procedure.

The applicant is challenging that decision of the Commission in Case 186/84.

The applicant claims that the Court should:

(1)	Annul the Staff Report for the period 1977 to 1979 and the appeal assessor's decision not to changes the report on certain points;

(2)	Alternatively, order the defendant to pay the applicant compensation for the delay in drawing up the report in question in an amount which the Court shall determine;

(3)	Order the defendant to pay the costs.

The Commission contends that the Court should :

(1)	Dismiss the application as unfounded;

(2)	Decide the costs in accordance with the law.

(a)

In his first submission the applicant objects to the fact that the provisions adopted by the Commission for implementing Article 43 of the Staff Regulations, on which the Guide to Staff Reports is based, were adopted on 27 July 1979 with retroactive effect as regards the period from 1 July 1977 to 30 June 1979. He contends that an administrative provision may not be brought into force with retroactive effect.

In reply the Commission points out that in the decision of 27 July 1979 it is expressly stated that it relates to the assessment period from 1977 to 1979 and that the new implementing provisions do not moreover involve the application of retrospective rules to previous facts and circumstances but constitute a guide for the assessors as to how they must assess past performance of officials in the future.

(b)

It must be acknowledged that the implementing provisions adopted in July 1979 are not true retrospective measures. The provisions do not retrospectively interfere with the rights of officials but merely provide the assessors with a different system for assessing the performance of officials in a previous period.

It must also be pointed out that in administrative law the prohibition of adopting retroactive legislation is not as stringent as in criminal law for example.

Even if it would have been more expedient if the assessors had known during the assessment period itself, that is from 1 July 1977 to 30 June 1979, the criteria of assessment according to which they were to evaluate their subordinates, the Commission's adoption of new implementing provisions governing the staff reports of officials which are to be prepared directly after the adoption of the implementing provisions cannot be regarded as unlawful. Consequently, the first submission does not stand up to examination.

(a)

In his second submission the applicant points out that the report does not mention all the consultation which, in view of his various assignments, ought to have taken place. The report was prepared on 19 February 1981 by Deputy Director General Pizzuti when he was no longer Head of Directorate VI A, (International Affairs relating to Agriculture). Moreover, his former Head of Division, Mr Marinucci, could no longer give him instructions after 1 January 1979.

The Commission points out that, owing to the fact that the applicant's transfer planned for 15 January 1979 did not take place, it was impossible for the assessor to consult officials other than those belonging to the Directorate for International Affairs relating to Agriculture.

(b)

From sections 12 and 13 of the contested report we learn that the report was prepared by Deputy Director General Pizzuti, who was also Head of the Directorate for International Affairs relating to Agriculture, after consultation with Mr Marinucci, the former Head of Division VI A 3 (International Organization for Agriculture). The assessors therefore consulted the official who was the applicant's immediate superior until at least 1 January 1979 (and who in fact had also been his superior in the periods to which the two previous reports related).

The fact that Mr Marinucci apparently no longer worked in the aforementioned Division in the period from 1 January 1979 to 20 February 1979 — the day on which the applicant had his accident and became unfit for work — cannot affect the legality of the report, including the consultations required, in view of the fact that he was still the applicant's superior for 18 months of the assessment period and had been his superior for many years.

Furthermore, the applicant has not indicated who in particular the assessor ought to have consulted.

Consequently, this submission must also fail.

(a)

In his third submission the applicant observes that the analytical assessment changed considerably compared with the previous report and yet no reasons were given for the change.

In reply the Commission points out that a new system of assessment was introduced in 1979 so that it was impossible or at any rate very difficult to make a reasonable comparison with previous reports. For that reason the Commission expressly pointed out to assessors that comparisons were not to be made with previous reports. Although Article 5 of the implementing provisions of 27 July 1979required assessors to provide explanations for any change in the analytical assessment, this could only apply to assessments which were made on the basis of the same criteria. For that reason it is also pointed out on page 46 of the Guide to Staff Reports that assessors are free from the obligation to state reasons for changes as regards the period from 1977 to 1979. This is also apparent from a letter addressed by the Member of the Commission responsible for Personnel and Administration to the officials. ( 46 )

(b)

At this juncture it must first be noted that there is a marked contrast between the applicant's report for the period from July 1977 to June 1979 and his previous reports. Whereas from 1973 to 1977 he received the highest ratings for his ability, efficiency and conduct in the service on a scale consisting of three ratings, for the period from July 1977 to June 1979 he received, on a scale of five ratings, the middle or third rating — ‘good’ — except that his ‘adaptation to the requirements of the service’ in Section II, ‘Efficiency’, was judged to be only ‘adequate’, which is only the fourth best or second worst rating.

It must also be pointed out that the report in question as well as the two previous reports were prepared by the same assessor after consultation with the same Head of Division.

It is certainly possible to agree with the Commission's argument that, according to the case-law of the Court, staff reports are not to be measured against the second paragraph of Article 25 of the Staff Regulations, which provides that any decision adversely affecting an official must state the grounds on which it is based, since the third paragraph of that provision shows which types of decision are meant. ( 47 ) However, the third paragraph of Article 25 mentions only the decisions which must be posted in the premises of the institution to which the official belongs and published. There may therefore be some doubt as to whether the third paragraph of Article 25 really contains an exhaustive list of all the measures which may possibly adversely affect officials.

However, that question may be left aside since the second paragraph of Article 5 of the Implementing Provisions adopted by the Commission on 27 July 1979 expressly requires the assessor to state the reasons for any change in the analytical assessment.

Even the Member of the Commission responsible for Personnel and Administration could not exempt assessors from that obligation to state reasons — if that is what the quite vague statements in undated letter No IX/2418/69-F ( 48 ) were taken to mean. In order to depart from the decisions of the Commission taken as a collegiate body, special authorization would have been needed; however, as the defendant stated at the hearing, such authorization had not been granted.

Nor could a footnote in the yellow pages of the 1979 Guide to Staff Reports dispense assessors from that duty to state reasons. That guide, published by the Commission's Directorate General for Personnel and Administration, comprises, besides a cover sheet and an index, an introduction by the Member of the Commission responsible for Personnel and Administration, then the implementing provisions adopted by the Commission on 27 July 1979 and from page 13 onwards yellow pages with practical points on the drawing up of reports. The Guide therefore contains a series of texts of varying legal status and does not expressly state who is the author of the ‘yellow pages’, that is to say page 13 et seq. Even the Commission did not clearly say at the hearing who the author was; however, it may be assumed from the layout of the guide that from page 13 onwards the text was prepared by the Commission's administration. At any rate, it is clear that the ‘yellow pages’ printed at the end of the Commission's decision of 27 July 1979 do not form part-of the Commission's decision, since the decision contains no reference at all to any explanatory remarks.

It cannot therefore be assumed/that, by adding aifootnote on page 46 of the Guide to Staff Reports, the Commission's administration Could dispense with the duty to state reasons laid down in the second paragraph of Article 5.of the General Implementing provisions.

Since in its judgment in Küster, cited-, above, the Court acceptedthat there was a duty to state reasons for staff reports if such a duty was laiid down;in (the implementing provisions of the Community institution in question, ras is clearly: the case an this instance, it is no longer, neeessary to examine the question whether at lleast a deterioration in a staff report requires an explanation by virtue Article 25 of the Staff Regulations.

As regards the special case of reports in respect of the period 1977 to 1979, it must also, however, be noted that special circumstances exist in view of the transition: from a simple to a more analytical ysstem of assessment.

Thus, it may be justifiable to consider that & detailed statement of reasons is perhaps unnecessary if a slight difference in the report is merely due to due to a refinement of the system, for example where an official who received the best of three marks under the old system receives only the second best of five marks under the new system. In such a case it would have been sufficient to give the introduction of the new system as the reason for the change in assessment. However, where the assessment of the official's work was clearly worse even taking account of the adjustment of the report brought about by the refinement of the system, it was absolutely necessary to state reasons for the poorer assessment.

However, since the report in question provides no explanation as to why the report as a whole is clearly worse and, on the particular point of the applicant's ‘adaptation to the requirements of the service’, even substantially worse, this submission is well founded, and consequently the applicant's staff report for the period 1977 to 1979 must be annulled.

At the hearing the Commission sought to explain the reasons for the adverse change in the applicant's analytical assessment. It stated in particular that at the end of 1978 and the beginning of 1979 the Directorate General for Agriculture, to which the applicant had belonged at the material time, was in a difficult situation since the basic orientation of agricultural policy was in dispute in the Council of Ministers and at the same time the Directorate General had to be restructured. In addition to those difficulties, a new Director General had been appointed who first had to establish himself in his Directorate General. At that time the applicant resisted being assigned to another division of his Directorate General and thus created further difficulties for the newly appointed Director General for Agriculture at a time when he was facing considerable difficulties.

This may be true. In fact, it is clear from two letters written by the applicant on 10 and I-9 January 1979 that he had learnt by chance in conversations that he was to be transferred within die Directorate General for Agriculture.

However, it must be borne in mind that the actual transfer decision taken by the Directorate General for Personnel and Administration dates from only 13 March 1979, that is to say from a time when the applicant was already unfit for work following his accident on 20 February 1979. Moreover, the applicant denies having received that decision and, unlike in the case of other documents, there is no acknowledgment of receipt by the applicant attached to the decision on his personal file. According to the second paragraph of Article 26 of the Staff Regulations, that document cannot therefore be used against him.

It must also be stated that in the letter of the Director General for Agriculture of 12 March 1980, ( 49 ) in which the applicant was requested to assume his duties in his new division, there is no reference at all to his having been informed of his transfer within the Directorate General for Agriculture.

Consequently, the Commission's argument suggesting unsatisfactory ‘adaptation to the. requirements of the service’ may be disregarded in this case. Besides, that argument would have to be dismissed for having; been submitted out of time since no such argument was advanced in the complaint, procedure or in the written procedure, before the Court.

(a)

In his fourth submission the applicant contends that the assessor and appeal assessor based their judgment on events which happened after 30 June 1979 and were therefore outside the period of assessment. Since he has no right to inspect files, he must at any rate make that presumption.

In reply the Commission contends that there is nothing in the files which could support the applicant's assertion.

(b)	Since the applicant has not in fact adduced any evidence which could support his fourth submission, it must be dismissed.

(a)

In his'fifth Submissionen applicant contends that- the assessor as well, as the appeal assessor committed: a misuse- of; power bėeauserthey prepared and approving a report which was bound' tovpreyenr him. from- being; promoted from- Grade. A 5 to Grade.A. 4 i

To-support tHati assertion- the: applicane reliéson the same, presumptionss which; he indicated im thee fourth submission.

The Commission objects that the applicant hasi not. suggested', any- evidence; which, could supporti the; assertion o£ a, misuse of power.

(b)	Since once agaim the, applicant bases his fifth Submission on presumptions only and has: no, shown any actual evidence to substantiate it, this submission must also be dismissed.

(a)

In his. sixth submission the applicant points; out that in his final decision of 7 July 1983 ( 50 ) confirming the report the appeal assessor also failed to give any reasons at all for the adverse change in the analytical assessment. This, in his view, constitutes an infringement of Article 25 of the Staff Regulations; even if the appeal assessor was not obliged to comply with the opinion of the Joint Committee on Staff Reports, he should nevertheless have heeded the Committee's remarks about the duty to state reasons.

The Commission replies to that argument by referring to the case-law of the Court, cited above, according to which staff reports do not need to state the reasons on which they are based.

(b)

The first point which must be made in this regard is that the Commission's General Implementing Provisions of 27 July 1979do not provide for any express obligation on the appeal assessor's part to state reasons for his decision. However, it is clear from point C 2 (2) on page 67 of the Guide to Staff Reports that, if the Joint Committee on Staff Reports considers the objection of the person assessed to be justified, the appeal assessor must review the staff report file.

This was in fact the case in the present procedure since the Joint Committee on Staff Reports pointed out a number of weaknesses in the applicant's report.

As we have already seen, no reasons were given for the adverse change in the applicant's analytical assessment, and this was contrary to the second paragraph of Article 5 of the Commission's General Implementing Provisions of 27 July 1979. Even if one did decide that Article 25 of the Staff Regulations does not generally require reasons to be stated for adverse changes in an official's report and that this is only necessary where a special duty exists, as in this case, it must be remembered that, as far as the appeal assessor's duties are concerned, he is not in principle obliged to give reasons for his decision if he endorses a report which is correct in itself; however, if the report referred to him shows evidence of a procedural irregularity — like the failure to state reasons for an adverse change in the analytical assessment — it is then the duty of the appeal assessor to provide the missing exphnation in a decision upholding the report.

Since the appeal assessor did not do this, the applicant's sixth submission is well founded.

(a)

In his seventh, alternative submission the applicant claims damages for the considerable delay in the preparation of his report for the period July 1977 to June 1979, which was not finalized until 7 July 1983. He leaves it to the Court to decide the amount of damages; however, he considers an amount of BFR 100000 appropriate.

The Commission admits that there was considerable delay in the preparation of the repon; however, it also leaves it to the Court to decide whether the applicant should be awarded token damages. In any event, it disputes that the delay in the preparation of the report caused the applicant any measurable harm.

(b)

I have already stated that the considerable delay in the preparations of the staff report, for which the Commission has provided no legitimate excuse, is a serious omission on the part of its administration. Although the applicant has not produced evidence showing that the omission prevented or delayed a possible promotion, he has established that he has suffered nonmaterial damage due to the fact that his personal file is neither in good order nor complete. He is therefore entitled to claim damages for that irregularity in addition to the damages which he may claim in Case 157/83.

In a judgment of 5 May 1983 in Case 207/81 ( 51 ) the Court considered an amount of BFR 20000 appropriate to compensate the applicant for the delay in the drawing up of his report. If one considers that in that judgment the claim for the annulment of the applicant's report was dismissed whereas in this case it must be upheld, an amount of BFR 60000 seems to me fair compensation. It is necessary to take into account the fact that once judgment is given in this case the applicant will again be without a report for the period July 1977 to June 1979. Account must also be taken of the fact that the annulment of the report on the ground that the analytical assessments were considerably poorer for no stated reason is more serious than mere delay in the drawing up of the report.

V —

In view of all the foregoing, I suggest that in Joined Cases 173/82, 157/83 and 186/84 the Court should decide as follows:

Case 173/82

(1)	The application is dismissed as inadmissible;

(2)	The defendant is ordered to pay the costs.

Case 157/83

(1)	The defendant is ordered to pay the applicant BFR 40000 as compensation for its omission;

(2)	The remainder of the application is dismissed;

(3)	The defendant is ordered to pay the costs.

Case 186/84

(1)	The applicant's report for the period 1 July 1977 to 30 June 1979 is void;

(2)	The defendant is ordered to pay the applicant BFR 60000 as compensation for its omission;

(3)	The defendant is ordered to pay the costs.

( *1 ) Translated from the German.

( 1 ) See the Commission- Decision of 21 December 1970 in tne version of 14 Jury I-971, Administratives Notices of the Commission No 42 of 13 May 1975ļ. Annex 22 to the defence in Case 173/82.

( 2 ) See Admümtmtive- Notices No 309 of 26 February 1981, Annex 5 to the rejoinder in Case 173/82.

( 3 ) See ‘the ’decision óf the Director ‘of Directorate IX-A ’.(Personnel) of 13 /March 1979, Annex 3 to The defence in Case 173/82.

( 4 ) Annex 3 to the application in Case 1:86/84.

( 5 ) Annex 4 to the rejoinder in Case 173/82.

( 6 ) Annex 3 to the -rejoinder in Case 186/84.

( 7 ) Annex 10 to the defence in Case 173/82.

( 8 ) Annex 9 to the reply in Case 173/82.

( 9 ) Annex 13 to the reply in Case 173/82.

( 10 ) See the leners of 19 March 1981, 15 June 1981 and 7 October 1981, Annexes 14 to 16 to the reply in Case 17V82.

( 11 ) See above, p. 498, second stage.

( 12 ) Annex 3 to the application in Case 173/82.

( 13 ) [1982] ECR 4047.

( 14 ) Annex 14 to the defence in Case 173/82.

( 15 ) See its repon of 15 July 1982, Annex 15 to the defence in Case 157/83.

( 16 ) Administrative Noticei No 376 of 6 August 1982, Annex 19 to the defence in Case 173/82.

( 17 ) Decision of 9 June 1980 in Case 123/80 and 123/80 R, Ä v European Parliament, [1980] ECR 1789.

( 18 ) Judgment of 1 July 1964 in Case 80/63, Robert Degree v Comminion, [1964] ECR 391.

( 19 ) See lhe General Implementing Provisions of 21 December 1970, Annex 22 to tie defence in Case 173/82.

( 20 ) Judgment of 11 July 1985 b Case 236/82, Broxaram v Catinài [1985] ECR 2401.

( 21 ) See the judgment of 23 January 1975 in Case 29/74, Raphael de Dapper v European Parliament, [1975] ECR 35; judgment of 5 June 1980 in Case 24/79, Dominique Noëlle Obertbūrv Commission, [1980] ECR 1743; judgment of 17 December 1981 in Joined Cases 156/79 and 51/80, Pierre Gratreau v Commission, [1981] ECR 3139 and the judgment of 27 January 1983 in Case 263/81, Harold Usti Commission, [1983] ECR 103.

( 22 ) Official Journal 1982, L 31, p. 66.

( 23 ) Annex 17 to the defence in Case 157/83.

( 24 ) Annex 18 to the defence in Case 157/83.

( 25 ) Administrative Notices No 390 of 11 January 1983, Annex 20 to the defence in Case 157/83.

( 26 ) Annex 19 to the defence in Case 157/83.

( 27 ) Annex 21 to the defence in Case 157/83.

( 28 ) See above, II, 3 and 4.

( 29 ) Anna 15 to the defence in Case 157/83.

( 30 ) See Administrative Notices No 309 of 26 February 1981, Annex 5 to the rejoinder in Case 173/82.

( 31 ) Annex 15 to the defence in Case 157/83, p. 4.

( 32 ) Judgment of 1 Juh/1976 in Case 62/75, Jan Eliza de Wind v Commission, [1976] ECR 1167.

( 33 ) Judgment of 30 October 1974 in Case 188/73, Daniele Grassi v Council of the European Communities, [1974] ECR 1099.

( 34 ) See above, II B.l (b).

( 35 ) Judgment of 5 June 1980 in Case 24/79, Dominique Noille Obertbùrv Commission, [1980] ECR 1743.

( 36 ) Annex 2 to the application in Case 186/84.

( 37 ) Annex 7 to the application in Case 186/84.

( 38 ) Annex 8 to the application in Case 186/84.

( 39 ) Annex 5 to the rejoinder in Case 173/82.

( 40 ) Letter IX/2418/69 — F, Annex 4 to the rejoinder in Case 186/84.

( 41 ) Annex 7 to the application in Case 186/84.

( 42 ) Annex 10 c to the application in Case 186/84.

( 43 ) Annex 9 to the application in Case 186/84.

( 44 ) Annex 10 to the application in Case 186/84.

( 45 ) See Administrative Notices No 309 of 26 February 1981, Annex 5 to the rejoinder in Case 173/82.

( 46 ) Annex 4 to the rejoinder in Case 186/84.

( 47 ) Judgment of 25 November 1976 in Case 122/75, Berthold Kūlterv European Parliament, [1976] ECR 1685.

( 48 ) Annex 4 to the rejoinder in Case 186/84.

( 49 ) Annex 10 to the defence in Case 173/82.

( 50 ) Annex 9 to the application in Case 186/84.

( 51 ) Judgment of 5 May 1983 in Cue 207/81, Ktmo Ditterich v Commission, [1983] ECR 1359.

Opinion of Mr Advocate General Lenz delivered on 14 November 1985. # Gilbert Castille v Commission of the European Communities. # Official - Promotion procedure. # Joined cases 173/82, 157/83 and 186/84.

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