JUDGMENT OF 7.7.1964 — CASE 97/63 DE PASCALE v COMMISSION

In Case 97/63

THE COURT (Second Chamber) composed of: Ch. L. Hammes, President, R. Rossi (Rapporteur) and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts

The facts upon which the present case is based may be summarized as follows :

The applicant, Mr Luigi de Pascale, entered the service of the Commission of the EEC on 15 December 1958 and was placed in Grade A 4, Step 4 in Directorate-General III. On 4 May 1960 the Commission awarded him Grade A 4, Step 5 with effect from 1 March 1960. On 2 December 1960 the Commission awarded him by way of written procedure, the first supplementary step in Grade A 4, with effect from 1 December 1960.

The applicant was integrated under the Staff Regulations and established with effect from 1 January 1962, in Grade A 4, Step 6, in the Directorate-General of the Domestic Market, Right of Establishment and Services Directorate in the Right of Establishment Division.

By Vacancy Notice No 690, published in Staff Information Bulletin of the Commission of the EEC No 41 of 12 July 1963, the post of Head of Division in Division III-C-2 (Companies, Public Works Contracts, Cinema and Tourism) of the Right of Establishment and Services Directorate of the Directorate-General of the Domesti Market, classified in Grade A 3 and free from 7 August 1963, was declared vacant. The vacancy notice stated the nature of the duties and the qualifications required.

Any officials interested were invited to submit their applications before 19 July 1963. Among the seven applications received by the administration and qualifying for acceptance under Article 29 (1) (a) of the Regulations were those of the applicant and of Mr Gennaro Pandolfelli, an official in Grade A 4 in the Directorate-General of Competition. On the proposal of one of its members, Mr Levi Sandri, the Commission decided on 29 July 1963, to give the vacant post to Mr G. Pandolfelli by promoting him to Grade A 3 with effect from 16 August 1963.

II — Conclusions of the parties

The applicant submits that the Court should :

‘1. Declare null and void the decision whereby Mr G. Pandolfelli was appointed Head of the Companies, Public Works Contracts, Cinema and Tourism Division in the Right of Establishment and Services Directorate in the Directorate-General of the Domestic Market; 2. Order the European Economic Community or, alternatively, the Commission to bear the whole costs of the proceedings; 3. Note that the applicant reserves the right to raise in the proceedings any fresh issues of fact or of law as shall seem to him appropriate after the other parties have presented their defence and after production by them of any documents.’

In the reply he adds the following conclusions:

‘As a subsidiary point: 1. Order the other party to produce all documents submitted to the Commission and in particular the undermentioned, whilst in no way limiting his claim to the production of these: (a) the proposal of the Executive Secretary; (b) the opinions given by the administration; (c) the personal files of the candidates; 2. Order the other party to produce the whole file concerning the difficulties mentioned under 4, 5 and 6 of the statement of facts the scope of which is clarified in the submissions under VIII, and particularly: the note addressed by the Director-General, Mr Millett, to Mr Bruns and including particularly the paragraph: “It would in fact be distressing for me on the purely human level to have to use the facility offered in the first line of Article 26 to ask the Commission for a derogation from the general rule laid down by this Article:” 3. Authorize the applicant to prove by evidence : “(a) that it was made known some ten months before the post became vacant that everything would be done in the Directorate-General to ensure that the applicant should not obtain the post of Head of Division which was to he filled ; (b) that it was well known at the time that the post would be given to Mr Pandolfelli.”’

The defendant submits that the Court should:

‘Declare the application unfounded and rule on the costs according to the relevant provisions.’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

On admissibility

The applicant states in the reply that making the Community itself a party to the action is explained by Article 91 of the Staff Regulations, dealing with proceedings between ‘one of the Communities and any person …’, and by the need to avoid any plea of inadmissibility under this head. He emphasizes that making the Community a party to the action may have advantages if the Court considers it necessary to order production of the preparatory work on Regulations Nos 31 and 11 of the Council.

The defendant does not express any view on this point and does not contest the admissibility of the application.

On the substance

The applicant puts forward at the beginning of his application all the grounds stated in Article 173 of the EEC Treaty. In his statements, he further sets out, as follows, the submissions which form the basis of his application :

1. Infringement of Articles 43, 45 and 110 of the Staff Regulations

a) The applicant maintains that it appears from Article 110 of the Regulations that the promotion procedure provided for in Article 45 (1) should have been the subject of general provisions for giving effect to it adopted in accordance with Article 110, which provides that consultation with certain bodies is essential. Further, Article 45 (1) of the Regulations is not complete in itself. It is true that the administration enjoys discretionary power in the matter, but it must nevertheless conform to essential procedural requirements. In particular it must undertake a consideration of the comparative merits of the officials eligible for promotion and a comparison of their reports. The procedure for drawing up these reports is laid down in Article 43 of the Regulations and is also a matter for discussion within the Staff Regulations Committee which the Commission appears to have consulted. Consequently, to justify the promotion of Mr Pandolfelli, it does not suffice to claim that in the present case the consideration of the comparative merits of the officials took place: it is necessary that the administration should have undertaken this consideration, in accordance with Articles 43 and 110 of the Regulations, and should therefore have had the reports envisaged in Article 45 drawn up. The fact that Article 43 lays down a two year period for the drawing up of reports on the qualifications of officials for their posts does not indicate that these reports should not be drawn up immediately with a view to their being used for the purposes set out in Article 45. The defendant replies that Article 110 of the Regulations does not apply except to the extent that is necessary to supplement a provision of the Statute by general provisions for putting it into effect, and that Article 45 in particular is complete in itself. Without doubt the reports mentioned in this Article are those mentioned in Article 43 which lays down the procedure referred to in Article 110 of the Regulations for their preparation; but this does not imply in consequence that the comparative consideration provided for in Article 45 must also be governed by a general provision for giving effect to the Regulations. The procedure for drawing up the reports has not yet been adopted so, while waiting for the adoption of uniform criteria on the subject for all the institutions, the appointing authority was entitled to confine itself to a consideration of the comparative merits. On the other hand it is not possible to complain that the Commission has not drawn up these reports, when the first period of two years provided for in Article 43 has not yet expired and their preparation for all the servants of the Community constitutes a different and time-consuming operation.

b) The applicant further maintains that a consideration of the comparative merits of officials eligible for promotion provided for in Article 45 (1) of the Regulations did not take place in the present case since this consideration is only possible on the basis of predetermined objective criteria, known to officials in advance. The settling of these criteria is in conformity not only with Article 5 of Annex III, with the Regulations in general. It is in fact the only guarantee that Article 25 of the Regulations will be applied strictly and that no consideration outside the interests of the service is taken into account in the selection made by the appointing authority. The Commision did not decide in advance on the criteria in question and independently of the promotion which it was about to undertake (for the purpose of judging the legality of the procedure followed by the Commission concerning promotions, the applicant refers to the views contained in a memorandum of the Staff Committee of 27 May 1963, the production of which he will possibly request, and to the White Book of this same Committee), and was not thus able to undertake the consideration of the comparative merits provided for in Article 45 of the Regulations. The defendant replies that no provision of the Regulations lays down, even by implication, the obligation which the applicant seeks to impose on the Commission. Further, it explains, either the preliminary determination of criteria to be followed in the consideration of the comparative merits of the candidates gives only a guide on the matters to be taken into consideration, and in that case it constitutes no guarantee in addition to those which officials already enjoy, or else it is imposed upon the appointing authority in each individual case, and then it is an infringement of the freedom of choice laid down in Article 45 (1) of the Regulations. In reality, adds the defendant, the applicant appears to have misunderstood the real meaning of promotion; it is not a right, and necessarily presupposes that the freedom of choice of the appointing authority shall not be limited by predetermined criteria.

c) The applicant replies that in any event it is not established that the Commission has considered the comparative merits of the officials eligible for promotion and the reports upon them. It is wrong to claim that the applicant is obliged to prove that this complaint is well-founded. It is for the Commission to prove that a consideration of the comparative merits took place. For this purpose it should produce the minutes of the meeting at which the decision to promote Mr Pandolfelli to Grade A 3 was taken or the documents concerning the procedure followed in the present case. Further, the Commission itself does not dispute that the reports, which have to be made in the manner laid down in Article 43, have not been considered in accordance with the requirements of Article 45, since, as stated, these reports have not yet been prepared. Article 45 of the Regulations formally provides for the consideration of these reports for the purpose of every promotion; the explanations given by the Commission of the reasons for which they were not drawn up are thus of no importance as a test of legality. Further, the reports drawn up for the establishment of the applicant and of his fellow candidate do not admit of an adequate comparison. As for the reports drawn up after 1 January 1962, these cannot be taken into consideration since they were not drawn up in accordance with Articles 43 and 110 of the Regulations. The applicant ends by pointing out, by way of additional evidence of the fact that consideration of comparative merits did not take place in the present case, ‘that it had been decided many months before the post became vacant that in any event everything was to be done to ensure that the applicant should not be appointed Head of Division 2’. The defendant replies first of all that the burden of proof falls here as usual, on him who puts forward the arguments or facts to be established. The converse applies only where the party disputing the validity of an act adduces at least prima facie evidence. One cannot find in the statements produced by the applicant any argument or fact amounting to prima facie evidence; on the contrary, the Commission is in a position, on the basis of documents produced, to establish that consideration of the comparative merits certainly took place in the present case The defendant does not dispute, further, that the reports prepared for the purpose of integration of the officials could not be used for the promotions envisaged in Article 45 of the Regulations and that moreover the reports provided for in Article 43 had not yet been prepared. But it asserts that nothing in the provisions of Article 45 prevents the Commission from making the promotions required by the exigencies of the service when the reports provided for in Article 43 do not yet exist because of the circumstances.

2. Infringement of the last part of Article 5 of the Regulations

The applicant maintains that the duties and powers of the post which became vacant were not described in advance in accordance with the last part of Article 5 of the Staff Regulations, that is to say after consideration of the views of the Staff Regulations Committee and if need be after consultation with the Staff Committee, this Article creating no exception to the provisions of Article 110.

3. The argument of the defendant, that the definition of the duties provided for in Article 5 was a lengthy business and the exigencies of the service in the meanwhile called for vacant posts to be filled immediately, is not convincing. In fact on the one hand the opinion of the Staff Regulations Committee provided for in this Article 5 appears to have been given on 28 June 1962, and to have been sent to the Presidents of the Councils on 1 August 1962; on the other hand it appears that all the other institutions have already laid down the definition of the duties and powers (also called ‘job description list’). Furthermore the European Parliament expressed regret, at its meeting on 6 February 1963, at having to state that the integration and classification were not completed in certain institutions by the end of the year 1962. The Commission has thus only itself to blame if it is not in a position to make promotions in accordance with the legal rules. It cannot justify itself by relying on the necessity to fill vacant posts immediately for service reasons: account must be taken of the fact that at present there are about 600 auxiliaries, not to mention the possibilities offered by the provisions on temporary engagement.

It cannot be alleged, on the other hand, that if the Commission had adopted the opinion expressed by the provisional Staff Regulations Committee, the description of the duties of Head of Division would have been no different from that appearing in the vacancy notice. The delay of the Commission in adopting the report of the Committee can be explained only by the consideration that the Commission probably had no intention of following this report in its entirety. In any event there is no reason to discuss pure hypotheses.

Further, the argument of the defendant that the definition of duties provided for in Article 5 of the Regulations is not a concept analogous to that of the description of duties appearing in the vacancy notice, is hardly comprehensible. The general definition of duties provided for in Article 5 (4) of the Regulations, particularly of those which appear in Annex I is, in fact, a necessary starting point, a sort of chapter heading under which the more complete descriptions of the various positions existing in the detailed list of posts constitute only subdivisions; although at different levels, it is thus a case of the same operation each time. Consequently, in the present case the actual abilities of each candidate should have been considered by reference to the theoretical description of the vacant post; but this description should have been prepared previously, in accordance with the provisions of the Staff Regulations.

It is furthermore quite remarkable to observe that the defendant considers that it was not necessary for it, as a preliminary, to provide the definition of the duties required by the last part of Article 5 of the Regulations, in anticipation of making promotions, whilst it has maintained elsewhere — notably in Case 82/63 — that this description was indispensable for it to classify servants who had been integrated under Article 102 of the Regulations.

The defendant raises the following objections:

The adoption of the argument that no promotion is possible so long as the definition of duties provided for in the last part of Article 5 of the Regulations has not been settled would lead to a paralysis of the activity of the Commission, since the exigencies of the service, which call for vacant posts to be filled immediately, might not be met.

The applicant is contusing the description of the duties in the vacancy notice, which is necessary for promotions and appointments, with that provided for in the last part of Article 5 of the Regulations which must allow the classification of all the posts in one of the grades of the Regulations. The vacant post has been classified in Grade A 3 and no dispute on the subject of that classification has been brought before the Court.

Further even in the absence of the definition provided for in the last part of Article 5 of the Regulations, the Commission was in a position to assess the abilities of each candidate to fill the vacant post, since it was not so much a matter of knowing whether they were able to satisfy the general and abstract conditions laid down by a particular definition as of knowing whether they could carry out the particular duties which were involved.

At the time when the decision to appoint Mr Pandolfelli was made, the Commission had at its disposal all the necessary particulars to judge the capabilities of the candidates. In fact during the meeting of 29 July 1963 — which is none other than that during which the disputed decicision was taken — the Commission decided to adopt the definition of the basic posts appearing in the opinion given by the Staff Regulations Committee. In adopting this definition, the Commission satisfied the requirements of the last part of Article 5 of the Regulations, which does not require that the institution should give a detailed definition of the actual duties of each particular post. The description of the duties attaching to the disputed post which was given in Vacancy Notice No 690, is not at variance with that of the basic post of Head of Division, as adopted by the Commission. It is thus clear that if this description had been prepared before the appointment of Mr Pandolfelli, the Commission would not have had any other factors available than those resulting from the vacancy notice in question.

3. Lack of reasons given in the decision to promote Mr Pandolfelli to Grade A3

The applicant maintains that in accordance with Article 25 of the Regulations any decisions adversely affecting officials must state the reasons on which they are based. In the case of a promotion decision this statement of reasons is necessary not only as regards the candidate who was promoted but also as regards the candidates who were not promoted. In fact, the statement of reasons is regarded by the Court as an essential procedural requirement for guaranteeing observance of the law for every official and there is no doubt that the officials who are not promoted have the right to know from the statement of reasons whether the promotion of another official was made in accordance with the Regulations and does not therefore involve a misuse of powers. There must be no neglect in fact of Article 4 of the Staff Regulations which, in laying down the obligation to publish every vacancy, proves that officials who submit applications have a legally protected interest enabling them to appeal against a promotion adversely affecting them. The Commission itself has furthermore recognized in Cases 98 and 99/63, that only officials who have submitted an application for the vacant post have a direct and individual interest in requesting the cancellation of the notice of vacancy (preparatory to a promotion). Furthermore if the defendant admits that the application is admissible, it does so under Article 91 of the Staff Regulations, that is to say, in implied recognition that the disputed decision adversely affected the applicant. It thus follows that reasons for this decision should have been given, in accordance with Article 25 of the Regulations, in respect of the applicant.

The applicant relies on national case-law, as well as that of the Court, to prove that the duty to give reasons applies even apart from Article 25 mentioned above.

The defendant states first of all that Article 25 of the Regulations only requires reasons to be given for decisions relating to a specific individual adversely affecting the person to whom they are addressed and that consequently the duty to give reasons for a decision has to be determined with that person, and not with the subject-matter of a decision in mind. That said, the defendant states that no promotion decision need state the reasons on which it is based since, on the one hand it does not adversely affect the person concerning whom it has been taken, that is to say the official promoted, and on the other hand it has not been taken in respect of the officials who are not promoted.

The positive decision on a promotion, states the defendant, does not have to be accompanied by as many negative decisions as there are candidates not promoted. A promotion decision concerning one official, which may constitute a refusal of promotion for the other candidates, is not a sanction or a measure similar to dismissal so far as they are concerned; their rights are in any event safeguarded by the fact that they may request the annulment of such a decision. The fact that the appointment or the promotion of an official may adversely affect another official and thus be the subject of an appeal within the meaning of Article 91 of the Regulations, does not carry with it the duty to give reasons for such a decision. To the extent that this decision may be regarded as a refusal of promotion as regards the other candidates, it amounts to an implied refusal and cannot therefore be accompanied by a statement of the reasons on which it is based.

The defendant lastly disputes that the case-law relied upon by the applicant is relevant to the present case.

4. Failure to publish the contested decision

The applicant maintains that he learned of the disputed decision by confidential means whereas this measure should have been published in accordance with Article 25 of the Regulations. First of all, he states, this publication is required to allow servants who have an interest in it to put forward their arguments, either by an administrative appeal or by an appeal before the Court; secondly it does not amount to a formality a posteriori, as the defendant claims, but to an essential procedural requirement. In fact, promotion is the very type of ‘acte de procédure’ (‘procedural measure’) which is only perfected if all the formalities have been completed, and the publicity provided for in Article 25 of the Regulations should be regarded as an intrinsic element of the validity of this measure.

The applicant maintains lastly that the Commission should provide proof of the truth of its statement that the appointment of Mr Pandolfelli was posted in the premises of the institution from 21 October to 2 November 1963.

The defendant on the other hand points out that, in accordance with the general principles common to the administrative laws of the Member States, the publicity in question is only a formality following a measure which has already been adopted and having no bearing upon the validity of the latter. Its only purpose is to give effect to the measure published vis-à-vis third persons, and particularly to observe the time-limits within which third parties can make an appeal against the measure in question.

In the account of the facts in its statement of defence, the defendant mentions that the decision to appoint Mr Pandolfelli was posted in the premises of the institution from 21 October to 2 November 1963.

5. Mistaken evaluation of several factors

The defendant having pointed out in its statement of defence that the complaint of the applicant is quite unwarranted and that it is not supported by any evidence or offer of evidence, the applicant answers in the reply that it is for the Commission to produce a complete file of documents so as to allow the Court to review the legality of what has been done.

Alter mentioning that me file produced has many gaps, the applicant draws attention to certain of the qualifications required by the Vacancy Notice No 690, saying that the Commission does not appear to have taken these into account, because it is the applicant himself and not Mr Pandolfelli who has these qualifications.

The defendant in the rejoinder rejects the arguments put forward by the applicant. It points out in particular that the qualifications required for a vacant post do not give an official who possesses them, any right to be appointed to this post and does not limit the freedom of the administrative authority to prefer another candidate whose abilities and qualities have been regarded as superior to his. The defendant lastly mentions that Mr Pandolfelli has the qualifications indicated by the applicant which appear in Vacancy Notice No 690.

6. Misuse of powers in that the applicant was prevented in an illegal manner from temporarily occupying the post of Head of Division 2 (Eighth submission in the application)

The applicant recalls that in the absence of the Head of Division 2 it was decided that Mr Bruns, director of the Right of Establishment and Services Directorate, should temporarily occupy the vacant post. Since this post is the one which was the subject of Vacancy Notice No 690 and was filled by the disputed decision through Mr Pandolfelli's promotion, the applicant has been deprived, at least partially, of the opportunity of proving his worth with a view to obtaining the said post. In order to allow a better understanding of this complaint the applicant sets out the facts upon which his administrative appeal of 16 May 1963 was based, showing, in his opinion,

that an attempt has been made systematically to reduce the scope of the duties allotted to him;

that the necessary human and material resources have not been made available to him;

that he has been illegally refused the temporary post of Head of Division 2.

The applicant disputes more particularly the note of Mr Bruns of 22 March 1963, refusing him the above-named temporary post (against which he made an administrative appeal on 16 May 1963 and 15 December 1963, and reserves the right to bring an independent application before the Court of Justice), a refusal which he considers as a ‘preparatory element’ in the misuse of powers alleged in the present case.

The applicant explains in this connexion that the note in question contains an illegal and invalid decision:

since it constitutes an infringement of Article 26 of the Internal Regulations of the Commission; and

since it is vexatious, discriminatory and constitutes a disguised sanction.

The Commission replied to the above-mentioned complaints on 24 January 1964.

The defendant replies that the present application, having been brought against the decision to appoint Mr Pandolfelli to the post of Head of Division 2, can question the legality of measures relating to the temporary filling of this post only if these measures are not devoid of any connexion with the disputed decision. There is indeed no such connexion. In the first place, the applicant — whose position as the senior official in the highest grade has been disputed — cannot infer from the above-mentioned measures any factor showing any animosity whatever towards him. Secondly these measures do not affect any of the rights which the applicant is able to point to on the basis of the Regulations. The only right of which the official can take advantage within the meaning of the Staff Regulations is that included in Article 7 (1) from which it follows that every official ought, in the case of a temporary appointment, to be put into a post of his category or service, corresponding to his grade: but this provision does not recognize at all that an official has the right to be designated to occupy temporarily a post in a career bracket of his category or service, above his own career bracket. The measures taken in this respect, particularly on the basis of Article 26 of the Internal Regulations of the Commission are not liable to affect officials adversely when they are taken in the interest of the service.

In the present case it is only for reasons based on this interest that the decision concerning the temporary occupation of the post of Head of Division 2 was adopted. It thus has not the character of a vexatious or a discriminatory measure or of a disguised disciplinary sanction; it cannot in consequence amount to a decision adversely affecting the applicant within the meaning of Article 91 of the Regulations, which can be contested by an appeal to the Court of Justice.

Lastly, even it the applicant had been appointed, as a temporary measure, to occupy the post of Head of Division 2, he would not have had any particular claim to be established in this post. On the other hand the applicant has not been prevented since entering the service of the Commission from proving his worth with a view to obtaining the vacant post: he was even designated deputy to Mr Bruns in the carrying out of the duties of Head of the Companies, Public Works Contracts, Cinema and Tourism Division when the latter was absent.

7. Infringement of Articles 2 and 11 of the Internal Regulations of the Commission

The applicant adds lastly, in the statement in reply, a supplementary submission of nullity, by making the following points:

since the defendant claims that in the present case the written procedure was adopted, the Commission should have laid down detailed rules for the application of Article 11 of the Internal Regulations of the Commission, concerning the procedure in question. If such detailed rules were not laid down — something about which the applicant does not know in the absence of publication — the disputed decision is at least vitiated by infringement of essential procedural requirements or of a rule of law concerning the application of the Regulations.

The contested decision infringes the wording of Article 11 mentioned above, since in the present case the Written procedure was commenced upon the proposal of the Executive Secretary, whilst this Article provides that it is initiated on the proposal of one of the members of the Commission.

The contested decision does not give reasons why the Commission derogated from Article 2 of its Internal Regulations.

The defendant replies that, since it appears both from the account of the facts in the statement of defence and from the documents produced by the Commission that the contested decision was taken by the latter during its 238th meeting, on 29 July 1963, the complaint of infringement of Articles 2 and 11 of the Internal Regulations fails.

The applicant considers lastly that the file produced in the proceedings by the defendant is quite incomplete, since it contains only the vacancy notice and a note from Executive Secretary of the Commission. He maintains that the Court must be put in possession of the complete file on the basis of which the Commission took its decision, and indicates which are the documents which should be produced (see subsidiary conclusions 1 and 2). After recalling that certain of these documents had been lodged by the Commission, at least in extract, in Case 27/63, the applicant ends by stating that the production of this file would enable him to drop the reservations which he had made in his application about raising any fresh issues in the proceedings.

The defendant produces, by way of schedule to its rejoinder, an extract of the minutes of the 238th meeting of the Commission, as well as the proposal of Mr Levi Sandri, a member of the Commission, to appoint Mr Pandolfelli to the vacant post, Vacancy Notice No 690 and the applications submitted.

It has serious misgivings about producing personal files of candidates other than the applicant, these files being of a confidential nature and relating to officials who are not parties to the action. As to the production also of the file concerning the difficulties which gave rise to the administrative appeal of the applicant, it considers this file bears on a question which has nothing to do with the issues in the present proceedings.

IV — Procedure

The application was lodged on 28 October 1963.

The written procedure followed the normal course.

Upon hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the Second Chamber of the Court by letter of 17 March 1964 called on the defendant to lodge before 16 April 1964 the text of the opinion of the Directorates General of the Domestic Market and of Administration, obtained by the Commission with a view to filling the post of Head of Division III-C-2, appearing in the Vacancy Notice No 690.

The defendant lodged its reply on 13 April 1964.

The oral procedure took place on 17 June 1964.

The Advocate-General delivered his opinion on 24 June 1964.

Grounds of judgment

A — The naming of the Community as a party

The application is brought against the European Economic Community or, ‘alternatively’, against the Commission of that Community.

The defendant submits that the institutions do not have a legal personality separate from that of the Community and that, therefore, the Commission alone should be made a party to the proceedings.

Under Article 179 of the EEC Treaty, ‘The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment’. The expression ‘the conditions laid down in the Staff Regulations’ necessarily implies that there is conferred upon the institution itself, as the appointing authority, the right to be a party to legal proceedings relating to disputes with its servants and officials. In fact Article 90 of the Staff Regulations of officials of the EEC, governing complaints by officials through official channels prior to an appeal to the Court, provides that any official may submit a request or complaint to the appointing authority of his institution. The appeal to the Court referred to in Article 91 of the Staff Regulations must follow similar rules and be made against the same institution. The present application must therefore be regarded as being brought against the Commission of the EEC, which in this case is the institution to which the appointing authority responsible for the contested measure belongs.

Admissibility

The admissibility of the appeal is not disputed by the defendant and no grounds exist for the Court to raise the matter of its own motion.

Substance

Infringement of Articles 43, 45 and 110 of the Staff Regulations

1. The applicant maintains first of all that the decision made was adopted without Article 45 (1) of the Staff Regulations having been the subject of general provisions for giving effect to the Staff Regulations, adopted and published in accordance with Article 110. The application of Article 145 requires no measure for giving effect to it other than that laid down in Article 43, to which Article 45 refers by implication. The application of this provision presupposes that reports have been made on the ability, efficiency and conduct in the service of officials, these reports being one of the factors upon which all decisions on promotion must be based. At the date of the contested decision, no institution was in a position to adopt the general provisions for giving effect to the Staff Regulations — and it is the failure to do this which is alleged in the action — by reason of the date of publication and entry into force of the Staff Regulations. The latter not having been published until 14 June 1962 and having taken retroactive effect only on 1 January 1962, it must be admitted that, at the date when the contested decision was made, institutions of the Community were still in a transitional period as regards the application of the Staff Regulations. The fact that at that date the Commission had not yet adopted general provisions for the drawing up of the reports provided for in Article 43, cannot of itself be regarded as a ground for the nullity of the disputed decision. Article 45 had to be applied without its having been possible for the reports for which it makes provision to be drawn up in accordance with the provisions of Articles 43 and 110 of the Regulations. An omission of this nature does not appear to be such as to lead to the nullity of the contested decision, taking into account especially the exigencies of the service. The present submission is unfounded.

2. The applicant furthermore maintains that the disputed decision is defective in that it was adopted on the basis of an evaluation which was quite insufficient and without the Commission's having been able to undertake a consideration of the comparative merits of each candidate, and in particular of the merits of the applicant. The Commission thus did not observe the safeguards afforded by Article 45 of the Staff Regulations to officials eligible for promotion, those safeguards being the counterweight to the wide powers available to the Commission in this matter. The Commission, wide as its discretionary powers may be, must, in accordance with the first paragraph of Article 45 (1) of the Staff Regulations, take into consideration the comparative merits of each candidate and using comparable sources of information. It appears from documents produced during the proceedings that the members of the Commission in the present case had available for the above-mentioned consideration, only the proposal of one of their number, the application forms of the candidates and Vacancy Notice No 690. The proposal of one of the members of the Commission to promote Mr Pandolfelli to the vacant post stated only the qualifications for the post of this one official and contained only vague allusions to the possible merits of the other candidates, who were serving in three different Directorates General. The application forms submitted by the persons concerned themselves, without any verification or check by the appropriate departments of the Commission, are documents of an essentially subjective nature, the content and scope of which can be evaluated only with considerable care in a matter requiring as objective a consideration as possible of the merits of each candidate. No evidence has been tendered that the Commission supplemented its information by consulting the personal files of the candidates in which must appear in particular the opinions of their immediate superiors. It follows that the factors on which the Commission took its decision did not enable it to undertake a consideration of the comparative merits on a basis of equality and taking account of comparable sources of information. It therefore appears that the disputed decision on promotion was not adopted in accordance with the provisions of the first paragraph of Article 45 (1) of the Staff Regulations and that it must be regarded as defective, without there being any need to consider the other submissions in support of the application.

Costs

The applicant has succeeded in the essential point of the application. Under Article 69 (2) of the Rules of Procedure the defendant shall be ordered to pay the costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community, especially Articles 43, 45, 90, 91 and 110 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (First Chamber) hereby :

1 Annuls the decision to promote Mr Gennaro Pandolfelli to the post declared vacant by Notice No 690 in Division III-C-2;

2 Orders the Commission of the European Economic Community to bear the costs.