JUDGMENT OF 8. 7. 1965 — JOINED CASES 27 AND 30/64 FONZI v COMMISSION

In Joined Cases 27 and 30/64

THE COURT (First Chamber) composed of: R. Lecourt, President of Chamber, L. Delvaux (Rapporteur), and A. Trabucchi, Judges, Advocate-General: K. Roemer Registrar: H. J. Eversen (Assistant Registrar)

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows :

A —) Mr Fulvio Fonzi, a scientific official (Grade A5, Step 4) at the Ispra Joint Research Centre, posted to the European Centre for the Processing of Scientific Information (CETIS), on 12 February 1964 lodged with the EAEC Commission a complaint through official channels against the decisions regarding promotion taken in 1963 in favour of a certain number of his colleagues and from which he himself did not benefit. Mr Fonzi alleged the irregularity of the above-mentioned decisions, claiming to have been arbitrarily excluded from the consideration of the comparative merits of the officials eligible for promotion, because the members of the local promotion committee at Ispra had not his personal file at their disposal, and because the periodical report concerning him provided for in Article 43 of the Regulations was not communicated to him until after the termination of the work of the committee. By a decision of 26 March 1964, the Commission of the EAEC rejected the said complaint, on the basis, first, that Mr Fonzi's allegation concerning his personal file was incorrect, and secondly that the notification of the periodical report to him after the ending of the work of the promotion committee had caused him no damage, the report in itself being favourable to the person concerned and the latter's comments in reply having been brought to the knowledge of the Commission. Mr Fonzi on 26 June 1964 lodged his application to the Court of Justice in Case No 27/64 principally for the annulment of the decisions regarding promotion taken for the year 1963, at least as concerns the promotions from Grade A5 to Grade A4 and, further for the annulment of the decision of rejection of 26 March 1964, and for the Commission to be asked to give further consideration to the comparative merits of the candidates including the applicant.

B —) On 21 February 1964, Mr Fonzi lodged with the Commission of the EAEC a complaint through official channels, asking for its intervention in respect of certain conduct which he described as irregular and detrimental to his professional dignity and bis honour and which had occurred during the preceding months at the Ispra Joint Research Centre (Schedules 3 and 4 to the application in Case 30/64). The absence of a decision by the Commission in reply to this complaint through official channels amounts to an implied decision of rejection at the expiration of a period of 2 months, namely as from 22 April 1964. In the second place, the Commission of the EAEC by a decision of 26 March 1964, notified on 24 April 1964, reprimanded Mr Fonzi for ‘having conducted a systematic campaign of disparagement against certain officials of his department’ (Schedule 5 to the application in Case 30/64). In the third place, a decision of the Commission of the EAEC which, according to the applicant, ‘appears to be dated 24 June 1964, but was not properly notified to him’, required Mr Fonzi to go immediately to Brussels to take up duties there provisionally, without prejudice to a later posting to Jülich (Schedules 6, 7, 8 and 9 to the application in Case 30/64). On 13 July 1964 Mr Fonzi lodged a second application at the Court of Justice (Case 30/64) for the annulment of the three abovementioned decisions.

C —) On the same day, Mr Fonzi lodged an application for a suspension of the operation of the abovementioned decision of 24 June 1964 requiring him to go to Brussels (Case 30/64 R). The President of the Court, by order dated 7 August 1964, dismissed the request for suspension as inadmissible, and reserved the costs.

II — Conclusions of the parties

A — The Applicant claims that the Court should:

(1) In Case 27/64:

A —) Principally:

1) Declare the present application admissible and well-founded;

2) Annul the decision or decisions regarding promotion adopted by the defendant for the year 1963, at least as regards the promotions from Grade A5 to Grade A4 with all the legal consequences which that implies, and involving also the annulment of the decision which the defendant adopted on 26 March 1964 in respect of the applicant;

B —) Further: By way of preparatory inquiries:

3) After establishing and declaring the illegality of all the decisions adopted by the defendant concerning the promotions to be made in 1963 and the procedure to be followed (and actually followed) in the circumstances and which are the logical and legal condition for the decision of 26 March 1964, annul the decision of the defendant of 26 March 1964 notified to the applicant on 8 April 1964;

4) Declare that the defendant is obliged to give consideration to the comparative merits of the officials eligible for promotion in 1963 and to reconsider the case of the applicant during such consideration;

5) In any case order the defendant to bear the costs;

6) Take official notice that the applicant reserves the right to clarify during the proceedings the reasons and arguments which have been set out above and also to put forward new reasons and arguments of fact or of law should this be made necessary by the submissions in defence of the defendant and by any documents which the latter may produce;

7) Order the defendant to produce the complete minutes of the meetings held on 17 and 18 June 1963 by the local promotion committee at Ispra, the minutes of the meetings of the Commission in the course of which the decisions concerning the promotion for the year 1963 and the procedure to be followed under the circumstances were adopted, as well as the minutes of the meeting of the Commission which led to the adoption of the decision of 26 March 1964;

8) Take notice that the applicants reserve the right in case of need to request that other measures of inquiry for the purpose of establishing facts which might possibly be disputed or insufficiently proved should be ordered in accordance with Articles 45 et seq. of the Rules of Procedure.

(2) In Case 30/64:

1) Declare the present application admissible and well-founded and in consequence:

2) Annul the implied decision rejecting the complaint through official channels submitted by the applicant to the defendant on 21 February 1964;

3) Annul the defendant's decision to reprimand the applicant taken on 26 March 1964 and notified to him on 24 April following;

4) Annul the defendant's decision to transfer (or second) the applicant, apparently taken on 24 June 1964, and brought to his knowledge by the Director of the Centre at Ispra on 25 June following;

5) Order the defendant, should the Court not grant the suspension of the operation of the decision mentioned under head 4, to redress the damage suffered and which may be suffered by the applicant as a result of the operation of that decision, to the extent which the applicant reserves the right to specify during the course of the proceedings;

6) Order the defendant to bear all the costs of the proceedings;

7) Place it on record that the applicant reserves the right to give details during the course of the proceedings of the reasons and arguments set out above and to introduce new ones, where appropriate, if that is shown to be necessary following the statement of defence and the production of documents by the Commission;

By way of measures of inquiry:

8) Order the defendant to produce the following documents:

a) application forms and recruitment proposals of Mr Adriano Gazzano and of Miss Giuliana Pozzi;

b) letter (or note or report) addressed by Mr Gazzano to Mr Kramers, from which the latter obtained ‘information’ regarding the applicant;

c) report prepared by the Consultative Committee for CETIS at the instance of the Commission;

d) report(s) upon any administrative inquiries set on foot by the Commission concerning the working of CETIS;

e) minutes of the meeting of the Commission at which the administrative complaint made on 21 February 1964 by Mr Fonzi through official channels were examined, and any other documents concerning the complaint;

9) Order the hearing of the following witnesses: The hearing of these witnesses, already clearly justified in the light of the foregoing explanation, is intended to prove, on the one hand, the correctness of the facts stated by the applicant in his complaint of 21 February 1964, and on the other hand the unjustified and inconsistent nature of the imputations made against him by the disciplinary decision;

a) Mr Paul Braffort (69, rue de la Liberté, Bagneux, Seine) and Mr Panfilo d'Alimonte (127, via Marzorati, Varese) on the subject of the statement made by Dr Ritter to Mr Braffort in the presence of Mr Mercereau, on the ‘double personality’ of Mr Fonzi ‘in private matters’:

b) Mr Eliodoro Pomar (41, via Sanvito Silvestro, Varese) on the subject of the correctness of the statements by Mr Kramers to the applicant on the subject of the unfavourable information concerning the applicant which he had received from Messrs Ritter and Gazzano, as mentioned in the complaint of 21 February 1964 to the Commission:

c) Mr Walter Le Ambrogio (at the Olivetti Company, Ivrea), Mr Tommaso Pomentale (at Olivetti, Ivrea), Mr Peter Ihm (at the Ispra Centre) and Mr Frans van Scheepen (Ispra Centre) on the subject of the real reasons which disturbed the climate of confidence and cooperation within CETIS, as well as on the subject of the competence of Mr Gazzano and Miss Pozzi;

d) Mr Giancarlo Bertolini (19, via Sanvito Silvestro, Varese) concerning the fact that Mr Adriano Gazzano described himself as assistant and lecturer at Bocconi University;

e) Mr Pierre Barthelemy (10, via Andrea del Sarto, Varese) in his capacity as Chairman of the Personnel Committee on the subject of the pressures exerted on him to exclude Mr Fonzi from working groups;

10) Take notice that the applicant reserves the right to request if necessary and also if the opposite party relies on new reasons or arguments of fact or of law, the hearing of other witnesses and other methods of inquiry directed towards the verification of facts which may be disputed or insufficiently established; he also reserves the right to produce other documents.

(3) In his reply :

For all the reasons set out in the foregoing pages, the applicant adheres to the conclusions which he has already submitted in the applications in Cases 27/64 and 30/64, and which are deemed to be repeated in their entirety with the amendments and the additions mentioned below:

— In Case 27/64

Head No 7 of the conclusions of the application is supplemented by head 7A below:

7A) Order the hearing of the following witnesses on the points indicated against the name of each of them, in order to prove the circumstances the importance of which follows from disputes and statements by the opposite party, according to what has already been explained in the reply:

a) Mr Paul Blaes, of the Personnel and Social Department of the Ispra Joint Research Centre (hereinafter referred to as the J.R.C.) on the question whether it is true that Mr Fulvio Fonzi constantly asked him for permission to consult his personal file from March 1963 to December 1963 inclusive, and whether this personal file was in the Personnel Department of the J.R.C.; and whether the Personnel Department of the J.R.C. had or had not prepared a document which would have permitted the local promotion committee to take into account objective conditions fulfilled by officials eligible for promotion (seniority of service, seniority of grade, professional experience, diplomas of studies, etc.);

b) Messrs Eliodoro Pomar and F. Rota, in their capacity as representatives of the Staff Committee on the local promotion committee of the J.R.C. on the question whether the Staff Committee was consulted concerning the drafting of Circular 11/63 and the formalities to be followed for reports; whether consideration was given to the actual comparative merits of all the officials eligible for promotion and on the basis of what documents the examinations was carried out; whether the Committee is prepared to produce the documents in its possession; whether Mr Fonzi was considered on the basis of these documents; and whether he asked for the drafting of minutes;

c) Mr Michel Carpentier, in his capacity as representative of the Staff Committee on the central promotion committee, not only on the points set out above in respect of the names of Messrs Pomar and Rota, but also on the question whether the central promotion committee checked the actual examination made by the local promotion committee at Ispra, and in which way and to what extent;

— In Case 30/64

Head No 2 of the conclusions of the application is amended as follows:

2) Annul the decision of 24 June 1964 rejecting the complaint lodged by the applicant with the Commission through official channels on 21 February 1964; or, secondarily, annul the implied decision of rejection of the said application;

Head No 5 of the conclusions of the application is amended as follows:

5) Order the defendant to pay 1 (one) Belgian franc damages, as restitution for the damage suffered by the applicant following the operation of the illegal decision mentioned under head 4;

Head No 6 of the conclusions of the application is amended as follows:

6) Order the defendant to pay all the costs and expenses of the present proceedings including the expenses and fees of the proceedings in Case 30/64 R.;

Head 9(a) of the conclusions of the application is supplemented in the sense that Messrs Braffort and d'Alimonte should be heard also oh the question:

whether the declaration or Mr Ritter contained in Schedule No 13 of the statement of defence and reproduced on page 67 of the original of the present reply corresponds to the truth; and, if so, what were the ‘intrigues’ which, according to Mr Fitter, Mr Fonzi had conducted against him or against Mr Braffort;

Further, also under head 9, paragraph (f) should be added as follows:

f) Mr Baccarini, in his capacity as Administrative Director of the Luigi Bocconi Commercial University, Milan, on the question whether, if Mr Adriano Gazzano and Miss Giuliana Pozzi had or had not the right to call themselves assistants and lecturers at the operational research centre of the ‘Bocconi’ University, Milan.

Lastly, head 9(c) of the conclusions of the application is supplemented by the request for the hearing of the following witnesses on the same circumstances, in addition to persons indicated under that head on the circumstances set out in paragraph (c):

Messrs Luciano Guerri, mathematician; Herve D'Hoop, engineer; Philippe Gutmann, engineer; Jean Larisse, mathematician; Andre Leroy, engineer; Mario Cocchi, mathematician; Walter De Backer, engineer; Giulio Di Cola, mathematician; Giampaolo Caligiuri, engineer; Paul Camion, mathematician and lecturer at the Sorbonne; Riccardo Monterosso, mathematician; August Van Eick, engineer; Leo Verbeek, engineer; Irène Gargantini, mathematician; Mario Borillo, engineer; Jean Verheyden, linguist: all at the J.R.C;

as well as Messrs Andre Debroux, engineer, rue Joseph-II, Euratom, Brussels; Marcel Detant, mathematician, rue Joseph-II, Euratom, Brussels; Walter Fuchshuber, lecturer in mathematics, Chair of applied mathematics, University of Cologne (Federal Republic of Germany).

B — The defendant contends that the Court should:

(1) In its statement of defence concerning the application in Case 27/64:

Order the joinder of the present case with Case 30/64;

Declare the application inadmissible as being out of time as regards the decisions regarding promotion themselves (head 2 of the conclusions of the applicant);

Alternatively declare it unfounded under the abovementioned head, as well as under the head of the application seeking the annulment of the decision of 26 March 1964 rejecting the complaint of the applicant, and as regards the request that the Commission should be invited to give further consideration to the comparative merits;

Hold that there are no grounds tor allowing the measures of inquiry requested by the applicant;

Order the applicant to bear the whole of the costs;

(2) In its statement of defence in Case 30/64:

1) Declare the application inadmissible as being out of time, in so far as it concerns the rejection of the complaint lodged by the applicant on 21 February 1964;

2) Alternatively declare it unfounded and dismiss it;

3) Declare it unfounded also in so far as it is directed against the decision of 26 March 1964 reprimanding the applicant, and against the decision of 24 June 1964 ordering him to Brussels;

4) Place it on record that the defendant, relying on the abovementioned statements, leaves to the discretion of the Court the question of the expediency of the various measures of inquiry sought by the applicant;

5) Order the applicant to bear the whole of the costs.

(3) In its rejoinder :

1) Accept the conclusions in its statements of defence in Cases 27/64 and 30/64;

2) Hold inadmissible as being out of time, and in any case unfounded, the additional request for annulment of the decision of 24 June 1964 rejecting the unlawful application dated 21 February 1964;

3) Dismiss as unfounded the request for payment of 1 Belgian franc appearing under the amended head 5 of the conclusions of the application;

4) Order the applicant to bear the costs and fees of the present proceedings, including those in Case 30/64 R as provided for in Article 70 of the Rules of Procedure of the Court;

5) Make such ruling as it sees fit upon the additional requests for measures of inquiry submitted by the applicant in his application having had regard to the observations set out above.

III — Summary of the Submissions and Arguments of the Parties

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

A — Admissibility

According to the defendant the following are out of time and consequently inadmissible:

the request for annulment of the decision regarding promotion (or of all the decisions), adopted for the year 1963 and posted at Ispra on 9 January 1964 (head 2 of the conclusions in Case 27/64);

the request for annulment of the implied decision of rejection of the complaint made through official channels on 21 February 1964, directed towards obtaining the intervention of the defendant against conduct which the applicant described as prejudicial to his honour and his professional dignity (head 2 of the conclusions in Case 30/64).

1. On the first point the defendant alleges that the display of the decision dates from 9 January 1964 and that the time-limit for appeal of three months provided for in Article 91, increased by ten days because of the distance, expired on 20 April 1964. The appeal made on 29 June 1964 is therefore out of time and inadmissible. It is true that a complaint was made through official channels on 12 February 1964, but since Articles 90 and 91 of the Staff Regulations make no provision with regard to such a matter, this complaint cannot stop time from running in respect of the appeal to the Court. The applicant replies that it follows from the combined provisions of the first and second subparagraphs and of Article 91 (2): that a complaint through official channels under Article 90 may always precede an appeal to the Court under Article 91; that the time limit for making an appeal to the Court in case of an implied decision of rejection of the complaint through official channels is two months dating from that implied decision (the second subparagraph of Article 91 (2)), and, in a case where a decision has been taken following the complaint, three months as from me date of notification of the decision. In the present case, however, this decision on the complaint was notified on 7 April 1964 and Application 27/64 was lodged on 29 June 1964. The applicant relies in support of his allegation on the case-law of the Court: the judgment in the case of Wollast (nee Schmitz) of 19 March 1964 (Rec. 1964, p. 187) and the conclusions in that case (Rec. 1964, p. 203), the judgments in the case of Raponi,19 March 1964 (Rec. 1964, p. 264), Marcillat (nee Capitaine), 9 June 1964 (Rec. 1964, p. 495) and Reynier and Erba, 9 June 1964 (Rec. 1964, p. 527). As to the time limit for lodging an appeal through official channels, the applicant considers that it cannot be less than three months from the date of publication or of notification of the contested decision (first subparagraph of Article 91 (2)) and, in the present case, the administrative appeal was lodged well before the expiration of that time-limit. Consequently, states the applicant, the objection of inadmissibility lacks basis and justification. The defendant replies that according to Article 91 of the Regulations, the time-limit for an appeal to the Court runs only from the date of publication or notification of the contested measure. The wording makes no provision for the suspension of this time-limit. As to the time limit tor lodging an appeal through official channels, Article 90 of the Regulations provides none.

2. In respect of the second objection of inadmissibility, the defendant alleges that the appeal through official channels having been lodged on 21 February 1964, the implied decision of rejection must be dated 22 April 1964 and that the legal time-limit for contesting this implied decision thus expired, taking into account the extension on account of distance of ten days, on 3 July 1964. The appeal lodged on 13 July 1964 is thus inadmissible as out of time in respect of head 2 of the conclusions in Case 30/64. The applicant replies that there exist links of interdependence between the three decisions disputed by the application in Case 30/64, making these decisions parts of a single context: it is only by the adoption of two other decisions, contested within the time-limit, that the implied decision of rejection of the complaint of the applicant was finally defined and described. The applicant next advances the fact that he knew that an express decision to reject his appeal through official channels on 21 February 1964 had been taken by the defendant on 24 June 1964. He recalls mat he had on 13 July 1964 requested the suspension of the operation of the decision of 24 June 1964, requiring him to go immediately to Brussels to take up service there temporarily, without prejudice to a later posting to Jülich (Case 30/64 R). The defendant, in Schedule 1 to his observations of 25 July 1964, has produced the contested decision drafted as follows: The applicant alleges that that express decision of rejection of his appeal of 21 February 1964 through official channels was not notified to him and that he was not able to know of it until reading the statements of the defendant in Case 30/64 R. He states that document 3203 (which bears, more exactly, the reference EUR/C/3203/64) is the ‘note (undated) for the attention of the Members of the Commission’ produced by the defendant in Schedule 13 of its statement of defence in Case 30/64. In answer to the objection of inadmissibility raised by the defendant against the implied decision of rejection, he has amended his conclusions by declaring in his reply that he disputes principally the express decision of rejection of his appeal of 21 February 1964 through official channels and as a subsidiary point the implied decision of rejection of the same appeal. the defendant replies, in the first instance, that Article 91, governing the conditions for the exercise of the right of appeal, can apply only by reference to expressly stated criteria. On the subject of the express decision of rejection of 24 June 1964, it states, first of all, that at its meeting of 24 June 1964, the Commission took two distinct decisions, namely: the express confirmation of the implied rejection of the complaint of 21 February 1964; the summoning to Brussels or the person concerned, with a view to making final arrangements for his transfer to Jülich. It point out, next, that the express decision of rejection of the complaint of 21 February 1964 is an act which is purely confirmatory of the implied decision and cannot thus have the effect of extending the time-limit for the appeal to the Court against this latter act.

‘The proposals of 11 June (doc. 3203), concerning a complaint are adopted.

If the person concerned cannot actually take up his duties at Jülich within the shortest possible time, he shall be asked to go to Brussels, there to receive all necessary instructions (Extract of draft minutes of the 249th meeting of the EAEC Commission, held at Brussels on 24 June 1964).’

B — On the substance of the case

1. On the decision regarding promotion posted at Ispra on 9 January 1964 and on the decision notified on 7 April 1964, rejecting the complaint of the applicant against the above-mentioned decision regarding promotion (application in Case 27/64) The applicant alleges that the illegalities of the contested decisions lie in the absence of a procedure for considering the comparative merits, in his exclusion from such consideration and lastly, in the inequality of treatment as between himself and the other candidates (see the decision of rejection in Schedule 6 to the application in Case 27/64). (a) The applicant claims that, very probably, the defendant did not, in 1963, consider the comparative merits of the officials eligible for promotion, as required by Article 45 (1) of the Staff Regulations. In fact, the list of suitable candidates drawn up by the defendant on 25 July 1963 cannot be regarded as satisfying this requirement, since the abovementioned Article requires a consideration of the comparative merits and not the drawing up of a list of suitable candidates. In substituting, by its Circular No 11/63 of 23 April 1963, the procedure for drawing up a list for the procedure for considering the comparative merits, the defendant exceeded the limits of its authority; the instructions given by the circular cannot in fact be regarded as general provisions for giving effect to the Staff Regulations within the meaning of Article 110, since the consultations and opinions referred to in that Article are lacking. The contested provisions are thus vitiated by illegality for infringement of an essential procedural requirement, infringement of rules of Community law and misuse of powers and even for lack of authority. (b) The applicant claims that he was excluded from the procedure relating to a consideration of the comparative merits for reasons which remain unknown to him as a result of the confidential nature of the meetings held on 17 and 18 June 1963 by the promotion committee of officials of category A of the Ispra Centre. This exclusion implies that the applicant did not, when this examination took place, fulfil the requisite conditions for promotion. In fact, however, the reports concerning the applicant put him in a position at least equal to that of other officials of the same grade, who were examined and promoted. This exclusion therefore cannot be explained except by an omission or by an unlawful and unacceptable interference by certain persons, who are not identified, in the procedure and in the application of the criteria adopted by the promotion committee. (c) According to the applicant the inequality of treatment between himself and other candidates for promotion, during the consideration of the comparative merits, arises from the fact that the promotion committee had not at its disposal his personal file and from the fact that its report was incomplete. In fact this report was not passed to the applicant for him to put in his own observations until after the end of the work of the promotion committee. The defendant replies as follows: As to (a). For the promotions in 1963 the Commission considered the comparative merits in accordance with the rule in Article 45 (1) of the Regulations, which makes no provision whatever for the drafting of a written document entitled ‘Consideration of the comparative merits’. In order to put the procedure for the consideration of the comparative merits into concrete form, the Commission decided in 1963 in its instructions annexed to Circular No 11/63 (Schedule 7 to application in Case 27/64), to entrust to special bodies (local promotion committees and a central promotion committee) preparatory and consultative work which would culminate in the drawing up of a list of suggestions for inclusion in the list of candidates suitable for promotion. After this first stage, the Commission, taking into account this preparatory work, makes the final selection by means of a new consideration of the comparative merits. Circular 11/63 and the instructions which are annexed to it do not set up a new promotion procedure distinct from that laid down in Article 45(1). The work of the promotion committees is only of a preparatory and consultative nature. It follows that the circular and the instructions mentioned above are within the framework of the powers of the Commission. They do not amount to general provisions for giving effect to the Staff Regulations within the meaning of Article 110. The question of their conformity with Article 110, furthermore, has no bearing on that of the legality of the promotion procedure followed, since they do not infringe Article 45(1), and since this latter provision, according to the case-law of the Court (Raponi judgment of 19 March 1964, Rec. 1964, p. 265) does not itself require general provisions for giving effect to the Staff Regulations. As to (b). The defendant states that the name of the applicant appeared not only on the list of candidates submitted to the promotion committee during the preparatory procedure, but also on the corresponding list submitted to the Commission during the final procedure (see Schedules 1 and 2 to the statement of defence in Case 27/64). As to (c). The defendant confirms the contents of its decision of rejection notified on 7 April 1964 (Schedule 6 to application in Case 27/64) where it stated that the report and personal file of the applicant had in fact been put at the disposal of the promotion committee. It is true, it adds, that the promotion committee had not the observations of the applicant regarding his report at the time it carried out its consultative work, prior to the consideration of the comparative merits prescribed by Article 45(1) of the Regulations. But what matters is that, when the Commission itself considered comparative merits, it had these observations from the applicant dated 5 July 1963, both when it drew up the list of suitable candidates on 17 July 1963 and when it made its decision on the promotions on 25 September 1963. The applicant replies by stating, first of all, that the defendant has produced only incomplete minutes of the meeting of the local promotion committee at Ispra (Schedule 1 to the statement of defence in Case 27/64). He asks the Court to order the production of all the minutes of the meetings of the local promotion committees and of the Commission concerning the promotions in 1963. He alleges, further, that the consideration of the comparative merits of officials eligible for promotion was carried out not by the Commission, but by the local promotion committee at Ispra. According to the applicant, the instructions contained in Circular 11/63 are general provisions for giving effect to Article 45 within the meaning of Article 110 of the Regulations. The applicant states that he was excluded from the consideration of the comparative merits because of the fact that not all officials eligible for promotion were considered: in fact the heads of department or the local promotion committees considered the merits only of those officials whom they had proposed for promotion. And to conform to the provisions of Article 25(1) of the Regulations the reasons on which this exclusion was based should have been given. The applicant alleges, lastly, that the consideration of the comparative merits which the Commission claims to have carried out during the examination of his appeal through official channels could not have taken place without the prior annulment of the procedure previously followed. The defendant replies by referring principally to the arguments already set out in its statement of defence. Concerning the absence of reasons for exclusion from the list of those proposed for promotion, of which the applicant claims to have been a victim, the defendant refers to the case-law of the Court in the Bernusset judgment of 9 June 1964 (Rec. 1964, pp. 611 and 612).

2. Concerning the request to compel the defendant to give further consideration to the comparative merits of the candidates for promotion in 1963 Case 27/64) To this request set out under head 4 of the conclusions of the application in Case 27/64, the defendant replies that the merits of the applicant were taken into account at every stage of the promotion procedure, and, furthermore, when the Commission examined the appeal through official channels. It considers therefore that the request is unfounded. Furthermore, it states that the Court in its case-law (Huber judgment of 1 July 1964, Rec. 1964, p. 740), recognized that it cannot accede to such a request by giving orders to the executive.

3. Concerning the implied decision to reject the appeal through official channels of 21 February 1964, requesting the intervention of the Commission against actions prejudicial to the honour and the professional dignity of the applicant, and on the express decision of rejection taken on 24 June 1964 (Case 30/64) The applicant develops the arguments contained in his appeal through official channels of 21 February 1964 (see Schedule 3 to application 30/64). In refraining from coming to a decision over a period of two months, the Commission, he adds, refused to protect the work done in the interests of the Community, to safeguard his professional dignity and morale and his legitimate hopes of a career, thus tacitly approving conduct contravening the rules of the Staff Regulations: the implied decision of rejection of the appeal through official channels thus constitutes an illegal act on the part of the defendant. The defendant replies first of all that, contrary to the statement of the applicant, it made an inquiry into the facts alleged in the appeal through official channels (see note referring to Funck in Schedule 13 to the statement of defence in Case 30/64). The said appeal took account of the statements of Professor Kramers, Scientific Director at Ispra, which are said to constitute defamatory charges against the applicant. The defendant observes that the applicant has entirely misrepresented the statements in question, that Mr Fonzi once more disputes the right of his immediate superior to make a judgment upon him and lastly that the applicant made use of a confidential document which was not addressed to him. The appeal through official channels points out again that Mr Ritter, Director-General at Ispra, in an interview with Mr Braffort, the immediate superior of the applicant, attributed to the latter a double personality. The defendant considers that this judgment was justified by the behaviour of the applicant, who had several times criticized Mr Braffort in front of Mr Ritter. The said appeal sets forth, lastly, that the applicant was the subject of systematic and persistent attempts to remove from him the responsibility for work planned by him. The defendant replies that tins allegation is incorrect, devoid of any foundation and reveals a persecution complex. The applicant replies by producing correspondence between himself and Mr Pomar who witnessed the conversation between the applicant and Mr Kramers, and a part of a report addressed to Mr Kramers by the management committee of the CETIS (Schedules 3 and 4 to the reply). He declared that he had found the report among the waste paper in the photo-copy room (Schedule 7 to the reply). According to the applicant, this latter document was the basis of the statements by Mr Kramers which were the subject of complaint and which were used against him within the meaning of Article 26 of the Regulations without having been communicated to him and without having been filed in his personal file: it follows that there was an infringement of Article 26 together with Article 43 of the Regulations. As to the inquiry carried out by the Commission, the applicant alleges that it was irregular because neither he nor Messrs Pomar and Braffort were heard. The defendant replies that the correspondence between the applicant and Mr Pomar reveals nothing new concerning the pattern of events. As to the report of the management committee of CETIS, the defendant alleges that there was no reason to communicate it to the applicant or to file it in his personal file, Articles 26 and 43 of the Regulations not being applicable to the case in point. In respect of the inquiry carried out, the defendant alleges that the information gathered by it was amply sufficient to justify the rejection of the complaint through official channels.

4. Concerning the decision to administer a reprimand notified on 24 April 1964 (Case 30/64) The applicant produced a copy of the decision to administer a reprimand (see Schedule 5 to the application in Case 30/64). He alleges that this decision is illegal for infringement of an essential procedural requirement, infringement of rules of Community law and misuse of power. (a) He claims that the defendant confined itself to issuing a reprimand because a heavier penalty would have necessitated recourse to the procedure of Annex IX of the Regulations, with the guarantees which it includes for officials. (b) The disproportion between the misconduct attributed to him and the sanction imposed indicates a flaw or a contradiction in the reasons given for the decision. (c) The behaviour of the applicant was fully justified by the necessity for an exact and documented defence against unjust accusations. (d) The conduct of the applicant was not dishonest nor did it reflect upon the dignity of his office. The defendant replies as follows: As to (a). If there is a lack of proportion between the misconduct and the sanction, it is due only to the leniency of the Commission. The procedure mentioned in Annex IX is provided for because of the seriousness of the sanction and not because of the seriousness of the offence. As to (b). The wording of the decision to reprimand sets out expressly and clearly the reasons for the sanction. As to (c). There was no necessity for the applicant to defend himself, since no wrong had ever been committed against him. As to (d). the applicant acted dishonestly and in a manner prejudicial to the dignity of his office because he conducted a campaign of disparagement, resorted to the services of a private enquiry agency in order to sustain this campaign and because when questioned on these matters he denied them. The applicant replies that the illegality of the decision to reprimand is demonstrated by a letter of 19 October 1964 from the Chairman of the Staff Committee at Ispra (Schedule 12 to the reply) addressed to Mr Funck, Director-General of Administration and Personnel. He alleges, further, the irregularity of the procedure used by the defendant because of the fact that Mr Mercereau had not the power at that time (February 1964) to hear him in accordance with Article 87 of the Regulations. In faot, he says, the management of the Centre at Ispra received the delegation of the necessary powers for this purpose only by virtue of a circular of 8 June 1964. The defendant replies first of all by referring to the argument contained in its reply to the letter of the Chairman of the Staff Committee at Ispra (Schedule 4 to the rejoinder). On the complaint concerning the hearing conducted by Mr Mercereau, the defendant replies that this is a fresh issue, inadmissible under Article 42(2) of the Rules of Procedure. It alleges, further, that the powers provided for in Article 87 of the Regulations consist in imposing a disciplinary sanction, and that Mr Mercereau confined himself to giving a preliminary hearing to the applicant, which could not be carried out, in respect of a disciplinary matter, by the Commission itself, but by an official having managerial duties in connexion with staff affairs.

5. Concerning the decision to transfer the applicant, notified on 25 June 1964 (Case 30/64) The applicant has produced the four notes constituting this decision (see Schedules 6, 7, 8 and 9 to the application in Case 30/64), which he considers to be rendered defective by abuse of powers, infringement of an essential procedural requirement, and infringement of the rules of Community law. The abuse of powers follows from the fact that the applicant was summoned to Brussels with excessive haste, at only 24 hours' notice, that this transfer upset his holiday plans, and gave the external impression of a punishment. Further, the contested decision completely lacks the components of form and of substance required by the Staff Regulations for an act of that nature. the defendant replies that the Commission had only in mind the interest of the service and in no way intended to inflict upon the applicant a second unofficial sanction after the previously pronounced official reprimand. The situation created by the applicant at Ispra had become intolerable and the interest of the service required his removal for a mission of limited duration. The applicant replies as follows: (a) First, the decision to transfer him is illegal because he was not given written notification of it; (b) it was not in the nature of a summons to the headquarters of the Commission, under the rules governing missions, because it was not made a mission by using the normal forms; (c) It is not true, states the applicant, that this measure was only of a temporary nature: it is, in fact, described as a transfer in various documents (see particularly Schedule 14 to the reply, Schedule 13 to the statement of defence in Case 30/64 and Schedule 6 to the application in Case 30/64); (d) It follows from two documents produced (Schedule 10 to the application in Case 30/64 and Schedule 13 to the statement of defence in that Case), alleges the applicant, that the contested decision was in the nature of a disciplinary measure in disguise; (e) The applicant disputes that the decision to transfer him was taken in the interest of the service. On this point, he relies on a document of 27 May 1964, attached to the observations which he made with regard to the report on him in 1964. It is clear from this document that all except two of the colleagues of the applicant declared that their relationships with him had never been strained; (f) The applicant alleges that the decision is rendered defective by abuse of powers, because the Commission in ordering him to Brussels wished to prevent him from carrying out his duties as a member of the Staff Committee at Ispra. He uses in support of his statements a letter addressed on 16 December 1964 by the Chairman of the Staff Committee to the Director-General of the Centre at Ispra (Schedule 22 to the reply). The defendant replies as follows: As to (a). In law, the absence of notication does not make the decision illegal, but means simply that it cannot be used against the person concerned. In fact, the three notes from Mr Ritter produced by the applicant (Schedules 6, 7 and 9 to the application in Case 30/64) constitute just the written notification the existence of which is denied. As to (b). It follows from the statements made by the applicant himself in his reply that after his summons to Brussels he returned to Ispra, which proves, says the defendant, that this was a mission. As to (c). The defendant alleges that the documents produced either do not refer to the decision in question or are irrelevant. As to (d). The defendant alleges that the two documents referred to make no reference to a possible transfer of the applicant. As to (e). The defendant remarks that the two colleagues who made no statement are the very ones who were the cause of the decision to reprimand the applicant. It adds that the atmosphere within a department cannot be calculated by arithmetical rules. As to (f). The defendant makes an analysis of the document cited and concludes that there is not the least indication of pressure intended to oust the applicant from his duties as a member of the Staff Committee.

IV — Procedure

The pleadings of the parties were lodged in proper forms and in due time and the procedure followed the normal course.

On 13 July 1964 the applicant requested the suspension of the operation of the decision of 24 June 1964 requiring him to go immediately to Brussels to take up service there temporarily, without prejudice to a later posting to Jülich (Case 30/64 R);

The President of the Court of Justice, by order made on 7 August 1964, dismissed this request for suspension as inadmissible, and reserved the costs.

By order dated 12 December 1964, the Court (First Chamber) joined Cases 27 and 30/64 for the purposes of procedure and judgment.

At its meeting on 25 March 1965 and upon receiving the preliminary report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

The parties were heard at the hearing on 5 May 1965.

The Advocate-General delivered his opinion at the hearing on 16 June 1965.

Grounds of judgment

I — Admissibility

1. The admissibility of the application in Case 27/64

a) The defendant alleges that the request for annulment of the decision regarding promotion posted at Ispra on 9 January 1964 is inadmissible as being out of time since in fact the application in Case 27/64 was not lodged until 29 June 1964 whilst the time limit of 3 months provided for in Article 91 of the Staff Regulations, extended by 10 days on account of distance, had expired on 20 April 1964. According to the defendant, the appeal through official channels lodged on 12 February 1964 could not, in the absence of express provisions, suspend the running of the time available for the appeal to the Court. It appears from Articles 90 and 91 of the Staff Regulations, read together, that appeals through official channels are subject to the same time-limit as applies to appeals to the Court of Justice, provided that they were themselves instituted within the time-limit laid down for appeals to the Court. In fact the intention of the authors of these Regulations cannot have been to compel officials to commence simultaneously an administrative appeal through official channels and an appeal to the Court of Justice in order to avoid being out of time. In the present case the appeal through official channels on 12 February 1964 was brought within the time limit-laid down for appeals to the Court. It was expressly rejected by a decision notified to the applicant on 7 April 1964. It follows that the time-limit within which the applicant had to challenge before the Court the decision on promotion posted at Ispra on 9 January 1964 had not expired on 29 June 1964, the date of the appeal to the Court. Consequently the submission of the defendant must be rejected.

b) The applicant claims that the express decision of rejection notified to him on 7 April 1964 should be annulled. This request is admissible for the same reasons as the request for the annulment of the decision regarding promotion posted at Ispra on 9 January 1964.

2. The admissibility of the application in Case 30/64

a) The defendant alleges that the request for annulment of the implied decision of rejection of the appeal made through official channels on 21 February 1964 by the applicant with the object of obtaining the intervention of the defendant against the conduct which he describes as prejudicial to bis honour and his professional dignity is inadmissible as being out of time. In fact, according to the defendant, the application in Case 30/64 was not lodged until 13 July 1964, whereas since the implied decision of rejection of the appeal through official channels was dated 22 April 1964, the time-limit for an appeal to the Court to contest this implied decision, extended by 10 days on account of distance, had expired on 3 July 1964. The appeal through official channels on 21 February 1964 was made within the time-limit laid down for an appeal to the Court. Because of this fact and for the reasons set out above (supra 1 (a)) the applicant has retained the benefit of the time-limit laid down for appeals to the Court. Because of the silence of the administration, an implied decision of rejection is deemed, under Article 91(2) of the Staff Regulations, to have been taken on 22 April 1964. However, the defendant, on 25 July 1964, produced in a Schedule to its observations on the subject of the application for the adoption of an interim measure in Case 30/64 R, a decision dated 24 June 1964 expressly rejecting the appeal of 21 February 1964 through official channels. It appears from the statements of the applicant, which are not contradicted by the defendant, that he did not know of the existence of the decision of 24 June 1964 before 25 July 1964. This latter date in consequence constitutes the termination of the administrative procedure commenced by the appeal of 21 February 1964 through official channels. It follows that the time-limit laid down for taking action before the Court against the failure of the Commission of the EAEC to intervene against the conduct described by the applicant as prejudicial to his honour and professional dignity did not expire until three months and ten days after 25 July 1964, that is to say, 6 November 1964. Consequently the submission of the defendant must be rejected.

b) The applicant claims in his reply that the express decision of rejection of 24 June 1964 mentioned above should be annulled. This request is admissible for the same reasons as the request for the annulment of the implied decision of rejection of 22 April 1964.

c) The applicant claims the annulment of a ‘decision to transfer or second him’, taken in respect of him by the defendant on 24 June 1964. Under Article 91 of the Staff Regulations, the Court of Justice has jurisdiction to review the legality of measures with regard to officials only if they are adversely affected by such measures. There is reason, consequently, for the Court to consider of its own motion the admissibility of the abovementioned request. It appears from the minutes of the 249th meeting of the Commission of the EAEC, dated 24 June 1964, produced by the defendant as a schedule to its observations concerning the application for the adoption of an interim measure in Case 30/64 R, that the contested measure is drafted as folows: This wording clearly does not order a secondment to Jülich but is simply a requirement to go to Brussels. It emerges moreover from the file that the applicant, following the abovementioned order, stayed only a few days at Jülich and at Brussels, that he then took his annual leave and that it was only by the decision of 10 October 1964, notified on 15 October 1964, which is not the subject of the present case, that the applicant was transferred to Brussels. The contested measure is thus to be regarded as an internal departmental matter falling within the powers of the EAEC Commission. It cannot adversely affect the applicant (‘faire grief’) within the meaning of Article 91 of the Regulations and, consequently, cannot be the subject of an appeal to the Court. The request for annulment is thus inadmissible. Consequently, with the exception of the request for annulment of the ‘decision to transfer or second’ the applicant taken on 24 June 1964, the applications in Cases 27/64 and 30/64 are thus admissible.

‘If the person concerned cannot actually take up his duties at Jülich within the shortest possible time, he is to be asked to go to Brussels forthwith there to receive all proper instructions.’

II — On the substance of the cases

1. The request for annulment of the decision regarding promotion

a) The applicant alleges that, by its general instruction contained in Circular 11/63 of 23 April 1963, the defendant adopted provisions for giving effect to Article 45 of the Staff Regulations, without conforming to the procedural requirements contained in Article 110. Since Article 45 does not require general provisions for giving effect to it, the requirements laid down by Article 110 are not applicable in the present case. Further, it follows from the said circular that the task assigned to the promotion committees, which is of a purely preparatory nature, consists of helping the EAEC Commission, and that the latter has reserved to itself the power to decide upon promotions, confining itself to setting up purely internal administrative organs to support it in its work. Consequently, this complaint must be dismissed.

b) In addition the applicant raises the illegality of the contested decision on the ground he was not included in the consideration of the comparative merits, although having completed the requisite period in his grade under Article 45. It appears from the minutes of the 215th meeting of the EAEC Commission, dated 17 July 1963, set out in a schedule to the rejoinder, that the Commission, in examining proposals for promotion, added names to the list of suitable candidates drawn up by the promotion committees. Consequently, the fact that the name of the applicant did not appear upon the promotion list drawn up by the promotion committee at Ispra in no way shows that the EAEC Commission, which is the appointing authority, did not itself proceed to consider the comparative merits of the applicant. This complaint must therefore be dismissed.

c) The applicant alleges that the promotion committee at Ispra did not have his personal file available at the time when the promotion lists were drawn up and that in addition he was not able to make observations on his report for the year 1963. The defendant has denied this and the applicant's allegation is supported by no proof whatever. In respect of the observations of the applicant on his report, these are dated 5 July 1963, and consequently the EAEC Commission was in a position to take account of them when it drew up the list of suitable candidates on 25 July 1963. The present complaint is thus unfounded.

d) The applicant alleges that his merits were at least equal to those of certain candidates actually promoted. The Court has no jurisdiction to substitute its own value judgment for the assessments made by the institutions itself. The complaint must therefore be dismissed.

e) The applicant alleges, lastly, that the promotion committee at Ispra did not give the reasons for his exclusion from the list of those proposed for promotion. Article 45 of the Regulations does not require decisions regarding promotion to be reasoned in respect of candidates not promoted. A fortiori, there is no obligation to give reasons for proposals from an internal administrative body having only consultative powers. Consequently, the complaint must be dismissed.

f) It follows from the foregoing that the request for annulment of the decision regarding promotion posted at Ispra on 9 January 1964 must be dismissed as unfounded. The dismissal of this request necessarily carries with it the dismissal both of the request concerning the decision upon the complaint of the applicant through official channels and of the request that the Court should hold that the defendant must undertake a fresh consideration of the comparative merits of the officials eligible for promotion, including the applicant.

2. The request for annulment of the decision to issue a reprimand

a) The applicant alleges the infringement of Article 87 of the Regulations, on the ground that his case was not referred by the EAEC Commission to the Disciplinary Board. Article 87 provides that the disciplinary measure of reprimand may be issued without consulting the Disciplinary Board.

b) In addition the applicant relies on the infringement of Article 87 on the ground that he was not heard by the appointing authority but by an assistant director of the Ispra Joint Research Centre. The provisions of Article 87 do not prevent the hearing of the person concerned by a senior official.

c) The applicant alleges that there is a contradiction in the reasons given for the contested decision since, on the one hand this decision accuses the applicant of a serious infringement of his professional duties and that on the other hand it took only mild disciplinary action. However in spite of the seriousness of the facts complained of, the administration is justified in imposing only a mild penalty, taking into account circumstances independent of the complaints made, such as the absence of any previous disciplinary action.

d) The applicant disputes the actual basis of the disciplinary decision and the correctness of the facts upon which it is founded. It appears from the contested decision and the note of 25 March 1964 addressed by the administration to the EAEC Commission, which are annexed to the application, that the penalty imposed is based primarily upon the charge that the applicant made disparaging remarks about a superior and a colleague on the subject of their university qualifications and because of the fact that he called upon an enquiry agency to obtain confidential information concerning them. What is disputed is not the relevance of the accusations made by the applicant concerning these two officials, but only reprehensible nature of those accusations. Nevertheless this behaviour, which is contrary to the interests of the service, could not be allowed by the institution responsible. In addition, calling upon an enquiry agency in order to collect information concerning superiors or colleagues is behaviour open to criticism, which is not denied by the applicant, and is itself sufficient to justify the penalty.

e) It follows from the foregoing that the request for annulment of the decision to issue a reprimand, notified to the applicant on 24 April 1964, must be dismissed as unfounded.

3. The request for annulment of the decisions to reject the complaint requesting the intervention of the EAEC Commission against conduct regarded as prejudicial by the applicant

The applicant's complaint referred to unfavourable statements about him by his superiors, Messrs Ritter and Kramers, and the fact of having been the subject of repeated and persistent attempts to relieve him of the responsibility for work planned by him.

It is clear from the file as a whole, and particularly from the facts concerning the decision to reprimand him, that the applicant has had difficult relationships with his immediate superiors. Consequently, assuming the opinions attributed by the applicant to his superiors to be correct, they must be regarded as excusable, the reactions of the superiors being explicable having regard to the applicant's behaviour.

As far as the position of the applicant within the European Centre for the Processing of Scientific Information (CETIS) is concerned, when the duties of the applicant were changed, this was clearly done in the interests of the service.

The applicant points, lastly, to the irregularity of the procedure followed by the EAEC Commission in the examination of the appeal made by him through official channels on 21 February 1964.

It is clear from the documents on the file and the explanations of the parties that Articles 27 and 43 of the Regulations were not infringed in the present case. In particular, the report addressed by the management committee of CETIS to Mr Kramers and produced by the defendant in Schedule 5 to its rejoinder, was a not unfavourable report on the work of the applicant and there was no reason in consequence to communicate this document to him or to put it on his personal file. It appears, moreover, that the facts known to the EAEC Commission were sufficient to allow it to take a decision without having to hear the applicant or Messrs Pomar and Braffort.

It follows from the foregoing that the defendant has committed no irregularity by refusing to intervene as requested by the applicant. Consequently the request for annulment of both the implied and express decisions of rejection of the complaint asking for the intervention of the EAEC Commission against conduct regarded as prejudicial by the applicant must be dismissed as unfounded.

4. Concerning the application for damages

The applicant asks the Court on the subject of the 'decision to transfer or second him, taken on 24 June 1964, to grant him 1 Belgian franc as damages. The Court dismissed the application for annulment as inadmissible. Consequently it is impossible in the present case to find that the applicant has any right to compensation for any damage that the contested act may have caused him.

5. The conclusions of the applicant seeking an order for measures of inquiry

The applicant has lodged conclusions requesting the Court to order certain measures of inquiry.

The Court considers that, as the documents in the file have provided sufficient information, there is no need to order the measures of inquiry sought by the applicant.

III — Costs

The applicant has failed in his applications.

Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, the costs incurred by institutions in appeals by servants of the Communities shall be paid by the former.

Nevertheless, taking into account the circumstances of the case, there are grounds under the first subparagraph of Article 69(3) of the Rules of Procedure to order the defendant to pay one-quarter of the costs of the applicant.

The order of the President of the Court dated 7 August 1964 dismissed the application for suspension lodged by the applicant as inadmissible, costs being reserved. The costs relating to that application must be apportioned in the manner set out above.

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 Article 152 of the Treaty establishing the European Atomic Energy Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to the Staff Regulations of officials of the European Atomic Energy Community, especially Articles 21, 24, 25, 26, 43, 45, 86, 87, 90, 91 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

I Dismisses the applications in Cases 27/64 and 30/64;

2 Orders the defendant to bear the costs incurred by it both in respect of the main proceedings and of the application for the adoption of an interim measure and in addition one-quarter of the costs incurred by the applicant;

3 Three-quarters of the costs incurred by the applicant, both in the main proceedings and in the application for the adoption of an interim measure shall be borne by him.