JUDGMENT OF 17. 3. 1971 — CASE 29/70 MARCATO v COMMISSION

In Case 29/70

THE COURT (Second Chamber) composed of: A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

Mr Antonio Marcato who entered the service of the Commission of the EEC on 12 November 1958, was assigned, after completing six months' probationary period, to the post of punched-card operator in the computer branch on 1 October 1963. Whereas up to this date he had received favourable periodic reports, that communicated to him in November 1969 relating to the period from 1 July 1967 to 30 June 1969 was unfavourable, especially with regard to his ability and efficiency.

With regard to Mr Marcato's ability, the periodic report puts his range of knowledge necessary for the post and his powers of understanding and dealing with problems below average; he frequently takes the initiative, but often with disastrous results. With regard to his ability to organize the work of others, the report also speaks of ‘disorganization despite the meticulous keeping of files’.

As regards efficiency, the quality of Mr Marcato's work is judged to be ‘Very variable’, the speed of its execution excellent ‘when he makes no mistakes’ and his method of working below average and conducive to ‘utter confusion’. On 12 February 1970 Mr Marcato gave the Assistant Director-General for Administration of the Commission confirmation of the comments which he (Mr Marcato) had made when signing the report of November 1969 and asked him to amend the assessment shown therein.

Mr Marcato was informed on 8 June 1970 of an opinion on his periodic report drawn up by the Joint Reports Committee.

In this opinion, the Joint Reports Committee stated in particular that

‘In view of all these factors, the short-comings of the official concerned, as set out in the periodic report, appear to be relative and are connected with the performance of certain tasks which at present fall to him by reason of his post. The solution to the problem in this case, which emerges from Mr Marcato's report, could be found in a new posting of the official concerned, whose zeal and output are unquestioned; the matter of his shortcomings is in any case outside the competence of this Committee.’

In conclusion, the Committee considered that there was no reason to give effect to the comments made by Mr Marcato in so far as they concerned the legality of his periodic report.

On 12 June 1970 Mr Marcato brought this action in which he seeks the annulment of the contested report.

II — Procedure

The written procedure followed the normal course.

Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber) decided to open the oral procedure without any preliminary enquiry.

The parties were heard on 14 January 1971.

The Advocate-General delivered his opinion on 3 February 1971.

III — Conclusions of the parties

The applicant claims that the Court should:

declare the application to be well-founded and annul the contested report in that it causes him unwarranted damage;

allow him to prove by an investigation, expert opinion or competition, his ability to carry out all the work connected with the control and operation of the third-generation computers currently in use in his branch and, more generally, his efficiency and organizing ability;

order the Commission to bear the costs.

The Commission contends that the Court should:

dismiss his application as unfounded;

order him to bear the costs.

IV — Submissions and arguments of the parties

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

The applicant contests most strongly not only the unfavourable assessments concerning him but also the abstract reasoning which led to this report.

a) In reliance on the concept of ‘normality’, the applicant maintains that since his previous reports were good, then according to the rules on the burden of proof, it is for the Commission to prove, clearly and conclusively, the facts capable of justifying the radical change in the assessment of his abilities.

b) The arguments advanced by the Commission to justify the difference between previous reports and the report for the period from 1 July 1967 to 30 June 1969 are invalid. The assertion that the applicant, by reason of his limited vocational training, cannot ‘raise himself to the level of current advanced technical knowledge’ is entirely unfounded and disproved by the facts. Third-generation computers have been in operation, not since 1 July 1967, but since the beginning of 1966 and they are no different from those in service today. Even if the new computers, still of the third generation, possess certain refinements, these are secondary in nature and do not involve any fundamental change. The change is in the output and does not involve the basic nature of the system. Furthermore, the applicant claims that he has followed closely the development of these computers and has not yet been entrusted with a single task which he has been unable to accomplish.

c) The statement that, because his superiors were aware of his abilities, the applicant has been entrusted only with relatively uncomplicated work is wholly unfounded. For his part, the applicant is inwardly convinced that his superior officer wished to favour his fellow-countrymen to the applicant's disadvantage; in this connexion, it is symptomatic that 50 % of the operators are of the same nationality as the head of the branch.

d) The applicant insists on the value of the documents produced by him, which, being spontaneous testimony of thanks from several people for the computing work which he has carried out for them, contrast strangely with the unfavourable assessments concerning him. He repeats his offer to prove his abilities.

e) The opinion of the Joint Reports Committee is irrelevant. The composition of this Committee does not enable it to form an objective judgment.

f) Even though the Court cannot substitute its own value-judgment for that of the administration, it has none the less the power to check whether the statement of facts in a contested decision is really correct and logically compatible with the assessments of the officials which are in question. This is not the case here.

The Commission is of the opinion that even if the knowledge and qualifications of the applicant were sufficient at one time, technical progress in the computing sector has been so rapid and marked and has so increased the complexities of the work that his elementary technical knowledge has gradually proved inadequate to cope with fresh requirements arising from new equipment which has been put into service.

It is this development which explains the difference between the present report and previous reports. The contested report signifies that the applicant has the necessary qualifications to act as a routine operator on first-generation computers, but does not have sufficient knowledge for a console operator on third-generation computers.

a) Contrary to the assertions of the applicant, technical development in the field of computers since 1966 has been both important and extensive. It has in particular been marked by the ever growing number and complexity of jobs and programmes which an operator of today can handle simultaneously, whereas previous operators could only deal with jobs one at a time. A computer, the capacity and scope of which have quadrupled in roughly two years, demands a new technique; operators themselves have had to keep abreast of this new technique and adapt themselves to it. The result of this technical progress and the growing complexity of the tasks has been that any error in operating or in initiating the work of the computer made by an operator who is not up to the task, creates many more disturbances and difficulties in the department than before.

b) The assertion that the applicant has not yet been entrusted with a single task which he has been unable to accomplish—an assertion which is in any case an exaggeration—does not take account of the fact that what his superiors knew about him and the need to keep the branch running smoothly led them to avoid, as far as possible, entrusting him with work which was too complicated; the contested periodic report reflects this situation.

c) The high proportion of operators of the same nationality as their head—in any case less than 50 %—is explained very logically by the fact that the Computing Centre was, before merger, sited in Brussels and that the staff of operators, composed in the main of local staff, recruited on the spot, was very largely of Belgian nationality.

d) The documents relied on by the applicant are irrelevant since, apart from the fact that they are of only recent origin, they merely give the results of a piece of work carried out by the computer branch and could not take account of the circumstances in which this work was undertaken and successfully completed.

e) The offer by the applicant of proof of his abilities is irrelevant. The administrative authority alone has power to make the assessments contained in a periodic report and, in particular, an expert report would not necessarily disclose errors made and abortive initiatives taken by the applicant at various times and in varying degrees according to the difficulties of the different tasks entrusted to him.

f) It is clear from the case-law of the Court that the Court refuses, in principle, to review the grounds of the assessment made by the administration of the occupational ability of an official when this assessment is made up, as in this case, of complex value-judgments. In this case, there is no factor—indication of misuse of power or discordance between the assessments made of the applicant and other factors of equal merit—which could suggest that the contested report is incorrect.

Grounds of judgment

1. This application seeks the annulment of the periodic report made on the applicant in accordance with Article 43 of the Staff Regulations of Officials for the period from 1 July 1967 to 30 June 1969.

2. Unlike previous reports, which were favourable, the report made in 1969 contains unfavourable assessments, in particular with regard to the ability and efficiency of the applicant.

3. The Commission explains this change in the assessment of the applicant by reference to the rapid technical progress made in the computer field, which overtook the knowledge and abilities of the applicant.

4. For his part, the applicant has offered to prove by investigation, expert report or competition his ability to carry out all the work on the most modern computer equipment in operation in his branch and, more generally, his capacity for work and organization.

5. He submitted, in addition, testimonials containing assessments contrasting with those of the periodic report.

6. Even though the unfavourable assessment of the applicant in the report at issue may appear surprising when compared with previous assessments, it appears to be based exclusively on the observations of the administration and on the judgments which it made with regard to the occupational ability of the official concerned.

7. The Court is not in a position to determine whether the assessment by the administration of the occupational ability of an official is well-founded when this assessment involves complex value-judgments which, by their very nature, are not capable of objective proof.

8. Furthermore, the applicant has been unable to prove either irregularity in the report procedure or an obvious error of fact, or any breach of the other legal safeguards contained in the Staff Regulations.

9. The offer of proof with a view to correcting the assessments is inadmissible in the circumstances.

10. The application must therefore be dismissed.

Costs

11. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

12. The applicant has failed in his submissions.

13. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own 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 Staff Regulations of Officials, especially Article 43; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders each party to bear its own costs.