JUDGMENT OF 12. 10. 1978 — CASE 86/77 DITTERICH v COMMISSION

In Case 86/77,

THE COURT (First Chamber) composed of: J. Mertens de Wilman, President, A. O'Keeffe and G. Bosco, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts and the arguments of the parties during the written procedure may be summarized as follows:

I — Facts and written procedure

1. Kuno Ditterich, an engineer of German nationality, a Commission official in Grade A 5/8, employed at the Joint Research Centre at Ispra, gained knowledge on 13 April 1976 of a handwritten list of proposals for promotion to Grade A 4, upon which his name, which was at the head of the list, was crossed out. He requested the administration to explain the reasons for his exclusion and obtained the reply, infer alia, that the list in question carried no official weight and had not been agreed to by any competent authority. Having compared that list with a list of promotion to Grade A4 for 1976 drawn up in November 1976, on which his name did not appear, the applicant nevertheless concluded that his name had been withdrawn and omitted from the proposals for promotion with the agreement of the competent authorities, and accordingly, on 8 December 1976, he submitted a complaint under Article 90 of the Staff Regulations of Officials, objecting that the Commission was guilty, in putting forward those proposals, of discrimination and was in breach of Articles 43 and 45 of the Staff Regulations. The applicant's name was also absent from the list of proposals for promotion for 1977.

2. Furthermore, by decision of the Commission of 20 January 1977, of which he was informed on 11 February 1977, the applicant was transferred from the Natural and Physical Sciences Department, Chemistry Division, to the Computers, Mathematics and Systems Analysis Department, as from 1 January 1977. On 1 March 1977 the applicant sent a memorandum to the Site Director at Ispra in connexion with this matter. He sent a copy of that memorandum on 23 March 1977 to the Secretary General of the Commission, in connexion with his complaint of 8 December 1976. On 27 June 1977 the Site Director sent a reply.

3. On 5 July 1977 the applicant submitted the present application, directed both against the ommission of his name from the official list of proposals for promotion mentioned above and against the above-mentioned decision of 20 January 1977 to transfer him. Having heard the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure, having invited the Commission to clarify certain legal points.

II — Conclusions of the parties

The applicant claims that the Court should:

‘(a) Before the commencement of the proceedings order that the applicant's personal file be lodged at the Court Registry together in particular with the letter sent by Mr Bishop to the Commission on the subject of Mr Ditterich, no copy of which is to be found in the file; (b) Take formal note that the applicant offers to prove the discriminatory nature of the list of proposals for promotion inasmuch as the said list takes no account of: Qualifications for promotion; Seniority in the service and grade; or Age; (c) As regards the ommission of the applicant from the list of proposal for promotion : Declare that the implied rejection of the complaint of 8 December 1976 is illegal inasmuch as it did not comply with the applicant's claims and consequently declare that it is void and of no effect; Declare that the list of proposals for promotion was drawn up without account being taken of Article 45 of the Staff Regulations; that the said list is therefore entirely ineffective and is null and void; (d) As regards the transfer which has been effected; Declare that the application is accordingly admissible as regards this point; Declare that the said transfer was effected for reasons unconnected with the interests of the service; and Consequently annul it; (e) Order the Commission to pay the costs.’

The defendant contends that the Court should:

Dismiss the application as inadmissible as to its second head, and unfounded as a whole;

Make an order as to costs in accordance with the provisions in force.

III — Submissions and arguments of the parties

1. As to the first head of the application

The applicant states that in his application he is principally concerned to prompt a review of the irregular nature with regard to Article 45 of the Staff Regulations of the omission of his name from the list of promotions for 1976.

In support of this submission he claims, inter alia, as follows:

Contrary to the provisions of Article 45 of the Staff Regulations, which require the appointing authority, in the case of promotion, to undertake a comparative examination of the merits of those eligible, that list was drawn up in the present case without the said authority having had the opportunity to undertake such an examination and therefore to make known the reasons for the omission or exclusion of the applicant. For unsuccessful candidates the list in question therefore constitutes an unfavourable decision which finds no legal basis in the Staff Regulations. The appointing authority is no longer in a position to examine the menu of those candidates, given the ‘exclusive nature’ of the lists to which its signature is appended.

The contested list of promotions is also contrary to Article 45 (I) of the Staff Regulations because at that time the applicant's personal file, on the basis of which the comparative examination of the menu was to be conducted, was incomplete and even misleading Indeed, at the time the choice was made, the periodic reports for the period July 1973 to July 1975 had not been placed on the applicant's personal file. Moreover, upon inspecting that file on 19 November 1976 the applicant found that it contained not a single periodic report. Thus such reports could not nave been known to the Director who briefed the bodies concerned in connexion with proposals for promotion. Moreover, the applicant's personal file contained, in place of his own personal reports, those of an official whose name is ‘almost homonymous’, a Mr O. D. who, furthermore, is one of those Euratom employees who are ‘below average’, whereas the applicant is one of those who are ‘above average’.

The omission of the applicant's name from the list of proposals for promotion cannot be justified by any of the criteria which govern the choice of candidates eligible for promotion. As a result of that omission the applicant's name was not submitted to the promotion committee of first instance, which worked solely on the basis of the recapitulative list of proposals for promotion of the JRC Establishments and the statements of reasons therefor.

Furthermore, the removal of the applicant's name from the list in question was due to a misuse of powers: it cannot be justified objectively but is to be explained by a certain degree of ill feeling towards the applicant on the part of other officials at the institution, such as Mr Bresesti. In this connexion the Court should order the defendant to place on the applicant's personal file a letter sent by Mr Bishop to the Commission with respect to the problem of promotion lists, of which the applicant became aware during a conversation with Mr Heinrichs, of the Personnel Branch, on 15 November 1976, but which, despite his requests, was never communicated to him.

The defendant first describes the procedure for the promotion of A 5 — A 4 officials as laid down by the rules in force and settled practice, providing for various bodies which are required to draw up promotion lists to be submitted to the appointing authority. That procedure was rigorously followed for the promotion proposals of 1976. The various examinations of a large number of candidates and the results to which they led rule out any idea of discrimination with regard to any official.

The Commission further notes that the appointing authority, having taken part in the deliberations of those bodies, has already examined the merits of all the candidates in its capacity as member of those bodies. It is not required to reexamine all candidates, except, possibly, in cases where it intends to depart from the said lists. Indeed, it is at all times at liberty to include on the list which it draws up the names of officials bit mentioned thereon; this shows that those lists are not of an ‘exclusive nature’.

The defendant also makes the following remarks in particular:

The absence of the applicant's periodic reports from his personal file does not render impossible an examination of his merits for the purposes of any promotion, since the merits of a candidate may always be assessed on the basis of several factors.

On the other hand, as regards the report for the period 1969 to 1971 the applicant had already received complete satisfaction towards the end of 1975: that report should have been filed normally. As regards the report for the period 1971 to 1973, it was accepted and countersigned by the applicant on 28 July 1975. When the applicant inspected his personale file on 19 November 1976 that report should therefore have been contained therein, since the reporting officer had sent it to the Personnel Division shortly after it had been signed by the applicant (the exact date on which it was sent cannot, however, be given with certainty). Thus, throughout 1976, the applicant's personal file should have contained the two abovementioned reports. Moreover, as for the report for the period 1973 to 1975, it was considered by the Joint Committee, following the applicant's protestations concerning it. Apart from the fact that the administration acted somewhat slowly, it is difficult to understand what can be held against it. Finally, as for the presence of Mr O. D.'s periodic report (period of 1971 to 1973) in that file, it could have had no influence at all on the promotion procedure for 1976, since that report had been withdrawn from the file in question in 1975.

Moreover, the applicant's statements as to the content of his personal file are not determinative in assessing the regularity of the promotion procedure in the case in point, since four identical copies of periodic reports exist in their final form, for distribution to the personal file, the archives of the Directorate General for Personnel, the archives of the Director of the official on whom the report was made and the latter. The Director responsible for any proposals for promotion is more likely to consult the reports in his own archives rather than copies thereof placed on the personal files.

Contrary to what the applicant states, the committees of first and second instance had at their disposal all the information necessary to examine the relative merits of ‘all’ officials of Grade A 5 eligible for promotion. At the request of a member of the committee a clerical officer undertook the production of a personal file each time it appeared necessary to refer thereto. The applicant's merits were therefore duly examined with those of all officials eligible for promotion from Grade A 5 during 1976. Although the Director responsible for the submission of any proposals for promotion concerning the applicant in 1975/1976 was not the author of the report concerning the

period 1971 to 1973, he was, however, the reporting officer for the report of 1973 to 1975.

The letter from Mr Bishop which the applicant urges should be produced forms pan of the internal correspondence exchanged between the Personnel and Administration Division at Ispra and DG DC in Brussels for the purpose of the investigation of the applicant's complaint prior to his taking legal proceedings. The applicant is not in a position to demand production of any given pan of that correspondence: the latter is not covered by Article 26 of the Staff Regulations and is not required to be placed on the applicant's personal file. Moreover, that letter, which was written for the purposes of the investigation of a complaint submitted following the completion of the promotion procedure for 1976, could not have had any effect on that procedure.

The applicant's arguments concerning his relations with Mr Bresesti are based on fans which are in pan inaccurate and in any event unconnected with the promotion proposals with which this application is concerned.

2. As to the second head of the application

(a) Admissibility

The defendant challenges the admissibility of the application because its submission was premature. The memorandum of 1 March 1977 containing the complaint was received by the appointing authority on 23 March 1977 and the applicant could therefore not submit his application before 24 July 1977, but he submitted it on 5 July 1977.

The applicant's contention that the said memorandum is to be understood as pan of his complaint of 8 December 1976 can scarcely be accepted. The subject-matter of the two complaints is different and the artificial link which the applicant seeks to establish between them therefore runs contrary to the provisions of the Staff Regulations.

The applicant believes, on the other hand, that the link established between the two complaints is not artificial, since the two questions concern two aspects of a single case of misuse of powers. Those two questions should not therefore be examined separately, in view of the principle of ‘economy of procedure’.

(b) Substance

The applicant makes the following complaints, inter alia:

The transfer decision which he is contesting is, on the one hand, irregular because it does not satisfy the conditions as to ‘notification’ laid down by Article 25 of the Staff Regulations. Instead of being notified to him by way of his immediate superior it was in effect handed to him by a secretary.

Nor, on the other hand, is the said decision in conformity with the above-mentioned article, as no reasons were given for it. A mere stylistic formula could not be said to be an adequate statement of reasons for a decision to transfer a senior official.

Finally, the decision was not justified by reasons relating to the interests of the service. On examination it can be seen to be a misuse of powers. The very fact that as early as 13 September 1976 Mr Bresesti had already announced the applicant's transfer, in a memorandum which was widely circulated, proves that that transfer had been decided with premeditation and for reasons alien to the interests of the service.

The defendant contends, on the other hand:

That Article 25 of the Staff Regulations does not lay down how a decision is to be communicated to the person concerned and, more particularly, does not necessarily require that it reach him by way of his immediate superior;

That the disputed decision was taken for reasons relating to the interests of the service (in effect, relating to the abandonment of the research on which the applicant was engaged). Such a statement of reasons, which is in conformity with administrative practice, is sufficient and cannot be criticized as being merely ‘stylistic’. Moreover, the applicant could not have been unaware of the reasons for his transfer, since this was a problem which had already been brought to his notice;

The arguments based on the relationship between the applicant and Mr Bresesti, in support of the view that the decision is a disguised disciplinary measure and involves a misuse of powers, are merely unsupported allegations devoid of any relevant evidence.

Finally, the defendant criticizes the applicant's statements in that, on several occasions, the latter, in his application, ‘reserves’ the right to produce or annex to successive statements a given document. Such an attitude is at variance with Article 37 (4) of the Rules of Procedure, which provides that to every pleading there shall be annexed the documents relied on in support of it. By means of that ‘reservation’ the applicant is virtually able to raise fresh issues in the course of proceedings, which is prohibited by Article 42 (2) of the said Rules of Procedure.

It is the applicant's opinion that Article 37 (4) does not require that all the documents relied on in support of the application should be placed on the file at the time when the proceedings are commenced, especially as the production of certain documents is indispensable only if the opposing party contests the arguments based on those documents, and it is always preferable not to overcharge court files unnecessarily.

IV — Oral procedure

The parties were heard at the hearing on 1 June 1978.

The Advocate General delivered his opinion at the hearing on 13 July 1978.

Decision

1. By application submitted on 5 July 1977 the applicant, an official of Grade A 5 at the Joint Research Centre (JRC) at Ispra, claims the annulment of the list of proposals for promotion to Grade A 4 to which reference is made in the decision of the Director General of the JRC of , on which his name did not appear.19 November 1976

2. In the same application the applicant claims the annulment of the decision of the Commission of 20 January 1977, relating to his transfer within the JRC.

A — The first head of the application

3. As regards the first head of the application the applicant maintains that the list of proposals in question is irregular because it was drawn up in the context of a procedure which lacked any legal foundation.

4. In fact the rules concerning that procedure were not drawn up by the Commission in accordance with the conditions laid down in Article 110 of the Staff Regulations of Officials.

5. The list of proposals in question was drawn up pursuant to the ‘General Provisions for implementing the Procedure for promoting Staff paid from Research Appropriations’, adopted by the Commission on 6 December 1971, as amended by decision of that institution of 9 October 1973.

6. It is common ground that those General Provisions were drawn up by the Commission following consultations with the Staff Committee and after it had obtained the opinion of the Staff Regulations Committee.

7. They thus satisfy the conditions required by Article 110 of the Staff Regulations and have that provision as their legal basis.

8. The amendments made to those Provisions by the decision of the Commission of 9 October 1973 do not in any essential manner affect the rules laid down thereby, since they consist merely in changes in the descriptions of certain members of the promotion committees of first and second instance due to the internal reorganization of certain departments of the Commission.

9. Accordingly, the fact that such amendments were made without consulting the Staff Committee and obtaining the opinion of the Staff Regulations Committee does not constitute a default in relation to Article 110 of the Staff Regulations such as to affect the validity of the promotion procedure established by the above-mentioned General Provisions.

10. The applicant further claims that the list of promotion proposals in question is irregular in relation to Article 45 of the Staff Regulations because it was drawn up in the context of a procedure which did not allow the appointing authority, in accordance with that provision, to undertake a comparative examination of the merits of all officials eligible for promotion.

11. Furthermore, the infringement of Article 45 in question is said to be all the more marked in so far as the applicant is concerned in that his personal file, which should have formed the basis of the comparative examination of the merits, was incomplete.

12. According to paragraph 1 of the ‘General Provisions for implementing the Procedure for promoting Staff paid from Research Appropriations’, the purpose of those provisions is to establish an ‘advisory’ procedure to be followed before promoting such staff.

13. To that end the procedure thus laid down provides for the establishment of promotion committees of first and second instance, the task of each of which it is to ‘draw up a provisional list of officials … considered to be most deserving of promotion after comparing the merits of all officials … eligible for promotion on 31 December of the current year and after comparing the staff reports on those persons’.

14. Paragraph 8 of the Provisions further lays down that the provisional promotion lists drawn up by each promotion committee in each case shall be transmitted to the appointing authority ‘together with the reasoned reports of the promotion committees and the promotion proposals’.

15. It is clear from the statements made by the Commission that the committees of first and second instance, required to draw up provisional lists of those officials judged to be most deserving of promotion, had at their disposal, inter alia, indexed files setting out the complete career of each official eligible for promotion, tables setting out the present state of the career of each official eligible for promotion in relation to his grade and age, together with the definitive periodic reports for 1971 to 1973 and 1973 to 1975.

16. Moreover, those committees could have had made available to them, at the request of one of their members, the personal file of any official eligible for promotion whenever it appeared necessary to refer thereto.

17. Furthermore, it appears from the recitals of the preamble to the decision of the Director General of the JRC of 19 November 1976 by which he adopted, in his capacity as appointing authority, the definitive list of JRC officials of Grade A 5 judged to be the most deserving of promotion to Grade A 4, that that authority had had the opportunity of consulting the personal files and of examining in particular the periodic reports of all the officials eligible for promotion, and had undertaken a comparative examination of the merits of those officials.

18. In view of all these circumstances the fact relied on by the applicant, namely that his personal file was incomplete in that it did not contain the periodic reports relating to the periods 1971 to 1973 and 1973 to 1975, cannot be held to support a finding that the promotion list in question was irregular in relation to Article 45 of the Staff Regulations.

19. Even without those periodic reports the members of the various committees had in fact at their disposal the very widest powers to obtain all the information necessary to undertake a comparative examination of the merits of those eligible.

20. The applicant's statements do not allow it to be said that those committees did not seek such information in his case.

21. Finally, the applicant maintains that the promotion list in question is invalidated by a misuse of powers with regard to him in that the omission of his name from the list was dictated by reasons alien to the interests of the service.

22. In support of that complaint the applicant relies in particular on a note sent to the Commission by Mr Bishop, of which he obtained knowledge during a conversation with an official in the Personnel Branch and which he alleged had an unfavourable effect upon his chances for promotion.

23. He further claims that the reason for the omission of his name from the promotion list in question is to be found in the hostility shown towards him by certain of his superiors or colleagues.

24. It is not disputed that the note in question was sent by Mr Bishop to the Personnel and Administration Division at Ispra after the applicant had, on 8 December 1976, submitted a complaint through official channels concerning the omission of his name from the promotion list in question, and that it was intended to reinforce the reply by the Commission to that complaint.

25. Since that note could not accordingly have prompted that omission it cannot support the complaint of a misuse of powers as alleged.

26. Nor do the other arguments adduced by the applicant provide adequate evidence for legal purposes that he was the victim of a misuse of powers.

27. For all these reasons the first head of the application appears to be unfounded.

B — The second head of the application

Admissibility

28. The defendant contends that the second head of the application is inadmissible in that it was submitted before the expiry of the period of four months, fixed by the final subparagraph of Article 90 (2) of the Staff Regulations, from the date on which the complaint was lodged.

29. It denies that there is any foundation to the applicant's claim that his complaint through official channels against the decision to transfer him may be linked to the complaint through official channels previously submitted in relation to the promotion list with which the first head of the application is concerned.

30. It is common ground that by note of 1 March 1977 the applicant submitted to the authority which had adopted the said decision to transfer him a complaint relating to that decision.

31. In view of its purport, of its express reference to Article 90 of the Staff Regulations and of the authority to which it was addressed that note must be held to have been a complaint through official channels within the meaning of the said Article 90.

32. The authority to which that complaint was submitted replied by a memorandum of 27 June 1977 stating the reasons for the transfer decision in question.

33. In view of these facts the present application, received at the Court Registry on 5 July 1977, must be held to be admissible as to its second head.

Substance

34. The applicant maintains that the decision in dispute is irregular with respect to Article 25 of the Staff Regulations because it was not notified to him through his immediate superior but was handed to him by a secretary.

35. Further, he alleges that the said decision was not in conformity with that article because it did not contain a statement of reasons.

36. Finally, it is said not to have been justified by reasons relating to the interests of the service but to have involved a misuse of powers with respect to him due to the allegedly strained personal relations between himself and Mr Bresesti.

37. The second paragraph of Article 25 of the Staff Regulations, while providing that ‘any decision relating to a specific individual … shall at once be communicated in writing to the official concerned’, does not lay down the method by which that decision is to be communicated.

38. Such communication is deemed to have taken place when the decision in fact reaches the official concerned, whatever the means whereby it is transmitted.

39. Article 25 of the Staff Regulations further provides, in the second paragraph, that ‘any decision adversely affecting an official shall state the grounds on which it is based’.

40. In order to decide whether the requirements of Article 25 relating to a statement of reasons were fulfilled consideration should be given not only to the transfer decision itself but also to the staff memoranda in support thereof which were brought to the notice of the person concerned and which clearly informed him of the reasons behind the said decision.

41. In the present instance the transfer decision was preceded by a memorandum from Mr Bresesti of 13 September 1976, to which reference is made in the complaint of 8 December 1976, and was followed by the abovementioned memorandum of 27 June 1977 from the relevant Director informing the applicant of the reasons for the adoption of the contested decision.

42. Reasons were therefore stated for the said decision of which the applicant could not have been in ignorance and which convey all the essential factors which guided the administration in its decision and which are therefore sufficient for the purposes of a review by the Court.

43. In view of that statement of reasons the arguments adduced by the applicant in support of his complaint of a misuse of powers contain no factor such as to support the view that the transfer in question was effected for reasons alien to the interests of the service.

44. For all these reasons the second head of the application also appears to be unfounded.

Costs

43. Pursuant to the first subparagraph of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

46. However, pursuant to Article 70 of the same Rules, in proceedings instituted by officials of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application.

2 Orders the parties to pay their own costs.