JUDGMENT OF 19. 2. 1981 — JOINED CASES 122 AND 123/79 SCHIAVO v COUNCIL
In Joined Cases 122 and 123/79
THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts and the arguments of the parties set out in the course of the written procedure may be summarized as follows:
I — Facts and written procedure
Mrs Mirtia Schiavo, an Italian national, entered the service of the Council through a competition held on 16 October 1972 and on 16 July 1973 was made an established official as an assistant translator in the second step of Grade L/A 7. In the first two periodic reports — for the periods from the time when she entered the service of the Council to 31 October 1973 and from 1 November 1973 to 31 October 1975 — Mrs Schiavo generally received the assessments “good” and even “very good”, for her knowledge of English, for example. The applicant considers that favourable nature of these reports was confirmed by the fact that she was selected to participate in a Greek course in Greece and by a confidential memorandum of 16 December 1976 in which her head of division notified her that he had put her forward for promotion. For the period from 1 November 1975 to 31 October 1977 the periodic report was drawn up on 16 February 1978 in accordance with the new criteria established by the Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations on periodic reports. Since Mrs Schiavo considered that that periodic report was “negative” in comparison with the previous reports she requested an interview with her head of division and first reporting officer, Mr Valerio, who reviewed the assessments more favourably on three points so that as a whole she received “good” assessments, and was even given the assessment “very good” five times.
Nevertheless, since Mrs Schiavo still did not agree with the first reporting officer despite the amendments made, she submitted on 6 March 1978 a written request for a review of the amended report of 16 February 1978. That request was refused by a note date 9 March 1978 and the applicants submitted to the second reporting officer, Mr Duck, a request, in accordance with Article 7 of the Decision of 18 October 1977, for the revision of the amended report. The latter, in a note dated 25 May 1978, made amendments which were in general favourable to the applicant although the note expressly referred to the report drawn up by the first reporting officer.
By letter of 15 June 1978 the applicant refused to accept the conclusions of the second report and stated that she intended to submit a complaint within the meaning of Article 90 of the Staff Regulations, which she formally did by letter of 11 September 1978. As a result of the letter of 15 June 1978 the periodic report was transmitted on 17 July 1978 to the Reports Committee. After hearing the applicant on 6 November 1978 the Reports Committee delivered on 28 November 1978 an unfavourable opinion which the Secretary-General confirmed by a note of 8 December 1978. That note, accompanied by the opinion of the Reports Committee, was transmitted to the applicant on the same day. However the applicant, who had taken leave of absence on personal grounds, only received those documents on 18 December 1978 and returned them to the administration on 28 December 1978 after signing the report whilst reserving her right to challenge it.
In the meantime the Secretary-General of the Council took, on 30 November 1978, a series of decisions regarding the promotion of certain officials on the language staff in accordance with the opinion of the Council's Advisory Committee on Promotion dated 22 November 1978. The list of officials promoted was posted in the premises of the institution on 6 December 1978 and published in the Monthly Staff Bulletin of the European Communities No 158 of January 1979.
By a first letter dated 25 March 1979 the applicant formally requested the Secretary-General of the Council to adopt a formal, reasoned decision “on the request for a review of the periodic report made on her with a view to annulling it”. In the next three months no decision was taken by the Secretary-General.
By a second letter dated 25 March 1979 the applicant submitted a complaint against the decisions of 30 November 1978 regarding the promotion of certain officials. That complaint formed the subject-matter of an express decision of rejection of 18 June 1979.
Against these two decisions of rejection, the one implied and the other express, Mrs Schiavo lodged with the Court of Justice two applications against the Council: both were registered at the Court on 3 August 1979.
In Case 123/79 concerning the periodic report the Council raised an objection of inadmissibility, maintaining as its principal ground that the application was not preceded by a complaint within the meaning of Article 90 (2) of the Staff Regulations.
The Court, Second Chamber, on hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided on 31 December 1980, first, to reserve its decision on the objection of inadmissibility in Case 123/79 for the final judgment and, secondly, to join the two cases and to open the oral procedure without any preparatory inquiry, thereby rejecting a request by the applicant for production of the individual files of the officials promoted on 30 November 1978.
II — Conclusions of the parties
1. In Case 122/79
The applicant claims that the Court should:
a) in her application:
“Annul the contested decision together with all prior and preparatory measures, including the opinion of the Advisory Committee, with all the legal consequences thereof, including an order that the defendant pay the costs”.
b) In her reply:
“1. As a preliminary measure, dismiss the objection of inadmissibility as unfounded in law;
2. As a measure of inquiry in accordance with Article 45 (1) and (2) of the Rules of Procedure in conjunction with Article 21 of the Protocol on the Statute of the Court of Justice, order the defendant to produce all documents relating to the personal files of the applicants and of all of the officials promoted;
3. Accordingly rule in favour of the applicant notwithstanding any conclusions to the contrary and annul the contested decisions together with all preparatory measures with all the consequences in law resulting therefrom;
4. Order the defendant to pay the costs”.
The defendant contends that the Court should:
a) in its statement of defence:
“1. As a preliminary measure, rule on the admissibility of the application;
2. If it is held that the application is admissible, reject the claims of the applicant as unfounded;
3. Order the applicant to pay the costs of the proceedings in so far as they are not to be paid by the defendant under Articles 70 and 95 (2) of the Rules of Procedure”;
b) Adding thereto in its rejoinder:
“2. Having found that the individual file on the applicant has been transmitted to the Court of Justice in accordance with Article 26 of the Staff Regulations, to dismiss the claim of the applicant for an order, as a measure of inquiry, that the individual files on the officials promoted should be produced”.
2. In Case 123/79 (Periodic report)
In her application the applicant claims that the Court should:
“— After declaring this application to be well founded, annul the contested communication of 8 December 1978 and the implied decision of rejection which is also contested together with all prior preparatory measures including the opinion of the Reports Committee with all the consequences in law including an order that the defendant pay the costs”.
In its application raising an objection of inadmissibility the Council contends that the Court should :
“Dismiss this action as inadmissible and order the applicant to pay the costs in so far as the defendant is not liable for them in accordance with Articles 70 and 95 (2) of the Rules of Procedure”.
In her reply to the application raising an objection of inadmissibility the applicant claims that the Court should :
“1. Dismiss the objection that the application is inadmissible; 2. Consequently rule that the application is inadmissible; 3. In accordance with the second subparagraph of Article 91 (4) reserve its decision regarding the objection for the final judgment and prescribe new time-limits for the further steps in the proceedings”.
In its defence and in its rejoinder the Council contends that the Court should:
“1. Rule on the preliminary objection as to the admissibility of the application; 2. If the application is declared admissible, dismiss the claims of the applicant as unfounded; 3. Order the applicant to pay the costs in so far as the defendant is not liable therefor in accordance with Article 70 and 95 (2) of the Rules of Procedure”.
In her reply the applicant claims that the Court should :
“— Dismiss all objections, arguments and inferences contrary to her application; — Grant her application by declaring it admissible and well founded and take all the measures which it shall consider appropriate”.
III — Summary of the submissions and arguments of the parties
Since Case 123/79 is intended to have annulled the periodic report which, according to the applicant, constitutes one of the reasons why she was not promoted, it appears reasonable to provide first of all a summary of the submissions and arguments concerning that case before considering those relating to the annulment of the decision to promote certain officials of the language staff which forms the subject-matter of Case 122/79.
A — In Case 123/79 (Periodic report)
1. Admissibility
The Council contends:
a) The application is not dated although Article 37 (3) of the Rules of Procedure of the Court of Justice provides that all pleadings shall bear a date. On this point the Council “relies upon the discretion of the Court”. The same argument has been advanced in Case 122/79.
b) There is no implied decision of rejection by the Secretary-General which rejected the formal notice of the applicant of 25 March 1979 and against which the application is partly directed, since the Secretary-General replied to that notice by letter of 18 June 1979.
c) Proceedings have been brought before the Court of Justice before any valid complaint was addressed to the appointing authority in accordance with Article 90 (2) of the Staff Regulations. The formal notice of 25 March 1979 does not constitute a complaint within the meaning of that article: Either as to form, since the applicant bases her action on Article 175 of the Treaty although the Court of Justice has already stated that disputes between officials of the Communities and their institutions are governed by Article 179 of the Treaty; Or as to substance, since it does not contain the characteristics of a complaint which must be directed against an act adversely affecting the official, but constitutes a request within the meaning of Article 90 (1). In that case the application is inadmissible because it was not preceded by a complaint within the meaning of Article 90 (2). However, even if it were necessary to consider that formal notice as a complaint the application would still be inadmissible on the grounds that, since the applicant received the reply of the Secretary-General on 18 December 1978, she should have sent her complaint by 19 March 1979 at the latest. She did not send it until 25 March 1979. Finally, even if the complaint of 11 September 1978 were taken into consideration the application would still have been submitted out of time.
To which the applicant replies:
a) The fact that there is no date on the application is of no consequence since according to Article 37 (3) of the Rules of Procedure the date of lodgment at the Registry, in these proceedings 3 August 1979, is the only relevant date in the reckoning of time-limits. Furthermore the general principles of procedural law do not require that undated pleadings shall be null and void.
b) Pursuant to the second paragraph of Article 25 of the Staff Regulations any decision relating to a specific individual must be communicated in writing to the official concerned and if it adversely affects him it must state the grounds on which it is based, as has been confirmed by the case-law of the Court. The decision of the Secretary-General of 8 December 1978 was entirely lacking in a statement of the reasons on which it was based, which means that it is void since the letter of 18 June 1979 cannot remove the nullity of another measure. Accordingly the applicant proceeded correctly when, by a document of 25 March 1979, she submitted a complaint within the period of three months to the appointing authority and, when she did not receive any reply, since the letter of 18 June 1979 does not constitute a reply, she submitted an application to the Court on 3 August 1979.
c) As to the objection that the application is inadmissible because of the failure to lodge a prior complaint: either, after the opinion of the Reports Committee there was no implied decision of rejection having a proper statement of the reasons on which it was based by the Secretary-General and, in that case the complaint lodged by Mrs Schiavo on 25 March 1979 is valid as is the subsequent application, or there was an express decision of rejection on 18 June 1979, as the Council maintains, and the application lodged at the Registry on 3 August 1979 is admissible.
d) With regard to the objection that the complaint contains defects as to substance and form there is no provision laying down requirements as to form apart from that expressly prescribed time-limit. Furthermore it cannot be disputed that the absence of a decision after the opinion of the Reports Committee constitutes an act adversely affecting the applicant which as such can form the subject of a complaint and that the letter of 25 March 1979 thus constitutes a complaint against an act adversely affecting the applicant since its form is scarcely relevant; it is only the determination of the substantive features of the letter which determines its legal nature.
e) With regard to the alleged failure to submit a complaint through the applicant's immediate superior the provision in Article 175 is not incompatible with that in Article 179 of the Treaty. The former, which is a general rule, permits a person to complain to the Court of Justice that an institution of the Community has failed to address to that person “any act other than a recommendation or an opinion”. The latter, a special rule, extends the jurisdiction of the Court to cover “any dispute between the Community and its servants”.
In its defence the Council observes:
That the applicant herself describes her note of 11 September 1978 as a “complaint”;
That Article 90 (3) of the Staff Regulations expressly requires a request or complaint to be submitted through the official's immediate superior;
That the period of three months, starting from the date of notification to the person concerned, stipulated by Article 90 (2) was exceeded by a large margin since notification was made on 18 December 1978; that the period expired on 19 March 1979 and the “formal notice” is dated 25 March 1979.
In her rejoinder the applicant maintains, relying on the judgment of the Court of 5 April 1979 in Case 117/78 Orlandi v Commission [1979] ECR 1613, that in order to define decisions against which an application lies it is the nature of the contested measure rather than its form and external appearance which should be appraised and concludes from this that since no statement of reasons for the note of 8 December 1978 was provided, it cannot be regarded as a reasoned decision; accordingly it would have been reasonable to consider that either no reasoned decision exists or, if one does exist, that it was not presented with a statement of the reasons on which it is based, or that no implied decision of rejection exists.
In its rejoinder the Council repeats first of all that “whatever name is conferred upon the applicant's document dated 25 March 1979 she has failed to observe the time-limits laid down by the Staff Regulations for lodging an application with the Court of Justice”. It then contests the applicant's reliance on the above-mentioned judgment of 5 April 1979 in Case 117/78, since it considers, on the one hand, that that judgment concerns “facts entirely different from those in the present case” and, on the other, that irrespective of this observation as to irrelevance of the decision relied upon, a complaint through official channels must be lodged within the time-limits “in order to avoid creating a wholly arbitrary confusion as to the time-limits prescribed by the legislature in order to ensure legal certainty in the exercise of legal remedies”.
2. Substance
The applicant states:
a) By virtue of Article 90 of the Staff Regulations the appointing authority must provide the person concerned with a reasoned decision. The note of 8 December 1978 from the Secretary-General merely confirms the adverse opinion of the Reports Committee and thus fails to state the reasons on which it is based. This entails the nullity of the note, in view of the essential importance which the Court of Justice has attributed to the reasons on which a decision is based.
b) That is why the Secretary-General was formally requested to act. Since he failed to reply and since, according to the case-law of the Court, any administration, when it takes steps which by their nature may seriously prejudice the interests of an individual, is bound to enable the person concerned to make known his point of view, his silence amounts to an implied decision of rejection which is furthermore ultra vires since the reasons on which it was based were not stated and because the act in question constitutes an implied decision of rejection.
c) The fact that the application is well founded is furthermore established “by the manifest injustice in the behaviour of collegiate bodies” or bodies consisting of a single member whose actions and opinions preceded the confirmation by Mr Hommel in his note of 8 December 1978, and by the contradiction between the wording of the first periodic reports and the final decision taken by the Community authorities: in particular the applicant maintains that the periodic report in question constitutes “a logical inconsistency” in relation to the communication of 16 December 1978 whereby the head of division proposed Mrs Schiavo for promotion. Consequently “the behaviour of the appointing authority is grossly illegal where it confirms, without giving reasons, adverse assessments which were preceded by favourable assessments and when this results in a refusal of promotion”.
d) Finally, in reply to the argument of the Council that none of the defects listed by the Court in its judgment of 24 October 1976 in Case 122/75, Küster, [1976] ECR 1685 were cited amongst the grounds of the application, the applicant emphasizes first of all that she espouses that decision, according to which and contends that she alleged that the decision of Mr Hommel of 8 December 1978 was illegal, and that she claimed that all the preparatory measures should be annulled.
“the argument that an application against a periodic report is inadmissible from the outset cannot be accepted”
The Council for its part replies:
a) With regard to the submissions concerning form, that is to say, to the note of 8 December 1978. First of all, with regard to the requirement to state reasons, the defendant maintains that in the above-mentioned Case 122/75 the Court stated that periodic reports were not governed by Article 25 of the Staff Regulations but by Article 43 which obliges the institutions to state the reasons on which measures are based in extreme cases only. Article 10 (5) of the Council decision, adopted pursuant to Article 43 of the Treaty, makes “absolutely no provision for a statement of reasons”. Further, with regard to the fact that the note is ultra vires since it constitutes an implied decision of rejection the defendant considers that it only needs to be pointed out that that note was drawn up, signed and sent to the applicant who acknowledged receipt in her letter of 28 December 1978. Finally, the applicant's remark by which she sought to indicate that the application also covers the opinion of the Reports Committee is irrelevant on the ground that, since the appointing authority adopted that opinion in its decision of 8 December 1978, any application against that decision entails challenging the said opinion.
b) With regard to the submissions relating to the substance of the case, that is to say, to the drafting of the periodic report in question. The defendant relies upon the judgment in the above-mentioned Case 122/75 in support of its argument that proceedings against a periodic report must be based on the defects exhaustively listed by the Court, that is irregularity of form and of procedure, manifest error and misuse of discretionary powers, and that the applicant has failed to plead any of these defects since she merely alleges that there has been a “manifest injustice” without adducing any evidence therefor although the advisory bodies stated their views “scrupulously observing the rules governing their activities”, or, further, that there has been a “logical inconsistency” although on the contrary it is of the essence of the specific function of such periodic reports to produce a different assessment and it is impossible to consider a proposal by a head of division that a person should be promoted as evidence of a manifest error or a misuse of discretionary powers.
B — In Case 122/79 (Promotion)
1. Admissibility
The defendant relies upon two principal grounds which in its view entail the inadmissibility of the application :
a) First, the application was lodged out of time. Article 90 (2) of the Staff Regulations of Officials prescribes a period of three months for lodging a complaint against an individual measure which adversely affects a person other than the person to whom it is addressed. That period starts to run on the date on which the latter person receives notification of that measure but in no case later than the date of application. In the present case the complaint, dated 25 March 1979, refers to decisions regarding promotion which were taken on 30 November 1978 and posted up on 6 December 1978. The period of three months expired on 7 March 1979. “Publication” must not be understood as the insertion of the name of the persons promoted in the Monthly Staff Bulletin of the European Communities. Since the decisions in question are of an individual character the requirement of publication is fulfilled by posting on notice boards since their subsequent insertion in the bulletin is only for general information. It is true that at that date the applicant was on leave on personal grounds but that does not alter the nature of the said bulletin which is merely for general information and is not an official collection of decisions under the Staff Regulations.
b) Secondly, the application was not submitted through her immediate superior although it is expressly required in Article 90 (3) of the Staff Regulations that this procedure should be followed and the fact that the applicant was at the time on leave does not relieve her of her duty to comply with the formal requirements laid down by that paragraph.
c) The defendant also put forward an alternative ground: it alleges that there is an error in the causa petendi: the reason for the application resides in the fact that the appointing authority failed to reply to her complaint and accordingly the application, according to the applicant, is directed against an implied decision of rejection. But in the present case an express decision of rejection was taken on 18 June 1979 and it is impossible to assimilate the two concepts.
The applicant for her part puts forward the following arguments:
a) Article 25 of the Staff Regulations provides that “specific decisions regarding ... promotion ... of an official shall at once be posted ... and shall be published in the Monthly Staff Bulletin of the Communities”. It follows that a decision may only be regarded as validly published when it has complied with those two requirements. In this case publication took place in the course of January 1979 and the application was thus submitted within the time-limit prescribed by the Staff Regulations. Mrs Schiavo was, moreover, staying in Italy at that time and only learned of the promotions, in which she herself was not included, through their publication in the Staff Bulletin.
b) It may be that the complaint was not addressed in an “orthodox” manner to the appointing authority but it produced the intended effect since the appointing authority, in its decision of 18 June 1979, did not object that the notification of the complaint was not in accordance with the rules of the Staff Regulations as to form but merely rejected it as inadmissible, wrongly assuming that it was out of time.
c) The Secretary-General's decision of rejection, dated 18 June 1979, is not to be classified as an express decision of rejection, which assumes that the substance of the dispute is considered, but as an implied decision of rejection in that the decision rejects the complaint without considering the substance of the matter since it merely considers that the complaint was lodged out of time. Be that as it may, “once the dispute reaches the judicial level the application pending before the Court is formally and substantively directed towards the annulment of the decision, implied or express, of rejection”.
The defendant replies to those arguments as follows:
a) The words “publication provided for in Article 90” do not have the same significance as “publication in the Monthly Bulletin provided for in Article 25” since the German and Dutch versions of the Staff Regulations, which use two different words for both cases, confirm that posting meets the requirement of “making public” decisions concerning promotion. Furthermore, the applicant's interpretation would in fact create a flexible time-limit and “for obvious reasons of legal certainty” cannot be accepted.
b) It is true that the letter of 18 June 1979 considers that the complaint was inadmissible because it was lodged out of time but that does not prevent it from also being inadmissible because when the complaint was lodged it did not comply with the formal requirements of the Staff Regulations: submission through the immediate superior of the applicant.
c) With regard to existence of an error in the causa petendi, the defendant maintains its argument and leaves the matter to the discretion of the Court.
2. Substance
(a) In ber application the applicant complains that the contested decision:
Does not contain a statement of the reasons on which it is based;
Excluded her from the promotion operations although the competent bodies were unaware of “her legal position” since at the same time her file had been submitted to the Reports Committee for consideration although the provisions of Articles 26 and 45 of the Staff Regulations read together imply that promotion may only be granted when the persons concerned are acquainted with all the qualities of the official since the individual files must contain all the documents concerning the administrative position of the official and all the reports concerning his abilities. Furthermore, in the present case the opinion expressed by the Advisory Committee of the Council on 22 November 1978 preceded by eight days the adverse opinion delivered by the Reports Committee, which is surprising and constitutes a manifest infringement of the rights and interests of Mrs Schiavo.
(b) In its defence the Council replies:
According to the consistent case-law of the Court, “the appointing authority is not obliged to give reasons for promotion in so far as they affect candidates who have not been promoted since a statement of these reasons might harm ... unsuccessful candidates”.
The members of the Advisory Committee on Promotion had the individual files, and thus the periodic reports, of all officials eligible for promotion since it was only needed to photocopy the original periodic reports. The fact that the opinion of the Reports Committee was subsequent to that of the Advisory Committee is in itself of no consequence since the two bodies are independent of each other and the Reports Committee finally delivered a negative opinion to the effect that it was unnecessary to review the report on the applicant. With regard to the promotion itself it should be noted that it was subsequent to the opinion of the Reports Committee.
(c) In her reply the applicant states that she is astonished, first, that she was excluded from the action on promotions although she was proposed for promotion on 16 September 1976 by the head of the Italian Division; secondly, that her second reporting officer took two and a half months to express his opinion; thirdly, that the Council claims in its defence that the two bodies (the Advisory Committee and the Reports Committee) are independent and that resort may be had to photocopying although that is contrary to the secret and confidential nature of the personal files of the staff; fourthly, that the Council, which felt itself obliged to state that the decisions concerning promotion were taken after the opinion of the Reports Committee, has incriminated itself by this excuse; these factors firmly establish that in excluding her from promotion the contested decisions regarding promotion disregarded all the facts and assessments relating to the applicant, and thus excluded her from the action taken with regard to promotions.
(d) Finally, in its rejoinder the Council claims:
The delay in the second report was due solely to the considerable number of officials who had to be assessed by a new method established by the Decision of 18 October 1977 and that it is improper to relate the delay in question to a presumed unfavourable attitude of the applicant's immediate superiors, and such a connexion has furthermore not been established.
The use of photocopying methods does not infringe the secret and confidential nature of the individual file since the photocopying is carried out by officials who, in accordance with Article 17 of the Staff Regulations, are required to exercise the greatest discretion.
The Council has indicated that the contested decisions were subsequent to the opinion of the Reports Committee simply in order to prove that when the appointing authority took its decision it was in possession of all the necessary information.
IV — Oral procedure
The applicant, represented by S. Rossi, of the Rome Bar, and the Council of the European Communities, represented by Mr A. Sacchettini, presented oral argument at the sitting on 16 October 1980 and replied to the questions submitted by the Court.
The Advocate General delivered his opinion at the sitting on 11 December 1980.
Decision
1. By applications lodged at the Court Registry on 3 August 1979, Mrs Schiavo, who at the time was an official in Grade L/A 7 at the Council of the European Communities, brought two actions, which were joined by order of 31 January 1980, one for the annulment of the implied decision rejecting her request for a review of her periodic report for the period from 1 November 1975 to 31 October 1977 and of the note of the Secretary-General of the Council of 8 December 1978 confirming the opinion of the Reports Committee of 28 November 1978 which was not in favour of that request, and the other for the annulment of a series of decisions of the Council of 30 November 1978 deciding on the promotion of certain offcials of the language staff.
The background to the dispute
2. The applicant was appointed a probationary official with the Council on 16 October 1972. In accordance with the decision of the Council of 25 May 1964 concerning the report on the ability, efficiency and conduct in the service of officials of the General Secretariat of the Council, two periodic reports, generally containing the assessments “good” and even “very good”, were drawn up for the periods 1972-73 and 1974-75 without occasioning any remarks by the applicant.
3. In accordance with new criteria established by the Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations of Officials on periodic reports Mrs Schiavo was the subject of a periodic report dated 16 February 1978 for the period from 1 November 1975 to 31 October 1977 drawn up by her head of devision and first reporting officer, Mr Valerio.
4. Since Mrs Schiavo considered that this periodic report differed from the previous report in a “negative” sense, she first of all requested an interview with her first reporting officer, following which she obtained positive amendments; nevertheless she asked in writing for a review of the said report which had been amended in her favour. That request was refused and she then asked for a review of that report by the second reporting officer, Mr Duck, in accordance with Article 7 of the Decision of 18 October 1977. Mr Duck, in a note dated 25 May 1978, made favourable amendments to the general assessment.
5. However, the applicant also refused to accept the conclusions of the second reporting officer and submitted a complaint within the meaning of Article 90 of the Staff Regulations by letter of 11 September 1978 addressed to the Secretary-General of the Council.
6. In view of that complaint the Secretary-General, pursuant to Article 11 of the Council Decision of 18 October 1977, referred the matter to the Reports Committee for whose intervention provision is made by the decision for the case where an official disagrees with the periodic report of which he is the subject.
7. On 28 November 1978 the Reports Committee delivered an opinion which was unfavourable to the applicant and which the Secretary-General confirmed by note of 8 December 1978. That note, accompanied by the opinion, was notified to the applicant who received them on 18 December 1978.
8. In the meantime the Secretary-General, acting on the opinion to that effect of the Advisory Committee, took on 30 November 1978 a series of decisions regarding the promotion of certain officials other than the applicant. The list of officials promoted was posted in the premises of the institution on 6 December 1978 and was published in the Monthly Staff Bulletin of the European Communities, No 158 of January 1979.
9. Thereupon the applicant sent on 25 March 1979 two letters, the first registering a complaint concerning the decisions on promotion and the second formally requesting the Secretary General to take a decision concerning the periodic report drawn up on 16 February 1978.
10. Since no answer was given to those two letters the applicant lodged the two above-mentioned applications.
The admissibility of the two applications
The claim for the annulment of the periodic report
11. In the course of the written procedure the Council maintained in the first place that the application was inadmissible because a prior complaint was not lodged, as the letter of 25 March 1979 does not constitute a complaint within the meaning of Article 90 (2) either formally, since it was based on Article 175 of the EEC Treaty whereas disputes between officials and their institutions come under Article 179 of the EEC Treaty, or substantively, since it constitutes a request within the meaning of Article 90 (1). Even if it were possible to consider the letter as a complaint, the application would nevertheless be inadmissible on the ground that the complaint should have been submitted on 19 March 1979 at the latest.
12. At the hearing the Council, relying on the judgment of 3 July 1980 (Grassi v Council, Joined Cases 6 and 97/79 [1980] ECR 2141), contended that, since proceedings against a periodic report may be instituted without the necessity of a prior complaint, the applicant should have lodged the application before 19 March 1979.
13. The applicant on the other hand maintains that, since all individual decisions which adversely affect an official must state the reasons on which they are based and since the note from the Secretary-General of 8 December 1978 did not state the reasons on which it was based it is void and that she was accordingly justified in submitting a “formal request” on 25 March 1979 to take a decision.
14. It should first of all be recorded that, with regard to periodic reports, the Council Decision of 18 October 1977 fixes the course of the procedure before court proceedings are instituted and provides in particular in Article 10 (5) that
“the appointing authority shall confirm the report and shall transmit it to the official who is the subject of the report, thus bringing to an end the complaints procedure”.
15. In the present case the applicant submitted on 11 September 1978 a complaint within the meaning of Article 90 (2) in order to have her periodic report corrected. The special procedure thus initiated was closed, in accordance with the provisions of the Council Decision of 18 October 1977, by the note of the Secretary-General confirming the opinion of the Reports Committee which the applicant received on 18 December 1978. As from that date the periodic report was regarded as final.
16. It may also be noted that the Court, in its above-mentioned judgment in the Grassi case, has already made it clear that in such a situation it is not a condition of instituting proceedings before the Court that a prior complaint through official channels should have been lodged: The applicant should thus have brought the matter directly before the Court within the period of three months laid down in Article 91 of the Staff Regulations, that is, before 19 March 1979, whereas her application was lodged on 3 August 1979.
“Action against the periodic report lies as from the date on which that report may be regarded as final and ... it is not possible to require in addition the prior formality of a complaint under Article 90”.
17. Furthermore, even if it were possible to classify the applicant's letter of 25 March 1979 as a complaint through official channels for the purposes of Article 90 (2) of the Staff Regulations, and even if the error committed as to the inapplicability of that article, given the present wording of the provisions, could be regarded as excusable, those circumstances in no way alter the fact that the complaint was out of time since it was lodged after 19 March 1979.
18. In consequence, since the application in Case 123/79 was lodged out of time, it must be declared inadmissible.
The claim for the annulment of the decisions on promotion
19. The Council maintains that the application was lodged out of time since the complaint, which was dated 25 March 1979, was aimed at procuring the annulment of the decisions on promotion posted on 6 December 1978, and that it was lodged after the period of three months from the date of publication, that is after the period fixed as a condition of admissibility by Article 90 (2) of the Staff Regulations. In support of that argument it claims first that, according to that provision, the period within which a third party, who is adversely affected by an individual measure, must lodge an application, starts to run “on the date on which he receives notification thereof but in no case later than the date of publication”, which in the present case is the date of posting, and secondly, that the requirements of legal certainty would not be fulfilled if publication in the Monthly Staff Bulletin were taken as the time from which the period starts to run.
20. The applicant, relying on Article 25 of the Staff Regulations which provides that maintains that a decision may only be considered as validly published after it has been posted in the premises of the institution and published in the Monthly Staff Bulletin of the Communities. Since that latter publication took place in January 1979 the complaint was lodged within the period required by the Staff Regulations.
“Specific decisions regarding ... promotion ... of an official shall at once be posted in the premises of the institution to which the official belongs and shall be published in the Monthly Staff Bulletin of the Communities”,
21. Whilst it is indeed true that Article 25 of the Staff Regulations specifies that all decisions relating to specific individuals regarding the promotion of an official must be posted and published it should be noted that, with regard to third parties who are concerned, the general scheme of the second indent of Article 90 (2) implies that the period during which a complaint must be lodged starts to run as from the day when the third party concerned receives notification of the measure in dispute but in no case “later than the date of publication”. In the case of decisions regarding the promotion of officials “the posting at once” of such decisions in the premises of the institution to which the official belongs is wholly in conformity with the objective of that measure which is to bring such individual decisions to the attention of the restricted class of persons concerned whereas the sole purpose of publication in the Monthly Staff Bulletin is to provide general information which does not have any particular legal effect.
22. With regard to the requirements of legal certainty the Court has declared in its judgment of 12 December 1967 (Müller née Collignon) Case 4/67 [1967] ECR 365) that which also applies to the periods for lodging complaints which, from the procedural point of view, precede them and are of the same nature since they both contribute, with the objective of ensuring legal certainty, to the regulation of the same remedy.
“The periods prescribed for instituting proceedings are mandatory in nature and are not subject to the discretion of the parties or of the Court,”
23. If the time from which the period for lodging complaints started to run coincided with the publication of the measures in question in the Monthly Staff Bulletin, which often occurs long after publication of such measures through posting, that period would be rendered variable, which is contrary to the interests of the persons who benefit from those individual measures and would not confer any real advantage upon officials adversely affected by such measures as the latter are able without difficulty to inform themselves or to be informed in good time of important measures which have been posted in accordance with clearly prescribed rules which were adjusted within the framework of the personnel management within their department and which concern their personal administrative position.
24. Accordingly it must be concluded that, since the applicant's complaint was lodged out of time for the purposes of Article 90 (2) of the Staff Regulations of Officials, the application in Case 122/79 must also be declared inadmissible.
Costs
25. Article 70 of the Rules of Procedure provides that without prejudice to the second subparagraph of Article 69 (3) in relation to costs which the Court considers to have been unreasonably or vexatiously caused, institutions shall bear their own costs in proceedings by servants of the Communities.
26. The Court considers that the applicant should not have the benefit of the provisions of Article 70. It is apparent from the foregoing that she persisted in pursuing judicial proceedings without being able to establish a real interest although, as a result of her complaints and by means of the internal review procedure within the Council administration, she had the assessments on her favourably revised. In those circumstances the bringing of and persistence in a legal action must be regarded as vexatious. It is therefore right to order the applicant to pay the whole of the costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the applications as inadmissible;
2 Orders the applicant to pay the whole of the costs.
1 Judgment of 21 February 1974 in Joined Cases 15 to 33/73 et seq. Schots, née Korlner [1974] ECR 177; judgment of 22 October 1975 in Case 9/75 Meyer-Burckhardt [1975] ECR 1171 and judgment of 12 February 1977 in Case 48/76 Riinan [1977] ECR 291.
2 Judgment of 4 July 1963 in Case 24/62 Germany v Commission [1963] ECR 63; judgment of 12 October 1978 in Case 86/77 Kuno Ditlerich [1978] ECR 1855; judgment of 27 October 1977 in Case 121/76 Moli [1977] ECR 1971.
3 For example the judgment of 13 April 1978 in Case 75/77 Molkt [1978) ECR 897.
4 Cf. judgment of 30 October 1974 in Case 188/73 Grassi [1974] ECR 1099; judgment of 19 March 1964 in Case 27/63 Raponi [1964] ECR 129; judgment of 9 June 1964 in Cases 94 and 96/63 Bemusset [1964] ECR 297; judgment of 31 March 1965 in Cases 12 and 29/64 Ley [1965] ECR 107; judgment of 8 July 1965 in Cases 27 and 30/64 Forni [1965] ECR 481; judgment of 13 July 1972 in Case 90/71 Bernardi [1972] ECR 603.