JUDGMENT OF 18. 12. 1980 — JOINED CASES 154/79 AND 51/80 GRATREAU v COMMISSION

In Joined Cases 156/79 and 51/80

THE COURT (Second Chamber) composed of: P. Pescatore, President óf Chamber, A. Touffait and O. Due, Judges, Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure, the conclusions and the arguments and submissions of the parties may be summarized as follows :

I — Facts and written procedure

1. Facts

Mr Pierre Gratreau is a scientific officer of the European Communities employed in connexion with “indirect actions” and is assigned to Frascati where he carries out his duties in the context of the Euratom-CNEN (Comitato Nazionale Energia Nucleare) Association Contract. He is in Grade A 5.

He did not receive his periodic report for the period from 1 June 1973 to 30 June 1975 until 24 May 1977. In that report the reporting officer [assessor] awarded him “average” for ability and efficiency and “above average” for conduct in the service. On 6 June Mr Gratreau returned the report to the reporting officer with his comments and a request that he be heard by him in the event of disagreement.

In those comments the applicant stated that he “was regretfully unable to accept the assessment relating to his ability” for the reasons which he thereafter set forth and he concluded by asking the reporting officer kindly to take them into account for a possible reassessment.

Despite several reminders and a personal interview with the reporting officer on 16 November 1977, the letter of 6 June 1977 went unanswered until 12 September 1978 when the reporting officer informed the mediator, Mr De Groóte, to whom the matter had meantime been referred by the applicant, that he had taken account of the observations in drawing up the periodic report for the 1975 to 1977 period. A copy of that note was sent to the applicant by the mediator. The applicant's comments were put on his personal file.

The promotion procedure for 1978 began on 19 June 1978 when the joint group known as the “Instance Zero” met to conduct a preliminary examination of the merits of the officials eligible for promotion, of whom there were 75 in Grade A 5 whereas under the budget the openings for promotion to Grade A 4 were three in number. The task was pursued on 28 September 1978 by the Promotion Committee of First Instance and on 10 October 1978 by the Promotion Committee of Second Instance. Draft lists were sent to the Commission which, by decision of 9 November, drew up the list of officials most deserving of promotion to Grades A 6, A 5 and A 4. The promotion decision, which did not include the applicant, was taken by the Commission on 20 December 1978. Throughout the whole procedure the position of officials assigned to “indirect actions” was considered separately whereas the lists under challenge also included officials of the Joint Research Centre. These lists were published in “Administrative Notices” on 20 November and 20 December 1978 respectively.

In regard to the applicant, the various promotion bodies had available to them in particular a full list of his scientific publications and a proposal for promotion from the Directorate-General which terminated with the following conclusion: “Mr Gratreau, who has already been proposed on several occasions for promotion to Grade A 4 is certainly deserving of it; its omission, this year, would be both an error and an injustice”.

The periodic report for 1975 to 1977 was only sent to the applicant on 14 September 1978. On this occasion the reporting officer had awarded “average” for ability and “above average” for efficiency and conduct. The applicant again sent comments to the reporting officer but did not procure the desired amendments. He then applied to the appeal assessor who amended the periodic report and sent it to the applicant on 7 September 1978 with the assessment of “above average” transferred from efficiency to ability.

On 3 and 7 March 1979 the applicant submitted to the Secretariat-General of the Commission a complaint pursuant to Article 90 (2) of the Staff Regulations, which was registered on 5 March 1979 and which was directed against the abovementioned lists of officials who were eligible for promotion and who were promoted.

That complaint went without answer. In accordance with Article 90 of the Staff Regulations it was deemed to have been the subject of an implied decision on 5 July 1979 and on 5 October the applicant instituted proceedings before the Court seeking the annulment of the said lists (Case 156/79).

By a letter of 30 October 1979, which was notified to the applicant on 22 November, the Commission expressly rejected the applicant's complaint. On 6 February 1980 the applicant brought the second action seeking the annulment of the decision of 30 October 1979 (Case 51/80).

The Commission raised an objection of inadmissibility against the latter action.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, by order of 29 May 1980, to reserve its decision on the objection for the final judgment and the two cases were also joined for the purposes of the oral procedure and judgment, the parties having dispensed with the written procedure in Case 51/80.

2. The relevant regulations

Article 43 of the Staff Regulations provides :

“The ability, efficiency and conduct in the service of each official... shall be the subject of a periodical report made at least once every two years ... The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant”.

Under Article 45, promotion “shall be by decision of the appointing authority. It shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them ...”.

Pursuant to that provision, the Commission adopted General Implementing Provisions concerning staff [periodic] reports and issued a Guide to Staff Reports.

Article 6 of the General Implementing Provisions provides: “Should the official assessed wish to make any comments on his report the assessor shall hear him”. Article 7 enables the official to appeal to an appeal assessor and thereafter to a Joint Committee whose assessment is to be regarded as final.

Article A.2 of the Guide to Staff Reports states that “The purpose of the reports is made quite clear by Article 45 of the Staff Regulations ... Thus, staff reports are one means by which the appointing authority can compare the merits and abilities of the various officials ...”.

In Article B.7.3.1. the Guide to Staff Reports gives expression to the official's right to be heard by the assessor. Article B.7.3.2. is thereafter worded in the following terms:

“Following this dialogue the assessor may purely and simply confirm the report or may modify all or part of it.

2) If the assessor confirms the report he must so inform the official by sending him a note following the specimen on the preceding page”. (Italic text underlined in the original.)

The specimen note contains express reference to the opportunity of appealing to the appeal assessor, merely by request addressed to the assessor, within a period of 15 days.

II — Conclusions of the parties

The applicant claims that the Court should:

Declare both applications admissible;

Declare that they are well-founded;

In consequence, annul:

1) The lists of officials who are eligible for promotion and who were promoted for the 1978 financial year;

2) The Commission's decision of 30 October 1979 rejecting the complaint to the same effect, submitted by the applicant through official channels;

Order the Commission to pay the costs.

The Commission contends that the Court should :

Dismiss the application in Case 51/80 as inadmissible;

In any event, declare both actions to be unfounded;

Order the applicant to pay the costs.

Ill — The parties' submissions and arguments on the substance of the case

The applicant considers that the reporting officer infringed in several respects Article 43 of the Staff Regulations as well as the provisions implementing that Article and the Guide to Staff Reports, particularly through his dilatory compilation of the periodic reports, through his dilatory replies to the applicant's complaints and by wrongly filing the 1973 to 1975 report, with the consequence that the appointing authority drew up the lists of officials who were eligible for and who were promoted for 1978 without being able to carry out a comparative examination of the applicant's personal file, that file being incomplete inasmuch as it contained a report which was wrongly filed, whereas the 1975 to 1977 report was still subject to revision.

The Commission argues first that the action is directed against the acts which make up the promotion procedure, which followed a wholly regular course, and not against the periodic reports. The Commission stresses that the applicant did not avail himself of his right of appeal to the appeal assessor so far as the first report was concerned or of his opportunity to appeal to the Joint Committee on Staff Reports so far as the second report is concerned.

Thereafter, in regard to the reports, the Commission states that the delay in compiling the reports in question was due in part to the fact that the reporting officer in question is required to compile reports on 72 officials carrying on their duties in various countries of the Community. The applicant's comments on the 1973 to 1975 report were not interpreted by the reporting officer as formally challenging the assessment. Moreover, the interview with the reporting officer which is provided for in the Guide to Staff Reports was accorded to the applicant on 16 November 1977.

On receiving the copy of the note from the reporting officer to the mediator dated 12 September 1978 the applicant was by implication informed of the fact that the reporting officer considered the report relating to the 1973 to 1975 period as final and if the applicant had wished to insist on the matter he ought to have appealed to the appeal assessor.

In regard to the appointing authority's opportunity to carry out a thorough and fair comparative examination of the merits of the candidates eligible for promotion, the Commission emphasizes that the promotion bodies had available to them a great deal of information and documents relating to the officials of which the periodic report is only a part.

Finally, the Commission considers that in any event the promotions already effected should not be annulled. Such annulment would cause the promoted officials harm which, in its totality, would be disproportionate to any prejudice which the applicant may have suffered and the latter's rights may be safeguarded by more appropriate measures.

IV — Submissions and arguments of the parties on the question of the inadmissibility of the second action (Case 51/80)

The Commission submits that an express decision taken after the expiry or the time for appealing against an implied decision does not cause the time for bringing an application to the Court to run afresh and that a confirmatory act such as an express decision following upon an implied decision is not capable of adversely affecting the applicant.

In regard to the first submission the Commission bases an argument on Article 91 (3) of the Staff Regulations which provides that

“Appeals ... shall be filed within three months. The period shall begin: ... On the date of' expiry of the period prescribed for the reply where the appeal is against an implied decision rejecting a complaint submitted pursuant to Article 90 (2); nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh”.

Since the implied decision occurred on 5 July 1979 the period for lodging an application to the Court expired on 5 October 1979. As the Commission's express decision was taken only on 30 October and notified on 22 November, it was taken outside the period for lodging an application and cannot, according to the Commission, cause the period to run afresh.

The applicant disputes the Commission's interpretation of this provision and states, that it is not concerned with the present position but only the case where the express decision is taken before the period for lodging an application against the implied decision has expired.

In regard to the second submission the Commission argues that the express decision is purely confirmatory in its nature, that it is therefore not capable of directly affecting a given situation and that it cannot consequently be the subject of legal proceedings.

According to the applicant the decisions of the Court which the Commission cites in support of its argument are intended to avoid applicants using the pretext of a purely confirmatory act in order to reopen the periods for bringing proceedings and do not contemplate the present case where the applicant has already commenced his action in the period prescribed for an implied decision.

V — Oral procedure

At the hearing on 3 July 1980 the applicant, represented by Ernest Arendt of the Luxembourg Bar, and the Commission of the European Communities, represented by J. Pipkorn, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob of the Brussels Bar, submitted oral argument.

The Advocate General delivered his opinion at the sitting on 30 October 1980.

Decision

1. By applications lodged at the Court Registry on 5 October 1979 and 6 February 1980 Pierre Gratreau, a scientific officer of the Commission employed in connexion with “indirect actions”, who carries out his duties at Frascati in the context of the Euratom-CNEN Association Contract, brought two actions against the Commission of the European Communities.

2. The first of these actions (Case 156/79) seeks the annulment of: (a) the list of officials in Category A, paid from research appropriations, judged to be the most deserving of promotion to Grade A 4 for the financial year 1978; (b) the list of those officials who were promoted to Grade A 4 for the said financial year; both of which were drawn up by the appointing authority.

3. The second action (Case 51/80) seeks the annulment of the Commission's decision of 30 October 1979 rejecting the applicant's complaint through official channels against the abovementioned lists.

4. By order of 29 May 1980 the Court joined the two cases. In addition, the Commission having raised an objection of inadmissibility against the second action, the Court, by the same order, decided to reserve a decision on the objection for the final judgment.

Scope and admissibility of the actions

5. The two lists under challenge were published in “Administrative Notices” on 20 November and 20 December 1978 respectively. The applicant submitted to the appointing authority a complaint within the meaning of Article 90 (2) of the Staff Regulations of Officials which was registered on 5 March 1979 and was directed against the two lists. So far as relevant to the present cases, the applicant contended in particular that when the lists were drawn up his personal file was not in order since the periodic report for the 1973 to 1975 period had been irregularly included in his file and the periodic report for the 1975 to 1977 period was not yet final.

6. The Commission neglected to reply to that complaint within the four-month period provided for in the said Article 90 with the result that on 5 July 1979 it was deemed to have taken an implied decision of rejection, upon which the applicant brought the first action on 5 October 1979 (Case 156/79).

7. On 22 November 1979, after the expiry of the period, the Commission sent the applicant an express decision rejecting his complaint. In so far as the periodic report for the 1973 to 1975 period is concerned, the Commission confined itself to stating that the applicant had not availed himself of the appeal through official channels against that report and that the report had therefore become final. The second action (Case 51/80) of 6 February 1980 is directed against that express decision.

8. So far as concerns the first action, the admissibility of which is not disputed by the Commission, it should be noted that the disputed lists include officials employed in the Joint Research Centre as well as officials who, like the applicant, were employed in connexion with “indirect actions”. However, it appears from the file that, as regards the latter, the lists were drawn up on the basis of separate decisions of the Commission dated 9 November and 20 December 1978 respectively. The action should therefore be understood as seeking the annulment of the lists only in so far as they are based on those decisions.

9. So far as the second action is concerned, its admissibility is disputed by the Commission on the ground of the purely confirmatory nature of the express decision.

10. It appears in fact from the wording of that decision that it does not add any new factor to the acts adversely affecting the applicant against which the first action is directed. The express decision rejecting the applicant's complaint does not therefore constitute in itself a decision which may be challenged. It follows that the second action serves no purpose and is therefore inadmissible.

The substance

11. The applicant advances the single submission that the disputed lists were drawn up in infringement of an essential procedural requirement because the appointing authority was not able to carry out, as required by Article 45 of the Staff Regulations of Officials, a “consideration of the comparative merits of the officials eligible for promotion and of the reports on them”. The reason for this is alleged to be that the applicant's personal file was irregular and incomplete inasmuch as the periodic report for the 1973 to 1975 period was wrongly included in it whilst the report for the 1975 to 1977 period was still under revision.

12. It is appropriate therefore to consider whether the applicant's personal file was in fact irregular and incomplete and, if so, to ascertain whether that circumstance affects the validity of the lists which have been challenged.

A — The periodic reports

13. It appears from the file in the case that the two reports were compiled with considerable delay. The applicant only received the periodic report relating to the period from 1 July 1973 to 30 June 1975 on 24 May 1977 and the report relating to the period up to 30 June 1977 was only sent to him on 14 September 1978.

14. The Commission has explained these delays as arising from the fact that officials who work within the framework of association contracts do not have immediate superiors on the spot. They come directly under the director of the relevant programme. The director of the “Fusion” programme, under whom the applicant comes, is thus required to compile reports on 72 officials spread over six Member States and eight different cities.

15. In this regard it should be emphasized that the Commission may not put forward its internal administrative organization as a justification for the nonobservance of its obligations towards its officials. As the Court has already stated in its judgment of 14 July 1977 in Case 61/76 Geist v Commission [1977] ECR 1419, one of the bounden duties of the administration is to ensure that the reports are drawn up periodically on the date laid down by the Staff Regulations and that they are drawn up in a proper form. In the present case, the Commission has failed in that duty.

16. After receiving his periodic report for 1973 to 1975 the applicant returned it within the prescribed period on 6 June 1977 and informed the reporting officer that, for reasons which he explained, he was “regretfully unable to accept the assessment relating to ability”. Despite several reminders and a personal interview with the reporting officer on 16 November 1977, the letter of 6 June 1977 remained unanswered until 12 September 1978 when the reporting officer informed the mediator, Mr De Groóte, to whom the applicant had meantime referred the matter, that he had taken account of the comments of the official under assessment in drawing up the report relating to the 1975 to 1977 period. In fact, the reporting officer had caused the report for the preceding period and the applicant's comments to be filed in the applicant's personal file without informing either the applicant or the mediator of this.

17. According to the Commission, the note of 12 September 1978 which was sent by the reporting officer to the mediator by implication informed the applicant of the fact that the reporting officer regarded the report relating to the 1973 to 1975 period as final. The Commission submits that if the applicant had wished to insist on the matter he ought to have appealed to the appeal assessor.

18. This argument must be rejected. It appears clearly from the comments of 6 June 1977 that the applicant formally challenged the assessment. According to the Guide to Staff Reports issued by the Commission, the reporting officer must, if confirming the report after hearing the official, inform the official of this by a note drawn up in accordance with a specimen which contains, inter alia, express reference to the opportunity of appealing to the appeal assessor. The note sent almost a year after the interview, not to the applicant but to the mediator, which concerned the report for the subsequent period, cannot, on any view, be substituted for such information. It is necessary therefore to hold that the periodic report for the 1973 to 1975 period was not final and that, accordingly, it was wrongly included in the applicant's personal file.

19. Although the report for 1975 to 1977 contained improvements, the applicant again sent comments to the reporting officer without obtaining the desired alterations. He then applied to the appeal assessor who amended the report and sent it to the applicant on 7 September 1979. That report was therefore not final at the time when the disputed lists were drawn up.

B — The effects of the irregularity in the personal file

20. According to the applicant, the irregular and incomplete state of his personal file made it impossible for the promotion committees and the appointing authority to carry out, in his case, the consideration of comparative merits which is provided for in Article 45 of the Staff Regulations. The applicant argues in particular that it is well known that an official whose assessment for efficiency and ability is no higher than “average”, as was the case in his report for 1973 to 1975, is automatically eliminated, especially where there are 75 candidates for three available posts.

21. The Commission emphasizes that, for the purpose of giving consideration to comparative merits, the promotion committees and the appointing authority had available a great deal of information and documents relating to the officials of which the periodic reports constituted only a part. In so far as the applicant is concerned, the Commission stresses above all the existence of a proposal for promotion which spoke highly of him and a complete list of his scientific publications.

22. On several occasions, and most recently in its judgment of 5 June 1980 in Case 24/79 Oberthür [1980] ECR 1743, the Court has stressed the importance of the periodic report as a criterion of assessment each time an official's career is taken into, consideration by the administration. Thus, pursuant to Article 45 (1) of the Staff Regulations, officials may be promoted only after consideration of the comparative merits of the officials eligible for promotion and of the reports on them. Although it is true that in exceptional circumstances the absence of periodic reports may be compensated for by the existence of other information on an official's merits, such is not, however, the case with a report irregularly included in a personal file after it has been challenged by the official. Moreover, the mere existence of a proposal for promotion, even in eulogistic terms, and a list of the official's publications, drawn up by him and containing no objective assessment of their scientific value, cannot make up for the absence of a proper periodic report.

23. From the foregoing considerations it follows that, so far as the applicant is concerned, the promotion procedure was tainted by an irregularity.

24. However, in a case such as the present, where 75 officials are eligible for promotion whilst the available posts are three in number, the fact that the personal file of one of those officials is irregular and incomplete is not sufficient to render the promotions granted void unless it is established that that fact was capable of having a decisive effect on the promotion procedure.

25. The information available to the Court is not sufficient to exclude such a possibility. It appears from the file in the case that the applicant's name was entered under “second priority” by the joint group known as the “Instance Zero” even though his name disappeared at first and second instance. It also appears that following upon the interview respecting the 1973 to 1975 period, the reporting officer upgraded the assessment for efficiency for the 1975 to 1977 period by awarding a rating of “above average”, which rating the appeal assessor, to whom the applicant appealed, transferred to the heading “ability”.

26. However, since the Court does not have before it any information concerning the position of the other officials eligible for promotion or in particular any information on the position of those who were in fact promoted, it is also impossible to hold that, in the absence of the irregularity which has been established, the promotion decision might have been to different effect.

27. In order to give judgment on the application it is therefore necessary to ask the Commission to supply the Court with the information available to the promotion committees and the appointing authority in so far as that information is necessary to enable the Court to judge whether the irregularity in the applicant's personal file was capable of having an effect upon the disputed decisions.

28. However, in view of the fact that in the foregoing considerations the Court has already decided several of the issues between the parties it is appropriate first to give them the opportunity of reconsidering the applicant's position in the light of those considerations and, if appropriate, of seeking to reach an extrajudicial settlement on the method whereby any damage suffered by the applicant may be made good and account also be taken of the legitimate interests of the other officials.

On those grounds, THE COURT (Second Chamber) by way of an interim decision given on the application for annulment brought by Pierre Gratreau in Case 156/79, hereby:

1 Orders the parties to report to the Court before 30 April 1981 either notifying it of any extrajudicial settlement which they may have reached or providing it with all additional information necessary to enable it to give final judgment in the dispute;

2 Dismisses the application in Case 51/80 as inadmissible;

3 Reserves the costs.