C-97/63
ECLI:EU:C:1964:61
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JUDGMENT OF THE COURT (SECOND CHAMBER) 7 JULY 1964
Luigi de Pascale
v Commission of the European Economic Community
Case 97/63
Summary
1. Officials — Promotion — Criteria for assessment — Absence of periodical reports during period of adaptation of Staff Regulations — Decision not based on such reports — Validity (EEC Staff Regulations, Articles 43, 45, 110)
2. Officials — Promotion — Obligations of the administration — General principles
(EEC Staff Regulations, Article 45)
3. Officials — Promotion — Criteria for assessment — Obligation to consult personal files of candidates
(EEC Staff Regulations, Article 45)
1. If the administration during the the case of promotion — in accord
period of adaptation of the Staff ance with the first paragraph of
Regulations promotes an official Article 45 (1) of the Regulations —
without being able to base the pro take into consideration the compara
motion upon the reports provided for tive merits of each candidate on a
in Article 43 of the Regulations, this basis of equality and using com
fact cannot of itself be regarded as a parable sources of information.
ground for the nullity of the promo
3. In respect of promotions the admini tion. stration must base its assessment upon Cf. Para. 2 of Summary in Case a consultation of the personal files 27/63. of the candidates in which must
2. dis T he administration, wide as its appear in particular the opinions of
cretionary powers may be, must, in their immediate superiors.
In Case 97/63
Luigi de Pascale , an official of the European Economic Community, represented by Marcel Slusny, Advocate of the Cour d'Appel, Brussels, lecturer at the University of Brussels, with an address for service in Luxem Chambers Ernest 6 Willy- bourg at the of Arendt, avocat-avoué, rue
Goergen, applicant, 1 — Language of the Case: French.
JUDGMENT OF 7.7.1964 — CASE 97/63
The European Economic Community, or alternatively the Commission, represented by its Legal Adviser, Louis de La Fontaine, acting as Agent, with an address for service in Luxembourg at the offices of Henri Manzan
arès, Secretary of the Legal Department of the European Executives, 2 Place de Metz, defendant,
Application for annulment of the decision by which Mr Gennaro Pandolfelli
was appointed Head of Division III-C-2 of the Right of Establishment and Services Directorate in the Directorate-General of the Domestic Market,
THE COURT (Second Chamber)
composed of: Ch. L. Hammes, President, R. Rossi (Rapporteur) and R.
Lecourt, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I —
Summary of facts Establishment and Services Directorate in the Right of Establishment Division. The facts upon which the present case is By Vacancy Notice No 690, published in based may be summarized as fol ws: Staff Information Bulletin of the Com
The applicant, Mr Luigi de Pascale, mission of the EEC No 41 of 12 July entered the service of the Commission of 1963, the post of Head of Division in the EEC on 15 December 1958 and was Division III-C-2 (Companies, Public placed in Grade A 4, Step 4 in Director Works Contracts, Cinema and Tourism) ate-General III. On 4 May 1960 the of the Right of Establishment and
Commission awarded him Grade A 4, Services Directorate of the Directorate-
Step 5 with effect from 1 March 1960. General of the Domesti Market, classi
On 2 December 1960 the Commission fied in Grade A 3 and free from 7 awarded him by way of written pro August 1963, was declared vacant. The the first cedure, supplementary step in vacancy notice stated the nature of the
Grade A 4, with effect from 1 December duties and the qualifications required.
1960. Any officials interested were invited to The applicant was integrated under the submit their applications before 19 July
Staff Regulations and established with 1963. Among the seven applications effect from 1 January 1962, in Grade received by the administration and A 4, Step 6, in the Directorate-General qualifying for acceptance under Article of the Domestic Market, Right of 29 (1) (a) of the Regulations were those
DE PASCALE v COMMISSION
of the applicant and of Mr Gennaro culties mentioned under 4, 5 and 6 Pandolfelli, an official in Grade A 4 in of the statement of facts the scope
the Directorate-General of Competi of which is clarified in the sub
tion. On the proposal of one of its mem missions under VIII, and parti
bers, Mr Levi Sandri, the Commission cularly: the note addressed by the decided on 29 July 1963, to give the Director-General, Mr Millett, to
vacant post to Mr G. Pandolfelli by Mr Bruns and including parti
promoting him to Grade A 3 with effect cularly the pargaph:
from 16 August 1963. "It would in fact be distressing for me on the purely human II — Conclusions of the parties level to have to use the facility offered in the first line of Article The applicant submits that the Court 26 to ask the Commission for a
should: derogation from the general rule Article:"
1. Declare null and void the decision laid down by this
whereby Mr G. Pandolfelli was 3. Authorize the applicant to prove
appointed Head of the Companies, by evidence:
Public Works Contracts, Cinema "(a) that it was made known and Tourism Division in the Right some ten months before the
of Establishment and Services Di post became vacant that
in Directorate- rectorate the everything would be done General of the Domestic Market; in the Directorate-General 2. Order the European Economic to ensure that the applicant
Community or, alternatively, the should not obtain the post
Commission to bear the whole of Head of Division which
costs of the proceedings; was to he fil ed ;
3. Note that the applicant reserves (b) that it was well known at
the right to raise in the proceedings the time that the post would Pandol any fresh issues of fact or of law as be given to Mr felli.'" shall seem to him appropriate after the other parties have pre The defendant submits that the Court sented their defence and after should:
production by them of any docu Declare the application unfounded
ments.’ and rule on the costs according to the In the reply he adds the following relevant provisions.' conclusions:
'As a subsidiary point: III — Submissions and argu
1. Order the other party to produce ments of the parties
all documents submitted to the
Commission and in particular the The submissions and arguments of the
undermentioned, whilst in no way parties may be summarized as follows: limiting his claim to the produc
tion of th ese :
On admissibility
(a) the proposal of the Executive Secretary; The applicant states in the reply that
(b) the opinions given by the making the Community itself a party to adminstraion; the action is explained by Article 91 of
(c) the personal files of the can the Staff Regulations, dealing with pro
didates; ceedings between 'one of the Communi 2. Order the other party to produce ties and any person .. .', and by the
the whole file concerning the diffi- need to avoid any plea of inadmissibility
JUDGMENT OF 7.7.1964 — CASE 97/63
under this head. He emphasizes that necessary that the administration should making the Community a party to the have undertaken this consideration, in action may have advantages if the Court accordance with Articles 43 and 110 of considers it necessary to order produc the Regulations, and should therefore
tion of the preparatory work on Regula have had the reports envisaged in tions Nos 31 and 11 of the Council. Article 45 drawn up.
The defendant does not express any The fact that Article 43 lays down a two view on this point and does not contest year period for the drawing up of
the admissibility of the application. reports on the qualifications of officials
for their posts does not indicate that
On the substance these reports should not be drawn up immediately with a view to their being The applicant puts forward at the used for the purposes set out in Article
beginning of his application all the 45. grounds stated in Article 173 of the The defendant replies that Article 110 of EEC Treaty. In his statements, he the Regulations does not apply except
further sets out, as follows, the sub to the extent that necessary to is missions which form the basis of his supplement a provision of the Statute by
ap licaton: general provisions for putting it into effect, and that Article 45 in particular 1. Infringement of Articles 43, 45 and 110 is complete in itself. Without doubt the
of the Staff Regulations reports mentioned in this Article are
those mentioned in Article 43 which
(a) The applicant maintains that it lays down the procedure referred to in appears from Article 110 of the Regula Article 110 of the Regulations for their tions that the promotion procedure preparation; but this does not imply in provided for in Article 45 (1) should consequence that the comparative con
have been the subject of general pro sideration provided for in Article 45 visions for giving effect to it adopted in must also be governed by a general
accordance with Article 110, which provision for giving effect to the Regula provides that consultation with certain tions.
bodies is essential. Further, Article 45 The procedure for drawing up the
(1) of the Regulations is not complete in reports has not yet been adopted so, itself. It is true that the administration while waiting for the adoption of uni
enjoys discretionary power in the matter, form criteria on the subject for all the but it must nevertheless conform to institutions, the appointing authority essential procedural requirements. In was entitled to confine itself to a con
particular it must undertake a con sideration of the comparative merits. On sideration of the comparative merits the other hand it is not possible to
of the officials eligible for promotion and complain that the Commission has not
a comparison of their reports. The pro drawn up these reports, when the first cedure for drawing up these reports is period of two years provided for in laid down in Article 43 of the Regula Article 43 has not yet expired and their
tions and is also a matter for discussion preparation for all the servants of the
within the Staff Regulations Committee Community constitutes a different and which the Commission appears to have time-consuming operation.
consulted.Consequently, to justify the (b) The applicant further maintains
promotion of Mr Pandolfelli, it does not that a consideration of the comparative
suffice to claim that in the present case merits of officials eligible for promotion the consideration of the comparative provided for in Article 45 (1) of the
merits of the officials took place: it is Regulations did not take place in the
DE PASCALE v COMMISSION
present case since this consideration is by predetermined criteria. only possible on the basis of predeter (c) The applicant replies that in any criteria, known to it is that the offi mined objective event not established
cials in advance. The settling of these Commission has considered the com
criteria is in conformity not only with parative merits of the officials eligible
Article 5 of Annex III, with the Regula for promotion and the reports upon
tions in It is in fact the only general. them. It is to claim that the wrong guarantee that Article 25 of the Regula is obliged to prove that this applicant
tions will be applied strictly and that complaint is well-founded. It is for the no consideration outside the interests of Commission to prove that a considera
the service is taken into account in the tion of the comparative merits took
selection made by appointing the au place. For this purpose it should produce thority. The Commision did not decide the minutes of the meeting at which the in advance on the criteria in question decision to promote Mr Pandolfelli to and independently of the promotion Grade A 3 was taken or the documents which it was about to undertake (for concerning the procedure followed in the purpose of judging the legality of the present case.
the procedure followed by the Com Further, the Commission itself does not mission concerning promotions, the ap dispute that the reports, which have to plicant refers to the views contained in a be made in the manner laid down in memorandum of the Staff Committee of Article 43, have not been considered in 27 May 1963, the production of which accordance with the requirements of
he will possibly request, and to the Article 45, since, as stated, these reports White Book of this same Committee), have not yet been prepared. Article 45 and was not thus able to undertake the of the Regulations formally provides for consideration of the comparative merits the consideration of these reports for provided for in Article 45 of the Regula the purpose of every promotion; the
tions. explanations given by the Commission The defendant replies that no provision of of the reasons for which they were not
the Regulations lays down, even by drawn up are thus of no importance as a implication, the obligation which the test of legality. Further, the reports
applicant seeks to impose on the Com drawn up for the establishment of the mission. Further, it explains, either the applicant and of his fellow candidate
preliminary determination of criteria to do not admit of an adequate comparison. be followed in the consideration of the As for drawn the reports up after 1 comparative merits of the candidates January 1962, these cannot be taken gives only a guide on the matters to be into consideration since they were not taken into consideration, and in that drawn up in accordance with Articles 43 case it constitutes no guarantee in and 110 of the Regulations. addition to those which officials T he applicant ends already by pointing out, by enjoy, or else it is imposed upon the way of additional evidence of the fact
appointing authority in each individual that consideration of comparative merits
case, and then it is an infringement of did not take place in the present case, the freedom of choice laid down in 'that it had been decided many months Article 45 (1) of the Regulations. before the post became vacant that in In reality, adds the defendant, the any event everything was to be done to applicant appears to have misunder ensure that the applicant should not be
stood the real meaning of promotion; appointed Head of Division 2'. it is not a right, and necessarily presup T he defendant replies first of all that the
poses that the freedom of choice of the burden of proof falls here as usual, on
appointing authority shall not be limited him who puts forward the arguments or
JUDGMENT OF 7.7.1964 — CASE 97/63
facts to be established. The converse sent to the Presidents of the Councils on applies only where the party disputing 1 August 1962; on the other hand it the validity of an act adduces at least appears that all the other institutions prima facie evidence. One cannot find in have already laid down the definition of the statements produced by the appli the duties and powers (also called 'job cant any argument or fact amounting description list'). Furthermore the Euro to prima facie evidence; on the contrary, pean Parliament expressed regret, at its the Commission is in a position, on the meeting on 6 February 1963, at having basis of documents produced, to estab to state that the integration and classi
lish that consideration of the compara fication were not completed in certain
tive merits certainly took place in the institutions by the end of the year 1962. present case The Commission has thus only itself to The defendant does not dispute, further, blame if it is not in a position to make
that the reports prepared for the pur promotions in accordance with the
pose of integration of the officials could legal rules. It cannot justify itself by not be used for the promotions en on necessity to fill vacant the relying visaged in Article 45 of the Regulations posts immediately for service reasons: and that moreover the reports provided account must be taken of the fact that at for in Article 43 had not yet been present there are about 600 auxiliaries, prepared. But it asserts that nothing in not to mention the possibilities offered
the provisions of Article 45 prevents the by the provisions on temporary engage
Commission from making the promo ment.
tions required by the exigencies of the it cannot be alleged, on the other hand, service when the reports provided for in that if the Commission had adopted the Article 43 do not yet exist because of the opinion expressed by the provisional
circumstances. Staff Regulations Committee, the des cription of the duties of Head of
2. Infringement of the last part of Article 5 Division would have been no different
of the Regulations from that appearing vacancy in the
notice. The delay of the Commission in The applicant maintains that the duties adopting the report of the Committee and powers of the post which became canbe explained only by the considera
vacant were not described in advance in tion that the Commission probably had accordance with the last part of Article 5 no intention of following this report in of the Staff Regulations, that is to say its entirety. In any event there is no
after consideration of the views of the reason to discuss pure hypotheses. Staff Regulations Committee and if Further, the argument of the defendant
need be after consultation with the that the definition of duties provided for Staff Committee, Article creating this in Article 5 of the Regulations is not a
de no exception to the provisions of Article concept analogous to that of the
110. scription of duties in the appearing 3. The argument of the defendant, vacancy notice, is hardly comprehen
that the definition of the duties provided sible. The general definition of duties for in Article 5 was a lengthy business provided for in Article 5 (4) of the
and the exigencies of the service in the Regulations, particularly of those which meanwhile called for vacant posts to be appear in Annex I is, in fact, a necessary
filled immediately, is not convincing. In starting point, a sort of chapter heading fact on the one hand the opinion of the de under which the more complete
Staff Regulations Committee provided scriptions of the various positions exist
for in this Article 5 appears to have been ing in the detailed list of posts constitute given on 28 June 1962, and to have been although at different only subdivisions;
DE PASCALE v COMMISSION
levels, it is thus a case of the same to fill the vacant post, since it was not
operation each time. Consequently, in so much a matter of knowing whe
the present case the actual abilities of ther they were able to satisfy the
each candidate should have been con general and abstract conditions laid sidered by reference to the theoretical down by a particular definition as of description of the vacant post; but this knowing whether they could carry description should have been prepared out the particular duties which were
previously, in accordance with the pro involved.
visions of the Staff Regulations. — At the time when the decision to
it is furthermore quite remarkable to appoint Mr Pandolfelli was made, observe that the defendant considers the Commission had at its disposal all
that it was not necessary for it, as a the necessary particulars to judge the
preliminary, to provide the definition of capabilities of the candidates. In the duties required by the last part of fact during the meeting of 29 July Article 5 of the Regulations, in anticipa 1963 — which is none other than tion of making promotions, whilst it has that during which the disputed deci maintained elsewhere —
notably in cision was taken — the Commission Case 82/63 — that this description was decided to adopt the definition of the indispensable for it to classify servants basic posts appearing in the opinion who had been integrated under Article given by the Staff Regulations Com 102 of the Regulations. mittee. In adopting this definition, The defendant raises the following objec the Commission satisfied the require
tions: ments of the last part of Article 5 of
— The adoption of the argument that the Regulations, which does not
no promotion is possible so long as the require that the institution should
definition of duties provided for in give a detailed definition of the
the last part of Article 5 of the actual duties of each particular post. Regulations has not been settled The description of the duties attach
would lead to a paralysis of the ing to the disputed post which was activity of the Commission, since the given in Vacancy Notice No 690, exigencies of the service, which call is not at variance with that of the
for vacant posts to be filled immedi basic Head post of of Division, as
ately, might not be met. adopted by the Commission. It is thus —
The applicant is contusing the de clear that if this description had been scription of the duties in the vacancy prepared before the appointment of
notice, which is necessary for pro Mr Pandolfelli, the Commission motions and appointments, with that would not have had any other factors provided for in the last part of available than those resulting from Article 5 of the Regulations which the vacancy notice in question.
must allow the classification of all
the posts in one of the grades of the 3. Lack of reasons given in the decision to Regulations. The vacant post has promote Mr Pandolfelli to Grade A3 been classified in Grade A 3 and no
dispute on the subject of that classi The applicant maintains that in accord
fication has been brought before the ance with Article 25 of the Regulations Court. decisions offi any adversely affecting — Further even in the absence of the cials must state the reasons on which they definition provided for in the last part are based. In the case of a promotion
of Article 5 of the Regulations, the decision this statement of reasons is Commission was in a position to necessary not only as regards the can
assess the abilities of each candidate didate who was promoted but also as
JUDGMENT OF 7.7.1964 — CASE 97/63
regards the candidates who were not states that no promotion decision need
promoted. In fact, the statement of state the reasons on which it is based reasons is regarded by the Court as an since, on the one hand it does not
essential procedural requirement for adversely affect the person concerning guaranteeing observance of the law for whom it has been taken, that is to say the
every official and there is no doubt that official promoted, and on the other hand
the officials who are not promoted have it has not been taken in respect of the
the right to know from the statement of officials who are not promoted.
reasons whether the promotion of an The positive decision on a promotion, other official was made in accordance states the defendant, does not have to be with the Regulations and does not accompanied by as many negative deci therefore involve a misuse of powers. sions as there are candidates not pro
There must be no neglect in fact of moted. A promotion decision concerning
Article 4 of the Staff Regulations which, one official, which may constitute a in laying down the obligation to publish refusal of promotion for the other
every vacancy, proves that officials who candidates, is mea not a sanction or a
submit applications have a legally pro sure similar to dismissal so far as they are tected interest enabling them to appeal conernd; their rights are in any event against a promotion adversely affecting safeguarded by the fact that they may them. The Commission itself has further request the annulment of such a deci
more recognized in Cases 98 and 99/63, sion. The fact that the appointment or that only officials who have submitted the promotion of an official may ad
an application for the vacant post have versely affect another official and thus
a direct and individual interest in be the subject of an appeal within the Regula requesting the cancellation of the notice meaning of Article 91 of the of vacancy (preparatory to a promo tions, does not carry with it the duty to tion). Furthermore if the defendant give reasons for such a decision. To the admits that the application is admissible, extent that this decision may be re
it does so under Article 91 of the Staff garded as a refusal of promotion as
Regulations, that is to say, in implied regards the other candidates, it amounts
recognition that the disputed decision to an implied refusal and cannot there
adversely affected the applicant. It thus fore be accompanied by a statement of
follows that reasons for this decision the reasons on which it is based. should have been given, in accordance The defendant lastly disputes that the
with Article 25 of the Regulations, in case-law relied upon by the applicant respect of the applicant. is relevant to the present case. The applicant relies on national case-
law, as well as that of the Court, to 4. Failure to publish the contested decision prove that the duty to give reasons
applies even apart from Article 25 The applicant maintains that he learned mentioned above. of the disputed decision by confidential The defendant states first of all that means whereas this measure should have
Article 25 of the Regulations only been published in accordance with
requires reasons to be given for decisions Article 25 of the Regulations. First of all,
relating to a specific individual adver he states, this publication is required to
sely affecting the person to whom they allow servants who have an interest in it are addressed and that consequently the to put forward their arguments, either
duty to give reasons for a decision has by an administrative appeal or by an
to be determined with that person, and appeal before the Court; secondly it does not with the subject-matter of a decision not amount to a formality a posteriori, as in mind. That said, the defendant the defendant claims, but to an essential
DE PASCALE v COMMISSION
procedural requirement. In fact, promo saying that the Commission does not
tion is the very type of 'acte de procé appear to have taken these into account, dure' ('procedural measure') which is because it is the applicant himself and
only perfected if all the formalities have Mr Pandolfelli who has these quali not
been completed, and the publicity pro fications. vided for in Article 25 of the Regulations The defendant in the rejoinder rejects
should be regarded as an intrinsic the arguments put forward by the
element of the validity of this measure. applicant. It points out in particular
that the qualifications required for a
The applicant maintains lastly that the vacant post do not give an official who
Commission should provide proof of the possesses them, any right to be appointed
truth of its statement that the appoint to this post and does not limit the
ment of Mr Pandolfelli was posted in freedom of the administrative authority the premises of the institution from 21 to prefer another candidate whose abili October to 2 November 1963. ties and qualities have been regarded
The defendant on the other hand points as superior to his. The defendant lastly out that, in accordance with the general mentions that Mr Pandolfelli has the
principles common to the administra qualifications indicated by the applicant tive laws of the Member States, the which appear in Vacancy Notice No publicity in question is only a formality 690.
following a measure which has already been adopted and having no bearing 6. Misuse of powers in that the applicant upon the validity of the latter. Its only was prevented in an illegal manner
purpose is to give effect to the measure from temporarily occupying the post of published vis-à-vis third persons, and Head of Division 2 particularly to observe the time-limits (Eighth submission in the ap lication) within which third parties can make an
appeal against the measure in question. The applicant recalls that in the absence In the account of the facts in its state of the Head of Division 2 it was decided ment of defence, the defendant men that Mr Bruns, director of the Right of tions that the decision to appoint Mr Establishment and Services Directorate, Pandolfelli was posted in the premises of should temporarily occupy the vacant
the institution from 21 October to 2 post. Since this post is the one which was November 1963. the subject of Vacancy Notice No 690 and was filled by the disputed decision 5. Mistaken evaluation of several factors through Mr Pandolfelli's promotion,
the applicant has been deprived, at
The defendant having pointed out in its least partially, of the opportunity of
statement of defence that the proving his to ob complaint worth with a view
of the applicant is quite unwarranted taining the said post. In order to allow a and that it is not supported by any better understanding of this complaint
evidence or offer of evidence, the appli the applicant sets out the facts upon
cant answers in the reply that it is for the which his administrative appeal of 16 Commission to produce a complete file May 1963 was based, showing, in his of documents so as to allow the Court to opinion, review the legality of what has been — that an attempt has been made
done. systematically to reduce the scope of
Alter mentioning that me file produced the duties allotted to him;
has many gaps, the applicant draws — that the necessary human and ma
attention to certain of the qualifications terial resources have not been made
required by the Vacancy Notice No 690, available to him;
JUDGMENT OF 7.7.1964 — CASE 97/63
— that he has been illegally refused the nize at all that an official has the right
temporary post of Head of Division 2. to be designated to occupy temporarily The applicant disputes more particu a post in a career bracket of his category
larly the note of Mr Bruns of 22 March or service, above his own career bracket. 1963, refusing him the above-named The measures taken in this respect,
temporary post (against which he made particularly on the basis of Article 26 an administrative appeal on 16 May of the Internal Regulations of the
1963 and 15 December 1963, and Commission are not liable to affect
inde reserves the right to bring an officials adversely when they are taken
pendent application before the Court of in the interest of the service.
Justice), a refusal which he considers as In the present case it is only for reasons
a 'preparatory element' in the misuse of based on this interest that the decision powers alleged in the present case. concerning the temporary occupation
The applicant explains in this connexion of the post of Head of Division 2 was
that the note in question contains an adopted. It thus has not the character of illegal and invalid decision: a vexatious or a discriminatory measure —
since it constitutes an infringement of or of a disguised disciplinary sanction; Article 26 of the Internal Regula it cannot in consequence amount to a
tions of the Com is on; and decision adversely affecting the appli
since it is vexatious, discriminatory cant within the meaning of Article 91 of —
and constitutes a disguised sanction. the Regulations, which can be con
The Commission replied to the above- tested by an appeal to the Court of
mentioned complaints on 24 January Justice. 1964. Lastly, even it the applicant had been T he defendant replies that the present appointed, as a temporary measure, to application, having been brought occupy the post of Head of Division 2, against the decision to appoint Mr he would not have had any particular Pandolfelli to the post of Head of claim to be established in this post. On Division 2, can question the legality of the other hand the applicant has not
measures relating to the temporary been prevented entering the since ser
filling of this post only if these measures vice of the Commission from proving are not devoid of any connexion with the his worth with a view to obtaining the disputed decision. There is indeed no vacant post: he was even designated such connexion. In the first place, the deputy to Mr Bruns in the carrying out applicant —
whose position as the of the duties of Head of the Companies, senior official in the highest grade has Public Works Contracts, Cinema and
been disputed —
cannot infer from the Tourism Division when the latter was
above-mentioned measures any factor absent.
to showing any animosity whatever wards him. Secondly these measures do 7. Infringement of Articles 2 and 11 of the not any of the rights which the affect Internal Regulations of the Commission applicant is able to point to on the basis
of the Regulations. The only right of The applicant adds lastly, in the state
which the official can take advantage ment in reply, a supplementary sub
within the meaning of the Staff Regula mission of nullity, by making the follow tions is that included in Article 7 (1) ing points: from which it follows that every official — since the defendant claims that in
ought, in the case of a temporary the present case the written pro
appointment, to be put into a post of his cedure was adopted, the Commission category or service, corresponding to his should have laid down detailed rules grade: but this provision does not recog- for the application of Article 11 of the
DE PASCALE v COMMISSION
Internal Regulations Com file him of the this would enable to drop the mission, concerning the procedure in reservations which he had made in his question. If such detailed rules were application about raising any fresh not laid down —
something about issues in the proceedings. which the applicant does not know The defendant produces, by way of
in the absence of publication —
the schedule its rejoinder, an extract of to
disputed decision is at least vitiated the minutes of the 238th meeting of the
by infringement of essential pro Commission, as well as the proposal of cedural requirements or of a rule of Mr Levi Sandri, a member of the Com law concerning the application of the mission, to appoint Mr Pandolfelli to
Regulations. the vacant post, Vacancy Notice No 690 — T he contested decision infringes the and the applications submitted.
wording of Article 11 mentioned It has serious misgivings about pro
above, since in the present case the ducing personal files of candidates other Written procedure was commenced than the applicant, these files being of a
upon the proposal of the Executive confidential nature and relating to
Secretary, whilst this Article pro officials who are not parties to the
vides that it is initiated on the action. As to the production also of the
proposal of one of the members of the file concerning the difficulties which
Commission. gave rise to the administrative appeal of
— The contested decision does not give the applicant, it considers this file reasons the Commission dero bears on a question which has nothing why gated from Article 2 of its Internal to do with the issues in the present
Regulations. proceedings.
T he defendant replies that, since it ap
pears both from the account of the facts IV — Procedure in the statement of defence and from the documents produced by the Commission The application was lodged on 28 that the contested decision was taken by October 1963. the latter during its 238th meeting, on The written procedure followed the
29 July 1963, the complaint of infringe normal course.
ment of Articles 2 and 11 of the Internal Judge- Upon hearing the report of the Regulations fails. Rapporteur and the opinion of the
The Second Cham applicant considers lastly that the Advocate-General, the file produced in the proceedings by the ber of the Court by letter of 17 March defendant is quite incomplete, since it 1964 called on the defendant to lodge contains only the vacancy notice and a before 16 April 1964 the text of the
note from Executive Secretary of the opinion of the Directorates General of
Commission. Domestic Market Admini He maintains that the the and of
Court must be put in possession of the stration, obtained by the Commission complete file on the basis of which the with a view to filling the post of Head of Commission took its decision, and indi Division III-C-2, appearing in the Vac cates which are the documents which ancy Notice No 690. should be produced (see subsidiary The defendant lodged its reply on
conclusions 1 and 2). After 13 April 1964. recalling that certain of these documents had been The oral procedure took place on
lodged by the Commission, at least in 17 June 1964.
extract, in Case 27/63, the applicant The Advocate-General delivered his
ends by stating that the production of opinion on 24 June 1964.
JUDGMENT OF 7.7.1964 — CASE 97/63
Grounds of judgment
A — The naming of the Community as a party
The application is brought against the European Economic Community or, 'alternatively', against the Commission of that Community. The defendant submits that the institutions do not have a legal personality separate from that of the Community and that, therefore, the Commission alone should be made a party to the proceedings.
Under Article 179 of the EEC Treaty, 'The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment'. The expression 'the conditions laid down Regulations' in the Staff necessarily implies that there is conferred upon the institution appointing authority, the right to be a party to itself, as the
legal proceedings relating to disputes with its servants and officials. In fact Article 90 of the Staff Regulations of officials of the EEC, governing com
plaints by officials through official channels prior to an appeal to the Court,
provides that any official may submit a request or complaint to the appoint
ing authority of his institution. The appeal to the Court referred to in Article 91 of the Staff Regulations must follow similar rules and be made against the same institution. The present application must therefore be regarded as being brought against the Commission of the EEC, which in this case is the institution to which the appointing authority responsible for
the contested measure belongs.
Admissibility
The admissibility of the appeal is not disputed by the defendant and no
grounds exist for the Court to raise the matter of its own motion.
Substance
Infringement of Articles 43, 45 and 110 of the Staff Regulations
1. The applicant maintains first of all that the decision made was adopted without Article 45 (1) of the Staff Regulations having been the subject of general provisions for giving effect to the Staff Regulations, adopted and
published in accordance with Article 110.
The application of Article 145 requires no measure for giving effect to it other than that laid down in Article 43, to which Article 45 refers by implica-
DE PASCALE v COMMISSION
tion. The application of this provision presupposes that reports have been made on the ability, efficiency and conduct in the service of officials, these reports being one of the factors upon which all decisions on promotion
must be based.
At the date of the contested decision, no institution was in a position to
adopt the general provisions for giving effect to the Staff Regulations —
and
it is the failure to do this which is alleged in the action —
by reason of the date of publication and entry into force of the Staff Regulations.
The latter not having been published until 14 June 1962 and having taken retroactive effect only on 1 January 1962, it must be admitted that, at the date when the contested decision was made, institutions of the Community were still in a transitional period as regards the application of the Staff Regulations. The fact that at that date the Commission had not yet adopted
general provisions for the drawing up of the reports provided for in Article 43, cannot of itself be regarded as a ground for the nullity of the disputed decision.
Article 45 had to be applied without its having been possible for the reports for which it makes provision to be drawn up in accordance with the pro
visions of Articles 43 and 110 of the Regulations. An omission of this nature does not appear to be such as to lead to the nullity of the contested decision,
taking into account especially the exigencies of the service.
The present submission is unfounded.
2. The applicant furthermore maintains that the disputed decision is
defective in that it was adopted on the basis of an evaluation which was
quite insufficient and without the Commission's having been able to
undertake a consideration of the comparative merits of each candidate, and in particular of the merits of the applicant.
The Commission thus did not observe the safeguards afforded by Article 45 of the Staff Regulations to officials eligible for promotion, those safeguards
being the counterweight to the wide powers available to the Commission in this matter.
The Commission, wide as its discretionary powers may be, must, in accord ance with the first paragraph of Article 45 (1) of the Staff Regulations, take into consideration the comparative merits of each candidate and using comparable sources of information.
JUDGMENT OF 7.7.1964 — CASE 97/63
It appears from documents produced during the proceedings that the
members of the Commission in the present case had available for the
above-mentioned consideration, only the proposal of one of their number, the application forms of the candidates and Vacancy Notice No 690.
The proposal of one of the members of the Commission to promote Mr Pandolfelli to the vacant post stated only the qualifications for the post of this one official and contained only vague allusions to the possible merits of the other candidates, who were serving in three different Directorates General.
The application forms submitted by the persons concerned themselves, without any verification or check by the appropriate departments of the Commission, are documents of an essentially subjective nature, the content and scope of which can be evaluated only with considerable care in a matter requiring as objective a consideration as possible of the merits of each
candidate.
No evidence has been tendered that the Commission supplemented its information by consulting the personal files of the candidates in which must
appear in particular the opinions of their immediate superiors.
It follows that the factors on which the Commission took its decision did not
enable it to undertake a consideration of the comparative merits on a basis of equality and taking account of comparable sources of information.
It therefore appears that the disputed decision on promotion was not
adopted in accordance with the provisions of the first paragraph of Article 45
(1) of the Staff Regulations and that it must be regarded as defective, without there being any need to consider the other submissions in support of the application.
Costs
The applicant has succeeded in the essential point of the application. Under Article 69 (2) of the Rules of Procedure the defendant shall be ordered to pay the costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;
DE PASCALE v COMMISSION
Upon hearing the parties; Upon hearing the opinion of the Advocate-General;
Having regard to the Treaty establishing the European Economic Com munity, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court ofJustice annexed to the Treaty establishing the European Economic Community;
Having regard to the Staff Regulations of officials of the European Economic Community, especially Articles 43, 45, 90, 91 and 110 ; Having regard to the Rules of Procedure of the Court of Justice of the
European Communities, especially Article 69,
THE COURT (First Chamber)
her by:
1. Annuls the decision to promote Mr Gennaro Pandolfelli to the post declared vacant by Notice No 690 in Division I -C-2;
2. Orders the Commission of the European Economic Com
munity to bear the costs.
Hammes Rossi Lecourt
Delivered in open court in Luxembourg on 7 July 1964.
A. Van Houtte Ch. L. Hammes Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER 1 DELIVERED ON 24 JUNE 1964
Mr President, A 3) was vacant in the Directorate-
Members of the Court, General of the Domestic Market, Right of Establishment and Services Director The case in which I am delivering my ate.
opinion today concerns a question of The applicant, who had been in the
promotion, just as in the Riponi and service of the Commission since Decem Bernusset cases against the Commission ber 1958 as an official in Grade A 4 in of the EEC. the Directorate-General of the Domestic
By a Vacancy Notice published in the Market, applied for this post. However Staff Information Bulletin of 12 July the Commission selected another can
1963, the Commission made it known didate who, by a decision of 29 July that a post of Head of Division (Grade 1963, was appointed Head of Division
1 — Translated from the German.