C-27/64

defendant,

Application

(a) In Case 27/64:

1. For the annulment of the decision or decisions regarding promotion in so far as transfers from Grade A5 to Grade A4, adopted by the defendant for the year 1963 and posted in the establishment at Ispra on 9 January 1964 are concerned;

2. In addition, for the annulment of the decision of 26 March 1964 rejecting the complaint of the applicant against the abovementioned decision re­ garding promotion and notified to the applicant by letter of 7 April 1964 from the Director-General of Administration and Personnel;

3. Further, for a declaration by the Court that the defendant is obliged to give consideration to the comparative merits of the officials eligible for promotion in 1963 and that it is obliged to reconsider the case of the applicant during such examination; (b) In Case 30/64: 1. for the annulment of the implied decision rejecting the complaint through official channels submited on 21 February 1964 by the applicant request­ ing the defendant to take action against conduct prejudicial to his honour

Advocate-General: K. Roemer Registrar: H. J. Eversen (Assistant Registrar)

gives the following

JUDGMENT

Issues of fact and of law

I — Facts because the members of the local pro­ motion committee at Ispra had not his The facts may be summarized as fol­ personal file at their disposal, and be­ lows : cause the periodical report concerning A — Mr Fulvio Fonzi, a scientific him provided for in Article 43 of the official (Grade A5, Step 4) at the Ispra Regulations was not communicated to Joint Research Centre, posted to the him until after the termination of the European Centre for the Processing of work of the committee. Scientific Information (CETIS), on 12 By a decision of 26 March 1964, the February 1964 lodged with the EAEC Commission of the EAEC rejected the Commission a complaint through official said complaint, on the basis, first, that channels against the decisions regarding Mr Fonzi's allegation concerning his promotion taken in 1963 in favour of personal file was incorrect, and secondly a certain number of his colleagues and that the notification of the periodical re­ from which he himself did not bene­ port to him after the ending of the fit. work of the promotion committee had Mr Fonzi alleged the irregularity of the caused him no damage, the report in above-mentioned decisions, claiming to itself being favourable to the person have been arbitrarily excluded from the concerned and the latter's comments in consideration of the comparative merits reply having been brought to the know­ of the officials eligible for promotion, ledge of the Commission.

Mr Fonzi on 26 June 1964 lodged his of the three abovementioned decisions. application to the Court of Justice in C — On the same day, Mr Fonzi lodged Case No 27/64 principally for the an application for a suspension of the annulment of the decisions regarding operation of the abovementioned de promotion taken for the year 1963, at cision of 24 June 1964 requiring him least as concerns the promotions from to go to Brussels (Case 30/64 R). Grade A5 to Grade A4 and, further for The President of the Court, by order the annulment of the decision of re dated 7 August 1964, dismissed the re jection of 26 March 1964, and for the quest for suspension as inadmissible, and Commission to be asked to give further reserved the costs. consideration to the comparative merits of the candidates including the appli II — Conclusions of the

2. Annul the decision or decisions re search Centre (Schedules 3 and 4 to garding promotion adopted by the the application in Case 30/64). defendant for the year 1963, at least The absence of a decision by the Com as regards the promotions from mission in reply to this complaint Grade A5 to Grade A4 with all the through official channels amounts to an legal consequences which that im implied decision of rejection at the ex plies, and involving also the annul piration of a period of 2 months, namely ment of the decision which the de as from 22 April 1964. fendant adopted on 26 March 1964 In the second place, the Commission of in respect of the applicant; the EAEC by a decision of 26 March B — Further: 1964, notified on 24 April 1964, re primanded Mr Fonzi for 'having con

1964; out prejudice to a later posting to 4. Declare that the defendant is obliged Jülich (Schedules 6, 7, 8 and 9 to to give consideration to the compara the application in Case 30/64). tive merits of the officials eligible On 13 July 1964 Mr Fonzi lodged a for promotion in 1963 and to re second application at the Court of consider the case of the applicant Justice (Case 30/64) for the annulment during such consideration;

5. In any case order the defendant to apparently taken on 24 June 1964, bear the costs; and brought to his knowledge by 6. Take official notice that the appli­ the Director of the Centre at Ispra cant reserves the right to clarify dur­ on 25 June following; ing the proceedings the reasons and 5. Order the defendant, should the arguments which have been set out Court not grant the suspension of above and also to put forward new the operation of the decision men­ reasons and arguments of fact or of tioned under head 4, to redress the law should this be made necessary by damage suffered and which may be the submissions in defence of the suffered by the applicant as a result defendant and by any documents of the operation of that decision, to which the latter may produce; the extent which the applicant re­ By way of preparatory inquiries: serves the right to specify during the 7. Order the defendant to produce the course of the proceedings; complete minutes of the meetings 6. Order the defendant to bear all the held on 17 and 18 June 1963 by the costs of the proceedings; local promotion committee at Ispra, 7. Place it on record that the applicant the minutes of the meetings of the reserves the right to give details Commission in the course of which during the course of the proceedings the decisions concerning the pro­ of the reasons and arguments set out motion for the year 1963 and the above and to introduce new ones, procedure to be followed under the where appropriate, if that is shown circumstances were adopted, as well to be necessary following the state­ as the minutes of the meeting of the ment of defence and the production Commission which led to the adop­ of documents by the Commission; tion of the decision of 26 March By way of measures of inquiry: 1964; 8. Order the defendant to produce the 8. Take notice that the applicants re­ following documents: serve the right in case of need to request that other measures of in­ (a) application forms and recruitment quiry for the purpose of establish­ proposals of Mr Adriano Gaz­ ing facts which might possibly be zano and of Miss Giuliana Pozzi; disputed or insufficiently proved (b) letter (or note or report) addres­ should be ordered in accordance with sed by Mr Gazzano to Mr Articles 45 et seq. of the Rules of Kramers, from which the latter Procedure. obtained 'information' regarding the applicant; (2) In Case 30/64: (c) report prepared by the Consulta­ 1. Declare the present application ad­ tive Committee for CETIS at missible and well-founded and in the instance of the Commission; consequence: (d) report(s) upon any administrative 2. Annul the implied decision rejecting inquiries set on foot by the Com­ the complaint through official chan­ mission concerning the working nels submitted by the applicant to of CETIS; the defendant on 21 February 1964; (e) minutes of the meeting of the 3. Annul the defendant's decision to Commission at which the ad­ reprimand the applicant taken on 26 ministrative complaint made on March 1964 and notified to him on 21 February 1964 by Mr Fonzi 24 April following; through official channels were 4. Annul the defendant's decision to examined, and any other docu­ transfer (or second) the applicant, ments concerning the complaint;

9. Order the hearing of the following correctness of the facts stated by the witnesses: applicant in his complaint of 21 (a) Mr Paul Braffort (69, rue de la February 1964, and on the other Liberté, Bagneux, Seine) and Mr hand the unjustified and inconsistent Panfilo d'Alimonte (127, via Mar­ nature of the imputations made against zorati, Varese) on the subject of him by the disciplinary decision; the statement made by Dr Ritter 10. Take notice that the applicant re­ to Mr Braffort in the presence of serves the right to request if neces­ Mr Mercereau, on the 'double sary and also if the opposite party personality' of Mr Fonzi 'in relies on new reasons or arguments private matters': of fact or of law, the hearing of (b) Mr Eliodoro Pomar (41, via San­ other witnesses and other methods vito Silvestro, Varese) on the sub­ of inquiry directed towards the veri­ ject of the correctness of the fication of facts which may be dis­ statements by Mr Kramers to the puted or insufficiently established; applicant on the subject of the he also reserves the right to produce unfavourable information con­ other documents. cerning the applicant which he had received from Messrs Ritter (3) In his reply : and Gazzano, as mentioned in the For all the reasons set out in the fore­ complaint of 21 February 1964 going pages, the applicant adheres to the to the Commission: conclusions which he has already sub­ (c) Mr Walter Le Ambrogio (at the mitted in the applications in Cases Olivetti Company, Ivrea), Mr 27/64 and 30/64, and which are Tommaso Pomentale (at Olivetti, deemed to be repeated in their entirety Ivrea), Mr Peter Ihm (at the with the amendments and the additions Ispra Centre) and Mr Frans van mentioned below: Scheepen (Ispra Centre) on the — In Case 27/64 subject of the real reasons which Head No 7 of the conclusions of the disturbed the climate of confid­ application is supplemented by head ence and cooperation within 7A below: CETIS, as well as on the subject 7A. Order the hearing of the following of the competence of Mr Gazzano witnesses on the points indicated against and Miss Pozzi; the name of each of them, in order to (d) Mr Giancarlo Bertolini (19, via prove the circumstances the importance Sanvito Silvestro, Varese) con­ of which follows from disputes and cerning the fact that Mr Adriano statements by the opposite party, ac­ Gazzano described himself as as­ cording to what has already been ex­ sistant and lecturer at Bocconi plained in the reply: University; (a) Mr Paul Blaes, of the Personnel and (e) Mr Pierre Barthelemy (10, via Social Department of the Ispra Joint Andrea del Sarto, Varese) in his Research Centre (hereinafter referred to capacity as Chairman of the Per­ as the J.R.C.) on the question whether sonnel Committee on the subject it is true that Mr Fulvio Fonzi con­ of the pressures exerted on him stantly asked him for permission to con­ to exclude Mr Fonzi from work­ sult his personal file from March 1963 ing groups; to December 1963 inclusive, and The hearing of these witnesses, al­ whether this personal file was in the ready clearly justified in the light of Personnel Department of the J.R.C.; the foregoing explanation, is intend­ and whether the Personnel Department ed to prove, on the one hand, the of the J.R.C. had or had not prepared

sideration was given to the actual com­ contained in Schedule No 13 of the parative merits of all the officials elig­ statement of defence and reproduced ible for promotion and on the basis of on page 67 of the original of the what documents the examinations was present reply corresponds to the carried out; whether the Committee is truth; and, if so, what were the prepared to produce the documents in 'intrigues' which, according to Mr its possession; whether Mr Fonzi was Fitter, Mr Fonzi had conducted considered on the basis of these docu­ against him or against Mr Braffort; ments; and whether he asked for the Further, also under head 9, paragraph drafting of minutes; (f) should be added as follows: (c) Mr Michel Carpentier, in his (f) Mr Baccarini, in his capacity as capacity as representative of the Staff Administrative Director of the Luigi Committee on the central promotion Bocconi Commercial University, committee, not only on the points set Milan, on the question whether, if out above in respect of the names of Mr Adriano Gazzano and Miss Messrs Pomar and Rota, but also on Giuliana Pozzi had or had not the the question whether the central pro­ right to call themselves assistants motion committee checked the actual ex­ and lecturers at the operational re­ amination made by the local promotion search centre of the 'Bocconi' Uni­ committee at Ispra, and in which way versity, Milan. and to what extent; Lastly, head 9(c) of the conclusions of — In Case 30/64 the application is supplemented by the Head No 2 of the conclusions of the request for the hearing of the following application is amended as follows: witnesses on the same circumstances, 2. Annul the decision of 24 June 1964 in addition to persons indicated under rejecting the complaint lodged by the that head on the circumstances set out applicant with the Commission in paragraph (c): through official channels on 21 — Messrs Luciano Guerri, mathemati­ February 1964; or, secondarily, an­ cian; Herve D'Hoop, engineer; nul the implied decision of rejection Philippe Gutmann, engineer; Jean of the said application; Larisse, mathematician; Andre Leroy, Head No 5 of the conclusions of the engineer; Mario Cocchi, mathemati­ application is amended as follows: cian; Walter De Backer, engineer; 5. Order the defendant to pay 1 (one) Giulio Di Cola, mathematician; Belgian franc damages, as restitution Giampaolo Caligiuri, engineer; Paul for the damage suffered by the ap- Camion, mathematician and lecturer

at the Sorbonne; Riccardo Monter­ 2. Alternatively declare it unfounded osso, mathematician; August Van and dismiss it; Eick, engineer; Leo Verbeek, engin­ 3. Declare it unfounded also in so far eer; Irène Gargantini, mathematician; as it is directed against the decision Mario Borillo, engineer; Jean Ver­ of 26 March 1964 reprimanding the heyden, linguist: all at the J.R.C; applicant, and against the decision — as well as Messrs Andre Debroux, of 24 June 1964 ordering him to engineer, rue Joseph-II, Euratom, Brussels; Brussels; Marcel Detant, mathema­ 4. Place it on record that the defendant, tician, rue Joseph-II, Euratom, Brus­ relying on the abovementioned state­ sels; Walter Fuchshuber, lecturer in ments, leaves to the discretion of the mathematics, Chair of applied mathe­ Court the question of the expediency matics, University of Cologne (Fed­ of the various measures of inquiry eral Republic of Germany). sought by the applicant; 5. Order the applicant to bear the B — The defendant contends that the whole of the costs. Court should: (3) In its rejoinder : (1) In its statement of defence concern­ ing the application in Case 27/64: 1. Accept the conclusions in its state­ ments of defence in Cases 27/64 — Order the joinder of the present case and 30/64; with Case 30/64; 2. Hold inadmissible as being out of — Declare the application inadmissible time, and in any case unfounded, the as being out of time as regards the additional request for annulment of decisions regarding promotion them­ the decision of 24 June 1964 re­ selves (head 2 of the conclusions of jecting the unlawful application dated the applicant); 21 February 1964; — Alternatively declare it unfounded 3. Dismiss as unfounded the request for under the abovementioned head, as payment of 1 Belgian franc appear­ well as under the head of the appli­ ing under the amended head 5 of cation seeking the annulment of the the conclusions of the application; decision of 26 March 1964 rejecting 4. Order the applicant to bear the costs the complaint of the applicant, and and fees of the present proceedings, as regards the request that the Com­ including those in Case 30/64 R as mission should be invited to give provided for in Article 70 of the further consideration to the com­ Rules of Procedure of the Court; parative merits; 5. Make such ruling as it sees fit upon — Hold that there are no grounds tor the additional requests for measures allowing the measures of inquiry re­ of inquiry submitted by the appli­ quested by the applicant; cant in his application having had — Order the applicant to bear the whole regard to the observations set out of the costs; above.

A — Admissibility graph of Article 91 (2)), and, in a case where a decision has been taken According to the defendant the follow following the complaint, three ing are out of time and consequently months as from me date of notifi inadmissible: cation of the decision. — the request for annulment of the In the present case, however, this de decision regarding promotion (or of cision on the complaint was notified on all the decisions), adopted for the 7 April 1964 and Application 27/64 was year 1963 and posted at Ispra on 9 lodged on 29 June 1964. January 1964 (head 2 of the con

Capitaine), 9 June 1964 (Rec. 1964, p. judicial to his honour and his pro 495) and Reynier and Erba, 9 June fessional dignity (head 2 of the con 1964 (Rec. 1964, p. 527). clusions in Case 30/64). As to the time limit for lodging an 1. On the first point the defendant al appeal through official channels, the ap leges that the display of the decision plicant considers that it cannot be less dates from 9 January 1964 and that the than three months from the date of time-limit for appeal of three months publication or of notification of the con provided for in Article 91, increased tested decision (first subparagraph of by ten days because of the distance, Article 91 (2)) and, in the present case, expired on 20 April 1964.

of Article 91 (2): As to the time limit tor lodging an — that a complaint through official appeal through official channels, Article channels under Article 90 may al 90 of the Regulations provides none. ways precede an appeal to the Court 2. In respect of the second objection under Article 91; of inadmissibility, the defendant alleges — that the time limit for making an that the appeal through official channels appeal to the Court in case of an having been lodged on 21 February implied decision of rejection of the 1964, the implied decision of rejection complaint through official channels must be dated 22 April 1964 and that is two months dating from that im the legal time-limit for contesting this plied decision (the second subpara- implied decision thus expired, taking

into account the extension on account ence EUR/C/3203/64) is the 'note of distance of ten days, on 3 July 1964. (undated) for the attention of the Mem The appeal lodged on 13 July 1964 is bers of the Commission' produced by thus inadmissible as out of time in re the defendant in Schedule 13 of its spect of head 2 of the conclusions in statement of defence in Case 30/64. Case 30/64.

cisions, contested within the time-limit, official channels and as a subsidiary that the implied decision of rejection of point the implied decision of rejection the complaint of the applicant was of the same appeal. finally defined and described. the defendant replies, in the first in The applicant next advances the fact stance, that Article 91, governing the that he knew that an express decision conditions for the exercise of the right to reject his appeal through official chan of appeal, can apply only by reference nels on 21 February 1964 had been taken to expressly stated criteria. by the defendant on 24 June 1964. On the subject of the express decision He recalls mat he had on 13 July 1964 of rejection of 24 June 1964, it states, requested the suspension of the opera first of all, that at its meeting of 24 tion of the decision of 24 June 1964, June 1964, the Commission took two requiring him to go immediately to distinct decisions, namely: Brussels to take up service there tem — the express confirmation of the im porarily, without prejudice to a later plied rejection of the complaint of posting to Jülich (Case 30/64 R). 21 February 1964; The defendant, in Schedule 1 to his — the summoning to Brussels or the observations of 25 July 1964, has pro person concerned, with a view to duced the contested decision drafted as making final arrangements for his follows: transfer to Jülich. It point out, next, that the express de 'The proposals of 11 June (doc. 3203), cision of rejection of the complaint of concerning a complaint are adopted. 21 February 1964 is an act which is If the person concerned cannot actually purely confirmatory of the implied de take up his duties at Jülich within the cision and cannot thus have the effect shortest possible time, he shall be asked of extending the time-limit for the ap to go to Brussels, there to receive all peal to the Court against this latter act. necessary instructions (Extract of draft minutes of the 249th meeting of the B — On the substance of the case EAEC Commission, held at Brussels on

FONZI v COMMISSION

In fact, the list of suitable ing the consideration of the comparative candidates drawn up by the defendant merits, arises from the fact that the on 25 July 1963 cannot be regarded as promotion committee had not at its dis satisfying this requirement, since the posal his personal file and from the abovementioned Article requires a con fact that its report was incomplete. In sideration of the comparative merits fact this report was not passed to the and not the drawing up of a list of applicant for him to put in his own ob suitable candidates. servations until after the end of the In substituting, by its Circular No work of the promotion committee. 11/63 of 23 April 1963, the procedure The defendant replies as follows: for drawing up a list for the procedure As to (a), tor the promotions in 1963 for considering the comparative merits, the Commission considered the com the defendant exceeded the limits of its parative merits in accordance with the authority; the instructions given by the rule in Article 45 (1) of the Regulations, circular cannot in fact be regarded as which makes no provision whatever for general provisions for giving effect to the drafting of a written document en- the Staff Regulations within the mean tided 'Consideration of the comparative ing of Article 110, since the consulta merits'. tions and opinions referred to in that In order to put the procedure for the Article are lacking.

Ispra Centre. This exclusion implies tion by means of a new consideration that the applicant did not, when this of the comparative merits. Circular examination took place, fulfil the re 11/63 and the instructions which are quisite conditions for promotion. In fact, annexed to it do not set up a new however, the reports concerning the ap promotion procedure distinct from that plicant put him in a position at least laid down in Article 45(1). The work

of the promotion committees is only The applicant replies by stating, first of a preparatory and consultative nature. of all, that the defendant has produced It follows that the circular and the only incomplete minutes of the meeting instructions mentioned above are within of the local promotion committee at the framework of the powers of the Ispra (Schedule 1 to the statement of Commission. They do not amount to defence in Case 27/64). He asks the general provisions for giving effect to Court to order the production of all the the Staff Regulations within the mean minutes of the meetings of the local pro

110 of the Regulations. ted to the promotion committee during The applicant states that he was ex the preparatory procedure, but also on cluded from the consideration of the the corresponding list submitted to the comparative merits because of the fact Commission during the final procedure that not all officials eligible for pro (see Schedules 1 and 2 to the state motion were considered: in fact the ment of defence in Case 27/64). heads of department or the local pro As to (c). The defendant confirms the motion committees considered the merits contents of its decision of rejection only of those officials whom they had notified on 7 April 1964 (Schedule 6 proposed for promotion.

could not have taken place without the parative merits prescribed by Article prior annulment of the procedure pre 45(1) of the Regulations. But what mat viously followed. ters is that, when the Commission itself The defendant replies by referring considered comparative merits, it had principally to the arguments already these observations from the applicant set out in its statement of defence. dated 5 July 1963, both when it drew Concerning the absence of reasons for up the list of suitable candidates on 17 exclusion from the list of those pro July 1963 and when it made its decision posed for promotion, of which the ap on the promotions on 25 September plicant claims to have been a victim, 1963. the defendant refers to the case-law of

the Court in the Bernusset judgment of The defendant replies first of all that, 9 June 1964 (Rec. 1964, pp. 611 and contrary to the statement of the appli­ 612). cant, it made an inquiry into the facts alleged in the appeal through official 2. Concerning the request to compel the channels (see note referring to Funck defendant to give further considera­ in Schedule 13 to the statement of de­ tion to the comparative merits of the fence in Case 30/64). candidates for promotion in 1963 The said appeal took account of the Case 27/64) statements of Professor Kramers, Scien­ tific Director at Ispra, which are said To this request set out under head 4 to constitute defamatory charges against of the conclusions of the application in the applicant. The defendant observes Case 27/64, the defendant replies that that the applicant has entirely misrepre­ the merits of the applicant were taken sented the statements in question, that into account at every stage of the pro­ Mr Fonzi once more disputes the right motion procedure, and, furthermore, of his immediate superior to make a when the Commission examined the ap­ judgment upon him and lastly that the peal through official channels. It con­ applicant made use of a confidential siders therefore that the request is un­ document which was not addressed to founded. Furthermore, it states that the him. Court in its case-law (Huber judgment The appeal through official channels of 1 July 1964, Rec. 1964, p. 740), points out again that Mr Ritter, Direc­ recognized that it cannot accede to such tor-General at Ispra, in an interview a request by giving orders to the execu­ tive. with Mr Braffort, the immediate super­ ior of the applicant, attributed to the 3. Concerning the implied decision to latter a double personality. The defend­ reject the appeal through official ant considers that this judgment was channels of 21 February 1964, re­ justified by the behaviour of the appli­ questing the intervention of the Com­ cant, who had several times criticized Mr Braffort in front of Mr Ritter. The mission against actions prejudicial to the honour and the professional dig­ said appeal sets forth, lastly, that the nity of the applicant, and on the applicant was the subject of systematic express decision of rejection taken and persistent attempts to remove from on 24 June 1964 (Case 30/64) him the responsibility for work planned by him. The defendant replies that tins The applicant develops the arguments allegation is incorrect, devoid of any contained in his appeal through official foundation and reveals a persecution channels of 21 February 1964 (see complex. Schedule 3 to application 30/64). In re­ The applicant replies by producing cor­ fraining from coming to a decision over respondence between himself and Mr a period of two months, the Commis­ Pomar who witnessed the conversation sion, he adds, refused to protect the between the applicant and Mr Kramers, work done in the interests of the Com­ and a part of a report addressed to munity, to safeguard his professional Mr Kramers by the management com­ dignity and morale and his legitimate mittee of the CETIS (Schedules 3 and hopes of a career, thus tacitly approving 4 to the reply). conduct contravening the rules of the He declared that he had found the re­

of Article 26 of the Regulations with­ (c) The behaviour of the applicant was out having been communicated to him fully justified by the necessity for an and without having been filed in his exact and documented defence against personal file: it follows that there was unjust accusations. an infringement of Article 26 together (d) The conduct of the applicant was with Article 43 of the Regulations. not dishonest nor did it reflect upon As to the inquiry carried out by the the dignity of his office. Commission, the applicant alleges that The defendant replies as follows: it was irregular because neither he nor As to (a). If there is a lack of propor­ Messrs Pomar and Braffort were heard. tion between the misconduct and the The defendant replies that the corres­ sanction, it is due only to the leniency pondence between the applicant and Mr of the Commission. The procedure men­ Pomar reveals nothing new concerning tioned in Annex IX is provided for the pattern of events. because of the seriousness of the sanc­ As to the report of the management tion and not because of the seriousness committee of CETIS, the defendant al­ of the offence.

FONZI v COMMISSION

ule 4 to the rejoinder). written notification of it; On the complaint concerning the hear (b) it was not in the nature of a sum ing conducted by Mr Mercereau, the mons to the headquarters of the Com defendant replies that this is a fresh mission, under the rules governing issue, inadmissible under Article 42(2) missions, because it was not made a of the Rules of Procedure. It alleges, mission by using the normal forms; further, that the powers provided for (c) It is not true, states the applicant, in Article 87 of the Regulations con

5. Concerning the decision to transfer statement of defence in that Case), al the applicant, notified on 25 June leges the applicant, that the contested 1964 (Case 30/64) decision was in the nature of a dis The applicant has produced the four ciplinary measure in disguise; notes constituting this decision (see (e) The applicant disputes that the Schedules 6, 7, 8 and 9 to the appli decision to transfer him was taken in cation in Case 30/64), which he con

never been strained; fer upset his holiday plans, and gave (f) The applicant alleges that the decis the external impression of a punishment. ion is rendered defective by abuse of Further, the contested decision com powers, because the Commission in pletely lacks the components of form ordering him to Brussels wished to pre and of substance required by the Staff vent him from carrying out his duties Regulations for an act of that nature. as a member of the Staff Committee at the defendant replies that the Com Ispra.

JUDGMENT OF 8. 7. 1965 — JOINED CASES 27 AND 30/64

Grounds of judgment

I — Admissibility

1. The admissibility of the application in Case 27/64 (a) The defendant alleges that the request for annulment of the decision regarding promotion posted at Ispra on 9 January 1964 is inadmissible as being out of time since in fact the application in Case 27/64 was not lodged until 29 June 1964 whilst the time limit of 3 months provided for in Article 91 of the Staff Regulations, extended by 10 days on account of distance, had expired on 20 April 1964. According to the defendant, the appeal through official channels lodged on 12 February 1964 could not, in the absence of

FONZI v COMMISSION

express provisions, suspend the running of the time available for the appeal to the Court.

It appears from Articles 90 and 91 of the Staff Regulations, read together, that appeals through official channels are subject to the same time-limit as applies to appeals to the Court of Justice, provided that they were themselves instituted within the time-limit laid down for appeals to the Court. In fact the intention of the authors of these Regulations cannot have been to compel officials to commence simultaneously an administrative appeal through official channels and an appeal to the Court of Justice in order to avoid being out of time.

The appeal through official channels on 21 February 1964 was made within the time-limit laid down for an appeal to the Court. Because of this fact and for the reasons set out above (supra 1 (a)) the applicant has retained the benefit of the time-limit laid down for appeals to the Court. Because of the silence of the administration, an implied decision of rejection is deemed, under Article 91(2) of the Staff Regulations, to have been taken on 22 April 1964.

JUDGMENT OF 8. 7. 1965 —JOINED CASES 27 AND 30/64

It appears from the minutes of the 249th meeting of the Commission of the EAEC, dated 24 June 1964, produced by the defendant as a schedule to its observations concerning the application for the adoption of an interim measure in Case 30/64 R, that the contested measure is drafted as folows:

'If the person concerned cannot actually take up his duties at Jülich within the shortest possible time, he is to be asked to go to Brussels forthwith there to receive all proper instructions.'

This wording clearly does not order a secondment to Jülich but is simply a requirement to go to Brussels. It emerges moreover from the file that the applicant, following the abovementioned order, stayed only a few days at Jülich and at Brussels, that he then took his annual leave and that it was only by the decision of 10 October 1964, notified on 15 October 1964, which is not the subject of the present case, that the applicant was transferred to Brussels.

FONZI v COMMISSION

The contested measure is thus to be regarded as an internal departmental matter falling within the powers of the EAEC Commission. It cannot ad­ versely affect the applicant ('faire grief') within the meaning of Article 91 of the Regulations and, consequently, cannot be the subject of an appeal to the Court. The request for annulment is thus inadmissible.

Consequently, with the exception of the request for annulment of the 'de­ cision to transfer or second' the applicant taken on 24 June 1964, the appli­ cations in Cases 27/64 and 30/64 are thus admissible.

JUDGMENT OF 8. 7. 1965 — JOINED CASES 27 AND 30/64

(c) The applicant alleges that the promotion committee at Ispra did not have his personal file available at the time when the promotion lists were drawn up and that in addition he was not able to make observations on his report for the year 1963.

The defendant has denied this and the applicant's allegation is supported by no proof whatever.

In respect of the observations of the applicant on his report, these are dated 5 July 1963, and consequently the EAEC Commission was in a position to take account of them when it drew up the list of suitable candidates on 25 July 1963. The present complaint is thus unfounded.

(d) The applicant alleges that his merits were at least equal to those of certain candidates actually promoted. The Court has no jurisdiction to sub­ stitute its own value judgment for the assessments made by the institutions itself. The complaint must therefore be dismissed.

(e) The applicant alleges, lastly, that the promotion committee at Ispra did not give the reasons for his exclusion from the list of those proposed for promotion.

(b) In addition the applicant relies on the infringement of Article 87 on the ground that he was not heard by the appointing authority but by an assistant director of the Ispra Joint Research Centre.

The provisions of Article 87 do not prevent the hearing of the person con­ cerned by a senior official.

(c) The applicant alleges that there is a contradiction in the reasons given for the contested decision since, on the one hand this decision accuses the appli­ cant of a serious infringement of his professional duties and that on the other hand it took only mild disciplinary action.

However in spite of the seriousness of the facts complained of, the admini­ stration is justified in imposing only a mild penalty, taking into account circumstances independent of the complaints made, such as the absence of any previous disciplinary action.

(d) The applicant disputes the actual basis of the disciplinary decision and the correctness of the facts upon which it is founded.

It is clear from the file as a whole, and particularly from the facts concerning the decision to reprimand him, that the applicant has had difficult relation­ ships with his immediate superiors. Consequently, assuming the opinions attributed by the applicant to his superiors to be correct, they must be re­ garded as excusable, the reactions of the superiors being explicable having regard to the applicant's behaviour.

As far as the position of the applicant within the European Centre for the Processing of Scientific Information (CETIS) is concerned, when the duties of the applicant were changed, this was clearly done in the interests of the service.

The applicant points, lastly, to the irregularity of the procedure followed by the EAEC Commission in the examination of the appeal made by him through official channels on 21 February 1964.

It is clear from the documents on the file and the explanations of the parties that Articles 27 and 43 of the Regulations were not infringed in the present case. In particular, the report addressed by the management committee of CETIS to Mr Kramers and produced by the defendant in Schedule 5 to its rejoinder, was a not unfavourable report on the work of the applicant and there was no reason in consequence to communicate this document to him or to put it on his personal file. It appears, moreover, that the facts known to the EAEC Commission were sufficient to allow it to take a decision without having to hear the applicant or Messrs Pomar and Braffort.

It follows from the foregoing that the defendant has committed no irregu­ larity by refusing to intervene as requested by the applicant. Consequently the request for annulment of both the implied and express decisions of rejec­ tion of the complaint asking for the intervention of the EAEC Commission against conduct regarded as prejudicial by the applicant must be dismissed as unfounded.

The Court considers that, as the documents in the file have provided sufficient information, there is no need to order the measures of inquiry sought by the applicant.

III — Costs

The applicant has failed in his applications. Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, under Article 70 of the Rules of Pro­ cedure, the costs incurred by institutions in appeals by servants of the Com­ munities shall be paid by the former.

Nevertheless, taking into account the circumstances of the case, there are grounds under the first subparagraph of Article 69(3) of the Rules of Proce­ dure to order the defendant to pay one-quarter of the costs of the applicant.

The order of the President of the Court dated 7 August 1964 dismissed the application for suspension lodged by the applicant as inadmissible, costs being reserved. The costs relating to that application must be apportioned in the manner set out above.

On those grounds,

Lecourt Delvaux Trabucchi

Delivered in open court in Luxembourg on 8 July 1965.

A. Van Houtte R. Lecourt

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 16 JUNE 1965<apnote>1</apnote>