C-58/69

ν

Commission of the European Communities, represented by its Legal Adviser, Pierre Lamoureux, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser, Emile Reuter, 4, boulevard Royal,

defendant,

Application for the partial annulment and the rectification of the periodic report of 31 May 1968 concerning the applicant,

THE COURT (Second Chamber)

composed of : P. Pescatore, President of Chamber, A. Trabucchi (Rapporteur) and W. Strauß, Judges,

Issues of fact and of law

I — Summary of the facts and pro­ all other relevant implementing provi­ cedure sions;

The facts which form the basis of this case — annul the said report as it may adversely and the procedure may be summarized as affect the applicant owing to the differ­ follows: ences between the analytical assessment On 14 March 1969 Mr Raymond Elz, an on the one hand and the assessment of official of the Commission of the European the reporting officers on the other ; Communities, submitted a complaint under Article 90 of the Staff Regulations against — annul the report because it reveals con­ the periodic report of 22 May 1968 con­ tradictions and contains assessments cerning him. which are not laid down by the regula­ By a memorandum of 8 July 1968 signed by tions in force; Jean Rey, the President, and addressed to the applicant, the Commission confirmed — order the rectification of the report on the this report and stated that the Court of points with which this application is con­ Justice had decided in its judgment of 25 cerned, or else annul them, and order the February 1969 in Case 15/68 between the Commission to bear all the costs of the same parties that it was clear that this report action. had been communicated to the applicant in its final form on 13 May 1968. The defendant claims in its statement of By an application lodged at the Registry of defence that the Court should : the Court on 8 October 1969 the applicant appealed against the periodic report of 31 — dismiss the applicant's application com­ May 1968. pletely as inadmissible or unfounded; The written procedure followed the normal course.

III — Submissions and arguments of which arises in this case is 'quite different' the parties from that in Case 28/64 (Richard Müller ν Council of the EEC and Council of the EAEC) since his application is not directed The submissions and arguments of the par against an implied decision of the Commis ties may be summarized as follows : sion to reject the request but against an express decision rejecting the request which 1 — Admissibility of the application was made within the period laid down for the lodging of an application to the Court The applicant maintains that the period for against the absence of a reply from the ad lodging an appeal began to run, in this case, ministration which is deemed to be an on the day after the Court gave judgment in implied decision to reject a request. Case 15/68, that is on 26 February 1969, Moreover the applicant states that it follows since that judgment decided that the clearly from the context that this application periodic report of 15 January 1968 was re is against the decision taken by the Com placed retroactively by the report of 31 May mission on 8 July 1969 and signed by Mr

time. 'In the analytical assessment of efficiency, It alleges that its reply of 8 July 1969 was the applicant was given the mark "Good" purely by way of confirmation and could for the standard of work and was also not restore time-limits which had expired given the mark "Good" for the speed with and states, in the alternative, that the appli which the work was performed. This cation is not directed against the Commis assessment, however, differs from the sion's memorandum of 8 July 1969. assessment of the reporting officers in The applicant replies that the judgment of which the first reporting officer assesses the Court of 25 February 1969 constitutes his efficiency as "Fair" and the second as a new factor with regard to him as it decided

JUDGMENT OF 25. 6. 1970 — CASE 58/69

in a very limited number of words. In these is plainly shown on the form as being circumstances the mark 'Good' is the one equivalent to 'Good'. which reflects most faithfully an assessment The applicant maintains that the criticism which is expressed in certain areas by the made of him that his requests for leave were mark 'Fair' and in others by the mark ill-timed must also be removed on the 'Excellent'. ground that he adhered strictly to the pro­ The applicant claims that by adding com­ visions of the Staff Regulations on this ments to their assessment the reporting point by obtaining the prior consent of his officers seem to have exceeded their duty, superiors. Moreover, he asserts that these since comments are only obligatory for the criteria of assessment are irrelevant and marks 'Very Good' and 'Unsatisfactory'. maintans that these comments are therefore Moreover, he says that the mark 'Normal' ultra vires. which was given by the second reporting The defendant asserts that the absence of an officer is not laid down as a criterion of official has a serious effect on the running of assessment. a department and that it seemed necessary The applicant asserts that in the analytical to ask the applicant to have a keener sense of assessment of sense of responsibility the responsibility with regard to the way in mark is 'Good', whilst in the comprehensive which he chose his leave. assessment both reporting officers call for a The applicant replies by emphasizing the keener sense of responsibility, 'and he claims contradiction which he says exists 'between that these comments should be removed the comprehensive assessment on the choice from the periodic report because they are of leave contained in the report of 15 superfluous. January 1968 which was withdrawn post The defendant replies that the report form festum and the less favourable assessment does not expressly prohibit comments. It on the same point in the report of 31 May adds that in this case comments might be 1968'. useful to order to define more clearly the The defendant states that it does not under­ mark 'Good' which appears rather bald on stand this argument put forward by the its own, and says that the adjective 'Normal' applicant.

4 That judgment merely stated the situation which existed when the first application was lodged, by declaring that the amended report could be used against the applicant.

5 Therefore the judgment of 25 February 1969 cannot constitute a factor which could start running in the applicant's favour a new period for lodging an applica­ tion against the report of 22 May 1968.

6 As this report had been communicated to the applicant on 31 May 1968, the period of three months available to him under Article 91 of the Staff Regulations of Officials had already expired before this appeal was lodged.

7 The memorandum of 8 July 1969 whereby the President of the Commission simply confirmed the periodic report in question following a complaint by the applicant through official channels cannot constitute a measure against which an application can be made.

8 Therefore this application must be dismissed as inadmissible.

Costs

Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 26 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (Second Chamber)

hereby :

1. Dismisses Application 58/69 as inadmissible;

2. Orders the parties to bear their own costs.

Pescatore Trabucchi Strauß