C-29/70
ECLI:EU:C:1971:29
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JUDGMENT OF THE COURT (SECOND CHAMBER) 17 MARCH 19711
Antonio Marcato
v Commission of the European Communities
Case 29/70
Summary
Officials — Occupational ability — Assessment by the administration — Review by the Court — Limits
The Court is not in a position to determine whether the assessment by the administration of the occupational ability of an official is well-founded when this assessment involves complex value-judgments which, by their very nature, are not capable of objective proof.
In Case 29/70
ANTONIO MARCATO, an official of the Commission of the European Com munities, residing in Luxembourg, represented by Edmond Wirion, Advocate of the Luxembourg Bar, with an address for service at his Chambers, 1 place du Théâtre,
applicant,
v
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, Ëmile Reuter, 4 boulevard Royal, defendant,
Application for the annulment of the periodic report on the applicant for the period from 1 July 1967 to 30 June, 1969,
THE COURT (Second Chamber)
composed of: A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges,
1 — Language of the Case : French.
JUDGMENT OF 17. 3. 1971 — CASE 29/70
Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts port drawn up by the Joint Reports Committee. Mr Antonio Marcato who entered the In this opinion, the Joint Reports Com service of the Commission of the EEC mittee stated in particular that on 12 November 1958, was assigned, 'In view of all these factors, the short- after completing six months' probation comings of the official concerned, as ary period, to the post of punched-card set out in the periodic report, appear operator in the computer branch on 1 to be relative and are connected with October 1963. Whereas up to this date the performance of certain tasks which he had received favourable periodic at present fall to him by reason of his reports, that communicated to him in post. The solution to the problem in November 1969 relating to the period this case, which emerges from Mr from 1 July 1967 to 30 June 1969 was Marcato's report, could be found in unfavourable, especially with regard to a new posting of the official concerned, his ability and efficiency. whose zeal and output are unquestion With regard to Mr Marcato's ability, ed; the matter of his shortcomings is the periodic report puts his range of in any case outside the competence of knowledge necessary for the post and this Committee.' his powers of understanding and dealing In conclusion, the Committee considered with problems below average; he fre that there was no reason to give effect quently takes the initiative, but often to the comments made by Mr Marcato with disastrous results. With regard to in so far as they concerned the legality his ability to organize the work of others, of his periodic report. the report also speaks of 'disorganization On 12 June 1970 Mr Marcato brought despite the meticulous keeping of files'. this action in which he seeks the annul As regards efficiency, the quality of Mr ment of the contested report. Marcato's work is judged to be Very variable', the speed of its execution ex II — Procedure cellent 'when he makes no mistakes' and his method of working below average The written procedure followed the nor and conducive to 'utter confusion'. On mal course. 12 February 1970 Mr Marcato gave the Having heard the report of the Judge- Assistant Director-General for Adminis Rapporteur and the views of the Ad tration of the Commission confirmation vocate-General, the Court (Second of the comments which he (Mr Marcato) Chamber) decided to open the oral pro had made when signing the report of cedure without any preliminary enquiry. November 1969 and asked him to The parties were heard on 14 January amend the assessment shown therein. 1971. Mr Marcato was informed on 8 June The Advocate-General delivered his 1970 of an opinion on his periodic re- opinion on 3 February 1971.
MARCATO v COMMISSION
III — Conclusions of the in operation, not since 1 July 1967, but parties since the beginning of 1966 and they are no different from those in service The applicant claims that the Court today. Even if the new computers, still should: of the third generation, possess certain — declare the application to be well- refinements, these are secondary in founded and annul the contested re nature and do not involve any funda port in that it causes him unwarranted mental change. The change is in the damage; output and does not involve the basic — allow him to prove by an investiga
nature of the system. tion, expert opinion or competition, Furthermore, the applicant claims that his ability to carry out all the work he has followed closely the development connected with the control and oper of these computers and has not yet been ation of the third-generation com entrusted with a single task which he puters currently in use in his branch has been unable to accomplish. and, more generally, his efficiency and (c) The statement that, because his organizing ability; superiors were aware of his abilities, the — order the Commission to bear the applicant has been entrusted only with
costs. relatively uncomplicated work is wholly The Commission contends that the Court unfounded. should: For his part, the applicant is inwardly — dismiss his application as unfounded; convinced that his superior officer wished — order him to bear the costs. to favour his fellow-countrymen to the applicant's disadvantage; in this con IV — Submissions and argu nexion, it is symptomatic that 50% of ments of the parties the operators are of the same nationality as the head of the branch. The submissions and arguments of the (d) The applicant insists on the value parties may be summarized as follows: of the documents produced by him, The applicant contests most strongly not which, being spontaneous testimony of only the unfavourable assessments con thanks from several people for the com cerning him but also the abstract reason puting work which he has carried out ing which led to this report. for them, contrast strangely with the (a) In reliance on the concept of 'nor unfavourable assessments concerning mality', the applicant maintains that since him. He repeats his offer to prove his his previous reports were good, then abilities.
e) according to the rules on the burden of (e) The opinion of the Joint Reports proof, it is for the Commission to prove, Committee is irrelevant. The composi clearly and conclusively, the facts cap tion of this Committee does not enable able of justifying the radical change in it to form an objective judgment. the assessment of his abilities. (f) Even though the Court cannot sub (b) The arguments advanced by the stitute its own value-judgment for that Commission to justify the difference be of the administration, it has none the less tween previous reports and the report the power to check whether the state for the period from 1 July 1967 to 30 ment of facts in a contested decision is June 1969 are invalid.
The assertion that really correct and logically compatible the applicant, by reason of his limited with the assessments of the officials vocational training, cannot 'raise himself which are in question. This is not the to the level of current advanced technical case here. knowledge' is entirely unfounded and dis The Commission is of the opinion that proved by the facts. even if the knowledge and qualifications Third-generation computers have been of the applicant were sufficient at one
JUDGMENT OF 17. 3. 1971 — CASE 29/70
time, technical progress in the computing branch running smoothly led them to sector has been so rapid and marked avoid, as far as possible, entrusting him and has so increased the complexities with work which was too complicated; of the work that his elementary technical the contested periodic report reflects knowledge has gradually proved inade this situation. quate to cope with fresh requirements (c) The high proportion of operators of arising from new equipment which has the same nationality as their head—in been put into service. any case less than 50%—is explained It is this development which explains very logically by the fact that the Com the difference between the present re puting Centre was, before merger, sited
port and previous reports. The contested in Brussels and that the staff of opera report signifies that the applicant has tors, composed in the main of local staff, the necessary qualifications to act as a recruited on the spot, was very largely routine operator on first-generation com of Belgian nationality. puters, but does not have sufficient (d) The documents relied on by the ap knowledge for a console operator on plicant are irrelevant since, apart from third-generation computers. the fact that they are of only recent (a) Contrary to the assertions of the ap origin, they merely give the results of a plicant, technical development in the piece of work carried out by the com field of computers since 1966 has been puter branch and could not take account
both important and extensive. It has in of the circumstances in which this work particular been marked by the ever was undertaken and successfully com growing number and complexity of jobs pleted. and programmes which an operator of (e) The offer by the applicant of proof today can handle simultaneously, where of his abilities is irrelevant. The admin as previous operators could only deal istrative authority alone has power to with jobs one at a time. A computer, make the assessments contained in a the capacity and scope of which have periodic report and, in particular, an quadrupled in roughly two years, de expert report would not necessarily dis mands a new technique; operators them close errors made and abortive initiatives selves have had to keep abreast of this taken by the applicant at various times new technique and adapt themselves to and in varying degrees according to the
it. The result of this technical progress difficulties of the different tasks en and the growing complexity of the tasks trusted to him. has been that any error in operating or (f) It is clear from the case-law of the in initiating the work of the computer Court that the Court refuses, in prin made by an operator who is not up to ciple, to review the grounds of the the task, creates many more disturbances assessment made by the administration and difficulties in the department than of the occupational ability of an official before. when this assessment is made up, as in (b) The assertion that the applicant has this case, of complex value-judgments. not yet been entrusted with a single task In this case, there is no factor—indica which he has been unable to accomplish tion of misuse of power or discordance —an assertion which is in any case an between the assessments made of the exaggeration—does not take account of applicant and other factors of equal the fact that what his superiors knew merit—which could suggest that the con about him and the need to keep the tested report is incorrect.
Grounds of judgment
1 This application seeks the annulment of the periodic report made on the
MARCATO v COMMISSION
applicant in accordance with Article 43 of the Staff Regulations of Officials for the period from 1 July 1967 to 30 June 1969.
2 Unlike previous reports, which were favourable, the report made in 1969 contains unfavourable assessments, in particular with regard to the ability and efficiency of the applicant.
3 The Commission explains this change in the assessment of the applicant by reference to the rapid technical progress made in the computer field, which overtook the knowledge and abilities of the applicant.
4 For his part, the applicant has offered to prove by investigation, expert report or competition his ability to carry out all the work on the most modern com puter equipment in operation in his branch and, more generally, his capacity for work and organization.
5 He submitted, in addition, testimonials containing assessments contrasting with those of the periodic report.
6 Even though the unfavourable assessment of the applicant in the report at issue may appear surprising when compared with previous assessments, it appears to be based exclusively on the observations of the administration and on the judgments which it made with regard to the occupational ability of the official concerned.
7 The Court is not in a position to determine whether the assessment by the administration of the occupational ability of an official is well-founded when this assessment involves complex value-judgments which, by their very nature, are not capable of objective proof.
8 Furthermore, the applicant has been unable to prove either irregularity in the report procedure or an obvious error of fact, or any breach of the other legal safeguards contained in the Staff Regulations.
9 The offer of proof with a view to correcting the assessments is inadmissible in the circumstances.
10 The application must therefore be dismissed.
Costs
11 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
OPINION OF MR DUTHEILLET DE LAMOTHE
12 The applicant has failed in his submissions.
13 However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Article 43; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders each party to bear its own costs.
Trabucchi Pescatore Kutscher
Delivered in open court in Luxembourg on 17 March 1971.
A. Van Houtte A. Trabucchi Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL
DUTHEILLET DE LAMOTHE
DELIVERED ON 3 FEBRUARY 1971 1
Mr President, Engaged by the Communities to per Members of the Court, form almost exclusively manual work, he succeeded through hard work and. i This is one of those cases where we all energy in becoming a qualified techni feel the obligation, regretfully, to con cian in a particularly difficult field, that sider the merits of the application solely of computers, having been a punched from the legal point of view. card operator at the Centre in Brussels Mr Marcato is a deserving man. since 1963.
1 — Translated from the French.