C-90/71

JUDGMENT OF THE COURT (FIRST CHAMBER) 13 JULY 1972 1

Giorgio Bernardi v European Parliament

Case 90/71

Summary

1. Officials — Proceedings for annulment — Complaint of irregularities resulting from applicant''s own behaviour — Inadmissibility (Staff Regulations of Officials of the European Communities, Article 91)

2. Officials — Promotion — Statement of reasons with regard to unsuccessful candidates — Not required (Staff Regulations of Officials of the European Communities, Article 45)

Application for the annulment of the decision of the President of the European Parliament dated 7 September 1971 posted up on 8 October 1971, promoting Mrs Anna-Maria Dell'Omodarme to the career bracket of a translator in Grade L/A 6,

1 — Language of the Case: French.

JUDGMENT OF 13.7.1972 — CASE 90/71

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President, A. M. Donner (Rapporteur) and R. Monaco, Judges,

Advocate-General: K. Roemer

BERNARD v PARLIAMENT

A com missible; parative consideration which complies with Article 45 of the Staff Regulations is — Refuse to allow the aims and con only possible on the basis of reports clusions of the applicant; subscribed by the officials concerned and — Give a ruling on the costs in accordance containing any comments they may wish to make with the appropriate provisions. The defendant observes that the periodic report was transmitted to the applicant III — Submissions and arguments on 15 July 1971 with a request to return of the parties it within five days. The report is still in the possession of the applicant. It is impossible The submissions and arguments of the to justify such a delay either by the alleged parties may be summarized as follows: absence of the applicant or by his need to The applicant explained that his application draw up comments on the report.

tions. This report was sent to him on 15 he only took the appropriate steps on July 1971 for him to submit any observa 29 September 1971 and it was only by a tions he might have. note dated 26 October 1971, addressed to Since a number of severe appraisals of the Court of Justice but not to his own his work appeared in the concluding Administration, that he submitted his observations in the said report it was comments on the periodic report.

JUDGMENT OF 13.7.1972 — CASE 90/71

It was consequently impossible to formed in advance of decisions concerning make a comparative consideration of the posts to be filled in Category A'. Such an reports and the Administration was thereby irregularity must entail the annulment of relieved of its obligation in this respect. the decision in dispute. It is impossible to Furthermore, since the Secretary-General accede to the view that officials of Gategory had signed the applicant's report on 13 L/A do not form part of Category A July the Administration was acquainted since Article 5(2) of the Staff Regulations

2. Insufficiency of reasons Since the contested decision relates to an appointment to Grade L/A it is clear that The applicant considers that the decision in advance notice in not required. Article 5 dispute did not contain a sufficient state of the Staff Regulations must be inter ment of reasons. The decision must contain preted in accordance with its objective, in a reference to the periodic reports and to particular with that of treating the Lan the consideration of comparative merits. A mere reference to Article 45 of the Staff guage Service as equivalent to Grades 3 to 8 of Category A with regard to salary Regulations is insufficient to prove that and other pecuniary advantages. the provisions of that article were observed. The decision of 12 December 1962 estab- In this instance the Administration is lished the same appointing authority for subject to a formal obligation, referred to officials in Category A in Grades 3 to 7 in Article 45, and this means that it must furnish a statement of reasons for the inclusive and those in the Language Service up to and including Grade 6. decision of promotion so that it is possible Nevertheless it restricted the requirement to consider the legality of the decision. that the Bureau be informed in advance to The defendant maintains that the argument decisions filling posts in Category A'. of the applicant is contrary to the case- Since there is no requirementч at the law laid down by the Court of Justice Bureau be informed the defendant re (judgment of 6 May 1969 in Case 21/68, frains from expressing a view on the prob Huybrechts v Commission [1969] ECR 97). lem of what legal consequences would The contested decision contains a proper statement of reasons in that it refers to the follow from any infringement of the provisions of the decision of 12 December Staff Regulations and in particular to

3. Misuse of powers (b) Missuse of powers strictly so-called

(a) Failure to give advance notice of the The applicant maintains that in creating a contested decision to the Bureau of vacancy in the interest of a candidate the European Parliament whom it evidently wished to favour, the Parliament was clearly acting contrary to The applicant observes that the contested Articles 4 and 7 of the Staff Regulations.

BERNARDI v PARLIAMENT

In fact Mrs DeH'Omodarme was accorded Court of Justice of 16 March 1971 in Case advantages which were not justified by the 48/70, Bernardi v European Parliament interests of the service. The behaviour of [1971] ECR 195) relating to the annulment the Parliament in the appointment proce­ of two interim appointments of Mrs Dell'- dure provides a body of evidence that the Omodarme to the grade to which she outcome of this procedure was fixed in has now been promoted, can only be advance. The period during which the intended to facilitate the promotion of vacancy notice was posted up was ar­ that lady. In his reply the applicant further ranged in such a way that it was to be asserts that the adoption of a decision of expected that the applicant would not promotion on the basis of an incomplete apply for the post, since on the one hand and unsigned periodic report without he had left Luxembourg on 7 July 1971 notifying the Bureau of the Parliament for his holiday in Italy on the very day constitutes a misuse of powers, the probable when the notice was published and on the object of which is thereby to revive the other the Administration could not but be situation declared unlawful by the Court. aware that on the closing date for ap­ The defendant maintains that the sub­ plications, 20 July 1971, he would still mission by the applicant of his application be on holiday. Consequently, the posting on 19 July suffices to prove that he knew of the vacancy notice must be characterized of the vacancy notice. The Parliament at the least as an attempted subterfuge formally rebuts the accusation that it has which, in view of the fact that the Parlia­ endeavoured to perpetrate a subterfuge. ment had already failed in a first case It had neither the time nor the inclination against the applicant (judgment of the to indulge in such underhand dealings.

JUDGMENT OF 13.7.1972 — CASE 90/71

4 The applicant, who had applied for the promotion in dispute, relies on the fatc that in the present case the comparative consideration was incomplete since the Administration did not have at its disposal as far as he was concerned the periodic report, provided for in Article 43 of the Staff Regulations, for the year 1969 to 1970.

5 In fact when the proposed report on the applicant was sent to him by letter of 15 July 1971 he retained it in order to draft his comments so that during the period in which the contested decision was being drawn up the competent authority did not have a report on the applicant at its disposal.

6 The proposed report was notified to the applicant on 15 July 1971 with a request to return it within a maximum period of five days duly signed and with any comments he might have.

7 Instead of complying with this request the applicant, by letter of 29 September 1971, requested the production of certain documents which he required in order to draw up his comments.

8 Instead of returning the proposed report and his comments to the competenl Administration the applicant annexed them to his application initiating the presenl proceedings on 8 November 1971.

BERNARDI v PARLIAMENT

14 It must be stated that it was unnecessary to provide a statement of reasons for the decision with regard to the person to whom it was addressed, that is to say, with regard to the successful official, who cannot be adversely affected by it.

is Under Article 45 of the Staff Regulations the appointing authority has no duty as against the unsuccessful candidates to provide a statement of the reasons on which decisions of promotion are based and moreover the recitals of such a state­ ment of reasons might be prejudicial to the latter.

The submission of infringement of the decision of the Bureau of the Parliament

16 The decision of 12 December 1962 states in particular that with regard to the application of Article 45 of the Staff Regulations to officials in Category A as far as Grade 7 inclusive and in the Language Service as far as Grade 6 inclusive, the President shall, acting on the proposal of the Secretary General, exercise the powers conferred by the Staff Regulations on the appointing authority.

17 The same provision adds in fine that the Bureau shall nevertheless be notified in advance of decisions relating to posts in Category A.

23 He alleges that this period of posting was selected deliberately so as to prevent him from submitting his application.

JUDGMENT OF 13.7.1972 — CASE 90/71

24 Furthermore both the documents produced in the course of the written procedure and the observations submitted by the applicant at the hearing were couched in terms which pre-suppose a malicious attitude on the part of the Administration towards him and a clear intention to handicap him.

25 The vacancy notice was properly posted.

26 Furthermore, the very fact that the applicant submitted his application on 19 July 1971 shows that he was not handicapped by the choice of the period of posting.

27 In addition none of the factors ascertained in the case confirms the allegations of the applicant.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 25 and 45; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

BERNARDI v PARLIAMENT

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

acquired the status of an official with effect issue in the present proceedings; that is to from 1 March 1969. At present the say, the applicant considers that there are applicant is employed as an assistant various grounds for doubting the legality translator in Grade L/A7 in the Italian of the decision adopted. He accordingly section of the translation directorate of applied to the Court by an application the European Parliament. snhmitted on 8 November 1971.

In this directorate a post as a translator in He claims that the Court should take the Career Bracket L/A6-L/A5 in the Italian following action: section was advertised from 7 July 1971 by Vacancy Notice No 542. It was to be — Declare null and void the decision of filled through transfer or promotion. the President of the European Parlia­ Applications were to be submitted by ment of 7 September 1971; 20 July 1971. Applications for the post were submitted by the applicant and — Order the Parliament to apply Article Mrs Dell'Omodarme, another assistant 85 of the Staff Regulations of Officials;

1 — Translated from the German.