C-62/75

Even in a case in which it may be open Regulations when deciding on to question whether the appointing promotions to make a choice on the authority did not give too much weight basis of a consideration, carried out in to the assessments made by departmental the manner which it considers to be the

heads as compared to the other factors most appropriate, of the comparative involved in the evaluation, that authority merits of the candidates eligible for however, has power under the Staff promotion and of the reports on them.

In Case 62/75

JAN ELIZA DE WIND, official of the Commission of the European Communities, residing at 1640 Rhode-Saint-Genèse, Oud Kloosterlaan 29, Belgium, represented by M. Denys, Advocate at the Cour d'appel of Brussels, with an address for service in Luxembourg at the Chambers of J. Loesch, Advocate, 2 rue Goethe, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, R.C. Fischer, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, M. Cervino, Bâtiment CFL, Place de la Gare,

defendant,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments put forward In autumn 1974 a decision was made

18 June 1973 a 'Method of assessment of As in the present case, the number of officials in Grade A5 eligible for officials eligible for promotion whose promotion to Grade A 4' according to names were put forward by the which: Director-General of DG/V (in which the — The Directors-General of the various applicant was employed) amounted to 12, Directorates-General shall be requi­ only those whose names were among the red to draw up a list of the officials in first four were able to receive points on Grade A 5 who are eligible for grounds of priority (under Article 1 (1) (c) promotion and to submit this list to a of the 'Method of assessment' and the 'Promotion Committee'. Each table annexed thereto, where the number Director-General shall decide on the of officials eligible for promotion is order of priority on this list of the between 11 and 13, the first shall receive officials whose names are suggested 70 points, the next two 45 points and the for promotion; fourth 20 points). — The Promotion Committee which may modify both these proposals and The classification resulting from the the order of priority therein original proposals was as follows: contained, shall award to each official a certain number of points deter­ 1.: E., 2.: O., 3.: W., 4.: P2., 5.: P., 6.: De mined by the abovementioned Wind. 'Method'. Thus, it shall give points to all the officials on this list according At the request of the members appointed to the following 'objective' criteria: by the central Staff Committee, the —age, Promotion Committee made a special examination of the cases of Mr Pasca and — seniority in the grade, — seniority in the service, one other person and amended the classification as follows: — staff report: the staff report shall be made up of three headings (ability, efficiency and conduct in 1.: E, 2.: 0., 3.: P., 4.: W., 5.: P2., 6.: De Wind. the service), under each of which one of the following comments The following points were obtained: may be made: 'above average', 'average', 'inadequate'. E. Number of points In addition, the Promotion Committee Age 54 shall award points to a certain number of Seniority in the grade 6 officials eligible for promotion on the Seniority in the service 13 basis of their priority in the list drawn up Staff report 20 by the Directors-General. The number of officials eligible for these points shall 103 vary according to the total number of Order of priority for promotion: officials whose names appear on this first 70 list. — The Promotion Committee shall then 173 be requested to draw up a draft list of officials 'considered to be the best O. Number of qualified for promotion to Grade A 4' points and to submit this draft to the Age 45 Commission. The officials whose Seniority in the grade 16 names appear on this draft list and Seniority in the service 8 who are subsequently not promoted Staff report 30 shall receive 25 points for the next financial year. 99

II — Conclusions of the parties The file shows that the applicant received the highest number of points The applicant claims that the Court under three of the four objective criteria, should: that is, seniority in the grade, seniority in (a) Annul the list of the best qualified the service and the staff report. In fact, officials published in the 'Commu­ the latter includes the comment 'above nications' of 28 October 1974; average' under each heading, which was (b) Annul the decision whereby Mr E. worth an award of 30 points to the and Mr P. appear on the list of applicant. In comparison Mr P., for officials seeking promotion to Grade example, twice obtained the comment A 4; 'above average' and once the comment Annul the decision whereby Mr E. 'average' under the heading 'efficiency', and Mr P. were promoted to Grade which was worth an award of 20 points A 4 since it was adopted by the to him. It is thus on the basis of the Commission without its having points awarded by way of the order of adequately considered the compara­ priority that the applicant was excluded tive merits of all candidates and in from the list of officials considered to be particular those of the applicant; the best qualified. As the applicant was (c) Annul or at least declare void the in sixth place on the original list of implied decision of the Commission proposals he was not eligible for any of the European Communities points on the basis of his classification rejecting the request made by the and was overtaken by officials who applicant on 17 December 1974;

(d) Order the Commission of the reports bear three times the comment European Communities to pay the 'very good' may be excluded from the list costs of the action; of best qualified officials to the advantage (e) Take note that the applicant reserves of others whose reports only contain the the right to raise submissions both of comment 'very good' once or twice. fact and of law to which the defence by the opposite parties or the The defendant replies that the lists of documents produced by them may best qualified officials are drawn up by give rise; the Commission alone on the basis of

as witnesses; (3) thereof 'it is therefore for the (h) Order the Commission to produce Committee to assess the various factors the staff reports and personal files of in each individual case'. Since the initial Mr E. and Mr P. proposals for promotion made by the Directors-General or heads of depart The defendant contends that the Court ment and the order in which they were should: made are published in the Staff Courier (a) Dismiss the applicant's conclusions as before the first meeting of the unfounded; Committee, the officials concerned are (b) Order the applicant to pay the costs; able to submit their observations on (c) If it orders witnesses to be heard in these proposals to the members of the accordance with the applicant's Committee in good time. conclusions, hear in addition his Director, Mr J. Peel, whether or not in place of the applicant's Head of All officials eligible for promotion are Division, Mr J. Danis. dealt with on an equal footing: in fact, after long discussions with the relevant Directors and heads of department, the Directors-General take into consideration III — Submissions and arguments of the parties such objective factors as age and

merits. In this way, officials whose staff Justice, a promotion is not justified only

Total number Acquirements Contributions 'Conduct of points

above average above average average 27 average above average above average 24 above average average above average 20

Contrary to the statements made by the and colleagues always marked by defendant, neither the Director-General courtesy. of DG/V nor the defendant asked the applicant's Head of Division and Finally, it is reasonable to wonder Director for further details concerning whether Mr E. could be regarded as the reports in question. eligible for promotion since his appointment to Grade A 5 dates from 1 It may be thought that if the applicant October 1971 and, therefore, his staff had obtained 106 points on the basis of report (drawn up on 30 June 1973) objective factors, the assessment of relates to a period of less than two years. subjective factors (such as character and personality) was detrimental to him. In The defendant replies that, as, in fact the heading 'conduct' in his staff addition to the staff reports, the report reads as follows: remarkably Directors-General must take account of conscientious approach to his work; great other objective and subjective factors, it is discretion; relations with third parties incorrect to claim that a suggested

DE WIND v COMMISSION

Division. Similarly, the Director-General Finally, on 31 December 1973, Mr did not 'decide arbitrarily that the Erhard had more than two years' applicant could not be promoted'. The seniority in Grade A 5. applicant's name was in fact put forward, even though his chances had been (b) The second submission: infringement relatively small once his name only of Article 45 (1) of the Staff appeared on the list in sixth place. Regulations The consideration of the comparative The applicant refers to the Opinion in merits carried out by the Commission is Joined Cases 94 and 96/63 (judgment of not limited to those officials whose 5 May 1964, Bernusset v Commission of names had been put by the Promotion the European Economic Community, Committee on its draft list.

Commission of 23 October and 20 et au vu de sources d'informations et de renseignements comparables'. Article 45 November 1974, according to which it stipulates that there must be a had the opportunity of consulting the consideration of the comparative merits personal files and staff reports of the of the officials eligible for promotion and officials who were eligible for promotion not only of those persons who appear on and that it considered their comparative a list of officials considered to be the best merits, were 'standard clauses'.

The defendant replies that at each stage Following the order of the Court (First of the procedure the comparative merits Chamber) of 19 February 1976, the Court of all the officials eligible for promotion heard Mr Michael Shanks, former

JUDGMENT OF 1. 7. 1976 — CASE 62/75

Director-General of DG V as a witness defendant by its Legal Adviser,. Mr R. C. during the hearing on 1 April 1976. At Fischer, acting as Agent. this hearing the applicant was represented by Mr Denys, Advocate at The Advocate-General delivered his the Cour d'appel of Brussels, and the opinion at the hearing on 21 May 1976.

Law

1 In an application lodged on 14 July 1975 the applicant requested the Court to annul (a) the list of best qualified officials published in the 'Communications' of 28 October 1974, (b) the inclusion in this list of the names of two officials, Mr E. and Mr P., and their promotion to Grade A 4 and (c) the defendant's implied decision to dismiss the applicant's complaint under Article 90 of the Staff Regulations.

2 In this instance the defendant followed the 'preliminary consultative procedure' which it had adopted by a decision of 21 December 1970, pursuant to which five Promotion Committees were set up for Categories A, B, C and D and the Language Service, and were given the task 'of examining the position of officials who satisfy the conditions laid down under the Staff Regulations for promotion during a particular financial year'.

7 He maintains that as a result of the discretionary award of additional points the candidates eligible for promotion were treated unequally and that this infringed Article 45 of the Staff Regulations.

8 He points out in particular that the staff report on Mr P., one of the two candidates whose names the applicant wishes to see withdrawn from the list of best qualified officials, contains twice the comment 'above average' and once the comment 'average' under the heading 'efficiency' which is the most important heading appearing on the file for the purposes of the method of evaluation applied by the Commission whilst the applicant's report contained the comment 'above average' under each heading.

9 The applicant received a higher number of points than Mr P. under another two of the four objective criteria, seniority in the grade and seniority in the service.

10 Thus, it was the assessment of the subjective factors by his Director-General which had adversely affected his position, since the heading in his report 'conduct in the service', which was by nature more objective, was more favourable.

11 The applicant maintains that the Commission has adopted a method of assessment of officials eligible for promotion which, although presented as 'objective', in fact leaves a very wide margin of choice to the Directors-General and Promotion Committees by allowing the points awarded according to objective criteria and those awarded according to the order of priority of the officials on the lists drawn up by the Directors-General to be balanced on against the other.

17 Even if it be open to question whether the Commission did not give too much weight to the assessments made by the Directors-General as compared to the other factors involved in the evaluation, the Commission however has power under the Staff Regulations when deciding on promotions to make a choice on the basis of a consideration carried out in the manner which it

considers to be the most appropriate, of the comparative merits of the candidates eligible for promotion and of the reports on them.

18 It does not appear that by promoting Mr E. and Mr P. the Commission has exceeded its powers.

19 For this reason the application must be dismissed.

DE WIND v COMMISSION

Costs

hereby rules:

1. The application is dismissed;

2. The parties shall bear their own costs;

3. The costs of hearing the witnesses shall be borne by the defendant.

O'Keeffe Donner Capotorti

Delivered in open court in Luxembourg on 1 July 1976.