C-122/75

2. Officials — Applications to the Court — Periodic reports — Date of signing by the head of the administration — Commencement (Staff Regulations, Article 91)

3. Officials — Periodic report — Nature (Staff Regulations, Article 43)

1. It is clear that periodic reports 2. The periodic report does not become generally constitute a more or less definitive until signed by the head of important factor each time the official the administration. Accordingly the concerned is considered for any fact that the official concerned has in

promotion or takes part in accordance with the procedure competitions within the meaning of prescribed for the drawing up of Article 29 of the Staff Regulations. periodic reports had knowledge of the Although it is true that these reports content before that date is not capable are made up of assessments which it of causing the period for lodging an is difficult for a court to review, this appeal to start to run or of shortening fact does not prevent their adoption it.

from being vitiated for irregularity of 3. Periodic reports do not come within form and procedure or patent error the category of decisions within the and misuse of discretionary powers — meaning of Article 25 of the Staff defects capable of making them Regulations but are governed by the unlawful. Accordingly an application special provisions laid down by or by to the Court against a periodic report virtue of Article 43 of the Staff is admissible. Regulations.

In Case 122/75

European PARLIAMENT, represented by its Secretary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Alex Bonn, 22 Côte d'Eich,

defendant,

Application for annulment of a periodic report,

THE COURT (First Chamber)

composed of: A. M. Donner, President, A. O'Keeffe and G. Bosco, Judges,

Advocate-General: G. Reischl

the service were described as 'very good' II — Conclusions of the parties and the general assessment was as follows: 'A very capable official who The applicant claims that the Court performs tasks entrusted to him carefully should: and punctiliously. His ability enables — Rule that this application is him to undertake difficult and sometimes admissible as to form and that it has delicate work which arises in the been made within the prescribed performance of his duties'. period; — Declare the decision rejecting the complaint through official channels, On 5 March 1975 Mr Küster expressed dated 21 October 1975, to be null some reservations in commenting on the and void; last report. — Annul the periodic report for 1973-1974 and rule that it must be On 17 June 1975 Mr Küster lodged a withdrawn from the applicant's complaint under Article 90 (2) of the personal file; Staff Regulations against the implied — Order the European Parliament to decision rejecting his request that his pay the applicant one franc by way of periodic report for 1973 and 1974 be damages; amended in accordance with the — Order the European Parliament to comments which he had made on 5 pay the costs. March 1975. The defendant claims that the Court should: He requested that the entries 'Very good' — Rule that the action is inadmissible; given for his ability and efficiency should Or alternatively unfounded; be replaced by 'Excellent' and that — Dismiss it; the general assessment should be — Make an order as to costs in supplemented by the statement that he accordance with the relative deserved promotion or that he was provisions. capable of performing duties of a higher grade. III — Submissions and argu­ This complaint was rejected by letter ments of the parties dated 21 October 1975 on the one hand as inadmissible for being out of time and A — Admissibility on the other, so far as concerns the The defendant considers the action matters raised in the action, as inadmissible on several grounds: unfounded. (a) The periodic report cannot be regarded as an act which may be On 16 December 1975 Mr Küster contested within the meaning of brought the present action against the Article 90 (2) of the Staff Regulations. express rejection of his complaint. To be contested by means of a complaint a measure must amount to a decision. The periodic report is an The written procedure followed the normal course. assessment and the right of the official in question to contest it is limited to his power to make possible After hearing the report of the objections to the assessment made. Judge-Rapporteur and the views of the (b) The periodic report cannot by its very Advocate-General the Court (First nature be the subject of a legal action. Chamber) decided to open the oral In proceedings before the Court an procedure without a preparatory inquiry. official can only avail himself of an

complaint through official channels contested act in the present case is was not lodged within the period of the decision taken by the appointing three months. The action before the authority, namely the express Court of Justice does not therefore rejection of the complaint contained satisfy the conditions laid down by in the letter of 21 October 1975 prior Article 91 (2) of the Staff Regulations. to the initiation of legal proceedings. Although it is true that the report in (b) If the periodic report could not be question was drawn up and submitted the subject of an action before the to the applicant before it was signed Court on the grounds outlined by the by the Secretary-General, it is the defendant, the question must be notification of the report to the asked why the Court annuls person concerned which makes the appointments when it cannot put period for lodging a complaint start itself in the shoes of the appointing to run. authority and take a new decision. (e) Even assuming that a periodic report (c) The defendant's view is quite without may in principle be regarded as foundation and entirely unrealistic; it capable of adversely affecting an is contrary to all experience and official, this could not be the position would deprive officials of the in the present case: the remarks and necessary legal protection. It is the 'general assessment' must be obvious that a bad report is capable regarded as a first-class assessment. of putting an end to a career and not With regard to the comparison of the only when it relates to a promotion report in question with those for within the meaning of Article 45 of previous periods, the defendant the Staff Regulations but also when it observes that there is a new practice is a question of taking part in a to the effect that the remark competition. 'Excellent' is to be awarded (d) The period for lodging a complaint henceforth only in exceptional cases. through official channels should start to run in the present case from the The applicant challenges these argu­ date on which the report became ments on the following grounds: definitive. According to the aforesaid (a) A positive act open to challenge memorandum, 'Periodic reports made according to Article 90 (2) need not by Directors-General are however

definitive only after being signed by Parliament [1975] ECR 353 that in the the Secretary-General'. Since this letter from the Director of Personnel of signature was appended on 17 April, 15 October 1973 he was recognized as fit the complaint through official for promotion. The Director-General channels was thus lodged within the even stressed the applicant's prescribed period. In the reply the collaboration over a lengthy period and applicant refers to the corre stated that the Directorate-General spondence between the parties with concerned had no objection to regard to the report in question (vide promotion. Annexes 1 to 3): — The letter from Mr Friedel, Head The defendant contests any suggestion of of the Personnel Management misuse of powers. The report in question

Directors-General had agreed not to use Until 16 April 1975 there was thus the term 'Excellent' in future save in no definitive report. exceptional cases and to assess the greatest efficiency with the term 'Very The defendant considers these arguments good'. The applicant could therefore not irrelevant. The documents produced complain of being given the latter simply show that the observations of the assessment and in any event he had not applicant on his report were duly taken been unfavourably treated in relation to into account by the administration. other members of the staff.

question is contested on two grounds: Personnel previously recognized that the applicant qualified for promotion, he was (a) Misuse of powers simply confirming that the conditions under Article 45 of the Staff Regulations The applicant considers that the special were satisfied from the point of view of circumstances of the report permit the minimum period in the grade. conclusion that there has been a misuse of powers. The years covered by this The applicant in reply says that if there report are those during which the was an agreement on the use of entries in applicant's work was highly praised by reports such a 'general provisions for

JUDGMENT OF 25. 11. 1976 — CASE 122/75

Finally claim that in the past the suggestion of this highly prejudicial report causes him promotion referred only to the minimum serious non-material damage. The amount of seniority. The applicant applicant claims that the appointing stresses that for years he has not only authority should pay him one franc as been recognized as qualifying for nominal damages. promotion but also expressly recognized as capable of undertaking more The defendant maintains that since the responsible duties. periodic report does not constitute a decision, Article 25 of the Staff In the rejoinder the defendant observes Regulations does not apply.

made. The last paragraph of Article 25 listing (b) Adverse decision; no reasons given the specific decisions shows clearly the difference between the decisions referred According to the applicant the contested to and the periodic report. In support of assessment is a decision taken by the this argument the defendant refers to authority delegated for this purpose by legal theory (Holtz, Handbuch des the Bureau of the Parliament. Since it is Europäischen Dienstrechts, 1965, Note 1 an adverse decision it ought under the to Article 25) and the case-law of the second paragraph of Article 25 of the Court in Cases 16/64, Rauch v Staff Regulations to have stated the Commission [1965] ECR 135 and Joined reasons on which it was based. The Cases 27 and 30/64, Fonzi v Commission decision rates the applicant's merits [1965] ECR 481. considerably lower than was done

KÜSTER v PARLIAMENT

for communication of the periodic report by a promotion committee report. The definitive report, that is whereas in the present case it is a report to say after signature by the prescribed by the Staff Regulations. Secretary-General, constitutes a true decision. The argument based on the last In the rejoinder the defendant maintains paragraph of Article 25 of the Staff its previous arguments. It adds that the Regulations is not well founded. It was applicant is wilfully confusing Articles 43 obvious that the periodic report could and 25 of the Staff Regulations. Article not be included as one of the measures 43 requires notification of the periodic which must be published. The previous report to give an opportunity for paragraph of Article 25 on the other comment by the official. Article 25 hand relates to any decision relating to a contemplates notification of a decision specific individual which has been taken relating to a specific individual (which is under the Staff Regulations (here Article to be 'communicated in writing') for the 43) and provides for communication at purpose of any appeal. once and for reasons to be stated. It is this latter decision for which reasons The theory put forward by Holtz cannot have to be stated if it adversely affects an frustrate the clear provisions of the Staff official.

Regulations and the implementing Staff Memorandum.

IV — Oral procedure The case-law referred to is not relevant in the present case. At most the case of The parties presented oral argument at Fonzi v Commission simply shows that the hearing on 14 October 1976. the Court cannot substitute its own value-judgment for the assessment of the The Advocate-General delivered his administration. It should also be pointed opinion at the hearing on 11 November out that in that case it was a queston of a 1976.

5 Moreover it is claimed that since the periodic report consists of a series of assessments, the Court cannot, in the nature of things, substitute its own assessments for those of the appointing authority.

6 Finally the Parliament states that the report was notified to the applicant before 5 March 1975 so that his complaint on 17 June was out of time.

7 Since Article 43 of the Staff Regulations provides for the making of a periodic report every two years these are thus mandatory measures which must be communicated to the person concerned.

8 It is clear that these periodic reports generally constitute a more or less important factor each time the official concerned is considered for any promotion or takes part in competitions within the meaning of Article 29 of the Staff Regulations.

9 Although it is true that these reports are made up of assessments which it is difficult for a court to review, this fact does not prevent their adoption from being vitiated for irregularity of form and procedure or patent error and misuse of discretionary power — defects capable of making them unlawful.

10 Accordingly the argument that an application against a periodic report is ipso facto inadmissible cannot be accepted.

is The applicant considers in the first place that the report in question is vitiated for misuse of power and alleges that the less favourable assessments and the absence of any recommendation for promotion is due to the fact that during 1974 he repeatedly made use of the periodic reports for 1969-1970 and 1971-1972 to vindicate in Court his alleged rights to promotion.

16 If the competent authorities, alerted by the use made of the aforementioned reports to the fact that their assessments were capable of giving rise to premature hopes on the part of the applicant, became more careful in formulating their assessments of officials, that is not in itself a misuse of powers, but rather a very understandable amendment of their conduct in the light of experience.

17 Since moreover the defendant had found that in the past assessments of 'Excellent' had become too frequent for them to retain the desired cogency, it agreed no longer to make this entry for 1973-1974 save in exceptional cases and to assess the best efficiency as 'Very good'.

18 This attitude does not deserve censure.

19 The applicant himself admits that the periodic report in question is very eulogistic.

20 In these circumstances the existence of a misuse of powers has not been established.

26 Accordingly the submission is unfounded.

27 The application must therefore be dismissed.

Costs

28 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

29 The applicant has failed in his submissions.

30 However, under the terms of Article 70 of the Rules of Procedure, the costs incurred by the institutions in actions brought by servants of the Communities are to be borne by such institutions.

Donner O'Keeffe Bosco

Delivered in open court in Luxembourg on 25 November 1976.

A. Van Houtte A. M. Donner

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 11 NOVEMBER 1976 1

Mr President, expresses his astonishment at the fact Members of the Court, that he received only 'Very good' for 'Ability' and 'Efficiency' whereas in two The case on which I have to give my previous reports he had received opinion today is concerned with a report 'Excellent' for these. made on the applicant under Article 43 Further, in the general observations the of the Staff Regulations. applicant notes that there is no mention of his suitability for promotion as was the This report on 'ability, efficiency and conduct in the service' relates to the case in the two previous reports. In his view this is all the more astonishing years 1973 and 1974. As provided in since for some eight months during the Article 43 of the Staff Regulations, it was period covered by the report he acted as communicated to the applicant. Since temporary Head of Division. the applicant did not agree with its contents he made observations thereon The Director-General to whom the on 5 March 1975. In them the applicant applicant was responsible made