C-31/76

JUDGMENT OF THE COURT (FIRST CHAMBER) 12 MAY 19771

Margherita Hebrant (née Macevicius) v European Parliament

Case 31/76

1. Officials — Appeals — Periodic reports — Admissibility (Staff Regulations of Officials, Article 91)

2. Officials — Appeals — Period for lodging thereof — Periodic reports — Date of signature by the Head of the Administration — Date on which the period starts to run

(Staff Regulations of Officials, Article 91)

JUDGMENT OF 12. 5. 1977 - CASE 31/76

Bar, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22, Côte d'Eich,

defendant,

Application principally for the annulment of the periodic report on the applicant for the period 1973 to 1974 and for an order that the defendant pay her 1 Flux by way of damages,

THE COURT (First Chamber)

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

MACEVICIUS v PARLIAMENT

On 24 March (a) Ability: Good. 1976, she therefore lodged the present (b) Efficiency: Unsatisfactory — Her application, entered in the Court Register work has not been carried out with a on that same day. sense of responsibility and in several respects has been inadequate. The Court (First Chamber), after hearing (c) Conduct in the service: Unsatisfactory the report of the Judge-Rapporteur and — Has shown insufficient willingness the views of the Advocate-General, to cooperate with her colleagues. decided to open the oral procedure without any preparatory inquiry.

Thus: with the President of the European — On 9 October 1974, offering to send Parliament concerning the periodic her on mission to study cybernetics, report on the applicant for the period he wrote: 'I envisage to give you the 1973 to 1974 which was drawn up by her Director General; opportunity of employing your extremely valuable talents and (b) Rule that the report is itself void and of no effect and order it to be experience elsewhere in the service of the Library on an important and withdrawn from the applicant's file; pressing task.

work'. In the alternative, The report in question was — Take note that the applicant contests communicated to the applicant on 23 the criticisms made of her under

paragraphs (b) and (c) ('Efficiency' and III — Submissions and argu­ 'Conduct in the service') of her ments of the parties periodic report and under the developed in the written heading 'General Report' and that she procedure offers to prove by all legal means and in particular by the hearing of (a) Admissibility witnesses that these criticisms are without foundation; The applicant puts forward the following — In that case, make all the necessary arguments concerning admissibility: orders. — The report at issue could adversely affect the applicant's career; — The contested measure is indeed a (The applicant has not given details of decision, namely the implied her offer of proof). decision to reject the applicant's complaint, despite the obligation to The defendant claims that the Court protect officials laid down by Article should: 24 of the Staff Regulations; (a) Rule that the application is — A periodic report can give rise to an inadmissible; application to the Court; any (b) Alternatively, rule that it is annulment consequent upon unfounded; proceedings before the Court results (c) Reject the offer of proof as in the file's being returned to the inadmissible and dismiss the competent authority, and the Court application; does not substitute its discretion for (d) Make an order as to costs in that of that authority. accordance with the provisions applicable. The Parliament, for its part, puts forward the following arguments concerning admissibility: In her reply, the applicant contends that — Under Article 90 (2) of the Staff the Court should, if it upholds the Regulations, the positive act which opinion of the European Parliament set out in its defence to the effect that the may be contested must be a decision; however, the report laid down by periodic report cannot be contested when it is not definitive and when the Article 43 of the Staff Regulations is a periodic report, that is to say an signature of the Secretary General does assessment; the implied decision of not appear on it: rejection constitutes the outcome of (a) Rule unequivocally that no periodic report exists; the complaint through official channels, and the reference to Article (b) Order the Parliament to bear all the costs of the action; 24 of the Staff Regulations is irrelevant; (c) Rule that the Parliament shall pay the — Applications to the Court by officials applicant 1 Flux by way of damages are, in principle, applications for a in respect of serious misconduct on the part of the defendant; declaration as to legality and for annulment, whereas the final (d) Rule that the Court censures the objective of an application against a unprincipled failure to act on the part of the defendant. periodic report is the drawing-up of another report; a decision of annulment may only be made on the In its rejoinder, the European Parliament ground of illegality and, upon contends that the Court should: reference back to the authority, the — Reject the applicant's further latter must comply with the conclusions. judgment delivered; such cannot be

was not lodged within the period of complaint through official channels was three months laid down by Article 90 lodged, as also at the date on which the (2) of the Staff Regulations; therefore application was lodged, the periodic the application does not satisfy the report had still not been signed by the conditions laid down by Article 91 Secretary General. It was only signed on (2); 19 October 1976. Therefore there is no — The report did not, according to the question that the application was lodged applicant, bear the signature of the out of time. Secretary General at the time when it was communicated to her, and since, (b) Substance of the case still according to her, it was not definitive, it could not, as such, be contested. The applicant considers that the illegality of the report arises from the fact The applicant, in her reply, opposes the that it was drawn up by the very person arguments based on inadmissibility against whom she had lodged her advanced by the defendant, doing so as complaint through official channels in follows: Case 66/75 mentioned above. The person — The Directors General, on whom the making the report thus makes himself Bureau of the Parliament has judge in his own cause. conferred the 'power to draw up reports', are in so doing performing It appears from the contradictions, acts of 'appraisal tantamount to a mentioned in the statement of the facts, decision'; between the report, which claims that — Accordingly, the application has been she is inefficient, and the important tasks validly brought before the Court, and which continue to be entrusted to her, the fact that the Court must refer the that there has also been a misuse of case back to the competent authority powers. does not affect the matter at all; — Any official is, at any moment in his The periodic report communicated to the career, in a precise legal situation applicant does not bear the signature of which is affected by any periodic the Secretary General, as required by the report; last paragraph of Article 2 of Document — If the report was not definitive PE 16.808 (Staff Memo No 66/19 of 21 (absence of the signature of the December 1966).

The defendant replies that the objectivity fact missing, the Court should declare and the impartiality of the person that there is no periodic report for the making the report cannot be lightly period at issue. called in question. The latter is neither judge nor witness. The matters that the applicant offers to prove are facts which may be checked The staff report cannot be affected by a objectively and are capable of review by misuse of powers. If a person making a the Court. report were to allow himself intentionally to give an official marks below the level As for the claim for damages, there is no he deserved, the result would merely be proof of an examination of the complaint an objectively incorrect assessment, through official channels. which could always be put right by the official in his observations annexed to The Parliament states in its rejoinder the report. that the fact that the periodic report for Moreover, it is not for the report to deal the period at issue, 1973 to 1974, with the duties performed by the official, retained the mark 'Good' under the but to appraise the way in which the criterion 'Ability', proves that the person latter carries them out. making the report remained impartial. As for the request that the Parliament On the other hand, the applicant's should be ordered to pay 1 Flux by way efficiency and her conduct in the service of damages, based on the alleged were affected by her open opposition to wrongful act or omission of which it was her Director General. guilty 'in not affording the applicant the assistance to which she was entitled on the basis of Article 24 of the Staff The applicant, represented by Mr Biel, Advocate of the Luxembourg Bar, and Regulations', it is unfounded. The the Parliament, represented by its Parliament made the necessary Secretary General, Mr Nord, acting as investigations further to the complaint Agent, and by Mr Bonn, Advocate of the through official channels of 7 October Luxembourg Bar, presented oral 1975. The question arises, in its opinion, argument at the hearing on 16 December whether it ought not, on the contrary, to 1976. protect the applicant's superiors against her attacks. The Advocate-General delivered his The applicant replies that if the opinion at the hearing on 30 March signature of the Secretary General was in 1977.

Admissibility

5 The defendant alleges first of all that a periodic report cannot be an act which may be contested under Article 90 (2) of the Staff Regulations because it is only a purely internal act the remedies for which lie solely in the right of the person affected to add any objections and observations.

6 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.

7 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.

8 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 lack of authority, irregularity of form and procedure or patent error and misuse of discretionary power — defects capable of making them unlawful.

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

14 The application is therefore admissible.

The substance of the case

15 The applicant considers that the report is illegal first of all because it was drawn up by the very person against whom she had already submitted her complaint through official channels in a previous case (Case 66/75, [1976] ECR 593).

16 She claims that in so doing, the Director General is making himself judge and witness in his own cause.

17 The applicant has put forward no factor which is capable of proving that the person making the report was not impartial and sought by his assessments adversely to affect the applicant's career.

18 On the contrary it appears from the file that the person concerned has shown that at least her 'conduct' left much to be desired through her refusal to cooperate with the measures put in hand for the purposes of the reorganization of the service.

24 A periodic report must be drawn up in respect of every two-year period and signed by the Secretary General.

25 The explanations supplied by the defendant concerning inter alia the special vicissitudes arising from the lodging of two successive applications overlapping in time are however convincing and enable the Court to acknowledge that the delay of the Secretary General of the Parliament in countersigning is explained by his concern to obtain from the Director General a reply to the observations of the applicant.

26 Therefore the periodic report is not vitiated by the fact that the signature of the Secretary General was belatedly given.

27 The application must therefore be dismissed as unfounded.

Costs

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

1. Dismisses the application as unfounded;

2. Orders the parties to bear their own costs.

Donner O'Keeffe Bosco

Delivered in open court in Luxembourg on 12 May 1977.

A. Van Houtte A. M. Donner

Registrar President of the First Chamber