C-86/77

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 12 OCTOBER 1978 1

Kuno Ditterich v Commission of the European Communities

Сasе 86/77

1. Officials — Individual decisions — Notification — Method (Staff Regulations of Officials, second paragraph ofArt. 25)

2. Officials — Transfer — Decision adversely affecting an official — Statements of grounds (Staff Regulations of Officials, second paragraph ofArt. 25)

1. The second paragraph of Article 25 2. A decision to transfer an official is to of the Staff Regulations, by be deemed to state the grounds on providing that any decision relating which it is based within the meaning to a specific individual shall at once of the second paragraph of Article 25 be communicated in writing to the of the Staff Regulations if the staff official concerned, does not lay memoranda in support thereof have down the method by which that decision is to be communicated. Such been brought to the notice of the communication is deemed to have person concerned, clearly informed him of the reasons behind the said taken place when the decision in fan reaches the official concerned, decision and include all the essential whatever the means whereby it is factors which are sufficient for the transmitted. purposes of a review by the Court.

defendant,

APPLICATION for the annulment:

— of the list of porposals for promotion from Grade A 5 to Grade A 4 for 1976;

— of the Commission Decision of 20 January 1977 transferring the applicant,

THE COURT (First Chamber)

composed of: J. Mertens de Wilman, President, A. O'Keeffe and G. Bosco, Judges,

Regulations of Officials, objecting that particular with the letter sent by the Commission was guilty, in putting Mr Bishop to the Commission on forward those proposals, of discrimi­ the subject of Mr Ditterich, no nation and was in breach of Articles 43 copy of which is to be found in the and 45 of the Staff Regulations. The file; applicant's name was also absent from (b) Take formal note that the the list of proposals for promotion for 1977. applicant offers to prove the discriminatory nature of the list of 2. Furthermore, by decision of the proposals for promotion inasmuch as the said list takes no account of: Commission of 20 January 1977, of which he was informed on 11 February — Qualifications for promotion; 1977, the applicant was transferred from — Seniority in the service and the Natural and Physical Sciences grade; or Department, Chemistry Division, to the Computers, Mathematics and Systems — Age; Analysis Department, as from 1 January (c) As regards the ommission of the 1977. applicant from the list of proposal On 1 March 1977 the applicant sent a for promotion : memorandum to the Site Director at — Declare that the implied Ispra in connexion with this matter. He rejection of the complaint of 8 sent a copy of that memorandum on 23 December 1976 is illegal March 1977 to the Secretary General of the Commission, in connexion with his inasmuch as it did not comply with the applicant's claims and complaint of 8 December 1976. On 27 June 1977 the Site Director sent a reply. consequently declare that it is void and of no effect;

1. As to the first head of the application proposals for promotion. Moreover, the applicant's personal file The applicant states that in his contained, in place of his own application he is principally concerned personal reports, those of an official to prompt a review of the irregular whose name is "almost nature with regard to Article 45 of the homonymous", a Mr O. D. who, Staff Regulations of the omission of his furthermore, is one of those name from the list of promotions for Euratom employees who are "below 1976. average", whereas the applicant is In support of this submission he claims, one of those who are "above inter alia, as follows: average". — Contrary to the provisions of Article — The omission of the applicant's 45 of the Staff Regulations, which name from the list of proposals for require the appointing authority, in promotion cannot be justified by any the case of promotion, to undertake of the criteria which govern the a comparative examination of the choice of candidates eligible for merits of those eligible, that list was promotion. As a result of that drawn up in the present case without omission the applicant's name was the said authority having had the not submitted to the promotion opportunity to undertake such an committee of first instance, which examination and therefore to make worked solely on the basis of the known the reasons for the omission recapitulative list of proposals for or exclusion of the applicant. For promotion of the JRC Establish­ unsuccessful candidates the list in ments and the statements of reasons question therefore constitutes an therefor. unfavourable decision which finds — Furthermore, the removal of the no legal basis in the Staff Regu­ applicant's name from the list in lations. The appointing authority is question was due to a misuse of no longer in a position to examine powers: it cannot be justified the menu of those candidates, given objectively but is to be explained by the "exclusive nature" of the lists to a certain degree of ill feeling which its signature is appended. towards the applicant on the part of — The contested list of promotions is other officials at the institution, such also contrary to Article 45 (I) of the as Mr Bresesti. In this connexion the Staff Regulations because at that Court should order the defendant to time the applicant's personal file, on place on the applicant's personal file the basis of which the comparative a letter sent by Mr Bishop to the examination of the menu was to be Commission with respect to the conducted, was incomplete and even problem of promotion lists, of which misleading Indeed, at the time the the applicant became aware during a

appointing authority, having taken part acted somewhat slowly, it is difficult to understand what can be held in the deliberations of those bodies, has already examined the merits of all the against it. candidates in its capacity as member of Finally, as for the presence of Mr those bodies. It is not required to re­ O. D.'s periodic report (period of examine all candidates, except, possibly, 1971 to 1973) in that file, it could in cases where it intends to depart from have had no influence at all on the the said lists. Indeed, it is at all times at promotion procedure for 1976, since liberty to include on the list which it that report had been withdrawn draws up the names of officials bit from the file in question in 1975. mentioned thereon; this shows that those lists are not of an "exclusive — Moreover, the applicant's statements nature". as to the content of his personal file are not determinative in assessing The defendant also makes the following the regularity of the promotion remarks in particular: procedure in the case in point, since — The absence of the applicant's four identical copies of periodic periodic reports from his personal reports exist in their final form, for file does not render impossible an distribution to the personal file, the examination of his merits for the archives of the Directorate General

purposes of any promotion, since for Personnel, the archives of the the merits of a candidate may Director of the official on whom the always be assessed on the basis of report was made and the latter. The several factors. Director responsible for any proposals for promotion is more — On the other hand, as regards the likely to consult the reports in his report for the period 1969 to 1971 own archives rather than copies the applicant had already received thereof placed on the personal files. complete satisfaction towards the end of 1975: that report should have — Contrary to what the applicant been filed normally. As regards the states, the committees of first and report for the period 1971 to 1973, second instance had at their disposal

all the information necessary to 2. As to the second head of the examine the relative merits of "all" application officials of Grade A 5 eligible for promotion. At the request of a (a) Admissibility member of the committee a clerical The defendant challenges the ad­ officer undertook the production of missibility of the application because its a personal file each time it appeared submission was premature. The necessary to refer thereto. The memorandum of 1 March 1977 applicant's merits were therefore containing the complaint was received duly examined with those of all by the appointing authority on 23 officials eligible for promotion from March 1977 and the applicant could Grade A 5 during 1976. therefore not submit his application — Although the Director responsible before 24 July 1977, but he submitted it for the submission of any proposals on 5 July 1977. for promotion concerning the The applicant's contention that the said applicant in 1975/1976 was not the memorandum is to be understood as author of the report concerning the pan of his complaint of 8 December period 1971 to 1973, he was, 1976 can scarcely be accepted. The however, the reporting officer for subject-matter of the two complaints is the report of 1973 to 1975. different and the artificial link which the applicant seeks to establish between — The letter from Mr Bishop which them therefore runs contrary to the the applicant urges should be provisions of the Staff Regulations. produced forms pan of the internal correspondence exchanged between The applicant believes, on the other the Personnel and Administration hand, that the link established between Division at Ispra and DG DC in the two complaints is not artificial, since Brussels for the purpose of the the two questions concern two aspects investigation of the applicant's of a single case of misuse of powers. complaint prior to his taking legal Those two questions should not proceedings. The applicant is not in therefore be examined separately, in a position to demand production view of the principle of "economy of of any given pan of that procedure". correspondence: the latter is not (b) Substance covered by Article 26 of the Staff Regulations and is not required to The applicant makes the following be placed on the applicant's personal complaints, inter alia: file. Moreover, that letter, which — The transfer decision which he is was written for the purposes of the contesting is, on the one hand, investigation of a complaint irregular because it does not satisfy submitted following the completion the conditions as to "notification" of the promotion procedure for laid down by Article 25 of the Staff 1976, could not have had any effect Regulations. Instead of being on that procedure. notified to him by way of his — The applicant's arguments immediate superior it was in effect concerning his relations with Mr handed to him by a secretary. Bresesti are based on fans which are — Nor, on the other hand, is the said in pan inaccurate and in any event decision in conformity with the unconnected with the promotion above-mentioned article, as no proposals with which this application reasons were given for it. A mere is concerned. stylistic formula could not be said to

be an adequate statement of reasons — The arguments based on the for a decision to transfer a senior relationship between the applicant official. and Mr Bresesti, in support of the view that the decision is a disguised — Finally, the decision was not disciplinary measure and involves a justified by reasons relating to the misuse of powers, are merely interests of the service. On exami­ unsupported allegations devoid of nation it can be seen to be a misuse any relevant evidence. of powers. The very fact that as early as 13 September 1976 Mr Finally, the defendant criticizes the Bresesti had already announced applicant's statements in that, on several the applicant's transfer, in a occasions, the latter, in his application, memorandum which was widely "reserves" the right to produce or circulated, proves that that transfer annex to successive statements a given had been decided with pre­ document. Such an attitude is at meditation and for reasons alien to variance with Article 37 (4) of the Rules the interests of the service. of Procedure, which provides that to every pleading there shall be annexed The defendant contends, on the other the documents relied on in support of it. hand: By means of that "reservation" the applicant is virtually able to raise fresh — That Article 25 of the Staff Regu­ issues in the course of proceedings, lations does not lay down how a which is prohibited by Article 42 (2) of decision is to be communicated to the said Rules of Procedure. the person concerned and, more It is the applicant's opinion that Article particularly, does not necessarily 37 (4) does not require that all the require that it reach him by way of documents relied on in support of the his immediate superior; application should be placed on the file — That the disputed decision was at the time when the proceedings taken for reasons relating to the are commenced, especially as the interests of the service (in effect, production of certain documents is indispensable only if the opposing party relating to the abandonment of the contests the arguments based on those research on which the applicant was documents, and it is always preferable engaged). Such a statement of not to overcharge court files reasons, which is in conformity with unnecessarily. administrative practice, is sufficient and cannot be criticized as being merely "stylistic". Moreover, the IV — Oral procedure applicant could not have been unaware of the reasons for his The parties were heard at the hearing transfer, since this was a problem on 1 June 1978. which had already been brought to The Advocate General delivered his his notice; opinion at the hearing on 13 July 1978.

4 In fact the rules concerning that procedure were not drawn up by the Commission in accordance with the conditions laid down in Article 110 of the Staff Regulations of Officials.

5 The list of proposals in question was drawn up pursuant to the "General Provisions for implementing the Procedure for promoting Staff paid from Research Appropriations", adopted by the Commission on 6 December 1971, as amended by decision of that institution of 9 October 1973.

6 It is common ground that those General Provisions were drawn up by the Commission following consultations with the Staff Committee and after it had obtained the opinion of the Staff Regulations Committee.

7 They thus satisfy the conditions required by Article 110 of the Staff Regu­ lations and have that provision as their legal basis.

8 The amendments made to those Provisions by the decision of the Commission of 9 October 1973 do not in any essential manner affect the

DITTERICH v COMMISSION

14 Paragraph 8 of the Provisions further lays down that the provisional promotion lists drawn up by each promotion committee in each case shall be transmitted to the appointing authority "together with the reasoned reports of the promotion committees and the promotion proposals".

JUDGMENT OF 12. 10. 1978 — CASE 86/77

15 It is clear from the statements made by the Commission that the committees of first and second instance, required to draw up provisional lists of those officials judged to be most deserving of promotion, had at their disposal, inter alia, indexed files setting out the complete career of each official eligible for promotion, tables setting out the present state of the career of each official eligible for promotion in relation to his grade and age, together with the definitive periodic reports for 1971 to 1973 and 1973 to 1975.

16 Moreover, those committees could have had made available to them, at the request of one of their members, the personal file of any official eligible for promotion whenever it appeared necessary to refer thereto.

17 Furthermore, it appears from the recitals of the preamble to the decision of the Director General of the JRC of 19 November 1976 by which he adopted, in his capacity as appointing authority, the definitive list of JRC officials of Grade A 5 judged to be the most deserving of promotion to Grade A 4, that that authority had had the opportunity of consulting the personal files and of examining in particular the periodic reports of all the officials eligible for promotion, and had undertaken a comparative exam­ ination of the merits of those officials.

23 He further claims that the reason for the omission of his name from the promotion list in question is to be found in the hostility shown towards him by certain of his superiors or colleagues.

24 It is not disputed that the note in question was sent by Mr Bishop to the Personnel and Administration Division at Ispra after the applicant had, on 8 December 1976, submitted a complaint through official channels concerning the omission of his name from the promotion list in question, and that it was intended to reinforce the reply by the Commission to that complaint.

25 Since that note could not accordingly have prompted that omission it cannot support the complaint of a misuse of powers as alleged.

26 Nor do the other arguments adduced by the applicant provide adequate evidence for legal purposes that he was the victim of a misuse of powers.

27 For all these reasons the first head of the application appears to be unfounded.

B — The second head of the application

32 The authority to which that complaint was submitted replied by a memorandum of 27 June 1977 stating the reasons for the transfer decision in question.

33 In view of these facts the present application, received at the Court Registry on 5 July 1977, must be held to be admissible as to its second head.

Substance

34 The applicant maintains that the decision in dispute is irregular with respect to Article 25 of the Staff Regulations because it was not notified to him through his immediate superior but was handed to him by a secretary.

35 Further, he alleges that the said decision was not in conformity with that article because it did not contain a statement of reasons.

36 Finally, it is said not to have been justified by reasons relating to the interests of the service but to have involved a misuse of powers with respect to him due to the allegedly strained personal relations between himself and Mr Bresesti.

42 Reasons were therefore stated for the said decision of which the applicant could not have been in ignorance and which convey all the essential factors which guided the administration in its decision and which are therefore sufficient for the purposes of a review by the Court.

43 In view of that statement of reasons the arguments adduced by the applicant in support of his complaint of a misuse of powers contain no factor such as to support the view that the transfer in question was effected for reasons alien to the interests of the service.

44 For all these reasons the second head of the application also appears to be unfounded.

Costs

43 Pursuant to the first subparagraph of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

OPINION OF M. WARNER — CASE 86/77

Mertens de Wilmars O'Keeffе Bosco

Delivered in open court in Luxembourg on 12 October 1978.

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 13 JULY 1978

My Lords, First he claims that a list, from which The applicant in this case, Mr Kuno his name was omitted, of officiais Ditterich, is an official of Grade A 5 considered to be most deserving of who belongs to the scientific and promotion to Grade A 4 should be technical service of Euratom. He is by declared void. I shall call that "Claim profession an engineer and has at all A". Second he claims that a Decision material times been employed at the lspra Establishment of the Joint dated 20 January 1977 transferring him, Research Centre (the "JRC"). against his wish, from one Department In the present action he makes two to another at lspra should be declared distinct claims against the Commission. void. I shall call that "Claim B".