C-6/79

T H E COURT (Second Chamber)

composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

GRASSI v COUNCIL

JUDGMENT

The facts, the course of procedure, the The report by the second reporting conclusions and the submissions and officer was made on 15 March 1978. arguments of the parties may be Mr Grassi signed it on 21 March, summarized as follows: observing in accordance with Article 8 (5) of the Decision of 18 October 1977 that he intended to make a complaint under Article 90 of the Staff Regulations. 1 — Facts That complaint was made by a document dated 6 June 1978 and recorded at the On 1 July 1963 Daniele Grassi was General Secretariat of the Council on appointed reviser in Grade L/A 4 in 9 June. The complaint sought the partial the Italian Division of the language annulment of the periodic report by the department of the General Secretariat of second reporting officer of 15 March the Council. 1978 and in so far as was necessary the partial annulment of the periodic report by the first reporting officer of 16 Pursuant to Article 43 of the Staff Regu- February 1977 and asked that a fresh lations and the Council Decision of 18 periodic report should be drawn up. At October 1977 laying down the general issue were the description of the duties, provisions for implementing that article, the detailed assessment of the ability and the report on the ability, efficiency and efficiency in the service and the general conduct in the service of Mr Grassi was assessment. drawn up for the period from 1 November 1975 to 31 October 1977 by the first reporting officer on 16 February On 14 June 1978 the Secretary General 1978 and forwarded to Mr Grassi on of the Council submitted Mr Grassi's 17 February. complaint to the Select Committee of the Reports Committee pursuant to Articles 9 (b) and 11 of the Decision of 18 On 21 February 1978 Mr Grassi, in October 1977. On 13 July 1978 the accordance with Article 7 (1) of the Select Committee gave its opinion and Council Decision of 18 October 1977, Mr Grassi was informed of it on 17 July. made observations on that report and According to that opinion the report on asked for it to be revised. Mr Grassi could not be regarded "as being drawn up in an entirely satis- factory manner". The first reporting officer adhered to his report and Mr Grassi then asked on 2 March 1978 for its revision by a On 28 July 1978 the second reporting second reporting officer in accordance officer made an amended report taking with Article 8 (2) of the decision of 18 account of the observations of the Select October 1977. Committee of the Reports Committee.

On 5 September 1978 the Secretary On 28 November 1978 the Select General of the Council forwarded that Committee of the Reports Committee report to Mr Grassi pointing out that if gave its opinion that Mr Grassi's case he could not accept it it was open to him should be submitted to the Reports to make a fresh complaint. Committee. As a result when the Secretary General forwarded to Mr Grassi on 4 December 1978 a copy of On 18 September 1978 Mr Grassi the Select Committee's opinion he informed the Secretary General that he informed him that he had decided to put could neither accept the amended report the complaint to the Reports Committee. of the second reporting officer nor make a fresh complaint. Article 11 (4) of the Decision of 18 October 1977 should be Since Mr Grassi considered that the applied. That provided as follows: periodic report as amended by the second reporting officer had been withdrawn and that at the expiry of four Depending on the opinion given by months from the making of the the Select Committee the Appointing complaint the latter had by implication Authority shall decide : been rejected, he brought an action registered as Case 6/79 before the Court on 5 January 1979. (a) either to refer the matter to the Reports Committee, in which case the procedure shall continue in The Reports Committee, to which Mr accordance with Article 10 (2) to (6); Grassi's complaint of 6 June 1978 was submitted, gave its opinion on 15 February 1979. It found that the (b) or not to refer the matter to the description of the duties in the contested Reports Committee, which decision periodic reports could not seriously be shall be communicated to the official regarded as adversely affecting Mr who is the subject of the report and Grassi, but that as regards his ability, the report drawn up by the second conduct in the service and general reporting officer in accordance with assessment certain amendments appeared Article 8 (4) shall be transmitted to necessary. the official who is the subject of the report and shall become final, thus bringing to an end the complaints The second reporting officer amended procedure. his report on 2 March 1979 and proceeded in accordance with Article 10 (4) of the Council Decision of 18 October 1977 to make the final report On 24 October 1978 the Secretary "following the opinion of the Reports General in answer to Mr Grassi said that Committee in so far as he shared it". while he did not share Mr Grassi's The report was confirmed by the opinion that the report made by the Secretary General of the Council as second reporting officer could be Appointing Authority and forwarded to amended only after the the Reports Mr Grassi on 20 March 1979. Committee had been consulted and had delivered its opinion, he had decided to put Mr Grassi's complaint to that Mr Grassi countersigned the report on committee on the basis of the first 29 March 1979 with reservations. On 20 periodic report which had not been June 1979 he brought a fresh action, amended. Case 97/79, against that report.

In Case 97/79, commenced by application dated 20 June 1979, the I I I — C o n c l u s i o n s of the p a r t i e s defendant Council pursuant to Article 91 (1) of the Rules of Procedure applied to the Court in a separate document lodged The applicant in the final version of his on 23 July 1979 for a preliminary conclusions, brought up to date at the decision on the admissibility of the request of the Court, claims that the action and to declare it inadmissible. In a Court should: document lodged on 19 September 1979 the applicant in the main action made his observations on the objection raised by (a) Declare the applications admissible; the Council. By order dated 16 October 1979 the Court (Second Chamber) (b) Declare that the periodic report of decided to reserve its decision for the the second reporting officer dated final judgment and to reserve the costs. 2 March 1979 relating to the period from 1 November 1975 to 31 In accordance with the application made October 1977 with which Case by the applicant and in spite of an 97/79 is concerned implies the objection by the Council which main- withdrawal of the periodic report by tained there was no connexion between the second reporting officer dated 15 the two cases, the Court (Second March 1978 relating to the same Chamber), by order dated 16 November period, with which Case 6/79 is 1979, decided pursuant to Article 43 of concerned; the Rules of Procedure to join Cases 6/79 and 97/79 for the purposes of the (c) Consequently find that pending the oral procedure and judgment and to proceedings Case 6/79 has lost its reserve the costs. purpose and order the defendant to pay the costs of that action; Subsequently the written procedure in Case 97/79 followed the normal course. (d) Annul certain references or assess- ments relating to the description of the main duties and the applicant's On hearing the report of the Judge- conduct in the service together with Rapporteur and the views of the certain concluding observations in Advocate General the Court (Second the periodic report of 2 March 1979 Chamber) decided to open the oral by the second reporting officer; procedure without any preparatory inquiry. Nevertheless it asked the applicant to bring his conclusions up to (e) Annul in so far as in necessary date and to state more precisely the certain references or assessments in matters in the disputed periodic report the periodic report of 16 February which he was seeking to have annulled. 1978 by the first reporting officer;

IV — S u b m i s s i o n s and a r g u m e n t s of the p a r t i e s d u r i n g the written procedure (c) It is beyond dispute that the matter was still being dealt with through official channels prior to the commencement of A — Admissibility proceedings when the applicant brought his action. Such internal procedure is included among the steps which Case 6/79 according to the case-law of the Court are intended to allow the administration The Council considers that although the to deal with requests internally and thus action satisfies the conditions laid down perhaps avoid legal proceedings. If it had

GRASSI v COUNCIL

(f) As for the "fresh matter" The conditions under which proceedings constituted by the forwarding to the may be brought before the Court by an applicant on 20 March 1979 of the official are laid down by Articles 90 and periodic report amended by the second 91 of the Staff Regulations and no reporting officer on 2 March, it should others. Since those conditions have been be observed that the new report is not a observed in the present case, which is not document confirming the first and that denied by the Council, the action is by implication it necessarily involves the admissible.

JUDGMENT OF 3. 7. 1980 — JOINED CASES 6 AND 97/79

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the special circumstances of the case is a (e) The order of the Court (Second formal condition to be satisfied before Chamber) of 16 November 1979 joining the matter may be brought to the Court. the two actions cannot be cited outside its proper context to draw conclusions on matters which the Court itself has reserved for the final judgment. (c) The phrase "thus bringing to an end the complaints procedure", used by the Secretary General of the Council in his letter of 20 March 1979 simply (f) There is no contradiction in the adopts the wording of Article 11 (4) of arguments put forward by the Council the Council Decision of 18 October on the question of admissibility in the 1977. It was for the addressee of that two cases. The matters which occurred letter to check whether the substantive after the second action was brought fully and formal conditions laid down by the justified the validity of the Council's Staff Regulations for bringing an action case. were fulfilled.

The second action was, like the first, At issue in the present case is the failure premature because it was brought to make a complaint prior to bringing an without waiting for the prior conclusion action as required by the Staff Regu- of the steps being taken through official lations. channels. The objection that it was out of time was put forward only to show the impossibility of regarding the complaint of 6 June 1978 to be the (d) The second periodic report by the relevant prior complaint to the second reporting officer of 2 March Appointing Authority. 1979 does not simply confirm the first but is a fresh report.

(a) In his letter of 20 March 1979 the Secretary General of the Council told the applicant that he was confirming the (d) Against the argument that the periodic report of 2 March which he was applicant's complaint of 6 June 1978 was forwarding to him "thus bringing to an directed against a different measure from end the complaints procedure". The that with which the action is concerned applicant therefore no longer had to it must be said that the measures relate make a complaint but to bring an action. to the same subject-matter, namely the In any event it would be contrary to report on the applicant for the period natural justice and the principles of legal from 1 November 1975 to 31 October certainty and the protection of legitimate 1977 and that the second periodic report expectation to censure the applicant for by the second reporting officer is put having followed the procedure which forward to the Council itself as was required — immediate application to concluding the complaints procedure. the Court without a new complaint — since the Appointing Authority itself regarded the contested measure as bringing the complaints procedure to an (e) In its order of 6 November 1979 end. the Court (Second Chamber) gave the following reason for joining Cases 6/79 and 97/79: (b) It follows from-Articles 10, 11 and 12 of the Council Decision of 18 October 1977 that the final periodic The two actions relate to the same report in respect of which proceedings periodic report on the same official for may be brought is the report which the same period and by the same brings the complaints procedure to an reporting officers. The amendments end. Therefore the action can and must made to certain expressions used in the be brought without a fresh complaint first version of the report are not of such since by definition the condition an extent as to affect its identity. provided for in the first indent of Article 91 (2) of the Staff Regulations is satisfied. A complaint upon a complaint That finding is confirmation that the has obviously no sense. action did not have to be preceded by a fresh complaint since the two periodic reports of 15 March 1978 and 2 March (c) Carried to the extreme the Council's 1979 in reality constitute two versions of case would mean that an action could the same report.

(g) The objection that the complaint of The applicant challenges the description 6 June 1978 is out of time cannot be of the main duties he has performed, the accepted. assessment of his conduct in the service and certain concluding remarks both in the periodic report by the second reporting officer of 2 March 1979 and in Since it is recognized that there were no the periodic report by the first reporting grounds for a fresh complaint it must be officer of 16 February 1978. He alleges found, pursuant to Article 91 (3) of the that those matters in the two reports Staff Regulations, that the actions was infringe Article 43 of the Staff Regu- brought within three months of lations and the rule to the effect that notification of the measure which the special praise or criticism must be Council puts forward itself as con- supported as far as possible by specific cluding the complaints procedure and facts; further there is an infringement of constituting, in other words, the answer the rules and principles to the effect that to the complaint of 6 June 1978. every administrative measure must state the grounds on which it is based and that the latter may not be vitiated by error of law or fact; and finally there is a breach (h) The arguments of the Council are of the principle of equality together with not only inaccurate in themselves but ultra vires acts and wrongful exercise of self-contradictory. In particular there is a discretion by the administration. contradiction between the arguments put forward against the admissibility of Case 6/79 as being premature and those put forward against the admissibility of Case The Council observes that according to 97/79 as being out of time. the well-established case-law of the Court of Justice the assessment of an official's capacity in his work is for the administration and it is not for the Court to judge whether it is well founded. (i) Very much as a secondary point, in Review by the Court of matters of the unlikely event of the Court's taking assessment in a periodic report is very

The fact that during a single mission lasting three days he did certain The applicant observes that the two translations is hardly significant in the periodic reports in question have context of a periodic report covering a "acceptable" ("sufficiente") for his period of two years. There was no relations with his superiors and mention previously of such occasional colleagues. That description is parti- tasks. Although they mentioned such cularly unfavourable since all the other an insignificant matter, the reporting revisers of the Italian Division were officers had on the other hand not found maked "very good". Accordingly reasons it necessary to state that the applicant sufficient in law should have been given had on the same occasion directed the for the comment on the applicant and whole language group and that for a that was in no way done here. year and a half together with a younger reviser he had directed the ACP Section of the Italian Division. The Council considers that the entry "acceptable" is not particularly un- favourable either in itself or in compari- The Council considers that the fact of son with previous observations and mentioning that the applicant had also consequently does not require any sup- done certain translations on mission can- porting evidence contrary to the not be interpreted as belittling him. It assessment "has shortcomings" which was simply included for the sake of follows it in the Council's Guide to Staff completeness. Reports.

The other revisers also did translations and the new reports relating to the years The nature of a report is to be evaluated 1977/78 mention the fact, where appro- on its own, not in relation to the reports priate. on other officials. In any event the

(a) Those assessments, which are parti- cularly unfavourable, have not been sufficiently supported in law, which is equivalent to there being no grounds stated for them: no answer has been (b) The fact that the applicant remains given to the observations made in respect unaware of the reasons for the negative of them by the applicant nor has any assessment on him cannot be justified by explanation been furnished as to why the observing that the Court cannot sub- incidents to which reference is made stitute its assessment for that of the were the consequence and the sole administrative authority. To adopt that consequence of his behaviour. view would mean surrendering all review of legality whether it be confined to pro- cedural irregularities, manifest error of fact or law in the statement of reasons, including their relevance, and misuse of The applicant was justified in asking powers. The Court does not know why what attitudes were in question and in the applicant's superiors consider that he respect of what matters or opinions. It alone is responsible for the incidents put was essential for an answer to be given if to his charge. It is therefore unable to there was to be a statement of reasons. carry out its review of legality. It must be Moreover intransigence in a person's inferred that no lawfully admissible attitude can be objected to only if it reasons are stated for the measures in reveals itself in respect of acts or dispute. opinions which do not provide a jus- tification for it.

(c) The Appointing Authority was Regarding the incidents cited against the expressly asked by the applicant's applicant a number of established facts superiors to rule on the incidents alleged

(b) In fact the Appointing Authority was required to give a ruling only on the (d) The incidents alleged against the second of the matters in question. applicant are wrongly attributed to his alleged rigid attitude: he was not at the origin of those incidents and it would be obviously wrong to hold him solely In carrying out their task the reporting responsible for them. officers have to make assessments, with knowledge of the facts, on the ability and conduct in the service of the official upon whom report is made. The fact that (e) The unfavourable assessments on the report contains assessments by two the applicant are to be attributed to reporting officers is a guarantee for the animosity displayed in various ways since official. Moreover the assessment made he brought a previous action before the by the two reporting officers in the Court of Justice (Case 188/73 Grassi v 1975/77 report regarding the applicant's Council[1974] ECR 1099). conduct in the service is not far removed in substance from the assessments made by his superiors in previous reports. The Council considers the objections put forward by the applicant to be unfounded. (c) The applicant does not challenge the substantial correctness of the facts alleged against him. He attempts to deny (a) Both according to the case-law of the correctness of the deductions made the Court and the Council Decision of therefrom in the assessment contained in 18 October 1977 there is no obligation the periodic reports and in particular as to state reasons in periodic reports save regards the ascribing of those facts to his in extreme cases. Moreover it must be "rigid personality". observed that a reporting officer has not only the right but also the duty to mention in the periodic report general attitudes of an official when they find The general assessment objected to by specific expression and have negative the applicant does not say that his repercussions on official relationships. rigidity of attitude always leads in itself to regrettable incidents. It means that in certain circumstances his reaction to the The fact that the Appointing Authority problems which he encounters with his does not make a ruling upon incidents colleagues and superiors may be violent

2 The report by the first reporting officer, the Head of the first division of the language department, was drawn up on 16 February 1978 and forwarded to the applicant who on 21 February made a number of observations and requested its amendment.

3 The report by the second reporting officer, Director of Operations and Translation, was drawn up on 15 March 1978 and forwarded to the applicant who on 21 March again made objections to the assessments by the second reporting officer and gave notice of his intention to make a complaint under Article 90 of the Staff Regulations. That complaint was submitted on 9 June 1978 to the Secretary General of the Council.

JUDGMENT OF 3. 7. 1980 — JOINED CASES 6 AND 97/79

4 In view of that complaint and pursuant to the Council Decision of 18 October 1977 laying down the General Provisions for the application of Article 43 of the. Staff Regulations the Secretary General put the matter to the Reports Committee whose intervention is provided for by that decision where an official does not accept a periodic report on him. On 13 July 1978 the Select Committee of that committee gave an opinion which was forwarded to the applicant.

5 Following that opinion the second reporting officer on 28 July 1978 amended the wording of his assessment, in particular upon an issue which had provoked particularly sharp criticism from the applicant. The report so amended was forwarded to the applicant on 5 September 1978 by the Secretary General. The applicant refused to accept the amended report and the Secretary General then decided on 24 October 1978 to submit the matter to the full Reports Committee.

10 By order dated 16 November 1979 the Court ordered that the two actions be joined.

11 It must be observed that the parties agree in treating the joined actions as concerning the final periodic report after the amendments made by the second reporting officer to his assessment on 2 March 1979 following the observations of the Reports Committee. It is therefore unnecessary to give a decision on the complaints made by the applicant in respect of the first version of the periodic report in so far as it does not coincide with the final report.

Admissibility

12 The Council challenges the admissibility of both the first and second actions. The submission of inadmissibility against the first action is mainly based on the fact that it was premature since the application brought it before the internal procedure provided for by the Council Decision of 18 October 1977 was exhausted. The Council's objections with regard to the second action are mainly based on the fact that there was no prior complaint to the Appointing Authority in accordance with Article 90 (2) of the Staff Regulations.

1 3 Haying regard to the fact that the actions concern the final version of the periodic report it is necessary first to consider the admissibility of Case 97/79.

14 It is apparent from the application lodged on 20 June 1979 that the applicant intended to challenge the periodic report which became final as a result of the note from the Secretary General on 20 March 1979.

Substance

17 After elimination of the criticism directed specifically against certain aspects of the first version of the periodic report the applicant persists as regards the final periodic report with three complaints regarding the description of his duties, the assessment of his conduct in the service and certain observations coming under the heading "General Assessment".

18 Before considering those complaints it is well to specify the nature of periodic reports and the scope of the review by the Court to which they may be submitted.

19 Article 43 of the Staff Regulations provides that "the ability, efficiency and conduct in the service of each official . . . shall be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110. The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant."

20 As an internal document whose primary function is to provide the administration with periodic information on the performance of their duties by officials the periodic report is not included among the documents which

GRASSI v COUNCIL

JUDGMENT OF 3. 7. 1980 — JOINED CASES 6 AND 97/79

C o n d u c t in t h e s e r v i c e

23 In the second place the applicant complains that in the scale of assessment of ability, efficiency and conduct in the service containing classifications " o u t - standing", "very g o o d " , " g o o d " , "acceptable" and " h a s shortcomings", his relations with his superiors and colleagues are described as "acceptable" in contrast to the reports on other officials of the same division and on himself in previous reports. In addition n o reasons are given for such assessments.

24 T h e C o u r t considers that, by their nature, t h e statements under this heading, constituting, as they d o , a composite assessment by their superior officers of the ability, efficiency and conduct of officials, requires that they must be capable of being given without restriction even if they express more or less adverse assessments. It is normal for assessments under this heading to emphasize differences between different officials and with regard to the same official as regards successive reporting periods. T h e r e is a place under the heading "General Assessment" for the statement of any reasons where the assessments are unusual in o n e w a y or another. It must be pointed o u t that the t w o reporting officers have given reasons under that heading for their critical assessment of the conduct of the applicant with regard to his superiors and colleagues.

25 That complaint must therefore be rejected as unfounded.

General assessment

29 It follows from the foregoing that the applicant's complaint in relation to the general assessments in the periodic report must also be rejected.

30 It is therefore apparent that the action must be rejected as a whole.

Costs

31 Article 70 of the Rules of Procedure provides that without prejudice to the second subparagraph of Article 69 (3) in relation to costs which the Court considers to have been unreasonably or vexatiously caused, institutions shall bear their own costs.

JUDGMENT OF 3. 7. 1980 — JOINED CASES 6 AND 97/79

32 The Court considers that the applicant should not have the benefit of the provisions of Article 70. It is apparent from the foregoing that as a result of his complaints and by means of the internal review procedure within the Council administration he could have had the assessments on him revised and reasons given therefor in a way which ought to have satisfied him. In those circumstances the bringing of and persistence in a legal action must be regarded as vexatious. It is therefore right to order the applicant to pay the whole of the costs.

Delivered in open court in Luxembourg on 3 July 1980.

For the Registrar J. A. Pompe A. Touffait Deputy Registrar President of the Second Chamber