C-24/79

T H E COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: H. Mayras Registrar: H. A. Rühl, Principal Administrator

gives the following

OBERTHÜR ν COMMISSION

JUDGMENT

JUDGMENT OF 5. 6. 1980 — CASE 24/79

2. In 1978 the applicant was included 4. On 2 February 1979 the applicant in the list of officials who had completed brought the present action which was the minimum period required by Article registered at the Registry on 9 February 45 (1) of the Staff Regulations for 1979. promotion from Grade Β 3 to Grade Β 2, which list was published in Admin­ istrative Notices No 191 of 10 March After hearing the report of the Judge- 1978. On reading Administrative Notices Rapporteur and the views of the No 196 of 26 April 1978 she found, Advocate General the Court (First however, that in contrast to three other Chamber) decided to open the oral officials of Directorate-General VII her procedure without any preparatory name had not been put forward by her inquiry. Director-General to the relevant Promotion Committee for promotion to Grade Β 2. Subsequently the provisional list of officials considered to be most II — C o n c l u s i o n s of t h e p a r t i e s deserving of promotion as drawn up by the Promotion Committee and published in Administrative Notices No 205 of 17 July 1978 and the list of officials In her originating application the promoted to Grade Β 2 by decision of applicant claims that the Court should: the appointing authority and published in Administrative Notices No 208 of " — Annul the procedure for the 23 August 1978 mentioned only one promotion to Grade Β 2 of the official from Directorate-General VII. officials listed at page 5 of Administrative Notices No 208 of 23 August 1978 including all stages of that procedure and in particular the opinions of the Promotion 3. On 20 July 1978 the applicant Committee and the decisions of the submitted a complaint under Article 90 appointing authority; of the Staff Regulations because she had not been proposed or recognized as one of the officials most deserving of — Declare null and void the express promotion to Grade Β 2. She included a rejection of the applicant's summary of certain of her qualifications complaint by the Commission on comparing them with those of her 13 November 1978; colleague who had been promoted.

(b) The documents relating to the A — First Submission decision taken by the appointing authority for the purpose of the promotions in question; First of all the applicant claims that the decision to promote other officials to Grade B 2, in so far as it was taken — Order that the following facts be before her complaint of 20 July 1978, proved by witnesses; was contrary to Article 45 (1) of the Staff Regulations. Consideration of the comparative merits of the officials did At a meeting of the Promotions not take place with knowledge of the Committee the name of the facts since the appointing authority did applicant was mentioned, as were not consider the comparative summary those of other officials eligible for annexed to her complaint. In that promotion but not put forward, summary the applicant established that as but the applicant's file was not regards the criteria taken into account compared with those of the officials (seniority, training, experience and pub­ whose names were put forward. lications) she possessed better qualifications than Mrs S, the only candidate from Directorate-General VII The applicant proposes as witness R. promoted to Grade B 2. Vork, the Staff Representative." The defendant observes that there is no The defendant claims that the Court basis in that submission. The decision of should: the appointing authority, which was published on 23 August 1978, was in fact taken after 20 July 1978 so that the " — Dismiss the action as unfounded; Commission had the comparative table before the date of the decision.

Roemer in Joined Cases 27 and 30/64 129). The argument that the factors Forni ν Commission of the EAEC [1965] contained in the comparative table are ECR 481 at pp. 500 and 512). In any included "in a much more com­ event the criteria put forward by the prehensive form in the personal files . . . " applicant are not the only ones to be had no foundation in fact; the applicant taken into consideration and they offers to show that her case was not even disregard in particular the importance of fully considered. the recommendations of the Direc­ torates-General (cf. the opinion of Mr Advocate General Reischl in Case 62/75 De Wind ν Commission [1976] ECR 1167 at p. 1180). In the present case the Promotions Committee had not used the promotions scale, a specimen of which had been supplied to it by the Commission. The Committee had either confined itself to As for the points of comparison relied on the proposals of the Directors-General by the applicant, the defendant stresses or refrained from considering the the temporary post in Grade Β 3 which applicant's case in the absence of the Mrs S occupied, her greater length of most recent staff report. service in Category Β and her experience. The Commission concludes that the recommendation by Directorate- General VII confirmed by the Promotion Committee and ratified by the As regards the role of the opinions of the appointing authority is in any event not Directors-General in consideration of the vitiated by patent error or misuse of comparative merits of candidates, the . powers. applicant maintains that they may be taken into account but nevertheless the staff report, although confined to certain headings, is an indispensable instrument In her reply the applicant observes that and must form the corner-stone of the the list of officials considered most assessment by the appointing authority. eligible for promotion must in point of fact have been drawn up before her complaint. As regards the promotions themselves she admits that the formal The applicant stresses that she has no decisions by the appointing authority personal quarrel with the candidate who may well have been subsequent to was promoted. She had been led to 20 July 1978, although the defendant compare her qualifications with those of does not reveal the date on which the Mrs S solely because there was decisions were actually taken. However, apparently only one vacant post in Direc­ she maintains that the Commission, to torate-General VII. whom the complaint was submitted on 20 July 1978, failed to give sufficiently serious consideration to the comparative table, although a measure as important as promotion ought to be preceded by As regards the points of comparison thorough consideration of the respective raised by the defendant the applicant qualifications, (cf. judgment of 19 March considers that Article 45 of the Staff 1964 in Case 27/63 Raponi ν Regulations does not provide that Commission of the EEC [1964] ECR account should be taken of a temporary

Moreover, she complains that the Moreover, the applicant's statement does defendant makes no mention of the fact not show to what she alludes in speaking that she has obtained a certificate. While of a "scale" ("grille"); in its task the the defendant makes a point of the Promotion Committee had at its disposal experience of Mrs S concerning libraries guidelines which contain certain criteria it neglects the applicant's work since but which serve only as a guide. 1 1967 in the Central Library and the Central Documentation department and during her subsequent postings. As regards the grounds put forward by the applicant for drawing up a comparative table, the defendant In its rejoinder the defendant confirms observes that promotion to Grade B 2 that the decision by the appointing constitutes promotion within a career authority on promotions to Grade B 2 bracket and in no way implies that was taken on 24 July 1978 so that the quotas are assigned to Directorates- submission in question has no foundation General. There is therefore no because the complaint was lodged on "competition" between officials eligible 20 July 1978. For the first time in her for promotion in the same Directorate- reply the applicant maintains that it is in General. From that point of view the fact "the list of officials considered to be comparison put forward is irrelevant. most deserving of promotion" which for the same reasons infringes Article 45 (1) of the Staff Regulations. That argument cannot be accepted since it is a fresh As regards the relevance of the period issue within the meaning of Article 42 (2) Mrs S has been in the grade, the of the Rules of Procedure. defendant considers that although temporary occupation of a post at a higher level gives the person concerned no right to be re-classified it may be "a Alternatively the defendant observes that factor to be borne in mind in connexion a complaint made under Article 90 of the with promotion" (judgment of 17 De- Staff Regulations has no suspensory cember 1964 in Case 102/63 Boursin v nature and that the appointing authority High Authority of the ECSC [1964] ECR was under no obligation to consider the 691; judgment of 16 June 1971 in Case question of the promotion of the 77/70 Prelle v Commission [1971] ECR applicant in relation to the comparative 561; judgment of 12 July 1973 in Case table she supplied. 28/72 Tontodonati v Commission [1973] ECR 779; judgment of 19 March 1975 in Case 189/73 Van Reenen v Commission [1975] ECR 445; and the As regards the argument that the judgment of 11 May 1978 in Case 25/77 applicant's case was not fully considered, De Roubaix v Commission [1978] ECR the Commission comments that in fact 1081). Nor does Article 45 (1) of the "the Committee has considered the position of all officials eligible for 1 — Guidelines adopted by the Promotion Committee — promotion and has paid special attention Category B — for the 1978 financial year.

(b) The Promotion Committee and the appointing authority had not had knowledge of the applicant's staff The changes in the applicant's posting in report for the period 1 July 1975 to no way justify the unacceptable delay in 30 June 1977, which had been made drawing up the staff report in question. on 2 March 1978, whereas as On that issue the guide to staff reports regards the other officials eligible for provides for all possibilities and the promotion the Promotion Committee problem could easily have been resolved had the staff report for that period. if all concerned had shown good will. In that respect the applicant maintains that the report drawn up at Directorate- General V was not forwarded to Direc­ (a) The defendant replies first of all that torate-General VII because of the refusal the applicant's personal file, which was of a certain official for reasons of available to the Promotions Committee personal animosity and she asks the and the appointing authority, contains Court to order such inquiry on that issue two letters sent to the applicant relating as it considers appropriate. to the paper produced at the end of her studies.

The applicant doubts whether those The defendant stresses that it is unac­ letters were in the file when the ceptable for the personal integrity of Committee and appointing authority certain officials to be called in question should have known of them. without the slightest evidence.

In its rejoinder the defendant states that the applicant did not forward the letters In addition it considers that the absence in question to the administration until of the staff report in question should not 20 February 1979, that is to say, after be regarded as decisive in view in bringing the action. particular of the facts available to the

Promotion Committee. The minutes of C — Third submission the first meeting of the Committee list them. In that respect the defendant refers to the judgment of 12 October 1978 in Case 86/77 Dittrich ν Commission where The applicant alleges infringement of the the Court took the view that: last sentence of Article 24 of the Staff Regulations in that neither the Promotions Committee nor the "In view of all these circumstances the appointing authority took account of the fact relied on by the applicant, namely courses of study followed by the that his personal file was incomplete in applicant over six years of further that it did not contain the periodic training as a result of which she obtained reports relating to the periods 1971 to certificates for librarianship and docu­ 1973 and 1973 to 1975, cannot be held mentation in 1975. to support a finding that the promotion list in question was irregular in relation to Article 45 of the Staff Regulations. Even without those periodic reports the The defendant alleges that that members of the various committees had submission lacks a factual basis since in fact at their disposal the very widest there is a photocopy of the certificate in powers to obtain all the information the applicant's personal file. In that necessary to undertake a comparative respect, however, the applicant draws examination of the merits of those attention to the difficulty of checking eligible" ([1978] ECR 1855 paragraphs when certain documents have been 18 and 19 of the decision at p. 1864). placed in the personal file. In its rejoinder the defendant states that the letter dated 25 August 1976 from the The applicant denies that that judgment establishment which the applicant applies to the present case. The situation attended confirming the award of the of which she complains is very different certificate was not forwarded to the from that in Case 86/77. Moreover, the administration until 8 February 1979, defendant is neglecting the fact that the that is when the action was brought. power to "choose" given to the appointing authority can be exercised only provided that two conditions are In its defence the defendant mentions respected: that the comparative merits of moreover the reference in the applicant's officials are considered and that the staff report for 1971-1973: reports relating to them are considered.

D — Fresh issues "3. The following are the various guidelines adopted in principle by the Committee for 1978: Referring to the documents produced and in particular Annex 23 to the defence and its annexes and in reliance 3.b To Grade B 2 on Article 42 (2) of the Rules of Procedure, the applicant puts forward two fresh submissions in support of her 3.b.l On the list for 1977; claim that Article 25 of the Staff Regu- lations was infringed. 3.b.2 Aged 48 or more and in general with at least 4 years' seniority in the grade; Those submissions concern in particular the application of the following provisions : 3.b.3 Aged 37 to 48 and at least 4 years' seniority in the grade;

—· Paragraph 6 of the General 3.b.4 A percentage of some 15 % of Provisions for Implementing the officials of Grade B 3 to be Procedure for Promotion within a promoted, either aged at most Career Bracket . .., which is worded 37 or older but with no more as follows: than 4 years' seniority in the grade and specially recom- mended." "6. In order to assist them in their work the Committee shall also be given such budgetary information as may be required for drawing Admissibility of fresh submissions up the provisional lists of officials considered to be most deserving The defendant refers to Article 42 (1) of of promotion. the Rules' of Procedure and challenges The number of officials to be the admissibility of these submissions entered on the provisional lists since they are based upon matters of law

OBERTHÜR ν COMMISSION

JUDGMENT OF 5. 6. 1980 — CASE 24/79

ought to have set out the reason why it Huybrechts ν Commission [1969] ECR did not follow those guidelines. By 85, particularly paragraph 19 of the failing to do so it adversely affected the decision at p. 97; Case 90/71 Bernardi ν applicant in infringement of Article 25 of European Parliament [1972] ECR 603, the Staff Regulations. particularly paragraph 15 of the decision at p. 609).

Further by not stating the reasons the Promotion Committee made it E — Reservations impossible for the Court to check them and in particular to determine whether the interests of the service have been In her reply the applicant expresses reser­ disregarded or there was a misuse of vations as to whether the Promotion powers. Committee was properly constituted and in particular as regards respect of the rule that members of the committee for promotion to Grade Β 2 should be at least of Grade A 4. The defendant has In answer the defendant says that the not shown that the proceedings were in provisions cited are guidelines and that order in this respect. word sufficiently indicates their flexible and non-mandatory nature. It moreover stresses that the applicant is wrong in maintaining that the guidelines adopted The defendant considers the applicant's by the Committee at 3.b.2 and 3.b.3 were contention surprising for three reasons : not applied. The case of the applicant who was aged 48 and had at least 4 years' seniority in the grade was the (a) No fresh submission may be made in subject of very special attention, as were the course of proceedings, and that those of all the officials whose age was applies a fortiori to the making of greater than the maximum in the age reservations in reply constituting a brackets, as is shown by the minutes of kind of potential submission raising the Promotion Committee. On the other the question when the applicant hand, the criterion in 3.b.3 did not intends to raise it formally; concern her since she was at the time 48 years old.

Further, while it is true that each year The applicant seeks the annulment of the new promotions are decided it is also whole procedure for promotions to true that each year other officials Grade Β 2 for the 1978 financial year. complete the minimum period to enable them to be included in the list of those eligible for promotion. The defendant considers that, assuming the action is held to be well founded, such annulment would cause the officials G — Evidence promoted a wrong out of all proportion to the damage suffered by the applicant and that her rights could be guaranteed In her reply the applicant seeks the by more appropriate measures. (Cf. as production of a number of documents regards competitions: judgment of 4 De­ which are missing, including in cember 1975 in Case 31/75 Costacurta ν particular: Commission [1975] ECR 1563 in particular paragraph 17 of the decision at p. 1571; judgment of 30 November 1978 — The scale of promotions to which she in Joined Cases 4, 19 and 28/78 Salerno referred in her reply in relation to the and Others ν Commission [1978] ECR first submission; and 2403 and in particular paragraph 35 of the decision at p. 2418: judgment of 5 — The document relating to the April 1979 in Case 117/78 Orlandi ν decision taken by the appointing Commission [1979] ECR 1613 and in authority. particular paragraph 25 of the decision at p. 1622). Finally the applicant offers to adduce oral testimony concerning the basic circumstances of the proceedings at the In her reply the applicant considers that meetings of the Promotion Committee. only annulment of the promotions would enable satisfaction to be given to her claim. Moreover, annulment of The defendant produces the Decision of promotions would not have the same 24 July 1978 by the appointing authority effect as annulment of the results of a relating to the promotion of officials to competition. In the case of promotions Grades Β 2 and Β 4. It denies that there the appointing authority could re­ is a scale but refers to the General appoint all the officials put forward since Provisions for Implementing the new posts become vacant from year to Procedure for Promotion within a year, while in the other case the Career Bracket and the guidelines competition would have to be begun adopted by the Commission on 24 Nov-

OBERTHÜR ν COMMISSION

the Promotion Committee and the appointing authority did not seriously consider the comparative merits of the two officials in question.

4 The applicant makes three submissions in her conclusions. The Court will consider, first of all, the second submission as to infringement of Article 45 (1) of the Staff Regulations. That provision stipulates inter alia that promotions to the next higher grade shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

5 In the applicant's view that provision has been infringed in two respects: on the one hand the Promotion Committee and the appointing authority were unaware that the applicant had written a bibliographical paper at the end of her studies; in addition those two bodies were unacquainted with the staff report on the applicant for 1975 to 1977 whereas they had at their disposal the staff reports for that period on other officials eligible for promotion.

8 Article 43 of the Staff Regulations provides that the periodic report shall be made at least once every two years. The report constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration. Thus pursuant to Article 45 (1) of the Staff Regulations officials may be promoted only after consideration of the comparative merits of the officials eligible for promotion and of the reports on them. The Court has already held in its judgment of 23 January 1975 (Case 29/74 De Dapper ν European Parliament [1975] ECR 35) that consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done fails to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.

9 In the present case the Commission had not denied that the applicant's staff report for 1975 to 1977 had not yet been drawn up when the Promotion Committee dealt with the proposals for promotion whereas the staff reports for the same period on other officials eligible for promotion were submitted to that Committee and to the appointing authority. During the argument between the parties the Commission attempted to explain the reasons for the delay in drawing up the staff reports on the applicant; in that respect it cited in particular the frequent changes in the posting of the applicant because it was impossible for her to work in an air-conditioned office. Nevertheless the Commission has not succeeded in showing that the delay was caused by the applicant.

15 In assessing the damage suffered it is right to bear in mind that the applicant will be able to take part in the next promotion procedure which the

JUDGMENT OF 5. 6. 1980 — CASE 24/79

Commission will take care to conduct in accordance with the rules. In view of that fact the Court assesses the damage suffered ex aequo et bono and considers that the award of the sum of BFR 20 000 is sufficient compensation for the applicant.

Costs

16 Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.

On those grounds,

Delivered in open court in Luxembourg on 5 June 1980.

H. A. Rühl A. O'Keeffe Principal Administrator President of the First Chamber