C-122/79

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by Antonio Sacchettini, Adviser in the Legal Department of the Secretariat of the Council, Brussels, with an address for service in Luxembourg at the office of Mr P.-J. Fontein, Director of the Legal Department of the European Investment Bank, 2 Place de Metz, defendant,

APPLICATION in Case 122/79 for the annulment of the decision of 30 November 1978, 7/78, published in the Monthly Staff Bulletin of the European Communities No 158 of January 1979 whereby officials of the language staff (L/A) other than the applicant were promoted with effect from 1 January 1977;

SCHIAVO v COUNCIL

in Case 123/79 for the annulment of the implied decision of rejection whereby Mr Hommel, Secretary-General of the Council of Ministers of the European Communities, confirmed the opinion of the Reports Committee of 28 November 1978 rejecting the request of the applicant of 15 June 1978 for a review of the periodic report for the period 1 November 1975 to 31 October 1977;

T H E COURT (Second Chamber)

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

which her head of division notified her of the letter of 15 June 1978 the periodic that he had put her forward for report was transmitted on 17 July 1978 promotion. For the period from 1 to the Reports Committee. After hearing November 1975 to 31 October 1977 the the applicant on 6 November 1978 the periodic report was drawn up on 16 Reports Committee delivered on 28 February 1978 in accordance with the November 1978 an unfavourable opinion new criteria established by the Council which the Secretary-General confirmed Decision of 18 October 1977 laying by a note of 8 December 1978. That down the general provisions for the note, accompanied by the opinion of the application of Article 43 of the Staff Reports Committee, was transmitted to Regulations on periodic reports. Since the applicant on the same day. However Mrs Schiavo considered that that the applicant, who had taken leave of periodic report was "negative" in absence on personal grounds, only comparison with the previous reports she received those documents on 18 requested an interview with her head of December 1978 and returned them to division and first reporting officer, Mr the administration on 28 December 1978 Valerio, who reviewed the assessments after signing the report whilst reserving more favourably on three points so that her right to challenge it. as a whole she received "good" assessments, and was even given the assessment "very good" five times. In the meantime the Secretary-General of the Council took, on 30 November 1978, a series of decisions regarding the Nevertheless, since Mrs Schiavo still did promotion of certain officials on the not agree with the first reporting officer language staff in accordance with the despite the amendments made, she opinion of the Council's Advisory submitted on 6 March 1978 a written Committee on Promotion dated 22 request for a review of the amended November 1978. The list of officials report of 16 February 1978. That request promoted was posted in the premises of was refused by a note date 9 March 1978 the institution on 6 December 1978 and and the applicants submitted to the published in the Monthly Staff Bulletin second reporting officer, Mr Duck, a of the European Communities No 158 of request, in accordance with Article 7 of January 1979. the Decision of 18 October 1977, for the revision of the amended report. The latter, in a note dated 25 May 1978, made amendments which were in general By a first letter dated 25 March 1979 the favourable to the applicant although the applicant formally requested the note expressly referred to the report Secretary-General of the Council to drawn up by the first reporting officer. adopt a formal, reasoned decision "on the request for a review of the periodic report made on her with a view to annulling it". In the next three months By letter of 15 June 1978 the applicant no decision was taken by the Secretary- refused to accept the conclusions of the General. second report and stated that she intended to submit a complaint within the meaning of Article 90 of the Staff Regulations, which she formally did by By a second letter dated 25 March 1979 letter of 11 September 1978. As a result the applicant submitted a complaint

against the decisions of 30 November (b) In her reply: 1978 regarding the promotion of certain officials. That complaint formed the " 1 . As a preliminary measure, subject-matter of an express decision of dismiss the objection of rejection of 18 June 1979. inadmissibility as unfounded in law; Against these two decisions of rejection, 2. As a measure of inquiry in the one implied and the other express, accordance with Article 45 (1) Mrs Schiavo lodged with the Court of and (2) of the Rules of Justice two applications against the Procedure in conjunction with Council: both were registered at the Article 21 of the Protocol on the Court on 3 August 1979. Statute of the Court of Justice, In Case 123/79 concerning the periodic order the defendant to produce report the Council raised an objection of all documents relating to the inadmissibility, maintaining as its personal files of the applicants principal ground that the application was and of all of the officials not preceded by a complaint within the promoted; meaning of Article 90 (2) of the Staff 3. Accordingly rule in favour of the Regulations. applicant notwithstanding any The Court, Second Chamber, on hearing conclusions to the contrary and the report of the Judge-Rapporteur and annul the contested decisions the views of the Advocate General, together with all preparatory decided on 31 December 1980, first, to measures with all the reserve its decision on the objection of consequences in law resulting inadmissibility in Case 123/79 for the therefrom; final judgment and, secondly, to join the 4. Order the defendant to pay the two cases and to open the oral procedure costs". without any preparatory inquiry, thereby rejecting a request by the applicant for production of the individual files of the The defendant contends that the Court officials promoted on 30 November should: 1978. (a) in its statement of defence: " 1 . As a preliminary measure, rule II — C o n c l u s i o n s of the p a r t i e s on the admissibility of the application; 1. In Case 122/79 2. If it is held that the application is admissible, reject the claims of The applicant claims that the Court the applicant as unfounded; should: 3. Order the applicant to pay the costs of the proceedings in so far (a) in her application: as they are not to be paid by the defendant under Articles 70 and "Annul the contested decision 95 (2) of the Rules of together with all prior and Procedure"; preparatory measures, including the opinion of the Advisory Committee, (b) Adding thereto in its rejoinder: with all the legal consequences thereof, including an order that the "2. Having found that the individual defendant pay the costs". file on the applicant has been

transmitted to the Court of prescribe new time-limits for the Justice in accordance with further steps in the proceedings". Article 26 of the Staff Regu- lations, to dismiss the claim of In its defence and in its rejoinder the the applicant for an order, as a Council contends that the Court should: measure of inquiry, that the individual files on the officials " 1 . Rule on the preliminary objection as promoted should be produced". to the admissibility of the application; 2. In Case 123/79 (Periodic report) 2. If the application is declared admissible, dismiss the claims of the In her application the applicant claims applicant as unfounded; that the Court should: 3. Order the applicant to pay the costs "— After declaring this application to be in so far as the defendant is not well founded, annul the contested liable therefor in accordance with communication of 8 December 1978 Article 70 and 95 (2) of the Rules of and the implied decision of rejection Procedure". which is also contested together with all prior preparatory measures including the opinion of the Reports In her reply the applicant claims that the Committee with all the Court should : consequences in law including an order that the defendant pay the "— Dismiss all objections, arguments costs". and inferences contrary to her application; In its application raising an objection of inadmissibility the Council contends that — Grant her application by declaring it the Court should : admissible and well founded and take all the measures which it shall "Dismiss this action as inadmissible and consider appropriate". order the applicant to pay the costs in so far as the defendant is not liable for them in accordance with Articles 70 and I I I — S u m m a r y of the s u b m i s - 95 (2) of the Rules of Procedure". sions and a r g u m e n t s of t h e parties In her reply to the application raising an objection of inadmissibility the applicant claims that the Court should : Since Case 123/79 is intended to have annulled the periodic report which, " 1 . Dismiss the objection that the according to the applicant, constitutes application is inadmissible; one of the reasons why she was not promoted, it appears reasonable to 2. Consequently rule that the provide first of all a summary of the application is inadmissible; submissions and arguments concerning that case before considering those 3. In accordance with the second relating to the annulment of the decision subparagraph of Article 91 (4) to promote certain officials of the reserve its decision regarding the language staff which forms the subject- objection for the final judgment and matter of Case 122/79.

A — In Case 123/79 (Periodic report) adversely affecting the official, but constitutes a request within the meaning of Article 90 (1). In that case the 1. Admissibility application is inadmissible because it was not preceded by a complaint within the The Council contends: meaning of Article 90 (2). However, even if it were necessary to consider that formal notice as a complaint the (a) The application is not dated application would still be inadmissible on although Article 37 (3) of the Rules of the grounds that, since the applicant Procedure of the Court of Justice received the reply of the Secretary- provides that all pleadings shall bear a General on 18 December 1978, she date. On this point the Council "relies should have sent her complaint by 19 upon the discretion of the Court". The March 1979 at the latest. She did not same argument has been advanced in send it until 25 March 1979. Finally, Case 122/79. even if the complaint of 11 September 1978 were taken into consideration the application would still have been (b) There is no implied decision of submitted out of time. rejection by the Secretary-General which rejected the formal notice of the applicant of 25 March 1979 and against To which the applicant replies: which the application is partly directed, since the Secretary-General replied to that notice by letter of 18 June 1979. (a) The fact that there is no date on the application is of no consequence since according to Article 37 (3) of the Rules (c) Proceedings have been brought of Procedure the date of lodgment at the before the Court of Justice before any Registry, in these proceedings 3 August valid complaint was addressed to the 1979, is the only relevant date in the appointing authority in accordance with reckoning of time-limits. Furthermore Article 90 (2) of the Staff Regulations. the general principles of procedural law The formal notice of 25 March 1979 do not require that undated pleadings does not constitute a complaint within shall be null and void. the meaning of that article: (b) Pursuant to the second paragraph Either as to form, since the applicant of Article 25 of the Staff Regulations any bases her action on Article 175 of the decision relating to a specific individual Treaty although the Court of Justice has must be communicated in writing to the already stated that disputes between official concerned and if it adversely officials of the Communities and their affects him it must state the grounds on institutions are governed by Article 179 which it is based, as has been confirmed of the Treaty; 1 by the case-law of the Court. 1 The decision of the Secretary-General of Or as to substance, since it does not 8 December 1978 was entirely lacking in contain the characteristics of a complaint a statement of the reasons on which it which must be directed against an act was based, which means that it is void

since the letter of 18 June 1979 cannot applicant's immediate superior the remove the nullity of another measure. provision in Article 175 is not Accordingly the applicant proceeded incompatible with that in Article 179 of correctly when, by a document of 25 the Treaty. The former, which is a March 1979, she submitted a complaint general rule, permits a person to within the period of three months to the complain to the Court of Justice that an appointing authority and, when she did institution of the Community has failed not receive any reply, since the letter of to address to that person "any act other 18 June 1979 does not constitute a reply, than a recommendation or an opinion". she submitted an application to the The latter, a special rule, extends the Court on 3 August 1979. jurisdiction of the Court to cover "any dispute between the Community and its servants". (c) As to the objection that the application is inadmissible because of the failure to lodge a prior complaint: either, after the opinion of the Reports In its defence the Council observes: Committee there was no implied decision of rejection having a proper statement of — That the applicant herself describes the reasons on which it was based by the her note of 11 September 1978 as a Secretary-General and, in that case the "complaint"; complaint lodged by Mrs Schiavo on 25 March 1979 is valid as is the subsequent application, or there was an express — That Article 90 (3) of the Staff Regu- decision of rejection on 18 June 1979, as lations expressly requires a request or the Council maintains, and the complaint to be submitted through application lodged at the Registry on the official's immediate superior; 3 August 1979 is admissible.

decision; accordingly it would have been (b) That is why the Secretary-General reasonable to consider that either no was formally requested to act. Since he reasoned decision exists or, if one does failed to reply and since, according to exist, that it was not presented with a the case-law of the Court ', any statement of the reasons on which it is administration, when it takes steps which based, or that no implied decision of by their nature may seriously prejudice rejection exists. the interests of an individual, is bound to enable the person concerned to make known his point of view, his silence In its rejoinder the Council repeats first amounts to an implied decision of of all that "whatever name is conferred rejection which is furthermore ultra vires upon the applicant's document dated 25 since the reasons on which it was based March 1979 she has failed to observe the were not stated and because the act in time-limits laid down by the Staff Regu- question constitutes an implied decision lations for lodging an application with of rejection. the Court of Justice". It then contests the applicant's reliance on the above- mentioned judgment of 5 April 1979 in Case 117/78, since it considers, on the one hand, that that judgment concerns (c) The fact that the application is well "facts entirely different from those in the founded is furthermore established "by present case" and, on the other, that the manifest injustice in the behaviour of irrespective of this observation as to collegiate bodies" or bodies consisting of irrelevance of the decision relied upon, a a single member whose actions and complaint through official channels must opinions preceded the confirmation by be lodged within the time-limits "in Mr Hommel in his note of 8 December order to avoid creating a wholly 1978, and by the contradiction between arbitrary confusion as to the time-limits the wording of the first periodic reports prescribed by the legislature in order to and the final decision taken by the ensure legal certainty in the exercise of Community authorities: in particular the legal remedies". applicant maintains that the periodic report in question constitutes "a logical inconsistency" in relation to the communication of 16 December 1978 2. Substance whereby the head of division proposed Mrs Schiavo for promotion. Consequently "the behaviour of the The applicant states: appointing authority is grossly illegal where it confirms, without giving reasons, adverse assessments which were (a) By virtue of Article 90 of the Staff preceded by favourable assessments and Regulations the appointing authority when this results in a refusal of must provide the person concerned with promotion". a reasoned decision. The note of 8 December 1978 from the Secretary- General merely confirms the adverse opinion of the Reports Committee and thus fails to state the reasons on which it (d) Finally, in reply to the argument of is based. This entails the nullity of the the Council that none of the defects note, in view of the essential importance listed by the Court in its judgment of which the Court of Justice has attributed to the reasons on which a decision is based. 1 — For example the judgment of 13 April 1978 in Case 75/77 Molkt [1978) ECR 897.

24 October 1976 in Case 122/75, Küster, Finally, the applicant's remark by which [1976] ECR 1685 were cited amongst the she sought to indicate that the grounds of the application, the applicant application also covers the opinion of the emphasizes first of all that she espouses Reports Committee is irrelevant on the that decision, according to which ground that, since the appointing authority adopted that opinion in its decision of 8 December 1978, any "the argument that an application application against that decision entails against a periodic report is inadmissible challenging the said opinion. from the outset cannot be accepted" (b) With regard to the submissions and contends that she alleged that the relating to the substance of the case, that decision of Mr Hommel of 8 December is to say, to the drafting of the periodic 1978 was illegal, and that she claimed report in question. that all the preparatory measures should be annulled. The defendant relies upon the judgment in the above-mentioned Case 122/75 in support of its argument that proceedings against a periodic report must be based The Council for its part replies: on the defects exhaustively listed by the Court, that is irregularity of form and of procedure, manifest error and misuse of (a) With regard to the submissions discretionary powers, and that the concerning form, that is to say, to the applicant has failed to plead any of these note of 8 December 1978. defects since she merely alleges that there has been a "manifest injustice" without adducing any evidence therefor First of all, with regard to the although the advisory bodies stated their requirement to state reasons, the views "scrupulously observing the rules defendant maintains that in the above- governing their activities", or, further, mentioned Case 122/75 the Court stated that there has been a "logical that periodic reports were not governed inconsistency" although on the contrary by Article 25 of the Staff Regulations but it is of the essence of the specific by Article 43 which obliges the function of such periodic reports to institutions to state the reasons on which produce a different assessment and it is measures are based in extreme cases impossible to consider a proposal by a only. Article 10 (5) of the Council head of division that a person should be decision, adopted pursuant to Article 43 promoted as evidence of a manifest error of the Treaty, makes "absolutely no or a misuse of discretionary powers. provision for a statement of reasons".

In the present case the complaint, dated 25 March 1979, refers to decisions The applicant for her part puts forward regarding promotion which were taken the following arguments: on 30 November 1978 and posted up on 6 December 1978. The period of three months expired on 7 March 1979. (a) Article 25 of the Staff Regulations provides that "specific decisions "Publication" must not be understood as regarding . . . promotion . . . of an the insertion of the name of the persons official shall at once be posted . . . and promoted in the Monthly Staff Bulletin shall be published in the Monthly Staff of the European Communities. Since the Bulletin of the Communities". It follows decisions in question are of an individual that a decision may only be regarded as character the requirement of publication validly published when it has complied is fulfilled by posting on notice boards with those two requirements. In this case since their subsequent insertion in the publication took place in the course of bulletin is only for general information. January 1979 and the application was thus submitted within the time-limit pres- cribed by the Staff Regulations. Mrs It is true that at that date the applicant Schiavo was, moreover, staying in Italy was on leave on personal grounds but at that time and only learned of the that does not alter the nature of the said promotions, in which she herself was not bulletin which is merely for general included, through their publication in the information and is not an official Staff Bulletin. collection of decisions under the Staff Regulations.

(c) The Secretary-General's decision of maintains its argument and leaves the rejection, dated 18 June 1979, is not to matter to the discretion of the Court. be classified as an express decision of rejection, which assumes that the substance of the dispute is considered, 2. Substance but as an implied decision of rejection in that the decision rejects the complaint without considering the substance of the (a) In ber application the applicant matter since it merely considers that the complains that the contested complaint was lodged out of time. Be decision: that as it may, "once the dispute reaches the judicial level the application pending — Does not contain a statement of the before the Court is formally and subs- reasons on which it is based; tantively directed towards the annulment of the decision, implied or express, of — Excluded her from the promotion rejection". operations although the competent bodies were unaware of "her legal position" since at the same time her file The defendant replies to those arguments had been submitted to the Reports as follows: Committee for consideration although the provisions of Articles 26 and 45 of the Staff Regulations read together imply (a) The words "publication provided that promotion may only be granted for in Article 90" do not have the same when the persons concerned are significance as "publication in the acquainted with all the qualities of the Monthly Bulletin provided for in Article official since the individual files must 25" since the German and Dutch contain all the documents concerning the versions of the Staff Regulations, which administrative position of the official and use two different words for both cases, all the reports concerning his abilities. confirm that posting meets the Furthermore, in the present case the requirement of "making public" opinion expressed by the Advisory decisions concerning promotion. Fur- Committee of the Council on 22 thermore, the applicant's interpretation November 1978 preceded by eight days would in fact create a flexible time-limit the adverse opinion delivered by the and "for obvious reasons of legal Reports Committee, which is surprising certainty" cannot be accepted. and constitutes a manifest infringement of the rights and interests of Mrs Schiavo. (b) It is true that the letter of 18 June 1979 considers that the complaint was (b) In its defence the Council replies: inadmissible because it was lodged out of time but that does not prevent it from also being inadmissible because when the — According to the consistent case-law complaint was lodged it did not comply of the Court 1, "the appointing authority with the formal requirements of the Staff Regulations: submission through the 1 — Cf. judgment of 30 October 1974 in Case 188/73 immediate superior of the applicant. Grassi [1974] ECR 1099; judgment of 19 March 1964 in Case 27/63 Raponi [1964] ECR 129; judgment of 9 June 1964 in Cases 94 and 96/63 Bemusset [1964] ECR 297; judgment of 31 March 1965 in Cases 12 and 29/64 Ley [1965] ECR 107; judgment of 8 July 1965 in (c) With regard to existence of an error Cases 27 and 30/64 Forni [1965] ECR 481; judgment of 13 July 1972 in Case 90/71 Bernardi [1972] ECR in the causa petendi, the defendant 603.

— The members of the Advisory Committee on Promotion had the individual files, and thus the periodic reports, of all officials eligible for promotion since it was only needed to (d) Finally, in its rejoinder the Council photocopy the original periodic reports. claims: The fact that the opinion of the Reports Committee was subsequent to that of the Advisory Committee is in itself of no consequence since the two bodies are independent of each other and the — The delay in the second report was Reports Committee finally delivered a due solely to the considerable number of negative opinion to the effect that it was officials who had to be assessed by a new unnecessary to review the report on the method established by the Decision of 18 applicant. With regard to the promotion October 1977 and that it is improper to itself it should be noted that it was subs- relate the delay in question to a equent to the opinion of the Reports presumed unfavourable attitude of the Committee. applicant's immediate superiors, and such a connexion has furthermore not been established.

Decision

1 By applications lodged at the Court Registry on 3 August 1979, Mrs Schiavo, who at the time was an official in Grade L/A 7 at the Council of the European Communities, brought two actions, which were joined by order of 31 January 1980, one for the annulment of the implied decision rejecting her request for a review of her periodic report for the period from 1 November 1975 to 31 October 1977 and of the note of the Secretary- General of the Council of 8 December 1978 confirming the opinion of the Reports Committee of 28 November 1978 which was not in favour of that request, and the other for the annulment of a series of decisions of the Council of 30 November 1978 deciding on the promotion of certain offcials of the language staff.

T h e b a c k g r o u n d to the d i s p u t e

2 The applicant was appointed a probationary official with the Council on 16 October 1972. In accordance with the decision of the Council of 25 May 1964 concerning the report on the ability, efficiency and conduct in the service of officials of the General Secretariat of the Council, two periodic reports, generally containing the assessments "good" and even "very good", were drawn up for the periods 1972-73 and 1974-75 without occasioning any remarks by the applicant.

3 In accordance with new criteria established by the Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations of Officials on periodic reports Mrs Schiavo was the subject of a periodic report dated 16 February 1978 for

SCHIAVO v COUNCIL

8 In the meantime the Secretary-General, acting on the opinion to that effect of the Advisory Committee, took on 30 November 1978 a series of decisions regarding the promotion of certain officials other than the applicant. The list of officials promoted was posted in the premises of the institution on 6 December 1978 and was published in the Monthly Staff Bulletin of the European Communities, No 158 of January 1979.

JUDGMENT OF 19. 2. 1981 — JOINED CASES 122 AND 123/79

9 Thereupon the applicant sent on 25 March 1979 two letters, the first registering a complaint concerning the decisions on promotion and the second formally requesting the Secretary General to take a decision concerning the periodic report drawn up on 16 February 1978.

10 Since no answer was given to those two letters the applicant lodged the two above-mentioned applications.

T h e a d m i s s i b i l i t y of the t w o a p p l i c a t i o n s

The claim for the annulment of the periodic report

SCHIAVO v COUNCIL

"the appointing authority shall confirm the report and shall transmit it to the official who is the subject of the report, thus bringing to an end the complaints procedure".

15 In the present case the applicant submitted on 11 September 1978 a complaint within the meaning of Article 90 (2) in order to have her periodic report corrected. The special procedure thus initiated was closed, in accordance with the provisions of the Council Decision of 18 October 1977, by the note of the Secretary-General confirming the opinion of the Reports Committee which the applicant received on 18 December 1978. As from that date the periodic report was regarded as final.

16 It may also be noted that the Court, in its above-mentioned judgment in the Grassi case, has already made it clear that in such a situation it is not a condition of instituting proceedings before the Court that a prior complaint through official channels should have been lodged:

"Action against the periodic report lies as from the date on which that report may be regarded as final and . . . it is not possible to require in addition the prior formality of a complaint under Article 90".

The applicant should thus have brought the matter directly before the Court within the period of three months laid down in Article 91 of the Staff Regu- lations, that is, before 19 March 1979, whereas her application was lodged on 3 August 1979.

19 The Council maintains that the application was lodged out of time since the complaint, which was dated 25 March 1979, was aimed at procuring the annulment of the decisions on promotion posted on 6 December 1978, and that it was lodged after the period of three months from the date of publ- ication, that is after the period fixed as a condition of admissibility by Article 90 (2) of the Staff Regulations. In support of that argument it claims first that, according to that provision, the period within which a third party, who is adversely affected by an individual measure, must lodge an application, starts to run "on the date on which he receives notification thereof but in no case later than the date of publication", which in the present case is the date of posting, and secondly," that the requirements of legal certainty would not be fulfilled if publication in the Monthly Staff Bulletin were taken as the time from which the period starts to run.

20 The applicant, relying on Article 25 of the Staff Regulations which provides that

"Specific decisions regarding . . . promotion . . . of an official shall at once be posted in the premises of the institution to which the official belongs and shall be published in the Monthly Staff Bulletin of the Communities",

maintains that a decision may only be considered as validly published after it has been posted in the premises of the institution and published in the Monthly Staff Bulletin of the Communities. Since that latter publication took place in January 1979 the complaint was lodged within the period required by the Staff Regulations.

23 If the time from which the period for lodging complaints started to run coincided with the publication of the measures in question in the M o n t h l y Staff Bulletin, which often occurs long after publication of such measures through posting, that period would be rendered variable, which is contrary to the interests of the persons w h o benefit from those individual measures and would not confer any real advantage upon officials adversely affected by such measures as the latter are able without difficulty to inform themselves or to be informed in g o o d time of important measures which have been posted in accordance with clearly prescribed rules which were adjusted within the framework of the personnel management within their department and which concern their personal administrative position.

24 Accordingly it must be concluded that, since the applicant's complaint was lodged out of time for the purposes of Article 90 (2) of the Staff Regulations of Officials, the application in Case 122/79 must also be declared inadmissible.

Costs

25 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 in proceedings by servants of the Communities.

JUDGMENT OF 19. 2. 1981 — JOINED CASES 122 AND 123/79

26 The Court considers that the applicant should not have the benefit of the provisions of Article 70. It is apparent from the foregoing that she persisted in pursuing judicial proceedings without being able to establish a real interest although, as a result of her complaints and by means of the internal review procedure within the Council administration, she had the assessments on her favourably revised. 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 19 February 1981.

A. Van Houtte P. Pescatore Registrar President of the Second Chamber