C-156/79

2. The list of officials promoted to that grade (Case 156/79); and

3. The Commission's decision of 30 October 1979 rejecting the complaint, directed against the aforementioned lists, made by the applicant through official channels (Case 51/80),

THE COURT (Second Chamber)

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

Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

I — Facts and written procedure Despite several reminders and a personal interview with the reporting officer on 16 November 1977, the letter of 6 June 1977 went unanswered until 12 September 1978 when the reporting 1 .Facts officer informed the mediator, Mr De Groóte, to whom the matter had meantime been referred by the applicant, that he had taken account of the obser- Mr Pierre Gratreau is a scientific officer vations in drawing up the periodic report of the European Communities employed for the 1975 to 1977 period. A copy of in connexion with "indirect actions" and that note was sent to the applicant by the is assigned to Frascati where he carries mediator. The applicant's comments out his duties in the context of the were put on his personal file. Euratom-CNEN (Comitato Nazionale Energia Nucleare) Association Contract. He is in Grade A 5. The promotion procedure for 1978 began on 19 June 1978 when the joint He did not receive his periodic report for group known as the "Instance Zero" met the period from 1 June 1973 to 30 June to conduct a preliminary examination of 1975 until 24 May 1977. In that report the merits of the officials eligible for the reporting officer [assessor] awarded promotion, of whom there were 75 in him "average" for ability and efficiency Grade A 5 whereas under the budget the and "above average" for conduct in the openings for promotion to Grade A 4 service. On 6 June Mr Gratreau returned were three in number. The task was the report to the reporting officer with pursued on 28 September 1978 by the his comments and a request that he be Promotion Committee of First Instance heard by him in the event of dis- and on 10 October 1978 by the agreement. Promotion Committee of Second Instance. Draft lists were sent to the Commission which, by decision of 9 November, drew up the list of officials In those comments the applicant stated most deserving of promotion to Grades that he "was regretfully unable to accept A 6, A 5 and A 4. The promotion

decision, which did not include the That complaint went without answer. In applicant, was taken by the Commission accordance with Article 90 of the Staff on 20 December 1978. Throughout the Regulations it was deemed to have been whole procedure the position of officials the subject of an implied decision on assigned to "indirect actions" was 5 July 1979 and on 5 October the considered separately whereas the lists applicant instituted proceedings before under challenge also included officials of the Court seeking the annulment of the the Joint Research Centre. These lists said lists (Case 156/79). were published in "Administrative Notices" on 20 November and 20 December 1978 respectively. By a letter of 30 October 1979, which was notified to the applicant on 22 November, the Commission expressly In regard to the applicant, the various rejected the applicant's complaint. On 6 promotion bodies had available to them February 1980 the applicant brought the in particular a full list of his scientific second action seeking the annulment publications and a proposal for of the decision of 30 October 1979 promotion from the Directorate-General (Case 51/80). which terminated with the following conclusion: "Mr Gratreau, who has already been proposed on several The Commission raised an objection of occasions for promotion to Grade A 4 is inadmissibility against the latter action. certainly deserving of it; its omission, this year, would be both an error and an On hearing the report of the Judge- injustice". Rapporteur and the views of the Advocate General, the Court decided, by order of 29 May 1980, to reserve its The periodic report for 1975 to 1977 was decision on the objection for the final only sent to the applicant on 14 judgment and the two cases were also September 1978. On this occasion the joined for the purposes of the oral reporting officer had awarded "average" procedure and judgment, the parties for ability and "above average" for having dispensed with the written efficiency and conduct. The applicant procedure in Case 51/80. again sent comments to the reporting officer but did not procure the desired amendments. He then applied to the appeal assessor who amended the 2. The relevant regulations periodic report and sent it to the applicant on 7 September 1978 with the Article 43 of the Staff Regulations assessment of "above average" trans- provides : ferred from efficiency to ability.

Pursuant to that provision, the Com- mission adopted General Implement- ing Provisions concerning staff [periodic] II — C o n c l u s i o n s of t h e p a r t i e s reports and issued a Guide to Staff Reports. The applicant claims that the Court should: Article 6 of the General Implementing Provisions provides: "Should the official — Declare both applications admissible; assessed wish to make any comments on his report the assessor shall hear him". — Declare that they are well-founded; Article 7 enables the official to appeal to an appeal assessor and thereafter to a Joint Committee whose assessment is to — In consequence, annul: be regarded as final. 1. The lists of officials who are eligible for promotion and who Article A.2 of the Guide to Staff Reports were promoted for the 1978 states that "The purpose of the reports is financial year; made quite clear by Article 45 of the Staff Regulations . . . Thus, staff reports 2. The Commission's decision of 30 are one means by which the appointing October 1979 rejecting the authority can compare the merits and complaint to the same effect, abilities of the various officials . . . " . submitted by the applicant through official channels; In Article B.7.3.1. the Guide to Staff — Order the Commission to pay the Reports gives expression to the official's costs. right to be heard by the assessor. Article B.7.3.2. is thereafter worded in the following terms: The Commission contends that the Court should : "Following this dialogue the assessor may purely and simply confirm the — Dismiss the application in Case 51/80 report or may modify all or part of it. as inadmissible;

The Commission argues first that the action is directed against the acts which make up the promotion procedure, Finally, the Commission considers that in which followed a wholly regular course, any event . the promotions already and not against the periodic reports. The effected should not be annulled. Such Commission stresses that the applicant annulment would cause the promoted did not avail himself of his right of officials harm which, in its totality, appeal to the appeal assessor so far as would be disproportionate to any the first report was concerned or of his prejudice which the applicant may have opportunity to appeal to the Joint suffered and the latter's rights may Committee on Staff Reports so far as the be safeguarded by more appropriate second report is concerned. measures.

GRATREAU v COMMISSION

JUDGMENT OF 18. 12. 1980 — JOINED CASES 156/79 AND 51/80

Decision

1 By applications lodged at the Court Registry on 5 October 1979 and 6 February 1980 Pierre Gratreau, a scientific officer of the Commission employed in connexion with "indirect actions", who carries out his duties at Frascati in the context of the Euratom-CNEN Association Contract, brought two actions against the Commission of the European Communities.

2 The first of these actions (Case 156/79) seeks the annulment of:

(a) the list of officials in Category A, paid from research appropriations, judged to be the most deserving of promotion to Grade A 4 for the financial year 1978;

(b) the list of those officials who were promoted to Grade A 4 for the said financial year;

and was directed against the two lists. So far as relevant to the present cases, the applicant contended in particular that when the lists were drawn up his personal file was not in order since the periodic report for the 1973 to 1975 period had been irregularly included in his file and the periodic report for the 1975 to 1977 period was not yet final.

6 The Commission neglected to reply to that complaint within the four-month period provided for in the said Article 90 with the result that on 5 July 1979 it was deemed to have taken an implied decision of rejection, upon which the applicant brought the first action on 5 October 1979 (Case 156/79).

7 On 22 November 1979, after the expiry of the period, the Commission sent the applicant an express decision rejecting his complaint. In so far as the periodic report for the 1973 to 1975 period is concerned, the Commission confined itself to stating that the applicant had not availed himself of the appeal through official channels against that report and that the report had therefore become final. The second action (Case 51/80) of 6 February 1980 is directed against that express decision.

8 So far as concerns the first action, the admissibility of which is not disputed by the Commission, it should be noted that the disputed lists include officials employed in the Joint Research Centre as well as officials who, like the applicant, were employed in connexion with "indirect actions". However, it appears from the file that, as regards the latter, the lists were drawn up on the basis of separate decisions of the Commission dated 9 November and 20 December 1978 respectively. The action should therefore be understood as seeking the annulment of the lists only in so far as they are based on those decisions.

A — The periodic reports

1 2 It appears from the file in the case that the two reports were compiled with considerable delay. The applicant only received the periodic report relating to the period from 1 July 1973 to 30 June 1975 on 24 May 1977 and the report relating to the period up to 30 June 1977 was only sent to him on 14 September 1978.

u The Commission has explained these delays as arising from the fact that officials who work within the framework of association contracts do not have immediate superiors on the spot. They come directly under the director of the relevant programme. The director of the "Fusion" programme, under whom the applicant comes, is thus required to compile reports on 72 officials spread over six Member States and eight different cities.

GRATREAU v COMMISSION

is In this regard it should be emphasized that the Commission may not put forward its internal administrative organization as a justification for the non- observance of its obligations towards its officials. As the Court has already stated in its judgment of 14 July 1977 in Case 61/76 Geist v Commission [1977] ECR 1419, one of the bounden duties of the administration is to ensure that the reports are drawn up periodically on the date laid down by the Staff Regulations and that they are drawn up in a proper form. In the present case, the Commission has failed in that duty.

i6 After receiving his periodic report for 1973 to 1975 the applicant returned it within the prescribed period on 6 June 1977 and informed the reporting officer that, for reasons which he explained, he was "regretfully unable to accept the assessment relating to ability". Despite several reminders and a personal interview with the reporting officer on 16 November 1977, the letter of 6 June 1977 remained unanswered until 12 September 1978 when the reporting officer informed the mediator, Mr De Groóte, to whom the applicant had meantime referred the matter, that he had taken account of the comments of the official under assessment in drawing up the report relating to the 1975 to 1977 period. In fact, the reporting officer had caused the report for the preceding period and the applicant's comments to be filed in the applicant's personal file without informing either the applicant or the mediator of this.

B — The effects of the irregularity in the personal file

20 According to the applicant, the irregular and incomplete state of his personal file made it impossible for the promotion committees and the appointing authority to carry out, in his case, the consideration of comparative merits which is provided for in Article 45 of the Staff Regulations. The applicant argues in particular that it is well known that an official whose assessment for efficiency and ability is no higher than "average", as was the case in his report for 1973 to 1975, is automatically eliminated, especially where there are 75 candidates for three available posts.

2i The Commission emphasizes that, for the purpose of giving consideration to comparative merits, the promotion committees and the appointing authority had available a great deal of information and documents relating to the officials of which the periodic reports constituted only a part. In so far as the applicant is concerned, the Commission stresses above all the existence of a proposal for promotion which spoke highly of him and a complete list of his scientific publications.

22 On several occasions, and most recently in its judgment of 5 June 1980 in Case 24/79 Oberthür [1980] ECR 1743, the Court has stressed the importance of the periodic report as a criterion of assessment each time an official's career is taken into, consideration by the administration. Thus, pursuant to Article 45 (1) of the Staff Regulations, officials may be promoted

GRATREAU i COMMISSION

only after consideration of the comparative merits of the officials eligible for promotion and of the reports on them. Although it is true that in exceptional circumstances the absence of periodic reports may be compensated for by the existence of other information on an official's merits, such is not, however, the case with a report irregularly included in a personal file after it has been challenged by the official. Moreover, the mere existence of a proposal for promotion, even in eulogistic terms, and a list of the official's publications, drawn up by him and containing no objective assessment of their scientific value, cannot make up for the absence of a proper periodic report.

n In order to give judgment on the application it is therefore necessary to ask the Commission to supply the Court with the information available to the promotion committees and the appointing authority in so far as that infor- mation is necessary to enable the Court to judge whether the irregularity in the applicant's personal file was capable of having an effect upon the disputed decisions.

28 However, in view of the fact that in the foregoing considerations the Court has already decided several of the issues between the parties it is appropriate first to give them the opportunity of reconsidering the applicant's position in the light of those considerations and, if appropriate, of seeking to reach an extra-judicial settlement on the method whereby any damage suffered by the applicant may be made good and account also be taken of the legitimate interests of the other officials.

On those grounds,

THE COURT (Second Chamber)

by way of an interim decision given on the application for annulment brought by Pierre Gratreau in Case 156/79, hereby:

1. Orders the parties to report to the Court before 30 April 1981 either notifying it of any extra-judicial settlement which they may have reached or providing it with all additional information necessary to enable it to give final judgment in the dispute;

OPINION OF MR ADVOCATE GENERAL MAYRAS DELIVERED ON 30 OCTOBER 1980 *

Mr President, I — (a) Mr Gratreau, who was born Members of the Court, in 1929, is an engineer and a doctor of physical science. H e entered the service of the Commission in July 1967 as a In the action which is Case 156/79 scientific officer in Grade A 5. Since Pierre Gratreau asks the Court to annul : then, he has carried out his duties in the framework of the Euratom-CNEN 1. the list of officials in Category A, paid ("Comitato Nazionale Energia Nu- from research appropriations, judged cleare") Association Contract at the to be the most deserving of promotion "Laboratorio Gas Ionizzati", which is to Grade A 4 for the financial year based in Frascati (Italy). He is assigned 1978 (published in "Administrative to the fusion programme run by Direc- Notices" No 214 of 20 November torate-General XII (Research, Science 1978); and Education) of the Commission. In 1978, for the fourth consecutive year, he was proposed for promotion from his 2. the list of officials promoted to Grade starting grade to Grade A 4. However, A 4 for the financial year 1978 his name was not included in the lists (published in "Administrative N o - which the Court is asked to declare void. tices" N o 220 of 20 December 1978); In support of his application he advances drawn up by the appointing authority. a single plea: infringement of Article 45

1 — Translated from the French.