C-105/81

JUDGMENT OF THE COURT (FIRST CHAMBER) 28 OCTOBER 1982

Dominique Noëlle Oberthür v Commission of the European Communities

(Official — Annulment of periodic report)

Case 105/81

1. Officials — Assessment — Procedure for appeal within the institution — Opinion of the Joint Committee on Staff Reports — Joint Committee unable to express an opinion on the point raised by the official concerned — Decision of the appeal assessor — Validity (StaffRegulations, Art. 43)

2. Officials — Assessment — Periodic report — Assessor's appraisal — Judicial review — Limits (StaffRegulations, Art. 43)

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jacques Delmoly, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob, of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the annulment of: the decision adopted by Mr Le Goy, appeal assessor, concerning the applicant's periodic report for the period from 1 July 1975 to 30 June 1977; the fourth version of the applicant's periodic report for the period from 1 July 1975 to 30 June 1977; and the decisions of 29 November 1976 and 13 December 1978 transferring the applicant to Directorate General VII with effect from 1 December 1976,

THE COURT (First Chamber)

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

Advocate General: S. Rozès Registrar: P. Heim

gives the following

By decision of 29 November 1976, the (b) A second version, which Mr Wathelet applicant was once again assigned to described as a "Draft Periodic Directorate General VII with effect Report" and dated 1 September 1978, from 1 December 1976. However, she was forwarded by him as the continued to work in Directorate applicant's former head of division to General V until April 1977 when she in Mr Muilwijk. In view of the contents fact took up her duties in Directorate of that draft report, Mr Weindl, Mr General VII. Since the decision of 29 Muilwijk and Mr Zambelli rejected it November 1976 was vitiated by certain and by a memorandum of 7 substantive defects, a new decision was December 1978 confirmed the first adopted on 13 December 1978 assigning report of 2 March 1978 which they the applicant to Directorate General VII had compiled jointly. with retroactive effect from 1 December 1976. (c) On 3 and 4 April 1979 a third version, very similar to that of 1 September 1978 but translated into The present case concerns the applicant's English, was forwarded by Mr periodic report for the period from Wathelet to Mr Munro, ad interim 1 July 1975 to 30 June 1977, which was assistant to the Director General for compiled on 4 April 1979. The failure to Transport. Mr Van Heesen, head compile the report for that period before of the archives of Directorate the merits of the officials eligible for General VII and the only person promotion in 1978 were considered was under whose supervision and with penalized by the Court (First Chamber) whom the applicant had worked in in Case 24/79 [1980] ECR 1743. The that directorate general since 12 background to the report is complicated. April 1977, wrote certain comments It is apparent from the file on the case on pages 2, 3 and 4 which formally that, four reports were compiled before contradicted the judgment of Mr the final version was adopted. Munro, for whom the applicant had

never worked either during that very (b) the periodic report itself; short period of 2 ½ months or, for that matter, during the period (c) the transfers decided on 29 covered by the periodic report from November 1976 and 13 December 1 July 1977 to 30 June 1979. 1978 in so far as they were relevant for the purpose of determining which (d) A fourth version, also dated 3 and 4 directorate general was competent to April 1979 hut in fact compiled after draw up the periodic report and, those dates by Mr Wathelet and Mr consequently, had a bearing on the Munro, was based word for word on case. the previous report in English, with the sole difference that the comments of Mr Van Heesen, the applicant's Since her complaint failed to evoke any superior in Directorate General VII, response within the period prescribed by were not included. This fourth the Staff Regulations, Miss Oberthiir version became the applicant's brought this action on 28 April 1981, definitive periodic report and was which was registered at the Court classified as such in her personal file, Registry on 30 April 1981. although her three former superiors in Directorate General V, namely Mr Upon hearing the report of the Judge- Weindl, Mr Muilwijk and Mr Rapporteur and the views of the Zambelli, had not been consulted. Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory Since she was dissatisfied with the final inquiry. version of the report, Miss Oberthiir lodged the complaints provided for by the Guide to Staff Reports. II — Conclusions of the parties (a) She asked for the report to be submitted to the appeal assessor, Mr Le Goy. When requested by the In her application, the applicant claims Director for Personnel to review the that the Court should: report, Mr Le Goy refused to make any changes and confirmed the existing report by decision of 4 July "Annul the decision adopted by Mr 1980. Le Goy, appeal assessor, in his memorandum of 4 July 1980, regarding the applicant's periodic report for the (b) Miss Oberthiir asked for the report period from 1 July 1975 to 30 June 1977; to be submitted to the Joint Committee on Staff Reports. The Committee was divided in its Annul the fourth version of the evaluation of the report and failed to applicant's periodic report for the period give an opinion on its contents. from 1 July 1975 to 30 June 1977;

The Commission maintains that at the III — Submissions and argu­ time of her assessment the applicant had ments of the parties been officially assigned to the Secretariat General of Directorate General VII (Transport) for over six months. It was A. The decision adopted by Mr Le Goy, for that directorate general to draw up appeal assessor, on 4 July 1980 her periodic report in accordance with the first paragraph of Article 3 of the General Provisions for Implementing First submission: The applicant argues Article 43 of the Staff Regulations. that Mr Le Goy was not the competent Moreover, the Commission emphasizes appeal assessor because Directorate that, according to the relevant version of General VII was itself not competent to the Guide to Staff Reports, that is to say draw up the applicant's periodic report. the version in force in September 1973, an official's de jure assignment took precedence over his defacto assignment. The question whether it was necessary, for the purpose of determining the competent directorate general, to take Second submission: The applicant account of the official's de facto observes that the Joint Committee on assignment or of his de jure assignment is Staff Reports did not express an opinion open to dispute. The Guide to Staff on the contents of the report in question Reports for September 1971, which and that, accordingly, Mr Le Goy applies to the contested report, provides adopted his decision without taking that that: factor into account, whereas he should have referred the matter to the administration to enable it to take steps "Application of these rules may give rise in order to permit the Joint Committee to problems either for the assessor, or for to carry out its duties. the person assessed, or for both. These problems must be solved by reference in each case to de facto or de jure The administration should have referred situations". the file to the Joint Committee with a request that it vote on the matter. In the absence of any rules stipulating that the It does not follow that an official's de Joint Committee's decisions must be jure assignment must take precedence unanimous, the general principle over his de facto assignment for the concerning votes at meetings may be purpose of determining the appropriate applied, according to which decisions are assessor. adopted by a simple majority.

3. The periodic report itself was based The Commission replies that, when he word for word on a memorandum was consulted by the appeal assessor who drafted by Mr Wathelet, the terms of showed him the report in questioni Mr which fell short of those of the draft Van Heesen signed it without comment. report which he compiled on Mr Van Heesen wrote certain obser­ 1 September 1978, in which the vations on Miss Oberthür's copy of the applicant's output was assessed as report. Since those comments were being above average. That draft communicated to the appeal assessor report was rejected by Mr Wathelet's after the report had been drawn up, they three colleagues. could not be taken into account.

OBERTHÜR v COMMISSION

As far as Mr Wathele s memorandum is Administration Division in Directorate concerned,, the Commission states that it concerned General V , to which the applicant was was drafted by Miss Oberthür herself assigned between October 1975 and and signed in Mr Wathele s absence by 1977,, and Mr Van Heesen March 1977 Heesen,, the Weindl,, his deputy Mr Weindl deputy.. That report is applicant's superior between March and devoid of any value because it was not 1977,, the assessor complied with June 1977 assessor,, in compiled by the competent assessor the rules contained in the Guide to Staff Wathelet,, the applicant's this case Mr Wathelet Reports Reports.. division.. head of division

case,, Mr Munro should have In this case B. The periodic report consulted the applicant's superiors in the other departments to which she was or assigned,, namely Mr Weindl had been assigned Weindl,, Fifth, sixth and seventh submissions: Muilwijk,, Mr Zambelli and Mr Muilwijk and,, possibly possibly,, According to the applicant, the periodic Klein.. Mr Foret and Mr Klein report should not have been compiled by an assessor from Directorate General VII since he was not competent to do so; The Commission on the other hand moreover, it is based on tactual contends that by consulting Mr considerations which are incorrect or Wathelet,, Head of the Finance and Wathelet incomplete. In addition, the report was

JUDGMENT OF 28. 10. 1982 — CASE 105/81

compiled in English, although the Guide In reply, the Commission states that in to Staff Reports states that it must be any event her application for the drawn up in the mother tongue or annulment of those decisions is wholly habitual language of the official unfounded. concerned.

In her reply, the applicant observes that C. The applicant's assignment to Direc- she had no cause to lodge a complaint torate General VII against the decisions transferring her until she instituted these proceedings during which those decisions were used against her. Until then, she had regarded Eighth submission: According to the them as neutral. applicant, the decisions of 29 November 1976 and 13 December 1978 transferring her to Directorate General VII with effect .from 1 December 1976 would acquire significance in this case only if the Court were obliged, for the purpose IV — Oral procedure of determining the assessor, to refer to the de jure rather than to the de facto assignment. If that were so, the applicant's de jure assignment would not The parties presented oral argument at correspond to the true state of affairs the sitting on 10 June 1982. because the applicant worked in Direc­ torate General V from 29 September 1975 until 11 April 1977. She should therefore have been assessed by an The Advocate General delivered his assessor from that directorate general. opinion at the sitting on 8 July 1982.

OBERTHÜR v COMMISSION

Decision

1 By application lodged at the Court Registry on 30 April 1981, Miss Oberthür, an official of the Commission of the European Communities, brought an action pursuant to Article 179 of the EEC Treaty and Article 91 of the Staff Regulations of Officials for the annulment of her periodic report for the period from 1 July 1975 to 30 June 1977, the appeal assessor's decision concerning that report and the decisions of 29 November 1976 and 13 December 1978 of the Director for Personnel transferring the applicant to Directorate General VII with effect from 1 December 1976.

JUDGMENT OF 28. 10. 1982 — CASE 105/81

contents of the periodic report in question and that the appeal assessor therefore adopted his decision without taking that factor into account, whereas he should have referred the matter to the administration to enable it to take steps in order to permit the Joint Committee to carry out its duties.

5 As regards the decisions of 29 November 1976 and 13 December 1978 transferring the applicant to Directorate General VII, she maintains that the first decision was vitiated by certain errors and that the second decision, which had retroactive effect, was invalid on the ground that it was prejudicial to her interests. The decision of 13 December 1978, replacing that of 29 November 1976, was adopted in order to permit the applicant to be assessed by an assessor from Directorate General VII rather than by an assessor from Directorate General V, which, according to her, would have been the competent directorate general if the second decision had not been taken.

The decisions of 29 November 1976 and 13 December 1978

6 It is necessary to consider first the claim for annulment of the decisions of 29 November 1976 and 13 December 1978, which may affect the other claims contained in the application.

7 By decision of 29 November 1976, the Director for Personnel took the following decision:

9 However, the applicant failed to challenge the validity of the decision within the period prescribed by the Staff Regulations and her application for annulment is therefore inadmissible. Even if her application were admissible, it would be unfounded. The contested decision identified the applicant by her surname and forename and by her personnel number. Her new assignment and the date on which it was to take effect were clearly specified. It follows that the applicant could not have been in any doubt as regards the effect of the decision and that consequently her application for annulment is unfounded.

10 The Director for Personnel annulled and replaced the decision of 29 November 1976 by the decision of 13 December 1978. Unlike the first decision, the second decision correctly specified the applicant's status and former assignment; its purpose was merely to rectify the errors contained in the first decision whilst confirming the effects thereof. It follows from the circumstances described above that, even in the absence of the second decision, the applicant would still have been validly assigned to Directorate General VII and that, consequently, she has no interest in seeking the annulment of that decision. In any event, the applicant failed to challenge it within the period prescribed by the Staff Regulations and her application for annulment is therefore inadmissible.

11 The application for the annulment of the decisions of 29 November 1976 and 13 December 1978 must therefore be dismissed as inadmissible and, in any event, as unfounded.

15 The applicant maintains that the report is invalid on the ground that her superior in Directorate General V was not consulted in accordance with Article 4 of the General Provisions. It is apparent from the file, however, that the applicant's superior in Directorate General V, Mr Wathelet, was consulted and indicated that he agreed with the report. The same is true of Mr Van Heesen, the applicant's immediate superior in Directorate General VII.

16 The applicant also argues that her periodic report is null and void because it was drawn up in English, whereas the Guide to Staff Reports provides that the form used must be in the mother tongue or main language of the official

OBERTHÜR v COMMISSION

assessed. During the oral procedure, the applicant withdrew this submission. Accordingly, there is no need to consider it.

17 Since the submissions concerning the periodic report are unfounded, the application for annulment must be dismissed.

Review by the appeal assessor

20 It should be noted, moreover, that by letter of 15 May 1979 the applicant was notified by Mr Pratley, Head of the Individual Rights and Privileges Division, that if she wished to appeal the appeal assessor was the Director General for Transport.

JUDGMENT OF 28. 10. 1982 — CASE 105/81

21 On 23 May 1979, the applicant sent a long letter to Mr Le Goy, Director General for Transport, in which she took formal note of Mr Pratley's statement concerning the identity of the appeal assessor.

22 By letter of 12 June 1979, Mr Le Goy asked the applicant whether she had written to him in his capacity as appeal assessor and, if so, to arrange an appointment with him. It is clear from the evidence before the Court that an appointment was arranged and that on 19 June 1979 a meeting took place between the applicant and Mr Le Goy in which Mr Munro took part. Following that meeting, the applicant asked for the matter to be referred to the Joint Committee on Staff Reports.

23 It appears that before the Joint Committee the applicant attempted to cast doubts on the validity of her assessment by an assessor from Directorate General VII. Since the Joint Committee was unable to express an opinion on the matter, the appeal assessor upheld the periodic report.

24 The Guide to Staff Reports does not specify the procedure to be followed in cases in which the Joint Committee does not express an opinion on a matter duly referred to it. The Guide makes provision for cases in which the Joint Committee does not consider itself obliged to accept the observations made by the official. In such a case, the opinion expressed is merely entered in the file.

28 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, institutions are to bear their own costs in proceedings by servants of the Communities.

On those grounds,

THE COURT (First Chamber)

hereby:

application;; 1. Dismisses the application

costs.. 2. Orders the parties to bear their own costs