C-207/81
ECLI:EU:C:1983:123
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JUDGMENT OF 5. 5. 1983 — CASE 207/81
the report is made periodically at the 3. Where the administration exceeds by intervals prescribed by the Staff Regu- far the reasonable period which it has lations and that it is drawn up in a at its disposal in order to complete an proper manner. The administration official's report and is unable to prove has a reasonable period at its disposal the existence of special circumstances in which to do this and any failure to of such a nature as to justify the act within that period must be delay, that omission is of such a justified by the existence of special nature as to entail liability on the part circumstances. of the administration.
In Case 2 0 7 / 8 1
K U N O DITTERICH, represented b y Marcel Slusny, of the Brussels Bar, with an address for service in L u x e m b o u r g at t h e C h a m b e r s of Ernest A r e n d t , Avocate, C e n t r e Louvigny, 34B R u e Philippe-II,
applicant,
v
COMMISSION OF T H E EUROPEAN COMMUNITIES, r e p r e s e n t e d by J ö r n Pipkom and H e n d r i k van Lier, members of its Legal D e p a r t m e n t , acting as Agents, with an address for service in L u x e m b o u r g at t h e office of O r e s t e M o n t a k o , a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Plateau du Kirchberg,
defendant,
A P P L I C A T I O N for t h e a n n u l m e n t of the applicant's periodic r e p o r t for t h e period 1 July 1975 t o 30 J u n e 1977 a n d for damages for t h e irregularities and delay in t h e d r a w i n g u p of that report a n d , in the alternative, for an o r d e r requiring t h e defendant t o p r o d u c e t h e w h o l e file relating t o t h e periodic r e p o r t for t h e period 1975 t o 1977 a n d also for an o r d e r requiring various facts set o u t in t h e application t o be established by the evidence of witnesses,
T H E C O U R T (Third C h a m b e r )
composed of: U . Everling, President of C h a m b e r , G. Bosco a n d Y. G a l m o t , Judges,
Advocate G e n e r a l : G. Reischl Registrar: J. A. P o m p e , D e p u t y Registrar
gives t h e following
DITTERICH v COMMISSION
JUDGMENT
Facts and Issues
The facts of the case, the course of the The report contains a general assessment procedure and the conclusions, sub- which reads as follows: missions and arguments of the parties may be summarized as follows: "Mr Ditterich certainly has the right abilities for systems analysis which, together with a greater spirit of I — F a c t s and w r i t t e n p r o c e d u r e cooperation, could be of more benefit to himself and to the JRC programme."
Kuno Ditterich, a German national, was His conduct in the service was judged to engaged on 4 October 1954 by the be "average" whilst his ability and Commission of the European Atomic efficiency were marked as "above Energy Commission as an official in the average". scientific service. The applicant disputed the general He works at the Joint Research Centre assessment and at their meeting on (JRC) at Ispra and is at present in Grade 11 January 1980 told Mr Bishop, his A 5, Step 8. After being assigned to the assessor, that he was unhappy about it. Chemistry Division of Department C until 1 January 1977 he was assigned to Availing himself of the right provided for Department A on that date. in the second paragraph of Article 43 of the Staff Regulations to make comments By virtue of the first paragraph of Article on the periodic report communicated to 43 of the Staff Regulations of Officials him, Mr Ditterich contended in a an official's ability, efficiency and memorandum dated 17 January 1980 conduct must be the subject of a periodic that the general assessment was irrec- report made every two years. oncilable with the fact that during the period covered by the report he had The periodic report covering the period published numerous articles in collab- 1 July 1975 to 30 June 1977 was drawn oration with other officials at the Ispra up by the assessor, Mr Bishop, the establishment. The applicant considered director of Department C, after consul- that the comment in question was the tation with Mr Hannaert, the head of result of a subjective, and not an division under whom the applicant objective, examination of the facts and worked until 31 December 1976, and Mr consequently asked for it to be struck Helms and Mr Stesser, respectively out. director and head of the division to which he has belonged since that date. Mr Ditterich called in the appeal assessor, Mr Mas, Deputy Director- According to the Commission, it was General of the Joint Research Centre those consultations which delayed the and Director of the Ispra establishment. signing of the report by Mr Bishop until After a discussion with the applicant on 29 December 1979. 5 March 1980 the appeal assessor
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confirmed the periodic report on 26 In his application the applicant, who March 1980. states that he does not know whether his complaint of 1 December 1980 was submitted to the Joint Committee on On 31 March 1980 the applicant Staff Reports, reserves the right to raise appealed to the Joint Committee on Staff one or more fresh issues during the Reports which gave its opinion on 15 proceedings pursuant to Article 42 of the July 1980. Rules of Procedure of the Court.
After noting that the applicant's conduct Replying to the applicant's complaint of in the service was marked as "average" I December 1980 the Vice-President of whereas in his previous report covering the Commission informed the applicant the period 1973 to 1975 his conduct had on 11 August 1981 that the Commission been judged to be "above average" the could not accept his complaint, in Committee concluded its opinion by particular because his comments stating that it regretted that "that provided no evidence that the as- assessment, which is closely related to sessments made by his superiors were the general assessment contested in the invalid or that the delay in adopting the memorandum, was not accompanied by periodic report had been prejudicial to any explanatory comments, such him. comments being particularly important where an assessment is less favourable than that made in the previous report". Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General the Court (Second When requested by the Joint Committee Chamber) decided to open the oral on Staff Reports to justify the mark procedure without any preparatory awarded for the applicant's conduct in inquiry. the service Mr Mas stated that "during this period Mr Ditterich systematically questioned all his superiors' decisions Owing to the change in its composition concerning him". the Court decided, by order of 7 October 1982, to assign the case to the Third Chamber. That further statement altering the periodic report was notified to the applicant on 22 October 1980. II — C o n c l u s i o n s of t h e p a r t i e s By a memoramdum dated 1 December 1980 received at the Commission on 16 December Mr Ditterich lodged a In his application the applicant claims complaint under Article 90 (2) of the that the Court should: Staff Regulations against the appointing authority's decision of 22 October 1980 1. Declare the applicant's periodic report adopting the definitive version of his for the period 1 July 1975 to 30 June periodic report. 1977 and also the appeal assessor's decision of 22 October 1980 null and void; After deciding that there was an implied rejection of his complaint Mr Ditterich brought the present action, his ap- 2. In any event order the defendant to plication being registered at the Court on pay the applicant on account of the 8 July 1981. irregularities and delay which oc-
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curred the sum of BFR 500 000 plus his superiors' decisions concerning interest at the usual rate calculated him; from 1 December 1980, this claim being subject to alteration during the 5. Order the facts set out in the proceedings; application to be established by the evidence of witnesses. 3. Order the defendant to pay the costs; 6. The applicant proposes as witnesses: In the alternative (i) His colleagues in the Chemistry 4. Order the defendant to produce the Department and in Department whole file concerning the periodic A; report for 1975 to 1977, excluding (ii) His superiors in both those and withholding nothing; departments. 5. Order the following facts to be 7. In that event reserve the costs. established by the evidence of witnesses: The Commission contends, making all (a) that the applicant worked with his such reservations as may be appropriate, colleagues in a climate and with a that the Court should : spirit of cooperation in all usual matters; Dismiss the application as unfounded;
(b) that the applicant did not Order the applicant to pay the costs. systematically oppose his su- periors' decisions. I l l — Submissions and arguments In his reply the applicant claims that the of the parties Court should also: Eight submissions are made, two of them 1. Declare the Commission's decision in the reply. contained in its letter of 11 August 1981 null and void; The first submission 2. In any event order the Commission to pay the applicant on account of the The first submission is that the general irregularities and the delay which assessment in the periodic report occurred such sum as the Court concerning the insufficient spirit of considers fair and equitable by way of cooperation on the part of Mr Ditterich compensation for the material and is based on inaccurate information and is non-material damage suffered; contradictory. 3. Order the Commission to pay the The applicant, who requests the Court to costs. verify whether there is any contradiction between the facts and the comments in In the alternative the periodic report, states that during the period covered by the report he 4. Order the Commission to produce in published in collaboration with other particular documentary evidence of officials a number of articles for which his alleged systematic questioning of he provides the references.
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That fact conflicts with the assessor's The Commission stresses that it did not general assessment noting a lack of accuse the applicant of showing no spirit cooperation on the part of the applicant of cooperation at all. It simply believes and the appeal assessor's contention that that with a greater spirit of cooperation he systematically questioned decisions. he could derive more benefit from his knowledge. T o contend that there is a factual error or a contradiction between the facts of the case and the general The applicant also contests the relevance assessment is not therefore correct. of the facts to which the appeal assessor referred without specifying them. He considers that, since the appeal assessor's charge was that his questioning of decisions was systematic, he ought to have indicated the facts on which he In their analytical assessment, the based his assessment. assessors described the applicant's conduct as "average" — whilst in the previous report it was described as "above average" — because of repeated incidents evidencing a rather contentious H e observes that the Court has always attitude on the part of the applicant. On taken the view that it may verify the this point the Commission stresses that accuracy of facts on which an assessor's on several occasions the applicant opinion is based without substituting its prepared or undertook to prepare papers own assessment for that of the assessing on certain research programmes at the authority. Centre in spite of the disapproval of the director of .Department C, Mr Bishop, and of Mr Bresesti, the head of programmes at the Ispra establishment. Accordingly, the applicant requests the For example, the applicant continued to Court to hear from witnesses (his prepare a paper on radioactive waste superiors, colleagues and subordinates in more than a year after the Council's the two departments to which he decision to stop research work in that belonged) to establish whether the field and despite Mr Bresesti's request assessor's and appeal assessor's assertions that he should not do so. Mr Bresesti are correct. was forced to forbid him to proceed with the paper. In spite of that incident the applicant prepared a further paper without asking for authority from his superiors. The Commission's view is that terms of the periodic report do not indicate any ignorance of the facts relating to the applicant's conduct, ability or efficiency. Although the existence of published works produced by the applicant in collaboration with other colleagues is The Commission points out that in a evidence of his aptitude for working with consistent line of decisions, in particular others in one particular way, it does not the judgments of 12 May 1977 in Case necessarily indicate the same spirit of 31/76 Macevičius v Parliament [1977] cooperation in his relations with his ECR 883, especially paragraph 8, of 25 colleagues within the establishment. November 1976 in Case 122/75 Küster v
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Parliament [1976] ECR 1685, especially In the applicant's view, in stating that he paragraph 9, of 17 March 1971 in Case had systematically questioned his su- 29/70 Marcato v Commission [1971] periors' decisions, the appeal assessor did ECR 243, especially paragraph 7, and of not give the explanation asked for but 5 November 1963 in Joined Cases 35/62 made a fresh assessment which logically and 16/63 Leroy v High Authority of the ought to have precluded his conduct ECSC [1963] ECR 197, especially at from being marked as "average". pages 206 and 207, the Court has refused to substitute its assessment for that of the assessor, especially where complex value judgments are involved. The Commission states that the appeal The Court only sanctions lack of assessor wished to emphasize that the authority, irregularity of form or applicant's systematic questioning procedure, misuse of power, error or prevented him from obtaining the "above manifest contradiction. average" mark which he had previously earned. Only if his questioning had made any form of cooperation impossible, not only with his superiors but also with his colleagues in the division, or if he had The second submission refused to obey instructions, would his conduct have had to be classified as "below average" or, depending on the circumstances, given rise to other proceedings against him. The second submission is that the assessor's general assessment and the reason given by the appeal assessor for that assessment are contradicted by the According to the Commission, the description of the applicant's conduct as applicant had not adduced any evidence "average". indicating that it exceeded its power of appraisal.
The applicant observes that, if the criticism about his alleged lack of spirit The third submission of cooperation or questioning attitude had been justified, his mark for conduct in the report would inevitably have been affected. The third submission is that the reason given by the appeal assessor is ambiguous as it is not clear whether it refers to the applicant's conduct or to his work.
He points out that, since the mark awarded for conduct in the present report was different from that awarded According to the applicant, there is every in the previous report for 1973 to 1975, reason to believe that the statements the Joint Committee on Staff Reports in made in his periodic report were a result its opinion of 15 July 1980 asked the of his administrative situation or, to put appeal assessor, Mr Mas, to explain, so it more precisely, of friction between him far as necessary, why this was so. and the Administration after the refusal
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of his request for promotion, leading to According to the Commission, the proceedings in which the Court gave a provision in the Guide to Staff Reports judgment on 12 October 1978 ([1978] (1973, p. 39, Annex VII to the defence) ECR 1855). He believes that an official requiring below-average and above- is entitled to question his superiors' average assessments to be commented decisions and that disputes of that kind upon by no means prohibits the giving of are not of such a nature as to affect the reasons for average assessments as this service. Therefore they should not enter can only help to make periodic reports into the assessment of an official's clearer and thus give the officials conduct in the service. assessed greater reassurance.
The Commission observes that the The Commission points out that the applicant has not offered to prove which comment in question was added in of the circumstances of his administrative response to the wish of the Joint situation caused the assessors to make Committee to which the applicant had the assessments in question. himself referred the matter.
According to the Commission, it is clear The Commission observes that it is the that the explanation given by the appeal generally accepted practice for reasons to assessor relates to the applicant's conduct be given, at the Joint Committee's and not to his efficiency, ability or suggestion, for average assessments if the administrative situation. assessment in the previous report was above average. In this case, the Joint Committee expressed such a wish in its The fourth submission opinion of 15 July 1980.
The fourth submission is that the rules in The fifth submission the Guide to Staff Reports were not observed. The fifth submission is that, contrary to the requirements of the Guide to Staff According to the applicant, it is clear Reports, the periodic report and the from the Guide to Staff Reports that appeal assessor's assessment were not only above-average and below-average written in the applicant's native or main assessments should be justified. The language. applicant therefore considers that the appeal assessor was not entitled to justify the assessment of the applicant's conduct In the applicant's view it would have as average. been preferable for the report to be written either in German, his native language, or in English, the language Although the explanation was given by which he and the assessor use. The the appeal assessor in response to a wish report was, however, written in French. expressed by the Joint Committee on Staff Reports, the date on which that wish was made known to the appeal The Commission points out that, on page assessor should, in the applicant's view, 41, the Guide to Staff Reports provides be established in order to determine that "The form used must be in the whether the Guide to Staff Reports as mother tongue or main language of the then in force was followed. person assessed. However, assessors may
DITTERICH v COMMISSION
use the official language of their choice. up periodic reports is well known. That Where the language chosen by the fact is clearly apparent from the assessor is different from the mother decisions of the Court. In his case the tongue or main language of the person report for the period 1969 to 1971 was assessed, a translation of the assessment not notified to him until 7 January 1975. must be given to him if he so requests".
Referring to the judgment of 5 June In the Commission's view this submission 1980 in Case 24/79 Oberthiir v is groundless as the applicant did not Commission [1980] ECR 1743, the exercise his right under the Guide to applicant considers that the delay in Staff Reports to ask for a translation of drawing up the report in issue caused the comments entered by the assessors in him material and non-material damage the report in question, which was written as the incomplete and thus irregular state on a German-language form. of his personal file reduced his chances of promotion.
The Commission also observes that the application made to the Court is in The merits of officials eligible for French. promotion are examined in the light of their periodic reports. It is plain from the judgment of 14 July 1977 in Case 61/76 Ge»ŕ v Commission [1977] ECR 1419 that the prompt drawing up of an The sixth submission official's report is a guarantee for the regular progress of his career.
The sixth submission concerns the delay in the drawing up of the report in its The applicant seeks compensation for the definitive version and the harm which material and non-material damage which this caused to the applicant. he suffered and which in his application he estimates at BFR 500 000. After explaining in his reply that in assessing the damage he took account of the fact The applicant observes that the report for that the authorities at Ispra were the period 1975 to 1977, which ought to persistently slow in drawing up periodic have been made by the end of 1977 at reports despite the judgments given on the latest, was not signed by the assessor this matter, the applicant states the he until 29 December 1979. That delay was leaves the assessment of damages to the made still worse by the fact that the Court. opinion of the Joint Committee on Staff Reports dated 15 July 1980 was not followed by a decision within eight days, as required by the Guide to Staff Reports The Commission, whilst regretting the — the decision was not taken until 22 length of time taken to draw up the October 1980. report in question, points out that the applicable version of the Guide to Staff Reports does not lay down any strict time-limit for the drawing up of periodic According to the applicant, the slowness reports. In the present case the delay was of the administration at Ispra in drawing due to changes in the unit in which the
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applicant worked and to his own change action was brought — to the complaint of posting which made it necessary to which the applicant had submitted to it consult several of his superiors or former on 1 December 1980 was not made in superiors. reasonable time and was not preceded by consultation of the Joint Committee on Staff Reports, contrary to the re- In the Commission's view the allegation quirements of the Guide to Staff that material damage was suffered is Reports. without foundation. As the applicant did not promptly challenge any promotion decision taken during the period in The applicant observes that on page 187 which the periodic report ought to have of the 1971 version the Guide to Staff been drawn up, he cannot now claim Reports provides that: "When the Joint that his chances of promotion have been Committee on Staff Reports had given a affected. negative opinion (see heading C.3.a) or when the appeal assessor has taken a final decision (see heading C.3.b), In any event it is not possible for delay in officials are entitled to lodge a complaint the drawing up of a periodic report to under Article 90 of the Staff Regulations. affect decisions to promote officials. The Joint Committee must be consulted regarding such a complaint. It will then The marks obtained in the same periods be for the Commission, as appointing by the officials promoted were on the authority, to give a final decision on it." whole no lower than those awarded in the applicant's report. According to the applicant, it is clear from that passage that the Commission The Commission notes that although the must take a decision within a reasonable claim for damages is associated with the time after consulting the Joint application for annulment, in actual fact Committee on Staff Reports. it is a claim for compensation. The applicant observes from the In any event the Commission considers document appended as Annex VI to the that the applicant's claims for damages defence that the Commission did not are excessive and hence inadmissible. comply with those requirements.
The Commission points out that in a The Commission explains that the Joint somewhat similar case, at least as far as Committee on Staff Reports was not the sixth submission is concerned, the consulted again since its opinion of 15 Court awarded the applicant BFR 10 000 July 1980 had been complied with by as compensation for non-material virtue of the assessment made by the damage caused by delay in the drawing appeal assessor on 12 October 1980. up of a periodic report (Case 61/76 Geist v Commission [1977] ECR 1419). As regards consultation with the Joint Committee on Staff Reports, it should be The seventh submission, made in the reply observed that the Guide to Staff Reports (attached to the rejoinder) lays down at page 142 the principle of the automatic The seventh submission is that the right of appeal which reduces the Commission's answer given on 11 binding effect of the provisions of the August 1981 — that is to say after this Guide cited by the applicant.
DITTERICH v COMMISSION
The eight submission, made in the reply facts on which the main action is based, it is not alternative to but is connected with the main claims in the application. The eight submission is that the Commission's reply to the applicant's complaint is null and void. The defendant also emphasizes that the very purpose of the applicant's request conflicts with the power of appraisal of The applicant claims that the the assessor who draws up the periodic Commission's reply is void by virtue of report on the basis of a value judgment the considerations put forward in the five which is by its nature subjective. submissions made in the application.
The applicant has nothing to gain from The Commission states that, whilst it making such a request. If judgment is does not agree with the theoretical given in his favour, it will have no considerations which seem to underly purpose. Conversely, dismissal of the that submission, it refers, as far as main action will entail dismissal of the necessary, to the arguments which it alternative claim. submitted to the Court in reply to the applicant's first five submissions.
The alternative claim IV — O r a l p r o c e d u r e In the alternative the applicant asks the Court to establish by the evidence of At the hearing on 3 February 1983 oral witnesses first that he worked in a argument was presented by Marcel climate and with a spirit of cooperation Slusny, Advocate, for Kuno Dittcrich in all usual matters and, secondly, that and by Hendrik van Lier, acting as he did not systematically challenge his Agent, for the Commission of the superiors. European Communities.
The defendant considers that, as the The Advocate General delivered his purpose of that request is to establish the opinion at the sitting on 17 March 1983.
Decision
1 By application lodged at the C o u r t Registry on 8 July 1981 K u n o Ditterich, an official in the scientific service in G r a d e A 5, Step 8, at the Joint Research Centre at Ispra, brought an action seeking:
1. T h e annulment of the applicant's periodic report drawn up on 20 December 1979 for the period 1 July 1975 to 30 J u n e 1977 and of the
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appeal assessor's decision dated 22 October 1980 adopting the definitive version of that report. In his reply the applicant amends his claims, as he reserved the right to do in his application, to include a claim for the annulment of the decision of 11 August 1981 by which the Commission expressly rejected his complaint of 1 December 1980 after this action had been brought. 2. An order requiring the Commission to pay him BFR 500 000 as compensation for the material and non-material damage which that periodic report caused him. In his reply, however, the applicant states that he leaves it to the Court to assess the amount of damages which he may claim. 3. In the alternative, an order that the Commission must produce the whole file concerning the report in question and that the accuracy of the comments made in that report must be verified by the evidence of witnesses.
2 The file on the case shows that the applicant was assigned to the Chemistry Division of Department C of the Joint Research Centre at Ispra until 1 January 1977 at which time he was assigned to Department A.
3 On 20 December 1979 a periodic report on Mr Ditterich for the period 1 July 1975 to 30 June 1977 was drawn up by Mr Bishop, the head of Department C at the Joint Research Centre, after consultation with the heads of department to which Mr Ditterich had been assigned.
4 The report contains a general assessment which refers to a certain lack of spirit of cooperation on the part of Mr Ditterich, whereas his ability and efficiency are marked as "above average" and his conduct in the service as "average".
s Exercising his right to make comments on the periodic report provided for in the second paragraph of Article 43 of the Staff Regulations, Mr Ditterich requested that the assessor's statement noting a lack of spirit of cooperation on his part should be struck out and that the appeal assessor, Mr Mas, Deputy Director-General of the Joint Research Centre and Director of the Ispra establishment, should take up the matter. However, Mr Mas confirmed the periodic report on 26 March 1980.
6 On 31 March 1980 Mr Ditterich then appealed to the Joint Committee on Staff Reports which gave its opinion on 15 July 1980. After noting that the
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applicant's conduct in the service was marked as "average" whereas in his previous report covering the period 1973 to 1975 it had been judged to be "above average", the Joint Committee on Staff Reports asked the appeal assessor, Mr Mas, to justify the assessment relating to the applicant's conduct.
7 In compliance with that request the appeal assessor, Mr Mas, qualified the periodic report on 22 October 1980 by explaining that the assessment in question was due to the fact that during the period covered by the report Mr Ditterich had "systematically questioned all his superiors' decisions concerning him".
s By memorandum dated 1 December 1980 Mr Ditterich lodged a complaint pursuant to Article 90 (2) of the Staff Regulations against the appointing authority's decision of 22 October 1980 adopting the definitive version of the periodic report. Since after more than four months no reply to that complaint had been received from the Administration Mr Ditterich brought this action.
T h e claims for a n n u l m e n t of the p e r i o d i c r e p o r t
9 In his written submissions the applicant claimed that the appeal assessor was not entitled to give an explanation for the assessment of his conduct in the service because it had been judged to be "average", and also that the periodic report was not written in his native language. Those two claims were abandoned at the hearing and need not therefore be considered.
io In the applicant's view the general assessment noting a lack of spirit of cooperation on his part is based on incorrect information and is con- tradictory. The fact that during the period covered by the report he published a number of studies in collaboration with colleagues contradicts the general assessment and also the appeal assessor's assertion regarding his attitude of systematic questioning.
n The applicant also maintains that if the assessor's and appeal assessor's assessment had been justified his mark for conduct in the service would have
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had to be below average, which was not the case. The periodic report thus contains contradictory assessments and marks.
i2 Finally the applicant claims that the real basis of those assessments is not his ability, efficiency or conduct in the service but the friction which arose between him and the Administration after his request for promotion was refused, that dispute having been dealt with by the Court in its judgment of 12 October 1978 in Case 86/77 [1978] ECR 1855.
1 3 The Court has consistently held that periodic reports contain assessments which cannot be reviewed by the Court save in order to identify irregularities of form, manifest factual error or misuse by the persons involved in the drawing up of the reports of their power of appraisal.
u As regards the contradictions alleged by the applicant, it must first be observed that, although the publication of studies in collaboration with some of his colleagues is evidence of his aptitude for working with others in certain ways, it does not necessarily mean that he shows the same spirit of cooperation in all his relations at work. The assessment made by the first assessor is not therefore contradictory. Secondly, it should be noted that the applicant does not deny that, in spite of instructions which he received, he pursued research work under programmes which the Council had discontinued. That attitude justified the award by the appeal assessor of a mark for conduct in the service which was lower than that awarded to him in the previous periodic report. There is therefore no contradiction, either, between the appeal assessor's assessment and the mark awarded for conduct in the service.
is It must be observed that the rest of the applicant's criticisms do not relate to manifest errors of fact susceptible of objective verification or to evaluations or assessments capable of objective review but rather to value judgments which by their very nature and purpose cannot be reviewed by the Court.
i6 The applicant's complaints must therefore be rejected, there being no need to verify the accuracy of the criticisms contained in the periodic report in question or to require the Commission to produce the whole of the file concerning the contested report or to verify, by the evidence of witnesses, the accuracy of the comments made in the report, as the applicant asks the Court to do by way of alternative claim.
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T h e claim for a n n u l m e n t of the e x p r e s s d e c i s i o n r e j e c t i n g the complaint
17 The applicant also asks the Court to annul the express decision rejecting the complaint which he lodged on 1 December 1980 under Article 90 (2) of the Staff Regulations. He maintains that the decision was irregular on the ground that the provisions of the 1971 version of the Guide to Staff Reports, which applied to reports covering the period from 1969 to 1977, were not observed.
18 In the terms of the general remark on page 187 of the 1971 version of the Guide to Staff Reports: "When the Joint Committee on Staff Reports has given a negative opinion (see heading C.3. a) or when the appeal assessor has taken a final decision (see heading C.3.b), officials are entitled to lodge a complaint under Article 90 of the Staff Regulations. The Joint Committee must be consulted regarding such a complaint. It will then be for the Commission, as appointing authority, to give a final decision on it."
i9 Although it does in fact appear that, contrary to the provisions cited above, Mr Ditterich's complaint against the decision adopting the definitive version of his report was not submitted to the Joint Committee on Staff Reports, that fact cannot be regarded in this instance as an infringement of an essential procedural requirement. The Joint Committee on Staff Reports had in fact already been asked to consider Mr Ditterich's case and the appeal assessor had supplemented the periodic report in order to comply with the opinion issued by that committee.
20 The claims contained in the reply must therefore be rejected.
T h e claim for d a m a g e s
2i The applicant points out that the periodic report in question covering the period 1975 to 1977, which should have been drawn up by the end of 1977, was not signed by the assessor until 29 December 1979. That delay was, he claims, made still worse by the fact that, contrary to the requirements of the Guide to Staff Reports, the opinion of the Joint Committee on Staff Reports of 15 July 1980 was not acted upon until 22 October 1980.
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22 That instance of maladministration is of such a nature as to justify the payment of compensation for the material and non-material damage caused.
23 Article 43 of the Staff Regulations requires a periodic report to be made at least every two years on each official's ability, efficiency and conduct in the service.
24 That document must be drawn up in order to ensure the proper administration and rationalization of the services of the Community and in order to safeguard the interests of officials. It constitutes an indispensable basis of assessment each time an official's career is taken into consideration by the administration.
25 One of the duties of the administration is therefore to ensure that the report is made periodically at the intervals prescribed by the Staff Regulations and that is is drawn up in a proper manner. The administration has a reasonable period at its disposal in which to do this and any failure to act within that period must be justified by the existance of special circumstances.
26 In this case it is clear both from the documents in the file and from the oral submissions made to the Court that the appointing authority of the Joint Research Centre at Ispra exceeded by far the reasonable period which it has its disposal in order to adopt Mr Ditterich's report and that it had been unable to prove the existence of special circumstances of such a nature as to justify that delay.
27 Under those circumstances Mr Ditterich is justified in maintaining that in view of the nature of the omission on its part, the administration has incurred liability.
28 Although the applicant has not established that the omission prevented or delayed any promotion which he might otherwise have obtained and thus caused him material damage, he has however established that he suffered non-material damage on account of the fact that his personal file is neither in good order nor complete. H e is therefore entitled to seek compensation for that irregularity.
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29 A fair assessment of the amount of compensation which the Commission must pay to the applicant for the damage suffered on that account is BFR 20 000.
Costs
30 Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions must bear their own costs. In view of the delay on the part of the administration at Ispra in drawing up the periodic report and its repeated failure in that regard, the Commission must bear the whole of the costs.
On those grounds,
T H E COURT (Third Chamber)
hereby:
1. Dismisses the application for the annulment of the periodic report;
2. Dismisses the application for the annulment of the express decision of 11 August 1981;
3. Orders the Commission to pay BFR 20 000 by way of damages for the delay in the drawing up of the periodic report;
4. Orders the Commission to bear the whole of the costs.
Everling Bosco Galmot
Delivered in open court in Luxembourg on 5 May 1983.
For the Registrar
H. A. Rühl U. Everling Principal Administrator President of the Third Chamber