C-280/81

COMMISSION OF T H E EUROPEAN COMMUNITIES, represented by Jacques Delmoly, a m e m b e r of its Legal D e p a r t m e n t , acting as Agent, assisted b y Daniel Jacob of t h e Brussels Bar, 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, Kirchberg,

defendant,

A P P L I C A T I O N for a n n u l m e n t of t h e Commission's implied decision refusing t o p r o m o t e the applicant a n d for the a w a r d of damages,

T H E C O U R T (Second C h a m b e r )

composed of: P . P e s c a t o r e , President of Chamber, O. Due and K. Bahlmann, J u d g e s ,

Advocate General: S. R o z è s Registrar: H . A . Rühi, Principal Administrator

The General Provisions to give effect to the procedure for promoting staff paid Christiane Hoffmann, a German from research appropriations [hereinafter national, was recruited as a secretary by referred to as "the General Provisions"], the Commission of the European Atomic which were adopted by the Commission Energy Community with effect from 1 with effect from 1 January 1977, pro- October 1960 and assigned to the library vide, in particular, for the establishment of the Joint Research Centre at the of two Joint Promotion Committees of establishment at Ispra. first instance and a Joint Committee of second instance, which must draw up provisional lists of officials having the After she had been established as a seniority required for promotion and secretary in Grade C 3 by a decision of considered to be most deserving of the Commission of 20 February 1963, promotion after a comparison of the which took effect on 1 January 1962, she merits of all officials eligible for was granted one year's leave on personal promotion on 31 December of the grounds from 13 January 1964, which current year and a comparison of the was subsequently extended to 15 staff reports on those persons and on the November 1965. basis of the conclusions of a preliminary examination which is carried out jointly in each of the establishments of the Joint By a decision of the Director of the Research Centre and in each programme establishment at Ispra of 8 November or action in the framework of indirect 1965, which took effect on 16 November actions. The provisional lists of officials 1965, Miss Hoffmann was reinstated, considered by the committee of second at her request, in a post as a secretary/ instance to be most deserving of shorthand typist in the Library and promotion are transmitted to the Documentation Department. appointing authorities; who establish final lists; only such officials as are on those lists may be promoted. By a decision of 3 October 1966, which took effect on the preceding 1 September, Miss Hoffmann was On learning in September 1980 that she established as a probationary official in had not been included on the provisional

list of officials suggested for promotion requested to answer two questions at the although she considered that she was hearing. eligible for promotion, Miss Hoffmann wrote on 12 September 1980 to the President of the local Staff Committee, I l l — C o n c l u s i o n s of t h e p a r t i e s on 13 November 1980 and 21 January 1981 to the Director General for Administration and Personnel, President The applicant claims that the Court of the Promotion Committee of second should: instance, and on 21 January 1981 to the Head of Department responsible for (1) Declare null and void: administrative questions. (a) the decision taken by the committees referred to in the Since her approaches were not suc- General Provisions to give effect cessful, Miss Hoffmann submitted on to the procedure for promoting 19 March 1981, through her lawyer, a staff paid from research appro- complaint to the Director General, the priations not to propose the appointing authority, based principally appointing authority that the on the allegation that the various applicant be entered on the pro- committees had failed to consider her for visional list specified in Article 7 promotion to Grade B 3 owing to an of the General Provisions; incorrect assessment of her qualifications whereas they had considered Mrs G., a (b) the decision of the appointing colleague, whose qualifications had authority not to enter the likewise been incorrectly assessed, but to applicant on the list specified in the opposite effect. the second paragraph of Article 7 of those provisions; The complaint, the full file on which was lodged subsequently, elicited no express (c) each and every one of the reply from the Commission. measures, both earlier and later, relating to the promotion procedure in question, including any promotions made, inasmuch II — W r i t t e n p r o c e d u r e as they may hinder rectification of the applicant's situation, and in particular the promotion of On 26 October 1981 Miss Hoffmann Mrs G.; lodged'this application, directed against the implied rejection of her complaint, (2) Concurrently or alternatively, which is presumed in the absence of a reply from the Commission. in the exercise of its unlimited jurisdiction, The written procedure followed the Order the defendant to pay by way normal course. of damages for the material and non-material injury sustained by the Upon hearing the report of the Judge- applicant an amount in Belgian Rapporteur and the views of the francs to be determined by the Court Advocate General the Court (Second ex aequo et bono and to include, if Chamber) decided to open the oral the Court sees fit, interest which the procedure without any preparatory latter regards as normally payable, as inquiry. However, the parties were from 19 March 1981;

(b) Order the applicant to pay the costs. (a) Both the committees responsible by virtue of the General Provisions for submitting to the appointing authority the list of officials most deserving of IV — S u b m i s s i o n s a n d a r g u m e n t s promotion and the appointing authority of t h e p a r t i e s in t h e w r i t t e n itself failed adequately to appreciate the procedure fact that the applicant's librarianship studies were more advanced in every A — Admissibility of the application respect than those, of a significantly lower level, completed by Mrs G., the The Commission remarks (without, official directly in competition with her. however, raising a formal objection of inadmissibility) that the originating The disparity becomes apparent on a application was lodged on 26 October reading of the certificate delivered by 1981, whereas according to Article 91 the Bayerische Beamtenfachhochschule, (3) of the Staff Regulations it ought to Fachbereich Archiv- und Bibliotheks- have been lodged no later than 19 wesen [Department of Document and October 1981; since the applicant's Librarianship Studies, Bavarian Technical complaint was submitted on 19 March College] of 23 October 1980; it is stated 1981 the implied decision rejecting it, in the certificate that the applicant's from which the three month period qualification is equivalent to a Graduie- within which the application must be rungszeugnis eines graduierten lodged commences to run, occurred on Ingenieurs [Degree in technical studies] 19 July 1981. and would correspond, in the future, to a Diplom-Zeugnis eines Diplom- The applicant expresses no views on the Ingenieurs mit Fachhochschulausbildung matter. [Degree in technical studies awarded after completion of training at a B — The substance technical college]. Mrs G.'s studies, by contrast, are not even sufficient to enable her to be regarded as a qualified library The applicant's case is based on the documentalist and in duration and level argument that the competent authorities they are quite inferior in every respect to made an incorrect assessment of the the applicant's studies. comparative qualifications and merits of those eligible for promotion; moreover, the procedure which was followed did (b) Any promotion procedure, if the not meet the requirements of the Staff posts which are available are fewer than Regulations. the number of officials eligible for promotion, necessarily entails an element The Commission considers the applicant's of competition between the officials and submissions to be entirely without foun- other servants of whom a list is to be dation. submitted to the appointing authority.

Similarly, she is not claiming that the It is true that the appointing authority's promotion procedure should be con- power of appraisal is discretionary; ducted on the basis of qualifications. however, it has a duty to explain how it reaches a decision, even a discretionary one, and the factors which it takes into She wishes to ensure that account is consideration. taken of her merits, which include possession of a major qualification gained after a period of difficult study, In this instance the appointing authority for which she was even obliged to seek failed, in particular, to examine the leave on personal grounds. qualification and the certificate in question, or having examined them, failed to note the different level of those She does not even claim that possession qualifications; it therefore adopted its of such a qualification must necessarily decision on the basis of information be decisive in the selection made by the which was incomplete, or at least appointing authority, but maintains that misinterpreted. it is a factor which it is bound to take into account in making its decision, whatever that may be. The appointing authority and the preparatory com- Those are sufficient grounds for mittees did not do so; that is precisely annulling the decisions granting and the complaint directed at the Com- refusing promotion in so far as they mission. concern the applicant.

HOFFMANN v COMMISSION

The Commission contends that the (b) In any case the comparison in no applicant's submission is unfounded both way indicates that the applicant ought to in fact and in law. have been promoted in preference to MrsG.

JUDGMENT OF 17. 3. 1983 — CASE 280/81

The assessment of those various factors ination of the merits thus carried out is and the weight to be attached to each of vitiated by a manifest error of fact. them is a matter for the discretion of the promotion authorities and the Court has rightly declined, on a number of 2. Article 45 (1) of the Staff Regulations occasions, to substitute its own judgment in matters of promotion for the subjective assessments made by the In her reply the applicant makes an administration. additional submission based on an alleged failure to comply with the requirements of Article 45 (1) of the (d) The applicant's submission that the Staff Regulations. authorities did not appreciate the respective values of her qualification and that of Mrs G. is not correct. (a) Article 42 (2) of the Rules of Procedure permits that fresh issue to be raised, as it is based on documents of which the applicant had no knowledge (e) The fact that the applicant obtained until the proceedings had commenced. her qualification 15 years before the promotion procedure in question is not irrelevant. (b) The joint working party responsible for making a preliminary examination with regard to promotion (known as The fact that the applicant, who hitherto "Instance Zéro") drew up a list of had been classified in Category C and officials to be promoted, but it has not had carried out the duties of a secretary, been established that it examined the obtained that qualification enabled her, reports and the personal files relating to in particular, to be promoted to those officials, which is an essential pre- Category B. condition for a full and impartial comparative examination of the merits of the officials. In assessing the applicant's merits with a view to promotion under the 1980 budget, however, the authorities were The promotion committee of first principally concerned to consider her instance did not make a comparative merits as evidenced in the performance examination of the merits of the officials of her duties in recent years. to be promoted, of their personal files and of the reports on them.

themselves bound to proceed in the 45 of the Staff Regulations, in particular manner laid down by Article 45 of the the detailed lists of officials suggested for Staff Regulations; the discretion enjoyed promotion and for advancement to a by the appointing authority and, by higher step within a grade and the files corollary, by the other authorities, has as containing personal information, were its counterpart a duty to carry out "a available to the persons attending the comparative examination of the merits of meeting". In any case, it must be noted the officials eligible for promotion and of that as a matter of law the preliminary the reports on them". It would appear, examination carried out by the ad hoc however, that the committee of second committee does not form part of the instance did not observe the promotion procedure itself. requirements laid down in that respect by the Court of Justice. The promotion committee of first instance was convened on 25 September The Commission considers that second 1980 and, after carrying out a submission to be inadmissible and in any comparative examination of the merits of event unfounded. the officials, decided to include 12 names in the provisional list of officials considered to be most deserving of (a) The raising of this issue is contrary promotion to Grade B 3, among which to Article 42 (1) of the Rules of the applicant's name did not appear. It is Procedure. clear from the record of its proceedings that the committee was in possession of the documents referred to in Article 45 (b) Considered in the light of the of the Staff Regulations. various stages which occur in the promotion procedure, the submission is unfounded in each of its three parts. The promotion committee of second instance, which has responsibility for all staff paid out of research appropriations, The procedure governed by the General met on 19 November 1980 in order Provisions commences, pursuant to to draw up, in the light of the Article 4, with a meeting within each of recommendations made by the the establishments of the Joint Research committees of first instance, provisional Centre and in each programme or action lists of officials and other servants in the framework of "indirect actions" of judged to be most deserving of a joint committee responsible for making promotion; that committee put forward a preliminary examination of the merits the names of 10 officials for promotion of all officials eligible for promotion. to Grade B 3. That committee, known as "Instance Zéro", which was set up in this instance at the establishment at Ispra, met on 4 In accordance with Article 7 of the September 1980 and did not include the General Provisions the various pro- applicant's name on the list of officials to visional lists were submitted to the be put forward for promotion to Grade appointing authorities. By decision of 27 B 3. November 1980 the appointing authority drew up a "list of officials considered to be most deserving of promotion to the The committee carried out a preliminary next grade in their career bracket . . ."; examination after which it decided that 10 names appeared on the list of "all the documents referred to in Article promotions to Grade B 3. The joint

3. The conclusions in the application Oral argument was presented at the sitting on 16 December 1982 by Marcel Purely in the alternative, the Commission Slusny, for the applicant, and by Daniel is of the opinion that, if the application is Jacob, for the defendant. declared to be well founded, there is no reason to annul all the decisions promoting officials to Grade B 3 which As far as the admissibility of the occurred at the end of the procedure at application is concerned, both parties issue; to do so would cause the have agreed to accept, on the one hand, promoted officials harm out of pro- that since the applicant had no notice of portion to the damage suffered by the the relevant promotion decisions until applicant. 19 December 1980 her complaint was submitted within the period laid down in Article 90 (2) of the Staff Regulations of Similarly, it would be arbitrary to annul Officials and, on the other hand, that the the decision promoting Mrs G. on the application itself was in fact lodged ground that she is employed in the same within the period laid down in Article 91 administrative unit as the applicant. (3) of the Staff Regulations, if account is taken of the 10-day extension of the time-limit on account of distance in the The applicant observes that by the terms case of Italy provided for in Annex II to of her application she seeks the the Rules of Procedure.

HOFFMANN v COMMISSION

The applicant alleges that the Com- submissions and arguments set out in the mission has failed to produce certain course of the written procedure. documents. The Advocate General delivered fier As regards the substance of the case the Opinion at the sitting on 24 February parties re-stated and elaborated on the 1983.

JUDGMENT OF 17. 3. 1983 — CASE 280/81

particular the value of her librarianship qualification, compared especially with another candidate who was employed, like herself, in library work, but whose qualification was of a considerably lower level than her own.

4 After the Commission had produced, in the annex to its defence, the minutes of the meetings of the various promotion committees and the full text of the decision of the appointing authority, the applicant amplified her arguments in the reply, alleging that both the committees and the appointing authority had failed to fulfil their obligation to examine with care her own personal file and those of the other candidates, contrary to the requirements of Article 45 (1) of the Staff Regulations, which demands a "consideration of the comparative merits of the officials". The documents, she maintains, indicate that the personal files were made available to the committees and the appointing authority but it is not shown that they were actually consulted with the requisite attention, a fact to which the injustice in her case must be attributed.

s The submissions put forward by the applicant call for the following obser- vations, without its being necessary to consider the Commission's objection that the fresh issues raised in the reply are out of time.

6 The information supplied by the parties as to the proceedings of the promotion committees and the circumstances in which the impugned decision of the appointing authority was adopted indicates that the promotion procedure was carried out in accordance with the rules laid down in the Staff Regulations and the relevant internal provisions.

io The applicant cannot, therefore, take issue with the fact that among the officials selected for promotion was someone whose qualification was, in her estimation, inferior to her own. Apart from the dispute as to the comparative value of the qualifications, the applicant has failed to adduce any evidence indicating that the judgment of the authorities may have been distorted by considerations unconnected with the criteria laid down in Articles 5 and 45 of the Staff Regulations.

1 1 The claim for annulment of the decision of the appointing authority must therefore be dismissed. As a result of the dismissal of that claim, the claim for damages must likewise be dismissed.

JUDGMENT OF 17. 3. 1983 — CASE 280/81

Costs

i2 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. However, Article 70 of the Rules of Procedure provides that, in proceedings by servants of the Communities, the institutions are to bear their own costs.

On those grounds,

For the Registrar

H. A. Rühi P. Pescatore Principal Administrator President of the Second Chamber