C-60/82

JUDGMENT OF THE COURT (FIRST CHAMBER) 15 DECEMBER 1982 '

John Philip Cowood v Comnstissioø of the European Commiasaities (Official — Decision not to promote)

Case 60/82

Officials — Promotion — Decision not to promote (Staff Regulations, Art. 45 (1))

In Case 60/82

JOHN PHIUP COWOOD, an official of the Commission of the European Communities, residing in Brussels, represented by Pierre Legros of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Gaston Vogel, Résidence Verlaine, 5 Rue C.-M.-Spoo, applicant, v

gives the following

JUDGMENT

Faces amid· Ussunes

The facts of the case, the course of On 23 January 1981 the applicant was the procedure and the conclusions, appointed by the Central Staff submissions and arguments of the parties Committee as staff representative on the may be summarized as follows: LA Promotion Committee. At the first meeting of that committee on 17 January 1981, an incident occurred which involved, in particular, Mr Cowood and the Director General for Personnel and I — Facts and written procedure Administration in connection with the possible promotion of another official, (Mr C). The applicant, Mr Cowood, entered the service of the Commission on 1 April 1974 and is at present an official in On 19 March 1981, the applicant was. Grade LA 4 in the Directorate General informed that his application for the for Personnel and Administration, vacant post as head of a translation English Translation Division. On 19 group had not been accepted. On 22 November 1980, the applicant applied June 1981 the applicant lodged a for a post as head of a translation group. complaint under Article 90 (2) of the Staff Regulations against that decision. The Commission rejected the complaint On 22 January 1981 Mr Ciancio, the by decision of 27 October 1981, which Director for Translation, Documen- was notified to the applicant on 16 tation, Reproduction and Library, November 1981. informed the Director" of Personnel of his nominations for the vacant post. He noted that Mr Cowood was in This action was commenced by an competition with another group application lodged at the Court Registry coordinator whom he considered more on 11 February 1982. Upon hearing the suitable on the ground of seniority. report of the Judge-Rapporteur and the

2. Infringement of the second paragraph II — .Conclusions of the parties of Article 13 of the Agreement of 20 September 1974 on Relations between the Commission and Trade Unions The applicant claims that the Court and Staff Associations; should: 3. Breach of the general principles of 1. Annul the decision adopted against law, in particular by reason of the him on 19 March 1981, informing attack on the principles governing him that the appointing authority had freedom of opinion as regards been unable to accept his application thought, politics and trade unions. for a vacant post as head of a translation group; In his application the applicant claims 2. Annul the rejection notified to the that the decision not to promote him is applicant on 16 November 1981 closely linked to an incident which

JUDGMENT OF 15. 12. 1982 — CASE 60/82

work. The applicant's subsequent an obstacle to promotion. The defendant insistence that the grounds for the emphasizes that the fact that the two rejection should be entered in the procedures for the filling of posts, one minutes of that meeting created further for the head of a group and one for the difficulties. promotion of LA officials, took place during the same period was purely fortuitous. It follows that the connection which the applicant seeks to establish The applicant considers not only that the between the rejection of his application incident described above shows the and the work of the Promotion existence of bias within the Promotion Committee does not exist. Committee but also that it was the basis on which the decision not to accept his application for the vacant post was made. In his reply, the applicant notes as regards the objection of inadmissibility, that the decision of 22 June 1981 In its defence the defendant raises an rejecting his complaint did more than objection of inadmissibility as regards the merely confirm the rejection of his applicant's second claim. It refers to the application for the vacant post.

That As regards the facts, the defendant allegation can be proved by hearing emphasizes that Mr Ciancio's note of evidence from those who participated in 22 January 1981 established that the meeting of the Promotion Committee Mr Cowood was in competition with at which the incident involving the another very experienced group proposal to enter Mr C. on the list of coordinator. Mr Cianco considered the officials suitable for promotion occurred. other candidate more suitable because he The applicant adds that all the former had greater length of service and coordinators of the specialized groups in

JUDGMENT OF 15. 12. 1982 — CASE 60/82

the Promotion Committee which brought him into conflict with the chairman of the committee.

4 The applicant infers from those events that the decision not to promote him to head of a group is closely connected with the attitude he adopted at the meeting of the Promotion Committee in order to have the minutes of that meeting altered. He claims, therefore, that his application was rejected because of his trade-union activity within the committee.

5 On that basis, the applicant maintains that the contested decision infringes certain provisions of the Staff Regulations and certain general principles of law by reason of the attack on freedom of trade unions and freedom of opinion.

« The Commission contends that the applicant's allegations are not supported by the facts as the decision to appoint another candidate to the vacant post was based on objective criteria entirely unconnected with the applicant's trade-union activities.

7 In that regard the Commission relies on a memorandum from the Director for Translation, Documentation, Reproduction and Library addressed to the Director of Personnel, which contained recommendations concerning the filling of certain posts, one of which is the subject of this action. That memorandum is dated 22 January 1981; it therefore antedates the applicant's appointment as a member of the LA Promotion Committee on 23 January 1981.

ii In those circumstances, the Court (First Chamber) invited the applicant to submit written proof or to indicate any witness evidence which might show that the Commission, in making the disputed decision, was influenced by considerations other than those cited in the memorandum of 22 January 1981 and in particular by assessments regarding the applicant's trade-union activity or the attitude adopted by him within the Promotion Committee.

i2 In his reply to that request, the applicant proposes that witness evidence should be heard from the people who were present at the meeting of the LA Promotion Committee on 17 February 1981, in the course of which the proposal to enter the name of another official on the list of the most deserving candidates was rejected, allegedly on the ground of his trade-union activities. In addition the applicant claims that certain senior officials in the Commission have an unfavourable attitude towards trade-union activity, although he has been unable to establish a precise link with his own case.

i3 The facts regarding which the applicant offers proof do not affect the decision not to promote him. Even if they were proved, they would not support the conclusion that the contested decision was not based on the grounds cited by the head of the directorate in which the applicant worked in the memorandum of 22 January 1981, namely that as the candidates were of equal merit preference should be given to the candidate who had greater seniority, or the conclusion that it was founded on other considerations, in particular assessments regarding the applicant's trade-union activity.

hereby:

1. Dismisses the application;

2. Orders the parties to pay their own costs.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 15 December 1982.

J. A. Pompe A. O'Keeffe Deputy Registrar President of the First Chamber