C-7/86

4. By letter of 19 February 1985, the applicant and his four colleagues unsuc­ 9. The Parliament claims firstly that the cessfully tried to prevent the recommen­ application is inadmissible on the ground dation of the Advisory Committee on that it has no purpose or is, at least, Promotion from being followed. premature.

5. When he became aware of the decision 10. The defendant does not deny that the taken by the Secretary-General of the period of four months prescribed in the

* Translated from the Portuguese.

VINCENT v PARLIAMENT

19. It is true that, since the applicant's 14. The Court has already stated that the periodic report had not yet been properly periods laid down in Articles 90 and 91 of drawn up or the opinion of the Advisory the Staff Regulations are mandatory and are Committee on Promotion obtained, the intended to ensure clarity and certainty in appointing authority was not in a position legal situations and it is therefore not up to to adopt the requested decision before those the parties most directly concerned to documents were prepared. extend them at their convenience, ' regardless of the party which will benefit therefrom. 20. However, since it is equally plain that the original promotions were not annulled or even suspended, the appointing 15. Once the four-month period within authority's decision contained in the letter which the Parliament should have replied to of 16 December 1985 represents only an the complaint submitted by the applicant in intermediate step and cannot change the this case had expired, the three-month legal or factual circumstances of the period prescribed for an appeal started to applicant as at the time of the implied run in accordance with the last sentence of rejection of his complaint, nor can it change Article 90 (2) and the second indent of the legal position by extending the period Article 91 (3) of the Staff Regulations. for bringing an action.

16. Since there was no express decision 21. Under those circumstances, if the rejecting the complaint after its rejection by applicant had not applied to the Court implied decision but before the period for within the three-month period but had awaited a fresh decision unfavourable to 2 1 — Judgments of 12 December 1967 in Case 4/67 Collignon v him before doing so, he would have run Commission [1967] ECR 365 at p. 372; of 14 April 1970 in the risk that his application might be Case 24/69 Nebe v Commission [1970] ECR 145 at pp. 151 and 152; of 7 July 1971 in Case 79/70 Müllersv Economic dismissed as being out of time. and Social Committee [1971] ECR 689 at p. 698; and of 17 February 1972 in Case 40/71 Richez-Parise v Commission [1972] ECR 73 at p. 79. 2 — See the judgments cited under footnote 1.

29. The importance of the periodic report (3) Order the European Parliament to has been stressed by the Court of Justice in reopen the promotion procedure on the the following terms: 'This document must basis of the list of officials eligible for compulsorily be drawn up for the good promotion and to fill the four available administration and the rationalization of the A 6 posts with effect from 1 October services of the Community and in order 1984 with due regard for Article 45 of to safeguard the interests of officials. It the Staff Regulations and the principle constitutes an indispensable criterion of of non-discrimination, as customarily assessment each time the official's career is observed by the institution; taken into consideration by the adminis­ tration'. (4) Order the defendant to pay the costs. 30. 'One of the bounden duties of the 24. In support of his application, the administration is therefore to ensure that applicant makes the following submissions: that report is drawn up periodically on the dates laid down by the Staff Regulations 3 and that it is drawn up in proper form'. (1) The contested decision is contrary to Article 45 of the Staff Regulations; 31. The Court has concluded that (2) It disregards the institution's previous 'consideration of the merits of candidates practice; whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done fails (3) It is in breach of the principles of equality and non-discrimination 3 _ Judgment of 14 July 1977 in Case 61/76 Geistv Commission [1977] ECR 1419 at p. 1435, paragraphs 44 between officials. and 45. See also judgment of 5 June 1980 in Case 24/79 Oberthür v Commission [1980] ECR 1743 at p. 1758; judgment of 18 December 1980 in Joined Cases 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943 at pp. 25. I shall examine those submissions one 3953 and 3954; judgment of 27 January 1983 in Case by one. 263/81 List vCommission [1983] ECR 103 at p. 117.

38. Firstly, the promotions originally 34. The combination of those facts amounts decided upon could be annulled, on the to an infringement of Articles 43 and 45 of ground that they were vitiated by an irrep­ the Staff Regulations, rendering the arable defect by reason of the infringement promotion procedure in question defective. of an essential procedural requirement. Even if it were considered that such annulment would not affect the conclusions of the 35. The reference made to the applicant's Advisory Committee on Promotion of 10 probationary report by counsel for the April 1986 or the appointing authority's defendant — though not until the decision of 16 July 1986, the latter could hearing — cannot alter that conclusion, not then be regarded as a confirmatory since the purpose of that report is different; decision but would take effect only ex nunc, in any event, the promotion decision was so that the seniority of the officials adoped on 25 February 1985, more than promoted would be calculated only from two years after the probationary report on the date on which the decision was adopted the applicant was drawn up, and it does not with all the consequences which that would seem fair to substitute oral or written infor­ entail. mation supplied by the applicant's superiors, on which he was given no opportunity of commenting, for the periodic report 39. Support for that solution could possibly covering such a long period. be found in the earliest judgments of the Court 5 on this subject and it would be consistent with a view which might be 36. It is none the less clear that, following prompted by the rules of administrative law the applicant's complaint and after this applicable in some Member States. action was brought, the periodic report on the applicant was prepared and completed on 25 March 1986. The report was given to 40. However, in the present circumstances, the Advisory Committee on Promotion, another solution seems preferable and also which on 10 April 1986 undertook a fresh 5 — For « ample , judgment in De Dapper, cited above; see also 4 — Judgment of 23 January 1975 in Case 29/74 De Dapper v the judgment cited by Mr Advocate General Mayras in his Parliament [1975] ECR 35 at pp. 41 and 42. Opinion in Gratreau[1980] ECR 3961.

more consistent with recent judgments of membership and procedures of the Advisory the Court, such as Gratreau, List and even Committee on Promotion'. According to Oberthür. Article 4 of that directive, the following criteria are to be taken into account, in descending order of importance, with regard to promotions within career 6 41. Thus — even more clearly than in List, brackets: seniority in grade; seniority in since the applicant in the present case has career bracket; seniority in the service; age; not apparently challenged the periodic periodic reports; any other element report on which the reconsideration of his contained in the personal file. case was based — the appointing authority may be considered to have already taken the measures incumbent upon it as a result of the defect vitiating the original decision, so 45. The applicant maintains that owing to that it is unnecessary for the Court to annul the absence of any periodic report in his that decision. case he was compared with the other officials solely on the basis of seniority. In making the comparison, the Advisory Committee on Promotion gave preference 42. Furthermore, in view of the confir­ to seniority in the service, at the expense of mation by the Advisory Committee on seniority in grade and career bracket, in Promotion and by the appointing authority disregard of its previous practice and to the of their original decisions it cannot be detriment of the applicant. concluded that the original absence of the periodic report had a decisive effect on the contested promotion procedure, in which 7 there were 25 candidates for four posts. 46. The directive in question cannot, however, go against Article 45 of the Staff Regulations, which provides that promotion shall be by selection from among officials 43. Under those circumstances, the who have completed a minimum period (as annulment of the four promotions decided defined in the second subparagraph of upon by the appointing authority on 25 Article 45 (1)) in their grade, after February 1985 would constitute an excessive consideration of the comparative merits of the penalty with regard to the defect vitiating officials eligible for promotion and of the that decision and would cause unnecessary reports on them. damage to the officials concerned, without conferring any corresponding benefit upon the applicant. 47. In adopting the decision provided for in Article 45 of the Staff Regulations, the appointing authority has, as the Court has 8 B — 44. The applicant also alleges that the already stressed, 'a wide discretion', and contested decision disregarded the practice the Court must 'confine itself to the previously adopted by the institution with question whether the administration kept regard to promotions, which is formalized within proper bounds and did not exercise in an 'internal directive concerning the its power in a manifestly erroneous manner'.

49. Consequently it cannot be inferred from 55. Moreover, it was the applicant himself the said directive or from the alleged who informed the Court that in a practice of the institution or any internal subsequent decision the Advisory note referring thereto that the criteria of Committee on Promotion recommended for seniority in grade and seniority in career promotion two officials with greater bracket should necessarily enjoy priority, seniority in grade and in category, to the since that would be no more immune from detriment of other officials with greater criticism than the systematic adoption of seniority in the service. seniority in the service as the prevailing criterion. D — 56. On the basis of the foregoing examination of the applicant's submissions, I 50. Otherwise, consideration of the therefore propose that the Court should comparative merits of the candidates and, in dismiss the applicant's first two heads of particular, the periodic reports would be claim on identical grounds. denied the overriding importance attributed to them by the Court, in conformity with the Staff Regulations, and in any event that 57. It therefore naturally follows that the argument appears to contradict the third head of claim is unfounded; and in applicant's previous submission. any event it also fails to take account of the principles governing the division of powers between the Court and the administrative 51. The explanations furnished by the authorities of the Community, a fact which representatives of the Parliament at the might even result in its being adjudged inad­ hearing as to the reasons for the alleged 10 missible. 'practice' of the institution also seriously undermine that argument. III — The new claims contained in the reply 52. In adopting his decision of 16 July 1986 on the basis of a fresh consideration of the comparative merits of the candidates for 58. In his reply the applicant made new promotion, the appointing authority made claims, asking that the Court should: use of the discretionary power conferred upon him. (1) Order the European Parliament to adopt a fresh decision on the applicant's 53. That decision has not been contested by complaint, promoting him to Grade A 6 the applicant who, in any event, had only one month's seniority over the officials who 10 — Sec judgment of 14 December 1965 in Case 11/65 Morina were promoted. v European Parliament [1965] ECR 1017 at p. 1027· judgment of 15 December 1966 in Case 62/65 Strio v Commission [1966] ECR 561 at p. 571; judgment of 27 October 1977 in Case 121/76 Moli v Commission [1977] 9 — Øhrgaard, supra, p. 2390, paragraph 19. ECR 1971 at p. 1979. '

59. Those claims must be held to be inad­ missible, since, by virtue of Article 38 (1) (c) IV — Conclusion of the Rules of Procedure, the applicant may not alter his claim in the course of the proceedings or formulate new claims in the reply . 11The Court has only very rarely 63. On the other hand, I consider that it is permitted an applicant to extend the wholly justified to order the Parliament to subject-matter of an application and raise pay the costs in their entirety pursuant to new issues, when in the course of the Article 69 (3) of the Rules of Procedure, written procedure new elements of law or of even though the applicant has failed in 1 fact have come to light 2(Article 42 (2) of several of his submissions, in so far as the the Rules of Procedure). action was brought solely because of an omission on the part of the institution, and, moreover, the latter did not adopt its confir­ 60. I therefore propose that the Court matory decision until after the applicant had should dismiss those claims as inadmissible lodged his reply.

11 — Judgments of 8 July 1965 in Case 83/63 Krawczynski v Commission [1965] ECR 623 at p. 640, and of 16 March 13 — Judgment of 5 June 1980, supra, at p. 1759. 1971 in Case 48/70 Bernardi v Parliament [1971] ECR 175 14 _ Judgment of 16 December 1960 in Case 44/59 Fiddelaar v at p. 183. Commission [1960] ECR 535 at p. 548; and of 9 July 1970 12 — Judgment of 3 March 1982 in Case 14/81 Alpha Steel v in Case 23/69 Fiehn v Commission [1970] ECR 547 at p. Commission [1982] ECR 749 at p. 763. 560.

VINCENT v PARLIAMENT