C-178/86

(a) the annulment of the decision of the 5. As regards the period from 5 May 1979 Director-General for Personnel and to 30 June 1981, no periodic report was Administration dated 19 September made for that period at all as a result of the 1985 confirming her final periodic judgment of the Court of 9 July 1981 in report for the period 1981-82; Joined Cases 59/80 and 129/80 Turner v Commission [1981] ECR 1883 annulling, for misuse of powers, the decisions of 5 May (b) compensation for the delay in drawing and 20 May 1979 assigning the applicant to up that report and for the absence of a new post as part of the reorganization of any report between 1977 and 1981; the medical branch and transferring her to a post in Directorate-General XII. (c) the award of one franc by way of nominal damages to compensate her for the non-material damage resulting from the failure to reply to the complaint 6. The applicant was assigned as Medical whereby the applicant sought to have Officer to the office responsible for settling her periodic report for the period claims under the Sickness Insurance Scheme 1981-83 revised. (DG IX) by a decision of 20 October 1981. H e r application to this Court to have that 2. I I — The applicant is a doctor and has decision annulled was dismissed by a been an official of the Commission since judgment of 12 January 1984 (Case 266/82 April 1966. Turner v Commission [1984] ECR 1).

3. In accordance with Article 43 of the Staff Regulations regular periodic reports were made on her up to the period comprised 7. I l l — I shall now examine each of the between 1 July 1975 and 30 June 1977. claims made by the applicant in the light of the arguments put forward by the parties, 4. T h e report for the period between 1 July which have been summarized in the Report 1977 and 4 May 1979 was annulled for for the Hearing.

9. The Commission failed to observe any of the time-limits laid down in the Guide to Staff Reports adopted in 1979 pursuant to 15. However, she relies in support of her Article 43 of the Staff Regulations. claim on the statement of the Court in Castiliei to the effect that ' . . . delays in the 10. According to the time-limits laid down drawing up of staff reports may in them- in the Guide the applicant ought in fact to selves be prejudicial to officials for the have received the draft report of the simple reason that their career progress may reporting officer by 30 November 1983 at be affected by the absence of such reports the latest, but did not receive it until some when decisions concerning them must be time in July 1984. From then on, all the taken'. In view of that passage the applicant steps to be taken by the Administration confines herself to stating that the ordinary were, she maintains, taken out of time, progress of her career could have been which meant that the entire procedure was damaged and therefore her claim is justified. brought to a close (by the final decision of 19 September 1985) about nine months after the date on which it ought to have been 16. In my view, however, the passage relied concluded in accordance with the Guide to upon does not apply in this case: the point Staff Reports. was dealt with in the judgment in Gastille in the context of an examination of a claim for 11. The Commission concedes in its compensation submitted by the applicant, defence — as the appeal assessor already with no inference to be drawn as regards conceded in a letter of 25 March the question of the validity of the periodic 1985 — that the time-limits laid down by report. the Guide to Staff Reports were not observed.

20. The Joint Committee considered that the report for 1975-77 should be regarded as the last valid report since that for In this case, it is apparent that the 1977-79 had been annulled by the Court of assessments contained in the report for the Justice (in Case 263/83) and no fresh one period 1981-83 are distinctly less favourable had been drawn up, and that for 1979-81 than those in the report for 1975-77. In the was never made. Accordingly, since the latter report, on a scale of three ratings, the assessments contained in the report for applicant obtained two mentions corre- 1981-83 are clearly less favourable than sponding to the highest rating (for ability those for 1975-77, there must be an express and performance) and one corresponding to explanation for them. the average (conduct in the service), whereas in the report for 1981-83, on a five-point scale, she was given only one mention above the average (very 21. However, the appeal assessor merely good — fourth point on the scale) and three informed the applicant (in a memorandum corresponding to the average (third point on of 19 September 1985) that he had read the the scale). report for 1975-77 but that, in comparing the assessments in the report for 1981-83 with those given in the first report, it was necessary to bear in mind that the method (2) The Court has already stated in its of assessment had changed in the meantime judgment in Gastille (paragraphs 27 and 28), and that the applicant had taken on in terms which leave no room for doubt, different duties after 20 October 1981. that assessors are bound by the obligation to provide an explanation, even if the method of analytical assessment has been altered, and in particular where the difference 22. The Commission considers that the between one report and the preceding one is circumstances noted by the appeal assessor significant (see paragraph 26, where provide sufficient explanation for the reference was made to differences in the changes in the analytical assessments of the assessments which are at least as significant applicant: the method of assessment was not as those in this case).

The Court took pains, moreover, to explain the summary of the submissions and expressly that that obligation to provide an arguments of the parties in the Turner explanation applied even to reporting judgment of 12 January 1984), were officers for the period 1977-79, despite the regarded by the Commission as being of a fact that the Guide to Staff Reports contains medical nature and corresponding to the a footnote to the effect that the provision in applicant's special qualifications and Article 5 (2) does not apply to assessments experience, characteristics which it has for that period when compared with never been contested were the same ás those previous assessments. of the duties performed by the applicant during the period 1975-77 and regarded in the relevant periodic report as corre- sponding 'to the qualifications and aptitude The Court rightly held that reporting of the official'. officers 'cannot be released from [the obli- gation to provide an explanation] by a footnote in the . . . Guide . . . which is intended to give them practical advice' (paragraph 27). (5) I would add that the fact that the last report which is to serve as a comparison (that for 1975-77) was drawn up when the old method of assessment was still in force is a fact which cannot be imputed to the (3) In this case, there is no evidence of such applicant, even if she agreed that the report an explanation even in the 'general for 1979-81 should not be made. assessment' (the original version of which, made by the first reporting officer, was subsequently changed), which is more like a general summary from which it is impossible to deduce the reasons for the changes in the (6) The Commission's argument that the report compared to the previous one. applicant has failed to show, as she ought, that without that irregularity she would have been in a more favourable position, is also irrelevant: the obligation to provide an (4) The fact that the reporting officers are explanation is designed to enable the official not the same and the fact that the official's to know and to verify the reasons for the duties have changed are not, as a rule, change in the assessments of her work, obstacles to the fulfilment of the obligation giving her the opportunity to make obser- to provide an explanation. If they were, vations and, if necessary, to adjust her officials would be placed at a grave disad- conduct in the service, so that the failure to vantage every time they were assigned to fulfil that obligation deprives the official of a guarantee conferred on her by the Staff new duties, and therefore to a new Regulations. reporting officer. The latter may, in ordinary circumstances and if there has not been too long a delay, obtain the necessary information from the preceding reporting officer and from the official's previous 24. As a result of what I have said above I superiors. do not consider that the Commission's case can stand: the report drawn up by the appeal assessor contains no real explanation for the change in the analytical assessments, In this case, moreover, the tasks in question but rather an explanation for the absence of are those which, in the previous case (see an explanation.

25. My conclusion is therefore that the not find it necessary to define properly and applicant's periodic report for 1981-83 is precisely her administrative situation in her vitiated by breach of an essential procedural new assignment. Apart from the fact that requirement and must therefore be annulled that allegation was made in the most and amended in the light of that conclusion. general terms and is not supported by evidence, it must be regarded as having been settled by the judgment of this Court in Turner of 12 January 1984. 26. Only if it were found to be quite impossible to make that amendment adequately (in view of the time which has 30. As regards the second point, it refers to elapsed and the death of the first reporting the fact that the applicant, who is a doctor, officer in the meantime) would I be was assessed by an official who was not a prepared, perhaps, to propose that in the doctor and who was called upon to assess alternative the applicant be granted compen- inter alia her ability. sation for the persistent irregularity in her personal file capable of having a definitive effect on the progress of her career. 31. On that point I need only say the following: 27. However, I do not think that will be found to be the case here. On the one hand, (a) there is no provision in the Staff Regu- one can detect in the written and oral lations or the Treaty requiring an arguments of the defendant certain indi- official's superior to have the same cations as to the way in which the applicant technical or academic qualifications as performed her duties between 1975 and the official under him in order to be 1977 and between 1981 and 1983, which able to assess him on the basis of the were not expressed in her report hut which applicable rules; are capable of showing that it may be possible for the defendant to provide a full explanation for the new assessments. (b) the usual situation in any administration Secondly, it should be borne in mind that is that the superior has under him since the Commission is preparing a new officials with various technical or report for the period 1977-79, it will already academic qualifications, without that have that report available for the purposes preventing him from being able to assess of comparison when, pursuant to an their work in the light of what they annulment granted in this case, it proceeds actually do, and in the context of the to amend the report for 1981-83, and hence aims pursued by the administration; will be able to compare the two.

tative or supervisory capacity within an prospects and, on the other hand, the administrative framework', the nature absence of a periodic report when decisions and scope of which it is for the adminis- capable of affecting that career are to be tration to define and assess, with the taken. sole condition that the independence of judgment and decision of the doctor it employs must be preserved. 35. However, can it be inferred from paragraph 36 of the judgment in Gastille that the right to obtain damages assessed ex Second daim: Damages for the delay in aequo et bono derives directly from the drawing up the periodic report for 1981-83 absence of the report if that was the fault of the administration, independently of any other conditions the existence of which must be proved by the official? 32. On the basis, again, of paragraph 36 of the judgment in Gastille, the applicant submits that she is not obliged to define the 36. In my view that is not so. nature of the damage which she has suffered and need only rely on the submission that her career progress has suffered, that damage, according to the 37. I agree that the passage from the applicant, having to be assessed not only in judgment in Gastille which I have just cited the context of this action but in the light of indicates that the official is not required to the dispute there has been between the show that it is the absence of a report which parties since 1978. prevented the adoption of a favourable decision which would otherwise have been taken. In other words, the official does not have to show the existence of a causal link 33. It will be remembered that in Gastille between the absence of the report on the the Court held that the delay which was one hand and the adoption of an unfa- found to have occurred in drawing up the vourable decision or the absence of a applicant's report was incompatible with the favourable decision on the other. 'principle of sound administration' and that 'since the Commission is responsible under the Staff Regulations for ensuring that the procedures for assessing its officials are 38. But in my v i e w — a n d in that of the properly conducted, it must bear the Commission — the official must still show financial consequences arising from such that during the period when there was no maladministration' (paragraph 34). report decisions concerning his or her career were or should have been taken on which the absence of the report could have had some influence. 34. However, in order to determine the amount of damages it is necessary, according to the Court, 5 to establish some link between, on the one hand, the factor 39. That was what happened in Gastille: prejudicial to the applicant's career while there was no report, which was drawn up after a considerable delay, promotion 5 — Castille, cited above, paragraph 35. decisions were taken which excluded the

Third chim: Damages for the absence of a 42. It should also be borne in mind that in periodic report for the period from 1977 to Castille the delay in finally approving the 1981 applicant's periodic report was decidedly longer than that involved in this case, having occurred some four years after the end of the period covered by the report (paragraph 33). 45. I shall first examine the claim regarding the absence of a report for the period 43. The result of all that is that, in my view, 1979-81. the claim for damages for the delay in drawing up the report for 1981-83 must be 7 — Judgment of 10 June 1987 in Case 7/87 Vincent v European Parfument [1987] ECR 2473, paragraphs 25 and 26. See rejected. also my Opinion in the same case, delivered on 1 April 1987, paragraph 62. 6 — Turner, judgment of 9 July 1981 (cited »bove), paragraphs 8 — Case 61/76 Geist v Commission [1977] ECR 1419. 47 and 49. 9 — Paragraph 47.

TURNER v COMMISSION

46. During that period, the applicant was. the Commission's agent merely stated that a performing new duties to which she had draft report had been drawn up and that the been assigned by the administration; the applicant would receive it shortly. decisions in that respect, however, as we know, were annulled by the judgment of 9 July 1981 on the ground of misuse of powers. In view of that, the 51. That appears to me to be wholly incom- Director-General for Personnel and Admin- patible with the rules of good administration istration suggested to the applicant, who by which the Commission is bound, both in accepted, that the report for the period its relations with its officials and as regards 1979-81 would not be drawn up, as is compliance with the judgments of this explained in the documents produced in this Court. case.

48. Now as regards the absence of a report for the period 1977-79, the problem is 53. However, in this case it should be somewhat more delicate. As we know, the acknowledged that the delay in preparing first report drawn up for that period was the new report is far greater than anything annulled by a judgment of this Court of 21 which might be considered a 'reasonable March 1985 (Case 263/83). time', and is not to be justified by the absence of a request by the applicant to that effect, since the Commission has a duty to take of its own motion the steps necessary to comply with the judgment. 49. In order to comply with that judgment and with the first paragraph of Article 176 of the EEC Treaty, the Commission ought to have drawn up a fresh report taking into 54. As regards the position of the applicant account the factors it had previously and her claim for damages, the allegation ignored. that the long absence of a fresh report for 1977-79 was capable of prejudicing the ordinary progress of her career must be regarded as well founded. In view of the elements (the favourable opinion of the 50. However, that had still not been done applicant's previous superior) whose absence by the date of the hearing in this case (2 July 1987), that is, more than two years 10 — Judgment of 12 January 1984 in Case 266/82 Turner, cited after the Court's judgment. In that hearing, above, paragraph 5.

OPINION OF MR DA CRUZ VILAÇA —CASE 178/86

led the Court to annul the periodic report, it Fourth daim: The award against the is inevitable that the fresh report will Commission of nominal damages in the contain, on the whole, a more favourable amount of one franc to compensate for the assessment of the applicant than the non-material damage incurred as a result of previous report. That is what was expressly the failure to reply to the applicant's comphint stated in the judgment in Turner of 21 seeking the revision of her periodic report for March 1985 (paragraph 21). 1981-83

56. In those circumstances and with the 59. As regards the administration of justice, same result I consider that the approach laid that is a fact which must be regretted. down in the judgment in Castille may perfectly be applied to this case, in view of the fact that the report was not in existence when decisions bearing on the applicant's 60. Nevertheless, that does not mean that career were taken (the drawing up of the the claim must be upheld: the text itself (the report for 1981-83). second paragraph of Article 90 (2)) provides for an implied decision rejecting the complaint to be assumed if the time within which the complaint must be replied to has 57. Since that is the case, and bearing in expired, and does not provide for or impose mind again the provision contained in the any other consequence for the failure to second paragraph of Article 34 of the ECSC reply. Since that amounts to an implied Treaty ('If the High Authority fails to take decision rejecting the complaint, which may within a reasonable time the necessary steps be the object of an action before the Court to comply with the judgment, proceedings according to Article 91, the rights of for damages may be instituted before the applicants in such cases to be heard are Court') — I propose that the Commission wholly safeguarded and their position is no be ordered to pay the applicant damages less favourable than in the case of an assessed ex aequo et bono at BFR 25 000. express rejection of their complaint.

TURNER v COMMISSION

61. IV— In view of what I have said I propose that the Court: