C-1/87
ECLI:EU:C:1988:28
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PICCIOLO v COMMISSION
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 21 January 1988 *
Mr President, 5. The first assessor, after trying to Members of the Court, undertake — unsuccessfully, in view of the applicant's refusal to participate — the discussions provided for in Article 6 of the 1. The facts and the background to the case General Provisions for implementing Article 43 of the Staff Regulations (hereinafter referred to as 'the General Provisions'), then referred the matter in April 1984 to the ad 1. This case arises from the periodic report hoc group of assessors set up to participate of the applicant, an official of the in reporting on officials who hold office as Commission of the European Communities, staff representatives. The views of that for the period from 1 July 1981 to 3 June group were sent to the applicant in 1983. December 1984, together with a new periodic report.
2. Claiming that there were several irregu larities in the preparation of that report, the applicant seeks the annulment of the 6. Besides giving a more detailed decision of 5 March 1986 of the Member of description of the applicant's duties, that the Commission approving his final periodic periodic report included a comment speci report, together with compensation of one fically designed to explain the downgrading franc in respect of non-material damage. of the analytical assessment made concerning the applicant's sense of responsi bility (from 'excellent' to 'very good'). 3. During the period to which the report relates, the applicant was employed in the Office for Official Publications of the 7. Not satisfied, the applicant asked for the European Communities, until 1 January matter to be referred to the appeal assessor, 1983, and thereafter in Directorate-General Mr Nic Mosar, a Member of the XVIII. On 24 June 1982 he was elected a Commission. Initially, after hearing the member of the Staff Committee in views of the official, Mr Mosar adhered Luxembourg, subsequently becoming its entirely to the terms of the first report. vice-president. Having subsequently consulted the Joint Committee on Staff Reports, at the request of the applicant, the appeal assessor adopted 4. The first version of the periodic report, the final periodic report on 5 March 1986, drawn up in November 1983 by the which was identical to the one prepared by Director of the Publications Office and also the first assessor, except for a different signed by a director in DG XVIII, was comment regarding the sense of responsi challenged by the applicant, who made a bility of the official. There was no response number of objections to it. to the complaint subsequently submitted by
* Translated from the Portuguese.
OPINION OF MR DA CRUZ VILAÇA —CASE 1/87
the official, and it was therefore deemed to Committee', which had considered the have been rejected. comment by the first assessor to be 'ambiguous' and the 'assessment of a general nature' in the first report to be 8. For more details concerning the facts of lacking in detail. the case, the Report for the Hearing may be consulted. (b) The second submission 2. The application for annulment: analysis of the grounds of the application 16. The applicant alleges a breach of the second paragraph of Article 7 of the General Provisions and of point B.9.3. of 9. The applicant has put forward no more the guide to staff reports because the appeal and no fewer than nine submissions in assessor did not hear the views of the first support of his claim for annulment. assessor and adopted his decision on the basis of a file which did not contain the 10. I shall analyse them one by one, in the initial periodic report. same order as that adopted by the applicant and followed in the Report for the Hearing. 17. This submission must be regarded as unfounded. (a) The first submission
18. The Commission explained in its 11. The applicant maintains that an appeal defence and in its answers to the questions assessor cannot amend the periodic report put to it by the Court that the report of unfavourably after receiving the opinion of 28 November 1983 was already in the the Joint Committee, and a fortiori not applicant's personal file when it was signed without due justification. by Mr Mosar, the Member of the Commission, and that the original assessor's views were heard by Mr Mosar in a 12. However, he claims that that was done telephone conversation of 19 February 1985 in the present case, in breach of the third which constituted a detailed exchange of and fourth paragraphs of Article 7 of the views on the reporting procedure in respect General Provisions and point C.2 of the of the applicant. guide to staff reports.
19. Those statements by the Commission 13. This submission appears unfounded. have not been challenged by the applicant and moreover the latter has not given any 14. In the first place, the appeal assessor did evidence or further information in support not change the analytical assessment made of his allegations of irregularities. of the applicant, which was maintained at the same level as in the preceding 20. It should also be made clear that the report — he merely changed the content of guide to staff reports, whose purpose — as the optional comment intended to explain 1 the Court stated in its judgment in Blasig that assessment. — is to 'provide guidelines for senior officials responsible for preparing periodic 15. Moreover, the latter change was made 1 — Judgment of 18 June 1981 in Case 173/80 Blasig v 'having regard to the opinion of the Joint Commission [1981] ECR 1649, paragraph 13.
PICCIOLO v COMMISSION
reports pursuant to Article 43 of the Staff the matter should be referred to the appeal Regulations', does not lay down any assessor. mandatory procedure for consultation of the first assessor. 25. Apparently, therefore, it was the applicant himself who indicated that the (c) The third submission discussions should be dispensed with.
26. Nor is there any clear reason for 21. The applicant alleges infringement of considering that consultation of the ad hoc Article 6 of the General Provisions and group of assessors — which the assessor point B.8.1. of the guide to staff reports, must undertake in accordance with point and breach of the general principles guaran B.1.2.2.2. I of the guide to staff reports — is teeing the right to a fair hearing: the lack of a precondition for entering into such discussions with the first assessor, following discussions. the applicant's refusal to take part in them under conditions which, in his view, were irregular, deprived him of a 'right of 27. It must be emphasized that Article 6 of recourse'. According to the applicant, the the General Provisions clearly provides that irregularity which prompted him to decline the discussion between the assessor and the to take part in any discussions lay in the fact official is to begin within 15 days after the that the initial report did not contain the periodic report is referred to the official, views of the ad hoc assessors and was thus and no precondition is laid down in that incomplete. regard.
22. What is to be made of these allegations? 28. It may even be considered that, in this case, such discussions would enable the applicant to put forward stronger arguments 23. The purpose of the discussion referred and at the same time might provide infor to in Article 6 of the General Provisions and mation or views which would enhance the point B.8.1. of the guide to staff reports is, procedure of consultation of the ad hoc as is apparent from the wording used, to assessors. In those circumstances, the facilitate direct contact to enable the matter dialogue would not only not be prejudicial to be discussed 'freely and thoroughly' so to the applicant, it might even be helpful to that the two parties 'can clearly see the the proper conduct of the reporting nature and implications of any differences procedure. of opinion' and 'come to a better mutual understanding and a more correct 29. Be that as it may, the first assessor in appreciation of the report' which will, the meantime arranged for the ad hoc where necessary, be changed. assessors to be consulted and sent their observations to the applicant, as an annex to the new periodic report. The applicant 24. It was to discussions of that kind that received the report on 10 January 1985 and the first assessor repeatedly invited the on the 17th of the same month again asked applicant, by memoranda of 13 February for it to be referred to the appeal assessor. 1984, 5 March 1984 and 9 March 1984; the applicant expressly refused, and countered by requesting, first in the observations 30. In those circumstances, it does not seem which he appended to the report and then legitimate for him to claim now that he was in a memorandum dated 1 March 1984, that denied the right to a fair hearing.
OPINION OF MR DA CRUZ VILAÇA — CASE 1/87
31. Moreover, it appears that the applicant immediate superior in his new department is had a meeting with the appeal assessor, and concerned, it must be recognized that, in there is no evidencec to indicate — inter alia the first version of the periodic report, the in view of the conclusions reached latter merely gave his approval on 5 regarding the previous submission — that December 1983, after the report had been the meeting was 'purely formal'. signed by the first assessor (apparently on 28 November 1983).
32. Accordingly — and even if it were 36. As regards the new periodic report assumed that the applicant was right to drawn up by the first assessor, that also decline discussions — any omission was bears the signature of the Director of DG remedied by the subsequent discussion with XVIII, which was appended on 12 the appeal assessor, as is clear from the December 1984, one day before it was judgment of the Court in Turner 2in 1985. signed by the assessor. As in that case, the present application relates to the final periodic report, which is the responsibility of the appeal assessor, and 37. Article 3 of the General Provisions, its validity is not affected by any absence of after referring to prior consultation of the discussions at an earlier stage in the other superiors, makes it clear that they are procedure. to sign the report and may append their comments if they disagree with the assessor.
38. In addition, point B.5.2. of the guide to (d) The fourth submission staff reports provides that 'consultation should take place before the assessor prepares his analytical and general assessments' and that, in practice, the 33. The applicant alleges infringement of consultation will take the form of the second paragraph of Article 3 of the completing parts 10 and 11 of a specimen General Provisions and of point B.5.2.2. of staff report. the guide to staff reports through lack of consultation of his immediate superior in DG XVIII, the head of the specialized 39. However, the latter statement does not department 'Receipts and Payments', in so constitute a mandatory requirement but is far as approval was obtained only from a rather, as is apparent from its wording, a director in DG XVIII (but there was no practical recommendation. prior consultation).
40. Moreover, I consider that, in the present case, it would be excessive to 34. In my view, the alleged omissions are require a fresh consultation of the superior not such as to bring about the nullity of the since, when the second report was drawn up periodic report. by the first assessor, that superior had already been heard and had an opportunity to make his views known, at least when he was called upon to give his judgment on the 35. In the first place, as far as the claimed first report. lack of consultation of the applicant's
2 — Judgment of 21 March 1985 in Case 263/83 Turner v 41. With respect to both the first and the Commission [1985] ECR 893, 906, end of paragraph 16. second reports, the Director of Directorate-
PICCIOLO v COMMISSION
General XVIII, having received the draft relates to the period when he was employed thereof, signed it without making any in the Publications Office (as appears from objections, and that would certainly not the comment accompanying it) whereas the have happened if he had not been in failure to consult at issue here concerns his agreement with the assessments contained in new superiors in the department to which he it. was transferred, in DG XVIII. But no unfa vourable assessment was made about him regarding his period of employment in the latter department, which coincides with the 42. In any event, it must be borne in mind last six months of the period covered by the that, as is made clear in point B.5.2. of the contested report. guide to staff reports, such consultations are intended to provide guidance for the assessor and in no way reduce his own responsibility. It is thus incumbent upon 46. The situation is thus completely him, after the consultation, to decide, in different from that with which the Turner principle and subject to the correction of judgment was concerned, because in that any error or omission, whether the details case no account had been taken of the he has obtained enable him to consider opinion of the previous superior of the himself duly informed. applicant, which the latter knew to be more favourable than the one contained in her report, for which reason it was possible to conclude that she actually suffered 43. As regards the alleged failure to consult damage. 3 the applicant's immediate superior in DG XVIII, it must be emphasized that point B.5.2.2(a) of the guide merely provides that, (e) The fifth submission in the event of the official's having changed department during the reference period, the assessor must consult the official who would have prepared the report in the other 47. The applicant complains of department (which, for Category A officials, infringement of the third paragraph of is the director), and that the superiors of the Article 2 of the General Provisions and of person assessed in that department should point B.5.2.1. of the guide to staff reports only be consulted if it is appropriate to do since, on the one hand, the head of so (last subparagraph of point B.5.2.2.). specialized department OP 4 in the Publi cations Office, who was consulted during the reporting procedure, was not, in his view, entitled to be regarded as his superior 44. It should also be noted that the because he was a member of the auxiliary applicant does not allege or show that any staff and, on the other, the consultation was of those omissions prejudiced his position in improper in any case because it did not take the context of the reporting procedure or place in advance but merely took the form that, if the consultations had taken place as of a signature. he claims they ought to have, he would be or might have been in a more favourable position. 48. I would refer, as regards the latter alle gation, to the considerations which I put forward and the conclusion which I reached 45. Furthermore, the unfavourable assess ment of which the applicant complains 3 — See Turner, supra, paragraphs 17 to 21.
OPINION OF MR DA CRUZ VILAÇA — CASE 1/87
regarding the previous submission; mutatis (f) The sixth submission mutandis, they apply here with equal force, in so far as the signature of that head of department on the 'revised' report antedated 52. The applicant alleges infringement of that of the first assessor by two days. the second paragraph of Article 5 of the General Provisions, which requires expla nations to be provided 'for any change in the analytical assessment since the previous 49. As regards the first allegation, I also report'. consider it to be unfounded: the issue here concerns the duties entrusted to an employee which enable him to be regarded 53. There is no apparent basis for this alle as the superior of another person and not gation. The version of the periodic report the nature of the relationship between that dated 13 December 1984 included an expla employee and the institution. nation for the new assessment of the applicant's sense of responsibility, which the final report by the appeal assessor modified, taking account of the opinion of the Joint 50. It is interesting to note in that Committee on Staff Reports. There is no connection that point B. 1.2.1. of the guide reason to consider the explanation to staff reports, in clarifying who is to be inadequate, particularly since the change in the assessor, is very explicit in stating that the analytical assessment was merely from 'once an official or other member of staff is 'excellent' to 'very good'. appointed to a post he is fully authorized to exercise all the responsibilities attaching to it, including assessment of the officials in the administrative unit of which he is the 54. Moreover, the assessment made by the head.' assessors as to the qualities of the official is a matter for their discretion which cannot, as the Court has consistently held, 4 'be reviewed by the Court save in order to 51. Moreover, members of the auxiliary identify irregularities of form, manifest staff are, by virtue of Article 54 of the factual error or misuse ... of power'. To conditions of employment of other servants, take review by the Court any further in this covered by the provisions of Articles 11 to case would be tantamount to its improperly 25 of the Staff Regulations, including substituting itself for the assessors them 5 Article 21, which provides that 'an selves. official... shall be responsible for the performance of the duties assigned to him' and that 'an official in charge of any branch (g) The seventh submission of the service shall be responsible to his superiors in respect of the authority conferred on him and for the carrying out 55. This submission relates to the delay in of the instructions given by him'. In the preparing the final periodic report until 5 present case it should also be noted that the March 1986, that is to say more than 14 official of whom the consultation is months after the date (31 December 1984) criticized by the applicant had already by which it should have been ready, participated in exactly the same capacity in the two previous periodic reports without 4 — Judgment of 5 May 1983 in Case 207/81 Ditterich v any complaint having been made by the Commission [1983] ECR 1539, paragraph 13. applicant. 5 — See judgment of 28 October 1982 in Case 105/81 Oberthür v Commission [1982] ECR 3781, paragraph 26.
PICCIOLO v COMMISSION
pursuant to Article 7 of the General any failure to adopt a favourable decision Provisions. which might otherwise have been adopted (see Turner, supra, paragraph 10).
56. Quite apart from the delays attributable (h) The eighth submission to the applicant himself, in particular owing to his refusal to enter into discussions with 60. In support of this submission, the the first assessor, and those occurring in applicant alleges contravention of the consulting the various committees (in general principles of the protection of particular the group of ad hoc assessors), it legitimate expectations and of equality of must be conceded that the preparation of treatment. the final report took more than seven months after the issue of the opinion of 29 61. It is true that, in analysing the nature of July 1985 by the Joint Committee on Staff an ordinary internal directive of the Reports. Commission, the Court held in its judgment in Louwage v Commission, 8 that even though it could not describe it as 'a rule of 57. However, previous decisions of the law which the administration is always Court have already made it abundantly clear bound to observe, it nevertheless sets forth a that delay in preparing a periodic report rule of conduct indicating the practice to be does not of itself give grounds for its followed, from which the administration annulment; this only occurs where it is may not depart without giving the reasons shown that the official suffered loss as a which have led it to do so, since otherwise result. 6 the principles of equality of treatment would be infringed'.
62. Nevertheless, the considerations which 58. That would be the case in particular, as led me to conclude that the previous is apparent from Castille, 7where a decision submissions should be rejected justify my favourable to an official, such as a proposing that the Court should also reject promotion, ought to have been taken during this eighth submission, in view of the the period when the periodic report was left absence of any irregularity affecting the unprepared, and the official in question reporting procedure. does not have to prove a connection between the non-adoption of such a decision and the non-existence of the report 63. Moreover, the applicant does not (see Turner, supra, paragraph 16). adduce any further evidence in support of this submission. In particular, there is nothing to show that, as the applicant claims, the administration deliberately 59. In this case, the applicant does not even infringed the General Provisions for claim that, during that period, there was implementing Article 43 of the Staff Regu lations or the instructions contained in the 6 — See, finally, the judgment of 16 December 1987 in Case guide to staff reports; and as far as the prin 178/86 Turner vCommission [1986] ECR 5867, paragraph 8, and my opinion in the same case. See also, to the same ciples of equality are concerned, no infor effect, the judgment of 1 June 1983 in Joined Cases 36, 37 mation is given which might indicate what and 218/81 Seton v Commission [1983] ECR 1789, para- graphs 13 and 14; judgment in Turner, supra, paragraph 16. form the alleged infringement took.
7 — Judgment of 6 February 1986 in Joined Cases 173/82, 157/83 and 186/84 Cstille vCommission [1986] ECR 197, 8 — Judgment of 30 January 1974 in Case 148/73 [1974] ECR paragraphs 35 and 36. 81, paragraph 12.
OPINION OF MR DA CRUZ VILAÇA —CASE 1/87
(i) The ninth submission those provisions regarding the definition, in this case, of the obligations of the Director of the Office, as the person with authority over the staff of the Office (Article 8 of the 64. The applicant claims that the internal decision). rules of the Publications Office were infringed because the first assessor failed in his obligation to consult the Management 68. Pursuant to Article 4 (1) of the Committee of the Office in advance. decision, the Management Committee approved the Internal Rules of the Publi cations Office (with effect from 5 May 65. The applicant does not indicate the 1980), which are concerned in particular precise provisions which he considers with personnel management (Title TV). infringed but it appears that he is referring in particular to Article 5 (1) of the Decision of 16 January 1969 establishing the Office 69. They provide that (Chapter I — Article for Official Publications of the European 45) 'the Management Committee shall, by Communities ( 69 / 13 / Euratom / ECSC / agreement with the appointing authority, EEC), 9 amended by the Decision of 7 determine the procedures by means of February 1980 ( 80 / 443 / EEC / Euratom / which it will be closely involved' in (a) 10 ECSC). procedures to be followed before appointments are made, and (b) other official measures relating thereto.
66. That provision refers expressly to the exercise by the Commission of the powers 70. And with respect to 'officials in of the appointing authority as regards the category A and officials and servants Director of the Office and other officials assimilated thereto' (Chapter II), Article 48 and servants in category A and, if necessary, merely lays down that the Director of the LA. Office is under a duty to inform (not consult) the Management Committee regarding 'staff reports on officials and other servants' and regarding the obser 67. The relationship between the two parts vations made by the latter and any other of the first subparagraph of Article 5 (1) information which might influence the (the first refers to the favourable opinion reports. of the Management Committee for appointments and promotions of certain officials and servants and the second provides that the Committee is to be closely 71. Accordingly, it does not seem to me involved in any procedures to be followed that the applicant has shown that there was before appointments) and also the even the slightest non-observance of any relationship between that subparagraph and procedures with which the assessor was the second subparagraph of Article 5 (1), bound to comply by virtue of the internal which provides that 'the same shall apply' as rules of the Publications Office. regards Official acts, such as staff reports' are such that doubts remain as to the inferences which should be drawn from 72. But, even if there had been, the considerations which I expounded regarding 9 — Journal Officiel 1969, Annex I, p. 71. the fourth submission, to the effect that the 10 — Official Journal 1980, Annex III, p. 81. absence of consultation might be irrelevant
PICCIOLO v COMMISSION
as far as the official's situation was committees whose participation he called concerned, could also be applied to the for. present submission.
79. There remains, however, the 'residual' 3. The claim for compensation delay in preparation of the final periodic report by the appeal assessor after the issue of the opinion of the Joint Committee on 73. In respect of the delay incurred in the Staff Reports — for which no mitigating preparation of his periodic report, the circumstances have been pleaded. applicant seeks compensation of one franc for the non-material damage suffered by him. 80. It does not follow from the decision cited that the existence of non-material damage must be presumed whenever there is 74. I do not consider that claim to be well a delay attributable to the administration in founded. the preparation of a periodic report.
75. It is true that in its judgment in 81. Everything depends on the circum Ditterich, 11 the Court considered that stances of the case. non-observance of the time-limits for the preparation of periodic reports, without special mitigating circumstances, was such 82. In this instance, the delay after the issue as to constitute a fault liable to render the of the Joint Committee's opinion was seven administration liable. In that case the Court months, and the period allowed by the rules granted compensation, since it considered was exceeded by a total of 14 months. that 'although the applicant has not estab lished that the omission prevented or delayed any promotion which he might 83. However, in the Ditterich case, the otherwise have obtained and thus caused appeal assessor's delay in preparing the final him material damage, he has however estab report was almost two years 10 months and lished that he suffered non-material damage in the Castille case, in which damages were on account of the fact that his personal file also awarded, the delay amounted to almost is neither in good order nor complete'. four years. In the Seton case, on the other hand, a period of four years three months elapsed between the date on which the 76. It does not seem to me that in the applicant submitted his observations on the present case the same conclusion necessarily first version of his periodic report and the follows. final confirmation by the appeal assessor, and the Court did not consider that any compensation was payable (paragraph 11). 77. There does not appear to be sufficient evidence of non-material damage suffered by the applicant. 84. In the Castille case, moreover, in the absence of the delayed report, promotion 78. The delay in completion of the decisions were taken in which the applicant reporting procedure is in part attributable to was left out of account. For that reason, the the applicant's own conduct, as are the Court took the view that 'in the particular delays in the issue of the opinions by the circumstance of [the] case' (paragraph 37 of the decision), harm had been suffered which 11 — Supra, paragraphs 26 to 28. should be assessed ex aequo et bono.
OPINION OF MR DA CRUZ VILACA — CASE 1/87
85. In the case under review here, it should which the applicant was involved. Notwith also be noted that the final report which standing the allegation of non-material was ultimately prepared, without there damage and mental suffering, the Court having occurred, in my view, any irregu took the view that, since the individual larity capable of affecting its validity, procedure relating to the applicant was contained a number of very favourable subsequently completed and the promotion assessments and, as the Commission pointed decisions were reviewed and confirmed in out, the applicant was even promoted to the light of the new information, no damage grade A 5 during the reference period. had been caused to the applicant; for those reasons, the Court decided (paragraph 25) 86. The conclusion that the claim for to take due account of the differences compensation for late preparation of the between that case and the authority laid periodic report must be rejected also seems down in the Geist judgment of 14 July 13 to me to follow from the recent decision of 1977, where the complete absence of the Fourth Chamber in Vincent, 12 which several periodic reports on the applicant was rejected a claim for compensation based on very difficult, or even impossible, to make the late preparation of a periodic report and up for, 'in view of the time which has on the absence of the report at the elapsed and the dispersal or departure of the 1 beginning of a promotion procedure in authorities who drew up the reports'. 4
4. Conclusion
87. In view of the foregoing considerations , I propose that the Court should dismiss both the application for annulment and the claim for damages , making an order for costs in accordance with the combined provisions of Articles 69 (2) and 70 of the Rules of Procedure .
12 — Judgment of 10 June 1987 in Case 7/86 Vincent v European Parliament [1987] ECR 2473, paragraphs 25 and 26. See also paragraph 62 of my opinion in that case, delivered on 13 — Case 61/76 Geist vCommission [1977] ECR 1419. 1 April 1987. 14 — Paragraph 47.