C-346/87

2. However, before addressing itself to the substance of the case, the Court must rule on several objections of inadmissibility 5. The other objections of inadmissiblity raised by the Commission. concerning the third head of the claim for annulment and the three claims for compen­ sation call for somewhat more extensive consideration. 3. One of these does not seem to require any discussion. In the second head of the claim for annulment, the application refers to an act which was not in existence on the 6. I must say that the Commission's day the application was lodged. As the arguments supporting these objections seem Commission has correctly pointed out the to me excessively rigid, failing, in particular, 'list of officials actually promoted in 1987' to take into account the implications of the had not been drawn up or published when preliminary complaint procedure provided Mr Bossi lodged his application on 11 by the Community legislature in Article 90 November 1987. That list was not published of the Staff Regulations of Officials of the until 14 December 1987 when it appeared in European Communities. Administrative Notices No 545.

4. What is more, such a list does not, 7. The essential purpose of this preliminary strictly speaking, constitute the promotion procedure, which Article 91 (2) of the Staff

* Original language French

OPINION OF MR DARMON — CASE 346/87

9. As the Court has consistently held, 12. Furthermore, it seems to me that the interpretation advocated by the Commission would of necessity lead officials to put everything in the complaint and from the 'an official may not submit to the Court outset give the maximum impact to the conclusions with a subject-matter other than dispute with the administration which can those raised in the complaint or put forward only serve to render the preliminary heads of claim based on matters other than procedure more difficult and contentious, those relied on in the complaint'. 1 placing the parties in a situation of conflict and thereby reducing the chances of their being reconciled. Thus, paradoxically, the requirement that they be identical strido What is meant by conclusions having 'a sensu has the potential to reduce the effec­ similar subject-matter'? tiveness of the prevention of dispute between the Community institutions and their staff and hence may actually increase disputes.

10. The Commission insists on a very strict interpretation and contends that the claims for compensation are inadmissible since no 13. The Court's case-law does not finally claim for damages was formulated in the seem to have decided between formalism complaint to the appointing authority. At and flexibility. In the Jänsch judgment of 10 that time Mr Bossi requested 'the annulment December 1987 2the Court declared inad-

1 — Judgment of 20 May 1987 in Case 242/85 Geist v 2 — Case 277/84 [1987] ECR 4923, paragraph 10 of the Commission [1987] ECR 2181, paragraph 9. judgment.

15. Any formal complaint by an official refers to a particular act or omission on the part of the administration. Its purpose is to remove the effects of the act or omission by 'Article 91 of the Staff Regulations is changing the administration's conduct, designed to permit and encourage the obtaining compensation from the adminis­ amicable settlement of differences which tration or both. Therefore, its subject-matter have arisen between officials and the admin­ covers the various means which can lead to istration. In order to comply with that the removal of the effects in question. requirement it is essential that the adminis­ Before this Court, the application may not tration should be in a position to know with relate to a different act or omission since sufficient certainty the complaints or wishes that would involve changing the cause of of the person concerned. On the other hand, it is not the purpose of that provision 3 — Case 7/86 [1987] ECR 2473. 4 — Case 24/79 [1980] ECR 1743. paragraph 14 of the judgment 5 — Case 52/85 [1986] ECR 1555, paragraph 12

OPINION OF MR DARMON —CASE 346/87

BOSSI v COMMISSION

'... 24. Furthermore, it seems to me that the concept of a confirmatory act applied to the implied decision to reject a complaint does not make much sense. In administrative law 2. An appeal to the Court of Justice of the generally the purpose of this concept is to European Communities shall lie only if: remove the possibility of an action chal­ lenging an act which only restates a previous decision in respect of which an action would be time-barred. That has (i) the appointing authority has previously nothing to do with the situation which I had a complaint submitted to it have analysed above where the Community pursuant to Article 90 (2) within the legislature provides for a preliminary admin­ period prescribed therein, and istrative complaint procedure and provides expressly that during this obligatory procedure time shall not start to run as regards the action before the Court. If the (ii) the complaint has been rejected by administration fails to reply for four express decisions or by implied decision. months, the Staff Regulations clearly treat that as a decision against which an appeal may be brought.

3. Appeals under paragraph 2 shall be filed within three months. That period shall 25. Therefore, neither the wording of the begin: Staff Regulations nor the spirit of the concept of a confirmatory act appear to me to support the Commission's objection of inadmissibility.

26. The Commission cites the Plug 6 judgment of 9 December 1982 in which — on the date of expiry of the period the Court referred to the Kuhner judgment 7

'in staff cases where it is a rule that a complaint must necessarily be made before 'the list of officials most deserving of an action is brought the applicants' interest promotion established by the appointing in seeking annulment of the decision authority constitutes a final measure since rejecting their complaint at the same time as an official not appearing on that list cannot the measure adversely affecting them cannot be promoted'. 13

be denied whatever the specific effect of the annulment of such a decision in a given case'. 11

BOSSI v COMMISSION

ask it to give a reasoned decision on the approached fruition during May 1987, in objections so as to avoid the pleading of other words after Mr Bossi had submitted irrelevant claims of inadmissibility in future his complaint seeking the annulment of the proceedings. decision not to enter his name on the list of officials deserving promotion.

30. I turn now to the substance. The 32. In the light of the facts thus established, application consists of four submissions the applicant complains that there has been which may be summarized as follows. In the a breach of Articles 43 and 45 (1) of the 1987 B 2 to B 1 promotion procedure the Staff Regulations and of Article 6 of the competent authorities had no knowledge of general implementing provisions concerning Mr Bossi's periodic reports for the 1981-83 staff reports, on the ground that the and 1983-85 periods since those reports had following essential information concerning not yet been drawn up. Thus, the authorities him could not have been taken into were not in a position to assess the merits of consideration during the course of the Mr Bossi, who met the conditions, laid promotion procedure: his acquisition of down in the Staff Regulations, of eligibility specialized knowledge regarding the adap­ to such a promotion. In those circumstances tation of premises for computers and the absence of the periodic reports repre­ participation in English courses. He also sented both an irregularity which vitiated complains that the contested decision was the appointing authority's adoption of the taken without his superior being consulted list of officials most worthy of promotion to with respect to the period not covered by Grade B 1 and maladministration causing the periodic report. material and non-material harm.

and the Court reiterated that

'pursuant to Article 45 (1) of the Staff adding that Regulations officials may be promoted only after consideration of the comparative merits of the officials eligible for promotion and of the reports on them', 'the fact that the personal file of one applicant is irregular and incomplete is not a sufficient ground for the annulment of the before concluding that appointments unless it is established that this was capable of having a decisive effect on 1 the appointment procedure'. 7 'consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done fails to meet the requirements of Article 45 with 35. In short, it seems to me that the Court's regard to consideration of the comparative case-law has addressed two questions. 15 merits of officials'.

38. It might first be asked whether, in the promotion procedure at issue, the competent bodies were, despite the absence 41. I am not altogether convinced by this of Mr Bossi's periodic reports, duly able to argument. It should be noted that it is based consider the comparative merits of the in part on a subsequent declaration from the candidates thanks to other information in administration, in particular from Mr Volpi, their possession. which gives assurances regarding the knowledge of Mr Bossi's qualities and merits at the time when the administration drew up its proposal. In the absence of more objective evidence, for example testimonies 39. The Commission answers this question from Mr Bossi's direct or close superiors in the affirmative. It stresses that the who participated in the discussions proposals submitted to the Promotion regarding the directorate's proposals, a Committee by the directorate where Mr simple unilateral declaration by the Bossi was serving were drawn up after defendant subsequent to the applicant's consulting the directors, heads of division complaint does not seem to me to suffice. and heads of specialized departments who are in a position to give a comprehensive assessment of the merits of each of the officials eligible for promotion with whom they are frequently in contact and the 42. Furthermore, the evidence in the quality of whose work they can properly documents concerning the assessments by judge. On this point, the Commission Mr Délhez, Mr Bossi's direct superior referred to the letter from Mr Volpi, a throughout the periods not covered by the director, dated 22 May 1987 which shows periodic reports, does not make it clear that Mr Bossi's present and former superiors whether he was consulted during the participated in discussions within the direc­ promotion procedure, in particular as torate and that it was possible to take their regards the drawing-up of the directorate's assessments into account but that they led to proposals. At no time does the Commission the conclusion that 'in the light of Mr specificially mention such consultation but Bossi's age and seniority and his confines itself to stressing that Mr Délhez performance compared with that of his had left once the proposals were made. The colleagues it was not appropriate to enter assertion that the proposals were drawn up his name on the list of proposals'. 'following thorough discussion within each

It could not be more clearly stated that no particular examination of Mr Bossi's merits 43. Furthermore, the Commission's took place before the Promotion statements in no way establish that Mr Committee. It therefore seems difficult to Bossi's situation was assessed within the accept that information provided to that Promotion Committee. It even seems that Committee could compensate for the the contrary can be inferred. The absence of the periodic reports in the Commission declares that that Committee is assessment of the applicant's merits. in a position to compensate for any over­ sights on the part of the directorates provided that the particular case is brought to its attention. Failing that, the Committee deliberates 'on the basis of the proposals 45. I do not consider that the fact that Mr from the departments and their order of 19 Bossi did not himself bring his situation to priority' which in plain language indicates the attention of the Promotion Committee that they do not re-examine the situation of can be held against him in the proceedings. all the eligible officials. Mr Bossi did not Otherwise he would effectively be bearing request the Committee to look into the fact the consequences of the administration's that his name was not amongst the failure to act in so far as it did not draw up proposals from his directorate. his periodic reports in good time. I take the view that under the Staff Regulations an official is entitled to have his merits assessed during a promotion procedure on the basis of his periodic reports or, exceptionally, if 44. In this respect I would like to read a these are lacking, of all other relevant infor­ passage from the Commission's rejoinder mation. It is not incumbent upon him to which seems to me very revealing. At p. 5 of make a special request to enjoy his entit­ that document the Commission indicates lement and it cannot be refused him because that the Promotion Committee he has not requested it.

47. According to the Oberthür judgment, it considerable numbers of individual cases is for the Commission to show that the that justifies the Court's decision that absence of an official's periodic reportis definitive promotions following an unmis­ compensated for by the factors capable of takable irregularity in the promotion informing the Promotion Committee and procedure will not invariably be annulled. the appointing authority of the official's However, as we have seen, Mr Bossi's 20 merits for the period in question. application is inadmissible with respect to the promotion decisions actually taken. Therefore, the application for annulment concerns only the appointing authority's decision on the list of the most deserving 48. In the light of the foregoing consider­ officials and the implied decision rejecting ations I take the view that in the present his complaint. case the Commission has not shown that the absence of the periodic report was compensated for by other information available to the competent authorities. I conclude from this that the requirements, set out in Article 45 (1) of the Staff Regu­ lations that there be a consideration of the 51. The decisions regarding promotions comparative merits of the officials eligible from Grade B 2 to Grade B 1 for 1987 are for promotion have not been satisfied and now final since they have not been regularly that that provision has not been complied challenged. The situations of the officials with. promoted cannot be reopened. As the Commission's representative admitted at the hearing, the annulment of the appointing authority's decision on the list of officials most worthy of promotion to Grade B 1 49. Does this make out the case for the would have no effect on their situations. annulment of the decision challenged or Consequently, there appears to be no must it also be shown that the consideration of administrative expediency non-compliance with Article 45(1) of the or preservation of individual situations to Staff Regulations had a decisive effect on prevent the application to the irregularity in the promotion procedure? the Grade B 1 promotion procedure of the sanction called for by the principle of legality, that is to say by the annulment of the decision on the list of the most deserving officials. I would therefore request 50. I take the view that it is not necessary in the Court to annul that decision. this case to show a decisive effect. The Court's case-law shows clearly that the fairly strict, or even harsh, condition of the 'decisive effect' was added to avoid the automatic annulment of the often numerous promotions which had been adopted following procedures vitiated by an irregu­ larity regarding the assessment of the merits 52. Such a decision seems to me all the of a single candidate. In fact, it is only the more desirable since it would plainly set an grave prospect of reopening the often example with respect to the repeated admin­ istrative failures in the drawing-up of 20 — Case 24/79. cited above, paragraph 10 of the judgment periodic reports.

53. Mr Bossi's situation, in which the 1987 and he quoted from his own Opinion in the promotion procedure took its course Oberthür case: although he had not been the subject of a periodic report since 1981, is not an isolated incident. The list of judgments given by the Court in similar cases is long. Unfortu­ 'It is not all necessarily a question of money nately, the delay which the Court described and the best means of improving the in the List judgment as being 'considerable 21 conduct of administrative procedures is not and inexplicable' does not seem to be 25 to quantify the damages'. exceptional in the administrative practices of the Community institutions. Therefore, to my mind, the penalties imposed by the Court against such practices should serve to encourage the administration not to repeat He therefore took the view that in certain them and to improve its efficiency. circumstances the annulment of the promotion decisions could constitute the appropriate penalty for the irregularities since the administration would be perfectly able to take the necessary consequential 22 steps, for example, by reconstructing the 54. In his Opinion in the Gratreau case careers in question. Mr Advocate General Mayras clearly addressed the problem of an adequate penalty for irregularities in the drawing-up of periodic reports. He referred to the Oberthiir judgment, where the Court 55. On this point I share the opinion of my declared that there had been an irregularity predecessor. I am aware that the Court is in the promotion procedure because of the reluctant to penalize irregularities of the absence of periodic reports and the lack of type found in this case by annulling the information capable of replacing them but promotions but I consider that such a none the less considered that the annulment solution cannot always be avoided unless of the promotions of 40 officials would the administration is to be given immunity. constitute an excessive penalty and preferred of its own motion to order the Commission to pay compensation for the non-material 23 damage caused by its maladministration. The Advocate General voiced his doubts 56. Consequently, the annulment of the concerning such a solution. In his eyes, the appointing authority's decision on the list of award of damages the most deserving officials and not of the promotions themselves would serve as 'a shot across the Commission's bows', a warning which I hope would be sufficient to prevent both similar failures and recourse to penalties having harmful consequences for 'is not the appropriate remedy to attach by other officials. way of sanction to irregularities committed 24 in a promotion procedure',

58. The first head of claim for damages 'an applicant "suffers non-material damage must in the circumstances be dismissed. The resulting from the fact that he possesses a irregularity which has been held to exist personal file which is irregular and consisted not in failing to promote Mr Bossi incomplete, when the compulsory periodic but in not having properly examined his report is a guarantee to an official for the merits. The administration's fault consisted regular progress of his career" and that the in the failure to respect not any entitlement absence of periodic reports for which the of Mr Bossi to be promoted but his right institution alone is responsible may put him under Article45 (1) of the Staff Regulations in an uncertain and anxious state of mind 27 that the comparative merits of the officials with regard to his future career'. eligible for promotion should be considered. There is nothing to show that, if this comparative examination had duly taken place, it would have culminated in Mr Bossi's promotion. In those circumstances the material harm which he cites consisting in the 'annual difference in salary and other 60. In this case, the first discernible sign benefits between Grade B 2 and Grade B 1' that Mr Bossi's periodic reports for the does not seem to me to be sufficiently direct 1981-83 and 1983-85 periods were in the or, more to the point, sufficiently certain to process of being drawn up appeared only justify redress. after he lodged his complaint and after the list of officials considered most worthy of promotion had been drawn up and the promotion procedure was not reopened to examine his situation on the basis of new information. It seems to me that this factor 59. On the other hand it seems to be proves the existence of non-material harm. difficult not to give any compensation for This harm will not be redressed by the the non-material damage. In the Castille annulment of the appointing authority's judgment the Court considered that decision on the list of the most deserving officials. The very fact that periodic reports were not drawn up constituted fault causing harm, irrespective of its consequences on the regularity of the promotion procedure. 'delays in the drawing-up of staff reports This appears to me to be the sense of the may themselves be prejudicial to officials for abovementioned Castille and Geist the simple reason that their career progress judgments. may be affected by the absence of such reports when decisions concerning them 26 must be taken'.

(a) annul the appointing authority's decision drawing up the list of officials considered most worthy of promotion to Grade B 1 in the 1987 financial year, published on 2 March 1987, and consequently annul the implied decision rejecting the applicant's complaint made on 15 April 1987;

(b) order the Commission to pay BFR 25 000 as compensation for the non-material damage suffered by Mr Bossi;

(c) dismiss the claim for compensation for material damage;

(3) order the Commission to pay the costs.