T-68/91

defendant,

A P P L I C A T I O N for the annulment of the list of officials of the scientific or tech- nical staff of the Commission promoted to Grade A 4 for 1990 and compensation for the damage alleged to have been suffered by the applicant,

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Fifth Chamber),

composed of: K. Lenaerts, President of the Chamber, H . Kirschner and D. Bar- rington, Judges,

Registrar: S. Hackspiel, Administrator,

having regard to the written procedure and further to the hearing on 20 May 1992,

1 The applicant was born on 27 March 1931 and is a graduate in industrial chemistry of the university of Turin. H e entered the service of the Commission in 1961 at the Joint Research Centre at Ispra. H e is at present an official in Grade A 5 on the sci- entific staff of the Commission. H e has been in the highest step in his grade for more than 16 years.

2 Since his 1983-1985 staff report was not drawn up within the prescribed period, that is to say by 30 November 1985, the applicant, after following the two-stage pre-litigation procedure, brought an action for compensation for the material and non-material damage which he considered he had suffered as a result of that delay. By judgment of 8 November 1990 in Case T-73/89 Barbi V Commission [1990] ECR 11-619 the Court of First Instance ordered the Commission to pay the appli- cant the sum of one European Currency Unit as compensation for the non-material damage suffered by him. The judgment has become final.

3 The 1987-1989 staff report was also not drawn up by the prescribed date, 30 November 1989.

4 The promotion procedure for 1990 therefore began, as regards the applicant, in the absence of a staff report. However, by a memorandum from his superior of 5 Feb- ruary 1990 the applicant was proposed for any promotion there might be (Annex VI to the Commission's defence; hereinafter 'the promotion proposal'). For the 1987-1989 reporting period the memorandum contains particulars of the applicant's various merits, awarding him one mark of 'excellent', ten 'very good' and three 'good'. Furthermore, the applicant's superior gives the following justification for the promotion proposal: 'Mr Barbi has shown in the past good experimental as well as theoretical ability in the field of applied thermodynamics, in particular Electro- chemistry and Sensors' Science. This is amply shown by his recent publications (see

8 On 13 February 1991 the applicant lodged a complaint with the appointing auth- ority. In its heading the applicant stated that it was directed against the 1990 pro- motions list. He alleged that by implication he had been excluded from the list of officials promoted without the various administrative bodies being able to consider his 1987-1989 staff report. There was thus an infringement of Articles 43 and 45 of the Staff Regulations of Officials of the European Communities and Article 6 of the General Provisions implementing Article 43 of the Staff Regulations adopted by the Commission. In those circumstances the fact that his name had not been included in the list of officials promoted constituted in his view an act adversely affecting him within the meaning of Article 90 of the Staff Regulations. He also

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claimed that the Commission was obliged to make good the material and non- material damage resulting from the absence of the staff report.

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12 U p o n hearing the Report of the Judge-Rapporteur the Court of First Instance decided to open the oral procedure without any preparatory inquiries. It did, how- ever, ask the parties to answer two questions concerning the pre-litigation pro- cedure and the defendant's assessment of the applicant's merits.

1 3 At the hearing on 20 May 1991 the parties presented oral argument and replied to the questions put by the Court. The applicant produced at the hearing a bulletin from the Commission's Central Staff Committee dated 7 February 1992 and headed 'The negligence of certain departments blocks the 1992 promotions'. The President declared the oral procedure closed at the end of the hearing.

u The applicant claims that the Court of First Instance should:

(i) annul the 1990 procedure for promotion to Grade A 4 of the scientific staff as being vitiated for infringement of Article 45 of the Staff Regulations with regard to him;

(i) declare the application inadmissible in relation to the claim for compensation for damages;

with regard to the substance:

(i) dismiss the application as unfounded;

(ii) make an order for costs in accordance with the law.

The claim for annulment of the decision concerning the 1990 promotions to Grade A 4 of the scientific staff

ie As a preliminary it is necessary to determine what is the appointing authority's decision referred to in the application for annulment. First, the claim for annulment in the application refers to the '1990 procedure for promotion to Grade A 4 of the scientific staff'. Secondly, the applicant has stated as the subject-matter of his appli- cation 'annulment of the list of promotions for 1990 to Grade A 4' (page 1 of the application). In addition, it must be pointed out that his complaint was directed only against the list of officials promoted for 1990. The previous list of officials which, according to the 'Instance O ' Joint Committee, could be taken into con- sideration for promotion and the list of officials considered most deserving of pro- motion were not the subject of any specific complaint. It should therefore be held that this application for annulment is directed against the decision of the appoint- ing authority published on 30 November 1990 concerning the promotion to Grade A 4 of 15 officials of the scientific or technical staff and the reclassification of sev- eral members of the temporary staff (Annex X to the defence).

20 The Commission denies that Article 43 of the Staff Regulations and Article 6 of the General Provisions were infringed. A radical reorganization of the structure of the Joint Research Centre had created at the material time an exceptional situation. As a result of that reorganization almost all the administrative activities were seri- ously delayed. For all officials of the Joint Research Centre 'who were most directly concerned' by that reorganization the reference period for the 1987-1989

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staff report had to be limited to 31 December 1988. The 1989-1991 staff report covered the first six months of 1989 not covered by the previous staff report. In the Commission's view the complete reorganization of the Joint Research Centre which caused the staff report in question to be late and incomplete should be dis- tinguished from the different circumstances found by the Court of First Instance in its aforementioned judgment of 8 November 1990 in Barbi. Consequently, the Commission says, the staff report could not be found to be in any way unlawful.

2i Furthermore, the absence of a staff report had no decisive effect on the contested promotion procedure. The promotion proposal, which was an official, complete and detailed document replaced the staff report which was missing at the time.

22 At the hearing the Commission stated that the staff report, which was drawn up later, and the promotion proposal were equivalent. The two documents contained identical marks, namely one 'excellent', ten 'very good' and three 'good'. A men- tion of an 'unfortunate occurrence' in the promotion proposal did not detract from the applicant's merits. It simply reflected the regret that he had not been able fully to deploy his knowledge in the previous programmes whilst he was — now — able to make greater use of his knowledge. The Commission maintained that the expres- sion 'good ability' employed in the promotion proposal expressed a positive opin- ion even if the terms used were a little less glowing than the expressions 'eccelenti conoscenze' and 'ottima capacità di sintesi' in the staff report. In any event the fig- ures and the marks were identical without any possible equivocation.

24 As for the reorganization of the Joint Research Centre between 1988 and 1989, it must be pointed out that, however radical the reorganization of the departments of a research centre may be, it cannot in itself justify the failure to draw up the staff reports of officials who work there. The Court does not overlook the fact that such reorganization may create administrative difficulties complicating the drafting of staff reports by superiors and their discussion with those concerned. The Commis- sion has, however, not demonstrated, nor even alleged, that in the present case the applicant's assessors were prevented by specific circumstances from drawing up the applicant's staff report within the period laid down by the Staff Regulations. In the absence of such specific matters capable of excusing disregard of the Staff Regula- tions and the applicable general provisions, mere reference in general terms by the Commission to the reorganization of the Joint Research Centre must be regarded as insufficient to excuse infringement of Article 43 of the Staff Regulations and Article 6 of the General Provisions.

25 Moreover, the report finally signed in 1991 is only a partial report in so far as it covers only the period up to 31 December 1988. However, Article 8 of the General Provisions provides for an intermediate report on officials only in the case of a reassignment or transfer. Furthermore, the Commission has not explained why its departments were not able, at least in 1991, to draw up a staff report covering the whole period 1987-1989. It must therefore be observed that the infringement of the abovementioned provisions continued, at least in part, even after the partial report in question was drawn up.

27 In that respect the Commission alleged that the absence of the staff report was compensated for by the promotion proposal of 5 February 1990, which was equiv- alent to the staff report drawn up in 1991. The Court must therefore check whether those two documents contain equivalent assessments as regards the applicant's abil- ity, efficiency and conduct. Although it is true that the analytical assessments in the two documents are identical, the general assessment in the staff repon is clearly more favourable to the applicant than that in the promotion proposal. The terms 'eccelenti conoscenze nel campo elettrochimico', and Ottima capacità de sintesi' and an 'eccelente prova nell' attività di supporto alla Commissione' used in the staff report are a more positive assessment than the expression 'good experimental and theoretical ability' employed in the promotion proposal. Furthermore the promo- tion proposal mentions the 'unfortunate occurrence that his competence could not be satisfactorily employed with(in) the frame of ISPRA past Programmes'. In the context of a promotion procedure such an observation has a greater effect than a mere expression of regret by the institution; it may be a factor diminishing the chances of the person concerned of being promoted in relation to other officials who have not been the victims of such an 'unfortunate occurrence'. The Court thus finds that the two general assessments of the applicant's ability, efficiency and con- duct were not equivalent. Consequently the fact that the applicant's staff report was not drawn up within the time-limit prescribed by the Staff Regulations could have had a decisive effect upon the promotion procedure.

JO The Commission argues that there was no infringement of Article 45 of the Staff Regulations. It states that the absence of a staff report may be compensated for, in exceptional circumstances, by the existence of other information on the official's merits. The Commission repeats that the promotion proposal contains the same analytical assessments as those which were later confirmed in the definitive staff report. Consequently it was on account of the consideration of the comparative merits and not the absence of the staff report that the applicant's name could not be included in the list of officials who were successful in the preliminary stages of the promotion procedure. It was proved that the authorities responsible for con- sidering the merits of the eligible officials had before them from the beginning of the procedure the same basis for assessing the applicant's merits as would have been afforded by his staff report. Of the three persons from the Institute for Advanced Materials whose names were included on the list of officials promoted, the first two had already been included on the list of officials 'considered most eligible' in the previous year. There had already been an internal proposal for the promotion of the third. In those circumstances the appointing authority had kept within the authorized limits and had not wrongly exercised its — wide — discretion. N o evi- dence has been adduced of the existence of any causal link between the absence of the staff report and the fact that the applicant's name was not included on the list of officials promoted.

35 As regards the substance, the Court notes that the promotion proposal was not placed in the applicant's personal file although it contains a brief report on his abil- ity, efficiency and conduct, as well as assessments relating thereto. Pursuant to Arti- cle 26 of the Staff Regulations the promotion proposal ought to have been placed in the applicant's personal file. Consequently there was an infringement of Article 26 of the Staff Regulations. It follows that the contested decision was adopted fol- lowing a procedure vitiated by a third illegality (see Case T-82/89 Marcato v Com- mission [1990] ECR 11-735, paragraphs 76, 78 and 89). The applicant's third plea in law must therefore also be upheld.

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37 The applicant claims that disregard of the provisions on the drawing up of staff reports constituted in the present case maladministration for which the Commis- sion is responsible. That maladministration caused him non-material damage in connection with his uncertainty and disquiet regarding his professional future. As compensation for that non-material damage the Commission should pay him com- pensation which takes account of the duration of that delay (18 months), the sys- tematic repetition of that irregularity and the complete absence of a staff repon for the first six months of 1989. The applicant considers that the amount of compen- sation to make good the damage should not be less than BFR 300 000. In order to take account of the fact that this failure repeated a previous failure on the part of the Commission the Court of First Instance ought to order the Commission to pay him an amount likely to have a dissuasive effect.

38 As regards the admissibility of the claim for compensation, the applicant states that this claim was already included in the complaint. As regards the quantum of dam- age he specified the figure in the first pleading in the present proceedings (the appli- cation). As the Court of Justice has held (see Case 126/87 Del PUto v Commission [1989] ECR 659, paragraph 12) the application is therefore admissible.

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J9 At the hearing the applicant argued that it was not necessary to submit a request within the meaning of Article 90(1) of the Staff Regulations that a Staff Report be drawn up since such a decision had to be taken within precise time-limits. As regards the two heads of the application (annulment and damages), the applicant maintained that they were set out both in the application and in the reply. He rec- ognized that he may perhaps have emphasized the delay in drawing up the report rather than the fact that it was not available during the various stages of the pro- motion procedure. Since the claim for annulment was admissible, he considered it obvious that the claim for damages was also admissible. In view of the systematic breaches committed by the Commission a significant and dissuasive penalty was called for.

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42 As regards the admissibility of the application for damages the Court observes at the outset that this claim seeks compensation for the non-material damage which according to the applicant had been caused to him by the delay in drawing up his 1987-1989 staff report. In stating at the hearing that he sought a dissuasive penalty against systematic breaches by the Commission of the rules relating to the drawing up of staff reports the applicant has confirmed that that is indeed the object of his claim for damages.

4i In the aforementioned Oberthiir case (paragraphs 9, 10 and 11) the applicant's staff report had not been drawn up at the time the Promotion Committee was consid- ering proposals for promotion. The Court of Justice considered that the Commis- sion had committed a wrongful act or omission which made the promotion pro- cedure irregular as regards the applicant. Although the applicant's complaint had not sought damages (see the factual part of that judgment at p. 1746), and in the absence of valid claims to that effect, the Court, referring to its unlimited jurisdic- tion, of its own motion ordered the defendant to pay compensation for the non- material damage caused by its wrongful act or omission.

45 As regards the substance, the Court finds that the Commission was guilty of mal- administration by failing to draw up the applicant's staff report within the time- limit prescribed by the Staff Regulations and substituting for it in the contested promotion procedure a promotion proposal less favourable than the staff report later drawn up (see paragraphs 23 to 27 above). Instead of drawing up the staff report before 30 November 1989, the Commission did not forward to it to the applicant until after 22 April 1991. It must be added that the report covered only the period to 31 December 1988 while the assessment of the remainder of the period in question was left until a later date. That maladministration on the part of the Commission caused the applicant non-material damage by reason of the state of uncertainty in which he found himself with regard to his professional future (see Case T-63/89 Latham v Commission [1991] ECR11-19, paragraph 31).

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1. Orders the Commission to pay the applicant the sum of BFR 200 000 by way of damages;

2. Dismisses the remainder of the application;

3. Orders the Commission to pay the costs.

Lenaerts Kirschner Barrington