OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 30 OCTOBER 1980 ( 1 )

Mr President,

Members of the Court,

The applicant in the proceedings on which I give my opinion today entered the Commission's service on 1 October 1967 as a probationary official in Category L/A7. He became established on 1 April 1968 and was employed as an assistant translator in the Translation, Documentation, Reproduction and Library Directorate of the Directorate-General for Personnel and Administration. On 1 October 1972 he was promoted to translator in Grade L/A 6 which at that time under Annex I (A) to the Staff Regulations of Officials was the starting grade in Career Bracket L/A 6 - L/A 5. His name was one of those on the list published on 10 March 1978 of officials who fulfilled the conditions for promotion in the 1978 budget year.

On 2 May 1978 Council Regulation No 912/78 was adopted “amending the Staff Regulations of Officials of the European Communities and the conditions of employment of other servants of the European Communities” (Official Journal, L 119 of 3 May 1978, p. 1) which by virtue of Article 35 entered into force on 4 May 1978. Article 13 rearranged career brackets for language staff listed in Annex I (A) to the Staff Regulations of Officials. For the future Grade L/A 6 and Grade L/A 7 became one career bracket so that as from 4 May 1978 promotion from L/A 6 to L/A 5 could no longer occur, as before, within one career bracket but was considered as promotion from career bracket (L/A 7 -L/A 6) to career bracket (L/A 5 - L/A4).

After a meeting on 30 October 1978 the Heads of Administration of the institutions of the Communities recommended that in the promotion of officials of the language staff within the career brackets applying up to 3 May 1978 the rules previously in force should be applied to officials who had the required seniority on that date and promotions should be granted with effect from 1 January 1978.

That is what the Commission did. On 15 February 1979 it published among other things the list of officials who were promoted within the former career bracket to Grade L/A 5 with effect from 1 January 1978. The applicant in these proceedings was not among them.

On 26 March 1979 the applicant made a formal complaint to the appointing authority seeking the withdrawal of the decisions published on 15 February 1979 effecting promotions to Grade L/A 5. That complaint was expressly rejected by a memorandum of 27 August 1979 having already been rejected by implication by the expiry of a period of four months from the time when it was lodged. The applicant thereupon applied to the Court of Justice on 22 October 1979 seeking a declaration that the decisions relating to 1978 awarding promotion to Grade L/A 5 were void and the annulment of the rejection of the applicant's complaint.

My views on this application, which the Commission asks the Court to dismiss, are as follows :

1. 

First of all, the applicant complains that the Commission promoted under the old rules officials in Grade L/A 6 who had already fulfilled the requirements for promotion before 4 May 1978, which meant that the posts to be filled were not notified as vacant since by those rules the promotions were regarded as being within career brackets. In his view that constitutes a breach of Annex I (A) to the Staff Regulations of Officials as amended by Regulation No 912/78, an infringement of Articles 4, 5 (2) and (4) of the Staff Regulations and an infringement of Article 35 of Regulation No 912/78. To be correct all promotions to Grade L/A 5 after Regulation No 912/78 entered into force should have been regarded as promotions from one career bracket to another and the procedure adapted accordingly.

In reply the Commission primarily submitted that the applicant has no interest in asserting that ground of action so that it must be regarded as inadmissible. As support for that submission it relies on the judgment in Case 90/74 Franane Deboeck v Commission, judgment of 16 October 1975 [1975] ECR at p. 1133 in which it was alleged, in connexion with an internal competition and related appointments, that there had been no vacancy notice. The Chamber held that the applicant had no interest in asserting that error because a vacancy notice could have been of benefit only to candidates for transfer or promotion which she was not. The Commission claims that the circumstances of this case are very similar. The procedure adopted did not adversely affect the applicant and it is certain that the procedure which he believes should have been followed would not have been of any more advantage to him. It is important to remember first that the applicant's name appeared on the list of officials who in 1978 fulfilled the requirements for promotion and was therefore included in the examination undertaken by both the Promotion Committee and the appointing authority. Secondly, it is claimed, the aim of a vacancy notice clearly is to inform officials wishing to apply for transfer or promotion. Therefore a repetition of the promotion procedure complying with the requirements as to vacancy notices might at best bring still more applicants into the field, which would certainly not put the applicant in any better position than under the procedure adopted.

In my opinion one can but agree with that. So there is now no need to consider the basic question whether, beyond the question of admissibility, so far as the grounds of the application are concerned, an interest must in any case be proved. In a case such as this, when it immediately becomes apparent that the applicant has absolutely nothing to gain from a specific ground of application being considered and perhaps being accepted as well founded, then it is justifiable to eliminate it straight away from the proceedings as being inadmissible.

For the rest, however, it is also possible to take the view — and this argument is directed to the soundness of this ground of application — that the Commission's course of action is hardly to be objected to. In view of the fact that promotions within career brackets are generally granted with effect from 1 January and since it may be assumed that officials who had already fulfilled the requirements for promotion at the beginning of 1978 were entitled to expect promotion within the old career brackets — in that respect it is possible to speak of legitimate expectation — in my view it is quite possible to argue that, not only as far as the requirements for promotion are concerned but also as regards the procedural rules to be followed, the Commission could have proceeded under the former rules.

2. 

The applicant secondly complains that the decisions adopted with effect from.l January 1978 on promotions to L/A 5 within the former career bracket were not preceded by publication of the list of officials put forward for promotion by their branches and that there was also no publication of the list of officials who were regarded by the appointing authority as being most deserving of promotion to L/A 5. That constitutes first a failure to observe established practice and a breach of the principle of equal treatment because in spite of there being no publications some officials learnt unofficially of the proposals of the heads of their branches with regard to promotion and might then have been able to have them altered. Secondly, if it is accepted that such promotions could still have been dealt with under the old rules as being promotions within one career bracket then, it is alleged, that further constitutes an infringement of Articles 5 (3) and 45 (1) of the Staff Regulations and of Articles 2, 4, 5 and 7 of the Commission's decision of 21 December 1970, as amended on 14 July 1971, which laid down rules for the promotion procedure and which provides in particular that the appointing authority shall draw up a list of the officials most deserving of promotion and notify the Staff thereof forthwith.

(a)

Before I consider those allegations I should like to describe briefly the procedure for promoting officials of the language staff of the Commission as it stood in 1978.

I should first mention a memorandum by the Director-General of Administration dated 14 November 1978 containing proposals on the promotion procedure which the responsible member of the Commission accepted. That memorandum distinguished between promotions within the former career brackets and those within the new career brackets applying from 4 May 1978. Promotion in the first manner was to apply with effect from 1 January 1978 to officials who fulfilled the requirements for promotion before 1 May 1978; promotion in the second manner was to be granted on 1 June 1978 to officials who fulfilled the requirements for promotion on that date. The Promotion Committee was to meet at the beginning of December to consider the position of officials who were in the starting grades of the new career brackets; at the same time an ad hoc committee was to consider the promotions within the former career brackets.

Also on 14 November 1978 the Director-General of Administration requested the heads of branches to make reasoned proposals for promotions within the former career brackets. The Head of the Directorate for Translation, Documentation, Reproduction and the Library did so on 4 December 1978 but the applicant's name was not included in the proposals.

On 6 December 1978 it was announced in the Administrative Notices for Staff that the Promotion Committee engaged in drafting the list of officials most deserving of promotion on the ground of merit would presently consider the files of all officials who could be considered for promotion within the new career brackets for language staff. It was also indicated that at the same time promotions to L/A 7 and L/A 5 (former career brackets) would be considered. In addition, the list of officials proposed for promotion by the branches was to be communicated to the Promotion Committee. However, in that notice, apart from the composition of the Promotion Committee, only the proposals made by the heads of branches for promotion to L/A 6 and L/A 4, that is promotion within the new career brackets, were published.

The Promotion Committee met on 11 and 20 December 1978 to consider promotions within the new career brackets. The reasoned report of the meeting drawn up on 3 January 1979 containing à list of the officials who in the opinion of the Committee were most deserving of promotion was communicated to the appointing authority which then settled the list of officials most deserving of promotion to L/A 6 and L/A 4 within the new career brackets and published it in the Administrative Notices of 26 January 1979.

On the same date, namely 20 December 1978, the Ad hoc Committee, which, it may now be stated, had the same composition, met to consider promotions within the former career brackets. According to its report of 3 January 1979 21 officials appeared to be most deserving of promotion to L/A 5. However, this was not followed by the drawing up and publication by the appointing authority of the list of officials most deserving of promotion. What happened was that the promotions were put into effect directly on the basis of the report by the Ad hoc Committee, all 21 of the officials proposed by the Committee were promoted, and the promotions were notified in the administrative publication of 15 February 1979.

(b)

One important point, I think, in regard to the applicant's contention that the proposals by his head of branch for promotions within the former career bracket to L/A 5 were not published, thereby preventing him from commenting on them and seeking their amendment, whilst other officials could do so owing to their unofficial knowledge of the promotion proposals, is that no provision requiring such publication exists. Therefore the Commission's conduct, to which exception is taken, certainly does not represent any failure to observe a legal rule; accordingly there can be no question of the infringement of an essential procedural requirement. According to the representative of the Commission there is at most a certain practice to publish proposals for promotion nor can it even be said that the practice has been consistently applied. For example proposals to promote officials on the scientific staff have never been published. Nor are supplementary promotion proposals, if and when the budget allows them, ever published.

If it is accepted that there has been a consistent or prevailing administrative practice of publishing promotion proposals by heads of branches then it must be further stated that departure from it can only be criticized, from the point of view of the breach of the principles of equal treatment and of the protection of legitimate expectation, if there are no cogent reasons for that departure and if no appropriate notification takes place. It is not so important here in my opinion that the Commission has strongly denied that another official of the language staff received unofficial word about the proposals for promotion to L/A 5 and by taking action succeeded in being included in the proposals in the place of another official. Rather what is significant is that, given an exceptional situation, the Commission believed it should depart from the existing practice and that it clearly and expressly so informed those concerned in the aforementioned Administrative Notices of 6 December 1978. From that notice it may in fact be seen that the promotions within the former career bracket would presently be considered without prior publication of the promotion proposals of the heads of branches. It was clear from that to all those concerned that such publication was not to be expected and, since the names of the members of the Promotion Committee were published and it might be assumed that that committee was also dealing with promotions within the former career brackets, then in that situation they could have gone directly to that committee either to complain about the departure from the administrative practice or to comment on their own claims to promotion.

As the applicant did not respond in that manner and, incidentally, has not indicated either in his formal complaint or in these proceedings with what arguments he intended to upset the promotion proposals of the head of his branch, there is in my view no cause, on the ground just considered, to speak of irregularity of the promotion procedure and from that to draw any conclusions with regard to the promotion decisions in question or at least to imply that the Commission should be required once again to examine the applicant's case with respect to his eligibility for promotion.

(c)

As far as the other pan of the second ground of complaint is concerned — non-publication by the appointing authority of the list of the officials in L/A 6 most deserving of promotion — it must be accepted, with regard to the submissions in support of the first ground of application concerning the application to the promotion of officials in Grade L/A 6 who fulfilled the requirements for promotion before 1 May 1978 of the provisions on promotion within the career bracket, that there is express provisions for such publication in the general implementing provisions on the promotion procedure within a career bracket (see the Commission's decision of 21 December 1970 as amended by the decision of 14 July 1971, paragraph 7).

However, it must be admitted that departure from those provisions appears to some extent understandable in this case because after the entry into force of Regulation No 912/78 promotion from Grade L/A 6 to L/A 5 could no longer be regarded as promotion within a career bracket and therefore there was really no point in publishing a list of the officials most deserving of promotion since from that time forward it could not create any precedence for the adoption of subsequent promotion decisions.

Secondly, the question would in any case remain whether, as the applicant believes, the said provision does in fact constitute an essential procedural requirement which is laid down for the benefit of the officials concerned and the disregard of which would compel the annulment of promotion decisions. It is my firm opinion that the publication of the list of the most meritorious officials was not required for the purpose of giving the persons concerned opportunity to comment on that list and to strive to have it altered, as the applicant thinks. We have seen the course which the promotion procedure takes at the Commission and how, in particular, the involvement of the Promotion Committee, on which staff representatives also sit, makes for an objective assessment which, in the case of promotion within a career bracket, is very apparent anyway since objective criteria here carry great weight. If the appointing authority establishes the list of the officials most deserving of promotion pursuant to a proposal of the Promotion Committee, which has all the essential documents at its disposal, then the point of seeking comments from candidates for promotion does not at this stage of the proceedings seem very clear. The main purpose of the publication of such lists may therefore, as the Commission has pertinently commented, be seen to be related to the fact that the appointing authority is bound by those lists. As is stated under paragraph 8 of the said Commission decision, it can promote only officials whose name is on such a list.

In the present case the Commission acted in accordance with it inasmuch as it adopted all the promotion proposals of the Promotion Committee and issued appropriate decisions. In those circumstances, and owing to the applicant's failure to indicate in his complaint against the promotion decisions the reasons why he should be included in the list, the disregard of paragraph 7 of the said Commission decision should not be taken to mean that the promotion procedure and its outcome were unlawful for the very reason that it is not an essential procedural requirement.

3. 

One final ground of complaint, which is not to be found in the application itself, but which is rather the applicant's response to the Commission's comments on the promotion procedure adopted, is based on the fact that the proposals for the promotion of officials who had fulfilled the requirements for promotion before May 1978 did not come from the Promotion Committee but from an ad hoc committee which, as mentioned earlier, the competent member of the Commission agreed should be set up.

This contention does not require any lengthy argument. According to what we have been told this course of action was clearly chosen in order to avoid giving the impression in a temporary situation, in which promotion was granted within the former career brackets after Regulation No 912/78 entered into force, that the Promotion Committee would also be involved in the case of promotion from one career bracket to another, which, after 4 May 1978, was true in the case of promotion from L/A 6 to L/A 5. In any event, if there is at all any irregularity in that, it cannot be described as one of a serious nature. Suffice it to say that the Ad hoc Committee had the same composition as the Promotion Committee, that it likewise had full documentation at its disposal and applied the same working methods. This is apparent from the minutes of the Promotion Committee and of the Ad hoc Committee, which are in fact to be viewed as one entity. Further support is to be found in a statement by the President of the Ad hoc Committee, and of his secretary, dated 17 March 1980 which was produced during the proceedings. Basically it was to the effect only that the Promotion Committee had examined promotions within the new career brackets separately from promotions within the former career brackets. There is surely no objection to that; on the contrary it seems practical as in each case there were special groups of officials involved, which naturally required special assessments of the comparative merits of the candidates for promotion.

If therefore the appointing authority expressed itself in favour of promotions pursuant to proposals arrived at in this way and, moreover, made unanimously, for promotion to L/A 5, I cannot discern how that can be viewed as a ground for annulment.

4. 

I therefore propose that the application be dismissed and that the decision as to costs be taken pursuant to Article 70 of the Rules of Procedure.

( 1 ) Translated from the German.