61979J0024

1 . OFFICIALS - PROMOTION - CONSIDERATION OF COMPARATIVE MERITS - LEGALITY - CONDITIONS - CONSIDERATION OF THE PERIODIC REPORTS OF ALL CANDIDATES

( STAFF REGULATIONS , ARTS 43 AND 45 ( 1 ))

2 . OFFICIALS - APPLICATION TO THE COURT - UNLIMITED JURISDICTION OF THE COURT - ORDER OF THE COURT ' S OWN MOTION THAT THE DEFENDANT INSTITUTION PAY COMPENSATION

( STAFF REGULATIONS , ART . 91 ( 1 ))

1 . THE PERIODIC REPORT , WHICH UNDER ARTICLE 43 OF THE STAFF REGULATIONS MUST BE MADE AT LEAST ONCE EVERY TWO YEARS , CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION AND IN PARTICULAR AS REGARDS PROMOTION WHICH , PURSUANT TO ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS , MAY BE MADE ONLY AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM . CONSEQUENTLY CONSIDERATION OF THE MERITS OF CANDIDATES WHOSE PERIODIC REPORTS HAVE ALREADY BEEN DRAWN UP UNDER ARTICLE 43 AND OF OTHERS IN WHOSE CASE THIS HAS NOT YET BEEN DONE FAILS TO MEET THE REQUIREMENTS OF THAT PROVISION WITH REGARD TO CONSIDERATION OF THE COMPARATIVE MERITS OF OFFICIALS .

2 . THE UNLIMITED JURISDICTION WHICH THE COURT HAS UNDER ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS INCLUDES THE POWER TO ADJUDICATE ON AN ACTION WHICH SEEKS ONLY THE ANNULMENT OF A DECISION BY REJECTING THE APPLICATION FOR ANNULMENT BUT , OF THE COURT ' S OWN MOTION , ORDERING THE DEFENDANT INSTITUTION TO PAY COMPENSATION FOR THE NON-MATERIAL DAMAGE CAUSED TO THE APPLICANT BY A WRONGFUL ACT OR OMISSION ON THE PART OF THAT INSTITUTION .

THIS COURSE OF ACTION IS TO BE TAKEN IF THE ANNULMENT SOUGHT WOULD CONSTITUTE AN EXCESSIVE PENALTY FOR THE IRREGULARITY COMMITTED WHILST THE AWARD OF DAMAGES BEST MEETS BOTH THE APPLICANT ' S INTERESTS AND THE REQUIREMENTS OF THE SERVICE .

IN CASE 24/79

DOMINIQUE NOELLE OBERTHUR , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT SINT-STEVENS-WOLUWE , REPRESENTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , ADVOCATE , 34/B/IV , CENTRE LOUVIGNY , RUE PHILIPPE II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR ANNULMENT OF THE PROCEDURE FOR PROMOTIONS TO GRADE B 2 IN 1978 AND FOR THE ANNULMENT OF THE COMMISSION DECISION OF 13 NOVEMBER 1978 REJECTING THE APPLICANT ' S COMPLAINT MADE ON 20 JULY 1978 ,

1 BY APPLICATION DATED 8 FEBRUARY 1979 , RECEIVED AT THE COURT THE FOLLOWING DAY , THE APPLICANT SOUGHT THE ANNULMENT OF THE PROCEDURE FOR PROMOTIONS TO GRADE B 2 AS A RESULT OF WHICH THE COMMISSION PROMOTED THE OFFICIALS WHOSE NAMES ARE LISTED IN ADMINISTRATIVE NOTICES NO 208 OF 23 AUGUST 1978 AND THE ANNULMENT OF THE DECISION DATED 13 NOVEMBER 1978 IN WHICH THE COMMISSION REJECTED THE APPLICANT ' S COMPLAINT RELATING TO THOSE PROMOTIONS .

2 AS PART OF THE PROCEDURE FOR PROMOTIONS FOR 1978 THE APPLICANT ' S NAME HAD BEEN INCLUDED IN THE LIST OF OFFICIALS SATISFYING THE MINIMUM SENIORITY REQUIRED FOR PROMOTION FROM GRADE B 3 TO GRADE B 2 UNDER ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS . SUBSEQUENTLY , HOWEVER , AND UNLIKE THREE OTHER OFFICIALS OF DIRECTORATE-GENERAL VII IN WHICH SHE SERVED , SHE WAS NOT PROPOSED BY HER DIRECTOR-GENERAL TO THE PROMOTIONS COMMITTEE . THE NAME OF ONLY ONE OF THOSE THREE OTHER OFFICIALS WAS INCLUDED BY THE PROMOTIONS COMMITTEE AMONG THE 40 OFFICIALS CONSIDERED TO BE MOST DESERVING OF PROMOTION . THE LIST OF OFFICIALS PROMOTED TO GRADE B 2 BY THE APPOINTING AUTHORITY WAS IN ACCORDANCE WITH THAT DRAWN UP BY THE PROMOTIONS COMMITTEE .

3 IN THAT COMPLAINT WHICH SHE MADE THE APPLICANT MADE A COMPARISON BETWEEN HER OWN MERITS AND THOSE OF HER COLLEAGUE WHO WAS PROMOTED AND SHE CONCLUDED FROM THAT COMPARISON THAT SHE WAS BETTER QUALIFIED THAN THE LATTER FOR PROMOTION TO GRADE B 2 . IN HER APPLICATION THE APPLICANT COMPLAINS THAT THE PROMOTION COMMITTEE AND THE APPOINTING AUTHORITY DID NOT SERIOUSLY CONSIDER THE COMPARATIVE MERITS OF THE TWO OFFICIALS IN QUESTION .

4 THE APPLICANT MAKES THREE SUBMISSIONS IN HER CONCLUSIONS . THE COURT WILL CONSIDER , FIRST OF ALL , THE SECOND SUBMISSION AS TO INFRINGEMENT OF ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS . THAT PROVISION STIPULATES INTER ALIA THAT PROMOTIONS TO THE NEXT HIGHER GRADE SHALL BE EXCLUSIVELY BY SELECTION FROM AMONG OFFICIALS WHO HAVE COMPLETED A MINIMUM PERIOD IN THEIR GRADE , AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM .

5 IN THE APPLICANT ' S VIEW THAT PROVISION HAS BEEN INFRINGED IN TWO RESPECTS : ON THE ONE HAND THE PROMOTION COMMITTEE AND THE APPOINTING AUTHORITY WERE UNAWARE THAT THE APPLICANT HAD WRITTEN A BIBLIOGRAPHICAL PAPER AT THE END OF HER STUDIES ; IN ADDITION THOSE TWO BODIES WERE UNACQUAINTED WITH THE STAFF REPORT ON THE APPLICANT FOR 1975 TO 1977 WHEREAS THEY HAD AT THEIR DISPOSAL THE STAFF REPORTS FOR THAT PERIOD ON OTHER OFFICIALS ELIGIBLE FOR PROMOTION .

6 AS REGARDS FIRST OF ALL THE STAFF REPORT FOR 1975 TO 1977 THE APPLICANT ALLEGES THAT IT WAS DRAWN UP BY HER SUPERIORS ON 2 MARCH 1978 . THE COMMISSION CONTESTED THAT FACT . IT OBSERVED THAT THE STAFF REPORT ON THE APPLICANT FOR THE PERIOD IN QUESTION HAD NOT YET BEEN DRAWN UP WHEN THE PROMOTION COMMITTEE MET AND THAT SUCH REPORT COULD NOT THEREFORE HAVE BEEN MADE AVAILABLE EITHER TO THE COMMITTEE OR TO THE APPOINTING AUTHORITY . NEVERTHELESS DURING THE ORAL PROCEDURE THE COMMISSION ADMITTED THAT A DOCUMENT DESCRIBED AS A ' ' STAFF REPORT ' ' RELATING TO THE APPLICANT WAS DRAWN UP IN MARCH 1978 ; THAT DOCUMENT HAD HOWEVER NOT BEEN SIGNED BY THE APPROPRIATE ASSESSOR BUT BY OFFICIALS IN DIRECTORATE-GENERAL V WHO HAD BEEN THE APPLICANT ' S SUPERIORS BETWEEN 1 OCTOBER 1975 AND 1 DECEMBER 1976 , THE DATE WHEN SHE WAS RE-ASSIGNED TO DIRECTORATE-GENERAL VII . THE COMMISSION STATED THAT THE DOCUMENT IN QUESTION WAS NOT IN THE APPLICANT ' S PERSONAL FILE AND THAT THE APPOINTING AUTHORITY BECAME AWARE OF IT ONLY WHEN THE APPLICANT LODGED HER COMPLAINT TO WHICH THE SAID DOCUMENT WAS ANNEXED . THE COMMISSION STATED AT THE HEARING THAT A STAFF REPORT FOR 1975 TO 1977 WAS STILL AT THAT TIME IN THE COURSE OF BEING DRAWN UP BY THE ASSESSORS RESPONSIBLE .

7 AS FOR THE PAPER PRODUCED BY THE APPLICANT AT THE END OF HER STUDIES ARGUMENT BETWEEN THE PARTIES HAS NOT CLARIFIED WHETHER THE PROMOTION COMMITTEE AND THE APPOINTING AUTHORITY WERE AWARE OF ITS EXISTENCE . THE COMMISSION FINALLY STATED THAT TWO LETTERS SENT TO THE APPLICANT WHICH REFERRED TO THE PAPER WERE NOT PUT INTO HER PERSONAL FILE UNTIL AFTER THE PROMOTION COMMITTEE HAD FINISHED ITS WORK .

8 ARTICLE 43 OF THE STAFF REGULATIONS PROVIDES THAT THE PERIODIC REPORT SHALL BE MADE AT LEAST ONCE EVERY TWO YEARS . THE REPORT CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION . THUS PURSUANT TO ARTICLE 45 ( 1 ) OF THE STAFF 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 COURT HAS ALREADY HELD IN ITS JUDGMENT OF 23 JANUARY 1975 ( CASE 29/74 DE DAPPER V EUROPEAN PARLIAMENT ( 1975 ) ECR 35 ) THAT 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 REGARD TO CONSIDERATION OF THE COMPARATIVE MERITS OF OFFICIALS .

9 IN THE PRESENT CASE THE COMMISSION HAD NOT DENIED THAT THE APPLICANT ' S STAFF REPORT FOR 1975 TO 1977 HAD NOT YET BEEN DRAWN UP WHEN THE PROMOTION COMMITTEE DEALT WITH THE PROPOSALS FOR PROMOTION WHEREAS THE STAFF REPORTS FOR THE SAME PERIOD ON OTHER OFFICIALS ELIGIBLE FOR PROMOTION WERE SUBMITTED TO THAT COMMITTEE AND TO THE APPOINTING AUTHORITY . DURING THE ARGUMENT BETWEEN THE PARTIES THE COMMISSION ATTEMPTED TO EXPLAIN THE REASONS FOR THE DELAY IN DRAWING UP THE STAFF REPORTS ON THE APPLICANT ; IN THAT RESPECT IT CITED IN PARTICULAR THE FREQUENT CHANGES IN THE POSTING OF THE APPLICANT BECAUSE IT WAS IMPOSSIBLE FOR HER TO WORK IN AN AIR-CONDITIONED OFFICE . NEVERTHELESS THE COMMISSION HAS NOT SUCCEEDED IN SHOWING THAT THE DELAY WAS CAUSED BY THE APPLICANT .

10 NOR HAS THE COMMISSION SHOWN THAT THE ABSENCE OF THE APPLICANT ' S STAFF REPORT WAS COMPENSATED FOR BY OTHER FACTORS CAPABLE OF INFORMING THE PROMOTION COMMITTEE AND THE APPOINTING AUTHORITY OF THE APPLICANT ' S MERITS FOR THE PERIOD IN QUESTION . IN PARTICULAR THE COMMISSION DID NOT SHOW THAT IT WAS POSSIBLE FOR THOSE TWO BODIES TO KNOW OF THE EXISTENCE OF THE BIBLIOGRAPHICAL PAPER WRITTEN BY THE APPLICANT IN 1975 AT THE END OF HER STUDIES .

11 IT IS APPARENT FROM THE FOREGOING THAT THE COMMISSION HAD BEEN GUILTY OF A WRONGFUL ACT OR OMISSION IN PUTTING OR LEAVING THE APPLICANT IN A LESS FAVOURABLE POSITION THAN THE OTHER OFFICIALS ELIGIBLE FOR PROMOTION . ACCORDINGLY THE PROCEDURE FOR PROMOTION TO GRADE B 2 FOR 1978 WAS IRREGULAR AS REGARDS THE APPLICANT .

12 SINCE THE SECOND SUBMISSION IN THE APPLICATION IS THUS UPHELD IT IS NOT NECESSARY TO CONSIDER THE OTHER SUBMISSIONS PUT FORWARD BY THE APPLICANT .

13 THE COURT CONSIDERS THAT ANNULMENT OF THE PROMOTIONS OF THE 40 OFFICIALS WHO HAVE IN FACT BEEN PROMOTED TO GRADE B 2 WOULD CONSTITUTE AN EXCESSIVE PENALTY FOR THE IRREGULARITY COMMITTED AND IT WOULD BE ARBITRARY TO ANNUL THE PROMOTION OF THE ONLY OFFICIAL FROM DIRECTORATE-GENERAL VII WHO WAS IN FACT PROMOTED TO GRADE B 2 .

14 NEVERTHELESS SINCE THIS CASE INVOLVES PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION IT HAS , EVEN IN THE ABSENCE OF PROPER CONCLUSIONS TO THAT EFFECT , THE POWER NOT ONLY TO ANNUL BUT ALSO , IF NEED BE , OF ITS OWN MOTION TO ORDER THE DEFENDANT TO PAY COMPENSATION FOR THE NON-MATERIAL DAMAGE CAUSED BY A WRONGFUL ACT OR OMISSION ON ITS PART . THE AWARD OF SUCH DAMAGES CONSTITUTES IN THE PRESENT CASE THE FORM OF COMPENSATION WHICH BEST MEETS BOTH THE APPLICANT ' S INTERESTS AND THE REQUIREMENTS OF THE DEPARTMENT .

15 IN ASSESSING THE DAMAGE SUFFERED IT IS RIGHT TO BEAR IN MIND THAT THE APPLICANT WILL BE ABLE TO TAKE PART IN THE NEXT PROMOTION PROCEDURE WHICH THE COMMISSION WILL TAKE CARE TO CONDUCT IN ACCORDANCE WITH THE RULES . IN VIEW OF THAT FACT THE COURT ASSESSES THE DAMAGE SUFFERED EX AEQUO ET BONO AND CONSIDERS THAT THE AWARD OF THE SUM OF BFR 20 000 IS SUFFICIENT COMPENSATION FOR THE APPLICANT .

16 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ORDERS THE COMMISSION TO PAY THE APPLICANT THE SUM OF BFR 20 000 BY WAY OF DAMAGES IN RESPECT OF ITS WRONGFUL ACT OR OMISSION ;

2 . DISMISSES THE REMAINDER OF THE CLAIMS ;

3 . ORDERS THE COMMISSION TO PAY THE COSTS .