61963J0097

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1 . OFFICIALS - PROMOTION - CRITERIA FOR ASSESSMENT - ABSENCE OF PERIODICAL REPORTS DURING PERIOD OF ADAPTATION OF STAFF REGULATIONS - DECISION NOT BASED ON SUCH REPORTS - VALIDITY

( EEC STAFF REGULATIONS, ARTICLES 43, 45, 110 )

2 . OFFICIALS - PROMOTION - OBLIGATIONS OF THE ADMINISTRATION - GENERAL PRINCIPLES

( EEC STAFF REGULATIONS, ARTICLE 45 )

3 . OFFICIALS - PROMOTION - CRITERIA FOR ASSESSMENT - OBLIGATION TO CONSULT PERSONAL FILES OF CANDIDATES

( EEC STAFF REGULATIONS, ARTICLE 45 )

1 . IF THE ADMINISTRATION DURING THE PERIOD OF ADAPTATION OF THE STAFF REGULATIONS PROMOTES AN OFFICIAL WITHOUT BEING ABLE TO BASE THE PROMOTION UPON THE REPORTS PROVIDED FOR IN ARTICLE 43 OF THE REGULATIONS, THIS FACT CANNOT OF ITSELF BE REGARDED AS A GROUND FOR THE NULLITY OF THE PROMOTION .

CF . PARA . 2 OF SUMMARY IN CASE 27/63 .

2 . THE ADMINISTRATION, WIDE AS ITS DISCRETIONARY POWERS MAY BE, MUST, IN THE CASE OF PROMOTION - IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 45 ( 1 ) OF THE REGULATIONS - TAKE INTO CONSIDERATION THE COMPARATIVE MERITS OF EACH CANDIDATE ON A BASIS OF EQUALITY AND USING COMPARABLE SOURCES OF INFORMATION .

3 . IN RESPECT OF PROMOTIONS THE ADMINISTRATION MUST BASE ITS ASSESSMENT UPON A CONSULTATION OF THE PERSONAL FILES OF THE CANDIDATES IN WHICH MUST APPEAR IN PARTICULAR THE OPINIONS OF THEIR IMMEDIATE SUPERIORS .

IN CASE 97/63

LUIGI DE PASCALE, AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN, APPLICANT,

THE EUROPEAN ECONOMIC COMMUNITY, OR ALTERNATIVELY THE COMMISSION, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISION BY WHICH MR GENNARO PANDOLFELLI WAS APPOINTED HEAD OF DIVISION III-C-2 OF THE RIGHT OF ESTABLISHMENT AND SERVICES DIRECTORATE IN THE DIRECTORATE - GENERAL OF THE DOMESTIC MARKET,

A - THE NAMING OF THE COMMUNITY AS A PARTY

THE APPLICATION IS BROUGHT AGAINST THE EUROPEAN ECONOMIC COMMUNITY OR, ' ALTERNATIVELY ', AGAINST THE COMMISSION OF THAT COMMUNITY .

THE DEFENDANT SUBMITS THAT THE INSTITUTIONS DO NOT HAVE A LEGAL PERSONALITY SEPARATE FROM THAT OF THE COMMUNITY AND THAT, THEREFORE, THE COMMISSION ALONE SHOULD BE MADE A PARTY TO THE PROCEEDINGS .

UNDER ARTICLE 179 OF THE EEC TREATY, ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT '. THE EXPRESSION ' THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS ' NECESSARILY IMPLIES THAT THERE IS CONFERRED UPON THE INSTITUTION ITSELF, AS THE APPOINTING AUTHORITY, THE RIGHT TO BE A PARTY TO LEGAL PROCEEDINGS RELATING TO DISPUTES WITH ITS SERVANTS AND OFFICIALS . IN FACT ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC, GOVERNING COMPLAINTS BY OFFICIALS THROUGH OFFICIAL CHANNELS PRIOR TO AN APPEAL TO THE COURT, PROVIDES THAT ANY OFFICIAL MAY SUBMIT A REQUEST OR COMPLAINT TO THE APPOINTING AUTHORITY OF HIS INSTITUTION . THE APPEAL TO THE COURT REFERRED TO IN ARTICLE 91 OF THE STAFF REGULATIONS MUST FOLLOW SIMILAR RULES AND BE MADE AGAINST THE SAME INSTITUTION . THE PRESENT APPLICATION MUST THEREFORE BE REGARDED AS BEING BROUGHT AGAINST THE COMMISSION OF THE EEC, WHICH IN THIS CASE IS THE INSTITUTION TO WHICH THE APPOINTING AUTHORITY RESPONSIBLE FOR THE CONTESTED MEASURE BELONGS .

ADMISSIBILITY

THE ADMISSIBILITY OF THE APPEAL IS NOT DISPUTED BY THE DEFENDANT AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

SUBSTANCE

INFRINGEMENT OF ARTICLES 43, 45 AND 110 OF THE STAFF REGULATIONS

1 . THE APPLICANT MAINTAINS FIRST OF ALL THAT THE DECISION MADE WAS ADOPTED WITHOUT ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS HAVING BEEN THE SUBJECT OF GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS, ADOPTED AND PUBLISHED IN ACCORDANCE WITH ARTICLE 110 .

THE APPLICATION OF ARTICLE 145 REQUIRES NO MEASURE FOR GIVING EFFECT TO IT OTHER THAN THAT LAID DOWN IN ARTICLE 43, TO WHICH ARTICLE 45 REFERS BY IMPLICATION . THE APPLICATION OF THIS PROVISION PRESUPPOSES THAT REPORTS HAVE BEEN MADE ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF OFFICIALS, THESE REPORTS BEING ONE OF THE FACTORS UPON WHICH ALL DECISIONS ON PROMOTION MUST BE BASED .

AT THE DATE OF THE CONTESTED DECISION, NO INSTITUTION WAS IN A POSITION TO ADOPT THE GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS - AND IT IS THE FAILURE TO DO THIS WHICH IS ALLEGED IN THE ACTION - BY REASON OF THE DATE OF PUBLICATION AND ENTRY INTO FORCE OF THE STAFF REGULATIONS .

THE LATTER NOT HAVING BEEN PUBLISHED UNTIL 14 JUNE 1962 AND HAVING TAKEN RETROACTIVE EFFECT ONLY ON 1 JANUARY 1962, IT MUST BE ADMITTED THAT, AT THE DATE WHEN THE CONTESTED DECISION WAS MADE, INSTITUTIONS OF THE COMMUNITY WERE STILL IN A TRANSITIONAL PERIOD AS REGARDS THE APPLICATION OF THE STAFF REGULATIONS . THE FACT THAT AT THAT DATE THE COMMISSION HAD NOT YET ADOPTED GENERAL PROVISIONS FOR THE DRAWING UP OF THE REPORTS PROVIDED FOR IN ARTICLE 43, CANNOT OF ITSELF BE REGARDED AS A GROUND FOR THE NULLITY OF THE DISPUTED DECISION .

ARTICLE 45 HAD TO BE APPLIED WITHOUT ITS HAVING BEEN POSSIBLE FOR THE REPORTS FOR WHICH IT MAKES PROVISION TO BE DRAWN UP IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 43 AND 110 OF THE REGULATIONS . AN OMISSION OF THIS NATURE DOES NOT APPEAR TO BE SUCH AS TO LEAD TO THE NULLITY OF THE CONTESTED DECISION, TAKING INTO ACCOUNT ESPECIALLY THE EXIGENCIES OF THE SERVICE .

THE PRESENT SUBMISSION IS UNFOUNDED .

2 . THE APPLICANT FURTHERMORE MAINTAINS THAT THE DISPUTED DECISION IS DEFECTIVE IN THAT IT WAS ADOPTED ON THE BASIS OF AN EVALUATION WHICH WAS QUITE INSUFFICIENT AND WITHOUT THE COMMISSION'S HAVING BEEN ABLE TO UNDERTAKE A CONSIDERATION OF THE COMPARATIVE MERITS OF EACH CANDIDATE, AND IN PARTICULAR OF THE MERITS OF THE APPLICANT .

THE COMMISSION THUS DID NOT OBSERVE THE SAFEGUARDS AFFORDED BY ARTICLE 45 OF THE STAFF REGULATIONS TO OFFICIALS ELIGIBLE FOR PROMOTION, THOSE SAFEGUARDS BEING THE COUNTERWEIGHT TO THE WIDE POWERS AVAILABLE TO THE COMMISSION IN THIS MATTER .

THE COMMISSION, WIDE AS ITS DISCRETIONARY POWERS MAY BE, MUST, IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS, TAKE INTO CONSIDERATION THE COMPARATIVE MERITS OF EACH CANDIDATE AND USING COMPARABLE SOURCES OF INFORMATION .

IT APPEARS FROM DOCUMENTS PRODUCED DURING THE PROCEEDINGS THAT THE MEMBERS OF THE COMMISSION IN THE PRESENT CASE HAD AVAILABLE FOR THE ABOVE-MENTIONED CONSIDERATION, ONLY THE PROPOSAL OF ONE OF THEIR NUMBER, THE APPLICATION FORMS OF THE CANDIDATES AND VACANCY NOTICE N . 690 .

THE PROPOSAL OF ONE OF THE MEMBERS OF THE COMMISSION TO PROMOTE MR PANDOLFELLI TO THE VACANT POST STATED ONLY THE QUALIFICATIONS FOR THE POST OF THIS ONE OFFICIAL AND CONTAINED ONLY VAGUE ALLUSIONS TO THE POSSIBLE MERITS OF THE OTHER CANDIDATES, WHO WERE SERVING IN THREE DIFFERENT DIRECTORATES GENERAL .

THE APPLICATION FORMS SUBMITTED BY THE PERSONS CONCERNED THEMSELVES, WITHOUT ANY VERIFICATION OR CHECK BY THE APPROPRIATE DEPARTMENTS OF THE COMMISSION, ARE DOCUMENTS OF AN ESSENTIALLY SUBJECTIVE NATURE, THE CONTENT AND SCOPE OF WHICH CAN BE EVALUATED ONLY WITH CONSIDERABLE CARE IN A MATTER REQUIRING AS OBJECTIVE A CONSIDERATION AS POSSIBLE OF THE MERITS OF EACH CANDIDATE .

NO EVIDENCE HAS BEEN TENDERED THAT THE COMMISSION SUPPLEMENTED ITS INFORMATION BY CONSULTING THE PERSONAL FILES OF THE CANDIDATES IN WHICH MUST APPEAR IN PARTICULAR THE OPINIONS OF THEIR IMMEDIATE SUPERIORS .

IT FOLLOWS THAT THE FACTORS ON WHICH THE COMMISSION TOOK ITS DECISION DID NOT ENABLE IT TO UNDERTAKE A CONSIDERATION OF THE COMPARATIVE MERITS ON A BASIS OF EQUALITY AND TAKING ACCOUNT OF COMPARABLE SOURCES OF INFORMATION .

IT THEREFORE APPEARS THAT THE DISPUTED DECISION ON PROMOTION WAS NOT ADOPTED IN ACCORDANCE WITH THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS AND THAT IT MUST BE REGARDED AS DEFECTIVE, WITHOUT THERE BEING ANY NEED TO CONSIDER THE OTHER SUBMISSIONS IN SUPPORT OF THE APPLICATION .

THE APPLICANT HAS SUCCEEDED IN THE ESSENTIAL POINT OF THE APPLICATION . UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE DEFENDANT SHALL BE ORDERED TO PAY THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION TO PROMOTE MR GENNARO PANDOLFELLI TO THE POST DECLARED VACANT BY NOTICE N . 690 IN DIVISION III-C-2;

2 . ORDERS THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY TO BEAR THE COSTS .