61975J0122

1 . OFFICIALS - APPLICATIONS TO THE COURT - PERIODIC REPORTS - ADMISSIBILITY

( STAFF REGULATIONS , ARTICLE 91 )

2 . OFFICIALS - APPLICATIONS TO THE COURT - PERIODIC REPORTS - DATE OF SIGNING BY THE HEAD OF THE ADMINISTRATION - COMMENCEMENT

( STAFF REGULATIONS , ARTICLE 91 )

3 . OFFICIALS - PERIODIC REPORT - NATURE

( STAFF REGULATIONS , ARTICLE 43 )

1 . IT IS CLEAR THAT PERIODIC REPORTS GENERALLY CONSTITUTE A MORE OR LESS IMPORTANT FACTOR EACH TIME THE OFFICIAL CONCERNED IS CONSIDERED FOR ANY PROMOTION OR TAKES PART IN COMPETITIONS WITHIN THE MEANING OF ARTICLE 29 OF THE STAFF REGULATIONS . ALTHOUGH IT IS TRUE THAT THESE REPORTS ARE MADE UP OF ASSESSMENTS WHICH IT IS DIFFICULT FOR A COURT TO REVIEW , THIS FACT DOES NOT PREVENT THEIR ADOPTION FROM BEING VITIATED FOR IRREGULARITY OF FORM AND PROCEDURE OR PATENT ERROR AND MISUSE OF DISCRETIONARY POWERS - DEFECTS CAPABLE OF MAKING THEM UNLAWFUL . ACCORDINGLY AN APPLICATION TO THE COURT AGAINST A PERIODIC REPORT IS ADMISSIBLE .

2 . THE PERIODIC REPORT DOES NOT BECOME DEFINITIVE UNTIL SIGNED BY THE HEAD OF THE ADMINISTRATION . ACCORDINGLY THE FACT THAT THE OFFICIAL CONCERNED HAS IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED FOR THE DRAWING UP OF PERIODIC REPORTS HAD KNOWLEDGE OF THE CONTENT BEFORE THAT DATE IS NOT CAPABLE OF CAUSING THE PERIOD FOR LODGING AN APPEAL TO START TO RUN OR OF SHORTENING IT .

3 . PERIODIC REPORTS DO NOT COME WITHIN THE CATEGORY OF DECISIONS WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS BUT ARE GOVERNED BY THE SPECIAL PROVISIONS LAID DOWN BY OR BY VIRTUE OF ARTICLE 43 OF THE STAFF REGULATIONS .

IN CASE 122/75

BERTHOLD KUSTER , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , RESIDING AT BERTRANGE ( LUXEMBOURG ), REPRESENTED BY VICTOR BIEL , ADVOCATE OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID VICTOR BIEL , 18 A RUE DES GLACIS ,

APPLICANT ,

V EUROPEAN PARLIAMENT , REPRESENTED BY ITS SECRETARY-GENERAL , HANS ROBERT NORD , ACTING AS AGENT , ASSISTED BY ALEX BONN , ADVOCATE OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR ANNULMENT OF A PERIODIC REPORT ,

1 BY AN APPLICATION LODGED ON 16 DECEMBER 1975 THE APPLICANT CLAIMED THE ANNULMENT OF HIS ' PERIODIC REPORT FOR 1973-1974 ' AND ANNULMENT OF THE REJECTION BY LETTER OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT OF HIS COMPLAINT IN RESPECT OF THIS REPORT .

2 IT IS ALLEGED THAT THIS REPORT WAS WORSE IN COMPARISON WITH THE PREVIOUS PERIODIC REPORTS ( 1969-1970 AND 1971-1972 ) BY REASON OF THE FACT THAT IN THE FIRST PLACE THE ASSESSMENTS OF HIS ABILITY AND HIS EFFICIENCY WERE ALTERED FROM ' EXCELLENT ' TO ' VERY GOOD ' AND THAT IN THE GENERAL ASSESSMENT THERE WAS NO LONGER ANY MENTION OF HIS SUITABILITY FOR PROMOTION .

3 THE DEFENDANT , THE EUROPEAN PARLIAMENT , ALLEGES THAT THE APPLICATION IS INADMISSIBLE ON SEVERAL COUNTS .

4 IT IS ALLEGED THAT THE PERIODIC REPORT CANNOT BE REGARDED AS AN ACT WHICH MAY BE CONTESTED UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS BECAUSE IT IS ONLY A PURELY INTERNAL ACT THE REMEDIES FOR WHICH LIE SOLELY IN THE RIGHT OF THE PERSON AFFECTED TO ADD ANY OBJECTIONS AND OBSERVATIONS .

5 MOREOVER IT IS CLAIMED THAT SINCE THE PERIODIC REPORT CONSISTS OF A SERIES OF ASSESSMENTS , THE COURT CANNOT , IN THE NATURE OF THINGS , SUBSTITUTE ITS OWN ASSESSMENTS FOR THOSE OF THE APPOINTING AUTHORITY .

6 FINALLY THE PARLIAMENT STATES THAT THE REPORT WAS NOTIFIED TO THE APPLICANT BEFORE 5 MARCH 1975 SO THAT HIS COMPLAINT ON 17 JUNE WAS OUT OF TIME .

7 SINCE ARTICLE 43 OF THE STAFF REGULATIONS PROVIDES FOR THE MAKING OF A PERIODIC REPORT EVERY TWO YEARS THESE ARE THUS MANDATORY MEASURES WHICH MUST BE COMMUNICATED TO THE PERSON CONCERNED .

8 IT IS CLEAR THAT THESE PERIODIC REPORTS GENERALLY CONSTITUTE A MORE OR LESS IMPORTANT FACTOR EACH TIME THE OFFICIAL CONCERNED IS CONSIDERED FOR ANY PROMOTION OR TAKES PART IN COMPETITIONS WITHIN THE MEANING OF ARTICLE 29 OF THE STAFF REGULATIONS .

9 ALTHOUGH IT IS TRUE THAT THESE REPORTS ARE MADE UP OF ASSESSMENTS WHICH IT IS DIFFICULT FOR A COURT TO REVIEW , THIS FACT DOES NOT PREVENT THEIR ADOPTION FROM BEING VITIATED FOR IRREGULARITY OF FORM AND PROCEDURE OR PATENT ERROR AND MISUSE OF DISCRETIONARY POWER - DEFECTS CAPABLE OF MAKING THEM UNLAWFUL .

10 ACCORDINGLY THE ARGUMENT THAT AN APPLICATION AGAINST A PERIODIC REPORT IS IPSO FACTO INADMISSIBLE CANNOT BE ACCEPTED .

11 IT IS ESTABLISHED THAT THE REPORT IN QUESTION WAS SIGNED BY THE SECRETARY-GENERAL OF THE PARLIAMENT ON 17 APRIL 1975 .

12 IT BECAME DEFINITIVE ONLY ON THAT DATE .

13 ACCORDINGLY THE FACT THAT THE APPLICANT , IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED FOR THE DRAWING UP OF PERIODIC REPORTS , HAD KNOWLEDGE OF THE CONTENT BEFORE THAT DATE IS NOT CAPABLE OF CAUSING THE PERIOD FOR LODGING AN APPEAL TO START TO RUN OR OF SHORTENING IT .

14 THE ACTION IS THEREFORE ADMISSIBLE .

SUBSTANCE

15 THE APPLICANT CONSIDERS IN THE FIRST PLACE THAT THE REPORT IN QUESTION IS VITIATED FOR MISUSE OF POWER AND ALLEGES THAT THE LESS FAVOURABLE ASSESSMENTS AND THE ABSENCE OF ANY RECOMMENDATION FOR PROMOTION IS DUE TO THE FACT THAT DURING 1974 HE REPEATEDLY MADE USE OF THE PERIODIC REPORTS FOR 1969-1970 AND 1971-1972 TO VINDICATE IN COURT HIS ALLEGED RIGHTS TO PROMOTION .

16 IF THE COMPETENT AUTHORITIES , ALERTED BY THE USE MADE OF THE AFOREMENTIONED REPORTS TO THE FACT THAT THEIR ASSESSMENTS WERE CAPABLE OF GIVING RISE TO PREMATURE HOPES ON THE PART OF THE APPLICANT , BECAME MORE CAREFUL IN FORMULATING THEIR ASSESSMENTS OF OFFICIALS , THAT IS NOT IN ITSELF A MISUSE OF POWERS , BUT RATHER A VERY UNDERSTANDABLE AMENDMENT OF THEIR CONDUCT IN THE LIGHT OF EXPERIENCE .

17 SINCE MOREOVER THE DEFENDANT HAD FOUND THAT IN THE PAST ASSESSMENTS OF ' EXCELLENT ' HAD BECOME TOO FREQUENT FOR THEM TO RETAIN THE DESIRED COGENCY , IT AGREED NO LONGER TO MAKE THIS ENTRY FOR 1973-1974 SAVE IN EXCEPTIONAL CASES AND TO ASSESS THE BEST EFFICIENCY AS ' VERY GOOD ' .

18 THIS ATTITUDE DOES NOT DESERVE CENSURE .

19 THE APPLICANT HIMSELF ADMITS THAT THE PERIODIC REPORT IN QUESTION IS VERY EULOGISTIC .

20 IN THESE CIRCUMSTANCES THE EXISTENCE OF A MISUSE OF POWERS HAS NOT BEEN ESTABLISHED .

21 IN THE SECOND PLACE THE APPLICANT CLAIMS THAT THE REPORT IN QUESTION IS WORSE THAN HIS PREVIOUS REPORT AND AS SUCH IS AN ACT ADVERSELY AFFECTING HIM FOR WHICH REASONS SHOULD HAVE BEEN GIVEN UNDER THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS .

22 NO SUCH REASONS HAVE BEEN GIVEN IN THE PRESENT CASE .

23 ARTICLE 25 PROVIDES THAT ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED AND THE LAST PARAGRAPH OF THE ARTICLE STIPULATES THE CATEGORIES OF DECISIONS REFERRED TO .

24 PERIODIC REPORTS , THE DRAWING UP OF WHICH IS GOVERNED BY ARTICLE 43 OF THE STAFF REGULATIONS , DO NOT COME WITHIN THESE CATEGORIES OF DECISIONS BUT ARE GOVERNED BY THE SPECIAL PROVISIONS LAID DOWN BY OR BY VIRTUE OF THAT ARTICLE .

25 THE PROVISIONS ADOPTED IN THIS MATTER BY THE PARLIAMENT IN ACCORDANCE WITH ARTICLE 43 DO NOT REQUIRE REASONS TO BE GIVEN FOR ASSESSMENTS SAVE IN EXTREME CASES OF WHICH THE PRESENT IS NOT ONE .

26 ACCORDINGLY THE SUBMISSION IS UNFOUNDED .

27 THE APPLICATION MUST THEREFORE BE DISMISSED .

COSTS

28 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

29 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

30 HOWEVER , UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE , THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY SUCH INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION ;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .