Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
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OFFICIALS - PROMOTION - CONSIDERATION OF COMPARATIVE MERITS - PROCEDURE - TAKING ACCOUNT OF PERIODIC REPORTS - INCOMPLETE PERSONAL FILE - CONSEQUENCES
( STAFF REGULATIONS OF OFFICIALS, ARTS 43 AND 45 )
Summary
THE PERIODIC REPORT CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION .
A PROMOTION PROCEDURE IS TAINTED WITH IRREGULARITY WHEN THE APPOINTING AUTHORITY HAS NOT BEEN ABLE TO CONSIDER THE COMPARATIVE MERITS OF THE CANDIDATES BECAUSE THERE HAS BEEN A SUBSTANTIAL DELAY ON THE PART OF THE ADMINISTRATION IN DRAWING UP THE PERIODIC REPORTS OF ONE OR MORE OF THEM .
IT IS NOT, HOWEVER, NECESSARY FOR ALL THE CANDIDATES TO BE AT EXACTLY THE SAME STAGE REGARDING THE STATE OF THEIR PERIODIC REPORTS AT THE TIME OF THE PROMOTION DECISION, OR FOR THE APPOINTING AUTHORITY TO POSTPONE ITS DECISION IF THE MOST RECENT REPORT ON ONE OR OTHER OF THE CANDIDATES HAS NOT YET BEEN DRAWN UP . FURTHERMORE, THE FACT THAT THE PERSONAL FILE OF ONE CANDIDATE IS IRREGULAR AND INCOMPLETE IS NOT A SUFFICIENT GROUND FOR THE ANNULMENT OF THE PROMOTION DECISIONS UNLESS IT IS ESTABLISHED THAT THIS WAS CAPABLE OF HAVING A DECISIVE EFFECT ON THE PROMOTION PROCEDURE .
Parties
IN CASE 7/86
JOHN VINCENT, AN OFFICIAL AT THE EUROPEAN PARLIAMENT, REPRESENTED BY ALEX SCHMITT, OF THE LUXEMBOURG BAR, 13 BOULEVARD ROYAL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY FRANCESCO PASETTI BOMBARDELLA, JURISCONSULT, AND BY MANFRED PETER, HEAD OF DIVISION, ASSISTED BY ALEX BONN, OF THE LUXEMBOURG BAR, 22 COTE D' EICH, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT OF 25 FEBRUARY 1985 PROMOTING FROM GRADE A*7 TO GRADE A*6 FOUR OFFICIALS OTHER THAN THE APPLICANT,
THE COURT ( FOURTH CHAMBER )
COMPOSED OF : C . KAKOURIS, PRESIDENT OF CHAMBER, T . KOOPMANS AND G . C . RODRIGUEZ IGLESIAS, JUDGES,
ADVOCATE GENERAL : JOSE LUIS DA CRUZ VILACA
REGISTRAR : P . HEIM
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 5 FEBRUARY 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 1 APRIL 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 14 JANUARY 1986, JOHN VINCENT, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT OF 25 FEBRUARY 1985 PROMOTING FOUR OFFICIALS FROM GRADE A*7 TO GRADE A*6 WITHOUT PROMOTING HIM .
2 THAT DECISION WAS ADOPTED IN ACCORDANCE WITH THE PROPOSALS PUT FORWARD BY THE ADVISORY COMMITTEE ON PROMOTION OF THE EUROPEAN PARLIAMENT ( HEREINAFTER REFERRED TO AS THE "ACP "). THE ACP MET IN DECEMBER 1984 TO MAKE RECOMMENDATIONS TO THE APPOINTING AUTHORITY AS REGARDS THE CANDIDATES TO BE PROMOTED . IT HAD BEEN GIVEN A LIST OF 24 OFFICIALS WHO WERE ELIGIBLE FOR PROMOTION TO THE FOUR A*6 POSTS WHICH WERE VACANT . THE APPLICANT WAS FOURTH OF THE FIVE OFFICIALS WHO HEADED THE LIST, HAD BEEN RECRUITED BY OPEN COMPETITION AND HAD GREATER SENIORITY IN GRADE AND CATEGORY THAN THE OTHER CANDIDATES .
3 THE PERIODIC REPORTS ON THOSE FIVE OFFICIALS HAD NOT BEEN DRAWN UP . THE ACP DECIDED TO RECOMMEND TO THE APPOINTING AUTHORITY THE PROMOTION OF FOUR OFFICIALS WHO HAD GREATER SENIORITY IN THE SERVICE BECAUSE THEY HAD ENTERED GRADE A*7 THROUGH INTERNAL COMPETITIONS . THE PERIODIC REPORTS ON THEM HAD BEEN DRAWN UP . THE APPLICANT AND THE FOUR OTHER OFFICIALS IN THE SAME SITUATION PROTESTED AGAINST THOSE RECOMMENDATIONS BY LETTER OF 19 FEBRUARY 1985 ADDRESSED TO THE SECRETARY-GENERAL OF THE PARLIAMENT .
4 ON 25 FEBRUARY 1985, HOWEVER, THE CONTESTED DECISION WAS ADOPTED .
5 BY LETTER OF 18 JUNE 1985 THE APPLICANT SUBMITTED A COMPLAINT TO THE APPOINTING AUTHORITY ARGUING THAT THE PROMOTION DECISION WAS DEFECTIVE AND CONSEQUENTLY REQUESTING THE APPOINTING AUTHORITY TO PROMOTE HIM TO GRADE A*6 WITH EFFECT FROM 1 OCTOBER 1984, THE DATE STIPULATED IN THE CONTESTED DECISION FOR THE PROMOTIONS TO TAKE EFFECT .
6 ON 19 JUNE 1985 THE SECRETARY-GENERAL REPLIED TO THE LETTER OF 19 FEBRUARY 1985, STATING THAT HE HAD FORWARDED IT TO THE CHAIRMAN OF THE ACP .
7 ON 1 AUGUST 1985 THE CHAIRMAN OF THE ACP INFORMED THE APPLICANT THAT THE ACP HAD RECONSIDERED HIS CASE AT ITS MEETING OF 27 JUNE 1985 BUT HAD BEEN COMPELLED TO CONFIRM ITS DECISION .
8 ON 16 DECEMBER 1985 THE PRESIDENT OF THE EUROPEAN PARLIAMENT REPLIED TO THE APPLICANT' S COMPLAINT OF 18 JUNE 1985 STATING THAT THE NECESSARY STEPS HAD BEEN TAKEN TO PREPARE HIS PERIODIC REPORT, AS PROVIDED FOR IN ARTICLE 43 OF THE STAFF REGULATIONS OF OFFICIALS, WITHOUT FURTHER DELAY, IN ORDER TO PERMIT FURTHER CONSIDERATION OF HIS CASE .
9 IT APPEARS FROM THE DOCUMENTS IN THE CASE THAT THE APPLICANT' S PERIODIC REPORT WAS DRAWN UP ON 25 MARCH 1986, AFTER THE APPLICATION WAS LODGED . ON 10 APRIL 1986 THE APPLICANT' S CASE WAS RESUBMITTED TO THE ACP, WHICH ADOPTED THE FOLLOWING DECISION :
"AFTER READING MR VINCENT' S PERIODIC REPORT AND RECONSIDERING IT BY COMPARISON WITH THE OTHER CANDIDATES FOR PROMOTION, THE COMMITTEE HELD DISCUSSIONS AS A RESULT OF WHICH, HAVING REGARD TO THE LIMITED POSSIBILITIES FOR PROMOTION AND THE LIMITED SENIORITY OF THE PERSON CONCERNED, IT CONFIRMED ITS PREVIOUS CONCLUSIONS ."
10 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
ADMISSIBILITY
11 THE EUROPEAN PARLIAMENT PLEADS PRIMARILY THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT IT IS WITHOUT PURPOSE OR, AT LEAST, PREMATURE . IT ACKNOWLEDGES THAT WHEN THE APPLICATION WAS LODGED THE APPLICANT WAS JUSTIFIED IN CONSIDERING THAT THERE HAD BEEN AN IMPLIED REJECTION OF HIS COMPLAINT OF 18 JUNE 1985 SINCE HE HAD RECEIVED NO REPLY WITHIN THE PERIOD PRESCRIBED IN THE STAFF REGULATIONS, WHICH EXPIRED ON 18 OCTOBER 1985 . IT NEVERTHELESS CONSIDERS THAT ITS REPLY OF 16 DECEMBER 1985, WHICH CONSTITUTED THE EXPRESS DECISION ADOPTED BY THE ADMINISTRATION ON THE APPLICANT' S COMPLAINT, GAVE HIM SATISFACTION SINCE IT INITIATED THE PROCEDURE FOR THE RECONSIDERATION OF HIS CASE . UNTIL THE ADMINISTRATIVE PROCEDURE HAD BEEN COMPLETED, HE SHOULD THEREFORE HAVE REGARDED AN APPLICATION TO THE COURT AS HAVING NO PURPOSE OR, AT LEAST, AS PREMATURE .
12 IN THAT CONNECTION IT MUST BE POINTED OUT THAT THE REPLY IN QUESTION MERELY STATED THAT CERTAIN STEPS WERE TO BE TAKEN IN ORDER TO RECONSIDER THE APPLICANT' S CASE AND IT THEREFORE DID NOT ACCEDE TO THE REQUEST MADE BY THE APPLICANT IN HIS COMPLAINT FOR HIS PROMOTION WITH EFFECT FROM 1 OCTOBER 1984 . THAT BEING SO, IT CANNOT BE HELD THAT THE APPLICATION WAS WITHOUT PURPOSE OR PREMATURE .
13 CONSEQUENTLY, THE OBJECTION OF INADMISSIBILITY MUST BE DISMISSED .
SUBSTANCE
INFRINGEMENT OF ARTICLE 45 OF THE STAFF REGULATIONS
14 THE APPLICANT CLAIMS THAT ARTICLE 45 OF THE STAFF REGULATIONS WAS INFRINGED SINCE HIS PERIODIC REPORT HAD NOT BEEN DRAWN UP WHEREAS REPORTS HAD BEEN DRAWN UP ON THE CANDIDATES WHO WERE ACTUALLY PROMOTED . IN HIS VIEW, THE APPOINTING AUTHORITY THEREFORE COULD NOT HAVE TAKEN ACCOUNT OF ALL THE CRITERIA PRESCRIBED BY THAT PROVISION, IN PARTICULAR THE OBLIGATION TO CONSIDER THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION .
15 ARTICLE 45 OF THE STAFF REGULATIONS PROVIDES THAT PROMOTION "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 ". THE REPORTS IN QUESTION ARE DRAWN UP IN ACCORDANCE WITH ARTICLE 43 OF THE STAFF REGULATIONS .
16 THE COURT HAS STATED ON MORE THAN ONE OCCASION, IN PARTICULAR IN ITS JUDGMENT OF 27 JANUARY 1983 IN CASE 263/81 LIST V COMMISSION (( 1983 )) ECR 103, THAT THE PERIODIC REPORT "CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION" AND THAT A PROMOTION PROCEDURE IS "TAINTED WITH IRREGULARITY IN SO FAR AS THE APPOINTING AUTHORITY HAS NOT BEEN ABLE TO CONSIDER THE COMPARATIVE MERITS OF THE CANDIDATES BECAUSE THERE HAS BEEN A SUBSTANTIAL DELAY ON THE PART OF THE ADMINISTRATION IN DRAWING UP THE PERIODIC REPORTS OF ONE OR MORE OF THEM ".
17 IT SHOULD, HOWEVER, BE EMPHASIZED THAT THAT DOES NOT MEAN THAT ALL CANDIDATES MUST BE AT EXACTLY THE SAME STAGE REGARDING THE STATE OF THEIR PERIODIC REPORTS OR THAT THE APPOINTING AUTHORITY SHOULD POSTPONE ITS DECISION IF THE MOST RECENT REPORT ON ONE OR OTHER OF THE APPLICANTS HAS NOT YET BEEN DRAWN UP . IN PARTICULAR, IT IS CLEAR FROM THE ABOVEMENTIONED JUDGMENT OF THE COURT THAT "THE FACT THAT THE PERSONAL FILE OF ONE APPLICANT IS IRREGULAR AND INCOMPLETE IS NOT A SUFFICIENT GROUND FOR THE ANNULMENT OF THE APPOINTMENTS UNLESS IT IS ESTABLISHED THAT THIS WAS CAPABLE OF HAVING A DECISIVE EFFECT ON THE APPOINTMENT PROCEDURE ".
18 IN THE PRESENT CASE IT HAS BEEN ESTABLISHED THAT THERE WAS A SUBSTANTIAL DELAY IN DRAWING UP THE APPLICANT' S PERIODIC REPORT FOR THE PERIOD IN QUESTION AND THAT, CONSEQUENTLY, THE ORIGINAL PROCEDURE WAS DEFECTIVE . ON THE OTHER HAND, IT HAS ALSO BEEN ESTABLISHED THAT THE APPOINTING AUTHORITY RECONSIDERED THE APPLICANT' S FILE AFTER IT RECEIVED THE PERIODIC REPORT . MOREOVER, IN VIEW OF THE CIRCUMSTANCES OF THE CASE AND ABOVE ALL THE DECISION WHICH THE APPOINTING AUTHORITY TOOK FOLLOWING THAT RECONSIDERATION, THERE ARE NO GROUNDS FOR A FINDING THAT THE ABSENCE OF THE PERIODIC REPORT WAS CAPABLE OF HAVING A DECISIVE EFFECT UPON THE ORIGINAL PROMOTION PROCEDURE .
19 FOR THOSE REASONS THIS SUBMISSION MUST BE REJECTED .
FAILURE TO FOLLOW THE INSTITUTION' S PREVIOUS PRACTICE AND BREACH OF THE PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION
20 THE APPLICANT CLAIMS THAT IN THE ABSENCE OF HIS PERIODIC REPORT A COMPARISON CAN HAVE BEEN MADE ONLY ON THE BASIS OF CRITERIA CONCERNED WITH SENIORITY ALONE . IN APPLYING THOSE CRITERIA, HOWEVER, THE CONTESTED DECISION DEPARTED, WITHOUT VALID GROUNDS, FROM THE PRACTICE CONSISTENTLY FOLLOWED BY THE INSTITUTION AS REGARDS PROMOTION WHICH WAS ITSELF SET OUT IN AN "INTERNAL DIRECTIVE CONCERNING THE MEMBERSHIP AND PROCEDURES OF THE ADVISORY COMMITTEE ON PROMOTION", WHICH LAID DOWN A SERIES OF CRITERIA TO BE TAKEN INTO CONSIDERATION . WHEREAS THE PREVIOUS PRACTICE AND THE INTERNAL DIRECTIVE GAVE PRECEDENCE TO SENIORITY IN GRADE AND IN CATEGORY, IN THIS CASE THE ACP ATTACHED MORE WEIGHT TO SENIORITY IN THE SERVICE, THUS PLACING THE APPLICANT AT A FURTHER DISADVANTAGE . THE APPLICANT ADDS THAT THE ACP ITSELF SUBSEQUENTLY REVERTED TO THE PREVIOUS PRACTICE .
21 FURTHERMORE, THE APPLICANT CLAIMS THAT THE CONTESTED DECISION BREACHED THE PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION, BECAUSE THE CRITERION OF SENIORITY IN THE SERVICE CONSISTENTLY FAVOURS OFFICIALS WHO WERE APPOINTED TO A POST AS A RESULT OF AN INTERNAL COMPETITION COMPARED WITH THOSE WHO ENTER BY OPEN COMPETITION, WHO CAN NEVER MAKE UP FOR THEIR RELATIVE LACK OF SENIORITY IN THE SERVICE .
22 THOSE SUBMISSIONS CANNOT BE ACCEPTED . APART FROM THE FACT THAT IT DOES NOT APPEAR FROM THE FILE THAT THE ACP ORIGINALLY ASCRIBED OVERRIDING SIGNIFICANCE TO THE CRITERION OF SENIORITY IN THE SERVICE ALONE AND DISREGARDED THE OTHER CRITERIA, IT IS CLEAR FROM THE FILE THAT THE ACP, IN ITS AFORESAID DECISION OF 10 APRIL 1986, RECONSIDERED THE APPLICANT' S CASE, INCLUDING HIS PERIODIC REPORT WHICH HAD BEEN DRAWN UP ON 25 MARCH 1986 . IN THOSE CIRCUMSTANCES IT CANNOT BE MAINTAINED THAT SENIORITY IN THE SERVICE ALONE WAS TAKEN INTO ACCOUNT WITHOUT REGARD FOR ANY OTHER CONSIDERATION .
23 CONSEQUENTLY, THESE SUBMISSIONS MUST BE REJECTED .
CLAIM FOR DAMAGES
24 THE APPLICANT CLAIMS THAT THE ABSENCE OF HIS PERIODIC REPORT CAUSED HIM UNCERTAINTY AND ANXIETY AS REGARDS HIS CHANCES OF PROMOTION AND TRANSFER . IN ORDER TO COMPENSATE HIM FOR THE RESULTING DAMAGE, THE APPLICANT CLAIMS DAMAGES TO BE FIXED EX AEQUO ET BONO BY THE COURT . IN ADDITION HE CLAIMS BY WAY OF COMPENSATION FOR THE IRREGULARITIES IN THE PROMOTION PROCEDURE "A SUM TO BE DETERMINED BY THE COURT, TAKING INTO ACCOUNT THE INCREASE IN NET SALARY OF BFR 7*000 PER MONTH WHICH THE APPLICANT WOULD HAVE HAD FROM OCTOBER 1984 IF HE HAD BEEN PROMOTED AND THE LOSS OF SENIORITY IN GRADE A*6 FROM WHICH HE WILL ALWAYS SUFFER THROUGHOUT HIS SUBSEQUENT CAREER ".
25 IT IS TRUE THAT, AS THE COURT STRESSED IN ITS JUDGMENT OF 14 JULY 1977 IN CASE 61/76 GEIST V COMMISSION (( 1977 )) ECR 1419, AN APPLICANT "SUFFERS NON-MATERIAL DAMAGE RESULTING FROM THE FACT THAT HE POSSESSES A PERSONAL FILE WHICH IS IRREGULAR AND INCOMPLETE, WHEN THE COMPULSORY PERIODIC REPORT IS A GUARANTEE TO AN OFFICIAL FOR THE REGULAR PROGRESS OF HIS CAREER" AND THAT THE ABSENCE OF PERIODIC REPORTS FOR WHICH THE INSTITUTION ALONE IS RESPONSIBLE MAY PUT HIM IN AN UNCERTAIN AND ANXIOUS STATE OF MIND WITH REGARD TO HIS FUTURE CAREER .
26 HOWEVER, THIS CASE CANNOT BE REGARDED AS COMPARABLE TO THE GEIST CASE, SINCE THE LACUNA IN THE APPLICANT' S PERSONAL FILE WAS SUBSEQUENTLY FILLED AND THE INITIAL ABSENCE OF HIS PERIODIC REPORT DID NOT HAVE A DECISIVE EFFECT ON HIS PROMOTION AND CONSEQUENTLY DID NOT CAUSE HIM ANY DAMAGE .
27 FOR THOSE REASONS THE CLAIM FOR DAMAGES MUST BE REJECTED .
Decision on costs
COSTS
28 ALTHOUGH THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS, IT IS NECESSARY FOR THE PURPOSES OF COSTS TO TAKE ACCOUNT OF THE ABOVEMENTIONED CONSIDERATIONS RELATING TO THE CONDUCT OF THE DEFENDANT . IT IS APPARENT THAT THE PROCEEDINGS WERE INDUCED BY THAT CONDUCT, SINCE THERE WAS A SUBSTANTIAL DELAY ON THE PART OF THE EUROPEAN PARLIAMENT IN DRAWING UP THE APPLICANT' S PERIODIC REPORT . IN THOSE CIRCUMSTANCES, THE APPLICANT SHOULD NOT BE PENALIZED FOR REQUESTING THE COURT TO REVIEW THE EFFECT THAT THAT MATTER MIGHT HAVE HAD UPON THE LAWFULNESS OF THE MEASURES IN QUESTION .
29 IT IS THEREFORE APPROPRIATE TO APPLY THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, WHICH PROVIDES THAT THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY BY ITS CONDUCT TO HAVE CAUSED THE OPPOSITE PARTY TO INCUR .
Operative part
On those grounds,
THE COURT ( Fourth Chamber )
hereby :
( 1 ) Dismisses the application;
( 2 ) Orders the European Parliament to pay the whole of the costs .
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