JUDGMENT OF 7.7.1964 — CASE 97/63 DE PASCALE v COMMISSION

In Case 97/63

THE COURT (Second Chamber) composed of: Ch. L. Hammes, President, R. Rossi (Rapporteur) and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

On admissibility

On the substance

1. Infringement of Articles 43, 45 and 110 of the Staff Regulations

2. Infringement of the last part of Article 5 of the Regulations

3. Lack of reasons given in the decision to promote Mr Pandolfelli to Grade A3

4. Failure to publish the contested decision

5. Mistaken evaluation of several factors

6. Misuse of powers in that the applicant was prevented in an illegal manner from temporarily occupying the post of Head of Division 2 (Eighth submission in the application)

7. Infringement of Articles 2 and 11 of the Internal Regulations of the Commission

IV — Procedure

Grounds of judgment

A — The naming of the Community as a party

Admissibility

Substance

Infringement of Articles 43, 45 and 110 of the Staff Regulations

Costs

I —. Summary of facts

II —. Conclusions of the parties

1. Declare null and void the decision whereby Mr G. Pandolfelli was appointed Head of the Companies, Public Works Contracts, Cinema and Tourism Division in the Right of Establishment and Services Directorate in the Directorate-General of the Domestic Market;

2. Order the European Economic Community or, alternatively, the Commission to bear the whole costs of the proceedings;

3. Note that the applicant reserves the right to raise in the proceedings any fresh issues of fact or of law as shall seem to him appropriate after the other parties have presented their defence and after production by them of any documents.

1. Order the other party to produce all documents submitted to the Commission and in particular the undermentioned, whilst in no way limiting his claim to the production of these:

2. Order the other party to produce the whole file concerning the difficulties mentioned under 4, 5 and 6 of the statement of facts the scope of which is clarified in the submissions under VIII, and particularly: the note addressed by the Director-General, Mr Millett, to Mr Bruns and including particularly the paragraph:

3. Authorize the applicant to prove by evidence :

III —. Submissions and arguments of the parties

1. Infringement of Articles 43, 45 and 110 of the Staff Regulations

(a). The applicant maintains that it appears from Article 110 of the Regulations that the promotion procedure provided for in Article 45 (1) should have been the subject of general provisions for giving effect to it adopted in accordance with Article 110, which provides that consultation with certain bodies is essential. Further, Article 45 (1) of the Regulations is not complete in itself. It is true that the administration enjoys discretionary power in the matter, but it must nevertheless conform to essential procedural requirements. In particular it must undertake a consideration of the comparative merits of the officials eligible for promotion and a comparison of their reports. The procedure for drawing up these reports is laid down in Article 43 of the Regulations and is also a matter for discussion within the Staff Regulations Committee which the Commission appears to have consulted. Consequently, to justify the promotion of Mr Pandolfelli, it does not suffice to claim that in the present case the consideration of the comparative merits of the officials took place: it is necessary that the administration should have undertaken this consideration, in accordance with Articles 43 and 110 of the Regulations, and should therefore have had the reports envisaged in Article 45 drawn up.

(b). The applicant further maintains that a consideration of the comparative merits of officials eligible for promotion provided for in Article 45 (1) of the Regulations did not take place in the present case since this consideration is only possible on the basis of predetermined objective criteria, known to officials in advance. The settling of these criteria is in conformity not only with Article 5 of Annex III, with the Regulations in general. It is in fact the only guarantee that Article 25 of the Regulations will be applied strictly and that no consideration outside the interests of the service is taken into account in the selection made by the appointing authority. The Commision did not decide in advance on the criteria in question and independently of the promotion which it was about to undertake (for the purpose of judging the legality of the procedure followed by the Commission concerning promotions, the applicant refers to the views contained in a memorandum of the Staff Committee of 27 May 1963, the production of which he will possibly request, and to the White Book of this same Committee), and was not thus able to undertake the consideration of the comparative merits provided for in Article 45 of the Regulations.

(c). The applicant replies that in any event it is not established that the Commission has considered the comparative merits of the officials eligible for promotion and the reports upon them. It is wrong to claim that the applicant is obliged to prove that this complaint is well-founded. It is for the Commission to prove that a consideration of the comparative merits took place. For this purpose it should produce the minutes of the meeting at which the decision to promote Mr Pandolfelli to Grade A 3 was taken or the documents concerning the procedure followed in the present case.

2. Infringement of the last part of Article 5 of the Regulations

3. The argument of the defendant, that the definition of the duties provided for in Article 5 was a lengthy business and the exigencies of the service in the meanwhile called for vacant posts to be filled immediately, is not convincing. In fact on the one hand the opinion of the Staff Regulations Committee provided for in this Article 5 appears to have been given on 28 June 1962, and to have been sent to the Presidents of the Councils on 1 August 1962; on the other hand it appears that all the other institutions have already laid down the definition of the duties and powers (also called job description list). Furthermore the European Parliament expressed regret, at its meeting on 6 February 1963, at having to state that the integration and classification were not completed in certain institutions by the end of the year 1962. The Commission has thus only itself to blame if it is not in a position to make promotions in accordance with the legal rules. It cannot justify itself by relying on the necessity to fill vacant posts immediately for service reasons: account must be taken of the fact that at present there are about 600 auxiliaries, not to mention the possibilities offered by the provisions on temporary engagement.

3. Lack of reasons given in the decision to promote Mr Pandolfelli to Grade A3

4. Failure to publish the contested decision

5. Mistaken evaluation of several factors

6. Misuse of powers in that the applicant was prevented in an illegal manner from temporarily occupying the post of Head of Division 2 (Eighth submission in the application)

7. Infringement of Articles 2 and 11 of the Internal Regulations of the Commission

IV —. Procedure

A —. The naming of the Community as a party

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.

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.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community, especially Articles 43, 45, 90, 91 and 110 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (First Chamber) hereby :

1 Annuls the decision to promote Mr Gennaro Pandolfelli to the post declared vacant by Notice No 690 in Division III-C-2;

2 Orders the Commission of the European Economic Community to bear the costs.