OPINION OF MR ROEMER — CASE 15/68 ELZ v COMMISSION

Mr President,

Members of the Court,

The applicant in the proceedings with which we are concerned today was formerly an official with the High Authority of the European Coal and Steel Community and since the entry into force of the Merger Treaty has been an official with the Commission of the European Communities. Until 24 June 1968 he was Principal Administrative Assistant in Grade B 1 in the Directorate for Budgets. As a result of an administrative re-organization he has been working since 25 June 1968 in the Directorate-General for Financial Control.

In accordance with the provisions of Article 43 of the Staff Regulations of Officials of the European Coal and Steel Community, which still applied to him at that time, a report on his ability, efficiency and conduct in the service, was made, which covered the period from 1 July 1965 to 30 June 1967. As he was entitled to do under the second paragraph of Article 43, the applicant made a series of critical comments relating to alleged contradictions in the report and asked that it should be rectified so as to take account of them. As this was not done he lodged a formal complaint through his immediate superior with the President of the Commission on 27 March 1968 under Article 90 of the Staff Regulations, in which he repeated his request for rectification of the report. Finally on 25 July he filed an appeal with the Court. In his application he asked the Court to annul the report made on 15 January 1968 and to order that it be rectified.

The Commission's reply was that in fact his superior drew up a new report substantially modified on the basis of the applicant's comments of 22 May. This report was communicated to the applicant by his superiors; the applicant however refused to comply with their request that he should submit his comments and sign it. The report was therefore sent to the Directorate-General of Administration which was informed of what had happened. One of the heads of division of the Directorate-General thereupon asked the applicant on 31 May 1968 to see him and again brought the report to his notice. As the applicant still refused to sign the report and also refused to sign a document confirming this refusal, the said head of division drew up a note relating to what had occurred and had it placed with the new report on the applicant's personal file.

The Commission takes the view that all these facts show that the report of 22 May 1968 has effectively replaced the report of 15 January 1968 and that the application for annulment and rectification of the report of 15 January 1968 consequently has no purpose. It therefore submits that in accordance with Article 91 of the Rules of Procedure the Court should, without going into the merits of the application, dismiss it as inadmissible.

The Commission also submits in the alternative that the application cannot in any circumstances be regarded as admissible in its entirety, because it challenges points in the report of 15 January 1968 which are not mentioned in the applicant's complaint through official channels. The Court must hold that the appeal was to this extent filed out of time.

My opinion on these disputed matters, which were supplemented by the applicant's observations on the Commission's statement and by submissions during the oral procedure, is as follows.

1. The admissibility of the application depends in the first place on the question whether it relates to a measure which can be challenged or whether the dispute — as is stated in Article 91 of the Staff Regulations — is concerned with an act adversely affecting an official or whether its subject-matter, the report of 15 January 1968, is only to be regarded as an internal administrative measure.

2. The admissibility of the application depends in the second place upon compliance with the time limits prescribed by Article 91 of the Staff Regulations. According to this Article an appeal must be filed against an individual measure within three months of the notification of the decision.

3. As I stated at the beginning of my opinion the Commission stresses that it did not in fact fail to take any administrative action. On the contrary it accepted part of the applicant's complaint and replaced the report which he criticized with a second report of 22 May 1968. In the absence of any interest which can be legally protected it follows that the applicant cannot now ask for a judicial review of the first report which has been withdrawn but can at most ask for a review of the second report by means of an application to the Court.

4. Having regard to this result, which is in my opinion conclusive, it is unnecessary to examine the Commission's alternative objection that the application is at least in part inadmissible. I will merely state in this connexion that the Commission's view appears to me to be convincing. In fact the scope of an administrative complaint and an appeal to the Court must be the same. If an administrative complaint — as has happened in this case — only includes certain criticisms of an official report which are capable of being objectively defined, then, if an appeal to the Court is filed later, it is only in relation to those points which have been criticized that the time limit of three months for appealing under Article 91 of the Staff Regulations can be regarded as having been observed. On the other hand after the expiry of the time limit it is no longer possible to complain of any other mistakes in a report. This is obviously in no way connected with the questions dealt with by Article 42 of the Rules of Procedure. There are then in my opinion no grounds for an application based on Article 42.

5. With regard to the costs of the proceedings, although the application is inadmissible, the Court could consider, pursuant to Article 69(3) of the Rules of Procedure, ordering the Commission to bear at least part of the costs. I make this submission with reference to the fact that the interpretation of Article 26 of the Staff Regulations raises certain difficulties, to the fact that in the list of documents appearing in the applicant's personal file the report of 15 January 1968 was not deleted or that there was no note concerning its removal (which Euler, op. cit, Vol. 1, p. 236 and Holtz, Handbuch des Europaischen Dienstrechtes, p. 201, consider appropriate), the fact that the appointing authority did not reply to his administrative complaint and finally to the fact that when he requested that he should be permitted to submit his comments on the second report he could have made a mistake through no fault of his own as to the legal effect of this report. I consider that such an apportionment of the costs is justifiable but leave it to the discretion of the Court to determine the proportion of the costs which the Commission may have to bear.

6. For the foregoing reasons my opinion is as follows:

1 Translated from the German.