OPINION OF MR REISCHL — CASE 62/75 DE WIND v COMMISSION

Mr President,

Members of the Court,

The proceedings which Mr de Wind has brought against the Commission of the European Communities, of which he is an official, deal with problems concerning the promotion of officials to the next higher grade in their career bracket.

Under Article 45 of the Staff Regulations promotion shall be by selection from among officials who have completed a minimum period in their grade after, Article 45 goes on the say, consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

In order to ensure as uniform an application as possible of this very general provision the Commission issued a decision in December 1970 concerning the procedure to be adopted for promotions within a career bracket. According to this decision, which was amended in July 1971, Promotion Committees, some of the members of which are appointed by the Central Staff Committee of the Commission, shall be set up for the various categories of officials. On the basis of a list containing the names of all officials eligible for promotion because of their length of service on 31 December of the current year, on the strength of their personal files and also having regard to the reasoned recommendations for promotion by the Directors-General, the Committees prepare the draft of another list in which the officials best qualified for promotion are named in alphabetical order. When the Committees determine the number of officials to be placed on this last list they must take into consideration the prospective budgetary possibilities i.e. they can name about 25 % more officials as candidates for each grade than the number of actual posts vacant. The appointing authority, which in the case of the promotion of officials in Grade A 5 is the Commission, on the basis of the lists drawn up by the Committees, to which reasoned reports are annexed, itself establishes the list of officials best qualified for promotion and notifies the members of the staff concerned of it. The individual decisions on promotion are therefore taken in accordance with this list.

The Committee which has to express its opinion on officials in Grade A 5 eligible for promotion, must adopt a specific method of assessment, which was laid down by the Commission on 18 June 1973. This prescribes how many points must be given having regard to the recommendations for promotion made by the Directors-General and how the reports made under Article 43 of the Staff Regulations, the curriculum vitae, length of service, age and also inclusion in earlier lists of officials recommended for promotion are to be evaluated. It is in addition expressly provided that other criteria, which cannot be exhaustively enumerated and for which no weighting can be provided, may be taken into account.

The applicant, who entered the service of the Commission as a Scientific Officer on 14 September 1964 and was appointed on 1 October 1964 to Grade A 5, was entered by his Director-General on the abovementioned list of officials recommended as deserving of promotion. He was placed sixth of the twelve officials of the Directorate-General eligible for promotion named on this list which was published in the Staff Courier of 4 July 1974. When the Promotion Committee for officials in Category A, which held various meetings irr July and October 1974, examined the officials eligible for promotion it only gave the applicant a total of 106 points because under the beforementioned method of assessment applicable to officials in Grade A 5 he could not be awarded any additional points for his place on the list of names of officials recommended for protion prepared by the competent Director-General. This number of points was not enough to win a place on the list drawn up by the Promotion Committee on which the names of 66 officials only could be entered, since there were only 55 available posts in Grade A 4. The draft prepared by the Promotion Committee of a list of officials deserving of promotion, all of whom required at least 130 points, was then considered by the Commission at a meeting on 23 October 1974. When the list, which was published on 28 October, was settled the number of officials deserving of promotion was increased to 69; but the applicant was not one of them. Accordingly he was not considered when the decisions for the promotion of 55 officials in Grade 5 were taken on 20 November 1974. But two other officials from the applicant's Directorate-General, Mr E and Mr P, whose names were on the list drawn up by the Promotion Committee, were promoted.

The applicant takes the view that the procedure for promoting officials was not carried out correctly in 1974. On 17 December 1974 he therefore lodged a formal complaint with the appointing authority concerning his exclusion from the list of officials qualified for promotion. No reply to this complaint was received within the period of four months provided by Article 90 of the Staff Regulations. The applicant apparently was only notified of a decision expressly rejecting the complaint by a letter dated 22 May 1975.

In view of this situation the applicant appealed to the Court on 14 July 1975. He claimed that the Court should declare the following measures to be null and void:

In examining these claims three issues call for investigation in view of the arguments advanced by the applicant.

1. With regard to the first point which has to be considered the applicant does not — if I have correctly understood him — object to the fact that recommendations of Directors-General play any part in the procedure for promoting officials.

2. The next question to be considered is whether the particular way in which the recommendations for promotion in Directorate-General V were made in 1974 can be criticized. In this connexion there are three facts which have to be considered:

(a). The applicant first of all objects to official E being placed on the list of officials in Directorate-General V recommended for promotion with reference to the fact that at the time this official's length of service in Grade A 5 only amounted to three years. In the second place the following factor is said to be of prime importance, namely that the last report on this official, which is also material for the purposes of promotion, does not cover a period of two years, namely from 1 July 1971 to 30 June 1973, but only a shorter period, since official E was only appointed to Grade A 5 on 1 October 1971.

(b). With reference to the way in which official P was dealt with on the list of officials recommended for promotion, the applicant calls attention to the fact that in the last relevant periodical report he was only given the rating very good twice and the rating good once, whereas the applicant was rated very good under all three headings. The applicant moreover stresses that this official was to begin with placed fifth of the officials recommended for promotion, a place which holds out no promotion prospects, and was only put into third place thanks to the intervention of the members of the Promotion Committee having regard to his age (54).

(c). Finally, with regard to the unfavourable place assigned to the applicant on the list of officials of Directorate-General V recommended for promotion, in my opinion all that is necessary in the first place is to state that it has not been shown in what way the assessment of the applicant's merits when the recommendations for promotion were made was wrong. However this would be necessary, because we cannot during the proceedings before this Court replace the value-judgments of the competent Director-General with others. In the second place the Commission has denied that it is the practice as regards promotions to prefer those officials such as the applicant who were given the rating very good three times and had already advanced to the last step in their grade. This seems to me to be understandable, since it is scarcely conceivable that there could be any place for this kind of automatic procedure (in the practice adopted as regards promotions), which would go a long way towards abolishing the freedom of evaluation and the appointing authority's right of selection which has its roots in Article 45 of the Staff Regulations.

3. Finally it only remains to deal with the criticism directed against the conduct of the appointing authority itself, that is to say the Commission. The Commission is said — this is the applicant's view — not to have undertaken when drawing up the final list of the best qualified officials in Grade A 5 for promotion, a consideration of the comparative merits of all the officials who came into consideration and to have restricted itself to an assessment of those officials whom the Promotion Committee had placed on its list. In addition the Commission is said to have failed to consider the periodical reports made under Article 43 of the Staff Regulations. As these do not amount to any substantive criticism but rather to expressions of doubts and the raising of questions I am content to submit just a few observations on these matters.

4. In view of the foregoing I can only suggest that the application be dismissed in its entirety as unfounded. The decision as to costs must follow Article 70 of the Rules of Procedure since no exceptional circumstances have come to light which could justify any departure from the provisions of this article.

1 Translated from the German.