JUDGMENT OF 1. 7. 1976 — CASE 62/75 DE WIND v COMMISSION

In Case 62/75

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, A. M. Donner and F. Capotorti, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

(a) The first submission: unequal treatment of candidates

(b) The second submission: infringement of Article 45 (1) of the Staff Regulations

Law

Costs

I —. Facts and procedure

II —. Conclusions of the parties

(a). Annul the list of the best qualified officials published in the Communications of 28 October 1974;

(b). Annul the decision whereby Mr E. and Mr P. appear on the list of officials seeking promotion to Grade A 4;

(c). Annul or at least declare void the implied decision of the Commission of the European Communities rejecting the request made by the applicant on 17 December 1974;

(d). Order the Commission of the European Communities to pay the costs of the action;

(e). Take note that the applicant reserves the right to raise submissions both of fact and of law to which the defence by the opposite parties or the documents produced by them may give rise;

(f). Alternatively;

(g). Summon the Director-General and the Head of the applicant's Division as witnesses;

(h). Order the Commission to produce the staff reports and personal files of Mr E. and Mr P.

(a). Dismiss the applicant's conclusions as unfounded;

(b). Order the applicant to pay the costs;

(c). If it orders witnesses to be heard in accordance with the applicant's conclusions, hear in addition his Director, Mr J. Peel, whether or not in place of the applicant's Head of Division, Mr J. Danis.

III —. Submissions and arguments of the parties

(a). The first submission: unequal treatment of candidates

(b). The second submission: infringement of Article 45 (1) of the Staff Regulations

1. In an application lodged on 14 July 1975 the applicant requested the Court to annul (a) the list of best qualified officials published in the Communications of 28 October 1974, (b) the inclusion in this list of the names of two officials, Mr E. and Mr P., and their promotion to Grade A 4 and (c) the defendant's implied decision to dismiss the applicant's complaint under Article 90 of the Staff Regulations.

2. In this instance the defendant followed the preliminary consultative procedure which it had adopted by a decision of 21 December 1970, pursuant to which five Promotion Committees were set up for Categories A, B, C and D and the Language Service, and were given the task of examining the position of officials who satisfy the conditions laid down under the Staff Regulations for promotion during a particular financial year.

3. In order to facilitate the task of the Promotion Committee for officials in Category A, the Commission adopted on 18 June 1973 a Method of assessment of officials in Grade A 5 eligible for promotion to Grade A 4 which requires each Director-General to put forward, in order of priority, the names of the officials in Grade A 5 in his department who are eligible for promotion.

4. These promotions proposed are submitted to the Promotion Committee which may modify them; it awards to each official a certain number of points determined on the basis of objective criteria such as age, seniority in the grade, seniority in the service and staff reports; additional points are also awarded to a certain number of officials who are eligible for promotion on the basis of their place in the order of priority established by the Director-General concerned. The number of officials eligible for these points varies according to the total number of officials in each Directorate-General whose names appear on the list.

5. In this instance, having followed the procedure laid down by the Method of assessment the number of officials eligible for promotion in Directorate-General V was 12, with the result that only the first four listed were able to receive points on the basis of their priority.

6. As the applicant was classified in sixth place he could not receive any points on the basis of his classification.

7. He maintains that as a result of the discretionary award of additional points the candidates eligible for promotion were treated unequally and that this infringed Article 45 of the Staff Regulations.

8. He points out in particular that the staff report on Mr P., one of the two candidates whose names the applicant wishes to see withdrawn from the list of best qualified officials, contains twice the comment above average and once the comment average under the heading efficiency which is the most important heading appearing on the file for the purposes of the method of evaluation applied by the Commission whilst the applicant's report contained the comment above average under each heading.

9. The applicant received a higher number of points than Mr P. under another two of the four objective criteria, seniority in the grade and seniority in the service.

10. Thus, it was the assessment of the subjective factors by his Director-General which had adversely affected his position, since the heading in his report conduct in the service, which was by nature more objective, was more favourable.

11. The applicant maintains that the Commission has adopted a method of assessment of officials eligible for promotion which, although presented as objective, in fact leaves a very wide margin of choice to the Directors-General and Promotion Committees by allowing the points awarded according to objective criteria and those awarded according to the order of priority of the officials on the lists drawn up by the Directors-General to be balanced on against the other.

12. He criticizes in particular the award of additional points to candidates E. and P. on the basis of the order of priority established by the Director-General of Directorate-General V.

13. When the list was drawn up Mr E. had only three years' seniority in Grade A 5 and although Mr P. had been nine years in that grade he received only 20 points in his report as compared to the 30 (the maximum possible) obtained by the applicant.

14. However, the oral testimony of Mr S., Director-General of Directorate-General V, shows that Mr E. was placed first in the order of priority by virtue of the high quality of his work.

15. This testimony also shows that Mr P. was first classified fifth in the order of priority and that his classification was subsequently so altered as to place him third: this was done at the request of the Staff Committee which put forward in particular the view that as a general rule, an official in Grade A 5 ought to be promoted to A 4 before his retirement and that therefore his age (59) justified his promotion.

16. If the applicant had been classified in fifth place instead of Mr P. it does not seem likely the Staff Committee would have intervened to put him in third place, which it did for Mr P. on the basis of his age.

17. Even if it be open to question whether the Commission did not give too much weight to the assessments made by the Directors-General as compared to the other factors involved in the evaluation, the Commission however has power under the Staff Regulations when deciding on promotions to make a choice on the basis of a consideration carried out in the manner which it considers to be the most appropriate, of the comparative merits of the candidates eligible for promotion and of the reports on them.

18. It does not appear that by promoting Mr E. and Mr P. the Commission has exceeded its powers.

19. For this reason the application must be dismissed.

20. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

21. The applicant has failed in his submissions.

22. However, under the terms of Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.

23. It is appropriate that the costs incurred in the measures of inquiry shall be borne by the defendant.

On those grounds, THE COURT (First Chamber) hereby rules:

1 The application is dismissed;

2 The parties shall bear their own costs;

3 The costs of hearing the witnesses shall be borne by the defendant.