JUDGMENT OF 12. 10. 1978 — CASE 86/77 DITTERICH v COMMISSION

In Case 86/77,

THE COURT (First Chamber) composed of: J. Mertens de Wilman, President, A. O'Keeffe and G. Bosco, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. As to the first head of the application

2. As to the second head of the application

(a) Admissibility

(b) Substance

IV — Oral procedure

Decision

A — The first head of the application

B — The second head of the application

Admissibility

Substance

Costs

I —. Facts and written procedure

1. Kuno Ditterich, an engineer of German nationality, a Commission official in Grade A 5/8, employed at the Joint Research Centre at Ispra, gained knowledge on 13 April 1976 of a handwritten list of proposals for promotion to Grade A 4, upon which his name, which was at the head of the list, was crossed out. He requested the administration to explain the reasons for his exclusion and obtained the reply, infer alia, that the list in question carried no official weight and had not been agreed to by any competent authority. Having compared that list with a list of promotion to Grade A4 for 1976 drawn up in November 1976, on which his name did not appear, the applicant nevertheless concluded that his name had been withdrawn and omitted from the proposals for promotion with the agreement of the competent authorities, and accordingly, on 8 December 1976, he submitted a complaint under Article 90 of the Staff Regulations of Officials, objecting that the Commission was guilty, in putting forward those proposals, of discrimination and was in breach of Articles 43 and 45 of the Staff Regulations. The applicant's name was also absent from the list of proposals for promotion for 1977.

2. Furthermore, by decision of the Commission of 20 January 1977, of which he was informed on 11 February 1977, the applicant was transferred from the Natural and Physical Sciences Department, Chemistry Division, to the Computers, Mathematics and Systems Analysis Department, as from 1 January 1977.

3. On 5 July 1977 the applicant submitted the present application, directed both against the ommission of his name from the official list of proposals for promotion mentioned above and against the above-mentioned decision of 20 January 1977 to transfer him.

II —. Conclusions of the parties

(a). Before the commencement of the proceedings order that the applicant's personal file be lodged at the Court Registry together in particular with the letter sent by Mr Bishop to the Commission on the subject of Mr Ditterich, no copy of which is to be found in the file;

(b). Take formal note that the applicant offers to prove the discriminatory nature of the list of proposals for promotion inasmuch as the said list takes no account of:

(c). As regards the ommission of the applicant from the list of proposal for promotion :

(d). As regards the transfer which has been effected;

(e). Order the Commission to pay the costs.

III —. Submissions and arguments of the parties

1. As to the first head of the application

2. As to the second head of the application

(a). Admissibility

(b). Substance

IV —. Oral procedure

1. By application submitted on 5 July 1977 the applicant, an official of Grade A 5 at the Joint Research Centre (JRC) at Ispra, claims the annulment of the list of proposals for promotion to Grade A 4 to which reference is made in the decision of the Director General of the JRC of , on which his name did not appear.19 November 1976

2. In the same application the applicant claims the annulment of the decision of the Commission of 20 January 1977, relating to his transfer within the JRC.

A —. The first head of the application

3. As regards the first head of the application the applicant maintains that the list of proposals in question is irregular because it was drawn up in the context of a procedure which lacked any legal foundation.

4. In fact the rules concerning that procedure were not drawn up by the Commission in accordance with the conditions laid down in Article 110 of the Staff Regulations of Officials.

5. The list of proposals in question was drawn up pursuant to the General Provisions for implementing the Procedure for promoting Staff paid from Research Appropriations, adopted by the Commission on 6 December 1971, as amended by decision of that institution of 9 October 1973.

6. It is common ground that those General Provisions were drawn up by the Commission following consultations with the Staff Committee and after it had obtained the opinion of the Staff Regulations Committee.

7. They thus satisfy the conditions required by Article 110 of the Staff Regulations and have that provision as their legal basis.

8. The amendments made to those Provisions by the decision of the Commission of 9 October 1973 do not in any essential manner affect the rules laid down thereby, since they consist merely in changes in the descriptions of certain members of the promotion committees of first and second instance due to the internal reorganization of certain departments of the Commission.

9. Accordingly, the fact that such amendments were made without consulting the Staff Committee and obtaining the opinion of the Staff Regulations Committee does not constitute a default in relation to Article 110 of the Staff Regulations such as to affect the validity of the promotion procedure established by the above-mentioned General Provisions.

10. The applicant further claims that the list of promotion proposals in question is irregular in relation to Article 45 of the Staff Regulations because it was drawn up in the context of a procedure which did not allow the appointing authority, in accordance with that provision, to undertake a comparative examination of the merits of all officials eligible for promotion.

11. Furthermore, the infringement of Article 45 in question is said to be all the more marked in so far as the applicant is concerned in that his personal file, which should have formed the basis of the comparative examination of the merits, was incomplete.

12. According to paragraph 1 of the General Provisions for implementing the Procedure for promoting Staff paid from Research Appropriations, the purpose of those provisions is to establish an advisory procedure to be followed before promoting such staff.

13. To that end the procedure thus laid down provides for the establishment of promotion committees of first and second instance, the task of each of which it is to draw up a provisional list of officials … considered to be most deserving of promotion after comparing the merits of all officials … eligible for promotion on 31 December of the current year and after comparing the staff reports on those persons.

14. Paragraph 8 of the Provisions further lays down that the provisional promotion lists drawn up by each promotion committee in each case shall be transmitted to the appointing authority together with the reasoned reports of the promotion committees and the promotion proposals.

15. It is clear from the statements made by the Commission that the committees of first and second instance, required to draw up provisional lists of those officials judged to be most deserving of promotion, had at their disposal, inter alia, indexed files setting out the complete career of each official eligible for promotion, tables setting out the present state of the career of each official eligible for promotion in relation to his grade and age, together with the definitive periodic reports for 1971 to 1973 and 1973 to 1975.

16. Moreover, those committees could have had made available to them, at the request of one of their members, the personal file of any official eligible for promotion whenever it appeared necessary to refer thereto.

17. Furthermore, it appears from the recitals of the preamble to the decision of the Director General of the JRC of 19 November 1976 by which he adopted, in his capacity as appointing authority, the definitive list of JRC officials of Grade A 5 judged to be the most deserving of promotion to Grade A 4, that that authority had had the opportunity of consulting the personal files and of examining in particular the periodic reports of all the officials eligible for promotion, and had undertaken a comparative examination of the merits of those officials.

18. In view of all these circumstances the fact relied on by the applicant, namely that his personal file was incomplete in that it did not contain the periodic reports relating to the periods 1971 to 1973 and 1973 to 1975, cannot be held to support a finding that the promotion list in question was irregular in relation to Article 45 of the Staff Regulations.

19. Even without those periodic reports the members of the various committees had in fact at their disposal the very widest powers to obtain all the information necessary to undertake a comparative examination of the merits of those eligible.

20. The applicant's statements do not allow it to be said that those committees did not seek such information in his case.

21. Finally, the applicant maintains that the promotion list in question is invalidated by a misuse of powers with regard to him in that the omission of his name from the list was dictated by reasons alien to the interests of the service.

22. In support of that complaint the applicant relies in particular on a note sent to the Commission by Mr Bishop, of which he obtained knowledge during a conversation with an official in the Personnel Branch and which he alleged had an unfavourable effect upon his chances for promotion.

23. He further claims that the reason for the omission of his name from the promotion list in question is to be found in the hostility shown towards him by certain of his superiors or colleagues.

24. It is not disputed that the note in question was sent by Mr Bishop to the Personnel and Administration Division at Ispra after the applicant had, on 8 December 1976, submitted a complaint through official channels concerning the omission of his name from the promotion list in question, and that it was intended to reinforce the reply by the Commission to that complaint.

25. Since that note could not accordingly have prompted that omission it cannot support the complaint of a misuse of powers as alleged.

26. Nor do the other arguments adduced by the applicant provide adequate evidence for legal purposes that he was the victim of a misuse of powers.

27. For all these reasons the first head of the application appears to be unfounded.

B —. The second head of the application

28. The defendant contends that the second head of the application is inadmissible in that it was submitted before the expiry of the period of four months, fixed by the final subparagraph of Article 90 (2) of the Staff Regulations, from the date on which the complaint was lodged.

29. It denies that there is any foundation to the applicant's claim that his complaint through official channels against the decision to transfer him may be linked to the complaint through official channels previously submitted in relation to the promotion list with which the first head of the application is concerned.

30. It is common ground that by note of 1 March 1977 the applicant submitted to the authority which had adopted the said decision to transfer him a complaint relating to that decision.

31. In view of its purport, of its express reference to Article 90 of the Staff Regulations and of the authority to which it was addressed that note must be held to have been a complaint through official channels within the meaning of the said Article 90.

32. The authority to which that complaint was submitted replied by a memorandum of 27 June 1977 stating the reasons for the transfer decision in question.

33. In view of these facts the present application, received at the Court Registry on 5 July 1977, must be held to be admissible as to its second head.

34. The applicant maintains that the decision in dispute is irregular with respect to Article 25 of the Staff Regulations because it was not notified to him through his immediate superior but was handed to him by a secretary.

35. Further, he alleges that the said decision was not in conformity with that article because it did not contain a statement of reasons.

36. Finally, it is said not to have been justified by reasons relating to the interests of the service but to have involved a misuse of powers with respect to him due to the allegedly strained personal relations between himself and Mr Bresesti.

37. The second paragraph of Article 25 of the Staff Regulations, while providing that any decision relating to a specific individual … shall at once be communicated in writing to the official concerned, does not lay down the method by which that decision is to be communicated.

38. Such communication is deemed to have taken place when the decision in fact reaches the official concerned, whatever the means whereby it is transmitted.

39. Article 25 of the Staff Regulations further provides, in the second paragraph, that any decision adversely affecting an official shall state the grounds on which it is based.

40. In order to decide whether the requirements of Article 25 relating to a statement of reasons were fulfilled consideration should be given not only to the transfer decision itself but also to the staff memoranda in support thereof which were brought to the notice of the person concerned and which clearly informed him of the reasons behind the said decision.

41. In the present instance the transfer decision was preceded by a memorandum from Mr Bresesti of 13 September 1976, to which reference is made in the complaint of 8 December 1976, and was followed by the abovementioned memorandum of 27 June 1977 from the relevant Director informing the applicant of the reasons for the adoption of the contested decision.

42. Reasons were therefore stated for the said decision of which the applicant could not have been in ignorance and which convey all the essential factors which guided the administration in its decision and which are therefore sufficient for the purposes of a review by the Court.

43. In view of that statement of reasons the arguments adduced by the applicant in support of his complaint of a misuse of powers contain no factor such as to support the view that the transfer in question was effected for reasons alien to the interests of the service.

44. For all these reasons the second head of the application also appears to be unfounded.

43. Pursuant to the first subparagraph of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

46. However, pursuant to Article 70 of the same Rules, in proceedings instituted by officials of the Communities, institutions shall bear their own costs.

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

1 Dismisses the application.

2 Orders the parties to pay their own costs.