Opinion of MR Advocate General

Mr President,

Members of the Court,

1. In this case the Court is called upon to decide the lawfulness of a periodic report relating, as prescribed by Article 43 of the Staff Regulations, to the ability, efficiency and conduct in the service of a Community official. Before however going into the substantive question it will be necessary to consider the procedural aspects of the case, which the parties have dealt with at length in their pleadings.

2. The procedural questions must be discussed in the light of the Council's Decision of 18 October 1977 which laid down specifically the procedure for drawing up periodic reports and the means of complaint with regard thereto available to an official against the administration. The quite complex rules of the said decision must however be reconciled with the Staff Regulations regarding remedies (Articles 90 and 91) without forgetting that the provisions of the decision are subordinate to those of the Staff Regulations in so far as they fall within the general implementing provisions which each institution has the power to adopt on the basis of Article 110 of the Staff Regulations themselves. In particular the Decision of 18 October 1977 implemented Article 43 of the Staff Regulations which, as I have said, govern periodic reports.

3. In spite of that there is a circumstance of quite another nature which precludes consideration of Case 6/79: namely a new fact arising after it was brought. On 20 March 1979 the Council confirmed the report by the second reporting officer as amended pursuant to the opinion given by the Reports Committee and forwarded it to Mr Grassi. There is no doubt that that amended report by implication withdrew the report by the same reporting officer dated 15 March 1978. In fact the two reports relate to the same person and the same period and the later report naturally represents the final decision in the matter by the administration. From this observation it follows that the case brought on 5. January 1979 has lost its purpose. Thus the Court in my opinion should take notice of that and declare that it is unnecessary to give a decision in that case.

4. The Council also put forward an objection of inadmissibility in relation to the action brought on 20 June 1979 and registered as Case 97/79. The basis of the objection is that Mr Grassi failed to make a prior complaint through official channels against the amended report by the second reporting officer dated 2 March 1979 and forwarded as we have seen on 20 March 1979.

5. It is time to pass to a consideration of the objections relating to the substance of the case. It is necessary to bear in mind in this respect that counsel for the applicant in answer to a question put by the Court clarified his claims in a document dated 8 May 1980. According to that document the applicant is seeking the partial annulment of the periodic report made by the second reporting officer on 2 March 1979 in three respects which I shall shortly specify.

6. As regards the two joined actions brought by Mr Daniele Grassi against the Council on 5 January and 20 June 1979, my opinion therefore is that the Court should declare that it is not necessary to arrive at a decision in the first and that the second should be dismissed.

1 Translated from the Italian.