Opinion of Mr advocate general Mayras

Mr President,

Members of the Court,

Before considering the merits of the present action it is worthwhile running briefly over certain stages in the applicant's career in the service of the Communities.

Following a competition the applicant was promoted from Grade C 2 to Grade Β 5 as from 1 January 1967 and appointed administrative assistant in the Directorate for Internal Affairs, Library and Documentation Division of the Directorate-General for Administration.

Her posting has subsequently been frequently altered.

Until 1 June 1975 she was in Division VII-A-4, Social harmonization department, and thereafter she was reassigned for a trial period of six months to the Environment and Consumer Protection Service.

That temporary reassignment was again altered with effect from 1 October 1975: the applicant was reassigned for a fresh trial period of six months to Directorate V-B — European Social Fund.

On 1 December 1976 the reassignment of the applicant — curiously described as temporary staff — to Directorate V-B — Employment and Vocational Training (the previous decision spoke of the European Social Fund) was terminated and she and her post were transferred to the Secretariat of the Director-General in Directorate-General VII — Transport.

The tribulations of the applicant were not to stop there: by decision of the Personnel Director of 13 December 1978, taking effect from 1 December 1976, the temporary nature of the applicant's reassignment was retroactively terminated thus belatedly allowing a claim which she had made on 28 February 1977 and which had been rejected on 4 October of the same year.

Those changes, which were apparently necessary because of the applicant's health, were not without consequence on the assessment of her work made by her assessors and on the difficulties which resulted from the point of view of her career.

Since she had been in Grade Β 3 since 1 June 1972 and had reached 48 years of age, the applicant was included in the duplicated list published on 10 March 1978 by the Personnel Directorate containing the names of some 269 officials in Category Β 3 paid from operating appropriations and satisfying the conditions of minimum seniority required for competing for promotion to Grade Β 2 during the 1978 financial year. It related to promotion within the career bracket. The budgetary provisions allowed the promotion of only 40 officials in all to Grade Β 2.

The applicant's name, however, was not included in the three names of officials in Directorate-General VII recommended by the Directors-General in order of priority for promotion and published on 26 April 1978.

Nevertheless, apart from the list of those three names the relevant Promotion Committee received the list of all the officials eligible for promotion, including the applicant, and according to the answer dated 13 November 1978 to the complaint made by the applicant on 20 July 1978 her case was the subject of special consideration by the Promotion Committee for Category Β as were those of all officials eligible for promotion who had not been proposed by the Directorates-General but had considerable seniority by reason of age and length of service and considerable seniority in the grade.

Ultimately from among the three names referred to only that of Mrs J. S. was included from Directorate-General VII in the list of 40 officials considered to be most deserving of promotion to Grade Β 2 and that list was notified to the staff as from 17 July 1978. It is apparent from that publication that the appointing authority had adopted that list in accordance with the opinion of the relevant Promotion Committee and that the latter had not used the opportunity to include in its provisional list a number of officials 25 % higher than the number of posts likely to be available for promotions to Grade Β 2, that is 50 names.

The formal decision was taken on 24 July 1978 and notified to the staff on 23 August 1978. It is the express rejection on 13 November 1978 by the Member of the Commission with responsibility for staff matters to the complaint made by the applicant on 20 July 1978 concerning the lists brought to the knowledge of the staff on 26 April 1978 and 17 July 1978 which is the subject of the present application.

1. The Decision of 24 July 1978 is based inter alia on the following grounds:

2. If this first submission were recognized as well founded it would justify annulling the express rejection of the applicant's complaint.

If these two claims or at least one of them is upheld by the Court the express rejection of the applicant's complaint must be annulled. The question then arises as to the measures needed to implement such a judgment ordering annulment. Although that question is primarily a matter for the institution from which the contested measure emanates, I should like to make some observations on the subject in view of the catastrophic consequences which such annulment would involve according to the Commission.

In the judgment of 23 January 1975 in the Dapper case ([1975] ECR 35) the First Chamber simply held, in accordance with the opinion of Mr Advocate General Warner, that consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done, failed to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.

The Second Chamber held (judgment of 14 July 1977 in the Geist case [1977] ECR 1419) that it is not in dispute that an official suffers non-material damage resulting from the fact that he possesses a personal file which is irregular and incomplete, when the compulsory periodic report is a guarantee to an official for the regular progress of his career.

The case of Ditterich v Commission on which the First Chamber delivered judgment on 12 October 1978 ([1978] ECR 1855) concerned the annulment of a transfer decision and on that occasion the procedure for promoting an official in Grade A 5 paid from research appropriations was at issue.

In his opinion in that case (at p. 1871) Mr Advocate General Warner stated I confess, however, that I entertain doubts as to whether those Provisions [he was referring to the General Provisions for Implementing the Procedure for the Promotion of Staff paid from Research Appropriations, which are very similar to the provisions in question in the present case] are in other respects compatible with the Staff Regulations. Article 45 must be read in conjunction with Articles 4, 27 and 29 of the Regulations. Together those articles seem to me to lay down a procedure for filling each vacant post by promoting or otherwise appointing to it whoever is best qualified for it. A mass annual selection of persons to be promoted, unrelated to the demands of any specific post, seems to be at variance with that procedure. I also think that the necessary corrective to the massive and indiscriminate nature of such procedure is provided by consultation of the staff reports for otherwise there is a risk of their becoming arbitrary.

The reason why Mr Advocate General Warner did not propose the annulment of the promotions in question, as he had done in the Dapper case, is that such annulment could cause to officials whose names were on it [that is the list of officials for promotion] hardship disproportionate in the aggregate to the wrong suffered by the applicant. Since the applicant did not ask for damages his action was ultimately dismissed. However, in the case of Fiddelaar (Case 44/59 [1960] ECR 535) even where the conclusions were lacking due form the Court, of its own motion, ordered the payment of damages.

I should like to say that the French Conseil d'Etat has not hesitated (this is only one example among many others) to annul (5 May 1961, Juste Rec. p. 302) all the appointments of administrateurs de classe exceptionnelle of the Ministry of Finance for 1958 because the marks relating to an administrator who had not been promoted had not been passed to him.

I still think that the only effective remedy to a practice which seems unfortunately frequent is not to award damages, where they are asked for in the conclusions, but to provide redress as regards the applicant's career. It is not all necessarily a question of money and the best means of improving the conduct of administrative procedures is not to quantify the damages.

In the present case it is not a matter of calling in question the promotion to Grade Β 2 of 40 officials but at most the single promotion which has been allocated to Directorate-General VII-Transport, which in itself is regrettable enough. Since it is no longer possible to add the applicant's name to the list of officials considered to be most deserving of promotion during the 1978 financial year since the validity of that list expired on 31 December 1978, I think the most satisfactory solution to restore the applicant's rights is to recognize that she has the right to be included automatically in the next list.

In this respect I think the Court can be guided by certain precedents: in the case of Richez-Parise v Commission (judgment of 28 May 1970, [1970] ECR 325) the First Chamber did not hesitate to reopen a period which had expired; that same Chamber followed the same course in the Fiebn case (judgment of 9 July 1970, [1970] ECR 547).

The use of the power to make such an order I leave, however, to the Court's discretion and for my part I propose that the express rejection of the applicant's complaint of 13 November 1978 should be annulled and that the Commission should pay the costs.

1 Translated from the French.