Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

Of the two cases on which I shall give my opinion today the first relates to individual decisions regarding promotion which the Secretary-General of the Council took on 13 November 1980 and the second concerns the periodic report for the period 1 November 1975 to 31 October 1977 made on the applicant in accordance with Article 43 of the Staff Regulations.

Mrs Schiavo, who instituted the proceedings, entered the service of the Council with effect from 16 December 1972 as a probationary official (assistant translator in Grade L/A 7). She was made an established official with effect from 16 July 1973. From 1 September 1978 to 31 August 1979 she took leave of absence on personal grounds, which was subsequently extended until 31 July 1980. As we have heard, she resigned in the course of these proceedings from the service of the Community, receiving the compensation provided for in the Staff Regulations.

A first periodic report on her ability, efficiency and conduct in the service was made on 31 October 1973 and a second on 31 October 1975. The applicant had no objections to either of the reports. On the other hand she did not concur in the report for the period from 1 November 1975 to 31 October 1977 since the first reporting officer; her head of division, arrived at a less favourable assessment than that contained in the first two repons although it was certified in a note from her head of division of 14 June 1976 that her knowledge of Italian, English and French was very good, although on 23 June 1976 she was detailed to participate in a Greek course which she successfully completed in August 1976 and although on 16 December 1976 her head of division put her forward for promotion. When she made verbal representations her head of division in fact amended the assessment in the report on 16 February 1978 in her favour. In spite of this the applicant made a written request on 6 March 1978 for a further revision of the report which was however refused by the first reporting officer on 9 March 1978. On 17 March 1978 the applicant successfully submitted a request for a review to a second reporting officer who on 25 May 1978 appended a report which may be considered favourable. Nevertheless the applicant intimated on 15 June 1978 that she intended to lodge a complaint against the report which she in fact did in due form on 11 September 1978. As a result the periodic report on her was submitted on 17 June 1978 to the Reports Committee set up by the Council. However, the Committee, after hearing the applicant on 6 November 1978, arrived on 20 November 1978 at a negative view of the applicant's request. The Secretary-General of the Council, in a note dated 8 December 1978, confirmed the report and transmitted it together with the views of the Reports Committee to the applicant, who received it on 18 December 1978. The applicant signed the report and returned it on 28 December 1978 whilst reserving her right subsequently to challenge its accuracy.

At this time the decisions regarding promotion for the year 1977 were also being prepared. The competent Promotion Committee met in the period from 13 October to 9 November 1978 and submitted its opinion on 22 November 1978. The promotions were then announced on 30 November 1978 and a list of the officials promoted was posted on 6 December 1978 in the premises of the Council.

The applicant, who was not promoted, submitted against this on 25 March 1979 a complaint which was received by the Council on 4 April 1979. In her complaint the applicant requested that the decisions regarding promotion should be set aside on grounds which I shall subsequently discuss.

The applicant sent a second letter, also dated 25 March 1979, pursuant to Article 175 of the EEC Treaty, to the Secretary-General of the Council. In her letter she requested that a formal, reasoned decision should be taken on her request for a review of the report complained of and also that that report should be set aside.

The Secretary-General replied on 18 June 1979 to the last-mentioned letter. He pointed out that Article 175 of the EEC Treaty was not applicable to this case and in addition referred to his note of 8 December 1978 which indicated that the appointing authority had taken a decision on the applicant's request for a review. In another letter, dated 18 June 1979, the Secretary-General notified the applicant that her complaint relating to the decisions regarding promotion must be rejected as inadmissible because it had not been lodged within the period laid down in Article 90 (2) of the Staff Regulations, that is within three months of the time when the decisions regarding promotion were posted in the Council's premises.

In response, the applicant lodged two applications on 3 August 1979.

In Case 122/79 she claims that the decision of 30 November 1978 concerning the promotion of officials of the language staff together with all prior and preparatory measures including the opinion of the Promotion Committee should be annulled.

In Case 123/79 she claims that the communication of 8 December 1978, the implied decision of rejection of her request of 24 March 1979 and all prior and preparatory measures including the opinion of the Reports Committee should be annulled.

My opinion on these cases is as follows :

I — Admissibility

In both procedures the defendant Council has raised objections of inadmissibility, and in Case 123/79 its objections are even contained in a separate document in accordance with Article 91 of the Rules of Procedure.

1. Case 122/79

2. Case 123/79

In these proceedings, too, various objections concerning admissibility were raised.

II — Accordingly, though it is doubtful whether any reasonable ground still remains for considering in addition the merits of the application, I should none the less like to add the following brief remarks on this subject.

1. On Case 122/79

The decisions regarding promotion which were adopted on 30 November 1978 were contested on the ground that the applicant was unreasonably excluded from those promotion procedures and that she was completely ignored both by the Promotion Committee and by the appointing authority when they adopted their decisions. In her reply the applicant further made reference — whether this constitutes inadmissible new issues may remain open — to the existence of a right to promotion vested in her which, although she fulfilled all the conditions, was disregarded, and to the fact that there was a deliberate intention to exclude her from promotion, which is proved by the circumstance that, although the matter was referred to the second reporting officer as early as March 1978, he did not give his views on it until 25 May 1978, thereby contravening the provisions contained in the Guide to Staff Reports according to which the second reporting officer is required to proceed within a period of 14 days.

All these considerations do not enable the application to succeed.

2. On Case 123/79

In order to substantiate her second application the applicant claims first that the note of 8 December 1978, to which reference has frequently been made, constitutes only a confirmation of the opinion of the Reports Committee but does not constitute a reasoned opinion, and furthermore that it was not duly notified to her, as it was merely sent through the post. Secondly, in order to establish that the report made on her for the period from 1 November 1975 to 31 October 1977 was erroneous, she refers to the two reports for the previous period which were much more favourable, and to the said note of her former head of division of 16 December 1976 in which she was put forward for promotion. Appraised against that background the report in question constitutes a logical inconsistency. This is also further substantiated by the fact that, for the period covered by the report, it was never indicated to the applicant that her work had deteriorated.

III — With regard to the costs of the proceedings, in view of what we have learnt in the oral proceedings concerning the applicant's resignation from the service of the Community, it might be asked whether, since there was no interest in continuing the proceedings, there were not grounds for discontinuing the action and whether it would not be proper to make the applicant bear all of the costs arising after that time on the ground that they were abusively incurred. I hesitate to do so, however. The existence of an interest in the continuation of the proceedings may be accepted, first because the contested report remains on the file and might be significant if the applicant wished in future to re-enter the service of the Community, and secondly because the conditions of the termination of her service might be influenced by the question whether the applicant was wrongfully excluded from the promotions for the year 1977, in which connexion the contested report is likewise important.

Secondly the question arises whether in fact in the present situation, as the representative of the Council considers, at any rate with regard to the application in Case 123/79, they may be said to be a vexatious institution of legal proceedings and accordingly, following Cases 6 and 97/79, whether the entire costs incurred in these proceedings are to be borne by the applicant. If the Court concurs in my view of the admissibility of the actions I would not consider this to be appropriate because the situation was only clarified by virtue of the above-mentioned judgment which, however, was only issued after the institution of proceedings in the present case. Furthermore it must be admitted, so far as this case is concerned, that in the administrative procedure the applicant succeeded in obtaining a certain improvement in the report of which she complained and that thereafter it is scarcely possible to consider that the report in question differs appreciably from the reports covering earlier periods. On the other hand the fact must not be overlooked that, particularly when one considers the two notes from the year 1976, a certain problem may have remained from the applicant's point of view and that furthermore it might appear unsatisfactory to her that the appointing authority, on her complaint of September 1978, failed to provide any independent, reasoned decision on the report criticized by her.

In these circumstances it does not appear to me obvious that the bringing of the application was vexatious and I would accordingly suggest that the decision on costs should continue to be governed by Article 70 of the Rules of Procedure.

IV — I accordingly propose that both actions brought by Mrs Schiavo should be dismissed as inadmissible and that a ruling on costs should be given in accordance with Article 70 of the Rules of Procedure of the Court of Justice.

1 Translated from the German.