Opinion of Mr Advocate General Mayras

Mr President,

Members of the Court,

In the action which is Case 156/79 Pierre Gratreau asks the Court to annul :

drawn up by the appointing authority.

Does the irregularity in the compilation of Mr Gratreau's periodic reports entail the irregularity of the promotion for which he was a candidate? In other words, does observance of Article 45 of the Staff Regulations, which relates to promotion, assume observance of Article 43, which relates to periodic reports?

As the Court is aware, Article 45, so far as relevant for present purposes, is worded thus: Promotion shall be exclusively by selection from among officials ... after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

One point is settled. It appears clearly from the judgments of the Court of 19 March 1964 in Case 27/63 Raponi v Commission of the EEC [1964] ECR 129 (at p. 136 Article 43, to which Article 45 refers indirectly) and the judgments of the Second Chamber of 9 June 1964 in Joined Cases 94 and 96/63 Bemusset v Commission of the EEC [1964] ECR 297 and of the First Chamber of 7 July 1964 in Case 97/63 De Pascale v Commission of the EEC [1964] ECR 515 (p. 306 and pp. 526 to 527, Article 43, to which Article 45 refers by implication) that the reports referred to in Article 45 are those mentioned in Article 43.

What consequences must follow from that finding of irregularity?

In its judgment in the Oberthiir case the Court (First Chamber) considered that annulment of the promotions of the 40 officials who have in fact been promoted to Grade B 2 would constitute an excessive penalty for the irregularity committed and it would be arbitrary to annul the promotion of the only official from Directorate-General VII who was in fact promoted to Grade B 2 (paragraph 13). Having regard to the fact that the applicant will be able to take part in the next promotion procedure, which the Commission will take care to conduct in accordance with the rules, the Court (First Chamber) ordered the defendant insitution to pay to the applicant the sum of BFR 20000 (paragraph 15).

As I said in my opinion in the Oberthiir case, I, for my part, consider that an award of damages is not the appropriate remedy to attach by way of sanction to irregularities committed in a promotion procedure.

It is not so from a juridical point of view. It also appears to me to be somewhat cavalier to award damages to an applicant who does not seek them whilst yet refusing to declare void — which is what he is claiming — a promotion procedure the irregularity of which has been recognized.

It may be observed in this regard that the Italian Consiglio di Stato and the Belgian Conseil d'État have power to annul acts concerning the promotion of one or more officials and commonly do so in cases including those close to the present case (Conseil d'État Belge, 26 September 1973, Arrêts et Avis du Conseil d'État, p. 715 Consilio di Stato, Sez. IV, 15 Januar 1%C, No 14, Rass- Cons. Stato i9o0, 1, p.3Ci but they do not, on the ottici hand, have jurisdiction'to entertain aiolii.-uions for compensation founded on a wrongful act or omission on the part of the authority.

As for the French administrative courts, which are called upon in both actions for compensation and in actions for annulment to attach sanctions to the illegality of promotions effected on the basis of a promotion table drawn up following an irregular procedure (for a case approximating to the present case see the judgment of the French Conseil d'État of 12 June 1970 in de Mala/osse, Serre et Demoiselle Laine, Rec. Lebon, p. 397), in a choice between these two types of action and the solutions resulting therefrom, they are bound by the plaintiff's conclusions. If hearing a claim of ultra vires which it considers well-founded, the only decision which the court may give is one of annulment; in disputes concerned with liability to pay compensation it may only order the administration to pay damages (Auby and Drago, Traité de Contentieux Administratif, 1975, Nos 1222 and 1278).

The award of damages does not appear to me to be any more justified as a matter of expedience. 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 (Opinion in the Oberthiir case). I do not think that making a Community institution liable to pay a sum of money to one of its officials is truly in the nature of a deterrent. Moreover, I believe that — as Mr Advocate General Warner considered in his opinion in the De Roubaix case ([1978] ECR at p. 1095) — if, in some cases, an applicant challenging a promotion does not ask for damages it is very possibly because he feels hurt not so much financially as in his pride.

It is true that, as the most recent decisions show, it is above all fear for the consequences of annulment which has led the Court to abstain from annulment and to replace it with an award of damages, but, at a practical level, those consequences appear to me to be far from insurmountable.

It remains for me to state my opinion on the second action brought by Mr Gratreau, which was registered as Case 51/80.

That action is directed against the express rejection of his complaint. I may state at the outset that to my mind the action is manifestly inadmissible. As the applicant himself admits, the rejection decision does not add any new factors to the discussion of either the substance or matters of form. A purely confirmatory act is thus involved, just as in other similar cases (judgment of 14 April 1970 in Case 24/69 Nebe v Commission, [1970] ECR 145 at paragraph 8 of the decision; judgment of 7 July 1971 in Case 79/70 Müllers v Economic and Social Committee [1971] ECR 689 at paragraph 20 of the decision and the judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner v Commission [1980] ECR 1677 at paragraph 9 of the decision). Proof of this may be furnished by noting that the only submission made against the original decision is also that made against the express decision of rejection.

It is true that the originating application in Case 51/80 contains a further submission based on the Commission's disregard of the period within which the appointing authority must reply to a complaint which, as the applicant has stressed, was a matter of public policy and binding on the institutions as well as their officials. Admittedly, as the Court observed in its aforementioned judgment in the Kuhner case, the Commission's practice is deplorable, but I do not think that, as a strict matter of law, the absence of a reply affects officials adversely. On the expiry of the period of four months laid down by Article 90 (2), officials know that the administration's failure to reply is equivalent to an implied rejection of their complaint and that that rejection is deemed to be based on the same grounds as the original decision.

An appeal brought against the express decision rejecting a complaint could only be admissible, in my view, subject to a twofold condition: the original decision must have been substantially amended by the express decision (see judgment of 9 March 1978 in Case 54/77 Herpels v Commission [1978] ECR 585 at paragraphs 9 to 15 of the decision) and / the express decision must have been intimated after the expiry of the period for making an application to the Court, which began to run from the date of the implied decision since, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh (Article 91 (3) in fine). In my view, and as the Herpels case illustrates, the amendment capable of rendering a fresh action admissible can only be the according to the applicant of some, necessarily partial, satisfaction of his request, which he nevertheless still considers unacceptable.

For all these reasons I conclude by suggesting that the aforementioned Commission decisions of 9 November and 20 December 1978 be annulled and that, pursuant to Article 69 (2) of the Rules of Procedure, the Commission be found liable for the costs.

1 Translated from the French.