JUDGMENT OF 5. 6. 1980 — CASE 24/79 OBERTHÜR v COMMISSION

In Case 24/79

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: H. Mayras Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — First Submission

B — Second submission

C — Third submission

D — Fresh issues

Admissibility of fresh submissions

The first fresh submission

The second new submission

E — Reservations

F — Measures to be taken

G — Evidence

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Dominique Noëlle Oberthiir, born on 5 February 1930, of French nationality, has been an official of the Commission since 1959; she is at present with the Directorate-General VII — Transport in the secretariat of the Director-General.

2. In 1978 the applicant was included in the list of officials who had completed the minimum period required by Article 45 (1) of the Staff Regulations for promotion from Grade Β 3 to Grade Β 2, which list was published in Administrative Notices No 191 of 10 March 1978. On reading Administrative Notices No 196 of 26 April 1978 she found, however, that in contrast to three other officials of Directorate-General VII her name had not been put forward by her Director-General to the relevant Promotion Committee for promotion to Grade Β 2. Subsequently the provisional list of officials considered to be most deserving of promotion as drawn up by the Promotion Committee and published in Administrative Notices No 205 of 17 July 1978 and the list of officials promoted to Grade Β 2 by decision of the appointing authority and published in Administrative Notices No 208 of 23 August 1978 mentioned only one official from Directorate-General VII.

3. On 20 July 1978 the applicant submitted a complaint under Article 90 of the Staff Regulations because she had not been proposed or recognized as one of the officials most deserving of promotion to Grade Β 2. She included a summary of certain of her qualifications comparing them with those of her colleague who had been promoted.

4. On 2 February 1979 the applicant brought the present action which was registered at the Registry on 9 February 1979.

II —. Conclusions of the parties

—. Annul the procedure for the promotion to Grade Β 2 of the officials listed at page 5 of Administrative Notices No 208 of 23 August 1978 including all stages of that procedure and in particular the opinions of the Promotion Committee and the decisions of the appointing authority;

—. Declare null and void the express rejection of the applicant's complaint by the Commission on 13 November 1978;

—. Order the Commission to pay the costs.

—. Order the opposite party to produce:

—. Order that the following facts be proved by witnesses;

—. Dismiss the action as unfounded;

—. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

A —. First Submission

B —. Second submission

(a). Neither the Promotions Committee nor the appointing authority has been informed that the applicant had written a paper at the end of her studies on The use of waste in road construction;

(b). The Promotion Committee and the appointing authority had not had knowledge of the applicant's staff report for the period 1 July 1975 to 30 June 1977, which had been made on 2 March 1978, whereas as regards the other officials eligible for promotion the Promotion Committee had the staff report for that period.

(a). The defendant replies first of all that the applicant's personal file, which was available to the Promotions Committee and the appointing authority, contains two letters sent to the applicant relating to the paper produced at the end of her studies.

(b). The defendant admits that the staff report in question, which was according to the applicant drawn up on 2 March 1978, was not available at the first meeting of the Promotions Committee on 23 May 1978. That state of affairs was because the applicant's postings had frequently been changed as a result of her delicate health which made it difficult to find a posting reconciling the interests of the department with the medical exigencies.

C —. Third submission

D —. Fresh issues

—. Paragraph 6 of the General Provisions for Implementing the Procedure for Promotion within a Career Bracket ..., which is worded as follows:

—. Paragraph 3 b of the Guidelines adopted by the Promotions Committee — Category B — for the 1978 Financial Year, which is worded as follows:

E —. Reservations

(a). No fresh submission may be made in the course of proceedings, and that applies a fortiori to the making of reservations in reply constituting a kind of potential submission raising the question when the applicant intends to raise it formally;

(b). The reservations expressed are also surprising in view of the fact that the composition of the Promotions Committee for Category Β was published in Administrative Notices No 198 of 11 May 1978 and was thus known to the applicant before the action was brought;

(c). Finally, the reservations made are surprising in so far as they suggest that it is for the defendant to establish that the composition of the Promotions Committee was in order; on the contrary attention is drawn to the fact that it is for the applicant to show that the composition of the Committee was not in order and that any irregularity was likely to affect her adversely.

F —. Measures to be taken

G —. Evidence

IV —. Oral procedure

1. By application dated 8 February 1979, received at the Court the following day, the applicant sought the annulment of the procedure for promotions to Grade Β 2 as a result of which the Commission promoted the officials whose names are listed in Administrative Notices No 208 of 23 August 1978 and the annulment of the Decision dated 13 November 1978 in which the Commission rejected the applicant's complaint relating to those promotions.

2. As part of the procedure for promotions for 1978 the applicant's name had been included in the list of officials satisfying the minimum seniority required for promotion from Grade Β 3 to Grade Β 2 under Article 45 (1) of the Staff Regulations. Subsequently, however, and unlike three other officials of Directorate-General VII in which she served, she was not proposed by her Director-General to the Promotions Committee. The name of only one of those three other officials was included by the Promotions Committee among the 40 officials considered to be most deserving of promotion. The list of officials promoted to Grade Β 2 by the appointing authority was in accordance with that drawn up by the Promotions Committee.

3. In that complaint which she made the applicant made a comparison between her own merits and those of her colleague who was promoted and she concluded from that comparison that she was better qualified than the latter for promotion to Grade Β 2. In her application the applicant complains that the Promotion Committee and the appointing authority did not seriously consider the comparative merits of the two officials in question.

4. The applicant makes three submissions in her conclusions. The Court will consider, first of all, the second submission as to infringement of Article 45 (1) of the Staff Regulations. That provision stipulates inter alia that promotions to the next higher grade shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

5. In the applicant's view that provision has been infringed in two respects: on the one hand the Promotion Committee and the appointing authority were unaware that the applicant had written a bibliographical paper at the end of her studies; in addition those two bodies were unacquainted with the staff report on the applicant for 1975 to 1977 whereas they had at their disposal the staff reports for that period on other officials eligible for promotion.

6. As regards first of all the staff report for 1975 to 1977 the applicant alleges

7. As for the paper produced by the applicant at the end of her studies argument between the parties has not clarified whether the Promotion Committee and the appointing authority were aware of its existence. The Commission finally stated that two letters sent to the applicant which referred to the paper were not put into her personal file until after the Promotion Committee had finished its work.

8. Article 43 of the Staff Regulations provides that the periodic report shall be made at least once every two years. The report constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration. Thus pursuant to Article 45 (1) of the Staff Regulations officials may be promoted only after consideration of the comparative merits of the officials eligible for promotion and of the reports on them. The Court has already held in its judgment of 23 January 1975 (Case 29/74 De Dapper ν European Parliament [1975] ECR 35) 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 fails to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.

9. In the present case the Commission had not denied that the applicant's staff report for 1975 to 1977 had not yet been drawn up when the Promotion Committee dealt with the proposals for promotion whereas the staff reports for the same period on other officials eligible for promotion were submitted to that Committee and to the appointing authority. During the argument between the parties the Commission attempted to explain the reasons for the delay in drawing up the staff reports on the applicant; in that respect it cited in particular the frequent changes in the posting of the applicant because it was impossible for her to work in an air-conditioned office. Nevertheless the Commission has not succeeded in showing that the delay was caused by the applicant.

10. Nor has the Commission shown that the absence of the applicant's staff report was compensated for by other factors capable of informing the Promotion Committee and the appointing authority of the applicant's merits for the period in question. In particular the Commission did not show that it was possible for those two bodies to know of the existence of the bibliographical paper written by the applicant in 1975 at the end of her studies.

11. It is apparent from the foregoing that the Commission had been guilty of a wrongful act or omission in putting or leaving the applicant in a less favourable position than the other officials eligible for promotion. Accordingly the procedure for promotion to Grade Β 2 for 1978 was irregular as regards the applicant.

12. Since the second submission in the application is thus upheld it is not necessary to consider the other submissions put forward by the applicant.

13. The Court considers that annulment of the promotions of the 40 officials who have in fact been promoted to Grade Β 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 Β 2.

14. Nevertheless since this case involves proceedings in which the Court has unlimited jurisdiction it has, even in the absence of proper conclusions to that effect, the power not only to annul but also, if need be, of its own motion to order the defendant to pay compensation for the non-material damage caused by a wrongful act or omission on its part. The award of such damages constitutes in the present case the form of compensation which best meets both the applicant's interests and the requirements of the department.

15. In assessing the damage suffered it is right to bear in mind 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. In view of that fact the Court assesses the damage suffered ex aequo et bono and considers that the award of the sum of BFR 20000 is sufficient compensation for the applicant.

16. Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.

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

1 Orders the Commission to pay the applicant the sum of BFR 20000 by way of damages in respect of its wrongful act or omission;

2 Dismisses the remainder of the claims;

3 Orders the Commission to pay the costs.

1 Guidelines adopted by the Promotion Committee — Category B — for the 1978 financial year.

2 Guidelines adopted by the Promotion Committee — Category B — for the 1978 financial year.