JUDGMENT OF 19. 2. 1981 — JOINED CASES 122 AND 123/79 SCHIAVO v COUNCIL
In Joined Cases 122 and 123/79
THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure
II — Conclusions of the parties
1. In Case 122/79
2. In Case 123/79 (Periodic report)
III — Summary of the submissions and arguments of the parties
A — In Case 123/79 (Periodic report)
1. Admissibility
The Council contends:
To which the applicant replies:
In its defence the Council observes:
2. Substance
The applicant states:
The Council for its part replies:
B — In Case 122/79 (Promotion)
1. Admissibility
2. Substance
(a) In ber application the applicant complains that the contested decision:
(b) In its defence the Council replies:
(c) In her reply the applicant states that she is astonished, first, that she was excluded from the action on promotions although she was proposed for promotion on 16 September 1976 by the head of the Italian Division; secondly, that her second reporting officer took two and a half months to express his opinion; thirdly, that the Council claims in its defence that the two bodies (the Advisory Committee and the Reports Committee) are independent and that resort may be had to photocopying although that is contrary to the secret and confidential nature of the personal files of the staff; fourthly, that the Council, which felt itself obliged to state that the decisions concerning promotion were taken after the opinion of the Reports Committee, has incriminated itself by this excuse; these factors firmly establish that in excluding her from promotion the contested decisions regarding promotion disregarded all the facts and assessments relating to the applicant, and thus excluded her from the action taken with regard to promotions.
(d) Finally, in its rejoinder the Council claims:
IV — Oral procedure
Decision
The background to the dispute
The admissibility of the two applications
The claim for the annulment of the periodic report
The claim for the annulment of the decisions on promotion
Costs
I —. Facts and written procedure
II —. Conclusions of the parties
1. In Case 122/79
(a). in her application:
(b). In her reply:
(a). in its statement of defence:
(b). Adding thereto in its rejoinder:
2. In Case 123/79 (Periodic report)
—. After declaring this application to be well founded, annul the contested communication of 8 December 1978 and the implied decision of rejection which is also contested together with all prior preparatory measures including the opinion of the Reports Committee with all the consequences in law including an order that the defendant pay the costs.
1. Dismiss the objection that the application is inadmissible;
2. Consequently rule that the application is inadmissible;
3. In accordance with the second subparagraph of Article 91 (4) reserve its decision regarding the objection for the final judgment and prescribe new time-limits for the further steps in the proceedings.
1. Rule on the preliminary objection as to the admissibility of the application;
2. If the application is declared admissible, dismiss the claims of the applicant as unfounded;
3. Order the applicant to pay the costs in so far as the defendant is not liable therefor in accordance with Article 70 and 95 (2) of the Rules of Procedure.
—. Dismiss all objections, arguments and inferences contrary to her application;
—. Grant her application by declaring it admissible and well founded and take all the measures which it shall consider appropriate.
III —. Summary of the submissions and arguments of the parties
A —. In Case 123/79 (Periodic report)
1. Admissibility
(a). The application is not dated although Article 37 (3) of the Rules of Procedure of the Court of Justice provides that all pleadings shall bear a date. On this point the Council relies upon the discretion of the Court. The same argument has been advanced in Case 122/79.
(b). There is no implied decision of rejection by the Secretary-General which rejected the formal notice of the applicant of 25 March 1979 and against which the application is partly directed, since the Secretary-General replied to that notice by letter of 18 June 1979.
(c). Proceedings have been brought before the Court of Justice before any valid complaint was addressed to the appointing authority in accordance with Article 90 (2) of the Staff Regulations. The formal notice of 25 March 1979 does not constitute a complaint within the meaning of that article:
(a). The fact that there is no date on the application is of no consequence since according to Article 37 (3) of the Rules of Procedure the date of lodgment at the Registry, in these proceedings 3 August 1979, is the only relevant date in the reckoning of time-limits. Furthermore the general principles of procedural law do not require that undated pleadings shall be null and void.
(b). Pursuant to the second paragraph of Article 25 of the Staff Regulations any decision relating to a specific individual must be communicated in writing to the official concerned and if it adversely affects him it must state the grounds on which it is based, as has been confirmed by the case-law of the Court. The decision of the Secretary-General of 8 December 1978 was entirely lacking in a statement of the reasons on which it was based, which means that it is void since the letter of 18 June 1979 cannot remove the nullity of another measure. Accordingly the applicant proceeded correctly when, by a document of 25 March 1979, she submitted a complaint within the period of three months to the appointing authority and, when she did not receive any reply, since the letter of 18 June 1979 does not constitute a reply, she submitted an application to the Court on 3 August 1979.
(c). As to the objection that the application is inadmissible because of the failure to lodge a prior complaint: either, after the opinion of the Reports Committee there was no implied decision of rejection having a proper statement of the reasons on which it was based by the Secretary-General and, in that case the complaint lodged by Mrs Schiavo on 25 March 1979 is valid as is the subsequent application, or there was an express decision of rejection on 18 June 1979, as the Council maintains, and the application lodged at the Registry on 3 August 1979 is admissible.
(d). With regard to the objection that the complaint contains defects as to substance and form there is no provision laying down requirements as to form apart from that expressly prescribed time-limit. Furthermore it cannot be disputed that the absence of a decision after the opinion of the Reports Committee constitutes an act adversely affecting the applicant which as such can form the subject of a complaint and that the letter of 25 March 1979 thus constitutes a complaint against an act adversely affecting the applicant since its form is scarcely relevant; it is only the determination of the substantive features of the letter which determines its legal nature.
(e). With regard to the alleged failure to submit a complaint through the applicant's immediate superior the provision in Article 175 is not incompatible with that in Article 179 of the Treaty. The former, which is a general rule, permits a person to complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion. The latter, a special rule, extends the jurisdiction of the Court to cover any dispute between the Community and its servants.
2. Substance
(a). By virtue of Article 90 of the Staff Regulations the appointing authority must provide the person concerned with a reasoned decision. The note of 8 December 1978 from the Secretary-General merely confirms the adverse opinion of the Reports Committee and thus fails to state the reasons on which it is based. This entails the nullity of the note, in view of the essential importance which the Court of Justice has attributed to the reasons on which a decision is based.
(b). That is why the Secretary-General was formally requested to act. Since he failed to reply and since, according to the case-law of the Court, any administration, when it takes steps which by their nature may seriously prejudice the interests of an individual, is bound to enable the person concerned to make known his point of view, his silence amounts to an implied decision of rejection which is furthermore ultra vires since the reasons on which it was based were not stated and because the act in question constitutes an implied decision of rejection.
(c). The fact that the application is well founded is furthermore established by the manifest injustice in the behaviour of collegiate bodies or bodies consisting of a single member whose actions and opinions preceded the confirmation by Mr Hommel in his note of 8 December 1978, and by the contradiction between the wording of the first periodic reports and the final decision taken by the Community authorities: in particular the applicant maintains that the periodic report in question constitutes a logical inconsistency in relation to the communication of 16 December 1978 whereby the head of division proposed Mrs Schiavo for promotion. Consequently the behaviour of the appointing authority is grossly illegal where it confirms, without giving reasons, adverse assessments which were preceded by favourable assessments and when this results in a refusal of promotion.
(d). Finally, in reply to the argument of the Council that none of the defects listed by the Court in its judgment of 24 October 1976 in Case 122/75, Küster, [1976] ECR 1685 were cited amongst the grounds of the application, the applicant emphasizes first of all that she espouses that decision, according to which
(a). With regard to the submissions concerning form, that is to say, to the note of 8 December 1978.
(b). With regard to the submissions relating to the substance of the case, that is to say, to the drafting of the periodic report in question.
B —. In Case 122/79 (Promotion)
1. Admissibility
(a). First, the application was lodged out of time. Article 90 (2) of the Staff Regulations of Officials prescribes a period of three months for lodging a complaint against an individual measure which adversely affects a person other than the person to whom it is addressed. That period starts to run on the date on which the latter person receives notification of that measure but in no case later than the date of application.
(b). Secondly, the application was not submitted through her immediate superior although it is expressly required in Article 90 (3) of the Staff Regulations that this procedure should be followed and the fact that the applicant was at the time on leave does not relieve her of her duty to comply with the formal requirements laid down by that paragraph.
(c). The defendant also put forward an alternative ground: it alleges that there is an error in the causa petendi: the reason for the application resides in the fact that the appointing authority failed to reply to her complaint and accordingly the application, according to the applicant, is directed against an implied decision of rejection. But in the present case an express decision of rejection was taken on 18 June 1979 and it is impossible to assimilate the two concepts.
(a). Article 25 of the Staff Regulations provides that specific decisions regarding ... promotion ... of an official shall at once be posted ... and shall be published in the Monthly Staff Bulletin of the Communities. It follows that a decision may only be regarded as validly published when it has complied with those two requirements. In this case publication took place in the course of January 1979 and the application was thus submitted within the time-limit prescribed by the Staff Regulations. Mrs Schiavo was, moreover, staying in Italy at that time and only learned of the promotions, in which she herself was not included, through their publication in the Staff Bulletin.
(b). It may be that the complaint was not addressed in an orthodox manner to the appointing authority but it produced the intended effect since the appointing authority, in its decision of 18 June 1979, did not object that the notification of the complaint was not in accordance with the rules of the Staff Regulations as to form but merely rejected it as inadmissible, wrongly assuming that it was out of time.
(c). The Secretary-General's decision of rejection, dated 18 June 1979, is not to be classified as an express decision of rejection, which assumes that the substance of the dispute is considered, but as an implied decision of rejection in that the decision rejects the complaint without considering the substance of the matter since it merely considers that the complaint was lodged out of time. Be that as it may, once the dispute reaches the judicial level the application pending before the Court is formally and substantively directed towards the annulment of the decision, implied or express, of rejection.
(a). The words publication provided for in Article 90 do not have the same significance as publication in the Monthly Bulletin provided for in Article 25 since the German and Dutch versions of the Staff Regulations, which use two different words for both cases, confirm that posting meets the requirement of making public decisions concerning promotion. Furthermore, the applicant's interpretation would in fact create a flexible time-limit and for obvious reasons of legal certainty cannot be accepted.
(b). It is true that the letter of 18 June 1979 considers that the complaint was inadmissible because it was lodged out of time but that does not prevent it from also being inadmissible because when the complaint was lodged it did not comply with the formal requirements of the Staff Regulations: submission through the immediate superior of the applicant.
(c). With regard to existence of an error in the causa petendi, the defendant maintains its argument and leaves the matter to the discretion of the Court.
2. Substance
(a). In ber application the applicant complains that the contested decision:
(b). In its defence the Council replies:
(c). In her reply the applicant states that she is astonished, first, that she was excluded from the action on promotions although she was proposed for promotion on 16 September 1976 by the head of the Italian Division; secondly, that her second reporting officer took two and a half months to express his opinion; thirdly, that the Council claims in its defence that the two bodies (the Advisory Committee and the Reports Committee) are independent and that resort may be had to photocopying although that is contrary to the secret and confidential nature of the personal files of the staff; fourthly, that the Council, which felt itself obliged to state that the decisions concerning promotion were taken after the opinion of the Reports Committee, has incriminated itself by this excuse; these factors firmly establish that in excluding her from promotion the contested decisions regarding promotion disregarded all the facts and assessments relating to the applicant, and thus excluded her from the action taken with regard to promotions.
(d). Finally, in its rejoinder the Council claims:
IV —. Oral procedure
1. By applications lodged at the Court Registry on 3 August 1979, Mrs Schiavo, who at the time was an official in Grade L/A 7 at the Council of the European Communities, brought two actions, which were joined by order of 31 January 1980, one for the annulment of the implied decision rejecting her request for a review of her periodic report for the period from 1 November 1975 to 31 October 1977 and of the note of the Secretary-General of the Council of 8 December 1978 confirming the opinion of the Reports Committee of 28 November 1978 which was not in favour of that request, and the other for the annulment of a series of decisions of the Council of 30 November 1978 deciding on the promotion of certain offcials of the language staff.
2. The applicant was appointed a probationary official with the Council on 16 October 1972. In accordance with the decision of the Council of 25 May 1964 concerning the report on the ability, efficiency and conduct in the service of officials of the General Secretariat of the Council, two periodic reports, generally containing the assessments good and even very good, were drawn up for the periods 1972-73 and 1974-75 without occasioning any remarks by the applicant.
3. In accordance with new criteria established by the Council Decision of 18 October 1977 laying down the general provisions for the application of Article 43 of the Staff Regulations of Officials on periodic reports Mrs Schiavo was the subject of a periodic report dated 16 February 1978 for the period from 1 November 1975 to 31 October 1977 drawn up by her head of devision and first reporting officer, Mr Valerio.
4. Since Mrs Schiavo considered that this periodic report differed from the previous report in a negative sense, she first of all requested an interview with her first reporting officer, following which she obtained positive amendments; nevertheless she asked in writing for a review of the said report which had been amended in her favour. That request was refused and she then asked for a review of that report by the second reporting officer, Mr Duck, in accordance with Article 7 of the Decision of 18 October 1977. Mr Duck, in a note dated 25 May 1978, made favourable amendments to the general assessment.
5. However, the applicant also refused to accept the conclusions of the second reporting officer and submitted a complaint within the meaning of Article 90 of the Staff Regulations by letter of 11 September 1978 addressed to the Secretary-General of the Council.
6. In view of that complaint the Secretary-General, pursuant to Article 11 of the Council Decision of 18 October 1977, referred the matter to the Reports Committee for whose intervention provision is made by the decision for the case where an official disagrees with the periodic report of which he is the subject.
7. On 28 November 1978 the Reports Committee delivered an opinion which was unfavourable to the applicant and which the Secretary-General confirmed by note of 8 December 1978. That note, accompanied by the opinion, was notified to the applicant who received them on 18 December 1978.
8. In the meantime the Secretary-General, acting on the opinion to that effect of the Advisory Committee, took on 30 November 1978 a series of decisions regarding the promotion of certain officials other than the applicant. The list of officials promoted was posted in the premises of the institution on 6 December 1978 and was published in the Monthly Staff Bulletin of the European Communities, No 158 of January 1979.
9. Thereupon the applicant sent on 25 March 1979 two letters, the first registering a complaint concerning the decisions on promotion and the second formally requesting the Secretary General to take a decision concerning the periodic report drawn up on 16 February 1978.
10. Since no answer was given to those two letters the applicant lodged the two above-mentioned applications.
11. In the course of the written procedure the Council maintained in the first place that the application was inadmissible because a prior complaint was not lodged, as the letter of 25 March 1979 does not constitute a complaint within the meaning of Article 90 (2) either formally, since it was based on Article 175 of the EEC Treaty whereas disputes between officials and their institutions come under Article 179 of the EEC Treaty, or substantively, since it constitutes a request within the meaning of Article 90 (1). Even if it were possible to consider the letter as a complaint, the application would nevertheless be inadmissible on the ground that the complaint should have been submitted on 19 March 1979 at the latest.
12. At the hearing the Council, relying on the judgment of 3 July 1980 (Grassi v Council, Joined Cases 6 and 97/79 [1980] ECR 2141), contended that, since proceedings against a periodic report may be instituted without the necessity of a prior complaint, the applicant should have lodged the application before 19 March 1979.
13. The applicant on the other hand maintains that, since all individual decisions which adversely affect an official must state the reasons on which they are based and since the note from the Secretary-General of 8 December 1978 did not state the reasons on which it was based it is void and that she was accordingly justified in submitting a formal request on 25 March 1979 to take a decision.
14. It should first of all be recorded that, with regard to periodic reports, the Council Decision of 18 October 1977 fixes the course of the procedure before court proceedings are instituted and provides in particular in Article 10 (5) that
15. In the present case the applicant submitted on 11 September 1978 a complaint within the meaning of Article 90 (2) in order to have her periodic report corrected. The special procedure thus initiated was closed, in accordance with the provisions of the Council Decision of 18 October 1977, by the note of the Secretary-General confirming the opinion of the Reports Committee which the applicant received on 18 December 1978. As from that date the periodic report was regarded as final.
16. It may also be noted that the Court, in its above-mentioned judgment in the Grassi case, has already made it clear that in such a situation it is not a condition of instituting proceedings before the Court that a prior complaint through official channels should have been lodged:
17. Furthermore, even if it were possible to classify the applicant's letter of 25 March 1979 as a complaint through official channels for the purposes of Article 90 (2) of the Staff Regulations, and even if the error committed as to the inapplicability of that article, given the present wording of the provisions, could be regarded as excusable, those circumstances in no way alter the fact that the complaint was out of time since it was lodged after 19 March 1979.
18. In consequence, since the application in Case 123/79 was lodged out of time, it must be declared inadmissible.
19. The Council maintains that the application was lodged out of time since the complaint, which was dated 25 March 1979, was aimed at procuring the annulment of the decisions on promotion posted on 6 December 1978, and that it was lodged after the period of three months from the date of publication, that is after the period fixed as a condition of admissibility by Article 90 (2) of the Staff Regulations. In support of that argument it claims first that, according to that provision, the period within which a third party, who is adversely affected by an individual measure, must lodge an application, starts to run on the date on which he receives notification thereof but in no case later than the date of publication, which in the present case is the date of posting, and secondly, that the requirements of legal certainty would not be fulfilled if publication in the Monthly Staff Bulletin were taken as the time from which the period starts to run.
20. The applicant, relying on Article 25 of the Staff Regulations which provides that
21. Whilst it is indeed true that Article 25 of the Staff Regulations specifies that all decisions relating to specific individuals regarding the promotion of an official must be posted and published it should be noted that, with regard to third parties who are concerned, the general scheme of the second indent of Article 90 (2) implies that the period during which a complaint must be lodged starts to run as from the day when the third party concerned receives notification of the measure in dispute but in no case later than the date of publication. In the case of decisions regarding the promotion of officials the posting at once of such decisions in the premises of the institution to which the official belongs is wholly in conformity with the objective of that measure which is to bring such individual decisions to the attention of the restricted class of persons concerned whereas the sole purpose of publication in the Monthly Staff Bulletin is to provide general information which does not have any particular legal effect.
22. With regard to the requirements of legal certainty the Court has declared in its judgment of 12 December 1967 (Müller née Collignon) Case 4/67 [1967] ECR 365) that
23. If the time from which the period for lodging complaints started to run coincided with the publication of the measures in question in the Monthly Staff Bulletin, which often occurs long after publication of such measures through posting, that period would be rendered variable, which is contrary to the interests of the persons who benefit from those individual measures and would not confer any real advantage upon officials adversely affected by such measures as the latter are able without difficulty to inform themselves or to be informed in good time of important measures which have been posted in accordance with clearly prescribed rules which were adjusted within the framework of the personnel management within their department and which concern their personal administrative position.
24. Accordingly it must be concluded that, since the applicant's complaint was lodged out of time for the purposes of Article 90 (2) of the Staff Regulations of Officials, the application in Case 122/79 must also be declared inadmissible.
25. Article 70 of the Rules of Procedure provides that without prejudice to the second subparagraph of Article 69 (3) in relation to costs which the Court considers to have been unreasonably or vexatiously caused, institutions shall bear their own costs in proceedings by servants of the Communities.
26. The Court considers that the applicant should not have the benefit of the provisions of Article 70. It is apparent from the foregoing that she persisted in pursuing judicial proceedings without being able to establish a real interest although, as a result of her complaints and by means of the internal review procedure within the Council administration, she had the assessments on her favourably revised. In those circumstances the bringing of and persistence in a legal action must be regarded as vexatious. It is therefore right to order the applicant to pay the whole of the costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the applications as inadmissible;
2 Orders the applicant to pay the whole of the costs.
1 Judgment of 21 February 1974 in Joined Cases 15 to 33/73 et seq. Schots, née Korlner [1974] ECR 177; judgment of 22 October 1975 in Case 9/75 Meyer-Burckhardt [1975] ECR 1171 and judgment of 12 February 1977 in Case 48/76 Riinan [1977] ECR 291.
2 Judgment of 4 July 1963 in Case 24/62 Germany v Commission [1963] ECR 63; judgment of 12 October 1978 in Case 86/77 Kuno Ditlerich [1978] ECR 1855; judgment of 27 October 1977 in Case 121/76 Moli [1977] ECR 1971.
3 For example the judgment of 13 April 1978 in Case 75/77 Molkt [1978) ECR 897.
4 Cf. judgment of 30 October 1974 in Case 188/73 Grassi [1974] ECR 1099; judgment of 19 March 1964 in Case 27/63 Raponi [1964] ECR 129; judgment of 9 June 1964 in Cases 94 and 96/63 Bemusset [1964] ECR 297; judgment of 31 March 1965 in Cases 12 and 29/64 Ley [1965] ECR 107; judgment of 8 July 1965 in Cases 27 and 30/64 Forni [1965] ECR 481; judgment of 13 July 1972 in Case 90/71 Bernardi [1972] ECR 603.