JUDGMENT OF 4. 12. 1980 — CASE 782/79 GEERAERD v COMMISSION

In Case 782/79

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Summary of the facts

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties in the written procedure

The first submission

The second submission

V — Oral procedure

Decision

The first submission

The alternative submission

Costs

I —. Summary of the facts

1. Proceed to draw up the list of the more meritorious officials;

2. Adopt decisions to promote officials with retroactive effect to 1 June 1978 save in the case of the former career brackets for revisers: retroactive effect to 1 January 1978 — in any event end of January 1979 (the validity of the list being extended to that date).

II —. Written procedure

III —. Conclusions of the parties

IV —. Submissions and arguments of the parties in the written procedure

(a). The Commission applied the Staff Regulations as they stood before amendment by Regulation No 912/78 to officials eligible for promotion having the seniority required before the entry into force on 4 May 1978 of that regulation. It therefore took promotion from Grade L/A 6 to Grade L/A 5 as promotion within the career bracket (former career brackets) not requiring publication of vacant posts to be filled through those promotions.

(b). The application of the procedure laid down by the regulation was in no sense detrimental to the interests of officials who, on 1 January 1978, had the seniority required for such promotion: Regulation No 912/78 does not lay down any new basic conditions.

(c). The applicant leaves it to the Court to decide on the objection of inadmissibility raised by the Commission on grounds of his lack of interest in taking proceedings.

(a). The applicant has not proved either that the alleged irregularities in the promotion decisions were injurious to him or impaired his legitimate interests or that the procedure normally followed in the past to promote officials from one career bracket to another might have been more to his advantage.

(b). In any event the submission has no foundation.

(a). By not first publishing either the list of officials regarded as the most deserving of promotion to Grade L/A 5 for the financial year 1978 or the list of officials put forward for such promotion by its branches, the Commission ignored the legal provisions and practices requiring immediate communication of those lists.

(b). The fact that certain officials, not including the applicant or a number of others, knew about those lists unofficially and were therefore able to intervene effectively on their own behalf is a breach of the principles of equal treatment, of distributive justice, of equity and of the protection of legitimate expectation. A precise example might be given to illustrate that argument.

(c). If the explanation for the lack of any publication of the list of the officials considered to be the most deserving of promotion to Grade L/A 5 is that no list or procedure to draw up such a list had been commenced, then there is a breach of the other legal provisions referred to in the submission.

(d). The applicant cannot be required to indicate the arguments capable of changing the tenor of the decisions in issue, which he could have advanced if publication had been effected. Such a requirement is tantamount to inviting the Court to involve itself in questions of opinion, which would be contrary to its established case-law. The crucial point is that the applicant was utterly unable to formulate the observations which he considered useful and that such observations had no opportunity to influence the decision to be taken.

(e). The argument that even the application of the procedure advocated by the applicant would have led to the same result cannot be accepted. The case-law referred to by the Commission on this point relates to a specific case and an exceptional situation which are not transposable to this case.

(f). The Court does not reverse appraisals by the administration save in the case of manifest error as to the facts. Such is the situation in this case. In fact it is not at all evident that the applicant could not be promoted and that it was established that a fresh decision would be identical to the previous one, especially as a promotion decision depends essentially upon appraisals based on a consideration of the comparative merits of officials.

(g). Contrary to the provisions of the decision of 21 December 1970 by which the consideration of the comparative merits must be undertaken by the Promotion Committee, that examination was carried out in this case by an ad boc committee. That amounts to an additional procedural irregularity.

(a). The omission to publish the list of officials considered to be the most deserving of promotion or the list of proposals submitted for that purpose by the branches is not sufficient ground to annul the decisions in issue. That publication does not constitute an essential requirement. In no sense does the applicant prove that the decisions complained of might have been different if publication had been effected or that the irregularity involved was detrimental to the interests at stake. In the absence of such consequences, according to the case-law of the Court the irregularity is not sufficiently substantial to vitiate the procedure in question.

(b). The applicant cannot invoke any legitimate interest in the annulment of the decisions in issue: he does not indicate any factor which might have changed the contested decision; it would be possible to confirm the substance of the decisions by a new procedure. The selections by the Promotion Committee and consequently by the appointing authority are largely determined by objective criteria and the applicant has not alleged that those criteria were judged incorrectly.

(c). None of the procedural irregularities alleged by the applicant is capable of rendering the decisions in issue null and void.

(d). Even if the application were considered admissible and well founded there would be no ground to annul the decisions complained of. Such annulment would cause damage to the other officials promoted which would be disproportionate to that suffered by the applicant. His rights may be safeguarded by other more appropriate measures which it is not necessary to indicate at this stage.

V —. Oral procedure

1. By application lodged at the Court Registry on 22 October 1979 the applicant, Mr Geeraerd, an official on the Commission's language staff brought an action for the annulment of the decisions to promote officials from Grade L/A 6 to Grade L/A 5 made in respect of the 1978 financial year and for the annulment of the implied decision rejecting his complaint against those decisions.

2. At the time of the events giving rise to the dispute the applicant was in a post in Grade L/A 6 in the former L/A 6 - L/A 5 Career Bracket. On 2 May 1978 the Council adopted Regulation No 912/78 amending the Staff Regulations of Officials (Official Journal L 119, p. 1) which came into force on 4 May 1978; the effect of Article 13 of the regulation was to rearrange the career brackets for language staff in so far as the L/A 6 - L/A 5 Career Bracket (hereinafter referred to as the former career bracket) was abolished to form new career brackets which are L/A 7 - L/A 6 and L/A 5 - L/A 4. Promotion from Grade L/A 6 to Grade L/A 5, which previously was promotion within the same career bracket, thus became promotion from one career bracket to another.

3. The problems of adjustment resulting from that rearrangement were considered by the Heads of Administration of the various institutions at their 116th meeting held on 30 October 1978. Where the former career brackets were concerned the Heads of Administration thought that officials could still be promoted, in the then current budget year and with effect from 1 January 1978, under the rules applicable before the new regulation came into force if on the aforesaid date officials had the seniority required, whilst the promotion of officials to the new career bracket would be carried out in accordance with the provisions of the new rules. The Heads of Administration recommended that those rules be applied in the same way in all the institutions.

4. The Commission immediately took the necessary steps to put that recommendation into effect, before the end of the year in question. In the case of officials on the language staff eligible for promotion from Grade L/A 6 to Grade L/A 5 in the former career bracket the Commission formed an ad hoc committee composed in the same way as the Promotion Committee for the language staff. By a memorandum of 4 December 1978 the Director of the Translation, Documentation, Reproduction and Library Directorate, IX/D, submitted to that group a list together with a proposal to promote 21 officials selected from 184 candidates fulfilling the necessary requirements. The Ad hoc Committee unanimously agreed to recommend the promotion of the officials proposed.

5. The appointing authority accepted that proposal and the officials concerned were consequently promoted with effect from 1 January 1978. That decision was published in Administrative Notices No 225 of the Commission of 15 February 1979.

6. On 26 March 1979 the applicant lodged a complaint with the Commission against those decisions pursuant to Article 90 (2) of the Staff Regulations. On 27 August 1979 the Commission informed the applicant that it was unable to give him a favourable reply. It is against both those decisions to reject his complaint, the first implied and the second express, that the applicant has made his application within the prescribed period.

7. In support of that application the applicant makes two submissions. The first, presented as the main argument, is primarily based on the rules concerning the application of Regulation No 912/78; the second, presented in the alternative, is based on the failure by the appointing authority to observe the formalities provided for in the Commission decision of 21 December 1970, as amended by a decision of 14 July 1971, on general implementing provisions relating to the procedure to promote officials within a career bracket, published in Administrative Notices No 42 of 13 May 1975 (hereinafter referred to as the decision of 21 December 1970).

8. The applicant contends as his main argument that as a result of the restructuring of career brackets by Regulation No 912/78 promotion from Grade L/A 6 to Grade L/A 5 is now promotion from one career bracket to another and as such requires the publication of a vacancy notice by virtue of Articles 4 and 5 (2) and (4) of the Staff Regulations. By treating the promotions in point as still being promotions within the same career bracket the Commission disregarded the principle that the regulation had immediate application from its entry into force.

9. The Commission views that submission as inadmissible for lack of interest on the part of the applicant who was in any event one of those officials eligible for promotion from Grade L/A 6 to Grade L/A 5 so that publication of a formal vacancy notice could not have improved his situation. Besides, the Commission believes that it was entitled to treat in accordance with the old rules the situation of officials who fulfilled all the necessary requirements to be promoted within their former career bracket at the time Regulation No 912/78 came into force.

10. The applicant's submission must be rejected. There is no need to go into the interest of the applicant, as it suffices to state that in any event the measures adopted by the administration in order to regulate the situation of officials who might expect to be promoted within their former career bracket at the time when the new regulation came into force come under the measures which may be legitimately taken to resolve the transitional problems arising in regard to the officials concerned from the restructuring of career brackets. It follows that the promotions in question could still be treated as being promotions within the same career bracket.

11. As an alternative argument the applicant contends that the Commission did not observe the formalities provided for by the decision of 21 December 1970 under which the promotion of any official must be preceded by the publication of the list of officials regarded as the most deserving of promotion, drawn up by the appointing authority on the proposal of Promotion Committees. Furthermore, contrary to practice, the promotion proposals of the branches were not notified to the staff. Those are, it is alleged, essential formalities since the purpose of the publication of those lists is to enable the officials concerned to defend their interests effectively. Finally, the applicant contends that there is a further irregularity in regard to the promotion proposals in so far as they originated not from the Promotion Committee so-called but from an ad hoc committee separate from it.

12. The Commission contends in this regard that the drawing up and the publication of the list of officials judged to be the most deserving of promotion as well as the publication of proposals put forward for that purpose by their branches do not constitute essential formalities which, if not carried out, provide sufficient ground for the annulment of the promotion decisions in question. As it was, the promotion proposals were made by the officials' superior officers, with all due care, so that the case of each official eligible for promotion was duly considered and the appointing authority had at its disposal all the information necessary to take an informed decision.

13. The subsidiary submission must also be dismissed. In fact the decision of 21 December 1970 which the applicant claims was not observed does not constitute an implementing provision prescribed by the Staff Regulations but an internal measure, introduced by the Commission of its own accord, which cannot therefore be regarded as having the character of strict law. Under no circumstances can the fact that the Commission departed from the procedure provided for by that decision in order to take account of the exceptional situation which arose as a result of the reorganization of the career brackets for language staff be regarded as an infringement of an essential procedural requirement within the meaning of Article 173 of the Treaty. Those considerations apply especially to mere administrative practices which, according to the applicant, the Commission ordinarily observed when promoting officials.

14. Consideration of the facts has moreover disclosed that no safeguard contained in the Staff Regulations has been disregarded in the procedure applied to the promotions in issue. It is not in fact disputed that the applicant's case received attentive and impartial treatment from the administrative authority as did those of other officials who likewise fulfilled the requirements for being promoted. The applicant has not been able to prove that he incurred any special disadvantage as a result of the appointing authority's following, as it did, a procedure different from that prescribed by the decision of 21 December 1970. Consequently there can be no doubt as to the lawfulnature of the promotions made under those circumstances.

15. It follows from all of the foregoing that the application must be rejected as a whole.

16. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

17. However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in actions by employees of the Communities shall be borne by those institutions.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.