Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

The Court has before it an action brought under Article 91 of the Staff Regulations against the Commission by Christiane Hoffmann, a Librarian in Grade B 4 at the Joint Research Centre, Ispra.

This case falls under the heading of staff disputes relating to promotions. It concerns promotions in the budgetary year 1980. The applicant believes that another official working in the library at Ispra, Mrs G., has wrongly been given preference over her.

This action is both for annulment and for compensation.

It seeks the annulment:

Concurrently or in the alternative, the applicant asks that she be awarded damages for the material and nonmaterial damage which she has thereby suffered, to be determined ex aequo et bono and augmented by interest at the normal rate as from 19 March 1981, the date on which her complaint was made.

Since the essential facts of the dispute are enmeshed with the various stages of the promotion procedure, it is appropriate to describe them together.

The General Provisions to give effect to the procedure for promoting staff paid from the research appropriations lay down the rules applicable, which entail the successive involvement of a body known as the Instance Zéro, a promotion committee of first instance, a promotion committee of second instance and finally the appointing authority.

The first submission concerns the allegedly mistaken assessment of the merits and qualifications of the persons eligible for promotion. The various bodies taking part in the promotion procedure, in particular the appointing authority, are said to have taken into account neither all the merits of the people concerned, nor the full extent of their files. In particular they are said to have overlooked the difference in standard between Christiane Hoffmann's diploma and that of Mrs G., which is of a much lower level.

This submission, as clarified in the reply and in the oral procedure, in fact consists of two elements.

The second submission relates to the infringement of Article 45 of the Staff Regulations, which provides, in particular, that promotion shall be ... after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

The infringement of that provision is said to arise from:

The failure of the Instance Zéro to examine the personal files of officials eligible for promotion, in particular the periodic reports held in those files;

The failure of the Promotion Committee of First Instance to carry out a comparative examination either of the merits of the officials eligible for promotion or of their periodic reports and personal files containing those reports;

The failure of the Committee of Second Instance to carry out such an examination;

The appointing authority's failure to examine the personal files.

For those reasons I propose that the Court:

Dismiss the applications;

Pursuant to Article 70 of the Rules of Procedure, order the Commission to bear its own costs.

1 Translated from the French.

2 This is universally accepted even though it does not appear expressly from any particular provision.

3 Case 24/79 Oberthür y Commission [1980] ECR 1743, at p. 1759.

4 Judgment given on 5 December 1963 by the First Chamber of the Court in Joined Cases 35/62 and 16/63 Leroy v High Authority [1963] ECR 197, at p. 207.

5 Most recently in a judgment given by the Third Chamber on 3 December 1981 in Case 280/80 d'Aloya, née Bakke, v Council [1981] ECR 2887, at p. 2898, paragraph 10 of the decision.

6 For exampie Judgment of 19 March 1964 in Case 27/63 Raponi v Commission [1964] ECR 129, at pp. 138 and 139.

7 Judgment of the Second Chamber of 18 December 1980 in Joined Cases 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, at pp. 3954 and 3955, paragraphs 22 and 23 of the decision.

8 Judgment of the Second Chamber on 30 September 1982 in Case 108/81 Amylum v Council [1982] ECR 3107, at paragraph 25 of the decision.

9 Article 3, third paragraph, of the General Provisions: The Committees' proceedings shall be secret.

10 Judgment of 30 september 1982, already cited.

11 Third recital in the preamble to the decision of 27 November 1980.