JUDGMENT OF 17. 3. 1983 — CASE 280/81 HOFFMANN v COMMISSION

In Case 280/81

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: S. Rozès Registrar: H.A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Written procedure

III — Conclusions of the parties

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

A — Admissibility of the application

B — The substance

1. The assessment of the qualifications and merits of the candidates

2. Article 45 (1) of the Staff Regulations

3. The conclusions in the application

V — Oral procedure

Decision

Costs

I —. Facts

II —. Written procedure

III —. Conclusions of the parties

(1). Declare null and void:

(2). Concurrently or alternatively,

(3). Order the defendant to pay the costs.

(a). Dismiss the application as unfounded; and

(b). Order the applicant to pay the costs.

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

A —. Admissibility of the application

B —. The substance

1. The assessment of the qualifications and merits of the candidates

(a). Both the committees responsible by virtue of the General Provisions for submitting to the appointing authority the list of officials most deserving of promotion and the appointing authority itself failed adequately to appreciate the fact that the applicant's librarianship studies were more advanced in every respect than those, of a significantly lower level, completed by Mrs G., the official directly in competition with her.

(b). Any promotion procedure, if the posts which are available are fewer than the number of officials eligible for promotion, necessarily entails an element of competition between the officials and other servants of whom a list is to be submitted to the appointing authority.

(c). The applicant certainly does not claim that she should have been promoted in preference to Mrs G., but merely that a promotion procedure in the course of which neither the authorities provided for in the General Provisions nor the appointing authority itself took into account the merits of those eligible for promotion or all the contents of the file is an irregular procedure; as such, it must incur the censure of the Court.

(d). The Commission relies on the decisions in which the Court held that it was not entitled to substitute its own judgment for a subjective assessment made by the administration; yet the Commission itself is proposing to do the same, anticipating the decision of the preparatory committees and of the appointing authority, which had, in fact, been fully and accurately informed.

(e). It is not sufficient for the Commission to assert that the committees and the appointing authority took account of all relevant factors; it must substantiate that assertion.

(a). The very manner in which it is formulated indicates a lack of acquaintance with the principles governing the promotion procedure.

(b). In any case the comparison in no way indicates that the applicant ought to have been promoted in preference to MrsG.

(c). Merely in the alternative, the Commission points out that, although Mrs G.'s qualification does in fact appear to be of a lower level than that of the applicant, both qualifications give equal access to Category B and were acquired in 1965, that is to say, 15 years before the promotion procedure at issue.

(d). The applicant's submission that the authorities did not appreciate the respective values of her qualification and that of Mrs G. is not correct.

(e). The fact that the applicant obtained her qualification 15 years before the promotion procedure in question is not irrelevant.

2. Article 45 (1) of the Staff Regulations

(a). Article 42 (2) of the Rules of Procedure permits that fresh issue to be raised, as it is based on documents of which the applicant had no knowledge until the proceedings had commenced.

(b). The joint working party responsible for making a preliminary examination with regard to promotion (known as Instance Zéro) drew up a list of officials to be promoted, but it has not been established that it examined the reports and the personal files relating to those officials, which is an essential precondition for a full and impartial comparative examination of the merits of the officials.

(c). The various bodies charged with carrying out the preparatory work are themselves bound to proceed in the manner laid down by Article 45 of the Staff Regulations; the discretion enjoyed by the appointing authority and, by corollary, by the other authorities, has as its counterpart a duty to carry out a comparative examination of the merits of the officials eligible for promotion and of the reports on them. It would appear, however, that the committee of second instance did not observe the requirements laid down in that respect by the Court of Justice.

(a). The raising of this issue is contrary to Article 42 (1) of the Rules of Procedure.

(b). Considered in the light of the various stages which occur in the promotion procedure, the submission is unfounded in each of its three parts.

3. The conclusions in the application

V —. Oral procedure

1. By an application lodged at the Court Registry on 26 October 1981 Christiane Hoffmann, an official at the Commission of the European Communities in Grade B 4 employed as a member of the technical staff (librarian) in the Library and Documentation Department of the Joint Research Centre atlspra, brought an action for the annulment of the implied decision of the Commission refusing to promote her to Grade B 3. Concurrently or in the alternative the applicant seeks the award of damages.

2. According to the file the applicant, together with 121 other officials paid from research appropriations, satisfied in 1980 the conditions for promotion to Grade B 3, whereas the budget allowed for no more than nine posts. She was not selected either by the promotion committees provided for in the General Provisions to give effect to the procedure for promoting staff paid from research appropriations, adopted by the Commission with effect from 1 January 1977, or by the appointing authority, which, on 19 November 1980, adopted a decision with regard to all the promotions in accordance with the proposals put forward by those committees.

3. After writing various memoranda to those concerned in the promotion procedure and submitting to the appointing authority a complaint under Article 90 of the Staff Regulations which produced no result, the applicant brought an application supported originally by a single submission based on Article 5 (3) of the Staff Regulations, namely that the committees responsible for preparing the lists for promotion and the appointing authority failed to make a proper assessment of the applicant's qualifications and merits, in particular the value of her librarianship qualification, compared especially with another candidate who was employed, like herself, in library work, but whose qualification was of a considerably lower level than her own.

4. After the Commission had produced, in the annex to its defence, the minutes of the meetings of the various promotion committees and the full text of the decision of the appointing authority, the applicant amplified her arguments in the reply, alleging that both the committees and the appointing authority had failed to fulfil their obligation to examine with care her own personal file and those of the other candidates, contrary to the requirements of Article 45 (1) of the Staff Regulations, which demands a consideration of the comparative merits of the officials. The documents, she maintains, indicate that the personal files were made available to the committees and the appointing authority but it is not shown that they were actually consulted with the requisite attention, a fact to which the injustice in her case must be attributed.

5. The submissions put forward by the applicant call for the following observations, without its being necessary to consider the Commission's objection that the fresh issues raised in the reply are out of time.

6. The information supplied by the parties as to the proceedings of the promotion committees and the circumstances in which the impugned decision of the appointing authority was adopted indicates that the promotion procedure was carried out in accordance with the rules laid down in the Staff Regulations and the relevant internal provisions.

7. The participation of several joint committees in the promotion procedure, the review of the decisions of the committee of first instance by an appellate committee before any decision is taken by the appointing authority and the opportunity given to the officials concerned to submit their comments to those responsible for conducting the procedure, an opportunity of which the applicant took advantage, ensure for all those concerned that their merits will be the subject of a thorough and objective examination and of a comparison with those of other candidates. It is not contested in this instance that the personal files of the officials concerned were made available to the promotion committees and to the appointing authority. However, it would be unreasonable to require the committees and the appointing authority to explain in each case the use which they made of the information available to them.

8. Since the applicant has adduced no serious evidence giving reason to suppose that the promotion committees or the appointing authority allowed themselves to be influenced by considerations irrelevant to the assessment of the merits of the candidates and the interests of the service, her arguments cannot be accepted.

9. As regards the submission based on the failure to appreciate the comparative value of the applicant's qualification, it must be stated that considerations of that nature may be of significance when officials are recruited, established or even placed in a different category, as was the case when the applicant was appointed to Grade B on 3 October 1966. In the case of subsequent promotion, however, other factors must be taken into account when the merits of officials eligible for promotion are compared, in particular the general quality of the work which they have performed in carrying out their duties.

10. The applicant cannot, therefore, take issue with the fact that among the officials selected for promotion was someone whose qualification was, in her estimation, inferior to her own. Apart from the dispute as to the comparative value of the qualifications, the applicant has failed to adduce any evidence indicating that the judgment of the authorities may have been distorted by considerations unconnected with the criteria laid down in Articles 5 and 45 of the Staff Regulations.

11. The claim for annulment of the decision of the appointing authority must therefore be dismissed. As a result of the dismissal of that claim, the claim for damages must likewise be dismissed.

12. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. However, Article 70 of the Rules of Procedure provides that, in proceedings by servants of the Communities, the institutions are to bear their own costs.

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

1 Dismisses the application;

2 Orders each party to bear its own costs.