Opinion of Advocate General

Mr President,

Members of the Court,

1. On 15 February 1992 an appeal was brought before the Court by Mr Moritz (hereinafter the appellant) under Article 49 of the Statute on the Court of Justice against the judgment of the Court of First Instance (Fifth Chamber) of 13 December 1990 on Case T-20/89 Moritz v Commission (hereinafter the contested judgment).

2. The plan of this Opinion is the same as that of the contested judgment and the appeal. I shall consider all the appellant's grounds of appeal at least in so far as they do not overlap or repeat themselves.

Maladministration allegedly arising from a manifest error of assessment or a misuse of power

3. The appellant has put forward six grounds of appeal against this part of the contested judgment. He maintains that the Court of First Instance wrongly held that it is bound to review only those aspects of the procedure which were manifestly irregular (see section 4 below). He also claims that the Court of First Instance incorrectly described the manner in which events unfolded before the Consultative Committee (see section 5 below), wrongly refused the appellant's request for the production of certain documents (see section 6 below) and did not respond to some of his arguments relating to whether the candidate selected (Mr Engel) was suited to the post to be filled (see section 7 below). Lastly, he maintains that the Court of First Instance should have held that the appointment decision was vitiated by maladministration. The Consultative Committee never informed the Commission that the appellant satisfied all the appointment criteria with the exception of only one and it never ascertained whether Mr Engel also satisfied them (see section 8 below). In addition, the appellant was not heard until after the appointment decision was taken (see section 9 below).

4. In paragraph 29 of the contested judgment, the Court of First Instance stated as follows:

5. As regards the allegedly incorrect manner in which the Court of First Instance described the procedure before the Consultative Committee, I would refer to that which that court stated in paragraph 31 of the contested judgment:

6. The applicant further complains that, in the contested judgment, the Court of First Instance did not consider his request for the production of Mr Engel's personal file and applications. In this connection, it must be pointed out that it is in the discretion of the Court of First Instance to decide whether or not a case necessitates measures of inquiry. The parties cannot make demands, only suggestions. It is for the Court of First Instance to decide whether or not it needs supplementary information that the measures of inquiry would afford and it is not under a duty to give reasons for its decision on this point.

7. The appellant goes on to complain that the Court of First Instance did not consider certain arguments relating to Mr Engel's aptitude, thereby failing to fulfil its obligation to state reasons.

8. According to the appellant, the Court of First Instance should have held in the contested judgment that the Consultative Committee's opinion was doubly vitiated by two instances of maladministration, namely the opinion did not state that the appellant satisfied all the criteria for appointment with the exception of one and it also did not show that the Committee had checked that Mr Engel also satisfied those criteria. In each case, the Court of First Instance should have examined the appellant's arguments.

9. Lastly, the appellant argues, without being contradicted by the defendant, that he was not given a hearing until after the appointment decision had been taken. In his view, such an interview should have been held before any appointment decision was taken, a fortiori in a situation in which the personal file of one of the interested parties was incomplete because it lacked one or more periodic reports.

10. On that ground, I have reached the conclusion that none of the grounds of appeal raised by the appellant against that part of the contested judgment are well founded.

Maladministration allegedly arising from an infringement of Article 27 and Article 28 of the Staff Regulations

11. The appellant raises two grounds of appeal against the decision of the Court of First Instance that Mr Engel's appointment involved no infringement of Articles 27 and 28 of the Staff Regulations. He states, in the first place, that those articles were in fact infringed (see section 12 below) and, secondly, that the contested judgment is insufficiently reasoned (see section 13 below).

12. The Court of First Instance found — and this is not contested by the parties — that Mr Engel, originally a German national but who assumed Canadian nationality, had re-acquired his German nationality before taking up his duties, as the Commission had required of him (paragraph 36 of the contested judgment).

13. The appellant further argues that the Court of First Instance did not give sufficient reasons for the passage of its judgment in which it declares that Articles 27 and 28 of the Staff Regulations have not been infringed. That passage is, he claims, too brief and, furthermore, does not mention Annex III to the Staff Regulations, to which I referred above.

14. Consequently, I conclude that those grounds of appeal must also be rejected as unfounded.

Maladministration allegedly arising from an infringement of the duty to have regard to the interests of officials and to show loyalty

15. Most of the appellant's arguments under this head are mere repetitions of grounds of appeal set out elsewhere. Thus, he argues once again that the merits of the various candidates were not subjected to an objective comparison, that the Commission committed a manifest error of assessment, that he was not heard until after the appointment decision was taken, that he was nevertheless better qualified for the post to be filled, etc. I have already considered those arguments.

16. In the alternative, the appellant adds as follows:

17. For this the reason, I consider that that ground of appeal should be rejected as unfounded.

Maladministration allegedly arising from the delay with which the appellant's periodic report was drawn up

18. The following is stated in the contested judgment under the heading The maladministration allegedly consisting in the late preparation by the appointing authority of the applicant's periodic report:

19. The contested judgment states that the fact that the appellant's periodic report was drawn up late does not constitute maladministration because it was not proved that that factor affected the candidate's chances of promotion. In other words, the judgment holds that there was no maladministration because no causal link was shown between the fault and the damage.

20. I therefore conclude that the Court should set aside the part of the contested judgment in which the Court of First Instance held that the fact that the periodic report for 1983-1985 was drawn up late was not capable of having any effect on the appellant's chances of being promoted to the post in question, and that, as a result, did not constitute maladministration on the part of the Commission.

The claim for compensation for the material and non-material damage allegedly suffered

21. In paragraph 42 of the contested judgment, the Court of First Instance holds that none of the complaints advanced by the applicant in order to demonstrate the existence of a wrongful act committed by the Commission can be upheld and concludes that the claim made in the application for compensation for material damage must be rejected. As I have already mentioned, the Court of First Instance gave defective reasons for its finding that the late drawing up of the appellant's periodic report for 1983-1985 was not maladministration. Consequently, I consider that the rejection in the contested judgment of the appellant's claims for compensation of material damage must also be set aside as lacking sufficient grounds.

22. Apart from compensation for the material damage which he allegedly suffered as a result of Mr Engel's appointment, the appellant asked the Court of First Instance also to hold that he was entitled to compensation for non-material damage because, during the procedure which culminated in Mr Engel's appointment, the Commission took a decision on his career in the absence of the relevant periodic reports. After referring to the consistent case-law of the Court and of the Court of First Instance, the Court of First Instance dealt with that claim for non-material damage separately in paragraphs 43 to 51.

23. The appellant objects — rightly, in my view — that that part of the contested judgment is vitiated by defective grounds. In the two judgments, which, by reason of their subject-matter, relate to two different cases, the Court of First Instance wrongly applied in an identical manner the rule that an official who has contributed considerably to the delay of which he complains in the drawing up of his periodic report is not entitled to compensation for the non-material damage which he alleges he suffered.

24. I therefore conclude that the rejection by the contested judgment of the appellant's claim for compensation for non-material damage is also vitiated by defective grounds and should therefore be set aside.

The further resolution of the case

25. It appears from the factors which I have just described that the contested judgment should, in my view, be set aside because it has defective grounds in two respects: on the one hand, the conclusion that the fact that the appellant's periodic report for 1983-1985 was drawn up late does not constitute maladministration and that therefore the appellant's claim for compensation for non-material damage should be rejected is based on considerations relating solely to the absence of a causal connection (see sections 19 and 21 above); on the other hand, the judgment dismissed the appellant's claim for non-material damage on account of the fact that his periodic report was drawn up late on the basis of a consideration which has nothing to do with the period at issue in this case (see section 23 above).

26. I therefore conclude that, in accordance with Article 54 of the Protocol on the Statute of the Court of Justice, this case should be referred back to the Court of First Instance for judgment.

Costs

27. The appellant considers that the decision of the Court of First Instance ordering the parties to bear their own costs is invalid. He claims that, in making that order, the Court of First Instance did not take account of the requirements of the second subparagraph of Article 69(3) of the Rules of Procedure of the Court of Justice, which, at the time when the contested judgment was delivered, was applicable mutatis mutandis to proceedings before the Court of First Instance. That provision reads as follows:

28. Under the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, it is to make a decision as to costs where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case. Since neither of those eventualities arises in this case in my view, I propose that the Court should reserve the costs.

Conclusion

29. Having regard to the foregoing considerations, I propose that the Court should decide as follows:

1 Original language: Dutch.

2 Judgment in Case T-20/89 Moritz v Commission [1990] ECR II-769.

3 Sec section 7 of the appeal.

4 See, for example, the judgments in Case 280/80 Bakke-D'Aloya v Council [1981] ECR 2887, paragraph 10, in Case 298/81 Colassi v Parliament [1983] ECU 1131, paragraph 20, in Case 282/81 Ragusa v Commission [1983] ECR 1245, paragraph 9, in Case 9/82 Obrgaard and Delvaux v Commission [1983] ECR 2379, paragraph 14, in Case 26/85 Vaysse v Commission [1986] ECR 3131, paragraph 26, in Case 324/85 Bouteiller v Commission [1987] ECR 529, paragraph 6, in Case 306/85 Huybrechts v Commission [1987] ECR 629, paragraph 9, in Case 52/86 Banner v Parliament [1987] ECR 979, paragraph 9, in Case 111/86 Delauche v Commission [1987] ECK. 5345, paragraph 18, in Case T-169/89 Frederiksen v Parliament [1991] ECR II-1403, paragraph 69, in Case C-107/90 P Hochbaum v Commission [1992] ECR I-157, paragraph 8, and in Case T-25/90 Schönherr v ESC [1992] ECR II-63, paragraph 20.

5 According to paragraph 30 of the judgment: Under the procedure provided for in Article 29(1)(a) of the Staff Regulations, the Consultative Committee ... examined the applications and individual files of the candidates(my emphasis).

6 See section 16 of the appeal, from which it also appears that, unlike the appellant maintains (in section 15 of the appeal), the Court of First Instance correctly stated in paragraph 31 of the contested judgment that the applicant has not brought forward any factor to support his assertion that the Director-General may have expressed unfavourable views about him which may have influenced the Consultative Committee.

7 See Article 21 et seq. of the Statute of the Court of Justice, which, according to Article 46 of that statute, is also applicable to the Court of First Instance. See also Article 66 et seq. of the Rules of Procedure of the Court of First Instance of the European Communities of 2 May 1991 (OJ 1991 L 136, p. 13 et seq.).

8 Judgment in Case C-283/90 P Vadränyi v Commission [1991] ECR I-4339.

9 Judgment in Case C-283/90 P Vittimavi v Commission [1991] ECR I-1339, paragraph 31.

10 Sec section 21 of the appeal.

11 Sec section 22 of the appea!.

12 Sec paragraphs 27 and 28 of the appeal.

13 Judgment in Joined Cases 33/79 and 75/79 Kuhner v Com-mission [1980] ECR 1677, paragraph 25.

14 Contrary to that which the appellant seems to think (see section 3 of the reply), compliance with the right to be heard does not mean that there has to be an oral interview. This appears from the judgments cited in the next three footnotes. On the other hand, the official concerned must be enabled to defend his interests properly before any decision is taken and must also be given reasonable notice for him to prepare his defence.

15 See the judgments in Case 228/83 F. v Commission [1985] ECR 275, paragraph 23, and in Case 319/85 Misset v Colincil [1988] ECR 1861.

16 Judgment in Case 19/70 Almini v Commission [1971] ECR 623, paragraph 11.

17 Judgment in Case 34/77 Oslizlok v Commission [1978] ECR 1099, paragraph 30.

18 The appellant denies that the appointing authority is not bound by Annex III where it organizes a procedure on the basis of Article 29(2), on the ground that [I] n a democratic community, the State derives its authority from the people, and the people are unquestionably the subjects of the State and not foreign nationals who may happen to be on its territory (see section 42 of the appeal). Ī do not find that argument at all convincing.

19 Judgments in Kuhner v Commission, cited above, paragraph 22, in Case 191/81 Plug v Commission [1982] ECR 4229, paragraph 21, in Case 321/85 S chwiering v C ourt of Auditors [1986] ECR 3199, paragraph 18, in Case 417/85 Maurissen v Court of Auditors [1987] ECR 551, paragraph 12, in Case T-133/89 Burban v Parliament [1990] ECR II-245, paragraph 2 of the summary, and in Case C-255/90 P Bur-ban v Parliament [1992] ECR I-2253, paragraph 7; order of the Court of First Instance in Case T-14/91 Weyrich v Commission [1991] ECR II-235, paragraph 8 of the summary; judgment in Case T-26/91 Kupka-Floridi v ESC [1992] ECR II-1615, paragraph 44.

20 Judgment in Case 123/75 Küster v Parliament [1976] ECR 1701, paragraph 10.

21 Judgments in Case 125/80 Anting v Commission [1981] ECU 2539, paragraphs 18 and 19, and in Delauche v C ommission, cited above, paragraph 26.

22 See, in particular, section 61 of the appeal.

23 See the judgment in Delauche v Commission, paragraph 30.

24 Judgment in Case T-63/89 Latham v Commission [1991] ECR II-19, paragraphs 32 and 33. See also the judgments in Case 207/81 Diilerid) v Commission [1983] ECR 1359, paragraph 28, and in Case T-27/90 Latham v Commission [1991] ECR II-35, paragraphs 43 and 44. As regards non-material damage, sec the judgment in Bossi v Commission, paragraph 38.

25 See Article 168a of the EEC Treaty and Article 51 of the Protocol on the Statute of the Court of Justice of the EEC.

26 Judgments in Case 61/76 Geist v Commission [1977] ECR 1419, paragraph 44, in Case 24/79 Oherthiir v Commission [1980] ECR 1743, paragraph 8, in Joined Cases 156/79 and 51/80 Gratrean v Commission [1980] ECR 3943, paragraph 22, in Case 263/81 List v Commission [1983] ECR 103, paragraph 25, in Ditterich v Commission, cited above, paragraph 24, and in Case 7/86 Vincent v Parliament [1987] ECR 2473, paragraph 16.

27 Judgment in Ditterich v Commission, paragraph 25. In exceptional circumstances, the absence or periodic reports may be compensated for by the existence of other information on the official's merits (judgment in Gratrean v Commission, paragraph 22).

28 Judgments in T-63/89 Latham v Commission, cited above, paragraph 37, and in T-27/90 Latham v Commission, cited above, paragraph 49.

29 Judgment in Case T-29/89 Moritz v Commission [1990] ECR II-787.

30 See sections 58 and 59 of the appeal and section B of the reply.

31 See footnote 25.

32 See, for example, the judgments in Obertbitr v Commission, cited above, paragraph 11, in Joined Cases 173/82, 157/83 and 186/84 Castille v Commission [1986] ECR 497, paragraph 34, in Case T-73/89 Barbi v Commission [1990] ECR II-619, paragraph 35, and in Case T-68/91 Barbi v Commission [1992] ECR II-2127, paragraph 45.

33 Judgment in Case 1/87 Picciolo v Commission [1988] ECR 711, paragraph 44.

34 Judgments in Castille v Commission, paragraph 34, and in Case T-73/89 Barbi v Commission, paragraph 35.

35 Section 72 of the appeal.

36 Under the third paragraph of Article 11 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities. In the meantime, the second subparagraph of Article 87(3) of the Rules of Procedure of the Court of First Instance, which is applicable in this case, has entered into force.