OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 21 MAY 1976 (1)

Mr President,

Members of the Court,

The proceedings which Mr de Wind has brought against the Commission of the European Communities, of which he is an official, deal with problems concerning the promotion of officials to the next higher grade in their career bracket.

Under Article 45 of the Staff Regulations promotion shall be by selection from among officials who have completed a minimum period in their grade ‘after’, Article 45 goes on the say, ‘consideration of the comparative merits of the officials eligible for promotion and of the reports on them’.

In order to ensure as uniform an application as possible of this very general provision the Commission issued a decision in December 1970 concerning the procedure to be adopted for promotions within a career bracket. According to this decision, which was amended in July 1971, Promotion Committees, some of the members of which are appointed by the Central Staff Committee of the Commission, shall be set up for the various categories of officials. On the basis of a list containing the names of all officials eligible for promotion because of their length of service on 31 December of the current year, on the strength of their personal files and also having regard to the reasoned recommendations for promotion by the Directors-General, the Committees prepare the draft of another list in which the officials best qualified for promotion are named in alphabetical order. When the Committees determine the number of officials to be placed on this last list they must take into consideration the prospective budgetary possibilities i.e. they can name about 25 % more officials as candidates for each grade than the number of actual posts vacant. The appointing authority, which in the case of the promotion of officials in Grade A 5 is the Commission, on the basis of the lists drawn up by the Committees, to which reasoned reports are annexed, itself establishes the list of officials best qualified for promotion and notifies the members of the staff concerned of it. The individual decisions on promotion are therefore taken in accordance with this list.

The Committee which has to express its opinion on officials in Grade A 5 eligible for promotion, must adopt a specific method of assessment, which was laid down by the Commission on 18 June 1973. This prescribes how many points must be given having regard to the recommendations for promotion made by the Directors-General and how the reports made under Article 43 of the Staff Regulations, the curriculum vitae, length of service, age and also inclusion in earlier lists of officials recommended for promotion are to be evaluated. It is in addition expressly provided that other criteria, which cannot be exhaustively enumerated and for which no weighting can be provided, may be taken into account.

The applicant, who entered the service of the Commission as a Scientific Officer on 14 September 1964 and was appointed on 1 October 1964 to Grade A 5, was entered by his Director-General on the abovementioned list of officials recommended as deserving of promotion. He was placed sixth of the twelve officials of the Directorate-General eligible for promotion named on this list which was published in the Staff Courier of 4 July 1974. When the Promotion Committee for officials in Category A, which held various meetings irr July and October 1974, examined the officials eligible for promotion it only gave the applicant a total of 106 points because under the beforementioned method of assessment applicable to officials in Grade A 5 he could not be awarded any additional points for his place on the list of names of officials recommended for protion prepared by the competent Director-General. This number of points was not enough to win a place on the list drawn up by the Promotion Committee on which the names of 66 officials only could be entered, since there were only 55 available posts in Grade A 4. The draft prepared by the Promotion Committee of a list of officials deserving of promotion, all of whom required at least 130 points, was then considered by the Commission at a meeting on 23 October 1974. When the list, which was published on 28 October, was settled the number of officials deserving of promotion was increased to 69; but the applicant was not one of them. Accordingly he was not considered when the decisions for the promotion of 55 officials in Grade 5 were taken on 20 November 1974. But two other officials from the applicant's Directorate-General, Mr E and Mr P, whose names were on the list drawn up by the Promotion Committee, were promoted.

The applicant takes the view that the procedure for promoting officials was not carried out correctly in 1974. On 17 December 1974 he therefore lodged a formal complaint with the appointing authority concerning his exclusion from the list of officials qualified for promotion. No reply to this complaint was received within the period of four months provided by Article 90 of the Staff Regulations. The applicant apparently was only notified of a decision expressly rejecting the complaint by a letter dated 22 May 1975.

In view of this situation the applicant appealed to the Court on 14 July 1975. He claimed that the Court should declare the following measures to be null and void:

—the list of the officials in Grade A 5 qualified for promotion which was published on 28 October 1974;

—the decision to enter the names of the officials P and E on the said list;

—the decision promoting these two officials to Grade A 4;

—the implied decision rejecting the complaint made by the applicant on 17 December 1974.

In examining these claims three issues call for investigation in view of the arguments advanced by the applicant.

First the question has to be considered whether the procedure for promoting officials laid down by the Commission can be criticized on the ground that it gives Directors-General a right to recommend officials for promotion which carries considerable weight.

In the second place it is necessary to examine the question whether objection must be taken to the particular way in which the right to recommend officials for promotion was exercised in 1974.

Finally it is in the third place necessary to consider the objection that when the Commission drew up the promotion list and the promotion decisions based on it it disregarded the provisions of the Staff Regulations.

With regard to the first point which has to be considered the applicant does not — if I have correctly understood him — object to the fact that recommendations of Directors-General play any part in the procedure for promoting officials.

In fact it also has to be acknowledged that it is eminently reasonable to adopt this practice within an organization as large as the Commission. In this institution the competent appointing authority — which for the promotion of officials in Grade A 5 is, as I have already mentioned, the Commission itself — does not have the requisite information concerning all officials, who come into consideration for promotion. On the other hand Directors-General are familiar with the situation in the Directorate which they run in particular because of their close collaboration with their subordinate heads of department. This means that the recommendations for promotion of the Directors-General not only constitute valuable information over and above the equally important reports made under Article 43 of the Staff Regulations which certainly do not elucidate all the important factors; the recommendations for promotion operate as it were as a useful counterweight to these reports, which in the nature of things are not drawn up in exactly the same way and with reference to exactly the same criteria.

The applicant's criticism is directed rather to the absence of any objective criteria for making recommendations for promotion and the points for assessment to be obtained from this source. Moreover the applicant takes the view that the making of recommendations for promotion is not preceded by an adequate consideration of the comparative merits of the candidates for promotion.

I do not consider this criticism to be well founded.

Directors-General are obliged to establish an order of priority for the purposes of their recommendations for promotion. Further it is clear from the hearing of the witnesses that Directors-General when making their recommendations rely on the reports made under Article 43 of the Staff Regulations, that in addition they take into account the recommendations of their heads of department or other persons who are in a position to give a material judgment and that as far as possible they endeavour to make their own assessment. It is in my opinion also important to note that before recommendations for promotion are made in the Directorates-General there are discussions with the various heads of department which help to clarify the value to be placed on the recommendations for promotion made by the individual heads of department. I therefore heve no reason to doubt that a consideration of the comparative merits of the officals eligible for promotion within the meaning of Article 45 of the Staff Regulations precedes the making of the recommendations. That the applicant was also included in this assessment follows moreover from the fact that his name is also on the list of proposals for promotion of Directorate-General V: even if it was not very high on the list.

On the other hand, so far as the lack of any objective criteria for making recommendations for promotion by Directors-General and also for the acceptance of additional factors for assessment are concerned, there is in my view no such deficiency because the criteria which call for consideration in this connexion cannot be exhaustively enumerated and also can hardly be quantified. In particular it must not be forgotten — I refer on this point to the Opinion in Joined Cases 25 and 30/64, Fulvio Fonzi v Commission of the European Atomic Energy Community ([1965] ECR 512) —that ‘promotion is … justified … also by other subjective facts that are considered concerning the character and the personality of officials’, that is to say, by factors for which it is clearly impossible to lay down objective criteria for their evaluation. In addition to this it must be said — and this seems to me to be particularly significant — the fact that the procedure for promoting officials is organized in such a way that recommendations for promotion do not only represent the subjective assessment of the Directors-General. Thus we have heard that recommendations are made after discussions between the Directors-General and their heads of department. Furthermore it is a matter of crucial importance that the recommendations are published before the first meeting of the Promotion Committee so that the officials concerned have the opportunity to make representations to the Committee. Moreover the Promotion Committee has a general right to ask for additional information and to effect changes in the recommendations. It is in precisely this way, i.e. with the help of the right of the Promotion Committee, on which, as I have already mentioned, staff representatives sit, to check the recommendations, that provision is undoubtedly made for an appropriate coordination of the recommendations for promotion.

To sum up the conclusion must be that the arguments submitted in connexion with the first head of the applicant's conclusions to the extent to which they relate to the actual system adopted for making recommendations for promotion, are not valid.

The next question to be considered is whether the particular way in which the recommendations for promotion in Directorate-General V were made in 1974 can be criticized. In this connexion there are three facts which have to be considered:

—the fact that official E was placed at the top of the list of officials recommended for promotion,

—the fact that official P was also preferred to the applicant and

—the fact that the applicant was only placed sixth on the list of recommendations, a place which held out no prospects of promotion.

(a)

The applicant first of all objects to official E being placed on the list of officials in Directorate-General V recommended for promotion with reference to the fact that at the time this official's length of service in Grade A 5 only amounted to three years. In the second place the following factor is said to be of prime importance, namely that the last report on this official, which is also material for the purposes of promotion, does not cover a period of two years, namely from 1 July 1971 to 30 June 1973, but only a shorter period, since official E was only appointed to Grade A 5 on 1 October 1971.

I am convinced that these two factors are not such as to render defective the recommendation for promotion.

A short period of service in Grade A 5, which, like the age of that official (54) and his entire period of service (13 years), is plainly a material factor under the method of assessment which has been described certainly does not necessarily preclude such an official from being given an excellent position on the list of officials recommended for promotion. As we heard during the oral procedure the reasons why this official was ranked so high were rather his exceptional achievements and the importance of his duties. These are undoubtedly considerations — there is nothing more to be said about them because we cannot replace value-judgments of this kind — which are in substance justified. In any event the applicant does not dispute in any way the correctness of this evaluation.

With regard to the last report on official E it must indeed be accepted that he did not complete two years' service in Grade A 5. However I consider this to be of no consequence, because only a few months are missing, some of which were covered by periods of holiday. What is more — the recommendations of officials for promotion were not made until June 1974 — it was possible for his superiors to give a supplementary opinion in respect of the period commencing after 30 June 1973. Therefore it cannot by any means be said that the recommendation for promotion was not based on solid grounds.

With reference to the way in which official P was dealt with on the list of officials recommended for promotion, the applicant calls attention to the fact that in the last relevant periodical report he was only given the rating ‘very good’ twice and the rating ‘good’ once, whereas the applicant was rated ‘very good’ under all three headings. The applicant moreover stresses that this official was to begin with placed fifth of the officials recommended for promotion, a place which holds out no promotion prospects, and was only put into third place thanks to the intervention of the members of the Promotion Committee having regard to his age (54).

As to the first part of this argument it should not be forgotten that the last reports for the period from 1 July 1971 to 30 June 1973 did not cover the whole period to which the recommendations for promotion to be made in June 1974 applied. It is also a matter of importance that promotion under Article 45 of the Staff Regulations is not only determined by the said reports. In addition promotion can depend upon factors — I draw the Court's attention again to the Opinion in Joined Cases 27 and 30/64 — upon which the reports are silent. Further it seems to me to be significant that the rating ‘very good’, which is one of the three possible ratings, need not, according to the evidence of the witness Shanks, necessarily always have the same value. In fact it can mean both ‘very good’ and more, for example ‘excellent’, so that it is quite likely that on a close examination of all the relevant factors three ‘very good’ ratings of one official are worth no more than two ‘very good’ and one ‘good’ ratings given to another official.

However it also emerges from the oral evidence that the amendment of the original list of recommendations in favour of official P likewise gives no ground for criticism. I do not consider that it is in principle irrelevant — in any case, so far as this point is concerned, there can be no question of a manifest mistake — when recommendations are made for promotion to the higher grade in a career bracket, to take into consideration the fact that an official who has already completed a long period of service in the lower grade of a career bracket will also reach the age-limit in a few years time. At least this aspect can be emphasized if there are several candidates for promotion whose achievements are approximately the same. This, however, was the situation in the case of the said official P and the applicant who is much younger. In accordance with the method of assessment laid down by the Commission they both received, disregarding the recommendations for promotion of the Director-General, exactly the same number of points. Moreover the witness Shanks stated that when he checked the position with the applicant's immediate superior, who had also been the superior of official P, he learned that, if there were any differences in quality between these two officials, they were not such that it was necessary to recommend the applicant for promotion instead of official P.

Finally, with regard to the unfavourable place assigned to the applicant on the list of officials of Directorate-General V recommended for promotion, in my opinion all that is necessary in the first place is to state that it has not been shown in what way the assessment of the applicant's merits when the recommendations for promotion were made was wrong. However this would be necessary, because we cannot during the proceedings before this Court replace the value-judgments of the competent Director-General with others. In the second place the Commission has denied that it is the practice as regards promotions to prefer those officials such as the applicant who were given the rating ‘very good’ three times and had already advanced to the last step in their grade. This seems to me to be understandable, since it is scarcely conceivable that there could be any place for this kind of automatic procedure (in the practice adopted as regards promotions), which would go a long way towards abolishing the freedom of evaluation and the appointing authority's right of selection which has its roots in Article 45 of the Staff Regulations.

All things considered, it can accordingly be stated that the criticism of the way in which officials in Directorate-General V were recommended for promotion in 1974 is unfounded.

Finally it only remains to deal with the criticism directed against the conduct of the appointing authority itself, that is to say the Commission. The Commission is said — this is the applicant's view — not to have undertaken when drawing up the final list of the best qualified officials in Grade A 5 for promotion, a consideration of the comparative merits of all the officials who came into consideration and to have restricted itself to an assessment of those officials whom the Promotion Committee had placed on its list. In addition the Commission is said to have failed to consider the periodical reports made under Article 43 of the Staff Regulations. As these do not amount to any substantive criticism but rather to expressions of doubts and the raising of questions I am content to submit just a few observations on these matters.

The Commission explained in the course of the proceedings; in answer to the applicants criticism, that, when it settled the list of officials best qualified for promotion, it had before it not only the draft list drawn up by the Promotion Committee but also the list of all officials eligible for promotion and all the recommendations of the Directors-General. Moreover it can be inferred from the minutes, which the Commission has produced, of the decisive meeting that the Commission had the opportunity of checking the personal files and periodical reports of all candidates for promotion and that the ‘comparative merits of the officials eligible for promotion’ were considered as prescribed by Article 45. Indeed as a result of carrying out this check further names were in fact added to the promotion list which the Promotion Committee had settled.

In such circumstances and in view of the fact that the applicant could not in any way substantiate his view that the expressions used in the minutes of the meeting of the Commission represented standard formulae devoid of any meaning, I see no cause to accuse the Commission of disregarding Article 45 of the Staff Regulations when it settled the promotion list and made the decisions on promotion.

In view of the foregoing I can only suggest that the application be dismissed in its entirety as unfounded. The decision as to costs must follow Article 70 of the Rules of Procedure since no exceptional circumstances have come to light which could justify any departure from the provisions of this article.

(1) Translated from the German.