OPINION OF MRS ADVOCATE GENERAL ROZÈS

DELIVERED ON 8 JULY 1982 (*1)

Mr President,

Members of the Court,

The application now before the Court has been brought by Dominique Noëlle Oberthür against the Commission of the European Communities for the annulment of various decisions concerning, in the first place, her periodic reports and, secondly, her assignment to Directorate General VII.

The facts are as follows :

1.By a previous application, Case 24/79, the same Commission official, who works in Brussels, challenged the procedure for promotions to Grade B 2 for 1978.

By judgment of 5 June 1980, the Court (First Chamber) ordered the Commission to pay the applicant the sum of BFR 20000 by way of damages, together with costs.

The Court based its judgment on the consideration that the applicant's periodic report for the period from 1 July 1975 to 30 June 1977, which should, in accordance with Article 43 of the Staff Regulations, have served as a basis for comparing the relative merits of officials eligible for promotion, had not been compiled in due time, unlike those of her colleagues.

Later, by a memorandum dated 4 July 1980, the appeal assessor upheld the periodic report of 4 April 1979 without amendment.

In this application, Dominique Oberthür calls in question the circumstances in which that report was compiled. She contends, in particular, that her assignment, which determines the authority competent to assess her, was changed with retroactive effect, thereby precluding an appraisal by the person who ought logically to have been her assessor and who was competent by virtue of her defacto assignment.

I would observe in limine that the applicant seems to lack a legitimate interest in submitting this fresh application. If there are any defects in her final periodic report, they cannot lead to any consequences other than those already resulting from the delay in the compilation of that report.

The Court considered all the consequences stemming from the fact that the report was not drawn up in time when, instead of accepting the applicant's claims for annulment in Case 24/79, it found the Commission guilty of a wrongful act or omission.

In paragraph 13 of its decision, the Court considered that the annulment of the promotions of the officials in fact promoted would constitute an excessive penalty for the irregularity committed and, in paragraph 14 of the decision, that the award of damages constituted in that case the form of compensation which best met both the applicant's interests and the requirements of the department.

In paragraph 15 of the decision, the Court added that “in assessing the damage suffered it is right to bear in mind that the applicant will be able to take part in the next promotion procedure which the Commission will take care to conduct in accordance with the rules”.

The Commission acted on those words since, by decision of 24 November 1980, it promoted Dominique Oberthiir to Grade B 2, Step 3, as from 1 January 1980.

Therefore, even in its fourth and final version, the applicant's periodic report for 1975 to 1977 did not impede the subsequent development of her career. Her rights have been respected in their entirety.

2.However, certain submissions put forward by the applicant in her fresh application are in themselves significant and I shall consider them from that point of view alone.

In support of her application for annulment the applicant contends in particular that:

1.The authority competent to compile an official's periodic report must be determined not by the de jure assignment but rather by the de facto assignment of the official.

2.Even if the de jure assignment is decisive, it cannot result from a retroactive decision.

The question arises whether it is the de facto or the de jure assignment which is to determine the authority competent to draw up an official's periodic report.

I am inclined to take the view that the first solution is to be preferred, in particular where, as in this case, the official concerned spent only four months over a period of two years working in the Directorate General to which she was officially assigned.

The fact that in the Guide to Staff Reports, adopted by the Commission on the basis of Article 43 of the Staff Regulations, the second solution was adopted in the version in force for the period concerned is not a decisive factor.

The Guide to Staff Reports used by the Commission has moreover been amended in that respect.

Although the text in force in July 1975 specified that the difficulties involved in the selection of a competent assessor “must be solved by reference in each case to defacto or de jure situations”, the text in force as from September 1979 states that “these problems must be solved on the basis not only of the legal position but also of practical situations” (Point B122). The following sentence in Point B 1222 is omitted from the version adopted in September 1979: “For both legal and practical reasons, it is the official position of the person assessed which must determine the procedure to be followed, and not his de facto position.”

I seems more appropriate to proceed on the basis of the position actually held by an official rather than on the basis of his official position.

I am quite prepared to accept that, on grounds of expediency or in order to simplify matters, the official assignment of an official takes precedence in certain cases over his de facto assignment, on condition however that the official assignment was the result of a decision lawfully adopted during the period of assessment.

As Mr Advocate General Mayras pointed out in his Opinion of 27 March 1980, since the decision of 29 December 1976 assigning Dominique Oberthiir, “a temporary servant in Grade B 3”, and the post which she occupied in Career Bracket B 2-B 3 to Directorate General VII (Transport) was vitiated by certain errors, a fresh decision was adopted on 13 December 1978 terminating the applicant's temporary assignment to Directorate General V, Directorate B (European Social Fund), on 17 October 1975 and reassigning her to Directorate General VII (Transport), with retroactive effect from 1 December 1976.

I cannot accept that the identity of the competent assessor should be determined by such a retroactive reassignment, when the effect of that reassignment was to designate an assessor (the assistant to the applicant's head of division instead of the head of the division himself) who, according to the evidence before the Court, was not particularly well-disposed towards the applicant.

If the Court considers that those two submissions put forward by the applicant still merit consideration, I would propose that the Court accept them but confine the consequences of such acceptance to an order that the Commission is to pay the costs.

* * *

(*1) Translated from the French.