OPINION OF MRS ADVOCATE GENERAL ROZÈS

DELIVERED ON 24 FEBRUARY 1983 (*1)

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:

(a)of the decision taken by the bodies dealing with promotion (Joint Committees) not to propose to the appointing authority that Christiane Hoffmann should be included in the provisional list of officials considered to be the most deserving of promotion to Grade B 3, which was drawn up on 19 November 1980;

(b)of the decision of the appointing authority dated 27 November 1980 not to include Christiane Hoffmann on the list of officials considered to be the most deserving of promotion to Grade B 3;

(c)of earlier or later measures relating to the promotion procedure in dispute, including promotions actually made, in so far as they may obstruct the reestablishment of her position, in particular the promotion of Mrs G.

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.

I —

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.

1.The Instance Zéro consists of equal numbers of representatives of the staff and of the administration; its task is to carry out a preliminary examination of the merits of all officials eligible for promotion. There is an Instance Zéro at each establishment of the Joint Research Centre and for each programme or action in the framework of “indirect actions”. In this case the Instance Zéro at the establishment at Ispra met on 4 September 1980 and did not include Christiane Hoffmann among the officials to be suggested for promotion to Grade B 3.

The applicant then wrote a memorandum to Mr Ooms, the President of the local staff committee at Ispra, on 12 September, in which she drew particular attention to the value of her diploma and referred to Mr Ooms' promise to submit her file to the Committee of First Instance.

2.The Promotion Committee of First Instance for officials paid from research appropriations and assigned to duties relating to the Joint Research Centre is chaired by its Director General and also includes, in equal numbers, members representing the Commission and members representing the staff. Its task is to draw up a list of administrative officials on the one hand and scientific officials on the other who are considered the most deserving of promotion. There is only one promotion committee of first instance for all staff of the Joint Research Centre, whichever establishment they belong to. At the meeting of that committee on 25 September 1980, Christiane Hoffmann's name was still not put forward.

On 13 November, she therefore sent a memorandum to Mr Baichère, who was at that time Director General for Personnel and Administration and Chairman of the Committee of Second Instance. She explained therein that, according to her information, the suggestion for the promotion of Mrs G. did not come from her superiors but from the local Staff Committee. The Staff Committee based its suggestion on the value of Mrs G. 's qualification and the delay in the development of her career. Those reasons, she maintained, were erroneous. In her view, her qualification was superior to that of Mrs G.; furthermore, the development of her career was even more retarded than that of Mrs G. because of her greater seniority acquired both in the service of the Commission and in her present grade.

3.The Promotion Committee of Second Instance is also a joint committee and must make proposals to the appointing authority. Its jurisdiction covers all staff paid from research appropriations. At its meeting on 19 November 1980 it did not alter the list of officials attached to the Joint Research Centre.

By decision of 27 November 1980 the appointing authority adopted the list of officials most deserving of promotion, which merely reproduced the list drawn up by the Committee of Second Instance. Individual decisions promoting a number of officials named in that list, including Mrs G., followed.

On 19 December 1980 Christiane Hoffmann discovered the omission of her name from the list adopted by the appointing authority; that omission constitutes an act adversely affecting her.

She made the complaint required by the first paragraph of Article 90 (2) of the Staff Regulations on 19 March 1981, that is to say within the three-month period laid down in that provision since the dies e quo is not included in the calculation of that period. (*2)

Her application was lodged at the Court Registry on 26 October 1981, that is to say within three months of the date of expiry of the period prescribed for reply to the complaint as required by Article 91 (3), second indent, if account is taken of the 10 day extension of the time-limit applicable to an applicant whose habitual residence is in Italy (Article 1 of Annex 2 to the Rules of Procedure).

In the light of the foregoing remarks concerning time-limits I consider the action to be admissible.

I may therefore embark on an examination of the two submissions on the substance of the case put forward by Christiane Hoffmann.

II —

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.

1.The first element is based on the uncertainty regarding the examination of diplomas by the promotion authorities, in particular the appointing authority. It seems to me more appropriate to deal with this within the context of the examination of the second submission, which concerns the absence of proof that the promotion committees and the appointing authority did in fact study the personal files of persons eligible for promotion. It is agreed that the diplomas of Mrs G. and of Christiane Hoffmann were available in their personal files.

The second element of this submission is as follows: Even if it is assumed that the promotion authorities did in fact study the qualifications of Mrs G. and the applicant, they did not appreciate the significant difference in the level of those qualifications. In this respect Christiane Hoffmann admits that the promotion authorities were informed of the level of her diploma and were thus in possession of full information relating to her. Her personal file showed that her diploma was equivalent to the technical diploma gained by a person who had undergone higher technical training for two full years in an institution to which entry was, in principle limited to the holders of a certificate of completion of secondary education (“Abitur”). However, she maintains that the authorities did not know the precise value of Mrs G. 's certificate, which, in fact, only confirmed attendance at 90 hours of classes in an establishment open to everybody.

According to Christiane Hoffmann, the promotion authorities did not therefore act with full knowledge of the case: they drew up their proposals and took their decision on the basis of information which was at the very least wrongly interpreted.

If this second element is examined carefully, there are, it seems to me, two aspects to it.

In her argument Christiane Hoffmann based herself partly on a comparison of her qualifications with those of Mrs G., whom she sees as her direct competitor and whose promotion blocked her own.

According to the Commission, this line of reasoning indicates a misunderstanding of the principles which govern the promotion procedure. There is no particular competition for promotion between officials of a particular department since the promotion authorities carry out a comparative examination of all the officials who are eligible for promotion. Consequently, the comparison of the respective levels of the diplomas is irrelevant, even though that of Christiane Hoffmann is undeniably of a higher level.

In support of this proposition the Commission raises arguments both of fact and of law. On a point of fact, it admits that the argument raised would have had much more weight had the number of promotions allowed by the budget been only slightly more than the number of officials eligible for promotion. It points out, however, that there are 122 people who might be promoted but only 9 promotions allowed by the budget. As a matter of law, it refers to paragraph 13 of the judgment of the Court of 5 June 1980 in the Oberthür case, where it is stated that “the Court considers that ... it would be arbitrary to annul the promotion of the only official from Directorate General VII who was in fact promoted to Grade B 2”. (*3)

It certainly seems to me possible, in practice, for an official to be more directly in competition for promotion with a colleague of the same department than with other officials eligible for promotion.

However, direct comparison between these two officials runs into insuperable legal obstacles. It appears not only to be contrary to the Court's pronouncement in the paragraph quoted from the Oberthür judgment, but also, and above all, incompatible with the wording of Article 45 of the Staff Regulations (“... after consideration of the comparative merits of the officials”, that is to say all of them, “eligible for promotion”), which is applied and clarified by Article 4 of the relevant general implementing provisions (“... after comparing the merits of all officials eligible for promotion”).

Furthermore, on a point of fact, as the representative of the Commission emphasized at the hearing, such a comparison is doubtless less necessary for a promotion within a particular career bracket, where promoted officials retain their previous duties, than for a promotion to a post in a higher career bracket within the department to which two candidates belong.

For those reasons, the second element of the submission must be rejected.

However, Christiane Hoffmann also maintains that in order for a promotion procedure to be lawful the comparison of the merits of all the officials eligible for promotion must be conducted in a strictly equal manner. Consequently, if the promotion authorities in making their decision incorrectly assessed the value of Mrs G. 's diploma, the equality of opportunity between her and all her competitors was eliminated and the promotion procedure rendered void.

The validity of this complaint may be analysed in the light of the case-law of this Court.

It is certainly true that the subject of promotions is one where decisions subject to the review of the Court require “complex value judgments the merits of which, by their very nature and subject, cannot be reviewed by the Court”. (*4)

The Court therefore refused to substitute its own judgment regarding promotions for the appraisals of the administration, except in the case of a manifest error. (5)

On the other hand, the Court watches closely to ensure that the comparative examination of the merits of each candidate is carried out on an equal basis and in the light of comparable sources of information and enquiries. This concern, which preoccupied the Court even prior to the introduction of periodic reports, (6) continues to do so to this day as is shown by some of the more recent judgments relating to promotion. (7)

It cannot be established with certainty from the file whether the promotion authorities were in fact aware of the precise value of Mrs G.'s diploma.

But even if it is admitted that she overvalued it, it does not seem to me that they thereby manifestly exceeded the limits of their discretion. In fact, the level of a diploma obtained in 1965 is clearly of only secondary, or even negligible, importance for a promotion taking place 15 years later. It is indisputable that other factors carry much greater weight than old diplomas for the consideration of merits required by Article 45 of the Staff Regulations. Without wishing lightly to call in question the merits of the officials concerned in this respect, I would cite in the first place the general quality of their work during the years immediately preceding the disputed promotion procedure.

In my opinion it follows that this second aspect of the second element of the first submission should also be rejected.

III —

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.

The first, second and fourth elements of this submission were presented in the reply and the third element was only presented at the hearing. It is therefore necessary to begin by examining its admissibility.

Article 42 (2) of the Rules of Procedure provides that “no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure”. In addition, by virtue of the case-law of the Court, (8) a new submission is equally admissible when it may be regarded as “amplifying a submission made previously”, the rule allegedly infringed having been referred to either expressly or by implication in the application bringing the action.

This submission is based on documents which Christiane Hoffmann alleges she had not seen until the submission of the defence. Extracts from the minutes of meetings of the various promotion bodies and from the decision of the appointing authority constitute Annexes 11 to 14 to that defence. The condition laid down by Article 42 (2) for the admissibility of the submission would therefore be satisfied if Christiane Hoffmann was in fact unable to have knowledge of the documents previously.

This inability has not been disputed by the Commission and does not seem to me unlikely, since it concerns documents which, by their nature, are not disclosed to the officials concerned. (9)

This ground for admissibility cannot however be applied to the element of the submission which was not presented until the hearing. The question of the failure of the Committee of Second Instance to consult the personal files could have been raised in the reply because an extract from the minutes of the meeting of that committee had been annexed to the defence.

I wondered however whether there was not a second ground on which the second submission might be held to be admissible, applicable to all four of its elements, including the third, and based on the Court's judgment in the Amylum case. (10)

It might have been considered that the second submission constituted an amplification of the sole submission in the application, which became the first submission in the reply. As we have seen, the first element of this submission relates to the uncertainty surrounding the examination of the diplomas of Christiane Hoffmann and Mrs G. by the various promotion authorities. These diplomas are contained in the personal files of those officials and, in her second submission, the applicant is in fact criticizing the promotion authorities for not having consulted them.

However, I would invite the Court not to follow that line of argument because that precise and limited element of the submission did not appear until the reply and was not referred to either expressly or by implication in the application.

Consequently, the admissibility of the second submission, which I suggest that the Court accept, should not extend to its third element.

I shall now examine the substantive issues which the submission raises. In this area it seems to me to have a significance which extends far beyond the particular case of the applicant, because it argues in essence for a strict interpretation of Article 45 to the Staff Regulations.

According to Christiane Hoffmann, it is not sufficient that the persons attending the meetings of the promotion committees had available “all the documents referred to in Article 45 of the Staff Regulations, in particular the detailed lists of officials suggested for promotion ... and the files containing personal information”. Similarly she regards it as insufficient for the appointing authority, in the present case the Director General of the Joint Research Centre and the Personnel Director, to have “the opportunity to consult the personal files of all the officials and temporary servants eligible for promotion”. (11)

According to her, only the actual consultation of personal files by the promotion authorities could ensure compliance with Article 45 of the Staff Regulations. Otherwise there would not be a truly comparative examination within the meaning of that provision. In carrying out that examination the promotion authorities should pay particular attention to the periodic reports, as required by Article 45 of the Staff Regulations.

This strict application of Article 45 is, she maintains, all the more important because, contrary to the position in most other international organizations, the European Communities only use the socalled “au grand choix” promotion procedure, which leaves very considerable powers to the promotion authorities and in particular to the appointing authority.

The requirement to examine the personal files is, in her view, incumbent above all on the appointing authority. By omitting to carry out such an examination, the appointing authority loses its autonomous decision-making power and in fact shifts the responsibility for the decision on to the bodies which, although having the advantage of being jointly constituted, are merely proposing bodies.

I do not share that analysis. It appears to me that the promotion procedure set up by the General Provisions to give effect to the procedure for promoting staff paid from research appropriations, in the manner in which it has been applied in this case, constitutes a proper application of Article 45 of the Staff Regulations.

As far as the Instance Zéro is concerned, the Commission is of the view that compliance with Article 45 is not obligatory at that stage, in so far as the preparatory examination which it carries out is not strictly speaking part of the promotion procedure. But, since, pursuant to Article 4 of the General Provisions, that examination serves as a basis for the provisional lists drawn up by the Promotion Committees of First and Second Instance and in practice appears often to have a decisive influence, I believe that the “Instances Zéro” should observe the same rules as the Committees of First and Second Instance.

However, I am convinced that, in the present case, for all the promotion committees, including the Instance Zéro, the requirements of Article 45 have been observed. In my opinion that follows from the previously mentioned extracts from the minutes of the meetings of the promotion committees and other extracts from those minutes included in the file. For example, it appears from Annex II to the defence that “all suggestions for promotion and cases brought up for discussion (have been) examined with care by the members of the committee (Instance Zéro), which (has compared) the merits, qualifications and duties of the officials concerned”. Similarly Annex 12 to the defence shows that “each proposal for promotion to that grade (Grade B 3) was examined with care by the members of the committee (Committee of First Instance)”.

In those circumstances, the “consideration of the comparative merits of the officials eligible for promotion and of the reports on them” (Article 45) seems to me to have been duly carried out.

Finally, I do not think that there has been an infringement of Article 45 by reason of the fact that the appointing authority did not itself consult the files of all officials eligible for promotion.

It is true that the setting up of a promotion procedure which assigns an important rôle to proposing bodies half of whose members are representatives of the staff has the effect of limiting the discretion of the appointing authority. However, it does not have the effect of preventing it, if it so wishes, from making other choices. Its autonomy is therefore retained. It is to this end that the appointing authority has the opportunity of consulting the personal files of all officials eligible for promotion.

Consequently, the second submission should in my opinion be rejected.

It follows that the disputed decisions cannot be criticized; consequently, the claim for damages submitted by Christiane Hoffmann must be dismissed.

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.

*

Translated from the French.

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

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

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.

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.

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

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.