Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . OFFICIALS - PROMOTION - EXAMINATION OF COMPARATIVE MERITS - CONSULTATION OF CANDIDATES ' PERSONAL FILES - EXPLANATION OF USE MADE OF INFORMATION AVAILABLE - DUTY OF THE ADMINISTRATION - NONE
( STAFF REGULATIONS OF OFFICIALS , ART . 45 )
2 . OFFICIALS - PROMOTION - EXAMINATION OF COMPARATIVE MERITS - CRITERION - QUALIFICATIONS - CONSIDERATION - LIMITS
( STAFF REGULATIONS OF OFFICIALS , ART . 45 )

1 . ALTHOUGH THE PERSONAL FILES OF THE OFFICIALS ELIGIBLE FOR PROMOTION MUST BE MADE AVAILABLE TO THE PROMOTION COMMITTEES AND TO THE APPOINTING AUTHORITY , 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 .

2.THE VALUE OF A QUALIFICATION MAY BE OF SIGNIFICANCE WHEN OFFICIALS ARE RECRUITED , ESTABLISHED OR EVEN PLACED IN A DIFFERENT CATEGORY . 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 .

AN OFFICIAL CANNOT , THEREFORE , TAKE ISSUE WITH THE FACT THAT AMONG THE OFFICIALS SELECTED FOR PROMOTION WAS SOMEONE WHOSE QUALIFICATION WAS , IN HIS ESTIMATION , INFERIOR TO HIS OWN .

IN CASE 280/81
CHRISTIANE HOFFMANN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT ISPRA , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , ADVOCATE , 34B RUE PHILIPPE-II ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JACQUES DELMOLY , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR ANNULMENT OF THE COMMISSION ' S IMPLIED DECISION REFUSING TO PROMOTE THE APPLICANT AND FOR THE AWARD OF DAMAGES ,

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 AT ISPRA , 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 .

COSTS
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 .