The applicant considers that the special circumstances of the report permit the conclusion that there has been a misuse of powers. The years covered by this report are those during which the applicant's work was highly praised by the Institution itself. He temporarily acted as Head of Division for one third of the period covered. Further it may be seen from the replies given by the Parliament in Case 23/74, Küster v Parliament [1975] ECR 353 that in the letter from the Director of Personnel of 15 October 1973 he was recognized as fit for promotion. The Director-General even stressed the applicant's collaboration over a lengthy period and stated that the Directorate-General concerned had no objection to promotion.

The defendant contests any suggestion of misuse of powers. The report in question was drawn up on the basis of the facts relating to the applicant and in accordance with the rules in the matter.

Moreover the term Excellent is no longer so frequently used as in the past. The Secretary-General and the Directors-General had agreed not to use the term Excellent in future save in exceptional cases and to assess the greatest efficiency with the term Very good. The applicant could therefore not complain of being given the latter assessment and in any event he had not been unfavourably treated in relation to other members of the staff. With regard to the general assessment it may be wondered how such a laudatory assessment may be regarded as adversely affecting the person to whom it relates. Failure to mention that the applicant deserves promotion is not a matter for objection since the very favourable assessment by no means requires any observation on the possibility of promotion. Although the Director for Personnel previously recognized that the applicant qualified for promotion, he was simply confirming that the conditions under Article 45 of the Staff Regulations were satisfied from the point of view of minimum period in the grade.

The applicant in reply says that if there was an agreement on the use of entries in reports such a general provisions for giving effect to it ought under Article 110 of the Staff Regulations to have been adopted after consulting the Staff Committee and the Staff Regulations Committee. It ought further to have been brought to the attention of the staff. None of this was done.

The applicant admits that the wording of the general assessment is very favourable. It is even so to such an extent that it might be asked why it did not justify continuance of the entry Excellent and why there was no longer any mention of suitability for promotion. If there is no agreement that suggestions of promotion should no longer be made it must in fact be agreed that the report in question is less good. In any event it is incorrect to claim that in the past the suggestion of promotion referred only to the minimum amount of seniority. The applicant stresses that for years he has not only been recognized as qualifying for promotion but also expressly recognized as capable of undertaking more responsible duties.

In the rejoinder the defendant observes that there is no provision in the Staff Regulations or elsewhere imposing any duty to say whether an official deserves promotion. The general assessment is the full and final expression of the discretion of the person making the report. Previous assessments containing a suggestion of promotion do not impose any obligation on those making subsequent assessments.

This applied likewise to the entries made.

According to the applicant the contested assessment is a decision taken by the authority delegated for this purpose by the Bureau of the Parliament. Since it is an adverse decision it ought under the second paragraph of Article 25 of the Staff Regulations to have stated the reasons on which it was based. The decision rates the applicant's merits considerably lower than was done previously. No longer is there even a mention of the possibility of promotion. In giving him a lower assessment in his periodic report than in several previous periods the person responsible for the report cannot exercise a discretion without giving any explanation. The decision contained in the report ought under Article 25 to have stated the reasons on which it was based and ought therefore to be declared null and void for not having done so. The applicant stresses that he is not asking the Court to amend the report in question but is asking that this report which amounts to an unacceptable injustice should be withdrawn from his personal file. Finally this highly prejudicial report causes him serious non-material damage. The applicant claims that the appointing authority should pay him one franc as nominal damages.

The defendant maintains that since the periodic report does not constitute a decision, Article 25 of the Staff Regulations does not apply. This appears from the provisions contained in Article 25 taken together, providing that any decision relating to a specific individual must at once be communicated in writing to the official concerned. A periodic report is not a measure which must be communicated to the person to whom it refers. The object of giving notification of the report as laid down by the regulations is very different, namely to give the official the opportunity of contradicting it.

The last paragraph of Article 25 listing the specific decisions shows clearly the difference between the decisions referred to and the periodic report. In support of this argument the defendant refers to legal theory (Holtz, Handbuch des Europäischen Dienstrechts, 1965, Note 1 to Article 25) and the case-law of the Court in Cases 16/64, Rauch v Commission [1965] ECR 135 and Joined Cases 27 and 30/64, Fonzi v Commission [1965] ECR 481.

The applicant in reply says that it is Article 43 of the Staff Regulations and not simply a regulation which provides for communication of the periodic report. The definitive report, that is to say after signature by the Secretary-General, constitutes a true decision. The argument based on the last paragraph of Article 25 of the Staff Regulations is not well founded. It was obvious that the periodic report could not be included as one of the measures which must be published. The previous paragraph of Article 25 on the other hand relates to any decision relating to a specific individual which has been taken under the Staff Regulations (here Article 43) and provides for communication at once and for reasons to be stated.

The theory put forward by Holtz cannot frustrate the clear provisions of the Staff Regulations and the implementing Staff Memorandum.

The case-law referred to is not relevant in the present case. At most the case of Fonzi v Commission simply shows that the Court cannot substitute its own value-judgment for the assessment of the administration. It should also be pointed out that in that case it was a queston of a report by a promotion committee whereas in the present case it is a report prescribed by the Staff Regulations.

In the rejoinder the defendant maintains its previous arguments. It adds that the applicant is wilfully confusing Articles 43 and 25 of the Staff Regulations. Article 43 requires notification of the periodic report to give an opportunity for comment by the official. Article 25 contemplates notification of a decision relating to a specific individual (which is to be communicated in writing) for the purpose of any appeal.

It is this latter decision for which reasons have to be stated if it adversely affects an official.