<TI><NP><NO.P>1 —</NO.P><TXT>Admissibility of the application</TXT></NP></TI>The applicant maintains that the period for lodging an appeal began to run, in this case, on the day after the Court gave judgment in Case 15/68, that is on 26 February 1969, since that judgment decided that the periodic report of 15 January 1968 was replaced retroactively by the report of 31 May 1968. He claims that this finding is by implication confirmed by the Commission's decision of 8 July 1969 which did not mention formal inadmissibility but confirmed the contested report as regards the substance of the case.
On the other hand, the defendant maintains that the period started to run with the communication, on 31 May 1968, of the periodic report in its final form.
Hence it claims that this application is inadmissible because it was lodged out of time.
It alleges that its reply of 8 July 1969 was purely by way of confirmation and could not restore time-limits which had expired and states, in the alternative, that the application is not directed against the Commission's memorandum of 8 July 1969.
The applicant replies that the judgment of the Court of 25 February 1969 constitutes a new factor with regard to him as it decided that the report had been communicated in accordance with Article 26 of the Staff Regulations. He claims that this follows a contrario from the case-law of the Court whereby a judgment which annuls an administrative measure constitutes a new factor with regard to the parties to the action.
The defendant asserts that, as opposed to a judgment which annuls an administrative measure, a judgment which dismisses an application in no way alters the existing legal situation and cannot therefore constitute a new factor except perhaps in certain exceptional circumstances.
The applicant maintains that the situation which arises in this case is quite different from that in Case 28/64 (Richard Müller v Council of the EEC and Council of the EAEC) since his application is not directed against an implied decision of the Commission to reject the request but against an express decision rejecting the request which was made within the period laid down for the lodging of an application to the Court against the absence of a reply from the administration which is deemed to be an implied decision to reject a request.
Moreover the applicant states that it follows clearly from the context that this application is against the decision taken by the Commission on 8 July 1969 and signed by Mr Rey, the President.
The defendant asserts that the memorandum of 8 July 1969 only confirmed the contested periodic report and that therefore it could not start time running afresh since it was only in reply to a complaint through official channels which had been lodged out of time.
<TI><NP><NO.P>2 —</NO.P><TXT>The substance of the case</TXT></NP></TI>The applicant states that the report reveals certain differences on the following points :
In the analytical assessment of efficiency, the applicant was given the mark Good for the standard of work and was also given the mark Good for the speed with which the work was performed. This assessment, however, differs from the assessment of the reporting officers in which the first reporting officer assesses his efficiency as Fair and the second as Normal.
The defendant replies that this criticism on the part of the applicant does not correspond to the facts. It says that the mark Good is the average of the assessment made by the first reporting officer, Fair, but excellent in matters relating solely to bookkeeping.
The applicant rejoins that the average of two assessments cannot be an assessment within the meaning of the Staff Regulations because an average can never be taken from subjective value-judgments.
The defendant asserts that the aim of a periodic report is to reproduce as exactly as possible the assessment made of an official in a very limited number of words. In these circumstances the mark Good is the one which reflects most faithfully an assessment which is expressed in certain areas by the mark Fair and in others by the mark Excellent.
The applicant claims that by adding comments to their assessment the reporting officers seem to have exceeded their duty, since comments are only obligatory for the marks Very Good and Unsatisfactory. Moreover, he says that the mark Normal which was given by the second reporting officer is not laid down as a criterion of assessment.
The applicant asserts that in the analytical assessment of sense of responsibility the mark is Good, whilst in the comprehensive assessment both reporting officers call for a keener sense of responsibility, 'and he claims that these comments should be removed from the periodic report because they are superfluous.
The defendant replies that the report form does not expressly prohibit comments. It adds that in this case comments might be useful to order to define more clearly the mark Good which appears rather bald on its own, and says that the adjective Normal is plainly shown on the form as being equivalent to Good.
The applicant maintains that the criticism made of him that his requests for leave were ill-timed must also be removed on the ground that he adhered strictly to the provisions of the Staff Regulations on this point by obtaining the prior consent of his superiors. Moreover, he asserts that these criteria of assessment are irrelevant and maintans that these comments are therefore ultra vires.
The defendant asserts that the absence of an official has a serious effect on the running of a department and that it seemed necessary to ask the applicant to have a keener sense of responsibility with regard to the way in which he chose his leave.
The applicant replies by emphasizing the contradiction which he says exists between the comprehensive assessment on the choice of leave contained in the report of 15 January 1968 which was withdrawn post festum and the less favourable assessment on the same point in the report of 31 May 1968.
The defendant states that it does not understand this argument put forward by the applicant.