61962J0035

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1 . OFFICIALS - DECISION OF THE ADMINISTRATION ADVERSELY AFFECTING SUCH OFFICIALS - REASONS FOR THE DECISION

( STAFF REGULATIONS, ARTICLE 25 )

2 . OFFICIALS - ESTABLISHMENT - DECISION OF THE ESTABLISHMENT BOARD - REASONS FOR THE DECISION

( STAFF REGULATIONS, ARTICLE 93 AND ANNEX X )

3 . OFFICIALS - PROFESSIONAL SKILLS - ASSESSMENT BY THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

4 . OFFICIALS - WRONGFUL ACT OR OMISSION ON THE PART OF THE ADMINISTRATION - NON-MATERIAL DAMAGE RESULTING FROM A LAWFUL MEASURE - IMPOSSIBILITY IN PRINCIPLE - EXCEPTION IN CASES OF SUPERFLUOUS CRITICISM 5 . COSTS - UNREASONABLY INCURRED

( RULES OF PROCEDURE, ARTICLE 69 ( 3 ))

1 . WHERE THE GROUNDS FOR A MEASURE ADVERSELY AFFECTING AN OFFICIAL ARE GIVEN CLEARLY AND UNEQUIVOCALLY, SUCH A MEASURE IS REASONED .

2 . IN GIVING REASONS FOR ITS RECOMMENDATION ON THE ESTABLISHMENT OF AN OFFICIAL THE ESTABLISHMENT BOARD NEED ONLY REFER TO THE ESTABLISHMENT REPORT DRAWN UP BY THE OFFICIAL'S SUPERIOR OFFICER .

3 . THE COURT CANNOT REVIEW THE REASONABLENESS OF AN ASSESSMENT MADE BY THE ADMINISTRATION OF THE PROFESSIONAL SKILLS SHOWN BY AN OFFICIAL WHERE THIS ASSESSMENT INCLUDES COMPLEX VALUE - JUDGMENTS THE VERY NATURE OF WHICH EXCLUDES AN OBJECTIVE REVIEW .

4 . A MEASURE WHICH HAS NOT BEEN SHOWN TO BE UNLAWFUL CANNOT CONSTITUTE A WRONGFUL ACT OR OMISSION AND THUS UNLAWFULLY PREJUDICE THE HONOUR AND REPUTATION OF THE PERSON TO WHOM IT REFERS, UNLESS IT CONTAINS SUPERFLUOUS CRITICISMS OF THAT PERSON .

5 . IF THE CONDUCT OF THE DEFENDANT HAS ENCOURAGED THE APPLICANT TO MAKE TWO APPLICATIONS WHEN ONE WOULD HAVE BEEN SUFFICIENT TO SETTLE THE QUESTION IN DISPUTE IT HAS CAUSED HIM TO INCUR COSTS UNREASONABLY . HOWEVER, AS ONE APPLICATION HAS PROVED TO BE SUPERFLUOUS AND THE APPLICANT HAS FAILED THEREIN, HE MUST BEAR ANY COSTS INCURRED AFTER THE TIME AT WHICH HE COULD HAVE REALIZED THAT THERE WERE NO GROUNDS FOR PROCEEDING WITH THE ACTION . ( CF . SUMMARY OF THE JUDGMENT IN JOINED CASES 15/59 AND 26/59, NOV . 7, REC . 1960, P . 14 )

IN JOINED CASES 35/62 AND 16/63

ANDRE LEROY, A MEMBER OF THE AUXILIARY STAFF OF THE EUROPEAN COAL AND STEEL COMMUNITY, RESIDING AT 20 RUE ASTRID, LUXEMBOURG, ASSISTED BY PAUL-FRANCOIS RYZIGER ADVOCATE OF THE FRENCH CONSEIL D'ETAT AND THE COUR DE CASSATION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, ADVOCATE OF THE LUXEMBOURG COUR D'APPEL, 27 AVENUE GUILLAUME, APPLICANT,

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HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, G . SAUTTER, ACTING AS AGENT, ASSISTED BY JEAN COUTARD, ADVOCATE OF THE FRENCH CONSEIL D'ETAT AND THE COUR DE CASSATION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY OF THE ECSC REFUSING TO INTEGRATE THE APPLICANT AS AN ESTABLISHED OFFICIAL OF THE COMMUNITY AND FOR DAMAGES IN REPARATION FOR THE INJURY SUFFERED AS A RESULT OF THAT DECISION;

ON ADMISSIBILITY

THE DEFENDANT MAINTAINS THAT THE LETTER CONTESTED IN APPLICATION 35/62 IS NOT A DECISION BUT MERELY THE NOTIFICATION OF A DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY WHICH WAS TO BE TAKEN LATER .

THE FORMAL DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY WAS ONLY TAKEN ON 11 OCTOBER 1962 .

CONSEQUENTLY, THE LETTER CONTESTED IN APPLICATION 35/62 SIGNED BY A MERE OFFICIAL COULD ONLY NOTIFY THE PERSON CONCERNED OF THE CONTENT OF A FUTURE DECISION .

THEREFORE, APPLICATION 35/62 MUST BE DECLARED INADMISSIBLE .

HOWEVER, ALTHOUGH THE UNUSUAL NATURE OF THE PROCEDURE FOLLOWED BY THE DEFENDANT MAY BE EXPLAINED BY A DESIRE TO INFORM THE APPLICANT OF HIS FATE WITHOUT DELAY AFTER THE UNFAVOURABLE RECOMMENDATION MADE BY THE ESTABLISHMENT BOARD, IT IS TRUE THAT THE TERMS OF THE LETTER IN QUESTION MIGHT REASONABLY HAVE LED THE APPLICANT TO BELIEVE THAT THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY REFUSING TO INTEGRATE HIM HAD ALREADY BEEN TAKEN .

THIS FACT MUST INFLUENCE THE DECISION AS TO COSTS .

THE DEFENDANT DOES NOT CONTEST THE ADMISSIBILITY OF APPLICATION 16/63 AND NO OBJECTION OF INADMISSIBILITY NEED BE RAISED BY THE COURT OF ITS OWN MOTION .

ON THE SUBSTANCE OF THE CASE

AS REGARDS THE COMPLAINT BASED ON THE IRREGULARITY OF THE INTEGRATION PROCEDURE

THE APPLICANT MAINTAINS THAT THE INTEGRATION PROCEDURE SHOULD ALLOW THE CANDIDATE FULL OPPORTUNITY TO BE HEARD .

IT IS TRUE THAT AN UNFAVOURABLE RECOMMENDATION BY THE ESTABLISHMENT BOARD IS BINDING ON THE APPOINTING AUTHORITY UNDER ANNEX X, PARAGRAPH 2, TO THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC . BEFORE MAKING SUCH A RECOMMENDATION, THE BOARD MUST ENABLE THE CANDIDATE TO COMMENT ON ANY POINTS LIKELY TO INFLUENCE THE DECISION AS TO HIS ESTABLISHMENT .

THE APPLICANT CONTENDS THAT IN THIS CASE THIS REQUIREMENT HAS NOT BEEN RESPECTED SINCE HE DID NOT RECEIVE THE MINUTES OF THE EXAMINATION OF THE DIRECTOR-GENERAL OF ECONOMICS AND ENERGY AND WAS NOT ALLOWED TO MEET HIS IMMEDIATE SUPERIOR BEFORE THE ESTABLISHMENT BOARD .

IT IS NOT NECESSARY TO CONSIDER THE APPLICANT'S ARGUMENT THAT HE HAD A RIGHT TO SEE THESE MINUTES AND TO MEET HIS SUPERIOR, SINCE IT MUST BE STRESSED THAT THE FAILURE TO PRODUCE THE MINUTES COULD ONLY MAKE THE PROCEEDINGS IRREGULAR IF THE RESULT OF THIS OMISSION HAD BEEN TO PREVENT THE APPLICANT FROM MAKING KNOWN TO THE ESTABLISHMENT BOARD HIS VIEWS ON THE OBSERVATIONS MADE WITH REGARD TO HIM BY MR NORA .

THIS IS NOT SO IN THIS CASE SINCE THE APPLICANT HAD BEEN INFORMED BY A SUMMARY OF THE SUBSTANCE OF THESE OBSERVATIONS .

MOREOVER, ALTHOUGH IT IS CLEAR FROM THE LETTER SENT TO HIM BY THE DEFENDANT ON 31 OCTOBER 1962 THAT THE APPLICANT WAS LATER GIVEN ACCESS TO ALL THE PASSAGES RELATING TO HIM IN THE DOCUMENTS CONCERNING THE INTEGRATION PROCEDURE, HE HAS RAISED NO OBJECTION, EITHER BEFORE THE ADMINISTRATION OR BEFORE THE COURT, TO THE SUBSTANCE OF THE OBSERVATIONS MADE BY MR NORA WITH REGARD TO HIM BEFORE THE ESTABLISHMENT BOARD WHICH APPEARED IN THE MINUTES OF THE MEETING OF 21 MAY 1962 .

AS REGARDS THE REFUSAL TO ALLOW THE APPLICANT TO MEET HIS IMMEDIATE SUPERIOR, IT IS CLEAR FROM THE MINUTES OF THE MEETING OF THE ESTABLISHMENT BOARD 20 JUNE 1962 THAT, AS REGARDS HIS REQUEST TO MEET HIS SUPERIORS, THE APPLICANT HAD EXPRESSED HIMSELF AT THAT MEETING AS SATISFIED WITH THE ORAL INFORMATION GIVEN BY MR SIGNORINI, CHAIRMAN OF THE BOARD .

THEREFORE, THE COMPLAINT BASED ON THE IRREGULARITY OF THE INTEGRATION PROCEDURE CANNOT BE MAINTAINED .

AS REGARDS THE LACK OF SUFFICIENT REASONS

THE APPLICANT ALLEGES THAT SUFFICIENT REASONS WERE NOT GIVEN FOR THE RECOMMENDATION OF THE BOARD .

ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS, ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE REASONS ON WHICH IT IS BASED .

THIS REQUIREMENT IS SATISFIED WHEN THE REASONS ON WHICH THE DECISION ADVERSELY AFFECTING THE OFFICIAL IS BASED ARE GIVEN CLEARLY AND UNEQUIVOCALLY .

IN ITS REPORT OF 16 JULY 1962 THE ESTABLISHMENT BOARD STATES THAT ITS RECOMMENDATION NOT TO ESTABLISH MR LEROY 'WAS ISSUED ON THE BASIS OF THE ESTABLISHMENT REPORT DRAWN UP BY THE CANDIDATE'S SUPERIOR OFFICER AND THE OBSERVATIONS MADE BY THE CANDIDATE ON THE REPORT, AFTER STUDYING HIS FILE AND HEARING BOTH MR LEROY AND HIS SUPERIORS '.

IT IS TRUE THAT THE BOARD COULD HAVE BEEN MORE EXPLICIT AND COULD HAVE INDICATED PRECISELY THE FACTORS CONCERNING THE APPLICANT'S ABILITY TO PERFORM THE DUTIES ASSIGNED TO HIM ON WHICH THE UNFAVOURABLE RECOMMENDATION WAS BASED . HOWEVER, THE GENERAL REFERENCE MADE AT THE OUTSET TO THE REPORT OF THE APPLICANT'S IMMEDIATE SUPERIOR MAKES IT CLEAR BEYOND ALL DOUBT THAT THE OBSERVATIONS CONTAINED IN THIS REPORT, WHICH WERE CONFIRMED BY THE APPLICANT'S DIRECTOR-GENERAL, CONSTITUTE THE REASONS FOR THE RECOMMENDATION IN QUESTION . THIS VIEW IS CONFIRMED BY THE FACT THAT THE APPLICANT HAS NOT FAILED TO CRITICIZE THE OBSERVATIONS CONTAINED IN THE REPORT OF HIS SUPERIOR . THE APPLICANT CONTENDS THAT THESE OBSERVATIONS ARE GENERAL AND SUBJECTIVE . IT MUST BE REMARKED THAT THE REPORT WAS INTENDED TO PROVIDE AN ASSESSMENT OF MR LEROY'S GENERAL BEHAVIOUR . IT CANNOT THEREFORE BE CRITICIZED FOR NOT GOING INTO DETAILS AND MENTIONING SPECIFIC FACTS .

THIS BEING SO, THE LACK OF DETAIL NOTED ABOVE IN THE REASONS FOR THE RECOMMENDATION OF THE BOARD DOES NOT PREVENT AN EXAMINATION OF ITS MERITS, SINCE THE REASONS ARE SUFFICIENTLY INDICATED BY THE REFERENCE MADE THEREIN TO THE ESTABLISHMENT REPORT DRAWN UP BY THE APPLICANT'S SUPERIOR OFFICER . THIS OMISSION IS THEREFORE NOT A SUFFICIENT REASON TO ANNUL THE CONTESTED DECISION . THIS BEING SO IT IS DESIRABLE TO CONSIDER THE COMPLAINT BASED ON THE JUSTIFICATION FOR THE DECISION .

AS REGARDS THE FACTUAL INACCURACY OF THE REASONS GIVEN

THE APPLICANT CRITICIZES THE ESTABLISHMENT REPORT DRAFTED BY HIS SUPERIOR OFFICER ON THE THREE POINTS IN CONNECTION WITH WHICH THE WORD 'INADEQUATE' WAS USED . THE ASSESSMENT WAS MADE ON THE BASIS OF THE WORK CARRIED OUT BY THE APPLICANT AND OF HIS PROFESSIONAL CONDUCT SINCE HE HAD HELD POST N . 30 ON A TEMPORARY BASIS, THAT IS, FOR ABOUT TWO YEARS . IT HAS BEEN CONFIRMED BY THE DIRECTOR-GENERAL UNDER WHOM THE APPLICANT WAS WORKING .

IT MUST BE STRESSED THAT THE APPLICANT'S CRITICISMS ARE NOT DIRECTED AGAINST THE MATERIAL ACCURACY OF FINDINGS OF FACT WHICH ARE CAPABLE OF OBJECTIVE VERIFICATION, NOR AGAINST ASSESSMENTS WHICH MAY BE OBJECTIVELY REVIEWED, BUT AGAINST COMPLEX VALUE-JUDGMENTS THE MERITS OF WHICH, BY THEIR VERY NATURE AND SUBJECT, CANNOT BE REVIEWED BY THE COURT . FOR THIS REASON THIS COMPLAINT MUST BE REJECTED WITHOUT ANY EXAMINATION OF THE ACCURACY OF THE CRITICISMS CONTAINED IN THE ESTABLISHMENT REPORT .

ON THE SUBMISSION OF MISUSE OF POWERS

THE APPLICANT STATES THAT PERSONAL ANIMOSITY HAD INDUCED HIS IMMEDIATE SUPERIOR TO DRAFT A REPORT WHICH DID NOT RECOMMEND HIS INTEGRATION . THE FACTS REFERRED TO BY THE APPLICANT IN SUPPORT OF HIS ALLEGATION, ALTHOUGH THEY MAY RAISE THE PRESUMPTION THAT RELATIONS BETWEEN MR MAILLET AND THE APPLICANT WERE STRAINED, ARE NOT OF SUCH A NATURE AS TO SHOW THAT THIS INCOMPATIBILITY OF CHARACTER WAS THE REAL CAUSE OF THE UNFAVOURABLE TONE OF THE ESTABLISHMENT REPORT DRAFTED BY MR MAILLET .

THIS SUBMISSION MUST THEREFORE BE REJECTED .

ON THE REQUEST FOR COMPENSATION

THE APPLICANT ALLEGES THAT HE HAS BEEN INJURIOUSLY AFFECTED BY THE DECISION IN DISPUTE WHICH REFLECTED ADVERSELY ON HIS HONOUR AND REPUTATION AND AFFECTED HIS NORMAL LIFE .

IT IS CLEAR FROM THE ABOVE CONSIDERATIONS THAT THE DECISION IN DISPUTE IS NOT VITIATED ON ANY OF THE GROUNDS ALLEGED BY THE APPLICANT . A MEASURE WHICH HAS NOT BEEN SHOWN TO BE UNLAWFUL CANNOT CONSTITUTE A WRONGFUL ACT OR OMISSION AND THUS UNLAWFULLY PREJUDICE THE HONOUR AND REPUTATION OF THE PERSON TO WHOM IT REFERS, UNLESS IT CONTAINS SUPERFLUOUS CRITICISMS OF THAT PERSON . IN THIS CASE, THE REASONS FOR THE CONTESTED DECISION WERE LIMITED TO THE ABSOLUTE MINIMUM . THE APPLICANT HAS THEREFORE NO RIGHT TO COMPENSATION FOR ANY INJURY CAUSED BY THE DECISION IN DISPUTE .

THE APPLICANT HAS FAILED IN HIS APPLICATIONS .

UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES AND WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

UNDER THE TERMS OF THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY CAUSED THE OPPOSITE PARTY TO INCUR .

THE CONDUCT OF THE DEFENDANT HAS ENCOURAGED THE APPLICANT TO BRING TWO APPLICATIONS, WHEREAS IF THE LETTER OF 5 SEPTEMBER 1962 HAD BEEN DRAFTED LESS EQUIVOCALLY A SINGLE APPLICATION WOULD HAVE BEEN SUFFICIENT .

HOWEVER, ONCE THE FORMAL DECISION CONTESTED IN APPLICATION 16/63 HAD BEEN TAKEN, THE APPLICANT SHOULD HAVE REALIZED THAT HE HAD NO GROUNDS FOR PROCEEDING WITH APPLICATION 35/62 FROM WHICH IT WOULD HAVE BEEN REASONABLE FOR HIM TO WITHDRAW .

IN THESE CIRCUMSTANCES IT IS APPROPRIATE THAT THE APPLICANT'S COSTS BE BORNE AS STATED IN THE OPERATIVE PART OF THE JUDGMENT .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 35/62 AS INADMISSIBLE AND APPLICATION 16/63 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY HIS OWN COSTS INCURRED IN APPLICATION 35/62 AFTER NOTIFICATION OF THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY OF 11 OCTOBER 1962, THE REMAINING COSTS OF THE APPLICATION AND THE COSTS INCURRED BY THE DEFENDANT BEING BORNE BY THAT PARTY;

3 . ORDERS THE APPLICANT TO PAY THE COSTS OF APPLICATION 16/63, THE COSTS INCURRED BY THE DEFENDANT BEING BORNE BY THAT PARTY .