61963J0110

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1 . OFFICIALS - STAFF REGULATIONS - GENERAL PROVISIONS FOR GIVING EFFECT THERETO - DUTY TO ADOPT SUCH PROVISIONS - EXCEPTIONAL NATURE

( EEC-EAEC STAFF REGULATIONS, ARTICLE 110 )

2 . OFFICIALS - INTEGRATION - POWERS OF THE ADMINISTRATION - SAFEGUARDS FOR CANDIDATES - NO ANALOGY WITH SAFEGUARDS PROVIDED FOR UNDER THE STAFF REGULATIONS IN RELATION TO DISCIPLINARY MEASURES AND DISMISSAL FOR INCOMPETENCE

( EEC-EAEC STAFF REGULATIONS, ARTICLE 102 )

3 . OFFICIALS - INTEGRATION - INTEGRATION PROCEDURE - UNFAVOURABLE ASSESSMENTS MADE BY CANDIDATES' SUPERIORS - DUTY OF THE ESTABLISHMENT BOARD TO INFORM CANDIDATES - FULL ORAL INTIMATION SUFFICIENT

( EEC-EAEC STAFF REGULATIONS, ARTICLE 102 )

4 . OFFICIALS - INTEGRATION - INTEGRATION PROCEDURE - CONFRONTATION OF THE SERVANT CONCERNED WITH HIS IMMEDIATE SUPERIORS NOT ESSENTIAL AS A GENERAL RULE - DUTY TO HAVE SUCH A CONFRONTATION TO CLARIFY ESSENTIAL FACTS IN DISPUTE

( EEC-EAEC STAFF REGULATIONS, ARTICLE 102 )

5 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - IMMEDIATE COMMUNICATION TO THE PERSON CONCERNED UNNECESSARY

( EEC-EAEC STAFF REGULATIONS, ARTICLE 102 )

6 . OFFICIALS - INTEGRATION - INTEGRATION PROCEDURE - DUTY OF THE ADMINISTRATION TO INVESTIGATE ALL SOURCES OF INFORMATION FAVOURABLE TO THE PERSON CONCERNED

( EEC-EAEC STAFF REGULATIONS, ARTICLE 102 )

7 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - ADDITIONAL PROPOSAL BY THE ESTABLISHMENT BOARD NOT BINDING ON THE APPOINTING AUTHORITY - COMMUNICATION TO THE PERSON CONCERNED NOT OBLIGATORY

( EEC-EAEC STAFF REGULATIONS, ARTICLE 102 )

8 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - REVIEW BY THE COURT - LIMITS

9 . OFFICIALS - INTEGRATION - APPEAL AGAINST THE ADMINISTRATION - ENFORCEMENT OF JUDGMENT - REOPENING OF THE INTEGRATION PROCEDURE

( EEC-EAEC STAFF REGULATIONS, ARTICLE 91 )

1 . THE EXPRESSION ' THE GENERAL PROVISIONS FOR GIVING EFFECT TO THESE STAFF REGULATIONS ' APPEARING IN ARTICLE 110 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC REFERS IN THE FIRST INSTANCE TO THE IMPLEMENTING MEASURES EXPRESSLY PROVIDED FOR BY CERTAIN SPECIAL PROVISIONS OF THE STAFF REGULATIONS .

IN THE ABSENCE OF ANY EXPRESS PROVISION, THE OBLIGATION TO ADOPT IMPLEMENTING MEASURES SUBJECT TO THE FORMAL REQUIREMENTS OF ARTICLE 110 CAN BE RECOGNIZED ONLY IN EXCEPTIONAL CIRCUMSTANCES, THAT IS, WHEN THE PROVISIONS OF THE STAFF REGULATIONS ARE SO UNCLEAR AND IMPRECISE THAT ANY APPLICATION OF THEM MUST BE ARBITRARY .

CF . PARAGRAPH 2, SUMMARY, JUDGMENT IN JOINED CASES 19 AND 65/63 .

2 . IN CASES INVOLVING THE INTEGRATION PROCEDURE, THE INSTITUTIONS POSSESS A CERTAIN FREEDOM OF ACTION WHICH, WHILE LIMITED BY THE OBLIGATION TO ENSURE THAT THE PERSON CONCERNED HAS A FAIR CHANCE TO DEFEND HIMSELF, EXCLUDES SAFEGUARDS SIMILAR TO THOSE LAID DOWN BY THE STAFF REGULATIONS IN RELATION TO DISCIPLINARY MEASURES AND DISMISSAL FOR INCOMPETENCE .

CF . PARAGRAPH 9, SUMMARY, JUDGMENT IN CASE 26/63, ( 1964 ) ECR 674 .

3 . THE ESTABLISHMENT BOARD IS NOT BOUND TO INFORM SERVANTS IN WRITING OF ANY UNFAVOURABLE ASSESSMENTS MADE BY THEIR SUPERIORS, A FULL ORAL INTIMATION BEING SUFFICIENT TO ENABLE THEM TO DEFEND THEMSELVES .

4 . IN INTEGRATION CASES THE ESTABLISHMENT BOARD IS OBLIGED TO ARRANGE FOR A CONFRONTATION BETWEEN A SUBORDINATE AND HIS SUPERIOR ONLY IF THE ABSENCE OF SUCH A MEETING WOULD MAKE IT IMPOSSIBLE FOR THE BOARD TO CLARIFY ESSENTIAL FACTS IN DISPUTE BETWEEN THE PARTIES TO AN EXTENT SUFFICIENT IN LAW .

CF . PARAGRAPH 4, SUMMARY, JUDGMENT IN JOINED CASES 19 AND 65/63 .

5 . THERE IS NO PROVISION REQUIRING THE IMMEDIATE COMMUNICATION TO THE PERSON CONCERNED OF THE OPINION OF THE ESTABLISHMENT BOARD, WHICH IS ADDRESSED SOLELY TO THE INSTITUTION .

CF . PARAGRAPH 3, SUMMARY, JUDGMENT IN CASE 84/63, ( 1964 ) ECR 637 .

6 . CF . PARAGRAPH 1, SUMMARY, JUDGMENT IN CASE 68/63 . ( 1965 ) ECR 581 .

IN CASES OF INTEGRATION UNDER THE STAFF REGULATIONS, THE APPOINTING AUTHORITY AND THE ESTABLISHMENT BOARD ARE OBLIGED TO INVESTIGATE ALL THE RELIABLE INFORMATION FAVOURABLE TO THE PERSON CONCERNED .

*/ 663J0068 /*.

7 . A PROPOSAL BY THE ESTABLISHMENT BOARD MADE OUTSIDE THE CONTEXT OF ARTICLE 102 OF THE STAFF REGULATIONS IS NO MORE THAN A SUGGESTION WITHOUT ANY BINDING LEGAL CONSEQUENCES . THE APPOINTING AUTHORITY IS THEREFORE NEITHER OBLIGED TO COMMUNICATE THIS SUGGESTION TO THE PERSON CONCERNED NOR TO INFORM HIM WHY IT WAS NOT ACCEPTED .

8 . CF . PARAGRAPH 5, SUMMARY, JUDGMENT IN JOINED CASES 19 AND 65/63 .

THE ASSESSMENTS OF THE ESTABLISHMENT BOARD CONSTITUTE A GENERAL VALUE-JUDGMENT, FOR WHICH THE COURT CANNOT SUBSTITUTE ITS OWN ASSESSMENT . ON THE OTHER HAND IT IS FOR THE COURT TO CHECK WHETHER THE FACTS TAKEN INTO ACCOUNT BY THE ESTABLISHMENT BOARD ARE MATERIALLY ACCURATE AND LOGICALLY COMPATIBLE WITH THAT JUDGMENT .

*/ 663J0019 /*.

9 . CF . PARAGRAPH 5, SUMMARY, JUDGMENT IN CASE 26/63, ( 1964 ) ECR 341 .

ALTHOUGH THE COURT, EVEN IN THE CONTEXT OF PROCEEDINGS IN WHICH IT HAS UNLIMITED JURISDICTION, AS IT HAS UNDER ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS, IS UNABLE TO ORDER THE ADMINISTRATION TO CARRY OUT A SPECIFIC ACT, THE REOPENING OF THE INTEGRATION PROCEDURE MUST HOWEVER BE CONSIDERED MERELY AS ONE OF THE CONSEQUENCES FLOWING FROM THE EXECUTION OF THE JUDGMENT IF THE APPEAL WERE TO BE UPHELD .

*/ 663J0026 /*.

IN CASE 110/63

ALFRED WILLAME, RESIDING AT 6 RUE DES GRANDS CARMES, BRUSSELS 1, ASSISTED BY MARCEL GREGOIRE, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 85 BOULEVARD DE LA GRANDE-DUCHESSE-CHARLOTTE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, PIERRE MATHIJSEN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION : IN PARTICULAR FOR THE ANNULMENT AND RESERVAL OF THE DECISION REFUSING TO INTEGRATE THE APPLICANT AND TERMINATING HIS CONTRACT AND, SECONDLY, FOR THE PAYMENT OF DAMAGES;

FOR COMPENSATION FOR THE NON-MATERIAL DAMAGE CAUSED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDAT;

P.657

I - ADMISSIBILITY

THE DEFENDANT HAS RAISED NO OBJECTION TO THE ADMISSIBILITY OF THE ACTION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . THE APPLICATION IS THEREFORE ADMISSIBLE .

II - THE SUBSTANCE OF THE CASE

1 . THE SUBMISSION THAT THE DECISION OF DISMISSAL SHOULD BE ANNULLED

THE APPLICANT CLAIMS THAT THE COURT SHOULD ANNUL THE DECISION OF 5 SEPTEMBER 1963 BY WHICH THE DEFENDANT, ON THE BASIS OF THE UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD, TERMINATED HIS CONTRACT OF EMPLOYMENT .

( A ) THE APPLICANT MAINTAINS THAT THE DEFENDANT INFRINGED ARTICLE 110 OF THE STAFF REGULATIONS OF THE EEC AND EAEC BY FAILING TO DRAW UP GENERAL PROVISIONS FOR GIVING EFFECT TO ARTICLE 102 OF THOSE REGULATIONS CONCERNING THE INTEGRATION PROCEDURE, AFTER CONSULTING THE STAFF COMMITTEE AND THE STAFF REGULATIONS COMMITTEE .

P.658

ACCORDING TO THE APPLICANT, THE ADOPTION OF IMPLEMENTING PROVISIONS WAS ALL THE MORE NECESSARY AS ARTICLE 102 IS SILENT ON A WHOLE SERIES OF IMPORTANT QUESTIONS, SUCH AS THE NUMBER OF MEMBERS OF THE ESTABLISHMENT BOARD, THE CONDITIONS IN WHICH IT MIGHT VALIDLY HOLD DISCUSSIONS, THE TIME ALLOWED TO A SERVANT TO PREPARE HIS DEFENCE, ETC .

THE PHRASE ' THE GENERAL PROVISIONS FOR GIVING EFFECT ' APPEARING IN ARTICLE 110 MENTIONED ABOVE REFERS IN THE FIRST INSTANCE TO THE IMPLEMENTING MEASURES EXPRESSLY PROVIDED FOR BY CERTAIN SPECIAL PROVISIONS OF THE STAFF REGULATIONS IN WHICH ARTICLE 102 IS NOT INCLUDED .

IN THE ABSENCE OF ANY EXPRESS PROVISION, THE OBLIGATION TO ADOPT IMPLEMENTING MEASURES SUBJECT TO THE FORMAL REQUIREMENTS OF THE SAID ARTICLE 110 CAN BE RECOGNIZED ONLY IN EXCEPTIONAL CIRCUMSTANCES, THAT IS, WHEN THE PROVISIONS OF THE STAFF REGULATIONS ARE SO UNCLEAR AND IMPRECISE THAT ANY APPLICATION OF THEM MUST BE ARBITRARY .

THIS DOES NOT APPLY IN THE PRESENT CASE .

ALTHOUGH IT IS TRUE THAT THE DEFECTS POINTED OUT BY THE APPLICANT HAVE LEFT THE INSTITUTIONS WITH A CERTAIN FREEDOM OF ACTION THIS FREEDOM IS LIMITED BY THE OBLIGATION TO ENSURE THAT THE PERSON CONCERNED HAS A FAIR CHANCE TO DEFEND HIMSELF .

IT FOLLOWS FROM THE FOREGOING THAT THE DEFENDANT WAS NOT OBLIGED TO CONSULT THE BODIES IN QUESTION ABOUT THE RULES IT INTENDED TO FOLLOW IN CONNEXION WITH INTEGRATION .

THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .

( B ) THE APPLICANT MAINTAINS THAT AS THE CONSEQUENCES OF AN UNFAVOURABLE OPINION BY THE ESTABLISHMENT BOARD MAY BE COMPARED WITH THOSE OF THE MOST SERIOUS DISCIPLINARY MEASURES AND OF DISMISSAL FOR INCOMPETENCE THE INTEGRATION PROCEDURE SHOULD HAVE BEEN ACCOMPANIED BY SAFEGUARDS SIMILAR TO THOSE LAID DOWN BY THE STAFF REGULATIONS IN THESE TWO CASES .

IN PARTICULAR, HE POINTS OUT THAT THE ESTABLISHMENT BOARD ' REACHED ITS DECISION IN THE ABSENCE OF ANY STAFF REPRESENTATION '.

THE PROVISIONS REFERRED TO BY WAY OF COMPARISON CONCERN OFFICIALS WHO ARE ALREADY INTEGRATED .

P.659

ON THE OTHER HAND, ALTHOUGH FROM A PURELY FORMAL POINT OF VIEW THE RULES CONCERNING THE INTEGRATION PROCEDURE ARE GOVERNED BY THE STAFF REGULATIONS, IN REALITY THEY FORM PART OF THE SYSTEM GOVERNING CONTRACTS EXISTING BEFORE THE ENTRY INTO FORCE OF THOSE REGULATIONS WHICH, BEING LIABLE TO TERMINATION BY EITHER SIDE ON ONE MONTH'S NOTICE, ALLOWED THE INSTITUTION TO EXERCISE RATHER WIDE DISCRETIONARY POWERS .

THESE CONSIDERATIONS ARE INCOMPATIBLE WITH THE ANALOGY PUT FORWARD BY THE APPLICANT .

AS REGARDS THE COMPLAINT OF LACK OF PARTICIPATION BY REPRESENTATIVES OF THE STAFF IT SHOULD BE POINTED OUT, FIRST, THAT THE COMPOSITION OF THE ESTABLISHMENT BOARD ITSELF OFFERED SUFFICIENT GUARANTEES AND, SECONDLY, THAT THE APPLICATION HAD THE RIGHT TO THE ASSISTANCE BEFORE THE ESTABLISHMENT BOARD OF A MEMBER OF THE STAFF CHOSEN BY HIM .

THE PRESENT COMPLAINT MUST THEREFORE BE DISMISSED .

( C ) THE APPLICANT COMPLAINS THAT THE ESTABLISHMENT BOARD DID NOT ALLOW HIM SUFFICIENT TIME TO PROVIDE IT WITH ALL THE DOCUMENTS, AMOUNTING TO 450 PAGES, WITH WHICH HE INTENDED TO DEMONSTRATE HIS ABILITIY TO PERFORM HIS DUTIES .

ACCORDING TO THE MINUTES OF THE MEETING OF THE ESTABLISHMENT BOARD ON 8 FEBRUARY 1963 THE APPLICANT WAS INFORMED BY THE CHAIRMAN AT THE BEGINNING OF HIS HEARING THAT HE WOULD HAVE THE OPPORTUNITY TO SUBMIT TO THE BOARD ' ANY DOCUMENTS WHICH HE CONSIDERED WOULD HELP HIS CASE '.

BY A LETTER DATED 12 FEBRUARY HE SUBMITTED THREE DOCUMENTS TO THE CHAIRMAN ' IN ORDER TO COMPLETE MY FILE '.

THE ESTABLISHMENT BOARD ISSUED ITS UNFAVOURABLE OPINION ON 19 FEBRUARY .

IT WAS NOT UNTIL 8 MAY THAT THE APPLICANT SUBMITTED A FURTHER 85 DOCUMENTS, RUNNING TO 450 PAGES, ADDRESSED MOREOVER TO THE DIRECTOR - GENERAL OF ADMINISTRATION AND PERSONNEL WITH A REQUEST TO ' PUT THEM ON MY INTEGRATION FILE '.

WHATEVER THE MEANING WHICH THE ESTABLISHMENT BOARD MUST HAVE ATTRIBUTED TO THE EXPRESSION ' TO COMPLETE ' IN THE LETTER OF 12 FEBRUARY, THE APPLICANT CAN HARDLY CRITICIZE THE ESTABLISHMENT BOARD FOR GIVING A DECISION WITHOUT FURTHER DELAY .

P.660

INDEED, HE MUST HAVE BEEN AWARE THAT THE ESTABLISHMENT BOARD WAS AT THAT TIME ENGAGED IN CONSIDERING THE CASES OF NUMEROUS SERVANTS AND THAT IT WAS IN THE INTERESTS OF BOTH THE ADMINISTRATION AND THE STAFF THAT THIS WORK BE COMPLETED AS SOON AS POSSIBLE .

THIS BEING SO, THE APPLICANT SHOULD HAVE SHOWN GREATER INITIATIVE AND DILIGENCE, EITHER BY SUBMITTING THE DOCUMENTS IN QUESTION MORE QUICKLY OR AT LEAST BY GIVING THE ESTABLISHMENT BOARD A CLEAR IDEA OF THE SIZE OF THE FILE WHICH HE STILL INTENDED TO SUBMIT AND THE TIME REQUIRED TO COMPILE IT .

FOR THE SAME REASONS THE COURT MUST DISMISS THE COMPLAINT THAT AFTER RECEIVING THE DOCUMENT SUBMITTED ON 8 MAY THE ESTABLISHMENT BOARD SHOULD HAVE REOPENED THE HEARINGS .

IT FOLLOWS FROM ALL THE ABOVE FACTORS THAT THE PRESENT COMPLAINT IS UNFOUNDED .

( D ) THE APPLICANT MAINTAINS THAT THE ESTABLISHMENT BOARD DID NOT GIVE HIM SUFFICIENT TIME TO EXAMINE THE 36 DOCUMENTS PRODUCED BY MR RECHT, HIS SUPERIOR, IN ORDER TO DEMONSTRATE THE INABILITY OF THE APPLICANT TO PERFORM HIS DUTIES .

THE APPLICANT WAS ABLE TO STUDY THE DOCUMENTS IN QUESTION ONLY ON 7 FEBRUARY ALTHOUGH HIS HEARING TOOK PLACE ON 8 FEBRUARY .

THE DEFENDANT ALLEGES, HOWEVER, THAT THE SHORTNESS OF THIS PERIOD COULD NOT HAVE BEEN PREJUDICIAL TO THE APPLICANT'S DEFENCE, SINCE IT WAS HE WHO WAS THE AUTHOR OF THESE DOCUMENTS .

THIS ARGUMENT IS IRRELEVANT, SINCE AT THE TIME WHEN HE CONSULTED THE DOCUMENTS THE APPLICANT COULD NOT HAVE KNOWN THE EFFECT WHICH THEY WERE LIKELY TO HAVE ON THE INTEGRATION PROCEDURE .

IT APPEARS, HOWEVER, FROM THE MINUTES OF THE MEETING OF 8 FEBRUARY THAT THE APPLICANT WAS INFORMED IN DETAIL OF THE COMPLAINTS MADE BY MR RECHT AND WAS ABLE TO GIVE HIS COMMENTS ON THEM .

THIS BEING SO, IT HAS NOT BEEN SHOWN THAT THE SHORT PERIOD WHICH HE WAS ALLOWED TO STUDY THESE DOCUMENTS WAS DAMAGING TO HIS INTERESTS .

THIS COMPLAINT IS THEREFORE UNFOUNDED .

( E ) THE APPLICANT ALLEGES THAT, AS THE SUBSTANCE OF MR RECHT'S STATEMENTS WAS ONLY COMMUNICATED TO HIM ORALLY, HE COULD NEVER BE SURE THAT THE ESTABLISHMENT BOARD HAD CHECKED WHETHER THE CRITICISMS WERE JUSTIFIED BY THE FILE WHICH HE HAD SUBMITTED .

P.661

THIS COMPLAINT WOULD LEAD TO AN ADMISSION THAT THE ESTABLISHMENT BOARD WAS BOUND TO INFORM SERVANTS IN WRITING OF ANY UNFAVOURABLE ASSESMENTS MADE BY THEIR SUPERIORS .

THAT VIEW CANNOT BE ACCEPTED, SINCE ORAL INTIMATION IS SUFFICIENT TO ENABLE SERVANTS TO DEFEND THEMSELVES PROVIDED THAT IT IS COMPLETE .

IN THE PRESENT CASE THERE IS NO REASON TO SUPPOSE THAT THE ESTABLISHMENT BOARD CONCEALED FROM THE APPLICANT IMPORTANT PARTS OF MR RECHT'S STATEMENT .

THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .

( F ) THE APPLICANT POINTS OUT THAT IN THE ABSENCE OF PRECISE CRITERIA DRAWN UP BY THE DEFENDANT THE COMMENTS MADE ON THE VARIOUS SERVANTS OF THE DEFENDANT FOR THE PURPOSES OF THE INTEGRATION PROCEDURE WERE WIDELY DIFFERENT, ACCORDING TO THE DEGREE OF SEVERITY SHOWN BY EACH SUPERIOR .

THE MOST PRECISE CRITERIA OF ASSESSMENT COULD NOT PREVENT SOME SUPERIORS FROM BEING MORE SEVERE THAN OTHERS IN JUDGING THEIR SUBORDINATES .

IT WAS FOR THE ESTABLISHMENT BOARD TO QUOTE THE ASSESSMENTS OF THE VARIOUS REPORTING OFFICIALS .

IN THE PRESENT CASE, A COMPARISON BETWEEN THE ASSESSMENT MADE BY MR RECHT AND THE MORE FINELY SHADED AND UNDERSTANDING ASSESSMENT OF THE ESTABLISHMENT BOARD SHOWS THE LATTER TO HAVE FORMED AN INDEPENDENT OPINION .

THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .

( G ) THE APPLICANT CRITICIZES THE ESTABLISHMENT BOARD FOR HAVING FAILED TO ALLOW HIM A CONFRONTATION WITH MR RECHT .

IN INTEGRATION CASES THE ESTABLISHMENT BOARD IS OBLIGED TO ARRANGE FOR A CONFRONTATION BETWEEN A SUBORDINATE AND HIS SUPERIOR ONLY IF THE ABSENCE OF SUCH A MEETING WOULD MAKE IT IMPOSSIBLE FOR THE BOARD TO CLARIFY ESSENTIAL FACTS IN DISPUTE BETWEEN THE PARTIES CONCERNED TO AN EXTENT SUFFICIENT IN LAW .

THERE IS NO REASON TO SUPPOSE THAT THIS WAS THE POSITION IN THE PRESENT CASE .

THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .

P.662

( H ) THE APPLICANT MAINTAINS THAT AS HE WAS NOT INFORMED OF THE OPINION OF THE ESTABLISHMENT BOARD BEFORE BEING INFORMED OF THE DECISION TO DISMISS HIM HE WAS THEREBY DEPRIVED OF THE OPPORTUNITY OF INVOKING THE ILLEGALITY OF THAT OPINION AT A TIME WHEN THE DEFENDANT HAD NOT YET MADE UP ITS MIND .

THERE IS NO PROVISION REQUIRING THE IMMEDIATE COMMUNICATION TO THE PERSON CONCERNED OF THE OPINION WHICH WAS ADDRESSED SOLELY TO THE INSTITUTION .

THE INTERESTS OF THE CANDIDATE ARE SUFFICIENTLY PROTECTED IN LAW BY HIS RIGHT TO LODGE A COMPLAINT AND, IF NECESSARY, TO APPEAL TO THE COURT AGAINST THE DECISION REFUSING HIM INTEGRATION AND DISMISSING HIM .

MOREOVER, THE COMPLAINT IS FACTUALLY INACCURATE, SINCE THE DEFENDANT INFORMED THE APPLICANT ORALLY OF THE OPINION IN QUESTION, WHICH EFFECTIVELY ENABLED HIM TO LODGE A COMPLAINT AGAINST THE OPINION .

THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .

( I ) THE APPLICANT COMPLAINS THAT, BY CONCEALING FROM HIM THE FACT THAT THE ESTABLISHMENT BOARD HAD RECOMMENDED HIS INTEGRATION IN THE GRADE IMMEDIATELY BELOW, THE DEFENDANT RENDERED IT IMPOSSIBLE FOR HIM TO DEFEND HIMSELF PROPERLY .

HE ARGUES THAT THIS OMISSION CONSTITUTES IN ADDITION A FAILURE TO GIVE SUFFICIENT REASONS FOR THE DECISION, BECAUSE ' IN ORDER TO REFUSE THE INTEGRATION OF THE APPLICANT THE DEFENDANT RELIED ON AN OPINION WHICH GRANTED IT '.

ACCORDING TO ARTICLE 102 OF THE STAFF REGULATIONS THE ESTABLISHMENT BOARD WAS ONLY REQUIRED TO GIVE ITS OPINION ON THE SUITABILITY OF THE CANDIDATE FOR THE DUTIES WHICH HE IN FACT CARRIED OUT .

IN THE PRESENT CASE IT ISSUED AN UNFAVOURABLE ASSESSMENT ON THAT POINT, WHICH OBLIGED THE DEFENDANT TO TERMINATE THE APPLICANT'S CONTRACT .

ALTHOUGH IT ALSO PUT FORWARD THE ABOVEMENTIONED PROPOSAL, THIS CONSTITUTED NO MORE THAN A SUGGESTION WITHOUT ANY BINDING LEGAL CONSEQUENCES .

IN THESE CIRCUMSTANCES, THE DEFENDANT WAS NEITHER OBLIGED TO COMMUNICATE THE SUGGESTION TO THE PERSON CONCERNED NOR TO INFORM HIM WHY IT HAD NOT BEEN ACCEPTED .

THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .

P.663

( K ) THE APPLICANT STATES THAT THE UNFAVOURABLE ASSESSMENT MADE BY MR RECHT AND ENDORSED BY THE ESTABLISHMENT BOARD WAS IN FACT INFLUENCED BY THE PERSONAL ANIMOSITY WHICH MR RECHT HAD FELT FOR HIM SINCE THE OCCURRENCE OF CERTAIN SPECIFIC EVENTS .

IN SUPPORT OF THIS COMPLAINT, HE POINTS OUT THAT BEFORE THE ASSESSMENT IN QUESTION HE HAD NEVER BEEN CRITICIZED BY MR RECHT .

IT EMERGES FROM THE MINUTES OF THE ESTABLISHMENT BOARD THAT MR RECHT BASED HIS UNFAVOURABLE JUDGMENT ON A SERIES OF DEFINITE FACTS AND THAT THE APPLICANT SUBSEQUENTLY STATED HIS CASE, IN AN EQUALLY DEFINITE MANNER, CONCERNING THE JUSTIFICATION FOR THESE CRITICISMS .

MOREOVER, THE DETAILED NATURE OF THE CRITICISMS MADE BY MR RECHT MAY BE SEEN FROM THE FACT THAT HE SUPPORTED HIS STATEMENTS BY FILING A CONSIDERABLE NUMBER OF DOCUMENTS DRAWN UP BY THE APPLICANT .

FINALLY, AS STATED ABOVE, THE ESTABLISHMENT BOARD FORMED ITS OWN OPINION, WHICH WAS MORE FINELY SHADED THAN THAT OF MR RECHT .

THIS BEING SO, IT MUST BE HELD THAT THE CONTESTED DECISION IS BASED ON THE INDEPENDENT ASSESSMENT MADE BY THE ESTABLISHMENT BOARD OF THE FACTUAL ARGUMENTS PUT FORWARD ON BOTH SIDES AND IS NOT INFLUENCED BY THE REAL OR ALLEGED ANIMOSITY FELT BY MR RECHT .

MOREOVER, THE FACT THAT A SUPERIOR MAY NOT FORMALLY HAVE CRITICIZED HIS SUBORDINATE DOES NOT NECESSARILY MEAN THAT THE SUBORDINATE'S PERFORMANCE WAS WHOLLY SATISFACTORY .

IT FOLLOWS FROM ALL THESE FACTORS THAT THE PRESENT COMPLAINT IS UNFOUNDED .

( 1 ) IN HIS REPLY, THE APPLICANT MAINTAINS THAT THE ESTABLISHMENT BOARD ACTED IMPROPERLY IN FAILING TO HEAR MR MEDI, VICE-PRESIDENT OF THE COMMISSION OF THE EAEC .

THE DEFENDANT HAS NOT CLAIMED THAT THIS SUBMISSION WAS MADE OUT OF TIME AND IT MUST BE OBSERVED IN ADDITION THAT THE APPLICANT DID NOT GAIN ACCESS TO THE MINUTES OF THE ESTABLISHMENT BOARD UNTIL AFTER PROCEEDINGS HAD COMMENCED .

THE APPLICANT'S ESTABLISHMENT REPORT, DRAWN UP IN VERY CRITICAL TERMS BY MR RECHT, CONTAINS AT THE FOOT OF THE PAGE, A HAND-WRITTEN OBSERVATION BY MR MEDI READING AS FOLLOWS : ' ABOVE OPINION NOT AGREED, PARTICULARLY AS REGARDS THE VERY SEVERE STRICTURES ON CERTAIN POINTS . AFTER INTEGRATION IT WILL BE ADVISABLE TO REORGANIZE THE DUTIES OF THE POST '.

THE ESTABLISHMENT BOARD PROCEEDED TO HEAR MR RECHT BUT DID NOT CONSIDER IT NECESSARY TO HEAR MR MEDI .

IN ORDER NOT TO INFRINGE THE APPLICANT'S RIGHTS TO DEFEND HIMSELF IT WAS THE DUTY OF THE ESTABLISHMENT BOARD TO INVESTIGATE EVERY GENUINE SOURCE OF INFORMATION CAPABLE OF SUPPORTING THE CASE OF THE SERVANT CONCERNED .

IN THE PRESENT CASE, THE HEARING OF THE VICE - PRESIDENT OF THE DEFENDANT INSTITUTION CONSTITUTED SUCH A SOURCE OF INFORMATION .

FROM THE REMARKS WHICH HE WROTE IN THE MARGIN OF THE ESTABLISHMENT REPORT IT MAY BE SUPPOSED THAT HE WAS IN A POSITION TO FORM A FIRSTHAND OPINION OF THE ABILITIES OF THE APPLICANT AND THAT HE EVEN REGARDED HIS ESTABLISHMENT AS VIRTUALLY CERTAIN .

IN REPLY TO THIS COMPLAINT THE DEFENDANT MAINTAINS, FIRST, THAT MR MEDI WAS NOT THE SUPERIOR OF THE APPLICANT NOR OF MR RECHT AND, SECONDLY, THAT THE OBSERVATION IN DISPUTE WAS ADDRESSED TO THE MEMBERS OF THE COMMISSION OF THE EAEC AND NOT TO THE MEMBERS OF THE ESTABLISHMENT BOARD .

NEITHER OF THESE ARGUMENTS IS CONVINCING .

MR MEDI MUST HAVE BEEN AWARE THAT ACCORDING TO ARTICLE 102 OF THE STAFF REGULATIONS THE ESTABLISHMENT REPORT WAS TO BE DRAWN UP SOLELY BY THE CANDIDATE'S SUPERIORS AND WAS INTENDED, FIRST AND FOREMOST, FOR THE USE OF THE ESTABLISHMENT BOARD, AN UNFAVOURABLE OPINION OF WHICH WAS BINDING ON THE INSTITUTION .

CONSEQUENTLY, TO ACCEPT THE DEFENDANT'S ARGUMENTS WOULD AMOUNT TO SAYING THAT MR MEDI NOT ONLY EXCEEDED HIS POWERS, BUT ALSO ACTED IN IGNORANCE OF ELEMENTARY PROVISIONS OF THE STAFF REGULATIONS .

SUCH BEHAVIOUR IS BOTH IMPROBABLE AND INCOMPATIBLE WITH THE DIGNITY OF THE VICE-PRESIDENT OF A COMMUNITY INSTITUTION .

MOREOVER, WHATEVER REASONS MAY HAVE LED MR MEDI TO MAKE THE OBSERVATION IN QUESTION, THE EXISTENCE OF SUCH AN OBSERVATION, WRITTEN BY A PERSON OF SUCH HIGH RANK, WAS ITSELF ENOUGH TO OBLIGE THE ESTABLISHMENT BOARD NOT TO DISREGARD IT .

P.665

IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE PRESENT COMPLAINT IS WELL FOUNDED .

( M ) THE ESTABLISHMENT BOARD IS CRITICIZED FOR FAILING TO TAKE SUFFICIENT ACCOUNT OF THE EXTENT AND QUALITY OF THE APPLICANT'S ACTIVITIES AS STAFF REPRESENTATIVE .

SINCE THE COMPLAINT CONSIDERED UNDER ( 1 ) ABOVE IS WELL FOUNDED, IT IS UNNECESSARY TO EXAMINE THE PRESENT COMPLAINT .

THE COURT MERELY FINDS THAT THE ESTABLISHMENT BOARD WAS BOUND TO EXAMINE THE EXTENT TO WHICH HIS ACTIVITY COULD, WITHOUT ANY FAULT ON HIS PART, HAVE HAD AN UNFAVOURABLE INFLUENCE NOT ONLY ON THE QUANTITY BUT ALSO ON THE QUALITY OF THE WORK INVOLVED IN HIS POST AS PROVIDED FOR IN THE BUDGET .

IN FACT, THE APPLICANT PLAYED A VERY IMPORTANT AND PERMANENT ROLE ON THE STAFF SIDE; MOREOVER, THESE ACTIVITIES TOOK PLACE IN AN INSTITUTION WITH A LARGE STAFF AT A TIME WHEN THE ENTRY INTO FORCE OF THE STAFF REGULATIONS REQUIRED INCREASED VIGILANCE AND ACTIVITY ON THE PART OF THE STAFF REPRESENTATIVES .

IN SUCH A SITUATION IT WAS THE DUTY OF THE INSTITUTION TO ASSIST THE STAFF REPRESENTATIVES AS MUCH AS POSSIBLE IN ORDER TO PREVENT THEIR HAVING TO CHOOSE, THROUGH NO FAULT OF THEIR OWN, BETWEEN NEGLECTING TO DEFEND THE INTERESTS OF THE STAFF OR ENDANGERING THEIR OWN INTEGRATION BY SHORTCOMINGS IN THEIR POSTS AS PROVIDED FOR IN THE BUDGET .

( N ) IT FOLLOWS FROM THE CONSIDERATION SET OUT ABOVE ( UNDER ( 1 )) THAT THE INTEGRATION PROCEDURE IS VITIATED BY A SERIOUS DEFECT .

HOWEVER, SHORT OF TRESPASSING UPON AREAS RESERVED FOR THE JUDGMENT OF THE ESTABLISHMENT BOARD, THE COURT CANNOT DECIDE WHETHER THIS BOARD WOULD HAVE BEEN ENTITLED, EVEN IN THE ABSENCE OF THE IRREGULARITIES MENTIONED ABOVE, TO ISSUE AN UNFAVOURABLE OPINION CONCERNING THE APPLICANT .

THE COURT MUST CONFINE ITSELF TO FINDING THE EXISTENCE OF A PRESUMPTION OF FACT THAT IN SUCH CIRCUMSTANCES THE ESTABLISHMENT BOARD MIGHT HAVE REACHED A DIFFERENT SOLUTION .

THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .

THE APPLICANT HAS ALSO CLAIMED THAT IN THE EVENT OF ANNULMENT THE COURT SHOULD INTEGRATE HIM UNDER THE STAFF REGULATIONS OR ALTERNATIVELY SHOULD DECLARE THAT HE ' SHALL BE INTEGRATED IN ACCORDANCE WITH THE APPROPRIATE PROCEDURE '.

P.666

THE ESTABLISHMENT BOARD IS, HOWEVER, REQUIRED TO MAKE A COMPREHENSIVE VALUE-JUDGMENT FOR WHICH THE COURT CANNOT SUBSTITUTE ITS OWN .

THE COURT CAN, THEREFORE, ONLY REFER THE CASE BACK TO THE DEFENDANT AND THE ESTABLISHMENT BOARD FOR A RECONSIDERATION OF THE CANDIDATURE OF THE APPLICANT IN ACCORDANCE WITH THE PROPER PROCEDURE .

2 . THE ARREARS OF REMUNERATION

( A ) THE APPLICANT CLAIMS, IN THE FIRST PLACE, THAT THE DEFENDANT SHOULD BE ORDERED TO PAY HIM ' THE ARREARS OF REMUNERATION PAYABLE FOLLOWING HIS INTEGRATION '.

THIS CLAIM PRESUPPOSES A FINDING BY THE COURT THAT THE DEFENDANT WAS OBLIGED TO INTEGRATE THE APPLICANT UNDER THE STAFF REGULATIONS .

SINCE THE COURT HAS ALREADY HELD THAT IT HAS NO JURISDICTION SO TO FIND, THIS CLAIM MUST BE DISMISSED .

( B ) ALTERNATIVELY, THE APPLICANT CLAIMS PAYMENT OF ' REMUNERATION APPROPRIATE TO HIS DUTIES THAT IS, BFRS . 45 502 NET PER MONTH, FROM AT THE LEAST THE DATE ON WHICH HE CEASED TO PERFORM HIS DUTIES UNTIL THE DEFENDANT HAS TAKEN A VALID DECISION CONCERNING HIM '.

AS A RESULT OF THE ANNULMENT OF THE CONTESTED DECISION THE APPLICANT IS DEEMED TO BE STILL IN THE SERVICE OF THE DEFENDANT AND SUBJECT TO THE CONDITIONS GOVERNING HIS CONTRACT OF EMPLOYMENT .

HIS CLAIM IS THEREFORE WELL FOUNDED .

THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE APPLICANT THE EMOLUMENTS DUE UNDER HIS CONTRACT, HELD IN THE PERIOD BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, FOR THE PERIOD BETWEEN THE TERMINATION OF HIS EMPLOYMENT BY VIRTUE OF THE CONTESTED DECISION AND THE NOTIFICATION TO HIM OF THE NEW DECISION WHICH THE DEFENDANT IS REQUIRED TO TAKE AS TO WHETHER HE SHOULD OR SHOULD NOT BE INTEGRATED .

HOWEVER, IN ORDER THAT THERE BE NO UNJUSTIFIED ENRICHMENT THE FOLLOWING MUST, IF APPROPRIATE, BE DEDUCTED FROM THE ABOVE SUM :

- THE NET REMUNERATION RECEIVED BY THE APPLICANT AS A RESULT OF EMPLOYMENT OUTSIDE THE COMMUNITIES BETWEEN THE DATE OF TERMINATION OF HIS APPOINTMENT AND THE DATE OF THE NEW DECISION;

- THE EMOLUMENTS RECEIVED BY THE APPLICANT FROM THE DEFENDANT BY REASON OF HIS DISMISSAL .

3 . THE NON-MATERIAL DAMAGE

THE APPLICANT CLAIMS THAT THE DEFENDANT SHOULD BE ORDERED TO PAY HIM BFRS . 150 000 ' AS COMPENSATION FOR THE NON-MATERIAL DAMAGE HE HAS SUFFERED '.

UNDER THIS HEADING HE PUTS FORWARD BOTH IRREGULARITIES VITIATING THE CONTESTED DECISION AND WRONGFUL ACTS OR OMISSIONS ON THE PART OF THE DEFENDANT IN THE DISCUSSIONS WHICH TOOK PLACE AFTER THE CLOSURE OF THE INTEGRATION PROCEDURE .

( A ) AS REGARDS THE FIRST PART OF THIS SUBMISSION THE CLAIM IS IN PRINCIPLE WELL FOUNDED, SINCE THE IRREGULARITY COMMITTED BY THE DEFENDANT CONSTITUTED A WRONGFUL ACT OR OMISSION AS A RESULT OF WHICH THE APPLICANT SUFFERED NON - MATERIAL DAMAGE .

IN THE LIGHT OF THE FACTS OF THE CASE IT IS FAIR TO FIX THE AMOUNT OF THE NON-MATERIAL DAMAGE AT BFRS . 20 000 .

( B ) AS REGARDS THE SECOND PART OF THIS SUBMISSION THE APPLICANT REFERS TO ALLEGED EQUIVOCATIONS BY THE DEFENDANT DURING THE DISCUSSIONS WHICH TOOK PLACE BETWEEN THE PARTIES IN ORDER TO REACH AN AMICABLE SETTLEMENT ON THE CONCLUSION OF A NEW CONTRACT OF EMPLOYMENT .

EVEN ASSUMING THE ALLEGATIONS OF THE APPLICANT TO BE FACTUALLY ACCURATE THEY DO NOT REVEAL ANY NEW WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT .

AS THE UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD WAS ENTITLED TO A PRESUMPTION OF LEGALITY, THE DEFENDANT WAS JUSTIFIED IN CONSIDERING ITSELF NOT BOUND TO EXTEND THE APPLICANT'S APPOINTMENT, WITH THE RESULT THAT THE DISCUSSIONS IN QUESTION WERE PURELY OPTIONAL .

THE SECOND PART OF THIS SUBMISSION IS THEREFORE UNFOUNDED .

4 . INTEREST

THE APPLICANT CLAIMS THAT THE COURT SHOULD ORDER THE DEFENDANT TO PAY HIM ' COMPENSATORY INTEREST AT THE RATE OF 6 PER CENT PER ANNUM ON ALL SUCH SUMS AS IT SHALL BE ORDERED TO PAY, FROM THE DATE ON WHICH IT SHOULD HAVE PAID OR SHALL BE REQUIRED TO PAY THEM '.

THIS CLAIM CANNOT BE ACCEPTED AS REGARDS THE SUM PAYABLE IN RESPECT OF NON-MATERIAL DAMAGE, SINCE THAT SUM WAS CALCULATED AT A FLAT RATE .

ON THE OTHER HAND, THE CLAIM IS IN PRINCIPLE WELL-FOUNDED AS REGARDS THE ARREARS OF REMUNERATION, EXCEPT THAT IT SHOULD BE REDUCED TO A RATE OF 4.5 PER CENT PER ANNUM . IT SHOULD ALSO BE POINTED OUT THAT :

- AS REGARDS THE BASIS OF CALCULATION, IT MUST BE LIMITED TO THE REMUNERATION RELATING TO THE PERIOD BETWEEN THE DATE ON WHICH, BY VIRTUE OF THE DECISION IN DISPUTE, THE APPOINTMENT OF THE APPLICANT CAME TO AN END AND THE DATE ON WHICH THE PRESENT JUDGMENT IS GIVEN, SINCE REMUNERATION RELATING TO THE SUBSEQUENT PERIOD DOES NOT CONSTITUTE ' ARREARS ';

- AS REGARDS THE PERIOD OVER WHICH INTEREST IS DUE, THIS MUST BE CALCULATED SEPARATELY FOR EACH MONTH'S REMUNERATION AND MUST BEGIN TO RUN ON THE DATE ON WHICH THE EMOLUMENTS FOR THE MONTH IN QUESTION SHOULD HAVE BEEN PAID AND SHALL EXPIRE ON THE DATE ON WHICH THE APPLICANT SHALL ACTUALLY RECEIVE SUCH EMOLUMENTS .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

SINCE THE APPLICANT HAS SUCCEEDED IN THE MAIN POINTS OF HIS APPLICATION, THE DEFENDANT SHOULD BE ORDERED TO PAY THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF 5 SEPTEMBER 1963 BY WHICH THE DEFENDANT TERMINATED THE CONTRACT OF THE APPLICANT;

2 . REFERS THE CASE BACK TO THE DEFENDANT IN ORDER THAT THE INTEGRATION PROCEDURE BE REOPENED AS REGARDS THE APPLICANT;

3 . ( A ) ORDERS THE DEFENDANT TO PAY TO THE APPLICANT THE EMOLUMENTS DUE UNDER HIS CONTRACT, CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, FOR THE PERIOD BETWEEN THE TERMINATION OF HIS EMPLOYMENT BY REASON OF THE ABOVEMENTIONED DECISION AND THE NOTIFICATION TO HIM OF A NEW DECISION ON THE QUESTION OF HIS INTEGRATION;

( B ) WHERE APPROPRIATE THE SUM REFERRED TO UNDER ( A ) SHALL BE REDUCED BY THE AMOUNT OF :

( I ) THE NET REMUNERATION RECEIVED BY THE APPLICANT FROM EMPLOYMENT OUTSIDE THE COMMUNITY BETWEEN THE DATES REFERRED TO ABOVE;

( II ) THE EMOLUMENTS RECEIVED BY THE APPLICANT FROM THE DEFENDANT BY REASON OF HIS DISMISSAL;

( C ) ( I ) ORDERS THE DEFENDANT TO PAY TO THE APPLICANT ANNUAL INTEREST AT A RATE OF 4.5 PER CENT ON THE SUM RESULTING FROM THE APPLICATION OF SUBPARAGRAPHS ( A ) AND ( B ) ABOVE, TO THE EXTENT THAT THIS SUM RELATES TO THE PERIOD BEFORE THIS JUDGMENT WAS GIVEN;

( II ) THE PERIOD OVER WHICH SUCH INTEREST IS DUE BEGINS, AS REGARDS EACH MONTH'S REMUNERATION, ON THE DATE ON WHICH THE EMOLUMENTS FOR THE MONTH IN QUESTION SHOULD HAVE BEEN PAID AND EXPIRES ON THE DATE ON WHICH THE APPLICANT SHALL ACTUALLY RECEIVE SUCH EMOLUMENTS;

4 . ORDERS THE DEFENDANT TO PAY TO THE APPLICANT BFRS . 20 000 AS COMPENSATION FOR NON-MATERIAL DAMAGE;

5 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION .