61963J0026

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ADMINISTRATION MADE PARTY TO PROCEEDINGS APPOINTING AUTHORITY - CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS

( EEC TREATY, ARTICLE 179; STAFF REGULATIONS OF THE EEC, ARTICLES 90, 91 )

2 . OFFICIALS - DISPUTES WITH THE COMMUNITIES - DEFENDANT - CAPACITY TO APPEAR FOR THE COMMUNITY

( EEC TREATY, ARTICLE 179; STAFF REGULATIONS OF THE EEC, ARTICLE 91 )

3 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ACT ADVERSELY AFFECTING A SERVANT - CONCEPT

( STAFF REGULATIONS OF THE EEC, ARTICLE 91 )

4 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - ACT WHICH CANNOT BE CONTESTED SEPARATELY - ACTION TO BE BROUGHT AGAINST THE DECISION TERMINATING A CONTRACT - WHETHER SUBMISSIONS AND ARGUMENTS AGAINST THE INTEGRATION PROCEDURE MAY BE USED IN ACTION

( STAFF REGULATIONS OF THE EEC, ARTICLE 102 )

5 . OFFICIALS - INTEGRATION - APPEAL AGAINST THE ADMINISTRATION - EXECUTION OF JUDGMENT - RE-OPENING OF THE INTEGRATION PROCEDURE ACCEPTED AS A MEASURE OF EXECUTION

( STAFF REGULATIONS OF THE EEC, ARTICLE 91 )

6 . OFFICIALS - STAFF REGULATIONS - FINAL PROVISIONS - LEGAL NATURE

( STAFF REGULATIONS OF THE EEC, ARTICLE 110 )

7 . OFFICIALS - INTEGRATION - DESCRIPTION OF DUTIES NOT NECESSARY FOR THE PURPOSES OF INTEGRATION ( STAFF REGULATIONS OF THE EEC, ARTICLES 5, 102 )

8 . OFFICIALS - INTEGRATION - UNFAVOURABLE OPINION BY THE BOARD - RIGHT OF THE PERSON CONCERNED TO SUBMIT HIS COMMENTS

( STAFF REGULATIONS OF THE EEC, ARTICLE 102 )

9 . OFFICIALS - INTEGRATION - POWERS OF THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS OF THE EEC, ARTICLE 102 )

10 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - STATEMENT OF REASONS

( STAFF REGULATIONS OF THE EEC, ARTICLE 102 )

1 . IT FOLLOWS FROM ARTICLE 179 OF THE EEC TREATY AND FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS THAT THE APPOINTING AUTHORITY, WHICH EXERCISES IN FACT THE POWERS OF AN EMPLOYER WITH REGARD TO OFFICIALS, HAS THE CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS IN DISPUTES BETWEEN SERVANTS AND THE ADMINISTRATION .

CF . PARA . 1 OF SUMMARY IN JOINED CASES 79 AND 82/63 .

2 . AN APPEAL TO THE COURT UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC MUST BE BROUGHT AGAINST THE INSTITUTION TO WHOM THE PERSON CONCERNED IS RESPONSIBLE . THAT INSTITUTION IS AUTHORIZED TO APPEAR ON BEHALF OF THE COMMUNITY .

CF . PARA . 1 OF SUMMARY IN CASE 18/63 .

3 . ONLY ACTS WHICH ARE CAPABLE OF DIRECTLY AFFECTING A GIVEN LEGAL SITUATION CAN BE CONSIDERED AS ADVERSELY AFFECTING A PERSON .

4 . THE OPINION OF THE ESTABLISHMENT BOARD IS NOT A MEASURE SEPARABLE FROM THE DECISION OF THE APPOINTING AUTHORITY FOR THE PURPOSES OF THE APPEAL PROVIDED FOR IN ARTICLE 91 . CONCLUSIONS SEEKING ANNULMENT OF THE INTEGRATION PROCEDURE AND OF THE OPINION OF THE ESTABLISHMENT BOARD, CONSIDERED SEPARATELY FROM THE CONTESTED DECISION TO TERMINATE THE CONTRACT, ARE INADMISSIBLE . HOWEVER, THE SUBMISSIONS AND ARGUMENTS PUT FORWARD IN SUPPORT OF THESE CONCLUSIONS MAY BE INVOKED AGAINST THE DECISION TO TERMINATE THE CONTRACT ITSELF .

CF . PARA . 2 OF SUMMARY IN CASE 84/63 .

5 . 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 .

6 . THE IMPLEMENTING PROVISIONS PROVIDED FOR IN ARTICLE 110 OF THE STAFF REGULATIONS ARE OF A GENERAL NATURE . THEY ARE THEREFORE ONLY NECESSARY FOR THE IMPLEMENTATION OF THE PERMANENT PROVISIONS OF THE STAFF REGULATIONS .

7 . THE DEFINITION OF DUTIES WITHIN THE MEANING OF ARTICLE 5 OF THE STAFF REGULATIONS OF OFFICIALS CANNOT BE CONSIDERED AS AN INDISPENSABLE LEGAL PROCEDURE FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 102 .

8 . BEFORE ISSUING AN UNFAVOURABLE OPINION, THE ESTABLISHMENT BOARD MUST AFFORD THE PERSON CONCERNED AN OPPORTUNITY TO SUBMIT HIS COMMENTS ON THE FACTORS CAPABLE OF INFLUENCING HIS INTEGRATION . THIS REQUIREMENT IS SATISFIED WHEN THE PERSON CONCERNED HAS BEEN HEARD AT WHATEVER TIME BY THE BOARD IN CONNEXION WITH THE FACTORS IN THE REPORT WHICH FORMED THE BASIS FOR ITS DECISION AND FROM WHICH IT DREW ITS CONCLUSIONS .

9 . THE INTEGRATION PROCEDURE ENABLES THE ADMINISTRATION TO CHOOSE THE OFFICIALS WHO WILL HENCEFORTH BENEFIT FROM THE GUARANTEES UNDER THE STAFF REGULATIONS . THIS CHOICE PRESUPPOSES A CERTAIN FREEDOM OF JUDGMENT AND THEREFORE A PROCEDURE WHICH DOES NOT NECESSARILY INCLUDE ALL THE GUARANTEES AFFORDED TO OFFICIALS UNDER THE STAFF REGULATIONS . REVIEW BY THE COURT CAN THEREFORE BE EXERCISED ONLY OVER THOSE FACTORS IN WHICH CLEAR INJUSTICE MAY BE SEEN .

10 . THE OPINION OF THE ESTABLISHMENT BOARD SUFFICIENTLY STATES THE REASONS ON WHICH IT IS BASED BY MEANS OF THE REFERENCES MADE BOTH TO THE INFORMATION USED AND TO THE BASIC FACTORS BORNE IN MIND UNDERLYING ITS ASSESSMENT .

IN CASE 26/63

PIERGIOVANNI PISTOJ, A SERVANT OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, AND BY GIUSEPPE GUARINO, ADVOCATE OF THE ROME BAR, PROFESSOR AT THE INSTITUTE OF ECONOMIC AND COMMERCIAL SCIENCE IN ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG, AT THE CHAMBERS OF MR ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN, APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, P . LELEUX, ACTING AS AGENT, ASSISTED BY J . COUTARD, ADVOCATE OF THE CONSEIL D'ETAT AND OF THE COUR DE CASSATION OF FRANCE, 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

1 . PRINCIPALLY :

FOR ANNULMENT OF THE INTEGRATION PROCEDURE UNDERGONE BY THE APPLICANT, AS WELL AS ANCILLARY MEASURES;

THE REINSTATEMENT OF THE APPLICANT IN RESPECT OF HIS RIGHTS AND DUTIES;

2 . ALTERNATIVELY :

A FINDING OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMISSION AND THE CONSEQUENT REPARATION FOR THE DAMAGE SUFFERED BY THE APPLICANT,

A - THE NAMING OF THE DEFENDANTS AS PARTIES

THE APPLICATION IS BROUGHT AGAINST THE EUROPEAN ECONOMIC COMMUNITY OR, ' ALTERNATIVELY ', AGAINST THE COMMISSION OF THAT COMMUNITY .

UNDER ARTICLE 179 OF THE EEC TREATY, ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT '. THE EXPRESSION ' THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS ' NECESSARILY IMPLIES THAT THERE IS CONFERRED UPON THE INSTITUTION ITSELF, AS THE APPOINTING AUTHORITY EXERCISING ITS POWERS EITHER DIRECTLY OR INDIRECTLY, THE RIGHT TO BE A PARTY TO LEGAL PROCEEDINGS RELATING TO DISPUTES WITH ITS SERVANTS AND OFFICIALS .

ARTICLE 90 OF THE STAFF REGULATIONS, GOVERNING COMPLAINTS THROUGH OFFICIAL CHANNELS PRIOR TO AN APPEAL TO THE COURT, PROVIDES THAT ANY OFFICIAL MAY SUBMIT A REQUEST OR COMPLAINT TO THE APPOINTING AUTHORITY OF HIS INSTITUTION . THE APPEAL TO THE COURT REFERRED TO IN ARTICLE 91 OF THE STAFF REGULATIONS MUST, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, FOLLOW SIMILAR RULES AND BE MADE AGAINST THE SAME INSTITUTION . THE DECISION TO TERMINATE THE APPLICANT'S CONTRACT WAS TAKEN BY THE COMMISSION WHICH, IN RELATION TO THE APPLICANT, EXERCISES THE POWERS CONFERRED ON THE APPOINTING AUTHORITY . THE APPEAL MUST THEREFORE BE CONSIDERED AS BROUGHT AGAINST THE COMMISSION OF THE EEC .

B - APPLICATION FOR ANNULMENT

ADMISSIBILITY

THE FIRST CLAIM IN THE APPLICANT'S CONCLUSIONS IS FOR THE ANNULMENT BOTH OF THE INTEGRATION PROCEDURE WHICH WAS APPLIED TO HIM AND OF THE ESTABLISHMENT BOARD'S OPINION WHICH WAS COMMUNICATED TO HIM BY LETTER OF 14 MARCH 1963 .

THE DEFENDANT MAINTAINS THAT THIS HEAD OF THE CONCLUSIONS IS INADMISSIBLE IN THAT IT RELATES TO A PROCEDURE AND A MEASURE NOT HAVING THE CHARACTER OF A DECISION .

UNDER ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS THERE MAY BE REFERRED TO THE COURT ANY DISPUTE BETWEEN THE COMMUNITIES AND ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY REGARDING THE LEGALITY OF AN ACT ADVERSELY AFFECTING SUCH A PERSON (' UN ACTE FAISANT GRIEF A CETTE PERSONNE '). ONLY ACTS WHICH ARE CAPABLE OF DIRECTLY AFFECTING A GIVEN LEGAL SITUATION CAN BE CONSIDERED AS ADVERSELY AFFECTING A PERSON .

IN THE PRESENT CASE THE INTEGRATION PROCEDURE, CONSISTING OF A SERIES OF MEASURES PREPARATORY TO THE DISPUTED DECISION TO TERMINATE THE APPLICANT'S CONTRACT, IS NOT AN ACT WHICH IN ITSELF ADVERSELY AFFECTS THE APPLICANT .

ALTHOUGH UNDER ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS THE OPINION OF THE ESTABLISHMENT BOARD CONSTITUTES AN ESSENTIAL FACTOR IN THE DECISION TO BE TAKEN BY THE APPOINTING AUTHORITY UPON WHICH IT IS BINDING IF IT IS UNFAVOURABLE TO THE INTEGRATION OF THE SERVANT, IT IS NOT, HOWEVER, FOR THE PURPOSES OF AN APPEAL UNDER ARTICLE 91, A MEASURE SEPARABLE FROM THE DECISION OF THAT AUTHORITY . IT CANNOT THEREFORE HAVE A DIRECT ADVERSE EFFECT UPON THE APPLICANT .

THE CONCLUSIONS SEEKING THE ANNULMENT OF THE INTEGRATION PROCEDURE AND OF THE OPINION OF THE ESTABLISHMENT BOARD, CONSIDERED SEPARATELY FROM THE CONTESTED DECISION TO TERMINATE THE CONTRACT, ARE INADMISSIBLE . HOWEVER, THE SUBMISSIONS AND ARGUMENTS PUT FORWARD IN SUPPORT OF THESE CONCLUSIONS MAY BE INVOKED AGAINST THE DECISION TO TERMINATE THE CONTRACT ITSELF .

THE APPLICANT FURTHER CLAIMS THAT THE COMMISSION SHOULD BE REQUIRED TO RE-SUBMIT HIM TO THE INTEGRATION PROCEDURE, AFTER COMPLETING THE FORMALITIES PROVIDED FOR IN THE LAST SENTENCE OF ARTICLE 5 AND IN ARTICLE 110 OF THE STAFF REGULATIONS . THE DEFENDANT SUBMITS THAT THESE CONCLUSIONS ARE INADMISSIBLE, ON THE GROUND THAT THE PRESENT CASE IS AN APPLICATION FOR ANNULMENT IN THE CONTEXT OF WHICH THE COURT IS NOT EMPOWERED TO ORDER SUCH A MEASURE .

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 .

THE APPLICANT FINALLY CLAIMS THAT THE DECISION TO TERMINATE HIS CONTRACT, COMMUNICATED TO HIM BY LETTER OF 14 MARCH 1963, SHOULD BE ANNULLED . THE DEFENDANT DOES NOT DISPUTE THE ADMISSIBILITY OF THIS HEAD OF THE CONCLUSIONS AND THERE ARE NO GROUNDS FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

AS TO THE SUBSTANCE OF THE CASE

INFRINGEMENT OF ARTICLE 110 OF THE STAFF REGULATIONS

THE APPLICANT ALLEGES THAT THE INTEGRATION PROCEDURE WHICH WAS APPLIED TO HIM PURSUANT TO ARTICLE 102 OF THE STAFF REGULATIONS IS VOID OWING TO THE FAILURE TO ADOPT THE GENERAL PROVISIONS FOR GIVING EFFECT TO IT IN COMPLIANCE WITH THE FIRST PARAGRAPH OF ARTICLE 110 .

THE IMPLEMENTING PROVISIONS PROVIDED FOR IN ARTICLE 110 ARE OF A ' GENERAL ' NATURE . THEY ARE THEREFORE ONLY NECESSARY FOR THE IMPLEMENTATION OF THE PERMANENT PROVISIONS OF THE STAFF REGULATIONS . APART FROM THE QUESTION WHETHER ARTICLE 102 OF THE STAFF REGULATIONS IS SUFFICIENTLY EXPLICIT TO BE APPLIED WITHOUT ANY OTHER IMPLEMENTING MEASURE, IT MUST BE STATED THAT IT ONLY GOVERNS SITUATIONS LIMITED TO A CERTAIN PERIOD OF TIME . SINCE THEY RELATE TO AN ESSENTIALLY TRANSITIONAL PROVISION, THE MEASURES ADOPTED FOR GIVING EFFECT TO IT CONSEQUENTLY CANNOT BE GENERAL IN NATURE . IN THESE CIRCUMSTANCES, THE REGULATIONS ADOPTED BY THE COMMISSION ON 13 DECEMBER 1961 AND 9 MARCH 1962 TO IMPLEMENT ARTICLE 102 ARE SPECIAL IMPLEMENTING MEASURES WHICH ARE NOT TO BE CONFUSED WITH THE GENERAL IMPLEMENTING MEASURES WITH WHICH ARTICLE 110 IS CONCERNED AND THUS DID NOT NEED TO BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR IN THAT ARTICLE .

THE FIRST SUBMISSION IS THEREFORE UNFOUNDED .

INFRINGEMENT OF THE LAST SENTENCE OF ARTICLE 5 OF THE STAFF REGULATIONS

THE APPLICANT MAINTAINS THAT THE DECISION TO TERMINATE HIS CONTRACT IS VOID BY REASON OF THE IRREGULARITY OF THE INTEGRATION PROCEDURE AND SINCE THE DEFINITION OF THE DUTIES AND POWERS ATTACHING TO POSTS, PROVIDED FOR IN THE LAST SENTENCE OF ARTICLE 5 OF THE STAFF REGULATIONS, WAS NOT ADOPTED BEFOREHAND IN ACCORDANCE WITH ARTICLE 110 .

THE PRINCIPAL AIM OF THE DEFINITION OF DUTIES IS TO FACILITATE THE CLASSIFICATION, ON THE BASIS OF ANNEX I TO THE STAFF REGULATIONS, OF THE SERVANTS INTEGRATED UNDER THE REGULATIONS . IT CANNOT THEREFORE BE CONSIDERED AS AN INDISPENSABLE LEGAL PROCEDURE FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 102 . MOREOVER,IN VIEW OF THE COMPLEXITY OF THE TASK OF DEFINING THE VARIOUS POSTS AND THE TIME INVOLVED, AND TAKING ACCOUNT OF EACH INSTITUTION'S NEED TO INTEGRATE ITS SERVANTS AS QUICKLY AS POSSIBLE, IT MUST BE ACCEPTED THAT THE DISPUTED DECISION DISCLOSES NO IRREGULARITY IN THIS RESPECT .

INFRINGEMENT OF THE RIGHTS OF THE DEFENCE AND THE GENERAL PRINCIPLES OF LAW

THE APPLICANT PUTS FORWARD A SERIES OF FACTS WHICH, ACCORDING TO HIM, ESTABLISH THAT THE PROCEDURE FOLLOWED BEFORE THE ESTABLISHMENT BOARD DISREGARDED THE RIGHTS OF THE DEFENCE AS WELL AS THE GENERAL PRINCIPLES OF LAW . IT IS AGREED THAT THE REPORT ON THE APPLICANT'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE PREPARED BY HIS SUPERIORS CONCLUDED THAT HE WAS NOT FIT TO PERFORM THE DUTIES OF HIS POST . BY VIRTUE OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS AN UNFAVOURABLE OPINION BY THE ESTABLISHMENT BOARD BINDS THE APPOINTING AUTHORITY . BEFORE ISSUING SUCH AN OPINION THIS BOARD MUST HOWEVER AFFORD THE PERSON CONCERNED AN OPPORTUNITY TO SUBMIT HIS COMMENTS ON THE FACTORS CAPABLE OF INFLUENCING HIS INTEGRATION . THIS REQUIREMENT IS SATISFIED WHEN THE PERSON CONCERNED HAS BEEN HEARD BY THE SAID BOARD IN CONNEXION WITH THE FACTORS IN THE REPORT WHICH FORMED THE BASIS FOR ITS DECISION AND FROM WHICH IT DREW ITS CONCLUSIONS .

A DIFFERENT SITUATION WOULD OBTAIN IF THE CONCLUSIONS OF THE REPORT HAD BEEN AMENDED AFTER HEARING NEW WITNESSES WITHOUT THE ISSUE OF ANY INVITATION TO THE SERVANT CONCERNED TO SUBMIT FRESH COMMENTS THEREON . THIS DID NOT HAPPEN IN THE PRESENT CASE . THE APPLICANT WAS AWARE OF THE REPORT ON HIM DRAWN UP BY HIS SUPERIORS . IT IS NOT DISPUTED THAT HE SUBMITTED HIS COMMENTS ON THE CONCLUSIONS OF THIS REPORT, THAT HE LODGED WRITTEN STATEMENTS AND THAT HE WAS HEARD BY THE ESTABLISHMENT BOARD .

THE FACT THAT THE MINUTES OF THE HEARINGS OF THE PERSONS WHO APPEARED BEFORE THE SAID BOARD WERE NOT COMMUNICATED TO THE APPLICANT AND THAT HE HIMSELF WAS NOT THE LAST TO BE HEARD IS NOT SUCH AS TO AFFECT THE REGULARITY OF THE PROCEDURE FOLLOWED, SINCE THESE HEARINGS IN NO WAY ALTERED THE CONCLUSIONS IN HIS SUPERIORS' REPORT, WHICH THE ESTABLISHMENT BOARD ADOPTED .

ON THIS ISSUE THE APPLICATION IS THEREFORE UNFOUNDED .

ANIMOSITY OF AN IMMEDIATE SUPERIOR

THE APPLICANT FURTHER MAINTAINS THAT THE REPORT OF HIS SUPERIOR WAS INSPIRED BY FEELINGS OF PERSONAL ANIMOSITY TO HIM . THIS ALLEGATION ONLY REFERS TO THE APPLICANT'S IMMEDIATE SUPERIOR, MR SCHOLZ . THE REPORT ON THE APPLICANT'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE WAS NOT HOWEVER PREPARED BY MR SCHOLZ ALONE, BUT ALSO BY OTHERS OF THE APPLICANT'S SUPERIORS .

WITH REGARD TO MR SCHOLZ, ALTHOUGH THE FACTS ALLEGED IN THE APPLICATION GIVE GROUNDS FOR ADMITTING THAT HIS RELATIONS WITH THE APPLICANT DID NOT ALWAYS RUN SMOOTHLY, THEY ARE NOT HOWEVER CAPABLE OF SHOWING THAT THIS INCOMPATIBILITY IN TEMPERAMENT WAS THE DETERMINING FACTOR IN THE UNFAVOURABLE ASSESSMENT CONTAINED IN THE INTEGRATION REPORT, AS MR SCHOLZ HIMSELF ACKNOWLEDGED THE INTELLIGENCE OF THE APPLICANT .

THE OTHER GROUNDS OF COMPLAINT RAISED BY THE APPLICANT AS TO THE FORM TAKEN BY THE INTEGRATION PROCEDURE WHICH WAS APPLIED TO HIM STEM FROM A CONFUSION BETWEEN THAT PROCEDURE AND CRIMINAL PROCEDURE . SUCH IS NOT THE CASE . THE INTEGRATION PROCEDURE ENABLES THE ADMINISTRATION TO CHOOSE THE OFFICIALS WHO WILL HENCEFORTH BENEFIT FROM THE GUARANTEES UNDER THE STAFF REGULATIONS . THIS CHOICE PRESUPPOSES A CERTAIN FREEDOM OF JUDGMENT AND THEREFORE A PROCEDURE WHICH DOES NOT NECESSARILY INCLUDE ALL THE GUARANTEES AFFORDED TO OFFICIALS SUBJECT TO THE STAFF REGULATIONS .

REVIEW BY THE COURT CAN THEREFORE BE EXERCISED ONLY OVER THOSE FACTORS IN WHICH CLEAR INJUSTICE MAY BE SEEN . THIS IS NOT THE CASE HERE .

ON THIS POINT AS WELL THE SUBMISSION IS THEREFORE UNFOUNDED .

INFRINGEMENT OF ARTICLE 102 OF THE STAFF REGULATIONS

THE APPLICANT ALLEGES THAT THE OPINION OF THE ESTABLISHMENT BOARD IS IRREGULAR ON THE GROUND THAT THIS BOARD WAS NOT APPOINTED IN ACCORDANCE WITH ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS SINCE ONE OF ITS MEMBERS, MR DE LA FONTAINE, WAS NOT EMPLOYED IN A SUPERVISORY CAPACITY .

MR DE LA FONTAINE WAS CLASSIFIED IN GRADE A 2 . ACCORDING TO ANNEX I TO THE STAFF REGULATIONS THIS GRADE CORRESPONDS TO THE BASIC POST OF DIRECTOR . ON THIS POINT THE REGULARITY OF THE OPINION DELIVERED BY THE ESTABLISHMENT BOARD MUST THEREFORE BE ACCEPTED .

THIS SUBMISSION IS THEREFORE UNFOUNDED .

INFRINGEMENT OF ARTICLE 25 OF THE STAFF REGULATIONS

THE APPLICANT MAINTAINS THAT THE OPINION OF THE ESTABLISHMENT BOARD DOES NOT SUFFICIENTLY STATE THE REASONS ON WHICH IT IS BASED .

THE SUBMISSIONS RAISED AGAINST THE IRREGULARITY OF THAT OPINION ARE ONLY ADMISSIBLE TO THE EXTENT TO WHICH THEY BEAR UPON THE LEGALITY OF THE DECISION TO TERMINATE THE APPLICANT'S CONTRACT WHICH FOLLOWED . IN THESE CIRCUMSTANCES THE VALIDITY OF THIS SUBMISSION MUST BE EXAMINED IN RELATION TO THE SAID DECISION .

IN ITS OPINION OF 19 JULY 1962 THE ESTABLISHMENT BOARD DECLARED THAT IT HAD FORMED ITS OPINION ' AFTER CONSIDERING A REPORT ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF MR PISTOJ...HAVING GATHERED ALL THE NECESSARY INFORMATION AND HEARD THE SERVANT HIMSELF '.

IT INDICATES THE REASONS FOR ITS UNFAVOURABLE ASSESSMENT OF THE APPLICANT'S SUITABILITY FOR THE DUTIES OF HIS POST IN THE FOLLOWING MANNER :

- ' IT CONSIDERS THAT MR PISTOJ HAS NOT BEEN ABLE TO DIRECT THE WORK OF THE DIVISION UNDER HIS CHARGE WITH THE REQUISITE ADMINISTRATIVE ABILITY OR TO ESTABLISH GOOD RELATIONS WITH HIS SUPERIORS AND HIS SUBORDINATES; '

- ' IT CONSIDERS THAT MR PISTOJ WAS UNABLE TO ADAPT HIMSELF TO CARRYING OUT THE DUTIES ENTRUSTED TO HIM IN A SATISFACTORY MANNER, BECAUSE OF HIS INABILITY TO ACCOMMODATE HIMSELF TO HIS NEW WORK AND THE LACK OF ORDER AND METHOD IN HIS WORK . '

IN THESE CIRCUMSTANCES IT MUST BE FOUND THAT THE OPINION OF THE ESTABLISHMENT BOARD SUFFICIENTLY STATES THE REASONS ON WHICH IT IS BASED BY MEANS OF THE REFERENCES MADE BOTH TO THE INFORMATION USED AND TO THE BASIC FACTORS BORNE IN MIND UNDERLYING ITS ASSESSMENT .

THE SAME IS TRUE OF THE DECISION TO TERMINATE THE APPLICANT'S CONTRACT, NOTIFIED TO HIM ON 14 MARCH 1963, SINCE IT ADOPTS THE REASONING OF THE OPINION OF THE ESTABLISHMENT BOARD .

THE SUBMISSION IS THEREFORE UNFOUNDED .

INCORRECT FINDING OR INCORRECT ASSESSMENT OF THE FACTS

THE APPLICANT MAINTAINS THAT THE ESTABLISHMENT BOARD BASED ITS OPINION ON INCORRECT FINDINGS OF FACT OR MADE AN INCORRECT ASSESSMENT OF THEM .

THE APPLICANT HAS REFERRED IN PARTICULAR TO THE ABSENCE OF VALID PROOF OF HIS ALLEGED FAILINGS . THE ESTABLISHMENT BOARD BASED ITS OPINION ON THE REPORT OF THE APPLICANT'S IMMEDIATE SUPERIORS, AS ARTICLE 102 OBLIGED IT TO DO . FURTHERMORE IT CARRIED OUT AN INQUIRY AND EVEN CONSULTED THE NUMEROUS STATEMENTS PRODUCED BY THE APPLICANT . IN THESE CIRCUMSTANCES IT USED ITS POWER OF DISCRETION WITH FULL KNOWLEDGE OF THE CASE .

THE SUBMISSION IS THEREFORE UNFOUNDED .

PRESENCE OF VICE-PRESIDENT CARON DURING THE INTEGRATION PROCEDURE

THE APPLICANT CLAIMS THAT THE DISPUTED DECISIONS ARE VOID, ON THE GROUND OF THE PARTICIPATION OF MR CARON, VICE-PRESIDENT OF THE COMMISSION, BOTH AT THE DELIBERATIONS OF THE COMMISSION, THE CONCLUSIONS OF WHICH CONFIRMED THOSE DECISIONS, AND AT THE DISPUTED INTEGRATION PROCEDURE .

THE COMMISSION HAD NO POWER OF DISCRETION AND WAS BOUND BY THE NEGATIVE OPINION OF THE ESTABLISHMENT BOARD UNDER ARTICLE 102 OF THE STAFF REGULATIONS . EVEN IF VICE-PRESIDENT CARON WERE PRESENT DURING THE MEETING OF THE COMMISSION AT WHICH THE DECISION CONCERNING MR PISTOJ WAS TAKEN, HE COULD NOT HAVE BEEN REGARDED AS BOTH JUDGE AND PARTY .

THIS SUBMISSION IS THEREFORE UNFOUNDED .

INSUFFICIENT TIME FOR ACCEPTANCE OF A LOWER POSITION

THE COMMISSION OFFERED MR PISTOJ A GRADE A 4 POSITION, SUBJECT TO ACCEPTANCE OF THE OFFER WITHIN EIGHT DAYS .

THE APPLICANT CONSIDERED THIS TIME TO BE INSUFFICIENT . WHATEVER THE VICISSITUDES OCCURING ON THIS SUBJECT IN 1963, THE COURT, IN AN EFFORT TO EFFECT A SETTLEMENT, PROPOSED TO THE COMMISSION - WHICH AGREED - THAT IT SHOULD ALLOW THIS TIME-LIMIT TO BE REVIVED DURING THE COURSE OF THE PROCEEDINGS . TO THIS END, THE PROCEEDINGS WERE ADJOURNED FROM 18 MARCH 1964 TO 27 MAY 1964 . IN SPITE OF THE REVIVAL OF THIS TIME-LIMIT, THE APPLICANT HAS IN FACT REFUSED THE COMMISSION'S PROPOSALS .

THIS GROUND OF COMPLAINT HAS THEREFORE NO FURTHER FOUNDATION .

APPLICATION FOR DAMAGES

THE APPLICANT CLAIMS ALTERNATIVELY THAT THE TERMINATION OF HIS CONTRACT SHOULD BE REGARDED AS IMPROPER AND AS CONSTITUTING A WRONGFUL ACT FOR WHICH DAMAGES AND COMPENSATION SHOULD BE AWARDED .

IT IS APPARENT FROM AN EXAMINATION OF THE FOREGOING GROUNDS OF COMPLAINT THAT THE COMMISSION HAS COMMITTED NO WRONGFUL ACT GIVING RISE TO LIABILITY ON ITS PART .

THERE IS THEREFORE NO NECESSITY TO COME TO A DECISION ON THE REQUEST FOR COMPENSATION .

UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

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

THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS AND MUST BEAR HIS OWN COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 78/63;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .