61963J0068

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

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLE 102 )

2 . OFFICIALS - INTEGRATION - ESTABLISHMENT REPORT - POWERS OF THE ESTABLISHMENT BOARD

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLE 102 )

1 . 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 .

2 . THE ESTABLISHMENT BOARD IS NOT BOUND BY THE ESTABLISHMENT REPORTS BUT IS ENTITLED TO OBTAIN FURTHER INFORMATION, IN PARTICULAR BY HEARING ANY PERSON CAPABLE OF PROVIDING IT WITH INFORMATION HELPFUL IN MAKING ITS ASSESSMENT .

IN CASE 68/63

HARTMUT LUHLEICH, DOCTOR OF NATURAL SCIENCES, RESIDING AT 6 VIA BRUGNONI, TRAVEDONA ( PROVINCE OF VARESE ), ASSISTED BY ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND - DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY ( EURATOM ), BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, JAN GIJSSELS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATIONS FOR THE REVERSAL OR, ALTERNATIVELY, THE ANNULMENT OF THE DECISION OF THE DEFENDANT TO DISMISS THE APPLICANT, AGAINST THE FAILURE OF THE DEFENDANT TO TAKE ACTION OVER THE ADMINISTRATIVE COMPLAINT LODGED BY THE APPLICANT ON 30 AUGUST 1962 AND FOR THE PAYMENT OF DAMAGES;

P.592

I - ON THE SUBMISSION THAT THE DECISION OF DISMISSAL BE REVERSED OR, ALTERNATIVELY, ANNULLED

THE APPLICANT REQUESTS THE REVERSAL OR, ALTERNATIVELY, THE ANNULMENT OF THE DECISION OF 20 MARCH 1963 BY WHICH THE DEFENDANT TERMINATED HIS CONTRACT .

THIS DECISION IS BASED ON THE OPINION OF THE ESTABLISHMENT BOARD ACCORDING TO WHICH ' THE CONDUCT OF THE APPLICANT, INVOLVING REPEATED CLAIMS FOR INDEPENDENCE WITHIN THE CENTRE AND AUTONOMY IN RESEARCH, HAS EXHIBITED, IN CONNEXION WITH THE VARIOUS OPPORTUNITIES AFFORDED TO HIM TO PUT HIS ABILITIES AT THE DISPOSAL OF THE INSTITUTION, AN INABILITY TO ADAPT HIMSELF TO THE OBLIGATIONS OF THE SERVICE AND HENCE HAS SERIOUSLY AFFECTED THE EFFICIENCY WHICH THE INSTITUTION WAS ENTITLED TO EXPECT OF HIM, WHATEVER MAY HAVE BEEN THE INHERENT DIFFICULTIES IN SETTING UP THE CENTRE '.

IN CONTESTING THE DECISION AND OPINION IN QUESTION THE APPLICANT PUTS FORWARD A SERIES OF COMPLAINTS BASED IN PARTICULAR ON THE IRREGULAR NATURE OF THE INTEGRATION PROCEDURE AND THE FACTUAL INACCURACY OF THE ALLEGATIONS MADE AGAINST HIM .

1 . ON THE SUBMISSIONS BASED ON THE IRREGULARITY OF THE PROCEDURE

A - THE DELAY IN PREPARING THE PROBATION REPORT AND THE FAILURE OF THE ESTABLISHMENT BOARD TO HEAR MR GILLOT

THE APPLICANT PROTESTS THAT HIS PROBATION REPORT WAS DRAWN UP EXTREMELY BELATEDLY .

P.593

ALTHOUGH THE APPLICANT'S PROBATIONARY PERIOD ENDED ON 30 APRIL 1961, THE REPORT WAS NOT DRAWN UP UNTIL 17 MAY 1962 AND THEN BY MR LAURENT WHOSE RELATIONS WITH THE APPLICANT HAD BEEN STRAINED .

OUT OF THIRTEEN COMMENTS ON THE APPLICANT IN THE REPORT TWO ARE LESS THAN ' SATISFACTORY ', NAMELY, THOSE ON HIS ' ADAPTABILITY ' AND ' ABILITY TO WORK IN A TEAM '.

ON THE OTHER HAND, HAD THE REPORT IN QUESTION BEEN DRAWN UP AT THE PROPER TIME, THAT IS, IN MAY 1961, IT WOULD HAVE HAD TO BE DRAFTED BY THE IMMEDIATE SUPERIOR UNDER WHOM THE APPLICANT WORKED DURING THAT PERIOD .

THE DEFENDANT HAS NOT DISPUTED THE APPLICANT'S ALLEGATION THAT IN JUNE 1961 THE DIRECTOR OF THE CENTRE ' HAD EXPRESSED HIS SATISFACTION AND CONGRATULATED THE GROUP WHICH, ALTHOUGH THE LAST TO BE SET UP, WAS THE FIRST TO HAVE SUCCEEDED IN DEMONSTRATING ITS COHESION, FROM THE POINT OF VIEW BOTH OF ITS RESEARCH WORK AND OF ITS INTERNATIONAL CHARACTER '.

WHEN ASKED BY THE COURT WHAT HE WOULD HAVE DONE AS THE APPLICANT'S SUPERIOR, MR GILLOT ASSESSED HIM IN GLOWING TERMS WITHOUT ANY RESERVATIONS AND STATED : ' I WOULD CERTAINLY HAVE RECOMMENDED HIM FOR INTEGRATION '.

THE APPLICANT WAS ABLE TO REFER, BEFORE THE ESTABLISHMENT BOARD, TO ALL THE DOCUMENTS IN HIS PERSONAL FILE WHICH WERE FAVOURABLE TO HIM .

IF HE HAD BEEN ABLE TO REFER TO A GLOWING REPORT BY MR GILLOT, THIS SHOULD LOGICALLY HAVE LED THE SAID BOARD TO HAVE RESERVATIONS ABOUT THE LESS FAVOURABLE COMMENTS MADE BY OTHER SUPERIORS UNDER WHOM THE APPLICANT HAD WORKED FOR SHORTER PERIODS AND, IN PARTICULAR, ABOUT THOSE OF MR MARCHETTI, WHOSE ROLE WILL BE EXAMINED BELOW .

IT WAS THE DUTY OF THE DEFENDANT AND THE ESTABLISHMENT BOARD TO INVESTIGATE ALL SOURCES OF INFORMATION FAVOURABLE TO THE CANDIDATE .

THE ABOVE FACTS THEREFORE CONSTITUTE AN IRREGULARITY OF PROCEDURE .

B - THE DEFENDANT'S FAILURE TO MAKE AVAILABLE TO THE ESTABLISHMENT BOARD THE REPORT OF THE CONSOLO COMMITTEE

THE APPLICANT CONSIDERS A FURTHER ILLEGALITY TO HAVE EXISTED IN THE FACT THAT NEITHER THE MAJORITY OF THE MEMBERS OF THE ESTABLISHMENT BOARD, NOR HE HIMSELF WHEN HE GAVE EVIDENCE BEFORE IT, WAS AWARE OF THE REPORT OF THE COMMITTEE PRESIDED OVER BY MR CONSOLO WHICH WAS CHARGED WITH INQUIRING INTO THE APPLICANT'S COMPLAINT THAT THE ISPRA AUTHORITIES HAD MADE IT IMPOSSIBLE FOR HIM TO WORK IN SATISFACTORY CONDITIONS .

P.594

AS HAS JUST BEEN FOUND, IT WAS THE DUTY OF THE DEFENDANT TO MAKE AVAILABLE TO THE ESTABLISHMENT BOARD EVERY RELIABLE PIECE OF INFORMATION CAPABLE OF INFLUENCING ITS OPINION .

THE COURT MUST THEREFORE CONSIDER WHETHER THIS APPLIED TO THE REPORT IN QUESTION .

IT APPEARS FROM THE FILE THAT THERE IS A CLOSE CONNEXION BETWEEN CERTAIN OF THE COMPLAINTS MADE BY THE APPLICANT IN THE ABOVEMENTIONED COMPLAINT AND THOSE MADE AGAINST THE APPLICANT BY THE DEFENDANT . INDEED THE DISPUTES FOR WHICH EACH SIDE BLAMES THE OTHER ARISE LARGELY FROM THE SAME SET OF FACTS .

THIS LOGICAL CONNEXION IS PARTICULARLY WELL ILLUSTRATED BY THE STATEMENT OF THE DEFENDANT THAT ' THROUGHOUT HIS EMPLOYMENT AT THE CENTRE ' THE APPLICANT HAD ' CONSIDERED THE GENERAL DIFFICULTY AND DISCOMFORT...AS PERSONAL VICTIMIZATION '.

THIS BEING SO, AND IN VIEW OF THE COMPLEX AND AT TIMES HIGHLY TECHNICAL CHARACTER OF THE MUTUAL RECRIMINATIONS, IT WAS VERY DIFFICULT TO ALLOT RESPONSIBILITY BETWEEN THE APPLICANT AND HIS SUPERIORS, WITHOUT ALSO EXAMINING WHETHER THE APPLICANT'S COMPLAINT WAS WELL-FOUNDED .

IN THIS CONTEXT, A KNOWLEDGE OF THE CONTESTED REPORT DRAWN UP BY PERSONS WHO A PRIORI OFFERED BETTER GUARANTEES OF IMPARTIALITY THAN ANYONE ELSE CONSTITUTED AN IMPORTANT SOURCE OF INFORMATION .

THE CONCLUSIONS OF THE CONSOLO REPORT, WHILE DISAPPROVING OF CERTAIN OF THE APPLICANT'S ACTIONS, ADMIT THAT HE WAS HINDERED IN HIS WORK AND MAKE CERTAIN CRITICISMS OF HIS SUPERIORS .

MOREOVER, THE TESTIMONY OF MESSRS EULER AND LACROIX, MEMBERS OF THE CONSOLO COMMITTEE, SHOWED WITH EVEN GREATER CLARITY THAT THE COMMITTEE HAD FOUND A SERIES OF IMPORTANT FACTS MILITATING IN FAVOUR OF THE APPLICANT .

FINALLY, THE DEFENDANT HAS NEVER GIVEN ANY EXPRESS RULING ON THE COMPLAINT MADE BY THE APPLICANT .

ALTHOUGH IN THE CIRCUMSTANCES THIS ATTITUDE CANNOT BE CRITICIZED IN ITSELF, THE FACT REMAINS THAT THE ESTABLISHMENT BOARD, UNAWARE OF THE CONTENT OF THE CONSOLO REPORT, MIGHT THUS HAVE HAD THE IMPRESSION THAT THE APPLICANT'S COMPLAINT WAS WHOLLY UNFOUNDED, WHICH WAS LIKELY TO CONFIRM ITS OPINION THAT THE APPLICANT HAD BEEN UNABLE TO ACCOMMODATE HIMSELF TO THE REQUIREMENTS OF THE DEPARTMENT .

P.595

THIS BEING SO, AN EXAMINATION OF THE CRITICISM MADE BY THE APPLICANT - WHICH COULD EQUALLY WELL HAVE TAKEN THE FORM OF A HEARING OF THE MEMBERS OF THE CONSOLO COMMITTEE - WOULD HAVE DONE MUCH TO REDRESS THE BALANCE .

IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE INTEGRATION PROCEDURE WAS ONCE MORE VITIATED BY A SERIOUS IRREGULARITY .

C - THE CONTRADICTION BETWEEN THE ESTABLISHMENT REPORT AND THE OPINION OF THE ESTABLISHMENT BOARD

THE APPLICANT ASSERTS THAT A CONTRADICTION EXISTS BETWEEN THE ESTABLISHMENT REPORT DRAFTED, ON THE WHOLE, IN FAVOURABLE TERMS AND THE OPINION OF THE ESTABLISHMENT BOARD .

IN PARTICULAR, HE EMPHASIZES THAT THE FORMER EXPRESSLY EXEMPTS HIM FROM RESPONSIBILITY FOR CERTAIN DIFFICULTIES WHICH HAD AFFECTED HIS WORK AND MENTIONS NONE OF THE CRITICISMS TAKEN INTO ACCOUNT BY THE ESTABLISHMENT BOARD .

THE FORM USED BY THE DIRECTOR OF THE CENTRE TO ASSESS THE APPLICANT'S ABILITY, EFFICIENCY AND CONDUCT PROVIDED FOR THE FOLLOWING COMMENTS - ' VERY GOOD ', ' GOOD ', ' SATISFACTORY ', ' NEEDS IMPROVEMENT ' AND ' INSUFFICIENT '.

OUT OF THE SIXTEEN COMMENTS MADE OF THE APPLICANT TEN ARE ' GOOD ' AND SIX ' SATISFACTORY ' AND NONE IS BELOW THIS LEVEL .

THE SIGNIFICANCE OF THIS ASSESSMENT MUST BE CONSIDERED IN THE LIGHT OF THE INSTRUCTIONS PRINTED ON THE FORM IN QUESTION ACCORDING TO WHICH THE AUTHOR OF THE REPORT WAS ONLY OBLIGED TO ADD FURTHER DETAILS TO THOSE COMMENTS BELOW THE LEVEL ' SATISFACTORY '.

THIS REQUIREMENT SHOWS THAT THE DEFENDANT CONSIDERED ONLY THE COMMENTS ' NEEDS IMPROVEMENT ' AND ' INSUFFICIENT ' TO BE CAPABLE OF JEOPARDIZING THE INTEGRATION OF A SERVANT .

HOWEVER, WHEN FILLING IN THE RELEVANT FORM, THE DIRECTOR OF THE CENTRE REPLIED IN THE NEGATIVE TO THE QUESTION WHETHER THE APPLICANT WAS ' CAPABLE OF CARRYING OUT THE TASKS AT PRESENT ENTRUSTED TO HIM '.

P.596

ALL THE SAME, THE REASONS WHICH HE GAVE FOR THIS CONTAIN NO CRITICISM OF THE APPLICANT AND ARE COUCHED AS FOLLOWS : ' OWING TO OUTSIDE CIRCUMSTANCES, HIS WORK ' - THAT IS, THE APPLICANT'S WORK - ' HAS NOT REACHED A POINT FROM WHICH IT MIGHT BE JUDGED DEFINITIVELY . MR LUHLEICH IS NOT RESPONSIBLE FOR THIS DELAY . WE SUGGEST THAT HIS INTEGRATION BE DEFERRED AND THAT HE BE OFFERED A CONTRACT FOR TWO YEARS, DURING WHICH TIME THE QUESTION OF INTEGRATION CAN AGAIN BE CONSIDERED '.

THIS BEING SO, THE ESTABLISHMENT REPORT CONTAINS AN INTRINSIC CONTRADICTION BECAUSE IT PUTS FORWARD NO FACTOR JUSTIFYING A NEGATIVE ANSWER TO THE QUESTION WHETHER THE APPLICANT WAS SUITED TO THE PERFORMANCE OF HIS DUTIES .

FURTHERMORE, AND FOR THE SAME REASONS, THIS REPORT IS INCOMPATIBLE WITH THE UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD .

HOWEVER, IN ORDER NOT TO REDUCE THE ESTABLISHMENT BOARD TO THE LEVEL OF A MERE CIPHER, IT MUST BE ADMITTED THAT IT WAS NOT BOUND BY THE REPORT IN DISPUTE BUT WAS ENTITLED TO OBTAIN FURTHER INFORMATION, IN PARTICULAR BY HEARING ANY PERSON CAPABLE OF PROVIDING IT WITH INFORMATION HELPFUL IN MAKING ITS ASSESSMENT .

2 . THE SUBMISSIONS BASED ON THE INACCURACY OF THE FACTS ALLEGED AGAINST THE APPLICANT

THE ARGUMENTS OF THE APPLICANT TEND TO SHOW THAT THE BASIS ON WHICH THE OPINION OF THE ESTABLISHMENT BOARD WAS DRAWN UP EITHER DOES NOT CORRESPOND TO THE FACTS OR ELSE IS INCOMPLETE .

THIS OPINION DOES NOT INDICATE WHICH OF THE ACTS OR OMISSIONS IMPUTED TO THE APPLICANT BY HIS SUPERIORS WERE FINALLY TAKEN INTO ACCOUNT BY THE BOARD .

IT IS REASONABLE TO SUPPOSE THAT THE RELEVANT FACTS ARE THOSE SET OUT BY THE DEFENDANT IN ITS STATEMENT OF DEFENCE .

A - THE NOTE OF 29 AUGUST 1961 ADDRESSED TO MR MARCHETTI BY CERTAIN RESEARCH WORKERS

THE DEFENDANT REFERS TO ' SERIOUS INCIDENTS ' WHICH TOOK PLACE BETWEEN THE APPLICANT AND MR MARCHETTI, HEAD OF THE PHYSICAL CHEMISTRY DEPARTMENT, AND ' IN PARTICULAR ' A NOTE DATED 29 AUGUST 1961 .

P.597

SINCE THE DEFENDANT HAS NOT EXPLAINED THE NATURE OF THE OTHER INCIDENTS, IT IS APPROPRIATE TO RESTRICT CONSIDERATION TO THE NOTE IN QUESTION .

THIS NOTE, DRAFTED IN ENGLISH, WAS SIGNED BY FIVE RESEARCH WORKERS, INCLUDING THE APPLICANT, IN THE PHYSICAL CHEMISTRY DEPARTMENT AND WAS ADDRESSED IN CONFIDENCE TO MR MARCHETTI .

IT WAS HIGHLY CRITICAL OF MR MARCHETTI, ALLEGING IN PARTICULAR THAT HE WAS INCAPABLE OF ' UNDERSTANDING THE HUMAN AND SCIENTIFIC PROBLEMS OF OUR GROUP '.

ITS CLOSING WORDS WERE AS FOLLOWS : ' AS THERE IS NO REASON TO HOPE THAT THIS SITUATION WILL CHANGE IN THE FUTURE, WE BEG YOU WHETHER YOU WOULD CONSIDER ( SIC ) THE OTHER OPENINGS AVAILABLE TO YOU AT EURATOM OF WHICH YOU HAVE OFTEN SPOKEN TO US '.

MR RITTER, THE DIRECTOR OF THE CENTRE, STATED BEFORE THE ESTABLISHMENT BOARD, THAT THE ' SECRET LEADER ' OF THESE RESEARCH WORKERS HAD BEEN MR SUNDERMANN, WHO HAD SUBSEQUENTLY RESIGNED, AND THAT IT WAS HE WHO HAD BEEN ' PRIMARILY RESPONSIBLE ' FOR THE DIFFICULTIES IN QUESTION .

MR KUHLBOERSCH, WHO ALSO SIGNED THE NOTE, AGREED IN HIS EVIDENCE THAT IT HAD BEEN DRAFTED BY MR SUNDERMANN AND THAT THE APPLICANT'S ROLE IN THE MATTER HAD BEEN ' QUITE INSIGNIFICANT '.

HOWEVER, WITH THE EXCEPTION OF MR SUNDERMANN AND THE APPLICANT, ALL THE SIGNATORIES WERE INTEGRATED .

MOREOVER, IT APPEARS FROM THE FILE THAT THE ATTITUDE OF MR MARCHETTI BEFORE RECEIVING THE NOTE IN QUESTION HAD NOT SHOWN THE DESIRED SPIRIT OF CO-OPERATION .

IN PARTICULAR, THE EVIDENCE GIVEN BY MR KUHLBOERSCH SHOWS THAT, WHILE MR MARCHETTI OBJECTED TO THE PROGRAMME OF WORK PREVIOUSLY DRAWN UP BY THE RESEARCH WORKERS IN QUESTION, HE HAD CONSTANTLY REFRAINED, DESPITE THEIR REPEATED REQUESTS, FROM GIVING THEM ANY PRECISE INSTRUCTIONS .

FURTHERMORE, THE DIRECTOR OF THE CENTRE HIMSELF ADMITTED BEFORE THE ESTABLISHMENT BOARD THAT MR MARCHETTI IS HARSH . HE HAS NO GREAT EXPERIENCE OF LEADERSHIP AND HAS CERTAINLY COMMITTED PSYCHOLOGICAL ERRORS, BUT HE DESERVED SUPPORT BECAUSE HIS PRESENCE WAS ESSENTIAL TO THE MANAGEMENT OF THAT DEPARTMENT '.

P.598

FINALLY, THESE FACTS SHOULD BE CONTRASTED WITH THE EXCELLENT CLIMATE OF WORK WHICH HAD EXISTED UNDER MR MARCHETTI'S PREDECESSOR .

IN SPITE OF THE SPECIAL FEATURES OF THEIR WORK, IT IS TRUE THAT RESEARCH WORKERS ARE, LIKE EVERYONE ELSE, OBLIGED TO SUBMIT TO THE REQUIREMENTS OF ADMINISTRATIVE DISCIPLINE AND, IN PARTICULAR, TO RESPECT THEIR SUPERIORS .

HOWEVER, IN THIS INSTANCE, THE UNUSUAL CIRCUMSTANCES CHARACTERIZING THE PERIOD OF ADJUSTMENT THROUGH WHICH THE ISPRA CENTRE WAS PASSING AT THAT TIME, TOGETHER WITH THE ATTITUDE SHOWN BY THE SUPERIOR IN QUESTION, JUSTIFY THE INFERENCE THAT THE CONDUCT OF THE APPLICANT WAS NOT SUFFICIENTLY OPEN TO CRITICISM TO JEOPARDIZE HIS INTEGRATION .

B - THE QUESTION OF THE CHROMATOGRAPH

ACCORDING TO THE STATEMENT OF DEFENCE, ' A CHROMATOGRAPH, PLACED AT ( THE DISPOSAL OF THE APPLICANT ) FOR THE SOLE PURPOSE OF CHECKING THE PURITY OF POLYPHENYL, THE PHYSICAL CONSTANTS OF WHICH HAD TO BE MEASURED,...WAS USED NOT FOR THIS INCREASINGLY URGENT WORK BUT AS AN INSTRUMENT OF ANALYSIS ... '.

THE STATEMENT OF DEFENCE GOES ON TO STATE THAT THIS INCIDENT, CHARACTERIZED BY THE ' OBSTINACY OF THE APPLICANT ', HAD OBLIGED THE HEAD OF HIS DEPARTMENT TO MAKE A REPORT TO HIS SUPERIORS ON THE SHORTCOMINGS OF THE APPLICANT .

IN REPLY TO THE ARGUMENT OF THE APPLICANT THAT THE CHROMATOGRAPH HAD BEEN USED ONLY BY MR VAN ALMKERK, ONE OF HIS COLLEAGUES, THE DEFENDANT ' IS SURPRISED AT THE ATTEMPT OF MR LUHLEICH TO AVOID RESPONSIBILITY FOR THE MISUSE OF THIS APPARATUS, WHICH HE ASCRIBES TO ONE OF HIS COLLEAGUES, SINCE HE ALWAYS CONSIDERED HIMSELF TO BE ' HEAD OF THE GROUP ' AND INSISTED OVER A LENGTHY PERIOD ON BEING ALLOCATED THE APPARATUS IN QUESTION '.

( A ) THESE STATEMENTS IMPLY, FIRST, THAT THE APPLICANT WAS PERSONALLY RESPONSIBLE FOR THE MISUSE OF THE APPARATUS .

THE COURT MUST THEREFORE BEGIN BY EXAMINING WHETHER OR NOT THE APPLICANT USED THE CHROMATOGRAPH HIMSELF .

MR KUHLBOERSCH, A MEMBER OF THE SAME WORKING GROUP AS THE APPLICANT, TESTIFIED THAT THE CHROMATOGRAPH WAS USED SOLELY BY MR VAN ALMKERK, WHOSE STATE OF HEALTH PREVENTED HIS APPEARANCE BEFORE THE COURT .

MR HANNAERT, WHO WAS AT THAT TIME THE APPLICANT'S IMMEDIATE SUPERIOR, STATED THAT IN EVIDENCE THAT HE COULD NOT STATE THAT THE APPLICANT HAD USED THE CHROMATOGRAPH .

P.599

FINALLY, THE STATEMENT THAT THE CHROMATOGRAPH HAD BEEN IMPROPERLY USED WAS BASED ON A QUARTERLY REPORT SIGNED IN THE ABSENCE OF THE APPLICANT BY MESSRS . KUHLBOERSCH AND VAN ALMKERK ALONE .

THE DEFENDANT HAS NOT CHALLENGED THE EVIDENCE OF MR KUHLBOERSCH TO THE EFFECT THAT THE PASSAGE IN THE REPORT GIVING RISE TO THE CRITICISMS IN QUESTION HAD BEEN DRAFTED BY MR VAN ALMKERK .

ALL THESE FACTORS MAKE IT POSSIBLE TO DETERMINE THAT, SINCE THE APPLICANT NEVER USED THE APPARATUS IN QUESTION, IT COULD NOT HAVE BEEN MISUSED BY HIM .

( B ) SECONDLY, THE DEFENDANT'S STATEMENTS TEND TO SHOW THAT, EVEN SUPPOSING THAT THE APPLICANT DID NOT PERSONALLY MISUSE THE CHROMATOGRAPH, HE IS NONETHELESS RESPONSIBLE, SINCE HE REGARDED HIMSELF AS THE ' HEAD OF THE GROUP '.

THE IMPORTANT POINT IS NOT WHETHER THE APPLICANT ATTRIBUTED TO HIMSELF THE POST ' HEAD OF THE GROUP ', BUT WHETHER HE HAD BEEN OFFICIALLY APPOINTED TO THAT POSITION .

NO SUCH APPOINTMENT APPEARS IN THE FILE AND IT HAS NOT EVEN BEEN ALLEGED BY THE DEFENDANT .

MOREOVER, THE QUARTERLY REPORT IN QUESTION REFERS TO THE APPLICANT AND HIS COLLEAGUES KUHLBOERSCH AND VAN ALMKERK AS ' SPECIALISTS WITH RESPONSIBILITY ' WITHOUT SUGGESTING ANY DIFFERENCE OF RANK . FURTHERMORE, INSTRUCTIONS FOR THE USE OF THE CHROMATOGRAPH WERE SOMETIMES ADDRESSED TO THE APPLICANT ALONE AND SOMETIMES TO ALL THREE RESEARCH WORKERS .

FINALLY, THE APPLICANT WAS NOT CLASSIFIED IN A HIGHER GRADE THAN HIS TWO COLLEAGUES .

IN THE LIGHT OF ALL THESE CIRCUMSTANCES, IT CANNOT EVEN BE CLAIMED THAT, AS REGARDS MESSRS . KUHLBOERSCH AND VAN ALMKERK, THE APPLICANT HELD DE FACTO THE POSITION OF SUPERIOR .

IT IS THEREFORE UNFAIR TO MAKE A SERVANT SUFFER THE INCONVENIENCE OF A HIGHER RANK WITHOUT ALLOWING HIM THE CORRESPONDING ADVANTAGES .

( C ) FINALLY, THE PASSAGES IN THE QUARTERLY REPORT IN QUESTION WHICH GAVE RISE TO THE PRESENT ALLEGATION ARE WORDED AS FOLLOWS : ' A CHROMATOGRAPH...WHICH WILL BE USED IN THE ANALYSIS OF SAMPLES OF POLYPHENYL HAS BEEN DELIVERED...WE WILL UNDERTAKE THE CHROMATOGRAPHIC SEPARATION OF MIXTURES OF TERPHENYL WITH THE AID ( OF THE CHROMATOGRAPH ) '.

P.600

THE USE OF THE FUTURE TENSE DEMONSTRATES THAT THE AUTHORS OF THE REPORT WERE MERELY REFERRING TO WORK WHICH THEY PROPOSED TO UNDERTAKE .

IF MR HANNAERT, THE IMMEDIATE SUPERIOR OF THE SERVANTS CONCERNED, CONSIDERED THAT AS FROM 12 OCTOBER 1962 THE INTENTIONS THUS REVEALED DID NOT CORRESPOND TO THE INSTRUCTIONS PREVIOUSLY GIVEN TO THE SERVANTS, HE HAD THE RIGHT, AND EVEN THE DUTY, TO REPRIMAND THEM AT ONCE INSTEAD OF ALLOWING THE REPORT, WHICH IN ADDITION REFERRED TO HIM AS THE ' SPECIALIST RESPONSIBLE FOR THE WHOLE OF THE RESEARCH ', TO GO THROUGH .

HOWEVER, HE PREFERRED TO WAIT UNTIL 29 OCTOBER 1962 WHEN, WITHOUT PREVIOUSLY INFORMING THE RESEARCH WORKERS IN QUESTION, HE ADDRESSED A NOTE TO THE RESPONSIBLE OFFICIALS AT EURATOM, STATING THAT ' THE CHROMATOGRAPH...ENTRUSTED TO MR LUHLEICH HAS NOT BEEN USED FOR ITS PROPER PURPOSE '.

IT WAS ONLY ON 31 OCTOBER 1962, DURING AN INTERVIEW WHICH SEEMS IN OTHER RESPECTS TO HAVE TAKEN PLACE IN A FRIENDLY ATMOSPHERE, THAT HE INFORMED THE APPLICANT THAT THE REPORT IN DISPUTE HAD MADE A BAD IMPRESSION IN BRUSSELS AND THAT HE HAD HAD DIFFICULTY IN DEFENDING ITS AUTHORS . THIS STATEMENT SHOWS ON THE ONE HAND THAT HE REGARDED HIMSELF AS JUSTIFIED IN COMING TO THEIR DEFENCE BUT ON THE OTHER HAND IS IN SHARP CONTRAST TO HIS NOTE OF 29 OCTOBER .

IT DOES NOT APPEAR THAT MR HANNAERT TOOK ADVANTAGE OF THE INTERVIEW TO GIVE THE APPLICANT AN EXPRESS WARNING .

NOR DOES IT APPEAR THAT ANY OTHER RESPONSIBLE OFFICIAL FROM EURATOM APPROACHED THE APPLICANT AND HIS COLLEAGUES AT THAT TIME IN ORDER TO ASCERTAIN EITHER THAT THE ALLEGED MISUSE DID NOT TAKE PLACE OR TO STOP IT IMMEDIATELY .

ON THE CONTRARY, A TELEPRINTER MESSAGE OF 27 NOVEMBER 1962 FROM THE DIRECTOR-GENERAL FOR RESEARCH ORDERED MR LINDNER, MR HANNAERT'S SUPERIOR, TO DECIDE HOW TO MAKE THE MOST EFFICIENT USE OF THE CHROMATOGRAPH WHILE AVOIDING AS REGARDS THE APPLICANT ' ANY ABRUPTNESS OF MANNER CAPABLE OF BEING INTERPRETED AS A DISCRIMINATORY ACTION '.

IT WAS ONLY ON 24 JANUARY 1963 THAT MR LINDNER GAVE INSTRUCTIONS FOR THE FUTURE USE OF THE CHROMATOGRAPH IN A NOTE, CONTAINING NO REPRIMAND, ADDRESSED TO THE APPLICANT AND THE RESEARCH WORKERS KUHLBOERSCH AND VAN ALMKERK .

THE EQUIVOCAL, HESITANT AND EVEN CONTRADICTORY ATTITUDE REVEALED BY THE ACTIONS AND ATTITUDES OF THE APPLICANT'S SUPERIORS IS INCOMPATIBLE WITH THE FACTS ALLEGED BY THE DEFENDANT WHICH, IF TRUE, WOULD HAVE NECESSITATED IMMEDIATE AND DRASTIC INTERVENTION IN THE INTERESTS OF THE DEPARTMENT .

P.601

MOREOVER, ASSUMING IT TO BE JUSTIFIED, SUCH INTERVENTION WOULD HAVE CORRESPONDED TO THE ELEMENTARY DUTY OF LOYALTY OWED BY THE INSTITUTION TO ITS SERVANT .

IN FACT, AS SOON AS THE SUPERIORS CONSIDERED, RIGHTLY OR WRONGLY, THAT THE SERVANT WAS ACTING IMPROPERLY, THEY SHOULD HAVE INTERVENED FIRMLY, INSTEAD OF ALLOWING HIM TO BELIEVE THAT HIS CONDUCT WOULD IN THE LAST RESORT BE TOLERATED AND ONLY RAISING THE QUESTION AGAIN DURING THE INTEGRATION PROCEDURE, THE OUTCOME OF WHICH HAS A CRUCIAL EFFECT ON THE PROFESSIONAL FUTURE OF A SERVANT .

( D ) THE APPLICANT ALSO MAKES THE GENERAL ALLEGATION THAT THE CHROMATOGRAPH HAD NEVER BEEN MISUSED AND THAT THIS IMPRESSION AROSE SOLELY FROM THE FACT THAT MR VAN ALMKERK HAD DRAFTED THE QUARTERLY REPORT IN QUESTION IN A MANNER OPEN TO MISINTERPRETATION .

THIS ALLEGATION WAS CONFIRMED BY THE EVIDENCE OF MR KUHLBOERSCH, WITH THE HELP OF DETAILED SCIENTIFIC ARGUMENTS .

IT IS NECESSARY TO CALL EXPERT EVIDENCE ON THIS POINT, SINCE THE CONSIDERATIONS SET OUT ABOVE SHOW BY THEMSELVES THAT THE COMPLAINT AGAINST THE APPLICANT IS BASED ON INACCURATE ALLEGATIONS OF FACT .

C - THE APPLICANT'S RELATIONS WITH MR LAURENT, HIS FIRST SUPERIOR

THE DEFENDANT CONTENDS THAT AT THE END OF 1960 AND THE BEGINNING OF 1961 THE APPLICANT REFUSED TO GO ON SCIENTIFIC MISSIONS TO GRENOBLE AND FREIBURG, AS SUGGESTED BY MR LAURENT .

IN THIS CONTEXT, THE DEFENDANT ITSELF SPEAKS OF ' SUGGESTIONS '.

AS LONG AS THE INTENTIONS OF A SUPERIOR ARE EXPRESSED AS WISHES AND NOT AS ORDERS, THE SUBORDINATE'S DUTY OF OBEDIENCE IS NOT AT ISSUE .

THIS IS PARTICULARLY TRUE FOR RESEARCH WORKERS FOR WHOM IT IS NORMAL FOR FORMAL INSTRUCTIONS TO BE PRECEDED BY A PERIOD OF SCIENTIFIC DISCUSSION IN WHICH THE DIFFERENT OPINIONS ARE CONSIDERED ON AN EQUAL FOOTING .

FURTHERMORE, IT DOES NOT APPEAR THAT MR LAURENT INSISTED FORMALLY THAT HIS SUGGESTIONS BE CARRIED OUT, OR THAT HE COMPLAINED OF ANY INSUBORDINATION TO THE DIRECTORATE OF THE CENTRE .

P.602

MOREOVER, THE DEFENDANT CLAIMS THAT THE APPLICANT WENT ON A MISSION TO GERMANY FROM DECEMBER 1960 TO JANUARY 1961 WITHOUT INFORMING MR LAURENT .

ON 5 DECEMBER 1960 MR GILLOT, THEN HEAD OF THE PHYSICAL CHEMISTRY DEPARTMENT, WROTE TO THE APPLICANT : ' FOLLOWING A DISCUSSION WITH ( MR LAURENT ), IT SEEMS TO BE IN EVERYONE'S INTERESTS THAT YOU LEAVE THE CHEMISTRY GROUP . I DO NOT THINK YOU WILL HAVE DIFFICULTY IN FINDING INTERESTING WORK WITH US IN THE PHYSICAL CHEMISTRY GROUP . THEREFORE, I SUGGEST THAT YOU JOIN US . SHOULD YOU AGREE, I WILL SET IN MOTION THE NECESSARY FORMALITIES FOR YOUR TRANSFER '.

ON 12 DECEMBER 1960 THE APPLICANT EXPRESSED HIS AGREEMENT AND REQUESTED MR GILLOT TO AUTHORIZE THE MISSION IN QUESTION WHICH HAD MOREOVER ALREADY BEEN APPROVED BY THE DIRECTOR OF THE CENTRE .

ALTHOUGH IT IS TRUE THAT IN A STRICTLY ADMINISTRATIVE SENSE THIS CORRESPONDENCE DID NOT IMPLY A TRANSFER AT THAT POINT, THE LETTER OF 5 DECEMBER NEVERTHELESS GAVE THE IMPRESSION THAT THE TWO HEADS OF DEPARTMENT CONCERNED WERE IN AGREEMENT OVER THE APPLICANT'S NEW POSTING .

FURTHERMORE, DURING THIS INITIAL PERIOD MARKED BY THE ABSENCE OF WELL-DEFINED PROGRAMMES OF A PRECISE STRUCTURE, IT APPEARS THAT THE DIRECTOR OF THE CENTRE USUALLY ALLOWED THE HEADS OF DEPARTMENT CONSIDERABLE LIBERTY IN THE CHOICE OF THEIR COLLEAGUES .

THIS IS SHOWN IN PARTICULAR BY THE FACT THAT THE APPLICANT'S MOVE TO THE PHYSICAL CHEMISTRY DEPARTMENT WAS NEVER THE SUBJECT OF A WRITTEN DECISION AND THAT THE EXACT DATE CANNOT EVEN BE ESTABLISHED FROM THE DOCUMENTS IN HIS FILE, COPIOUS THOUGH THEY ARE .

IN VIEW OF SUCH AN UNORTHODOX PRACTICE THE APPLICANT CANNOT BE CRITICIZED FOR ADDRESSING HIS REQUEST FOR AUTHORIZATION TO THE PERSON WHOM HE WAS JUSTIFIED IN THE CIRCUMSTANCES IN REGARDING DE FACTO AS HIS IMMEDIATE SUPERIOR .

MOREOVER, THE DEFENDANT HAS NOT CHALLENGED THE APPLICANT'S STATEMENT THAT MR LAURENT WAS ALSO AWARE OF THE MISSION IN QUESTION .

THIS BEING SO, IT IS CLEAR, THAT THE FACTS REFERRED TO BY THE DEFENDANT ARE INCAPABLE OF SUPPORTING THE COMPLAINTS MADE AGAINST THE APPLICANT .

D - THE APPLICANT'S DELAY IN CARRYING OUT WORK ON THE DETERMINATION OF CERTAIN PHYSICAL CONSTANTS

P.603

THE DEFENDANT CRITICIZES THE APPLICANT FOR HIS DELAY IN CARRYING OUT THE TASKS ENTRUSTED TO HIM AND HIS COLLEAGUES KUHLBOERSCH AND VAN ALMKERK IN THE SPRING OF 1962, WHICH CONSISTED OF DETERMINING CERTAIN PHYSICAL CONSTANTS .

TO SUPPORT THIS CRITICISM THE DEFENDANT REFERS IN PARTICULAR TO ALLEGED ' EQUIVOCATION ', WHICH RESULTED IN THE LOSS OF TWO MONTHS .

IT IS CLEAR FROM THE FILE AND FROM THE DEFENDANT'S ACTUAL ALLEGATIONS IN PARTICULAR THAT THIS ' EQUIVOCATION ' TOOK THE FORM OF OBJECTIONS BY THE APPLICANT, BOTH IN HIS NAME AND IN THOSE OF HIS COLLEAGUES, AS TO THE ARRANGEMENT, METHOD AND ALLOCATION OF THE WORK CONCERNED . IT IS UNIMPORTANT WHETHER OR NOT THESE OBJECTIONS WERE JUSTIFIED FROM A SCIENTIFIC POINT OF VIEW, SINCE IN ANY CASE THE DEFENDANT'S ALLEGATIONS REVEAL A SERIOUS ERROR OF PRINCIPLE .

IN FACT IT CANNOT BE DISPUTED THAT A RESEARCH WORKER HAS THE RIGHT TO ENGAGE IN DETAILED SCIENTIFIC DISCUSSION ABOUT THE ADVISABILITY OF THE ORGANIZATION OF WORK FALLING WITHIN HIS SPECIAL FIELD, SO LONG AS PRECISE INSTRUCTIONS HAVE NOT MARKED THE END OF THE PERIOD OF DISCUSSION .

CONSEQUENTLY, ASSUMING THAT THE ' EQUIVOCATION ' REFERRED TO BY THE DEFENDANT WAS A WRONGFUL ACT OR OMISSION, IT COULD ONLY BE THAT OF THE SUPERIORS WHO ALLOWED THAT PERIOD TO GO ON FOR AN UNREASONABLE LENGTH OF TIME .

FURTHERMORE MR EULER, A MEMBER OF THE CONSOLO COMMITTEE, STATED IN HIS EVIDENCE THAT THE ' DELAY ' IMPUTED TO THE APPLICANT WAS QUITE INSIGNIFICANT IN COMPARISON WITH MANY OF THE OTHER DELAYS WHICH HAD AFFECTED THE WORK OF EURATOM .

TAKEN TOGETHER, THESE CONSIDERATIONS DEMONSTRATE THAT ONCE AGAIN THE FACTS PROVED ARE INCOMPATIBLE WITH THE OPINION OF THE ESTABLISHMENT BOARD .

3 . CONCLUSIONS

IT FOLLOWS FROM THE CONSIDERATIONS SET OUT UNDER 1 AND 2 ABOVE FIRST THAT THE INTEGRATION PROCEDURE WAS VITIATED BY PROCEDURAL IRREGULARITIES AND, SECONDLY, THAT THE MOST IMPORTANT CRITICISMS MADE OF THE APPLICANT ARE EITHER FACTUALLY INACCURATE OR INCOMPLETE .

HOWEVER, SHORT OF TREPASSING UPON AREAS RESERVED FOR THE DISCRETION OF THE ESTABLISHMENT BOARD, THE COURT CANNOT FORMALLY SETTLE THE QUESTION WHETHER, IN THE ABSENCE OF THE ABOVE IRREGULARITIES, THIS BOARD WOULD HAVE BEEN

P.604

THE COURT MUST MERELY CONSIDER IT LIKELY THAT IN THOSE CIRCUMSTANCES THE ESTABLISHMENT BOARD WOULD HAVE REACHED A DIFFERENT CONCLUSION .

TAKEN TOGETHER, THE CONSIDERATIONS SET OUT ABOVE RENDER IT SUPERFLUOUS TO EXAMINE THE OTHER COMPLAINTS RAISED BY THE APPLICANT OR TO CARRY OUT THE MEASURES OF INQUIRY REQUESTED BY HIM .

AT THE HEARING COUNSEL FOR THE APPLICANT FORMALLY STATED IN THE APPLICANT'S PRESENCE AND WITHOUT BEING CONTRADICTED BY HIM THAT, EVEN IF HE WON HIS CASE, THE APPLICANT HAD NO INTENTION OF RE - ENTERING THE DEFENDANT'S EMPLOYMENT .

THIS BEING SO, THERE IS NO REASON EITHER TO ANNUL THE CONTESTED DECISION OR TO REFER THE MATTER BACK TO THE DEFENDANT BUT RATHER TO HOLD THAT, SINCE THE CIRCUMSTANCES IN WHICH THE DECISION WAS MADE WERE IRREGULAR, IT CONSTITUTES A WRONGFUL ACT GIVING RISE TO THE LIABILITY OF THE COMMUNITY AND THAT DAMAGES SHOULD BE AWARDED TO THE APPLICANT .

II - THE SUBMISSIONS THAT THE REJECTION OF THE APPLICANT'S COMPLAINT BE REVERSED OR, ALTERNATIVELY, ANNULLED

THE APPLICANT REQUESTS THE COURT TO REVERSE OR, ALTERNATIVELY, ANNUL THE IMPLIED DECISION BY WHICH THE DEFENDANT REJECTED HIS COMPLAINT OF 30 AUGUST 1962 AND TO AWARD HIM DAMAGES FOR THE INJURY SUFFERED AS A RESULT OF THE ILLEGALITY OF THAT DECISION .

THIS COMPLAINT REFERRED, FIRST, TO THE CLASSIFICATION OF THE APPLICANT AND, SECONDLY, TO HIS WORKING CONDITIONS AT ISPRA .

SINCE THE APPLICANT HAS FORMALLY DECLARED THAT HE DOES NOT INTEND TO RE-ENTER THE DEFENDANT'S EMPLOYMENT, HIS COMPLAINT HAS BECOME POINTLESS .

IT IS THEREFORE UNNECESSARY TO RULE ON HIS CONCLUSIONS CONCERNING THAT COMPLAINT .

III - ON THE CLAIM FOR DAMAGES

( 1 ) THE APPLICANT CLAIMS THAT THE COURT SHOULD ORDER THE DEFENDANT TO PAY HIM DAMAGES BY REASON OF THE IRREGULAR NATURE OF THE DECISION OF DISMISSAL . HE LEAVES THE AMOUNT OF DAMAGES TO THE DISCRETION OF THE COURT . IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE UNDER I(3 ) THAT THESE CONCLUSIONS ARE WELL FOUNDED .

P.605

IN THE CIRCUMSTANCES OF THE CASE, IT IS REASONABLE TO ASSESS THE AMOUNT OF THE DAMAGE AT A SUM EQUIVALENT TO NINE MONTHS OF THE NET EMOLUMENTS RECEIVED BY THE APPLICANT AT THE MOMENT WHEN HIS DISMISSAL TOOK EFFECT .

( 2 ) IN ADDITION, THE APPLICANT MAINTAINS THAT, REGARDLESS OF THE LEGALITY OF THE DECISION OF DISMISSAL, HE HAS SUFFERED DAMAGE .

HE REQUESTS THE COURT TO ORDER THE DEFENDANT TO PAY HIM THREE MILLION BELGIAN FRANCS BY WAY OF COMPENSATION FOR MATERIAL DAMAGE SUFFERED AND SEVEN MILLION BELGIAN FRANCS BY WAY OF COMPENSATION FOR NON-MATERIAL DAMAGE .

AS REGARDS THE ASSESSMENT OF THESE SUMS, THE APPLICATION INSTITUTING THE PROCEEDINGS MERELY STATES THAT THEY ARE JUSTIFIED BY VIRTUE OF THE APPLICANT'S AGE, PROFESSIONAL EXPERIENCE AND THE SERVICES WHICH HE RENDERED TO THE ISPRA CENTRE .

IN VIEW OF THE SIZE OF THE SUMS CLAIMED SUCH GENERAL ALLEGATIONS CONFORM NEITHER WITH THE REQUIREMENTS OF ARTICLE 18 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EAEC NOR WITH ARTICLE 38(1)(C ) OF THE RULES OF PROCEDURE, ACCORDING TO WHICH THE APPLICATION MUST CONTAIN AT LEAST A BRIEF STATEMENT OF THE GROUNDS ON WHICH THE APPLICATION IS BASED .

THE PRESENT CONCLUSIONS MUST THEREFORE BE DECLARED INADMISSIBLE, WITHOUT ITS BEING NECESSARY TO EXAMINE WHETHER THE ALLEGED WRONGFUL ACTS OR OMISSIONS ACTUALLY EXIST .

IV - THE CLAIM FOR REPAYMENT OF THE SUM DEDUCTED FROM THE WEIGHTING

THE APPLICANT CLAIMS THAT THE DEFENDANT SHOULD BE ORDERED TO PAY HIM THE SUM OF 25 706 BELGIAN FRANCS, PREVIOUSLY PAID AS AN ADVANCE AND LATER DEDUCTED FROM THE COMPENSATION PAYABLE ON TERMINATION OF THE CONTRACT .

THE APPLICANT HAS NOT DENIED THAT THIS SUM WAS PAID AS A WEIGHTING AND THAT THE PAYMENT WAS ACCOMPANIED BY A LETTER PROVIDING ' THAT THE PAYMENT OF THIS ADVANCE IS WITHOUT PREJUDICE TO THE OUTCOME OF THE INTEGRATION PROCEDURE ', AND THAT THE ADVANCE ' MAY BE RECOVERED FROM ANY SUMS WHICH MIGHT BE PAYABLE BY THE COMMISSION FOR ANY REASON TO THE PERSON CONCERNED '.

PAYMENT OF THE WEIGHTING ARISES FROM THE PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC AND, WHERE APPROPRIATE, FROM THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES - PROVISIONS WHICH NEVER BECAME APPLICABLE TO THE APPLICANT .

MOREVOER, THE LETTER QUOTED ABOVE CLEARLY SHOWS THAT THE DEFENDANT RESERVED THE RIGHT TO RECOVER THE SUM IN QUESTION IF THE BENEFICIARY FAILED, AS IN THE PRESENT CASE, TO BECOME INTEGRATED UNDER THE STAFF REGULATIONS .

THE FACT THAT THE APPLICANT'S DISMISSAL WAS IRREGULAR CANNOT GIVE HIM A RIGHT TO REPAYMENT OF THE SUM IN QUESTION, SINCE HE HIMSELF HAS STATED THAT HE DOES NOT INTEND TO RE-ENTER THE EMPLOYMENT OF THE DEFENDANT, WHATEVER THE DECISION OF THE COURT ON THE LEGALITY OF THE DISMISSAL .

THE PRESENT CONCLUSIONS ARE THEREFORE UNFOUNDED .

V - THE CLAIM FOR REPAYMENT OF THE SUM PAID BY THE APPLICANT OUT OF HIS PERSONAL FUNDS

IN HIS APPLICATION THE APPLICANT STATED THAT HE HAD EXPENDED A SUM OF ABOUT $400 OUT OF HIS OWN POCKET FOR HIS LABORATORY AT ISPRA AND THAT HIS SUPERIORS HAD REFUSED TO REIMBURSE HIM .

HOWEVER, THESE CONCLUSIONS WERE ONLY PUT FORWARD IN HIS REPLY .

IT DOES NOT APPEAR THAT THIS DELAY IN THE FORMULATION OF HIS CONCLUSIONS IS JUSTIFIED BY LEGAL OR FACTUAL ELEMENTS WHICH BECAME APPARENT AFTER THE FILING OF THE APPLICATION .

THIS BEING SO, THESE CONCLUSIONS ARE INADMISSIBLE UNDER THE TERMS OF ARTICLES 38(1)(D ) AND 42(2 ) OF THE RULES OF PROCEDURE .

THE APPLICANT HAS SUCCEEDED IN THE MAIN POINTS OF HIS APPLICATION AND HAS CLAIMED THAT THE COSTS OF THE APPLICATION BE BORNE BY THE DEFENDANT .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

BOTH THE ORDER OF 17 JULY 1963 BY WHICH THE PRESIDENT OF THE COURT DISMISSED THE APPLICATION MADE BY THE APPLICANT FOR THE ADOPTION OF AN INTERIM MEASURE AND THE ORDER OF THE FIRST CHAMBER OF THE COURT OF 13 NOVEMBER 1964 CONCERNING THE HEARING OF CERTAIN WITNESSES RESERVED THE DECISION AS TO COSTS .

COSTS IN THE ABOVE PROCEEDINGS MUST GO THE SAME WAY AS THOSE IN THE ORIGINAL ACTION .

BY ORDER OF 11 JULY 1963, THE FIRST CHAMBER OF THE COURT GRANTED IN PART THE REQUEST OF THE APPLICANT FOR LEGAL AID, WHILST RULING THAT THE CASHIER OF THE COURT SHOULD MAKE A RECOVERABLE ADVANCE OF 25 000 BELGIAN FRANCS TO THE APPLICANT AND RESERVING THE DECISION AS TO COSTS .

IN ACCORDANCE WITH THE SECOND SUBPARAGRAPH OF ARTICLE 76(5 ) OF THE RULES OF PROCEDURE IT IS APPROPRIATE TO REQUIRE THAT SUM TO BE PAID OVER TO THE CASHIER OF THE COURT BY THE DEFENDANT .

THE COSTS OF THESE PROCEEDINGS MUST GO THE SAME WAY AS THOSE IN THE ORIGINAL ACTION .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . RULES THAT THE DECISION OF THE DEFENDANT OF 20 MARCH 1963 TERMINATING THE CONTRACT OF THE APPLICANT IS ILLEGAL AND CONSTITUTES A WRONGFUL ACT INCURRING THE LIABILITY OF THE COMMUNITY;

2 . ORDERS THE DEFENDANT TO PAY DAMAGES TO THE APPLICANT EQUIVALENT TO NINE TIMES THE MONTHLY NET EMOLUMENTS RECEIVED BY HIM AT THE MOMENT WHEN THE DISMISSAL TOOK EFFECT;

3 . DISMISSES AS INADMISSIBLE THE APPLICANT'S CLAIM FOR DAMAGES FOR LOSS SUFFERED INDEPENDENTLY OF THE ILLEGALITY OF THE ABOVE DECISION;

4 . DISMISSES AS UNFOUNDED THE REQUEST OF THE APPLICANT FOR THE PAYMENT OF A WEIGHTING OF 25 706 BELGIAN FRANCS;

5 . DISMISSES AS INADMISSIBLE THE REQUEST OF THE APPLICANT FOR THE PAYMENT OF A SUM EXPENDED OUT OF HIS PERSONAL FUNDS ON HIS LABORATORY AT ISPRA .

6 . DECLARES IT UNNECESSARY TO RULE ON THE APPLICANT'S REQUEST FOR THE REVERSAL OR, ALTERNATIVELY, THE ANNULMENT OF THE IMPLIED DECISION OF THE DEFENDANT REJECTING THE COMPLAINT OF 30 AUGUST 1962 AND FOR THE PAYMENT OF DAMAGES BY VIRTUE OF THE ALLEGED ILLEGALITY OF THAT DECISION;

7 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION, INCLUDING THOSE INCURRED IN THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE, IN THE HEARING OF WITNESSES AND IN THE GRANT OF LEGAL AID;

8 . ORDERS THE DEFENDANT TO PAY 25 000 BELGIAN FRANCS TO THE CASHIER OF THE COURT .