61963J0078

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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 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 .

CF . PARA . 3 OF SUMMARY IN CASE 26/63 .

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 .

CF . PARA . 4 OF SUMMARY IN CASE 26/63 .

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 .

CF . PARA . 5 OF SUMMARY IN CASE 26/63 .

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 .

CF . PARA . 6 OF SUMMARY IN CASE 26/63 .

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 .

CF . PARA . 7 OF SUMMARY IN CASE 26/63 .

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 .

CF . PARA . 8 OF SUMMARY IN CASE 26/63 .

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 CERTAN 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 .

CF . PARA . 9 OF SUMMARY IN CASE 26/63 .

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 .

CF . PARA . 10 OF SUMMARY IN CASE 26/63 .

IN CASE 78/63

REMY HUBER, REPRESENTED BY MARCEL SLUSNY, OF THE COUR D'APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN, APPLICANT,

V

THE EUROPEAN ECONOMIC COMMUNITY OR, ALTERNATIVELY, THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PAUL LELEUX, ACTING AS AGENT, ASSISTED BY JEAN COUTARD, ADVOCATE AT THE CONSEIL D'ETAT AND AT 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 :

- FOR THE ANNULMENT OF THE INTEGRATION PROCEDURE APPLIED TO THE APPLICANT AND OF THE REPORT OF THE ESTABLISHMENT BOARD NOTIFIED TO HIM ON 18 JUNE 1963;

- FOR THE ANNULMENT OF THE DECISION TO TERMINATE HIS CONTRACT OF EMPLOYMENT;

- FOR THE RECOMMENCEMENT OF THE INTEGRATION PROCEDURE;

- FOR DAMAGES;

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 COMMITTEE OF CHAIRMEN WHICH, UNDER ARTICLE 2 OF THE STAFF REGULATIONS, EXERCISED WITHIN THE COMMISSION OF THE EEC THE POWERS CONFERRED BY THE STAFF REGULATIONS 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 REPORT WHICH WAS COMMUNICATED TO HIM BY LETTER OF 18 JUNE 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 NATURE 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 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 THEREFORE CANNOT BE CONSIDERED AS HAVING 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 RESUBMIT 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 PRESENT 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 18 JUNE 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 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 . IN THIS CASE, 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 INTEGRATION PROCEDURE IN DISPUTE IS IRREGULAR 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, AND THAT THIS IRREGULARITY INVALIDATES THE DECISION TO TERMINATE HIS CONTRACT OF EMPLOYMENT .

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 . IN THIS CASE 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 AUDI ALTERAM PARTEM PRINCIPLE 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 AUDI ALTERAM PARTEM PRINCIPLE 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 DRAWING UP 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 CONCLUSION 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 HEARD AFRESH AFTER THAT HEARING 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 .

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 BERGHOLD . THE REPORT ON THE APPLICANT'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE WAS NOT HOWEVER PREPARED BY MR BERGHOLD ALONE, BUT ALSO BY OTHERS OF THE APPLICANT'S SUPERIORS '.

WITH REGARD TO MR BERGHOLD, ALTHOUGH THE FACTS ALLEGED IN THE APPLICATION GIVE GROUNDS FOR ADMITTING THAT HIS RELATIONS WITH THE APPLICANT DID NOT ALWAYS RUN SMOOTHLY, IT DOES NOT HOWEVER FOLLOW FROM THIS THAT THEY WERE THE DETERMINING FACTOR IN THE UNFAVOURABLE ASSESSMENT CONTAINED IN THE ESTABLISHMENT REPORT .

FINALLY THE PRESENCE OF A STRANGER TO THE PROCEEDINGS, AS A MERE OBSERVER MOREOVER, AT THE DELIBERATIONS OF THE ESTABLISHMENT BOARD AND THE FACT THAT THE APPLICANT WAS NOT ASSISTED BY A COLLEAGUE OR BY A LEGAL ADVISER ARE NOT SUCH AS TO CALL IN QUESTION THE PROPER CONDUCT OF THE PROCEEDINGS BEFORE THE ESTABLISHMENT BOARD .

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 .

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 .

IN ITS OPINION OF 18 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 HUBER ..., 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 :

' MR HUBER HAS NEITHER THE ADMINISTRATIVE KNOWLEDGE NOR THE TRAINING NECESSARY TO PERFORM THE DUTIES OF A SERVANT IN CATEGORY B . '

IN THESE CIRCUMSTANCES IT MUST BE FOUND THAT 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 18 JUNE 1963, SINCE IT ADOPTS THE REASONING OF THE OPINION OF THE ESTABLISHMENT BOARD .

THE SUBMISSION IS THEREFORE UNFOUNDED .

INFRINGEMENT OF THE PRINCIPLE OF EQUALITY OF TREATMENT

THE APPLICANT MAINTAINS THAT THE INTEGRATION PROCEDURE FOLLOWED IN HIS CASE IS INVALID, SINCE, LACKING CRITERIA LAID DOWN UNIFORMLY AND IN ADVANCE, THE REPORTS ON THE STAFF WERE MARKEDLY SUBJECTIVE, AND, NECESSARILY LEADING TO DIVERGENT CONCLUSIONS, VIOLATED THE PRINCIPLE OF EQUAL TREATMENT OF THE VARIOUS SERVANTS .

THE REPORTS ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE PROVIDED FOR BY ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS MUST BE PREPARED BY THE SUPERIORS OF THE SERVANTS WHO ARE SUBJECT TO THE INTEGRATION PROCEDURE . SINCE THEIR AIM IS TO EXPRESS A VALUE JUDGMENT ON A SERVANT'S APTITUDE IN THE PERFORMANCE OF HIS DUTIES AND TO SUPPLY AN ASSESSMENT OF HIS GENERAL CONDUCT, THEY NECESSARILY CONTAIN SUBJECTIVE JUDGMENTS . IN ANY EVENT, THE INTEGRATION PROCEDURE DOES NOT AIM AT MAKING A COMPARISON BETWEEN THE RESPECTIVE MERITS OF VARIOUS SERVANTS, BUT AT FINDING WHETHER THE PERSON CONCERNED IS SUITABLE FOR THE DUTIES OF THE POST WHICH HE HELD PRIOR TO THE ENTRY INTO FORCE OF THE STAFF REGULATIONS .

ON THIS ISSUE THE APPLICATION 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 ONLY FRESH ARGUMENT PUT FORWARD IN SUPPORT OF THIS SUBMISSION IS THAT THE REPORT WRONGLY STATED THAT THE APPLICANT HAD A POOR KNOWLEDGE OF WRITTEN GERMAN . IN THIS CONNEXION IT SHOULD BE OBSERVED THAT THE REPORT OF THE ESTABLISHMENT BOARD DOES NOT ADOPT THIS FINDING WHICH, WHETHER RIGHT OR WRONG DOES NOT APPEAR TO HAVE BEEN ONE OF THE DETERMINING FACTORS IN THE UNFAVOURABLE ASSESSMENT OF THE ABILITIES OF THE APPLICANT OR, CONSEQUENTLY, IN THE DECISION TO TERMINATE HIS CONTRACT .

THE SUBMISSION IS THEREFORE UNFOUNDED .

C - APPLICATION FOR DAMAGES

IN THE COURSE OF THE ORAL PROCEDURE THE APPLICANT STATED THAT HIS CLAIM FOR DAMAGES SHOULD BE INTERPRETED TO MEAN THAT, IF THE CONTESTED DECISION TO TERMINATE HIS CONTRACT WERE TO BE ANNULLED, THE COMMISSION SHOULD BE ORDERED TO PAY HIM THE ARREARS OF HIS MONTHLY SALARY .

THE SUBMISSIONS MADE AGAINST THE DECISION TO TERMINATE HIS CONTRACT, CONTESTED BY THE APPLICATION, HAVE BEEN SHOWN TO BE UNFOUNDED . IT IS THEREFORE UNNECESSARY TO ADJUDICATE UPON THE CLAIM FOR DAMAGES .

THE APPLICANT HAS FAILED IN HIS ACTION .

UNDER 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 .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 78/63 AS UNFOUNDED;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .