JUDGMENT OF 7.7.1964 — CASE 87/63 GEORGES v COMMISSION

In Case 87/63

THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and W. Strauß, Judges, Advocate-General: M. Lagrange Registrar: H.J. Eversen, Assistant Registrar

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

The applicant was engaged by the defendant by a letter of 11 July 1958 (Schedule 1 to the application).

She remained assigned throughout her period of service to the Directorate-General of External Relations as a secretary/shorthand-typist.

The salary fixed in the letter of appointment corresponded to that of a servant of the ECSC, Grade C/11, Step 1. By a letter of 19 October 1959 (Document No 19 on the personal file), the defendant notified the applicant that her basic monthly salary had been increased to 7900 FB, corresponding to Step 2 of Grade C/11 of the salary scale in force in the ECSC, with effect from 1 January 1959; and by a letter of 11 January 1961 (Document No 28 on the personal file), this salary was fixed, with effect from 1 January 1961, at 8350 FB, corresponding to Step 3 of Grade C/11 of the ECSC scale. Lastly, by a decision of 18 July 1963, the basic salary of the applicant was fixed, with effect from 1 January 1963, at 8800 FB per month, corresponding to Step 4 of Grade C/11 of the ECSC scale (Document No 76 on the Dersonal file).

following the publication of the Staff Regulations of officials of the EEC and EAEC (14 June 1962), the establishment report concerning the applicant was completed on 28 June 1962 and seen by the applicant on 6 July 1962 (Schedule 1 to the statement of defence). This report concluded that the applicant was not qualified to carry out the duties assigned to her, or even other duties possibly at a less senior level. Mr Staderini, Director-General of External Relations, gave the following reasons for this unfavourable opinion:

‘The technical ability of Miss Georges is not disputed. That makes all the more regrettable the careless attitude of the person concerned who, despite numerous warnings, persists in neglecting the most elementary requirements of the obligations of her em plovment.’

The applicant s comments, appearing in the establishment report, dispute the validity of the criticisms of her superiors concerning her sense of initiative, the amount of work done, her sense of responsibility and her punctuality.

At its meetings on 15 ana 22 November 1962 the Establishment Board heard Mr Staderini, Director-General of External Relations, and Messrs Blin and Scheitler, servants of the same Directorate-General. At its meeting on 30 January 1963 the Board heard the applicant.

The chairman ot the Establishment Board reminded the applicant of the complaints against her mentioned in the establishment report and informed her of the ‘facts and comments made known to the (Establishment) Board by the officials who had been heard in her case’. The applicant submitted her own comments.

The Establishment Board then again heard Messrs Staderini and Blin who confirmed and elucidated their previous statements. Miss Georges was called once more and replied to the latest statements of Messrs Staderini and Blin (Schedule 3 to the statement of defence).

By a letter of 31 January 1963 the applicant asked Mr W. Funck, the chairman of the Establishment Board, for an immediate transfer to the typing pool, because of ‘theclearly exaggerated remarks made by her superiors in the Directorate-General of External Relations’ (Schedule 3 to the application).

ay a letter of 11 February 1963 (Document No 46 on the personal file), the applicant informed the above-mentioned Mr Funck that she was prepared to give up her private interests in order to conform to the ruling of the Board.

in a letter of 27 March 1963 to the President of the Commission of the EAEC, the applicant stated that she had learnt at the time when she was called before the Establishment Board on 30 January 1963 that she had been accused of carrying on outside activities consisting of:

running hairdressers' snops,

constructing buildings,

interests in oil companies,

running an insurance agency,

interests in fashion.

She gave the following explanations, In respect of the construction of buildings and the interests in oil companies, she stated that she had had a building erected, of which she had sold a part to an oil company, and that this was thus a completed transaction. As to fashion, she had no more interest in this than other women. She stated that she was in fact the owner of two small hairdressers' shops, where she undertook no work; in respect of insurance, she had previously been in touch with insurance companies and she had an agency for her personal policies with one of these companies. She stated that, if the Board considered these activities to be incompatible with her employment, she was prepared to give up the ownership of the hairdressers' shops and the insurance agency. She insisted on the fact that, since her entry into the service, no comment had been made to her respecting the incompatibility of her activities (Schedule 4 to the application).

On 5 April 1963 (Document No 52 on the personal file), the applicant was temporarily seconded to the Directorate of Personnel Application and Probation Department.

On 23 April 1963 (Document No 54 on the personal file), the Head of the Application and Probation Department informed the applicant that her application for a post as a clerk in the Executive Secretariat (Documentation Office) had not been accepted. This was a post in the career bracket C/3 and C/2 (corresponding to Grades C/ll and C/10 of the old ECSC Staff Regulations), to which the applicant had requested her transfer by an application dated 13 December 1962.

A similar reply was sent to the applicant in respect of her applications for vacancies announced in Notices Nos V 24/63, V 28/63, V 30/63, V 26/63 and V 25/63 (Documents Nos 56, 62, 65, 69 and 72 on the personal file).

On 29 April 1963, P. Orianne, counsel for Miss Georges and five of her colleagues, wrote to the Commission of the EAEC requesting a review of the integration procedure which had been followed and asking that no decision likely to be detrimental to them should be taken concerning their establishment before a rehearing at which both sides should be heard, within the framework of a procedure offering the necessary guarantees of their competence, their efficiency, their conduct within the service and their capacity to carry out their duties (Schedule 11 to the application).

In his reply dated 30 May 1963, Mr Th. Vogelaar, Director-General (Legal Service), stated that the above-mentioned letter, as well as those dated 8 and 20 May 1963, had been put before the Commission of the EAEC, which at its meeting of 29 May 1963 considered that the procedure followed had been proper and decided to reject the requests (Schedule 3 to the statement of defence).

By letter of 25 May 1963 addressed to the President of the Commission of the EAEC, the applicant, referring to her letter of 27 March 1963, stated that she had given up ownership of her hairdressers' shops and her insurance agency and that she could produce documents proving this (Schedule 6 to the application).

On 22 May 1963, the applicant informed the Director-General of Administration and Personnel that she had had the opportunity to discuss her position with senior officials of the Commission of the EAEC and that she had come to the conclusion from the discussions that she must resign rather than be dismissed. In the same letter she confirmed her decision to resign, stating that the date and the conditions of her resignation should be a matter for consideration, so as to allow her to have the necessary time to find employment corresponding to her qualifications (She-dule 5 to the application and Schedule 6 to the statement of defence).

On 5 June 1963 the Directorate-General of Administration and Personnel informed her that her resignation had taken effect and that she should remove her belongings at the latest by 1 October 1963. The applicant replied by letter of 17 June 1963 that she had meant to resign only on condition that she was able to fix the date on which this should take effect by agreement. Taking into account the answer to her suggestion, she simply withdrew her resignation (Schedules 7 and 8 to the application).

Subsequently, the Directorate-General of Administration and Personnel informed the applicant by letter of 3 July 1963 of the decision taken by the Commission of the EAEC at its meeting on 20 March 1963 to terminate the applicant's contract in accordance with Article 102 of the Staff Regulations of officials (Schedule 10 to the application).

The decision taken on 20 March 1963 by the Commission of the EAEC referred to the unfavourable opinion expressed by the Establishment Board on 19 February 1963, worded as follows (Schedule 3 to the statement of defence):

‘The Establishment Board, naving regard to tne provisions of the Staff Regulations of officials and particularly Article 102, acting upon the basis ot the report on the competence, efficiency and conduct in the service of Miss Georges, Jacqueline, secretary assigned to the Directorate-General of External Relations, Grade C 3/3, together with all oral opinions submitted concerning this servant. after having heard the comments of the person concerned, considers that, despite repeated warnings, this servant has shown a carelessness in the exercise of her duties, which makes her unsuitable to be integrated into the permanent staff of the institution; that, in particular, the person concerned believed it to be possible to combine the performance of her duties with the management of private interests, by devoting herself in office hours and on the premises of the institution to various activities concerning her interests, to such an extent that the functioning of the department was often disturbed; and on those grounds, expresses the opinion that Miss Georges, Jacqueline, is not suited to the exercise of the duties assigned to her.’

The duties of the applicant ended on 8 August 1963, that is to say, one month after the notification on 8 July 1963 of the decision to terminate the contract.

In accordance with the final paragraph of Article 34 of the Staff Regulations of officials of the EEC and EAEC, the applicant received compensation equal to two months' basic salary (Document No 77 on the personal file) and compensation for the number of days of holiday not taken (Document No 79 on the personal file).

The applicant lodged her application at the Court on 4 October 1963.

II — Conclusions of the parties

A — The applicant claims in her application that the Court should:

‘Set aside the disputed decisions against integration and of dismissal contained in the letter sent on 3 July 1963 (P. 155.17) by the defendant to the applicant as well as the whole procedure preceding the decisions, and particularly the opinion of the Establishment Board, and, on reversing them, rule that the applicant shall be integrated under the Staff Regulations of officials of the EAEC in her former grade (C 3/4), with retroactive effect to 20 March 1963 at least, with all the consequences in fact and in law following upon this; order the defendant to pay to the applicant the arrears of remuneration becoming due as a consequence of her reinstatement; Order the defendant to pay to the applicant the sum of 50000 FB by way of compensation for the non-material damage suffered bv her: alternatively, Order that, following the annulments requested above, the applicant shall undergo a new integration procedure in conformity with the rules of law, as well as the principles and practices applicable to her; Order the defendant to pay to the applicant the instalments of her salary together with all the benefits relating thereto from the date of termination of her duties until such time as a new decision has been validly taken in respect of her by the defendant; order tne defendant to pay to tne applicant the sum of 50000 FB by way of compensation for non-material damage; In the further alternative, In the unlikely event of the disputed decisions for one reason or another not being annulled, order the defendant to make reparation for the damage suffered by the applicant owing to the illegal measures and wrongful acts or omissions committed during the integration procedure and award the applicant a sum to be decided by the Court as compensation and interest, and here estimated at 50000 FB for non-material damage and 150000 FB for material damage; In addition order the defendant to pay to the applicant the sum of 60000 FB in lieu of the additional notice which ought to have been given to her; Order the defendant to pay to the applicant interest at the rate of 6 % per annum on all the sums which it is ordered to pay from the date on which these ought to have been or will have to be paid; Order the defendant to pay the costs.’

In her statement in reply:

‘The applicant claims that the Court should allow the claim as set out in the application: Alternatively, that the Court should: Before pronouncing judgment, order the defendant to produce the complete report of the meeting of the Establishment Board on 27 September 1962, as well as an account of the visits of inspection received by Miss Georges and her colleagues in the department during the period complained of, these being relevant supporting documents; Order proof Dy tne evidence by witnesses of the following facts: during the years 1961, 1962 and 1963, the work given to the applicant could not on average occupy her for more than two hours a day; from June 1962 to February 1963 the applicant remained in the office and at the disposal of Mr Blin, secretary of the Division. The work done by Mr Blin was itself small in quantity and in consequence he rarely made use of the services of Miss Georges; Miss Georges never refusea any request from another office for her help; she was always at work at the time when the offices were actually occupied and when she might be needed; the conduct of Miss Georges was never detrimental to the functioning of the department; since 1960 you at least, Miss Georges no longer worked in the office of Mr Staderini who thus could not make a statement from his own knowledge concerning the complaint put forward.’

B — The defendant contends:

—— In its statement of defence that the Court should:

‘Declare that the application is unfounded in respect of the claims under all heads and consequently dismiss it; Order the applicant to pay the costs.’

—— In its rejoinder, that tne Court should:

‘Accept the conclusions of the defendant in its defence, to which it adheres.’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A — As to admissibility

The defendant raises no objection to the admissibility of the application.

B — On the substance of the case

The applicant maintains that the decisions against integration and of dismissal contained in the letter of 3 July 1963 are vitiated because of procedural defects, contrary to the EAEC Treaty and to Regulation No 11 laying down the Staff Regulations of officials of the EAEC, as well as to the rules of law concerning their application in that:

those decisions were not preceded by a proper integration procedure;

the grounds tor the opinion of the Establishment Board are incorrect or irrelevant,

the Commission of the EAEC has not adhered to the normal length of notice which, in this case, should be at least six months.

The applicant alleges, in addition, that the irregularities committed amount to wrongful acts or omissions on the part of the defendant, for which it is liable.

1. As to the first ground of complaint: irregularity of the establishment procedure

The applicant repeats that she informed the defendant of the defects in the integration procedure by letter of 29 April 1963 (Schedule 11 to the application), drafted by her counsel, Mr Orianne, in her name and in that of five other servants.

a) She alleges, hrst of all, that the procedure which was followed allowed neither the Establishment Board nor the applicant to verifythe accuracy of the complaints raised against her. It is equally objectionable that the assessments made of her by the establishment report (Schedule 1 to the statement of defence) should have depended upon the subjective opinion of a superior in the hierarchy and upon his personal severity. In brief the applicant alleges that the Establishment Board was not able to come to a decision with full knowledge of the case.

b) She alleges, further, that the Establishment Board did not employ a procedure in which both sides were sufficiently heard: the file was incomplete, and the complaints ultimately regarded as decisive, and which led to results comparable to those of the most serious disciplinary measures, were not put into writing and brought to her knowledge beforehand.

c) one alleges, iastly, that the integration procedure was not governed by general and uniform provisions in conformity with Article 110 of the Staff Regulations of officials of the EAEC, which was indispensable to ensure the right of defence and to conform to the principle of equality between servants.

The defendant replies as follows to the arguments of the applicant.

As to (a):

It refers to the reply which It sent on 29 May 1963 (Schedule 13 to the statement of defence) to the administrative complaint of the applicant dated 29 April 1963. The Establishment Board which was required to express an opinion on the ability of the applicant, under the provisions of Article 102 (1) (b) and (2) of the Staff Regulations of officials of the EAEC, strictly observed the guarantees set out in this Article and thus made its decision with full knowledge of the case. The opinion of the Board was drawn up on the basis of the explanations of the applicant and the concurring assessments of her superiors.

As to (b) :

The defendant asserts that, noiwith-standing the absence of any express provision in the Regulations in this respect, the integration procedure afforded the applicant the guarantees of an inquiry at which both sides are heard.

The defendant points out:

that the establishment report was nrst communicated to the applicant who used her right to add her comments to it (Schedule 1 to the statement of defence);

tnat tne applicant was nrst sent ner personal file (Schedule 2 to the statement of defence); that this file was not incomplete and that, moreover, the applicant has up to the present made no comment on it;

that tne applicant nas Deen neara on two occasions by the Establishment Board and that she has been able to submit her comments on the oral statement of her superiors.

As to (c):

According to the aelendant, Article 102 of the Staff Regulations of officials of the EAEC is a directly applicable provision; it is in the nature of a transitional provision and does not require any general implementing provision within the meaning of Article 110 of those Regulations; furthermore, the integration procedure was applied in a uniform manner to all servants.

The applicant makes the rejoinder that the handing over of the personal file, containing nothing relating to the facts alleged, and of a completely inaccurate establishment report compelled the applicant to improvise a verbal defence before the Establishment Board, which even a lawyer could not have accomplished in such circumstances. This was consequently doomed in advance.

The defendant replies that the task of the Establishment Board is to form a comprehensive view of opinions on the general conduct of the servant, to hear the latter and to express a value judgment. The integration procedure required that the applicant should be informed exactly of the statements of her superiors — which was done in this case — but not that these statements should be communicated in writing. In this respect, the defendant refers to the grounds of the judgment given by the Court (First Chamber) on 5 December 1963 in Joined Cases 35/62 and 16/63, Leroy v High Authority.

According to the statements made to the Establishment Board, the applicant has had oral warnings concerning her private activities and the consequent disturbance to the department. The establishment report referred to by the applicant mentions her unconscientious attitude towards her work. The defendant deduces from this that the applicant cannot state that she did not know to what it referred.

2. As to the second ground of complaint: inaccuracy or irrelevance of the reasons

The applicant recalls that the unfavourable opinion of the Establishment Board (reproduced above, I, Facts) refers to repeated warnings. She states that no part of the file shows the fact that there were warnings, which she disputes, and that this was not proved before the Establishment Board.

She mentions next, in respect of the allegation — which she denies — of having disturbed the functioning of the department by the management of private interests, that no part of the file showed such disturbance to have existed and that this was not proved to the Board after both sides had been heard. In this respect, she says that Mr Scheitler, who is alleged to have made the complaint, told her that he had not in fact done so (Schedule 2 to the application).

The applicant alleges that, alter having worked until the end of 1959 for Messrs Dumilieu and Marchal, who gave evidence of her good work (Schedules 1 and 2 to the reply) she remained assigned to the Directorate-General of External Relations as an ‘unattached’ secretary and, from that date, she was left for most of the time without work, as is shown by the letter of 31 January 1963 addressed to the chairman of the Establishment Board (Schedule 3 to the application).

She alleges that it was because she was left without work that she was reduced to occupying herself with her private business, on the subject of which she gave explanations in her letter of 27 March 1963 to the President of the EAEC Commission (Schedule 4 to the application), the contents of which have been analysed above (I, Facts).

The defendant replies that, alter an examination at which both sides were heard, the Establishment Board considered that the incompetence of the applicant was shown by the statements of her superiors and by the fact that the applicant's explanations could not invalidate those statements. It considers that the opinion expressed by the Establishment Board in the exercise of its power of discretion cannot be annulled unless the applicant proves that such assessment is not based upon the facts.

It is thus only as a subsidiary matter that the defendant replies to the arguments of the applicant concerning the second ground of complaint.

In respect ot the warnings given, the defendant points out that the establishment report mentions numerous admonitions. It has been the subject of comment by the applicant who has not, however, disputed the fact of these warnings.

On the subject of Mr scheitler, the defendant points out that in support of her allegation the applicant cites her own letter to him, which.has no probative value.

On the subject of the allegation by the applicant that she was left without work, the defendant points out that, with the exception of secretaries of Directors-General and Directors, all the shorthand-typists are ‘unattached secretaries’, who are assigned to the department as a whole; it is inherent in these duties to have hours without work and conversely, in case of extra work, to be called on to work overtime. It is possible, however, that certain members of the department got tired of asking in vain for the applicant, as she was frequently not available (lateness, absences, visits, telephone conversations). As to the request of the applicant to be assigned to the typing pool (Schedule 3 to the application), the defendant considers that this is a dramatic way of trying to mitigate the severity of the complaints raised before the Establishment Board.

The applicant replies by criticizing the argument of the defendant, as it would result in requiring the applicant to prove facts in the negative, which would be difficult to achieve. This method of defence can be allowed only if the defendant first proves that the procedure before the Establishment Board really allowed both sides to be heard and permitted the exercise of the right of defence and if the defendant proves, by the file submitted to the Court, that the examination of the Establishment Board was complete and objective and that, in the absence of proof to the contrary, the file is sufficient to support the terms of the decision, which, according to the applicant, is not so in the present case.

The complaints made by Messrs Staderini and Blin are hard to believe: how could an employee seriously disturb the department for two years without her superiors doing anything to stop her and without even giving her a written warning?

The applicant alleges that she worked under the orders and in the office of Mr Genuardi until June 1962 and that his opinion was not obtained by the Establishment Board.

one points out tnat tne defendant should have put on her file the entries constituting the proof of facts raised against her; if the defendant has not done so, it should repair this omission by some other proof.

In addition, the tacts referred to are not precise; the defendant, when mentioning the disturbances of the department and the warnings given, satisfies itself with vague expressions such as ‘frequent’, ‘numerous’ or ‘serious’. If, in the establishment report, the applicant has made no comment in respect of these warnings, it is because at that time she had not been accused of any particular act. The complaint concerning the management of private interests was not, moreover, brought against her until nine months later and, at that time, the applicant disputed the grounds for the alleged warnings (Schedule 3 to the statement of defence, page 5). In her letter of 27 March 1963 (Schedule 5 to the reply), the applicant stated, without receiving any denial from the defendant, that no remark had been made to her during the whole of her service.

The file contains no information on the quantity of work required of the applicant and this question was not verified by the Establishment Board.

Alternatively, and to the extent that the Court considers such proof to be necessary, the applicant requests in her conclusions (see above, II, Conclusions of the parties, A), proof by the evidence of witnesses of a series of six facts.

The defendant replies that the applicant cannot reply on the absence of documents to dispute the existence of the complaints. As the work reports are not drawn up with a view to litigation, the institution does not feel in the least inclined to prepare in advance written proof which may be used against its servants.

The private activities of the applicant — which she does not deny — occasioned numerous visits from persons outside the department and many telephone conversations; the normal functioning of the department was hampered and the applicant received several warnings. These facts were stated by several persons, all of whom were in a position to give evidence.

The reason tor which Mr Genuardi was not heard by the Establishment Board was his posting to the Euratom office in Washington.

Before the Establishment Board, the applicant's conduct was the subject of concurring evidence (which was confirmed after being disputed by the applicant) by three persons whose integrity is not contested; these statements have no need to be accompanied by a detailed and written description of many successive facts only the general existence of which was of importance.

The conduct of the applicant could without question have prompted, by way of disciplinary measures, written warnings and even sanctions going as far as dismissal. The defendant preferred to await the entry into force of the Staff Regulations to allow the person concerned to benefit from the integration procedure and to afford her the guarantees of an examination by the Establishment Board at which both sides were heard. According to the defendant, that Board has expressed a favourable opinion on the establishment of eighteen servants out of thirty who had been the subject of unfavourable reports by their superiors in the hierarchy.

Concerning the hearing ot witnesses requested by the applicant, the defendant points out that, according to the grounds of the judgment given on 12 December 1956 in the Mirossevich case (Rec. 1955-1956), the Court can only review the ways and means which led to the opinion of the Establishment Board, but it cannot substitute its value judgment for that of the Establishment Board.

3. As to the third ground of complaint: irregularity of fhe length of notice

The contractual liability of the Com munity is governed by the law applicable to the contract in question (Art. 188 of the EAEC Treaty).

According to the applicant, if she had been engaged by a Belgian authority, the ordinary provisions concerning contracts of employment would have applied in the absence of Staff Regulations.

According to Belgian law, when the salary exceeds 120000 FB per annum, as in the present case, the length of notice is fixed by agreement, or by the Court, but cannot be less than three months if the employment has lasted less than five years and six months if it has lasted from five to ten years.

On the other hand, the notice can begin to run only on the first of the month following that during which it was given (Consolidated Laws governing contracts of employment of 20 July 1955).

Following the Belgian practice, and taking account of the circumstances, the applicant, whose employment had extended over a period of almost five years, could have claimed six. months' notice.

Even if the application of the lex loci is to be excluded, it does not follow that the length of notice can be left to the discretion of the authority.

The social considerations which apply in private law are equally valid in public law.

Furthermore, it lollows from Article 188 of the EAEC Treaty that every contract is governed by a law. This law, which, according to the argument put forward here, falls within the category of public law, is set out neither in the Treaty nor in any other provision. It is necessary, then, to refer to the custom which may be deduced from the various national laws. There is certainly none which, apart from the case of disciplinary action, permits dismissal of a public servant at only a month's notice.

The defendant replies that the length of notice depends on a contract of employment arising from the public law of the Communities. The Court, in its judgment ot 1 March 1962 (Case 25/60, Ve Bruyn v European Parliamentary Assembly, Rec. 1962 pp. 61 and 62), decided that one month's notice, appearing in the letter of appointment to which the servant had freely consented, has no unjust or oppressive character. The position is exactly the same in the present case.

The defendant adds that it had suggested to the applicant that she should resign in order to facilitate her reclassification (see above, I, Facts): if the applicant had accepted this suggestion, she would have had the benefit of four months' notice (from 20 March to 1 October 1963) in order to seek a new position. In addition the applicant received compensation equivalent to two months' salary under Articles 34, last paragraph, and 102 (2), of the Staff Regulations of officials of the EAEC.

The applicant answers that the conduct of the defendant during the period prior to dismissal led to the belief that the defendant hesitated to undertake its responsibilities and wished to suppress the matter. On the contrary, if the applicant had received the normal notice, she would have known what the intentions of the defendant were and would thus have had the necessary time to find new employment.

The defendant replies that the decision against integration, taken by the Commission of the EAEC on 20 March 1963 and made known to the applicant on 9 April 1963, was irrevocable and that there could not be any question of suppressing the matter: the suggestion made to the applicant on 9 April 1963 that she offer her resignation had as its aim only that of saving her the disadvantages of being dismissed and making easier the search for a new position.

4. Concerning the claim for compensation

The applicant alleges that the irregularities committed, both those which have been the subject of complaint and those which may subsequently come to light, amount clearly to wrongful acts or omissions for which the opposing party is liable. The applicant is thus entitled to ask for compensation for the material and non-material damage which has been occasioned her.

The damage consists first of the loss of her salary and of the benefits attaching to it from the termination of her duties until her reinstatement.

Alternatively, there is due to the applicant compensation corresponding to her remuneration during the additional notice which, in any case, should have been given to her, that is to say, the sum of 60000 FB, possibly to be increased or reduced during the proceedings, as well as compensation for material damage estimated at 150000 FB.

As to the non-material damage arising from the injury suffered by the applicant to her reputation through the disputed measures, it may perhaps be fixed conservatively at the sum of 50000 FB (see above, II, Conclusions of the parties, A).

The defendant replies that the award ot compensation is linked to the validity of the plaintiff's claim, which it denies.

The defendant adds that the amounts claimed for material damage and for failure to give longer notice are not supported by any precise calculations.

The applicant replies that it is a question of amounts to be decided by the Court ‘ex aequo et bono’, as is the practice in similar cases.

The sum ol 60000 FB, however, represents the approximate remuneration of the applicant during the extra six months' notice which should have been given to her, the then current month not being counted. At the time of her departure, her total monthly salary was 10235 FB.

IV — Procedure

The statements of the parties have been lodged in due form and within the prescribed time-limits and the procedure has followed the normal course.

By Order ol 28 October 1963, the Court (First Chamber) dismissed the applicant's application for legal aid, lodged on 4 October 1963.

During the hearing on 18 March 1964, and after hearing the preliminary re port of the Judge-Rapporteur and the opinion of the Advocate-General, the First Chamber decided to open the oral procedure without making any prenaratory inquiry.

The parties presented oral argument at the hearing on 29 May 1964.

The Advocate-General delivered his opinion at the hearing on 10 June 1964.

Grounds of judgment

I — As to admissibility

The defendant does not dispute the admissibility of the present application.

No objection need be raised in the present case by the Court of its own motion.

The application is admissible.

II — On the substance of the case

A — Concerning the ground of complaint based upon the irregularity of the integration procedure

The applicant alleges, in the first place, that the precise facts on which the unfavourable opinion of the Establishment Board is based were only communicated to her orally at the time of her appearance before the said Board, so that she could not effectively put forward her means of defence; the Establishment Board, which relied furthermore on the personal and purely subjective appraisals of her superiors, did not take these facts into account and consequently the Establishment Board could not make its decision with knowledge of the facts, as the rights of the defence were not observed.

The argument of the applicant originates from confusion between disciplinary procedure and integration procedure.

Integration procedure does not have the character of a disciplinary procedure. The Establishment Board referred to in Article 102 of the Staff Regulations has the task of evaluating the general conduct of the persons concerned in order to make a value judgment on their ability to carry out on a permanent basis the duties corresponding to their classification in the hierarchy.

It is true, however, that infringements of the rules concerning the conduct required of servants working for an administration constitute, if they are serious or repeated, one of the important criteria for assessment, even if such infringements have not been individually punished.

The material correctness of the facts which served as the basis for the decision of the Establishment Board will be considered below, when the second ground of complaint is examined.

It is for the Court in addition to consider whether the Establishment Board had a sufficient knowledge of the facts to be able to check the opinions of the heads of department.

In the present case the establishment report and the personal file of the applicant were passed to her and she was able to give her written comments upon them.

The Establishment Board heard the heads of department and the applicant alternately without, however, bringing them face to face. A confrontation is not, however, necessary in respect of an integration procedure.

It follows from the foregoing that the Establishment Board, when it expressed its final opinion, was in a position to form that opinion with a knowledge of the case.

The applicant alleges, in the second place, that the personal file which was passed to her was incomplete and that the minutes of the meetings of the Establishment Board prior to the meeting during which the final opinion was formed were not made known to her.

The personal file of the applicant could not show the shortcomings of which she was accused, since these had given rise only to verbal warnings.

The administration cannot be regarded as being obliged to pass to the person concerned the minutes of meetings of the Establishment Board before notification of the decision of the appointing authority.

In addition the negative opinion of the Establishment Board binds the appointing authority. Any complaint by the person concerned against this opinion could only be raised effectively by means of an action against the decision of the appointing authority, since this opinion constitutes the final step in the integration procedure.

Consequently, the failure to make a preliminary communication of the minutes of the meetings of the Establishment Board cannot be detrimental to the person concerned.

It appears, furthermore, from the procedural documents that the Establishment Board made known to the applicant the statements made with regard to her by the officials who had been heard and that it invited her to give explanations in this respect.

The applicant alleges, in the third place, that the integration procedure was not governed by way of uniform general provisions, in accordance with Article 110 of the Regulations..

Article 102 is only a transitional provision of the Staff Regulations and consequently does not require any general provision for giving effect to it within the meaning of Article 110 of the said Regulations.

It follows from the foregoing considerations that the establishment procedure was proper.

B — Concerning the ground of complaint based on the inaccuracy and lack of relevance of the reasons

The applicant, although admitting having used for private purposes the premises and apparatus put at her disposal for use in the service, denies that verbal warnings were given to her on this subject.

This denial of the applicant directly contradicts the formal and concurring statements supplied in this respect by the officials who were heard by the Establishment Board.

It is improbable furthermore that the administration, however tolerant it was, did not at least give the applicant verbal warnings concerning her conduct during working hours.

Consequently, the applicant has not been able to prove the material inaccuracy of the facts on this point.

The applicant next denies having disturbed the functioning of the department by the management of her private interests.

It is clear that the conduct of the applicant was in itself of such a nature as to disturb the functioning of the department. Consequently a simple denial on the part of the applicant cannot amount to proof that the department was not actually disturbed. The applicant's allegations that she was left very often without work do not amount to justification in this respect.

The applicant lastly disputes the relevance of the reasons given by the Establishment Board. It apears on the contrary that these reasons are of just such a nature as legally to justify the unfavourable opinion of the conduct of the person concerned in respect of her ability to carry out her duties on a permanent basis.

Consequently, this ground of complaint cannot be accepted.

C — Concerning the request for compensation

Any right of the applicant to compensation for the damage which the disputed decision may possibly have caused must in the present case be precluded. In fact the disputed decision does not display any sign of the defects alleged by the applicant. Consequently, taking into account the character and the object of this decision, it cannot amount to a wrongful act or omission and thus cause unlawful damage unless the decision contains superfluous criticisms in respect of the applicant, which has not been alleged in the present case.

Furthermore, the reasons for the disputed decision contain no unnecessary criticism and are limited to the indispensable minimum.

Consequently, it only remains to consider the request for compensation founded upon insufficient notice.

It is necessary to state, first of all, that the notice of one month corresponds to what was provided for in the applicant's contract of appointment.

Under Article 102 (2) of the Staff Regulations, the applicant has received, in addition, compensation corresponding to two months' basic salary, as provided for in Article 34 of the Regulations.

In the present case this allowance which is directly provided for by the Regulations appears sufficient for it to be decided that the defendant has discharged its obligations in respect of notice.

Consequently, the conclusions of the applicant in respect of compensation must be dismissed.

III — Costs

Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

However, under the terms of Article 70 of the Rules of Procedure, the costs incurred by the institutions in appeals by servants of the Communities shall be paid by the former.

On 4 October 1963 the applicant made an application for legal aid, which was dismissed by Order of the First Chamber of the Court on 28 October 1963, the costs being reserved.

The applicant has failed in all her submissions. For the reasons set out above, it is proper for each party to bear its own costs in respect of both the main application and the application for legal aid.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70, 76 and 95; Having regard to the Staff Regulations of officials of the European Atomic Energy Community, especially Articles 34, 91, 102 and 110; THE COURT (First Chamber) hereby:

1 Dismisses Application No 87/63 as unfounded;

2 Orders each party to bear its own costs in respect of both the main application and the application for legal aid.