JUDGMENT OF 7.7.1964 — CASE 93/63 MINOT v COMMISSION

In Case 93/63

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows: By a letter of 21 March 1958 to the Commission of the EAEC, the applicant sought a post as a servant in charge of a typing pool (Schedule 1 to the application and Document No 6 on the personal file).

After the applicant had been successful in a test on 1 April 1958, the defendant offered her a post as a secretary/shorthand-typist by letter on 26 June 1958 (Schedule 2 to the application). The letter of employment of the ‘Brussels’ type was sent to the applicant on 28 June 1958; the letter offered a basic monthly salary of 9650 FB and was accepted by the applicant on 1 July 1958 (Schedules 1 and 2 to the statement of defence).

In her unsigned application form dated ‘June 1958’ (Document No 1 on the personal file and Schedule 3 to the statement of defence), the applicant described the education which she had received as follows:

A) Establishment of higher education: Ladies of Mary, Higher Commercial Institute for Girls, from 1944 to 1948, degree in commercial science:

B) Education received since the age of 14 years:

1) Same establishment as above, modern humanities, 6 years of study, great distinction;

2) Institut Meysmans, shorthand and typing, French shorthand, Gold Medal, 100 words, the same for Dutch shorthand.

It should be noted that the same claims concerning the education received appear in the above mentioned letter of 21 March 1958, which is signed by the applicant (Schedule 1 to the application and Document No 6 on the personal file).

On 23 April 1959, the basic monthly salary of the applicant was increased to 10200 FB, corresponding to Grade C/10, Step 4, of the ECSC salary scale (Schedule 5 to the statement of defence), with effect from 1 January 1959, and on 3 July 1959 to 11475 FB, corresponding to Grade C/9, Step 3, of the same scale, with effect from 1 July 1959 (Schedule 4 to the application).

In her reply of the same date as the letter of 3 July 1959, the applicant indicated her disagreement with the remuneration granted and tendered her resignation (Schedule 5 to the application). It should be mentioned that this letter does not appear on the ‘personal file’ and that the defendant alleges that it was not received.

The defendant, recognizing that the applicant carried out tasks of a Category B nature (Schedule 6 to the application), informed her on 14 January 1960 that the basic monthly salary of 11475 FB, which she was receiving, corresponded to Grade B 9, Step 3, of the ECSC scale (Schedule 7 to the statement of defence). In a note of 23 February 1960 addressed to the Director-General of Administration and replying to the letter of 14 January 1960, the applicant expressed herself as follows: ‘I wish, however, to repeat the reservations which I made in respect of my classification and my remuneration, which do not correspond to the actual work required of me, and would inform you that I wish to see my administrative situation regularized in the near future’ (Document No 16 on the personal file).

On 5 July 1960 the basic monthly salary of the applicant was increased to 12425 FB, corresponding to Grade B 8, Step 1, of the ECSC scale, with effect from 1 July 1960, and on 9 August 1963 to 13100 FB corresponding to Grade B 8, Step 2, of the ECSC scale, with effect from 1 July 1962 (Schedule 6 to the statement of defence and Document No 87 on the personal file).

On 22 November 1960, Mr Funck, Director-General of Administration and Personnel, gave a written warning to the applicant with an endorsement on her file.

This admonition was worded as follows: ‘On 7 or 8 July 1960, you went to the servant in charge of the keeping of personal files and you insisted that your own file should be given to you, claiming that it was an express request from your head of department, Mr Wegner. It appears that in fact you received no instruction from Mr Wegner to ask for your file on his behalf and that you did not inform Mr Wegner that you had made this request in his name and had obtained your file using his authority’ (Schedule 10 to the statement of defence) .

By a letter of 27 September 1960 (Schedule 4 to the statement of defence), the applicant alleged in her defence that she had received a testimonial from a former employer and that, when she showed it to Mr Wegner, he had advised her to put a copy on her file, without saying how this was to be done.

In accordance with the departmental memorandum of 6 February 1962 (Schedule 20 to the statement of defence) concerning the bringing up to date of personal files with a view to integration under the Staff Regulations, the applicant was asked by a stencilled letter of 16 March 1962 (Schedule 11 to the statement of defence) to forward several documents to the administration, particularly the certificates and diplomas mentioned in her application form.

At its meeting on 25 July 1962 the Establishment Board gave a favourable opinion on the integration of the applicant (Schedule 1 to the rejoinder). The establishment report, dated 17 April 1962 and signed by the applicant on 13 June 1962, declared that the applicant was suitable to carry out the duties assigned to her and even mentioned that her activities were those of an official of Category A (Schedule 14 to the statement of defence).

As the applicant was slow in providing the diplomas requested, the defendant sent her reminders on 16 May 1962 and 11 July 1962; this last letter warned the applicant in addition that failure to provide these documents could ‘only delay or possibly put in question her integration under the Staff Regulations’ (Schedule 13 to the statement of defence and Document No 65 on the personal file).

During August 1962 the applicant produced photocopies of the following diplomas:

1) French shorthand, issued on 1 April 1944 by the Institut Meysmans (distinction, 100 words per minute, Document No 57 on the personal file);

2) Dutch typing, issued on 1 April 1944 by the same Institut (great distinction, 30 words per minute, Document No 58 on the personal file);

3) Dutch shorthand, issued on 17 April 1943 by the same Institut (great distinction, 100 words per minute, Document No 59 on the personal file);

4) Scientific examination, issued on 29 June 1943 by the Ladies of Mary at Aalst (great distinction, Document No 60 on the personal file);

5) Official diploma of the final examination in commercial science, issued on 26 June 1944 by the Ladies of Mary at Aalst (distinction, Document No 61 on the personal file).

By a letter of 26 November 1962, Mr Tinelli, Director of Personnel, asked the applicant for the diploma of the ‘degree in commercial science’ which the applicant had referred to in her application form (Schedule 21 to the statement of defence).

The applicant produced a letter dated 5 December 1962 from Mrs Beel, Head of the Institute of the Ladies of Mary at Aalst, certifying that she had ‘passed successfully through the stage of the primary, intermediate and higher sections as they were at that time’ (Schedule 22 to the statement of defence).

On 15 February 1963, the applicant sent to the abovementioned Mr Tinelli a letter explaining that she had never claimed to possess a university degree, but only to have pursued studies generally considered, except for public careers, as being of a comparable level (Schedule 10 to the application).

On 22 April 1963, the applicant sent Mr Tinelli the following letter:

‘as Mr Wegner has informed me that it does not appear sufficiently clearly from my file that I finished my studies in 1948, that is to say, at the age of 21 years, I have the honour to send you confirmation relating to the school years 1945-1946 and 1947’ (Schedule 12 to the application).

The certificate enclosed, which was addressed to the applicant by Mother Marie-Thérésa, Mother Superior of the Ladies of Mary at Aalst and dated 22 April 1963, was worded as follows:

‘In answer to your request, I confirm that you did in fact follow the courses c the commercial section of the Institute during the years 1945-1946 and 1947’ (Schedule 11 to the application).

By a letter of 6 June 1963, Mr W. Funck, Director-General, the chairman of the Establishment Board, informed the applicant that the Euratom Commission considered that if it was proved that she did not possess the diploma of the degree in commercial science which she had mentioned this could be an obstacle to her integration, resulting in the termination of her employment. The Establishment Board had been given the duty of clearing up this point (Schedule 15 to the statement of defence) .

At the meeting of the Establishment Board on 18 June 1963 (minutes in Schedule 16 to the statement of defence), the applicant was accused of not being able to account for the years of secondary and higher education (modern humanities and degree in commercial science) and the corresponding diplomas which she had mentioned in her application form.

The applicant gives the following explanation :

that she entered the service of Euratom following a competitive examination;

that she had never held an academic degree but only a certificate of equivalent level;

that this certificate, which was issued in 1948 by the Institute of the Ladies of Mary of Aalst, had been mislaid;

that she had been duly entered at that Institute until June 1948, that she followed the courses and that she is ready to prove this;

that the disputed remarks in the application form were intended only to show the level of higher education which she had reached and that, if she had wished to take advantage of it for her career in the institution, she would not have failed to do so, since she carries out duties of Category A level at Euratom.

In conclusion, the person concerned declared that she was ready to produce a certificate confirming that she had successfully followed the higher commercial course at the Institute of the Ladies of Mary at Aalst (Schedule 16 to the statement of defence).

On 24 June 1963, the applicant sent to the abovementioned Mr Funck a letter and a certificate signed by Mother Marie-Thérésa, Mother Superior of the Ladies of Mary of Aalst, both dated 22 June 1963, and letters from industrial circles at Aalst (Document No 80 on the personal file and Schedule 12 to the statement of defence).

The certificate of the Mother Superior of the Ladies of Mary states that the applicant ‘followed the courses during the school years 1944-1945, 1945-1946, 1946-1947 and 1947-1948 and passed with “distinction” the final examinations of the advanced commercial section as it was at that time’.

Letters from a notaire, Mr Breckpot, (22 June 1963), from the textile mills Tissage G. Le Compte (21 June 1963), from the Ateliers de construction Gilbos (21 June 1963) and from the spinning mill la Filature du Canal (22 June 1963) assert that the equivalence of the leaving certificates of the advanced commercial section of the Institute of the Ladies of Mary at Aalst to the degree in commercial science is accepted in industrial circles in the region and is a matter of public knowledge.

At the meeting of the Establishment Board on 2 July 1963, to which the applicant was not summoned,

‘The chairman informed the Board that Mrs Minot had sent him a certificate issued on 22 June 1963 by the Mother Superior of the Ladies of Mary of Aalst stating that the person concerned had actually followed the courses of the Institute during the school years 1944-1948 inclusive and had passed with “distinction” the leaving examination of the advanced commercial section as it was at that time. 'Doubting the correctness of this certificate, the chairman requested one of his colleagues, Miss Looyens, to make an enquiry on the spot. Miss Looyens, on being heard by the Board, explained that she had gone the previous day to Aalst and as a result of an interview with the Mother Superior of the Ladies of Mary and the Director of the humanities course it appeared: that Mrs Minot had never attended the modern humanities courses at the Institute of Aalst; that after her primary education she went over to the commercial course which she followed for 5 years; that she left the institute in June 1944, holding a diploma officially recognizing this commercial education ; that this diploma cannot be compared with that of modern humanities, which requires 6 years of studies distinct from the commercial course followed by the person concerned, and cannot be regarded as being of an equivalent level; that a fortiori it is well known that such a diploma cannot be regarded as equivalent to a diploma of advanced studies, such as the degree in commercial science; that furthermore at the time in question the Institute did not provide teaching at the level comparable to that of the advanced legal course; that there could be no confusion in Mrs Minot's mind on these various points. 'Following this statement and faced with the contradictions which appeared between the wording of the certificate issued to Mrs Minot on 22 June and the information obtained by Miss Looyens on the spot, it was decided that the chairman himself would follow up these investigations and that the person concerned would be re-heard’ (Minutes in Schedule 17 to the statement of defence).

At the meeting of the Establishment Board on 4 July 1963 the chairman stated in the presence of the applicant:

“That on 3 July 1963 he was received by the Mother Superior of the Ladies of Mary with whom he discussed Mrs Minot's case in the presence of the Director of Technical Education. 'After checking the records, the Director confirmed that they showed no trace of Mrs Minot's having attended the Institute after 1944. Questioned on the contradiction between the wording of the certificate issued by her on 22 June and these statements, the Mother Superior of the Ladies of Mary explained that her good faith had been abused. Prompted by a feeling of sympathy, understandable in respect of a former pupil whom she remembered, she had tried to come to the aid of Mrs Minot who had said that she was in difficulties. She had drawn up the certificate of 22 June trusting the statement of the person concerned herself, who had practically dictated its contents (years of attendance, subjects studied). Acting trustingly, she had not thought it necessary to carry out the usual inspection of the registers of the Institute. At the end of the discussion the Mother Superior of the Ladies of Mary gave Mr Funck a new certificate, restating the facts as shown by the records, as well as a document expressly annulling the certificate given on 22 June.”

When asked for her explanation of the matter, Mrs Minot adhered to her previous statements. She declared that she had attended the Institute until 1948, notwithstanding the statement of the Mother Superior, and that she had followed the courses of advanced commercial education then available. She explained the gaps found to exist on this point in the records of the Institute by the situation of private teaching in Belgium at that time.

On discussing the case, the Board considered that at the end of the inquiry which it had held the following was established:

“That the person concerned wrongly declared herself the holder of a diploma of modern humanities obtained in 1944 and of a certificate of advanced commercial education equivalent to a degree in commercial science, obtained in 1948, issued by the Institute of the Ladies of Mary of Aalst; that in tact she followed the courses of the commercial section of that Institute and in 1944 obtained the appropriate diploma, the level of which is inferior to that of a diploma of modern humanities; that the person concerned wrongly claimed to have followed a course of advanced studies until 1948, such courses not in any case having been given at that time in the Institute of the Ladies of Mary; that these unfounded claims and the actions by which the person concerned has tried to give them an unwarranted justification indicate conduct on her part which is incompatible with her integration into the permanent staff of the Institution” (minutes in Schedule 18 to the statement of defence).

The documents referred to above are the following:

1) The first, dated 3 July 1963 and signed by Mrs Beel, Head of the commercial and technical schools of the Ladies of Mary at Aalst, is worded as follows:

“Following yesterday's conversation we have consulted the records. These show that Mrs Minot-Van Nuffel attended the commercial school from September 1939 until July 1944. In addition she finished the course of the commercial section of the time with distinction” (Schedule 24 to the statement of defence).

2) The second, dated 3 July 1963 and signed by Mother Marie-Thérésa, Mother Superior of the Ladies of Mary at Aalst, states:

‘Regarding Mrs Minot-Van Nuffel I find myself obliged to confirm the certificate of Mrs Beel, Head of the “Handels en Technische scholen” Dames van Maria te Aalst, thus cancelling my certificate of 22 June 1963’ (Schedule 25 to the statement of defence).

The report of the Establishment Board to the Commission of the EAEC dated 9 July 1963 sets out the reasoning stated in the minutes of the meeting on 4 July 1963, quoted above, and declares ‘that the facts established are of such a nature as to justify Mrs Minot's not being integrated.’ (Schedule 19 to the statement of defence).

On July 1963 the applicant sent the abovementioned Mr Funck a letter informing him, in particular, that she was endeavouring to trace persons who could testify that the studies from 1944 to 1948 were actually pursued. (Schedule 13 to the application).

At its meeting on 17 July 1963 the Com-mission of the EAEC decided to cancel the applicant's contract and ordered the administration to take the necessary measures in execution of this decision (Document No 84 on the personal file).

The disputed decision, dated 25 July 1963, is signed by the abovementioned Mr W. Funck and is worded as follows:

‘I have the honour to inform you that at its meeting on 17 July 1963 the Commission decided to refuse your establishment as an official and t(terminate your engagement. 'This decision was taken following a new examination of your case by the Establishment Board. 'The investigation which this Board undertook, and during the course of which you have on two occasions had the opportunity to submit your comments, has enabled it to be established that you do not in fact hold the diplomas which you claimed to hold at the time of your engagement. 'The Commission considered that this fact, together with your failure during five years to establish the truth of your claims, shows in itself conduct incompatible with your integration as a permanent official of this Institution. 'In accordance with the provisions of your letter of engagement, the final termination of your duties will take effect on the expiration of a period of one month from this notification. On that date your financial situation will be settled on the basis of the provisions in force and will include in particular the payment of the compensation provided for in Article 102 (2) of the Staff Regulations.” (Schedule 14 to the application.)

On 14 August 1963, the administration invited the applicant to continue in service until 31 August 1963, so that she could finish handling the files with which she had been dealing (Document No 89 on the personal file).

The applicant's duties ended on that date and, in accordance with Article 34, last paragraph, of the Staff Regulations, she received compensation equal to two months' basic salary and a compensatory allowance for the number of days' holiday not taken (Document No 92 on the personal file).

The applicant lodged her application at the Court on 25 October 1963.

II — Conclusions of the parties

A. The applicant requests in her application that the Court should: In her statement in reply

‘1) Order the defendant to pay the applicant the sum of 516000 FB in reparation for the damage which she has suffered owing to the loss of the benefits attaching to the duties carried out by her at least from 1 January 1959 until 31 August 1963.

2)

a) Set aside the disputed decisions against integration and of dismissal contained in the letter sent on 25 July 1963 to the applicant by the defendant, as well as the procedure supporting those decisions and particularly the unfavourable 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 a grade at least equivalent to Grade A 7, Step 3, with retroactive effect to 17 July 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 non-material damage;

b) Alternatively Order that, following the annulments requested above, the applicant shall undergo a new integration procedure in accordance with the rules of law, as well as the principles and practices applicable to her; Order the defendant to pay to the applicant the remuneration relating to the duties which she was carrying out, that is to say, 20000 FB per month, at least from the date of the termination of her duties until such time as a new decision has been validly taken in respect of her by the defendant; Order the detendant to pay to the applicant the sum of 50000 FB by way of compensation for non-material damage;

c) 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 200000 FB for material damage and 50000 FB for non-material damage; In addition order the defendant to pay to the applicant the sum of 160000 FB in lieu of the additional notice which ought to have been given to her;

3) Order the defendant to pay 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.’

‘The applicant claims that the Court should allow her claims as set out in her application.

Alternatively

Before pronouncing judgment, order the defendant to produce:

1) The applicant's letter of resignation sent to the defendant, in the person of Mr Funck, on 3 July 1959;

2) The minutes of the meetings of the Establishment Board concerning the examination of the applicant's case, prior to 18 June 1963:

Order proof by the evidence of witnesses of the following facts:

1) On 3 July 1959, the applicant sent her resignation to the defendant, in the person of Mr Funck, because the decision by which her salary was increased to 11475 FB per month, corresponding to Step 3 of Category C 9, related neither to the duties which she had performed since her entry into the service nor to the grade which had been envisaged for her;

2)

a) The records of the Institute of the Ladies of Mary of Aalst relating to the period 1944-1948 and the advanced course of commercial studies have been destroyed;

b) The applicant actually followed the course of advanced commercial studies of the Institute of the Ladies of Mary at Aalst from 1944 to 1949 and these studies enabled her to obtain a corresponding diploma or certificate;

c) The dates and the references to her employers included by the applicant in her application form under the heading of posts which she had held are perfectly correct.”

B. The defendant contends in its statement of defence that the Court should: In its rejoinder that the Court should:

“Declare that the application for compensation is inadmissible or, al ternatively, dismiss it as unfounded; Dismiss the application for annulment of the decision against integration, the decision of dismissal and the integration procedure as unfounded;

Order the applicant to pay the costs.”

“Declare that the application for compensation is inadmissible;

Alternatively, dismiss it as unfounded; Dismiss the application for annulment of the decision against integration, the decision of dismissal and the integration procedure, as well as the application for compensation, as unfounded ;

Order the applicant to pay the costs.”

III — Submissions and arguments of the parties

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

The applicant bases her case on:

1) The failure of the defendant to grant to the applicant throughout her service the grade, the remuneration and the advantages attaching to the duties carried out by her:

2) The decision against integration and of dismissal taken by the defendant on 17 July 1963 and notified to the applicant by letter of 25 July 1963;

3) The wrongful acts or omissions committed by the defendant and its servants in fixing the grade and the benefits attaching to the duties actually carried out by the applicant, as well as those committed within the framework of the integration procedure and on the occasion of the abovementioned decisions.

A — As to admissibility

According to the defendant, the application, to the extent to which it seeks compensation owing to the fact that the applicant has not been invested with the grade and salary appropriate to her duties, is inadmissible for the following four reasons:

1) The classification of an official depends upon the discretionary power of the administration;

2) The application is out of time;

3) The individual decisions which are the subject of the application have become final;

4) The applicant did not first refer the matter to the Commission of the EAEC.

As to 1

The defendant refers to the fact that the Court, in its judgment of 16 December 1960, Fiddelaar v Commission of the EEC (Rec. 1960, p. 1093), admitted that it could not substitute itself for the appointing authority in order to decide in which grade and step a servant may be engaged.

The applicant replies that the wrongful act or omission alleged does not consist only in the fact of having deprived the applicant of the benefits attaching to the duties carried out by her — the only aspect considered by the defendant — but also in the fact of having made the applicant carry out duties clearly more important than those appropriate to her grade and remuneration. The decision referred to cannot apply to the ground of complaint of having failed to make the duties carried out correspond to the grade and step conferred. And even supposing that the applicant has benefited under the Staff Regulations of officials during the period under consideration, the dispute is not concerned with appointment, but with promotion or temporary posting, which are spheres within which the administration has no discretionary power (Articles 7 and 43 et seq. of the Staff Regulations).

The defendant replies that the applicant is trying to establish that there is confusion in the mind of the defendant as to the nature of the wrongful act or omission committed. The defendant states that it is clear from the wording of the application that the wrongful act or omission alleged consists only in the fact of having deprived the applicant of the benefits corresponding to the duties actually carried out by her, or, in other words, in the fact of not having instituted a strict relationship between the duties and the grade, and only in her statement in reply does the applicant for the first time allege another wrongful act or omission which consists in the fact of making the applicant perform tasks clearly more important than those appropriate to her grade and remuneration (statement in reply, p. 3). The defendant points out that the raising of fresh issues in the course of proceedings is prohibited by Article 42 (2) of the Rules of Procedure and requests the Court to set aside discussion of this second wrongful act or omission, where it amounts to a fresh issue.

The defendant adds that what the Court stated in the Fiddelaar judgment in respect of the appointment and engagement of an official applies“a fortiori’ to the classification of a servant under contract, where the administration is alone competent to decide what grades correspond to the duties carried out.

As to 2

The defendant stresses that by virtue of Article 91 of the Staff Regulations appeals concerning a dispute between the Community and its servants must be lodged within 3 months from the publication of the Regulations (16 June 1962). As this time-limit expired on 14 September 1962, this submission is inadmissible. In support of its allegation, the defendant refers to the judgment given by the Court on 4 April 1960 in Elz v High Authority (Case 34/59, Rec. 1960, pp. 228 and 229). The defendant states that on the other hand the judgment of 1 March 1962 in De Bruyn v Parliamentary Assembly (Case 25/60, Rec. 1962, p. 55) does not apply to the present case, because at the time when Mrs De Bruyn made her application (28 March 1961) the Staff Regulations of officials were not yet in force.

The applicant replies that paragraph (2) of Article 91 of the Staff Regulations, which lays down time-limits for appeals against legislative and individual measures, cannot apply in the present case, where the wrongful acts or omissions of the administration are constituted by a course of conduct consisting of a continuous chain of material measures, being illegal measures compelling the applicant to carry out tasks not provided for by contract and not corresponding to the rank in the service or to the salary allotted her. In such a case the servant will be out of time only at the expiration of the time-limit which begins to run only from the moment of the last of the measures in the chain constituting the wrongful acts or omissions of the administration.

In addition, to the extent to which her application is directed towards compensation, the applicant may have recourse to the ordinary law, which is open to every person who is the victim of a wrongful act or omission on the part of the defendant, under Article 188 of the EAEC Treaty and Article 44 of the Statute of the Court of Justice of the EAEC, and to the time-limits laid down by those provisions: the applicant's action was thus brought within the Drescribed time-limits.

The defendant replies that Article 91 of the Staff Regulations is applicable, because it is in fact measures of an individual nature which are in question. The defendant points out that, in order to try to dispute the second submission of inadmissibility, the applicant had substituted in her statement in reply, as the fact giving rise to the wrongful act or omission, ‘conduct consisting of a continuous chain of material measures’ for ‘the fact of not having granted to the applicant the grade which was due to her’ originally alleged in her application. The defendant adds that the reference by the applicant to Article 188 of the EAEC Treaty and Article 44 of the Statute of the Court of Justice of the EAEC is irrelevant, since appeals against one of the Communities by persons in their service are henceforth governed by Article 91 of the Staff Regulations of officials.

As to 3

The defendant alleges — in the event of the Court's deciding that the applicant has unlimited time in which to make her applicant is not entitled to reply on the support of a claim for compensation the applicant is not entitled to reply on the irregularity of an individual decision which has become final by the expiration of the time-limit for an application for its annulment.

The four decisions of reclassification concerning the applicant are dated 23 March 1959, 3 July 1959, 14 January 1960 and 5 July 1960 respectively (see above, I, Facts) and, as the annulment of those individual decisions has not been sought within the prescribed time, the defendant submits in consequence that the application for compensation is inadmissible.

The applicant replies that the third submission of inadmissibility is derived from an inaccurate interpretation of the action for compensation and of the wrongful act or omission on which it is based.

It is true that, in its judgment of 15 July 1963 in Plaumann v Commission of the EEC, the Court decided that an administrative measure which has not been annulled cannot of itself constitute a wrongful act on the part of the administration inflicting damage upon those whom it affects and that ‘the Court cannot by way of an action for compensation take steps which would nullify the legal effects of a decision which, as stated, has not been annulled’ (Case 25/62, Rec. 1963, p. 225).

The applicant states that in the present case, if the Court were to accept the irregularity of the Commission's conduct towards the applicant, that is to say, if it were to decide that there was in fact no equivalence between the duties carried out and the remuneration, the individual decisions fixing such remuneration would nevertheless remain intact. The applicants draws the conclusion from this that the action for compensation is admissible without its first being necessary to seek the annulment of the individual decisions.

The defendant replies by referring to its previous explanations concerning the new fact giving rise to the wrongful act or omission included by the applicant in her statement in reply and argues that the third submission as to inadmissibility has not been refuted by the applicant.

As to 4

The defendant alleges that the action for compensation cannot be based on the Commission's failure to act (implied decision of refusal), as the applicant had neglected first to refer the matter to the Commission. There can only be a failure to act when the authority which is invited to act fails to do so within a certain time.

it appears from the applicant's personal file that she never submitted a request to the Commission for reclassification. The letter from the applicant dated 3 July 1959 and produced in Schedule 5 to the application (see above, I, Facts) was actually shown to Mr Wegner, the applicant's superior, but was never sent. The applicant replies that it is not a matter of an action for failure to act, but of an action for compensation for damage resulting from the positive conduct of the defendant consisting of a continuous chain of material measures.

Furthermore, the principle that failure to act only exists when the authority, being invited to act within a certain time, fails to do so is valid only within the framework of applications for annulment and not in respect of liability in contract or in tort.

B — On the substance of the case

The applicant bases her case on the following submissions:

1) The failure of the defendant to carry out its obligation to confer upon her, from 1 January 1959 at least, the administrative and financial status corresponding to the duties actually carried out by her;

2) The refusal of the opposing party to integrate her as an official at a grade and step corresponding to her abilities and to the duties carried out by her, which refusal was based on incorrect, insufficient and inadequate reasons;

3) The fact that the decision of dismissal taken in respect of the applicant lacks all legal basis and, as an alternative point, has not been communicated to the applicant with sufficient notice.

The applicant alleges that these various decisions of the defendant and its failures to act are vitiated by abuse and misuse of powers and by procedural defects amounting to wrongful acts or omissions for which it is liable.

1. The defendant's alleged wrongful act or omission in not having granted to the applicant the grade and remuneration appropriate to her duties

The applicant states that, although she was engaged as a secretary/shorthand-typist, she never carried out such duties, but was assigned to much more important work, which, as her superior later confirmed in the establishment report, related to Category A. However, the series of the slight increases in the remuneration of the applicant are far from corresponding to her duties and responsibilities.

The authority has, however, the duty of establishing an absolute equivalence between grades, remuneration and duties; in the absence of this the classification of duties and career brackets would become meaningless.

By depriving the applicant of the rights concomitant with her duties, the defendant has made itself liable for a wrongful act or omission with regard to the Community which it represents as well as with regard to the applicant.

It is in tact certain that a service cannot function properly, if its servants do not hold appropriate positions. On the other hand, it is contrary to the most elementary concept of fairness to demand work from a servant without offering him in return the consideration and material advantages which go with it.

If one considers the contractual aspect, one can see that the defendant has amended the contract in respect of the services to be supplied but has attempted to retain the benefit of the contract in respect of the advantages and remuneration attached to those services.

According to the applicant, the damage suffered consists in depriving her of the material and moral benefits attaching to the duties actually carried out by her at least from 1 January 1959 until 31 August 1963. This damage may be estimated conservatively at the sum of 100000 FB a year, that is to say, 466000 FB for material damage and 50000 FB for non-material damage.

The defendant replies that, according to the applicant's calculations, the damage suffered as a consequence of her classification equals 100000 FB per annum, or 8333 FB per month, and that the applicant thus considers that from 1 January 1959 she should have received a monthly salary of 19163 FB corresponding to the ECSC Grade A6/1 or B6/1, instead of the sum of 10830 FB which was paid to her. The defendant states that by awarding this compensation the Court would not only recognize that the applicant should have been classified in that grade, but would automatically annul the individual decisions concerning the classification of the applicant (see above, A, As to admissibility, As to 3).

It is true that the applicant's contract of employment is a contract governed by public law, subject to the general rules of administrative law and to observance of the public interest. However, in respect of the duties to be carried out and the salary to be paid, it is the offer of employment of 26 June 1958, accepted on 1 July 1958, which remains the legal basis to which it is proper to refer. Certain conditions of this contract were later amended, so that the monthly salary of the applicant rose from 9650 FB at 16 August 1958 to 13944 FB in July 1963. The defendant considered that the applicant, who was engaged at the level of Category C, deserved to be moved to Category B, but it asserts that the duties performed by the applicant never reached the level of Category A which, according to Article 5 of the Staff Regulations, represents “administrative and advisory duties which require university education or equivalent professional experience”. The defendant has thus acted within the framework and limits of its power of discretion in this respect and consequently cannot be accused of any wrongful act or omission, contractual or otherwise.

The applicant replies that the wrongful act or omission with which she charges the defendant is not limited — as the latter asserts — to a refusal of classification or to a failure of classification of the applicants, but consists equally, and even primarily, in the actual conduct of the defendant, which made the applicant carry out many legal and important tasks which were not provided for in the contract and in fact correspond neither to her grade nor to her remuneration (see above, A, As to admissibility, As to 1).

The defendant has not denied in its statement of defence that, on the one hand, the applicant was engaged to carry out only clerical duties and that, on the other, she was continually entrusted by the defendant with general and special administrative and advisory duties, the drafting of important documents, attendance at meetings and missions abroad.

The applicant actually protested on several occasions. She asks in this respect that the Court should order the production of the original of her letter of 3 July 1959 in which she threatened to resign, and offers to prove by the evidence of witnesses that it was actually sent and its contents.

The applicant alleges lastly that, even if she had been within the ambit of the Staff Regulations, the defendant would not have had the power to decide at its discretion the nature and the level of the duties which she actually carried out (argument based on Articles 5 et seq. and 43 et seq. of the Staff Regulations) .

The defendant replies that it is only with the object of avoiding the inadmissibility of her request for compensation that the applicant, in her statement in reply, tries to substitute, as the fact giving rise to the wrongful act or omission, “conduct consisting of a continuous chain of material measures” for “the fact of not having granted the applicant the grade which she should have had” which she had originally alleged in her application (see above, A, As to admissibility, As to 1 and As to 2).

The defendant attempts to demonstrate that a fresh issue is in fact substituted for an old one by an extensive analysis of the wording of the application.

The defendant alleges next — in the event of the Court's deciding that the fresh issue is admissible — that this fresh issue leads to the same conclusions as the old one, both as to admissibility and the very foundation of the request for compensation. The applicant's complaint against the defendant in her statement in reply is that it gave her duties which did not correspond to the grade conferred on her; it is thus still a question of equivalence of the grade to the duties. In order for there to be matter for compensation, it is necessary that damage should have been caused by a wrongful act or omission and no wrongful act or omission can be attributed to the administration unless it has in fact committed an irregular act.

When in her statement in reply the applicant asks the Court to find that the Commission has committed a wrongful act or omission and to restore the balance between her grade and her duties by awarding her compensation, she is really asking the Court to rule that the remuneration received by the applicant was not sufficiently high for the duties which she performed and that this irregularity can only be made good by giving the applicant a higher grade. The defendant submits that the arguments which it has set out in its statement of defence remain perfectly valid in the face of the new arguments of the applicant.

The defendant points out next that the applicant has not specified exactly what equivalence between payment and the work done should consist of, and that, if the applicant describes the “very important duties” that she has undertaken, she does not say what remuneration should have been paid to her to restore the balance.

The defendant doubts whether, either by virtue of the contract or under the general rules of administrative law, it was bound to establish a strict relationship between the duties and the remuneration of the applicant. According to the defendant, there could not have been a strict relationship during the period before the entry into force of the Staff Regulations between unspecified duties and grades which did not yet exist. However, in respect of the applicant, remuneration was determined in relation to the work done, since the applicant, who carried out duties described as “drafting”, received a salary corresponding to that of ECSC officials belonging to Category B. As no wrongful act or omission, contractual or otherwise, can be attributed to the defendant, the action of compensation should be dismissed as unfounded.

2. The refusal of integration and the consequent dismissal

(a) The procedure followed for integration

The applicant states that between the date of the establishment report, drawn up on 17 April 1962, which was very favourable to her, and the date of the decision of termination (17 July 1963) there elapsed a delay of 15 months during which her file was held in suspense. Everything happened therefore as if somebody wished at all costs to prevent the integration of the applicant. If, before the period when the problem of the diplomas held by the applicant arose, her file was ready for a decision, it was by an abuse of power and a misuse of procedure that it was held in suspense for reasons having no relationship to the interest of the service.

The defendant replies that the delay in the procedure was caused by the conduct of the applicant who, despite numerous reminders, did not provide the diplomas mentioned in her application form until 24 June 1963 (see above, I, Facts).

As to the applicant's other arguments, they are no more than unfounded allegations in respect of which she does not even offer to furnish proof.

The applicant replies that, if she was obliged to found her reasoning on presumptions, it was because of the failure of the defendant to produce certain documents which are essential to her file. It follows from Schedule 16 to the statement of defence, containing the minutes of the meeting of the Establishment Board on 18 June 1963, that it was at the request of the EAEC Commission that a “new examination” of the applicant's case was opened. The applicant does not know the dates of the meetings prior to this last date, because she was not summoned to them, probably because the examination of her case produced no unfavourable facts, and asks the Court to order the production of the minutes of the meetings of the Establishment Board concerning her case prior to 18 June 1963.

The defendant replies that it is true that on 25 July 1962 the Establishment Board had expressed an opinion favourable to her integration and produces this document as a schedule to its rejoinder. The defendant explains that the Establishment Board first of all examined files which, to begin with, raised no problem. If the applicant's file was not sent at that time to the EAEC Commission for a decision, it was because examination of her personal file showed the absence of certain supporting documents, the production of which was then requested. It was the failure of the applicant to produce those documents which caused a new examination of her case (see above I Facts).

The defendant submits that the applicants shows no proof of the misuse of procedure which she alleges.

(b) The reason for the refusal of integration and for the dismissal

The applicant states that she is accused of having, at the time of her engagement, laid claim to diplomas to which she was not actually entitled.

She gives the following details:

1) In her letter of 21 March 1958 applying for employment she relied essentially upon her ability and her experience, which have never been questioned;

2) What in the above letter she described as “degree” is a course of studies organized by the Institute of the Ladies of Mary at Aalst, not leading to the grant of any official diploma but the standard of which is recognized in the region.

As the employment sought was that of a secretary/shorthand-typist, which is in no way reserved to holders of a degree, the error of the applicant was thus purely formal and without consequence. It is true that she was later given Category A duties. But in accordance with the wording of the second paragraph of Article 5 of the Staff Regulations, access to this grade does not require university diplomas but only university education or equivalent professional experience.

The ground of complaint raised cannot justify the decision taken, because it lacks seriousness and relevance. It is to be thought that the apparent reason hides a real unacknowledged reason, and that the conditions of abuse of power and even of misuse of powers are to be found here.

The defendant replies by recalling the reason given against integration and for dismissal and the facts which led the defendant to this decision (see above, I, Facts). The defendant points out that it was not only at the time of her engagement, but afterwards and on many occasions, that the applicant laid claim to diplomas which she did not possess. The defendant alleges that the applicant did not even carry out the studies which she claimed in her application, and that in fact:

1) No advanced course was given between 1944 and 1948 at the Institute of the Ladies of Mary at Aalst;

2) During this period the applicant had two full-time posts with a firm in Aalst and a firm in Brussels;

3) As the application form mentioned only one of these two firms, and moreover with false dates, it constitutes a false declaration.

The defendant offers to provide proof of the above allegations.

The argument of the applicant that the diplomas relied upon were not required in order to carry out the duties of a secretary is irrelevant, as the Establishment Board is required to decide not only on the ability and efficiency of candidates for establishment, but also upon their conduct.

The defendant submits that there cannot be any question of abuse of power or misuse of powers on its part.

The applicant replies:

1) that the primary studies she made are not contested:

2) that if the secondary studies she made included only five years of studies whilst “the humanities” lasted for six, it is clear that the expression “humanities” was used in its ordinary sense, which covers in actual fact the secondary course of studies;

3) that she maintains that she actually followed a course of advanced commercial studies, for which a diploma or certificate of studies was awarded.

She offers to prove:

1) that she actually followed a course of advanced studies from 1944 to 1948 organized by the Institute of the Ladies of Mary at Aalst and that the records of this Institute have been lost:

2) that the dates and details of her employers shown in her application form under the heading of previous employment are perfectly correct. As to the ground of complaint that she substituted a new application form for that which originally appeared in her file, the applicant points out that the defendant has given no proof of this. The defendant replies by setting out in detail the organization of secondary education in Belgium. The defendant alleges that, in respect of secondary education, the applicant followed a course called “commercial” or “technical” which consisted at the time in question of five years of study. This course was divided into two parts: the three first years of study being called “lower course” and the two following “advanced course”. By insisting that she followed “an advanced course of commercial studies for which a diploma or certificate of studies was awarded”, the defendant states that the applicant is trying to create the impression that she pursued studies more advanced than secondary studies, whilst in reality it is a matter of the last two years of secondary studies. The defendant states that, to sum up, the Institute of the Ladies of Mary only gave primary and secondary education during the years 1944 to 1948, and it is thus out of the question that the applicant could have pursued advanced studies at that time in that institution or, a fortiori, have obtained a degree in commercial science of university level. With regard to the posts held by the applicant from 1944 to 1948, the defendant alleges that it appears from strictly confidential information which it has obtained from the pensions office of the applicant, which was the National Pensions Office for employees in Brussels, that from 26 June 1944 to 30 April 1947 the applicant was employed by the Chocolaterie-Confiserie Diamant at Aalst, and from May 1947 to 31 October 1948 by the firm Noedel Leopold et Cie in Brussels. The defendant produces in addition, in respect of the first employment, a certificate from Mr Lampers, previously a partner of the Chocolaterie-Confiserie Diamant (Schedule to the rejoinder). According to the detendant, it follows from this information that the applicant could not have followed the course of advanced education from 1944 to 1948 owing to her employment. In addition, she made false statements in her application form and knowingly made use, in applying to the Commission, of the certificate of 22 June 1963 from the Mother Superior of the Ladies of Mary, which amounts to a falsehood (see above, I, Facts). The defendant submits that these facts are of such gravity that they justify the applicant's not being integrated.

3) The length of notice The applicant states that she was in formed of her dismissal on 25 July 1963 and that her duties actually finished on 31 August 1963. The contractual liability of the Community is governed by the law applicable to the contract in question (Article 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 a year, 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 day 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 at least nine 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 follows 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 the dismissal of a public servant at only a month's notice. The applicant asks the Court to order the defendant to pay her the sum of 160000 FB — corresponding to the value of her remuneration and accompanying benefits during the period of the notice which she should have been given. The defendant replies that, at the time of her dismissal, the applicant was receiving a monthly salary of about 14000 FB. By claiming 160000 FB, which corresponds to eleven months' salary to which must be added the month's notice actually given, the applicant thus claims that she had a right to a year's notice of dismissal. The defendant points out that the letter of engagement provides for the possibility of cancellation “at any time by either side at one month's notice” and that the Court in its judgment of 1 March 1962 (Case 25/60, De Bruyn v European Parliamentary Assembly, Rec. 1962, pp. 61 and 62), decided that one month's notice, appearing in a letter of appointment to which the servant had freely consented, has no unjust or oppressive character. The applicant replies that the case of the applicant is quite different from that decided by the Court in the De Bruyn case. In fact the latter only performed the duties of a secretary/shorthand-typist, and that, moreover, only for a few months, whilst the applicant was employed for five years and carried out duties within the framework of Category A. The defendant replies that the applicant's claim to one year's notice of dismissal has no basis either in the legal provisions or:he usage of the six Member States of the Community.

IV — Procedure

Statements of the parties have been lodged in due form and within the prescribed time-limits and the procedure has followed the normal course. At the hearing on 22 April 1964 and after having the preliminary report of the Judge-Rapporteur and the opinion of the Advocate-General, the First Chamber decided to open the oral procedure without making any preparatory inquiry.

The first Chamber, however, entrusted the Registrar of the Court with the task of requesting the Minister of National Education of Belgium and the National Secretariat of Catholic Education in Brussels to explain whether the diploma issued by the commercial section of the Institute of the Ladies of Mary at Aalst, during the years 1944 to 1948, could at that time have been considered as a diploma equivalent or comparable to a diploma of advanced studies, such as, for example, a degree in commercial science, or to indicate on what level the studies of this commercial section should be placed in comparison with university studies.

By registered letter of 29 April 1964 to the Registrar, the Secretariat-General of Catholic Education replied that the Institute in question had never organized commercial studies at an advanced level, university or non-university, and that the diploma issued by this Institute could not be considered as equivalent to a diploma of advanced studies, such as, for example, a degree in commercial science.

The parties waived their right to plead at the hearing on 3 June 1963.

The applicant referred to her written statements, and in particular to her submissions and arguments concerning the wrongful act or omission imputed to the defendant for having failed to grant the applicant the grade and salary appropriate to her duties.

The defendant referred merely to its written statements.

The Advocate-General delivered his opinion at the hearing on 17 June 1964.

Grounds of judgment

I — Admissibility

The defendant alleges that the time-limits laid down by Article 91 of the Staff Regulations began to run, in respect of the decisions of reclassification of the applicant dated 23 April 1959, 3 July 1959, 14 January 1960 and 5 July 1960, as from the publication of the Regulations (14 June 1962) and that those time-limits had thus expired by the date on which the application was lodged (25 October 1963); consequently the ground of complaint that the defendant did not grant the applicant the grade and salary corresponding to her duties must be dismissed as inadmissible.

This objection of inadmissibility cannot be accepted.

It is true that Article 91, to the extent that it lays down time-limits for bringing appeals, is applicable to the persons mentioned in the Staff Regulations only from the date of the publication of those Regulations.

In the present case, however, it is a matter of decisions taken prior to the publication of the Staff Regulations, with a view to the execution of the contract of employment in force at that time. In this case the rules in the Staff Regulations, and particularly those in Article 91, cannot be applied before the integration of the servant concerned has been properly effected. In fact, recognition in such cases of the immediate applicability of the new Staff Regulations, would be tantamount to prejudicing the integration decision which', apart from the case of officials who have benefited from establishment granted under the system of the old Staff Regulations of officials of the ECSC, is taken only on the conditions laid down by Articles 102 et seq. of the Staff Regulations of the EEC and EAEC.

In consequence, as the applicant was not integrated at the date on which her appeal was lodged, the time-limits in Article 91 had not yet then begun to run in respect of the ground of complaint that the defendant had not granted the applicant before the entry into force of the Staff Regulations the grade and salary corresponding to her duties.

The other two objections of inadmissibility raised by the defendant in respect of the same ground of complaint are also based on the allegation that the appeal is out of time and they should therefore be dismissed for the reasons set out above.

The defendant has alleged, lastly, that the ground of complaint in question was inadmissible because the classification of an official depends upon the discretionary power of the administration. This argument must be considered as touching the substance of the case and not its admissibility.

The defendant has not disputed the admissibility of the applicant's other conclusions and no objection concerning admissibility need in the present case be raised by the Court of its own motion.

The application is admissible.

II — On the substance of the case

A — The ground of complaint relating to the irregularity of the integration procedure

The applicant refers to the delay with which the Establishment Board delivered its unfavourable report that is, on 9 July 1963, whilst the establishment report, dated 17 April 1962, decided in favour of her integration, and that the Establishment Board had previously expressed a favourable opinion on 25 July 1962 on the basis of this establishment report.

The favourable opinion expressed by the Establishment Board on 25 July 1962 was not capable of binding the appointing authority. In fact only an unfavourable opinion of the Establishment Board can be binding on the appointing authority.

The applicant could not therefore take advantage of any right based on the favourable opinion of 25 July 1962, as long as the appointing authority had not arrived at its decision.

In addition the delay alleged in respect of the unfavourable report is the fault of the applicant herself, who was never able to produce in due form the documents requested of her in order to complete her file.

It follows from the foregoing considerations that the ground of complaint is unfounded.

B — The ground of complaint in respect of the reasons for refusal of establishment and for dismissal

The applicant alleges that the facts relied upon by the Establishment Board to support its unfavourable opinion are inaccurate.

It appears from the letter of 28 April 1964 from the National Secretariat of Catholic Education in Brussels that the Institute of the Ladies of Mary at Aalst never organized commercial studies at university level and that the diplomas issued by that Institute cannot be regarded as diplomas of higher education, such as for example that of a graduate in commercial science. No objection has been raised in respect of this letter.

The disputed decision is thus justified in stating that the facts complained of and the failure of the applicant for five years to establish the truth show by themselves conduct incompatible with integration under the Staff Regulations.

It follows that the ground of complaint must be dismissed.

C — The claim for compensation

1. The performance by the applicant of duties higher than those of her grade and salary

The applicant who was engaged on 1 July 1958 to carry out ‘administrative duties’ was classified in Category C.

She was soon given ‘drafting’ duties, which justified her classification in Category B.

She was actually classified in the latter Category as from 1 January 1960.

The applicant claims that her duties were really ‘planning’ duties and related to Category A.

She points out in support of this claim that in her establishment report dated 17 April 1962 there appears the note made by the Director-General that ‘these are Category A duties’. This simple unexplained note is not decisive.

It is probable that the person concerned, in carrying out the tasks entrusted to her, showed evidence of ability superior to that which is generally expected of servants in Category B, which might have allowed certain prospects of later promotion to employment in the higher grade. It clearly follows, moreover, from the details furnished by the defendant as to the real nature of the duties of the applicant that the latter actually carried out ‘drafting’ duties related to Category B, in which Category she was actually placed after a year and a half of service.

The applicant has not been able to prove that she in fact carried out duties related by their nature to Category A. Furthermore, she did not possess any of the qualifications normally required for promotion to that grade. It follows from the foregoing that the applicant has no right to compensation under this heading.

2. The damage suffered from the decision against integration and of dismissal

Any right of the applicant to compensation for the damage which the decision against integration and of dismissal may have caused her must in this case be denied. In fact the disputed decision does not show itself to be vitiated by any of the defects alleged by the applicant.

Consequently, taking account of the nature and the object of that decision, it cannot amount to a wrongful act or omission and thus cause unlawful damage unless it contains superfluous criticism in respect of the applicant, which is not alleged in the present case. Further, the reasons for the disputed decision contain no superfluous criticism and are limited to the indispensable minimum.

3. Inadequacy of notice

It is necessary to state, first of all, that the notice of one month is in accordance with that provided for in the applicant's contract of employment.

In application of Article 102 (2) of the Staff Regulations, the applicant has in addition received compensation corresponding to two months' basic salary, as provided for in Article 34 of the Regulations. In the present case this grant, which is directly provided for by the Regulations, appears sufficient for it to be decided that the defendant has discharged its obligations concerning notice.

It follows from the foregoing considerations that the conclusions of the applicant 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, in proceedings by servants of the Communities, institutions shall bear their own costs.

The applicant has been unsuccessful in all her submissions.

For the reasons set out above each party must bear its own costs.

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 and 95; Having regard to the Staff Regulations of officials of the European Atomic Energy Community, especially Articles 34, 91 and 102; THE COURT (First Chamber) hereby:

1 Dismisses Application No 93/63 as unfounded;

2 Orders the parties to pay their own costs.