JUDGMENT OF 8. 7. 1965 — CASE 110/63 WILLAME v COMMISSION

In Case 110/63

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

1) Mr Alfred Willame entered the employment of the defendant on 18 August 1958. He was assigned to the Directorate of Health and Safety where he remained, and was responsible for the Social Problems and Documentation Division.

2) In the integration report Mr Recht, the applicant's immediate superior, made a highly critical assessment of his ability and output and stated that the applicant was not suited to the performance of his duties. At the foot of the report, Mr Medi, Vice-President of the defendant institution, added the following observation:

‘Above opinion not agreed, particularly as regards the very severe strictures on certain points. After integration it will be advisable to reorganize the duties of the post’.

3) On 19 February 1963 the Establishment Board issued a report according to which the applicant ‘is not fitted to perform the duties to which he is assigned’. The reasons given for this report read as follows: Moreover, the Establishment Board recommended the defendant to consider the possibility of establishing the applicant in the grade immediately below bis existing grade.

‘— although by their nature the duties of staff (representative) exercised by the servant concerned fall outside the jurisdiction of the Establishment Board, which must confine its assessment to the abilities shown by the servant in performing his duties on health and safety, allowances must be made in favour of the servant for the detrimental effect necessarily implied by this plurality of office as regards his output in this post;

— although an examination of the work of the servant to which he expressly referred during the hearing reveals some capacity for dealing with social problems, it appears from certain failings as regards his ability, his sense of initiative and responsibility and his capacity to carry out in depth the work undertaken that the qualifications of this servant do not meet the requirements of the duties of head of division which he undertakes in the Directorate of Health and Safety’.

4) The parties subsequently considered the possibility of offering the applicant a contract as a temporary servant; it was not possible to reach an agreement.

5) By letter of 27 September 1963, received by the applicant on 2 October, Mr Funck, head of the Directorate-General of Administration and Personnel, informed the applicant that at its meeting on 5 September 1963 the Commission had decided to terminate his contract.

On 24 December 1963, the applicant lodged the present appeal to the Court.

II — Conclusions of the parties

In his application, the applicant claims that the Court should:

‘1. Annul the contested decisions refusing to integrate the applicant and terminating his contract contained in the letter of the defendant of 2 October 1963 addressed to the applicant, as well as all measures taken in support of these decisions, and in particular the unfavourable report of the Establishment Board and, by reversing them: state that the applicant shall be integrated under the Staff Regulations of the EAEC in the grade held at the date of integration, that is, in Grade A3, Step 4, with retroactive effect and all the consequences involved both in fact and in law; Order the defendant to pay the applicant the arrears of remuneration payable following his integration; Order the defendant to pay bits 150000 to the applicant as compensation for the non-material damage he has suffered, subject to the express right to amend this figure during the course of the proceedings; As a subsidiary matter: state that following the annulment referred to above the applicant shall be integrated in due form as from the date of the entry into force of the Staff Regulations, that is, 1 January 1962, thus maintaining the seniority already acquired; Order the defendant to pay remuneration to the applicant appropriate to his duties, that is, Bfrs 45502 net per month from at least the date when he ceased to perform his duties until the defendant takes a valid decision concerning his position; Order the defendant to pay Bfrs 150000 to the applicant as compensation for the non-material damage he has suffered, subject to the express right to amend this figure during the course of the proceedings; As a further subsidiary matter : If, because it is impossible or for any other reason, the contested decisions should not be annulled, order the defendant to make good the damage suffered by the applicant by reason of the illegal or wrongful acts or omissions occurring during the integration procedure and award the applicant such damages as the Court shall consider to be in keeping with the applicants' official status, here assessed at Bfrs 1500000 for the material damage and Bfrs 150000 for the non-material damage, subject to the express right to amend these figures during the course of the proceedings ; 2. Order the defendant to pay compensatory interest to the applicant at the rate of 6 % per annum on all the sums it shall be ordered to pay from the date on which it should have paid or shall be required to pay them ; 3. Order the defendant to pay the costs.’

In its statement of defence, the defendant contends that the Court should:

‘Declare the application to be unfounded; Order the applicant to pay the costs.’

In their replies and rejoinders, the parties adhere to their earlier conclusions.

III — Submissions and arguments of the parties

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

1. Irregularity of the integration procedure

Under this heading, the applicant makes the following complaints:

a) Contrary to Article 110 of the EEC-EAEC Staff Regulations no general implementing provision was adopted as regards the integration procedure provided for in Article 102 of the Regulations after consultation with the Staff Committee and the Staff Regulations Committee. By lasting numerous questions of procedure to which Article 102 gives no answer, the applicant attempts to demonstrate its ‘deficient’ nature.

b) The consequences of an unfavourable report by the Establishment Board are comparable to those which follow, first, the most serious penalty which may be ordered by the Disciplinary Board and, secondly, dismissal for incompetence. However, the integration procedure is not subject to the safeguards provided by the Staff Regulations in these two cases.

c) ‘The proceedings’ of the Establishment Board ‘were secret and it reached its decision in the absence of any staff representation’. There is no reason for the proceedings of this Board to be more secret man those of the Disciplinary Board.

d) The Establishment Board did not allow the applicant time to produce documents establishing the quality of his work: The applicant makes the following observations on these events:

on 5 February, he was advised that the Board would hear him on 8 February;

on 6 February he examined his personal file which, at that time, only contained information as to his civil status;

on 7 February he was invited to examine 150 pages of documents produced that day by Mr Recht (of. also (e) below); he then stated:

‘In order not to delay the integration procedure I accept this further item with one formal reservation.

This series of documents which refers to one part of my professional career is, in fact, incomplete. It cannot therefore be properly used until it has been completed. Until then I can neither initial or accept without verification any of the documents submitted to me;’

on 8 February the applicant was heard by the Board; the minutes show that he was then told by the Chairman of the Board that he would be able to submit any documents which he considered helped his case;

however, apart from several documents presented on 12 February, the file, which he had given notice that he would submit, was only received by the Board on 8 May;

the Board made its report on 19 February 1963.

The Chairman of the Establishment Board fixed no time-limit for the presentation of the additional documents.

At the meeting of 8 February, the applicant referred to certain documents which he did not possess or had not had time to assemble; the Board never examined these documents.

when it gave its report on 19 February, the Board could not have been unaware that the applicant intended to add numerous documents to his file.

The Board must nave expected submission of those documents to take time: first, the applicant was at that time very busy defending other servants before the same Board; secondly, it was not possible to gather together in a few days documents spread over several years.

Finally, the Board must have seen that the documents submitted to it by the applicant on 12 February represented only a few of those referred to at his hearing.

Even supposing this last statement to be factually inaccurate, the Board should at the very least have reopened the hearings, once the other documents were submitted to it.

e) The applicant had only one day before his appearance before the Establishment Board in which to examine the thirty-six documents produced by Mr Recht to demonstrate his incompetence. At that time the applicant was unable to see the effect which these documents would have on the proceedings. Moreover, the minutes of the meeting of 8 February show that only then did the applicant become aware of the complaints of Mr Recht. He had therefore to improvise his reply and does not know whether he has been informed of all the oral criticisms made by Mr Recht in his absence.

f) At no time was the applicant assured that the statements made against him were properly verified. The content of these statements was only communicated to him orally and the minutes do not mention whether the Establishment Board checked whether the criticisms made by Mr Recht were justified by the file which he had submitted. In fact, this file and its submission are not mentioned in the minutes and it does not appear that they were discussed. In the light of the contrary opinion held by Vice-President Medi, the Board should have shown caution in accepting the judgment made by Mr Recht.

g) No precise criteria having been established by the competent authorities, there was no uniformity in the standards adopted in the integration reports and this led to widely differing views being taken of similar situations.

h) Complaints made against the applicant were not established in proceedings in which he was able to argue his case.

i) Since Vice-President Medi firmly dismissed the accusations of Mr Recht, the Establishment Board should have invited him to appear before it. It is significant that Mr Medi considered the integration of the applicant to be a foregone conclusion.

k) The report or the Establishment Board was not notified to the applicant in due form; he was informed of it only on receiving the dismissal decision, with the result that he was unable to raise its illegality before the defendant had made up its mind. In addition, the notification was incomplete, since it was only during the course of the present action that the applicant learned of the Board's decision not to dismiss him but to integrate him in the grade immediately below.

l) This omission also constitutes a failure to give proper reasons for the decision; in fact, ‘in order to refuse the integration of the applicant the defendant made use of a report which granted it, although at a grade immediately below’. By mutilating the text of its communication, the defendant rendered it impossible for the applicant to defend himself properly.

The defendant replies:

As to (a) Article 102 of the Staff Regulations is sufficiently explicit for it to be applied without prior formalities.

As to (b) The rights of ‘officials’ are not automatically acquired by staff holding contracts in the period before the entry into force of the Staff Regulations.

As to (c) The very nature of the proceedings required confidentiality; this would have been infringed by the presence of a representative of the staff. Moreover, the applicant made use of his right to the assistance of another member of the staff.

As to (d) During his hearing, the applicant submitted certain documents to the Establishment Board; during the meeting these documents were circulated among the members of the Board; at the end of the meeting they were returned to the applicant with the result that it is no longer possible to determine precisely what documents were involved. On 12 February the applicant submitted three documents ‘in order to complete his file’; the term ‘to complete’ must have given the Board the impression that from that moment the applicant considered his file to be complete. Not until 8 May 1963—more than one month after he had been informed of the decision refusing him integration—did the applicant submit a new file of 85 documents, addressed moreover to the Director-General of Administration.

As to (e) The documents in question had been drawn up by the applicant himself, with the result that he required only a short time in which to examine them.

As to (f) It is clear from the minutes of the Establishment Board that the applicant was able to make observations on each of the five complaints made by Mr Recht.

As to (g) It is true that the comments made by certain superiors were more generous than those made by others but the Establishment Board ‘equated’ the assessments of the several reporters.

As to (h) It is clear from the case-law of the Court that the Establishment Board was not bound to allow the applicant to argue his case.

As to (i) Mr Medi was not the superior of the applicant or of Mr Recht. Moreover, his remarks were not addressed to the Establishment Board but to the Euratom Commission.

As to (k) There is no rule of law compelling the defendant to inform the applicant of the report of the Establishment Board.

as to (k) and (l) The Establishment Board had no power to decide in favour of establishment in a lower grade; thus the passage referred to by the applicant only amounts to a recommendation.

2. Inaccuracy of the reason given

The applicant considers that the reason for the report given by the Establishment Board ‘is inaccurate, insufficient and inappropriate’.

a) The applicant s file shows that, before the integration procedure began, his work was never unfavourably reported on by Mr Recht. As an example the applicant alleges that in November 1961 he had asked Mr Recht whether a departmental reorganization in which he (the applicant) was involved represented ‘a measure penalizing professional mis-conduct’ or any other form of criticism. Mr Recht made no reply although he would not have failed to criticize the applicant had he been in a position to do so. In fact, ‘the animosity shown by Dr Recht to the applicant was almost common knowledge’. This animosity dates from 1961 when the applicant, in his capacity as staff representative, opposed Mr Recht's insistance that the medical services to be created in the various centres of the Community be placed under his direction. This toeing so, the Establishment Board should have ‘paid particular attention’ to the new facts suddenly raised by Mr Recht instead of merely confirming his subjective assessment, ‘an assessment which was not supported by an specific fact’ and which is even more unfair in that the applicant has been ‘a valuable official’.

b) From June 1959 the applicant played an important role in the representation of the staff; this work, time-consuming and often difficult, took up ‘most of his time’. The Establishment Board took no account of the importance and quality of this work, on the pretext that it fell outside its area of assessment. It thus infringed Article 109 of the Staff Regulations and Article 1 of Annex II thereto and ‘penalized the applicant’ for having carried out the duties in question. At the least it should have inquired into ‘the length of time which the applicant was able to devote to the work of the Directorate of Health and Safety in order to examine in its proper perspective the applicant's actual output in this post’. The defendant maintains:

As to (a) From the day the applicant took up his duties ‘his superior was led on several occasions to remark on the length of time he required to carry out his work and on the fact that the tasks entrusted to him were not properly completed’. The assessment made by Mr Recht in the integration report was thus fully justified; moreover, it only dealt with the quality and not with the quantity of the work carried out, the latter having decreased in proportion to the increase in the applicant's work as staff representative. The fact that Mr Recht did not want to ‘formalize’ all his criticisms, merely demonstrates his indulgence. Had he been inspired by animosity, he would ‘quite naturally have added to the unfavourable comments in the personal file’. It is true that at one time there was a difference of opinion between the doctors of Euratom over the organization of the medical services. But the applicant was wrong to bring into it the question of staff representation, which was never concerned with the problem. It is also true that the comments in the reports made by Mr Recht were always fairly critical. But the Establishment Board ‘equated’ the assessments of the several reporters. It is clear from the minutes and from the report of the Board that it arrived at its opinion independently. The criticism made by the applicant does not refer to ‘facts capable of objective verification’, nor to ‘assessments which may be objectively reviewed’ but to ‘complex value-judgments’, the merits for which cannot be reviewed by the Court.

As to (b) The report of the Establishment Board took into account the adverse effect which the applicant's plurality of offices necessarily had on his output in his post as provided for in the budget. Thus it only took into account the inadequacy of the work actually performed in the post to which he was assigned. Only his capacity to perform the duties involved in this post fell within the purview of the Establishment Board, all the more so as ‘the duties of a staff representative, whose position simply depends on an election, are very uncertain’.

3. Wrongful act or omission

The applicant considers that the complaints set out above under 1 and 2 show that the defendant was responsible for serious wrongful acts or omissions. As evidence of non-material damage, he cites the refusal of the registration office in June 1963 to enter his name on the list drawn up with a view to the election of the members of a Staff Committee, even though the greater part of his activities had consisted of ensuring the representation of the staff.

The talks which took place between the parties following the termination of the actual integration procedure are also evidence of the wrongful conduct of the defendant. The applicant gives details of these talks, aimed at reaching an amicable settlement, and concludes that the defendant

made suggestions to the applicant which were withdrawn as soon as the applicant had accepted them;

‘held out to Mr Willame fallacious hopes of an amicable agreement’, having already decided to terminate his employment.

The defendant replies that as the decision to dismiss the applicant was taken with due regard to official requirements there could be no question of any wrongful act or omission.

The defendant too gives a chronological account of the events occurring after the Establishment Board made its report. In particular, it observes that the initiatives in question were taken by the applicant himself and mat he had made claims which the defendant had been unable to accept. ‘The Commission is in fact being criticized for failing in its attempt to find a temporary solution to the problem presented by the applicant’.

IV — Procedure

The procedure followed the normal course.

The parties presented this oral observations at the hearing on 17 February 1965.

The Advocate-General presented his opinion at the hearing on 6 May 1965.

Grounds off judgment

I — Admissibility

The defendant has raised no objection to the admissibility of the action and no grounds exist for the Court to raise the matter of its own motion. The application is therefore admissible.

II — The substance of the case

1. The submission that the decision of dismissal should be annulled

The applicant claims that the Court should annul the decision of 5 September 1963 by which the defendant, on the basis of the unfavourable opinion of the Establishment Board, terminated his contract of employment.

a) The applicant maintains that the defendant infringed Article 110 of the Staff Regulations of the EEC and EAEC by failing to draw up general provisions for giving effect to Article 102 of those Regulations concerning the integration procedure, after consulting the Staff Committee and the Staff Regulations Committee. According to the applicant, the adoption of implementing provisions was all the more necessary as Article 102 is silent on a whole series of important questions, such as the number of members of the Establishment Board, the conditions in which it might validly hold discussions, the time allowed to a servant to prepare his defence, etc. The phrase ‘the general provisions for giving effect’ appearing in Article 110 mentioned above refers in the first instance to the implementing measures expressly provided for by certain special provisions of the Staff Regulations in which Article 102 is not included. In the absence of any express provision, the obligation to adopt implementing measures subject to the formal requirements of the said Article 110 can be recognized only in exceptional circumstances, that is, when the provisions of the Staff Regulations are so unclear and imprecise that any application of them must be arbitrary. This does not apply in the present case. Although it is true that the defects pointed out by the applicant have left the institutions with a certain freedom of action this freedom is limited by the obligation to ensure that the person concerned has a fair chance to defend himself. It follows from the foregoing that the defendant was not obliged to consult the bodies in question about the rules it intended to follow in connexion with integration. The present complaint is therefore unfounded.

b) The applicant maintains that as the consequences of an unfavourable opinion by the Establishment Board may be compared with those of the most serious disciplinary measures and of dismissal for incompetence the integration procedure should have been accompanied by safeguards similar to those laid down by the Staff Regulations in these two cases. In particular, he points out that the Establishment Board ‘reached its decision in the absence of any staff representation’. The provisions referred to by way of comparison concern officials who are already integrated. On the other hand, although from a purely formal point of view the rules concerning the integration procedure are governed by the Staff Regulations, in reality they form part of the system governing contracts existing before the entry into force of those Regulations which, being liable to termination by either side on one month's notice, allowed the institution to exercise rather wide discretionary powers. These considerations are incompatible with the analogy put forward by the applicant. As regards the complaint of lack of participation by representatives of the Staff it should be pointed out, first, that the composition of the Etablishment Board itself offered sufficient guarantees and, secondly, that the applicant had the right to the assistance before the Establishment Board of a member of the staff chosen by him. The present complaint must therefore be dismissed.

c) The applicant complains that the Establishment Board did not allow him sufficient time to provide it with all the documents, amounting to 450 pages, with which he intended to demonstrate his ability to perform bis duties. According to the minutes of the meeting of the Establishment Board on 8 February 1963 the applicant was informed by the chairman at the beginning of his hearing that he would have the opportunity to submit to the Board ‘any documents which he considered would help his case’. By a letter dated 12 February he submitted three documents to the chairman ‘in order to complete my file’. The Establishment Board issued its unfavourable opinion on 19 February. It was not until 8 May that the applicant submitted a further 85 documents, running to 450 pages, addressed moreover to the Director-General of Administration and Personnel with a request to ‘put them on my integration file’. Whatever the meaning which the Establishment Board must have attributed to the expression ‘to complete’ in the letter of 12 February, the applicant can hardly criticize the Establishment Board for giving a decision without further delay. Indeed, he must have been aware that the Establishment Board was at that time engaged in considering the cases of numerous servants and that it was in the interests of both the administration and the staff that this work be completed as soon as possible. This being so, the applicant should have shown greater initiative and diligence, either by submitting the documents in question more quickly or at least by giving the Establishment Board a clear idea of the size of the file which he still intended to submit and the time required to compile it. For the same reasons the Court must dismiss the complaint that after receiving the document submitted on 8 May the Establishment Board should have reopened the hearings. It follows from all the above factors that the present complaint is unfounded.

d) The applicant maintains that the Establishment Board did not give him sufficient time to examine the 36 documents produced by Mr Recht, his superior, in order to demonstrate the inability of the applicant to perform his duties. The applicant was able to study the documents in question only on 7 February although his hearing took place on 8 February. The defendant alleges, however, that the shortness of this period could not have been prejudicial to the applicant's defence, since it was he who was the author of these documents. This argument is irrelevant, since at the time when he consulted the documents the applicant could not have known the effect which they were likely to have on the integration procedure. It appears, however, from the minutes of the meeting of 8 February that the applicant was informed in detail of the complaints made by Mr Recht and was able to give his comments on them. This being so, it has not been shown that the short period which he was allowed to study these documents was damaging to his interests. This complaint is therefore unfounded.

e) The applicant alleges that, as the substance of Mr Recht's statements was only communicated to him orally, he could never be sure that the Establishment Board had checked whether the criticisms were justified by the file which he had submitted. This complaint would lead to an admission that the Establishment Board was bound to inform servants in writing of any unfavourable assessments made by their superiors. That view cannot be accepted, since oral intimation is sufficient to enable servants to defend themselves provided that it is complete. In the present case there is no reason to suppose that the Establishment Board concealed from the applicant important parts of Mr Recht's statement. The present complaint is therefore unfounded.

f) The applicant points out that in the absence of precise criteria drawn up by the defendant the comments made on the various servants of the defendant for the purposes of the integration procedure were widely different, according to the degree of severity shown by each superior. The most precise criteria of assessment could not prevent some superiors from being more severe than others in judging their subordinates. It was for the Establishment Board to quote the assessments of the various reporting officials. In the present case, a comparison between the assessment made by Mr Recht and the more finely shaded and understanding assessment of the Establishment Board shows the latter to have formed an independent opinion. The present complaint is therefore unfounded.

g) The applicant criticizes the Establishment Board for having failed to allow him a confrontation with Mr Recht. In integration cases the Establishment Board is obliged to arrange for a confrontation between a subordinate and his superior only if the absence of such a meeting would make it impossible for the Board to clarify essential facts in dispute between the parties concerned to an extent sufficient in law. There is no reason to suppose that this was the position in the present case. The present complaint is therefore unfounded.

h) The applicant maintains that as he was not informed of the opinion of the Establishment Board before being informed of the decision to dismiss him he was thereby deprived of the opportunity of invoking the illegality of that opinion at a time when the defendant had not yet made up its mind. There is no provision requiring the immediate communication to the person concerned of the opinion which was addressed solely to the institution. The interests of the candidate are sufficiently protected in law by his right to lodge a complaint and, if necessary, to appeal to the Court against the decision refusing him integration and dismissing him. Moreover, the complaint is factually inaccurate, since the defendant informed the applicant orally of the opinion in question, which effectively enabled him to lodge a complaint against the opinion. The present complaint is therefore unfounded.

i) The applicant complains that, by concealing from him the fact that the Establishment Board had recommended his integration in the grade immediately below, the defendant rendered it impossible for him to defend himself properly. He argues that this omission constitutes in addition a failure to give sufficient reasons for the decision, because ‘in order to refuse the integration of the applicant the defendant relied on an opinion which granted it’. According to Article 102 of the Staff Regulations the Establishment Board was only required to give its opinion on the suitability of the candidate for the duties which he in fact carried out. In the present case it issued an unfavourable assessment on that point, which obliged the defendant to terminate the applicant's contract. Although it also put forward the abovementioned proposal, this constituted no more than a suggestion without any binding legal consequences. In these circumstances, the defendant was neither obliged to communicate the suggestion to the person concerned nor to inform him why it had not been accepted. The present complaint is therefore unfounded.

k) The applicant states that the unfavourable assessment made by Mr Recht and endorsed by the Establishment Board was in fact influenced by the personal animosity which Mr Recht had felt for him since the occurrence of certain specific events. In support of this complaint, he points out that before the assessment in question he had never been criticized by Mr Recht. It emerges from the minutes of the Establishment Board that Mr Recht based his unfavourable judgment on a series of definite facts and that the applicant subsequently stated his case, in an equally definite manner, concerning the justification for these criticisms. Moreover, the detailed nature of the criticisms made by Mr Recht may be seen from the fact that he supported his statements by filing a considerable number of documents drawn up by the applicant. Finally, as stated above, the Estabhshment Board formed its own opinion, which was more finely shaded than that of Mr Recht. This being so, it must be held that the contested decision is based on the independent assessment made by the Establishment Board of the factual arguments put forward on both sides and is not influenced by the real or alleged animosity felt by Mr Recht. Moreover, the fact that a superior may not formally have criticized his subordinate does not necessarily mean that the subordinate's performance was wholly satisfactory. It follows from all these factors that the present complaint is unfounded.

l) In his reply, the applicant maintains that the Establishment Board acted improperly in failing to hear Mr Medi, Vice-President of the Commission of the EAEC. The defendant has not claimed that this submission was made out of time and it must be observed in addition that the applicant did not gain access to the minutes of the Establishment Board until after proceedings had commenced. The applicant's establishment report, drawn up in very critical terms by Mr Recht, contains at the foot of the page, a hand-written observation by Mr Medi reading as follows : ‘Above opinion not agreed, particularly as regards the very severe strictures on certain points. After integration it will be advisable to reorganize the duties of the post’. The Establishment Board proceeded to hear Mr Recht but did not consider it necessary to hear Mr Medi. In order not to infringe the applicant's rights to defend himself it was the duty of the Establishment Board to investigate every genuine source of information capable of supporting the case of the servant concerned. In the present case, the hearing of the Vice-President of the defendant institution constituted such a source of information. From the remarks which he wrote in the margin of the establishment report it may be supposed that he was in a position to form a firsthand opinion of the abilities of the applicant and that he even regarded his establishment as virtually certain. In reply to this complaint the defendant maintains, first, that Mr Medi was not the superior of the applicant nor of Mr Recht and, secondly, that the observation in dispute was addressed to the members of the Commission of the EAEC and not to the members of the Establishment Board. Neither of these arguments is convincing. Mr Medi must have been aware that according to Article 102 of the Staff Regulations the establishment report was to be drawn up solely by the candidate's superiors and was intended, first and foremost, for the use of the Establishment Board, an unfavourable opinion of which was binding on the institution. Consequently, to accept the defendant's arguments would amount to saying that Mr Medi not only exceeded his powers, but also acted in ignorance of elementary provisions of the Staff Regulations. Such behaviour is both improbable and incompatible with the dignity of the Vice-President of a Community institution. Moreover, whatever reasons may have led Mr Medi to make the observation in question, the existence of such an observation, written by a person of such high rank, was itself enough to oblige the Establishment Board not to disregard it. It follows from all these considerations that the present complaint is well founded.

m) The Establishment Board is criticized for failing to take sufficient account of the extent and quality of the applicant's activities as staff representative. Since the complaint considered under (1) above is well founded, it is unnecessary to examine the present complaint. The Court merely finds that the Establishment Board was bound to examine the extent to which his activity could, without any fault on his part, have had an unfavourable influence not only on the quantity but also on the quality of the work involved in his post as provided for in the budget. In fact, the applicant played a very important and permanent role on the staff side; moreover, these activities took place in an institution with a large staff at a time when the entry into force of the Staff Regulations required increased vigilance and activity on the part of the staff representatives. In such a situation it was the duty of the institution to assist the staff representatives as much as possible in order to prevent their having to choose, through no fault of their own, between neglecting to defend the interests of the staff or endangering their own integration by shortcomings in their posts as provided for in the budget.

n) It follows from the consideration set out above (under (1)) that the integration procedure is vitiated by a serious defect. However, short of trespassing upon areas reserved for the judgment of the Establishment Board, the Court cannot decide whether this Board would have been entitled, even in the absence of the irregularities mentioned above, to issue an unfavourable opinion concerning the applicant. The Court must confine itself to finding the existence of a presumption of fact that in such circumstances the Establishment Board might have reached a different solution. The contested decision must therefore be annulled. The applicant has also claimed that in the event of annulment the Court should integrate him under the Staff Regulations or alternatively should declare that he ‘shall be integrated in accordance with the appropriate procedure’. The Establishment Board is, however, required to make a comprehensive value-judgment for which the Court cannot substitute its own. The Court can, therefore, only refer the case back to the defendant and the Establishment Board for a reconsideration of the candidature of the applicant in accordance with the proper procedure.

2. The arrears of remuneration

a) The applicant claims, in the first place, that the defendant should be ordered to pay him ‘the arrears of remuneration payable following his integration’. This claim presupposes a finding by the Court that the defendant was obliged to integrate the applicant under the Staff Regulations. Since the Court has already held that it has no jurisdiction so to find, this claim must be dismissed.

b) Alternatively, the applicant claims payment of ‘remuneration appropriate to his duties that is, Bfrs 45502 net per month, from at the least the date on which he ceased to perform his duties until the defendant has taken a valid decision concerning him’. As a result of the annulment of the contested decision the applicant is deemed to be still in the service of the defendant and subject to the conditions governing his contract of employment. His claim is therefore well founded. The defendant must therefore be ordered to pay the applicant the emoluments due under his contract, held in the period before the entry into force of the Staff Regulations, for the period between the termination of his employment by virtue of the contested decision and the notification to him of the new decision which the defendant is required to take as to whether he should or should not be integrated. However, in order that there be no unjustified enrichment the following must, if appropriate, be deducted from the above sum :

the net remuneration received by the applicant as a result of employment outside the Communities between the date of termination of his appointment and the date of the new decision;

the emoluments received by the applicant from the defendant by reason of his dismissal.

3. The non-material damage

The applicant claims that the defendant should be ordered to pay him Bfrs 150000‘as compensation for the non-material damage he has suffered’.

Under this heading he puts forward both irregularities vitiating the contested decision and wrongful acts or omissions on the part of the defendant in the discussions which took place after the closure of the integration procedure.

a) As regards the first part of this submission the claim is in principle well founded, since the irregularity committed by the defendant constituted a wrongful act or omission as a result of which the applicant suffered non-material damage. In the light of the facts of the case it is fair to fix the amount of the non-material damage at Bfrs 20000.

b) As regards the second part of this submission, the applicant refers to alleged equivocations by the defendant during the discussions which took place between the parties in order to reach an amicable settlement on the conclusion of a new contract of employment.

Even assuming the allegations of the applicant to be factually accurate they do not reveal any new wrongful act or omission on the part of the defendant.

As the unfavourable opinion of the Establishment Board was entitled to a presumption of legality, the defendant was justified in considering itself not bound to extend the applicant's appointment, with the result that the discussions in question were purely optional.

The second part of this submission is therefore unfounded.

4. Interest

The applicant claims that the Court should order the defendant to pay him ‘compensatory interest at the rate of 6 % per annum on all such sums as it shall be ordered to pay, from the date on which it should have paid or shall be required to pay them’.

This claim cannot be accepted as regards the sum payable in respect of non-material damage, since that sum was calculated at a flat rate.

On the other hand, the claim is in principle well founded as regards the arrears of remuneration, except that it should be reduced to a rate of 41/2 % per annum. It should also be pointed out that :

as regards the basis of calculation, it must be limited to the remuneration relating to the period between the date on which, by virtue of the decision in dispute, the appointment of the applicant came to an end and the date on which the present judgment is given, since remuneration relating to the subsequent period does not constitute ‘arrears’;

as regards the period over which interest is due, this must be calculated separately for each month's remuneration and must begin to run on the date on which the emoluments for the month in question should have been paid and shall expire on the date on which the applicant shall actually receive such emoluments.

III — Costs

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

Since the applicant has succeeded in the main points of his application, the defendant should be ordered to pay the 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 Staff Regulations of Officials of the European Economic Community and the European Atomic Energy Community, especially Articles 102 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69; THE COURT (First Chamber) hereby :

1 Annuls the decision of 5 September 1963 by which the defendant terminated the contract of the applicant;

2 Refers the case back to the defendant in order that the integration procedure be reopened as regards the applicant;

3 (a) Orders the defendant to pay to the applicant the emoluments due under his contract, concluded before the entry into force of the Staff Regulations, for the period between the termination of his employment by reason of the abovementioned decision and the notification to him of a new decision on the question of his integration; (b) Where appropriate the sum referred to under (a) shall be reduced by the amount of: (α) the net remuneration received by the applicant from employment outside the Community between the dates referred to above; (β) the emoluments received by the applicant from the defendant by reason of his dismissal; (c) (α) Orders the defendant to pay to the applicant annual interest at a rate of 4½ % on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given; (β) The period over which such interest is due begins, as regard each month's remuneration, on the date on which the emoluments for the month in question should have been paid and expires on the date on which the applicant shall actually receive such emoluments;

(a) Orders the defendant to pay to the applicant the emoluments due under his contract, concluded before the entry into force of the Staff Regulations, for the period between the termination of his employment by reason of the abovementioned decision and the notification to him of a new decision on the question of his integration;

(b) Where appropriate the sum referred to under (a) shall be reduced by the amount of: (α) the net remuneration received by the applicant from employment outside the Community between the dates referred to above; (β) the emoluments received by the applicant from the defendant by reason of his dismissal;

(α) the net remuneration received by the applicant from employment outside the Community between the dates referred to above;

(β) the emoluments received by the applicant from the defendant by reason of his dismissal;

(c) (α) Orders the defendant to pay to the applicant annual interest at a rate of 4½ % on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given; (β) The period over which such interest is due begins, as regard each month's remuneration, on the date on which the emoluments for the month in question should have been paid and expires on the date on which the applicant shall actually receive such emoluments;

(α) Orders the defendant to pay to the applicant annual interest at a rate of 4½ % on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given;

(β) The period over which such interest is due begins, as regard each month's remuneration, on the date on which the emoluments for the month in question should have been paid and expires on the date on which the applicant shall actually receive such emoluments;

4 Orders the defendant to pay to the applicant Bfrs 20000 as compensation for non-material damage;

5 Orders the defendant to pay the costs of the action.