JUDGMENT OF 7. 4. 1965 — CASE 11/64 WEIGHARDT v COMMISSION

In Case 11/64

THE COURT (FIRST CHAMBER) composed of: R. Lecourt, President of Chamber, L. Delvaux (Rapporteur) and A. Trabucchi, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

The applicant, born on 11 June 1910, is a German national and an economics graduate of Berlin University.

He entered the service of the defendant on 10 November 1959 on the basis of a letter of employment known as a ‘Brussels contract’, at. a monthly salary of 25400 francs, corresponding to Grade A 5 on the ECSC salary scale, and was attached to the Directorate-General of Industry and Economics. On completion of his probationary period (1 May 1960), the applicant's basic monthly salary was raised to 25500 francs, that of ECSC Grade A 4, Step 1. Finally on 1 November 1961 his salary was fixed at 26750 francs a month, corresponding to ECSC Grade A 4, Step 2.

The integration report (Schedule I to the statement of defence), dated 11 April 1962, advised against integrating the applicant in the post and grade which he then held.

The Establishment Board examined the applicant's case between 8 October 1962 and 19 February 1963, and on the latter date gave as its opinion that the applicant was not suited for the duties of his post.

However, it recommended unanimously that the applicant be integrated in the grade immediately below that which he then held, under Article 102 (2) of the EAEC Staff Regulations (Schedule 5 to the statement of defence).

Accordingly, the EAEC Commission decided on 20 March 1963 to terminate the applicant's contract but to integrate him in a lower grade if he so wished.

The applicant, however, was not notified of the Commission's decision. The Staff-Directorate informed him of its terms, including the offer of integration at a lower grade. In accordance with the usual procedure it also suggested that he might resign voluntarily, in which case the decision to terminate would not be notified to him.

After consideration the applicant elected to remain in the Commission's employment. He was therefore integrated by a decision of the Commission dated 8 January 1964 (Schedule 6 to the statement of defence) in Grade A 5, Step 5, with effect from 1 January 1962.

On 13 January 1964, the applicant acknowledged in writing at the foot of the said decision that it had been communicated to him and that he waived the benefit of his contract of employment, as prescribed by Article 104 of the EAEC Staff Regulations (Schedule 6 to the statement of defence).

His application was lodged at the Court Registry on 6 April 1964.

II — Conclusions of the parties

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

‘1) Declare null and void his appointment of 8 January 1964, but only in so far as it integrates him in Grade A 5, Step 5;

2) Declare null and void all the steps followed in the integration procedure concerning the applicant, including the opinion of the Establishment Board, these forming the basis of the decision of 8 January 1964 taken by the Commission;

3) Declare that the Commission must re-apply the integration procedure in the applicant's case after complying with the formal conditions laid down in the last sentence of Article 5 and in Article 110 of the Regulations;

4) Declare that the Commission must bear the costs of the proceedings in full;

5) Place on record the fact that the applicant:

a) Reserves his right to raise in the further course of the proceedings any new submissions of fact or of law as shall seem to him appropriate after the opposite party has presented its defence and after production by it of any documents;

b) Offers to prove by any means open to him in law, including evidence by witnesses, the facts alleged by him but not yet proved in writing, should those facts be contested by the opposite party’.

In his reply the applicant claims that the Court should:

“Place on record the fact that the applicant repeats the claims set out in the application, except that made under head 3, which he withdraws, and that made under head 5 (a), which is no longer necessary;

Place on record the fact that his offer to provide evidence, made under head 5 (b) of the application, is elaborated in his further conclusions;

Further conclusions:

A) Order that the following facts be proved by witnesses, in accordance with Article 47 (1) of the Rules of Procedure of the Court:

1) That at least since December 1961 his immediate superior, Mr Leclercq, has endeavoured to Obtain his removal in order to replace him with a young graduate of French mother tongue; Witness: Dr Michaelis;

2) That since that same date his immediate superior, Mr Leclercq, has given him no work; Witness: Dr Michaelis;

3) That Dr Michaelis told the defendant that his evidence to the Establishment Board had been favourable to the applicant, the only reservation being as to his knowledge of languages; Witnesses: Dr Michaelis, Miss Barsch, official of the EAEC Commission, Miss Ludwig, official of the EAEC Commission;

4) That the applicant had brought with him to his interview with the Establishment Board a portfolio of work which the Board had refused to consider, examining only a letter from a well-known professor and a departmental record; Witness: Mr Gillot, interpreter;

B) Order the opposite party to produce the documents referred to on pages 11 and 12 of the reply;

C) Order the opposite party to furnish the necessary explanations and the documents relating to the inter-community meetings referred to on page 21 of the reply, in particular the applicant's reports of the meetings.”

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

“Declare the application unfounded;

Order the applicant to bear the costs;”

And in its rejoinder:

“Declare the application inadmissible, or alternatively unfounded;

Order the applicant to bear the costs;”

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows: The applicant puts forward the following nine grounds in support of his application:

i) Infringement of Article 110 of the EAEC Staff Regulations;

ii) Infringement of the last sentence of Article 5 in conjunction with Article 10, and possibly Article 110 of the Regulations;

iii) Infringement of the right to defend himself and of general principles of law;

iv) The participation in the Establishment Board's procedure of someone not employed in a supervisory capacity (infringement of Article 102 (1) (b) of the Regulations);

v) Lack of a proper statement of grounds in the opinion given by the Establishment Board, and failure to notify the applicant of it;

vi) Lack of standard criteria for making the assessments, with the result that these are subjective and inevitably give rise to conflicting opinions concerning officials;

vii) The grounds on which the Establishment Board based its opinion were factually inaccurate, or represented inaccurate evaluations of fact on its part;

viii) Misuse of powers occasioned by the personal animosity towards the applicant of his superior, Mr Leclercq;

ix) Irregular composition of, and procedure followed by, the Establishment Board.

A — Admissibility

The defendant claims that the first two heads of the conclusions in the application are inadmissible, as is the new submission introduced in the reply, that of the irregular composition of and procedure followed by the Establishment Board.

1. The first head of the conclusions in the application requests the Court to annul the “appointment of 8 January 1964, but only in so far as it established the applicant in Grade A 5, Step 5”. The defendant claims that the applicant expressly waived his right to Grade A 4 and accepted his establishment in Grade A 5 and that consequently it is not admissible to request that the integration be annulled and the applicant classified in Grade A 4. In fact, says the defendant, by waiving his right to the benefit of his contract (see Schedule 6 to the statement of defence) the applicant expressly waived any claim to the grade and step expressly assigned to him under the contract of employment prior to the entry into force of the Regulations by analogy with the ECSC scheme. Furthermore, since this waiver was executed “in accordance with Article 104 of the EAEC Staff Regulations”, that is to say, in the context of the integration procedure, this must mean, according to the defendant, that the applicant accepted his integration in Grade A 5. The applicant replies that his appeal should be held admissible since he never waived his right of action, either expressly or by implication, and is within die time-limits for exercising it. (a) The integration in a lower grade amounts to a unilateral offer by the defendant specifically expressed in the document dated 8 January 1964 appointing the applicant, which, it is obvious, has never been accepted by the applicant, since he brought his appeal within the time allowed by the Regulations. Waivers cannot be presumed. Furthermore, says the applicant, rights conferred by Regulations which are a matter of public policy cannot be deemed to have been waived in advance. (b) The applicant's waiver of the benefits deriving from his contractual position prior to the adoption of the Staff Regulations (Article 104 of the Regulations) was not given freely: servants of the EAEC could not receive their declaration of appointment unless they signed a waiver. This claim relies on the circular of 8 February 1964 from the Staff Committee (Schedule 7 to the applicant's reply), which, in any case, stated that it was open to the official to make a complaint to the Commission even after signing the waiver of the contract of employment made prior to the adoption of the Staff Regulations. (c) The waiver mentioned in Article 104 of the Regulations cannot, contrary to what the defendant maintains, have the effect of preventing the official from taking advantage of any of the provisions of the Regulations, including those concerning administrative appeals and appeals to the Court.

2. The second head of the conclusions in the application consists of a request for the annulment of “all the steps in the integration procedure concerning the applicant, as well as the opinion of the Establishment Board, these forming the basis of the EAEC Commission's decision of 8 January 1964”. The defendant claims that this head is inadmissible. In fact, it says, a procedure, or the steps which it comprises, is not capable of being annulled unless it involves administrative acts adversely affecting an official. The most that could be done would be to declare that such a procedure was irregular. The applicant replies that the distinction drawn by the defendant between an irregular step in procedure and an administrative act which is void is somewhat futile in this case, since the Court has now ruled that only the appointment itself can be questioned, the entire integration procedure being no more than a preparatory process (judgment in Case 87/63 of 7 July 1964, Rec. 1964, pp. 948, last sentence, and 949).

3. The defendant alleges that the first two heads of the conclusions in the application are inconsistent. In the first place, it says, if there was some irregularity in the integration procedure (head 2), then the appointment itself must necessarily be invalid; yet the applicant claims elsewhere (head 1) that the appointment is valid, at least in part. The Court must decide to what extent each of two contradictory claims is admissible. The applicant replies that the Court must decide, taking into account all the facts of the case and the powers conferred on it by Article 91 of the Regulations, whether a negative judgment by it on the procedure followed by the Establishment Board would result in a straightforward annulment of the appointment and the return of circumstances to their original state or, as the applicant requests, merely a partial annulment, leaving untouched the appointment of the applicant as an integrated official.

4. The applicant raised for the first time a fresh issue in his reply, based on the irregularity of the composition of, and procedure followed by, the Establishment Board. He claims that this issue is derived from points of fact and law which emerged in the course of the proceedings, in particular after the minutes of the Establishment Board had been communicated to him. The defendant contends that this issue is not admissible, and denies that it is derived from points of fact and law which have emerged in the course of the proceedings.

B — On the substance of the case

1. As to the first submission: that the integration procedure is void because the defendant failed to draw up general provisions for giving effect to the integration procedure under Article 102, contrary to the first paragraph of Article 110 of the Regulations. The applicant, having set out this ground in his application, states in his reply that he does not wish to pursue it in the light of subsequent judgments of the Court (judgment of 1 July 1964, Pistoj v EEC Commission, Rec. 1964, pp. 696 and 697; judgment of 1 July 1964, Hubert v EEC Commission, Rec. 1964, p. 741; judgment of 1 July 1964, Degreef v EEC Commission, Rec. 1964, pp. 792 and 793; judgment of 7 July 1964, Georges v EAEC Commission, Rec. 1964, p. 949). The defendant replies that the provision in Article 102 is sufficiently precise not to require any additional provision for giving effect to it. It notes in its rejoinder that the first claim “has been abandoned by the applicant”.

2. As to the second submission: that the defendant has failed to define the duties and powers attaching to each basic post as required by the last sentence of Article 5 of the Regulations. After setting out this ground in the application, the applicant states in his reply that he does not wish to pursue it in the light of the judgments given subsequently by the Court (judgment of 1 July 1964, Pistoj v EEC Commission, Rec. 1964, pp. 697 and 698; judgment of 1 July 1964, Hubert v EEC Commission, Rec. 1964, p. 742; judgment of 1 July 1964, Degreef v EEC Commission, Rec. 1964, p. 693). The defendant replies that the reference to Article 5 is irrelevant here. It is evident from the wording of the third subparagraph of Article 102 (1) that the Establishment Board is to advise on the suitability of officials for the duties of their posts [French: “les fonctions auxquelles ils sont affectés”] which means that the opinion of the Establishment Board relates solely to the duties being carried out prior to the adoption of the Staff Regulations. It notes in its rejoinder that the second submission “is also abandoned”.

3. As to the third submission: that the right of the applicant to defend himself and general principles of law were not respected by the defendant. The applicant gives particulars of this submission in the application as follows: (a) The integration report consists entirely of subjective judgments. But, according to the applicant, it ought to contain facts rebuttable by evidence to the contrary, since the task of the Establishment Board is, after all, to make its own judgment on the official concerned on the basis of such facts. The applicant states on page 10 of his reply that he does not wish to pursue this line of argument in view of the recent judgments given by the Court. (b) The Establishment Board refused to examine the numerous examples of his work which the applicant wished to show it. In the conclusions set out in his reply (pp. 27 and 28) the applicant requests the Court to examine Mr Gillot, an interpreter, as a witness on this point. (c) Since the witnesses were heard in the applicant's absence, he was given no opportunity to refute their evidence, put questions to them in person, counter their evidence with witnesses of his own or prepare his defence on the basis of their examination. On p. 13 of his reply, the applicant states that he does not wish to pursue this argument since the point has now been settled by judgments of the Court. (d) It has not been shown that the applicant was granted the last word in the case. On p. 13 of his reply the applicant concedes that the minutes produced in Court do in fact show that his was the last word. (e) No minutes having been produced in Court, it is impossible to ascertain what was the composition of the Establishment Board, or to determine which of its members were present at the hearing and when the decision was being made. In his reply (p. 13 and 14) the applicant notes that the minutes have been produced, and that some of the members of the Establishment Board who participated in the final decision had not been present at previous meetings. This point is linked to the ninth submission developed below. (f) The Establishment Board gave no reasons for its opinion. In bis reply (p. 14) the applicant remarks that this point is taken up in the fifth ground of the application and will be examined together with it. In its statement of defence, the defendant contends that the Court has defined the defendant's right to be heard by the Establishment Board as follows: (Judgment of 5 December 1963, Leroy v High Authority, Rec. 1963, p. 417) The defendant asks: what were these points in the present case? First, there is the personal file, to which each official has access on request. Next, the integration report, which is included in the personal file and carries the observations and signature of the applicant. Lastly, the statements made by his superiors which were communicated to the applicant, who was given an opportunity to reply to them (cf. minutes of the meeting of 30 and 31 January 1963 in Schedule 4 to the statement of defence). The defendant then proceeds to answer the arguments contained in the application, point by point. As to (a) The defendant refers to the case-law of the Court which states that the integration report comprises a collection of ‘complex value-judgments’ (judgment of 5 December 1963, Leroy v High Authority, Rec. 1963, p. 420, first paragraph), and remarks that judgments are by definition ‘subjective’. It also invokes the passage in the same judgment, according to which: ‘[the report] cannot … be criticized for not going into details and mentioning specific facts.’ (Rec. 1963, p. 419). As to (b) The defendant denies the applicant's allegations and states that he was heard during the meeting on 30 and 31 January 1964, when he brought a file of his work which was examined by all the members of the Board. As to (c) This point has been settled by a judgment of the Court, the defendant says, as follows: ‘… the failure to produce the minutes [regarding the hearing of the applicant's superior] could only make the proceedings irregular if the result of this omission had been to prevent the applicant from making known to the Establishment Board his views on the observations made with regard to him by Mr Nora. This is not so in this case since the applicant had been informed by a summary of the substance of these observations’. (Judgment of 5 December 1963, Leroy v High Authority, Rec. 1963, p. 417). As to (e) The defendant comments that the composition of the Establishment Board for the various meetings is shown in Schedules 2, 3, 4 and 5 to the statement of defence. As to (f) The defendant states that it will reply to this argument when it answers the fifth submission. In his reply, the applicant sets out the third submission in the application, together with the fifth submission (that the reasons stated by the Establishment Board for its opinion are not consistent with the facts of the case and the applicant's personal file, and that this constitutes a lack of a valid statement of reasons) and the seventh submission (that the Establishment Board relied on grounds which were factually inaccurate or represented inaccurate evaluations of fact on its part). In practice, he says, these three submissions are distinguishable only theoretically, being inseparable purely on the facts. (a) Next, the applicant examines in detail the defendant's contention that the Establishment Board, for the purpose of forming its opinion, took into account the following: the applicant's personal file, the integration report, the statements made by the applicant's superiors. The applicant comments that the minutes of the Establishment Board's meetings contain no indication that the personal file was examined. Thus the Establishment Board could not have taken into account the fact that the applicant had been promoted both in grade and step, which contradicts the assessments made by his superiors in the integration report and in their evidence to the Board. The Court has held (concerning promotion and the absence of proper conduct reports) that examination of the personal file is an essential requirement (Judgment of 19 March 1964, Raponi v EEC Commission, Rec. 1964, p. 269; Judgment of 9 June 1964, Bernusset v EEC Commission, Rec. 1964, p. 616; Judgment of 7 July 1964, De Pascale v EEC Commission, Rec. 1964, p. 1037). The applicant claims that the reports of his superiors and their assessments (occasional lack of initiative — pessimistic view of the usefulness of the work given — doubtful standard of work submitted) show that it was in fact his insufficient knowledge of French which prompted the unfavourable assessment. The applicant admits that it appears from the minutes that the evidence heard from three of his superiors (Mr Leclercq, Head of Department, Dr Michaelis, Director, and Mr Von Geldern, Director-General) were all three somewhat unfavourable. But he asserts that the Chairman of the Establishment Board did no more than communicate to him the opinions of his superiors, without indicating the names of their authors. Consequently, he says, his defence was inadequate. He was convinced in fact that the unfavourable comments came almost exclusively from Mr Leclercq, with whom he was on bad terms. (b) The applicant concludes on the strength of the above that: he was not given the fullest opportunity of defending himself; the opinion of the Establishment Board and the reasons given for it are not satisfactory, bearing in mind the facts of the case. The applicant goes on to say in precisely which respects the reasons given for the opinion are unsatisfactory. In the first place, the opinion was given ‘after consideration of the work referred to by the official concerned’, when in fact the Establishment Board had not looked at the work. Secondly, the complaint in the report of ‘certain deficiencies in his abilities, notably as regards the knowledge required for his particular post’ is, according to the applicant, completely contrary to the gist of the integration report and the evidence given by his superiors, which were favourable as regards his vocational skills. Lastly, the reasons given to the effect that the deficiencies in the applicant's abilities led the defendant to give him duties to perform of a level below the requirements of the service is, according to the applicant, untrue, inconsistent with the facts and is not borne out by the personal file. The applicant observes that while it is true that Mr Leclercq gave him no work after December 1961, he was never given work to do of a level inferior to that required by the service. (c) The applicant points out that according to a reply made by the defendant to a parliamentary question by Mr Faller (Official Journal, 2 October 1963, pp. 2433 and 2434), ‘Every servant summoned before the Establishment Board has been given the opportunity of being assisted by a colleague of his own choice’. Yet, he says, a reading of the minutes of the Establishment Board shows that the latter did not inform him of this option. This complaint can be taken together with that set out later (ninth submission) regarding the irregular composition of the Establishment Board and the procedure which it followed. The defendant answers the arguments set out in the reply concerning the third, fifth and seventh submissions in the following manner: (a) As to the promotion in grade and step to which the applicant refers, the defendant observes: that the promotion in grade occurred at the end of the probationary period following a very favourable probation report; the defendant admits that the applicant had given complete satisfaction until 1960; That the promotion in step was automatic for all staff during the period prior to adoption of the Staff Regulations. (b) The defendant contests the applicant's claim that Mr Leclercq gave him no work after December 1961; but even were that so, says the defendant, Mr Leclercq's opinion, given three months after the date and covering a period of two years, would not be any less to the point. (c) As to the applicant's allegations concerning the examples of work which he submitted to the Establishment Board, the defendant observes that these cannot be taken as proof of the applicant's competence since he merely assisted in drafting documents which were not published under his name. (d) The defendant's response to the applicant's claim that he was not advised of his right to be assisted by a colleague before the Establishment Board is that document No 101 in the personal file, lodged in the Registry, reminds the applicant that he may be assisted by a colleague of his choice. This document is signed by the applicant in acknowledgement of receipt, (e) As to the question whether the personal file was examined by the Establishment Board, the defendant replies: that the examination did take place and the members of the Establishment Board are prepared to be witnesses to the fact; that if the minutes do not mention such an examination it is because Article 102 (b) of the Regulation concerning the Establishment Board makes no mention of the personal file. (f) To the applicant's allegation that his inadequate knowledge of French was the deciding factor in the Establishment Board's unfavourable opinion, the defendant replies that it is clear from the wording of the integration report and the statements of the applicant's superiors before the Establishment Board that his inadequate knowledge of French was an argument in fact merely supplementary to the other complaints regarding the applicant's deficiencies, namely: lack of initiative, a pessimistic view of the feasibility and usefulness of the work required, the unsatisfactory standard of the work submitted. (g) The defendant denies the existence of any conflict between on the one hand the reasons given by the Establishment Board for its opinion and on the other hand the integration report and the statements given by the applicant's superiors. One has only to read these documents for this to be clear, says the defendant. It also reminds the Court that, while it may be true that the Establishment Board is to advise, according to Article 102 of the Regulations, on the basis of an integration report, this does not at all mean that the Establishment Board is to be bound, when giving its opinion, by an unfavourable integration report. On the contrary, it is the duty of the Establishment Board to form its own opinion based on all the information available to it. (h) As for the proceedings before the Establishment Board, the defendant states that the rules laid down by the Court in its judgment of 5 December 1963(Leroy v High Authority, Rec. 1963, p. 417), were observed.

‘… the Board must enable the candidate to comment on any points likely to influence the decision as to his establishment.’

4. As to the fourth submission: that the participation in the activities of the Establishment Board of Mr Turk, who was not employed in a supervisory capacity, constitutes an infringement of Article 102 of the EAEC Staff Regulatoins. The applicant after setting out this submission in the application, states in his reply that he no longer wishes to pursue it since the case-law of the Court is now settled on this point. The defendant replies that Mr Turk, the Deputy-Director, is responsible for supplies within the Directorate-General of Industry and Economy.

5. As to the fifth submission: that the opinion of the Establishment Board contains no statement of the reasons on which it was based, contrary to Article 25 of the EAEC Staff Regulations, nor was it communicated to the applicant immediately and in writing. The applicant states in his application, as regards communication of the opinion, that Mr Buurman, the Director of Personnel, told him that if he wished to see the text of the Establishment Board's opinion, his contract would be terminated forthwith. The defendant replies that one has only to read the opinion itself to see that it states the reasons on which it is based. As to the complaint that the Establishment Board's opinion was not communicated to the applicant, the defendant replies: that this opinion is a purely internal document intended for the EAEC Commission, preparing the ground for a decision from the latter, which alone can give ground for complaint; that the content of the opinion was communicated verbally to the applicant by the abovementioned Mr Buurman, in the presence of Mr Tinelli, the Director; that it formally denies the accusation made against Mr Buurman in the application. In his reply, the applicant declares that ‘he will not pursue any further’ the fifth submission, in so far as it concerns the lack of communication, since the Court has held that only the final stage, that is to say, dismissal, can give grounds for an appeal (judgment of 7 July 1964, Georges v EAEC Commission, Rec. 1964, pp. 948 and 949). As for that part of the fifth submission which refers to the failure to state reasons, the applicant's statement thereon in his reply, and the response of the defendant in its rejoinder, have been summarized above in connexion with the third submission in the appeal.

6. As to the sixth submission: that the absence of set criteria for the making of reports, makes the latter subjective and capable only of leading to conflicting judgments regarding servants. After setting this out in his application, the applicant declares in his reply that he withdraws it. The defendant contends that while it is true that some reports for the applicant's superiors were more detailed than others, the Establishment Board had ‘made allowances’ for this when considering the various reports.

7. As to the seventh submission: that the Establishment Board relied on grounds which were factually inaccurate or represented inaccurate evaluations of fact on its part. The applicant claims in his application that the following contain errors: the statement made to the applicant by Dr Michaelis to the effect that he had confined himself to stressing before the Establishment Board, the applicant's inadequate knowledge of French; the opinion of the Establishment Board; the decision of the EAEC Commission. In its statement of defence, the defendant replies that the Board's opinion is not dependant principally on facts. While admittedly the integration report makes special mention of the applicant's inadequate knowledge of French, it should be noted that the Establishment Board did not take this deficiency into account and that its opinion did not refer to it. For the rest, the applicant's statement in his reply and the defendant's answer in its rejoinder are summarized above in connexion with the third submission in the appeal.

8. As to the eighth submission: that of misuse of powers due to the personal animosity towards him of Mr Leclercq, the applicant's Head of Department. The applicant claims that Mr Leclercq, his immediate superior, made no attempt to conceal the animosity he felt towards the applicant, nor his desire for the applicant to be replaced by a young graduate of French mother tongue, more prepared to follow his orders. The defendant answers that this claim is quite inaccurate and unwarranted. Mr Leclercq wished to engage a replacement for Miss Bouteloup, who had resigned in 1961. The applicant replies that the post filled by Miss Bouteloup no longer appeared in the 1962 budget and the Commission's detailed list of posts. The defendant rejoins that, contrary to what it said in its statement of defence, Miss Bouteloup had left the EAEC Commission as early as 1960. Candidates for her replacement were being contacted until July 1961, when Mr Leclercq was informed that the post, which had been vacant for several months, had been abolished by the administration. As regards the applicant's post, it became vacant following the integration procedure and the resultant transfer of the applicant. Another official was appointed to the post in 1964.

9. As to the ninth submission: that the composition of and the procedure followed by the Establishment Board were irregular. A summary of the arguments relating to the admissibility of this submission, made at the time of the applicant's reply, appears above (Cf. HI A, as to admissibility, 4). The applicant says that the defendant has failed to produce: any document to prove that the members of the Establishment Board were appointed by the EAEC Commission; the procedural rules for the functioning of the Establishment Board; the defendant claims that no such rules exist and that the procedure described in its reply to Mr Faller's parliamentary question (Official Journal 2 October 1963, pp. 2433 and 2434) was not laid down in advance. The applicant concludes from this that the defendant's shortcomings in this respect make it impossible for the Court to assure itself that the procedure followed by the Establishment Board was regular. The defendant contends that: (a) It notified the applicant of the date and content of the EAEC Commission's decision appointing the members of the Establishment Board by letters dated 20 May 1964 and 22 September 1964, produced by the applicant in a schedule to his reply (Schedules 4 and 6). It adds that Staff Bulletin No 3/62 of 2 February 1962 (Schedule 1 to the defendant's rejoinder) informed all officials of the composition of the Establishment Board. (b) In a leter to the applicant dated 22 September 1964 (Schedule 6 to the applicant's reply), the defendant told him that the Establishment Board had naturally adopted for itself a modus operandi. The basic principles thereof were communicated to the staff representatives on 1 February 1962 (Schedule 2 to the rejoinder). The defendant concludes that the Court is therefore in a position to ascertain whether the Establishment Board adhered to its working rules and that the proceedings progressed in accordance with the Staff Regulations and the relevant rules of law.

IV — Procedure

The parties submitted their pleadings in the requisite form and in due time, and the procedure followed the normal course. During the hearing on 19 January 1965, and after hearing the preliminary report of the Judge-Rapporteur and the Advocate-General's opinion, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

The oral submissions of the parties were heard in open court on 17 February 1965. During the hearing, the Court (First Chamber) requested the defendant to produce the original minutes of the Establishment Board concerning the examination of the applicant's case. They were produced on 4 March 1965.

The Advocate-General delivered his opinion at the hearing on 10 March 1965.

Grounds of judgment

I — Admissibility

The defendant contends that the application for the annulment of the applicant's appointment, ‘but only in so far as it integrated him in Grade A 5, Step 5’, is inadmissible. By accepting his integration in Grade A 5 without reservation, and by going so far as to make an express declaration waiving the benefit of the contract of employment to which he was subject prior to the adoption of the Staff Regulations, the applicant relinquished, according to the defendant, any claim to be classified in Grade A 4.

Although, however, waiver of the benefit of the contract of employment made prior to the adoption of the Staff Regulations (Article 104 of the Staff Regulations) has the effect of substituting the Staff Regulations for the contract of employment, this does not prevent the contract itself from constituting a legally significant factor in the application of Article 102 of the Regulations. Were the contrary true, officials subject to the integration procedure would be deprived of their rights under Articles 102 et seq. of the Regulations.

This objection must be dismissed.

The defendant next contests the admissibility of the appeal on the ground that the applicant cannot at one and the same time claim to challenge his classification in Grade A 5 to retain the benefit of integration.

However, the applicant has appealed against the contested decision not in so far as it integrates him, but only because it classifies him in a grade lower than that previously attained by him.

If that part of the decision which relates to classification could not be made subject to judicial review, an official subjected to the integration procedure and who has an interest in appealing against the irregularity of this part of the integration decision, would be forced — in order to exercise his right of appeal — to bring about, by rejecting the proposal to establish him, a decision denying him integration. This interpretation is not consonant with efficient administration.

The applicant's conclusion, so far as they relate solely to his classification in Grade A 5 are admissible.

The defendant further objects that the conclusions concerning the annulment of ‘all the steps followed in the integration procedure concerning the applicant, including the opinion of the Establishment Board, these forming the basis of the decision of 8 January 1964 taken by the EAEC Commission’ are inadmissible; only acts which adversely affect the applicant can be annulled, not preparatory measures.

Such acts, when taken during the integration procedure, can only be contested incidentally in an appeal against measures capable of being annulled, not being so themselves. Any complaint concerning them can only be made effectively through an appeal against the Commission's decision which constitutes the final step in the integration procedure.

The objection is therefore well-founded.

Lastly, the defendant contests the admissibility of the submission relating to the regularity of the composition of, and procedure followed by, the Establishment Board, a submission first raised in the applicant's reply.

However, the argument in question is derived from an examination of the Establishment Board's minutes, only produced by the defendant in the Schedule to its statement of defence.

The objection must be dismissed.

The outcome of these considerations taken as a whole is that the application is admissible, with the exception of the conclusions seeking the annulment of the preparatory measures in the integration procedure.

II — The substance of the case

The first, second, fourth and sixth submissions

In his reply the applicant expressly withdrew the first, second, fourth and sixth submissions; accordingly there is no need to examine them.

The ninth submission

The applicant objects to the composition of and procedure followed by the Establishment Board on the ground that, first, the defendant has failed to produce any document proving that it had itself appointed the members of the Establishment Board.

Circular No 3/62 of 2 February 1962 appears in the applicant's personal file, so that he was in a position to acquaint himself with its contents. The defendant is not bound to produce written evidence on all questions concerning the integration procedure, unless there is reason to suspect that there are defects in the procedure; this is not the case here.

The applicant goes on to claim that the composition of the Establishment Board was altered in. the course of the integration procedure, and that members of the Board who were not present when the witnesses were heard nonetheless participated in the vote and in drafting the unfavourable opinion.

However the content of the statements made by the witnesses was recorded in the minutes and shown to the members of the Board.

The applicant finally claims that no rules for the Board's modus operandi were in existence, or if they were, the defendant had refused to produce the document containing them. According to the applicant, this makes it impossible for the Court to satisfy itself of the regularity of the procedure followed, and in particular to discover the majority by which the decisions should be taken and whether such a majority was obtained in this instance.

The principles governing the functioning of the Board were communicated to staff representatives on 1 February 1962; and the content of this communication is sufficient to enable the Court to review the functioning of the Board. No rule as to the majority requisite for issuing an opinion having been laid down, it must be assumed that a simple majority sufficed.

The text of the unfavourable opinion issued by the Establishment Board with regard to the applicant on 19 February 1963 reveals that such simple majority was obtained.

This submission is accordingly unfounded.

The third, fifth and seventh submissions

The applicant claims that he was inadequately informed of the statements made by his superiors and that the submission of examples of his work as evidence of his abilities met with a refusal by the Establishment Board to consider them.

The minutes of the Establishment Board, particularly those of the meetings held on 30 and 31 January 1963, show that the statements made to the Board by bis superiors were communicated to the applicant. The conflicting statements of the parties as to whether the Establishment Board refused to examine the examples of bis work produced by the applicant do not require the Court's consideration; it is sufficient to state that these samples have no evidential value. There is no evidence which enables the Court to determine with certainty the rôle played by the applicant in drafting these documents, the majority of which were published in the name of his superiors.

The other arguments adduced by the applicant in support of this submission are not sufficiently proven. This submission is accordingly unfounded.

The applicant next claims that the reasons given for the unfavourable opinion are inconsistent with the facts in the case and that their basis is factually inaccurate or represents inaccurate evaluations of fact. He sees a conflict between, on the one hand, the favourable assessment in his probation report (17 May 1960), the promotion to Grade A 4 with effect from 1 May 1960, and the advancement in step (1 November 1961); and, on the other hand, the unfavourable decision issued a few months later on the basis of the integration report (11 April 1962), the statements of his superiors (October 1962) and the opinion of the Establishment Board.

During the period prior to the entry into force of the Staff Regulations, the defendant applied with regard to its staff the 1956 ECSC Staff Regulations, Article 38 of which provides that advancement in step is automatic. There remain thus in the applicant's favour only the probation report and the promotion (May 1960), preceding by almost two years the integration report (11 April 1962), the first unfavourable element to appear.

Although according to the statement of reasons given by the Establishment Board for its opinion 'certain deficiencies in the abilities (of the applicant) … resulted in his being given duties to perform of a level lower than the requirements of the service, there is nothing to explain how the Establishment Board came to this conclusion. Nor is there anything in the file which enables the Court to judge whether this ground is justified by the facts of the case.

The Court must accordingly consider whether the Establishment Board could have found in any of the other arguments presented sufficient grounds for its unfavourable assessment of the applicant's abilities.

The Establishment Board relies upon certain deficiencies in the applicant's abilities, in particular his inadequate knowledge and lack of initiative, which seriously impaired his efficiency in carrying out duties attached to his post. The Court finds in the facts of the case, particularly in the integration report and in the statements of the applicant's superiors to the Board, sufficient grounds for the unfavourable opinion as to the applicant's integration. Consequendy, the argument that the inadequacy of the applicant's vocational skills meant that he had to be given work of a level lower than that required can be left out of consideration as having no decisive influence on the unfavourable opinion.

The other arguments put forward by the applicant to counter the reasons stated by the Establishment Board for its opinion are neither conclusive nor supported by adequate evidence. It has not been proved that the Establishment Board based its opinion on the applicant's inadequate knowledge of French.

This submission is therefore unfounded.

The eighth submission

The applicant claims that his immediate superior, Mr Leclercq, was influenced by personal animosity towards him to give a false assessment of his vocational abilities, and that in taking this assessment into account the Board was guilty of a misuse of its powers.

No evidence has been tendered, however, to support these claims. Moreover, the reports made by the applicant's other superiors were likewise generally unfavourable.

This submission is accordingly unfounded.

III — Costs

The applicant has failed in his action.

Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, under Article 70 of the Rules of Procedure institutions shall bear their own costs in actions by officials of the Communities.

However, the reason given by the Establishment Board for its opinion, to the effect that the applicant did work of a level lower than that required by the service is not borne out either by the statements of the applicant's superiors or by the file produced to the Court. Since this circumstance might have influenced the applicant in his decision to make the appeal, the defendant must be made to bear a part of the applicant's 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 Article 152 of the Treaty establishing the European Atomic Energy Community; 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 Atomic Energy Community, in particular Articles 5, 102, 104 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

I Dismisses the application in Case No 11/64, partly on the ground of inadmissibility and partly as being unfounded;

2 Orders the defendant to bear its own costs and one half of the costs incurred by the applicant;

3 Orders the applicant to pay the remaining half of the costs incurred by him.