JUDGMENT OF 22. 6. 1967 — CASE 12/66 WILLAME v COMMISSION
In Case 12/66
THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and W. Strauß, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
In an earlier application (Case 110/63) the applicant had requested the annulment of the decision refusing to integrate him and terminating his service, of which he had been informed on 2 October 1963.
In its judgment given on 8 July 1965, the Court (First Chamber) annulled the decision in dispute and referred the case back to the defendant for the re-opening of the integration procedure (Rec. 1965, p. 804 et seq.).
The Establishment Board re-examined the applicant's case during its meetings of 3, 5 and 15 November and 1 December 1965.
On this latter date it issued a report to the effect that it considered that the applicant was unsuited to perform the duties to which he was assigned.
As a result, the applicant received notification on 21 December 1965 that at its meeting on 16 December 1965, the Commission of the EAEC had decided to terminate his service, with effect from the end of the period of one month from the date of the above-mentioned notification.
II — Conclusions of the parties
A — In his application, the applicant has claimed that the Court should:
Primarily
1) Annul the contested decisions refusing to integrate the applicant and terminating his service, of which he was informed by letter of 20 December 1965, received on 21 December 1965, together with the procedural measures on which these decisions rested and in particular the unfavourable opinion of the Establishment Board and, by amending them;
2) Rule that the case be referred back to the defendant for a proper reexamination to foe made of the applicant's case;
3) Rule that following the annulment of the contested decisions the applicant shall be regarded as remaining in the service of the defendant, according to the provisions of his contract of employment;
4) Accordingly, order the defendant to pay to the applicant the emoluments due under his contract concluded before the entry into force of the Staff Regulations, taking into account any adjustments which have occurred since then, for the period between the termination of his employment by reason of the above-mentioned decisions and the notification to him of a new decision; order the defendant to pay to the applicant interest at the rate of 4.5 % per annum, calculated as regards each month's remuneration, as from the date on which the emoluments for that month should have been paid, until the date on which the applicant shall actually have received such emoluments;
5) Order the defendant to pay Bfrs. 100000 to the applicant as compensation for the non-material damage which he has suffered as a result of the irregularities vitiating both the integration procedure and the contested decisions and as a result of the wrongful acts or omissions, subject to the express right to amend this figure during the course of proceedings;
Secondarily
If, because of impossibility or for any other reason, the contested decisions should not be annulled:
1) Order the defendant to pay to the applicant such damages and interest thereon as the Court shall consider to be in keeping with the applicant's official status and period of employment, 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) In addition, order the defendant to pay Bfrs. 100000 to the applicant as compensation for the non-material damage which he has suffered as a result of the irregularities and, at least, of the wrongful acts or omissions committed during the integration procedure, subject to the express right to amend this figure during the course of the proceedings;
Order the defendant to pay the costs;
B — In its statement of defence, the defendant has contended that the Court should:
1) Dismiss both the primary and secondary conclusions of the applicant;
2) Declare Application 12/66 to be unfounded;
3) Order the applicant to pay the costs of the action.
C — In his reply, the applicant has claimed that the Court should:
Subject to all general reservations, and without his making any admissions which might prejudice his case, and in particular, subject to the express right to make any further submissions concerning the accuracy of the minutes of the Establishment Board dealing with the evidence given by the witnesses, accept the conclusions of the applicant as set out in the application.
D — In its rejoinder, the defendant has contended that the Court should:
Dismiss both the primary and secondary conclusions of the applicant;
Declare Application 12/66 to foe unfounded;
Order the applicant to pay the costs.
III — Submissions and arguments of the parties
A — Admissibility
The defendant raised no objection to the admissibility of the application.
B — Substance
The applicant has based his applications on the four following submissions:
1) The integration procedure followed is unlawful and contrary to general principles in that it infringes the rights of the defence;
2) The ground on which the Establishment Board justified its proposal that the applicant should not be integrated is inaccurate, insufficient and inappropriate;
3) The report of the Establishment Board is vitiated by misuse of powers;
4) The defendant's conduct during and following the integration procedure constitutes wrongful acts or omissions for which it is liable.
1. First submission: irregularity of the integration procedure
a) The applicant maintains that the composition of the Establishment Board which drew up the second opinion was identical to that which drew up the first opinion annulled by the Court. In order that the right of the defence might foe assured, it would have been essential for him not to appear before the same ‘judges’ whose earlier report had been criticized by the Court. The defendant maintains that the Establishment Board cannot foe compared to a court whose judgment has been quashed, the case then being sent back for hearing before other judges. As the Board's task in this instance was to equate the assessments of the several reporters, it could only foe performed by members possessing a thorough knowledge of all the problems posed by the integration of several hundred servants. Therefore, the fact that the composition of the Establishment Board remained the same constitutes the strongest guarantee of respect for the right of the defence.
b) The applicant maintains that, in his evidence given before the Establishment Board on 15 November 1965, Dr Recht stated that his annotations in black ink were made to the documents in question when he first received them, that those in red pencil were added in 1962, at the time of the first integration procedure and, finally, that he did not precisely remember when he had made his annotations in black or blue pencil. On this point the applicant makes the following observations: The defendant replies that the alleged contradiction between the statement made by Dr Recht before the Establishment Board on 15 November 1965 and the dates appearing on the documents numbered 148, 152 and 202, arises from an erroneous interpretation of this statement. It is in fact sufficient to quote the letter addressed by Mr Funck to the applicant on 14 December 1965 (Schedule 8 to the application), according to which ‘the explanations given by your superior — as was clear to everyone — were confined to a consideration of the marginal annotations, which, as they show no precise date, could without further evidence foe placed within an accurate time-scale’, in order to show that the statements made by Dr Recht only concerned the undated annotations.
if the above-mentioned evidence is compared with the fact that three of the annotations in red pencil, dated 13 March 1959, 15 April 1959 and November 1958 respectively, appear on documents numbered 148, 152 and 202, it must foe concluded that the three annotations in question have been antedated; the applicant therefore requests the Court to order the originals of these documents to foe produced in order to identify the colour of the annotations in question;
the applicant's argument that he had never been the subject of criticisms in tempore non suspecto is supported by the fact that, first, 17 annotations out of 20 are in red pencil and, therefore, date from the first integration procedure and that, secondly, the only two annotations in black ink, which the witness maintains date from the period of the re-opening of the procedure, constitute neither reprimand nor criticism;
in view or the applicant's complaint concerning the actual time-scale of the annotations and the obvious contradiction between the evidence of Dr Recht and the date of certain of the annotations, the Establishment Board was obliged to order the preparation of an expert's report, at least as regards the documents numbered 148, 152 and 202 and its refusal to do so is evidence of a serious failure to recognize the right of the defence.
c) The applicant maintains that the Establishment Board infringed the right of defence by issuing its report on the basis of an incomplete file, knowing the file to be in such a state. The 85 documents which he had lodged on 8 May 1963 in order to complete his file only constituted preparatory memoranda intended to show that he had actually carried out the work demanded of him and did not constitute the final version of such work on the basis of which his ability and efficiency could be assessed. A distinction must be made between the preparatory memoranda which he produced only in order to show that he had undertaken the tasks assigned to him, and the finished documents which alone can foe used in order to assess the quality of a servant's work. Of 600 pages analysed by the Board, only 152 pages represented completed pieces of work. As regards the incomplete nature of the file considered by the Board, the applicant alleges; The defendant maintains that the drafts and preparatory memoranda are important in making an assessment of a servant's abilities, as they are the expression of his own thoughts before he collaborates with third parties. By the very nature of the work demanded of the applicant — contributions to surveys, preliminary plans, internal memoranda, etc.—final versions do not come within his sphere. The Establishment Board studied 450 pages produced by the applicant and 157 pages submitted by Dr Recht. It is thus of no avail to maintain that a few pages more could constitute a ‘genuine source of information capable of supporting the case of the servant concerned’ (Rec., 1965, p. 820, seventh paragraph). The information bulletins prepared in collaboration with Mr Hertel cannot be evidence of the ability of one of the authors thereof to perform the duties inherent in his post.
that the Board criticized the absence from the detailed list of posts of information regarding the staff required and their qualifications, even though the file contained no schedule dealing with appointments;
that the Board criticized the comparative table of legislation dealing with protection against radiation, although neither the six documents in newspaper format concerning industrial accidents nor the reference cards appeared in the file considered;
that the Board criticized the health and welfare statistics, although the letter (of 26 January 1961) from Mr Legrand to the applicant, and the memorandum from the applicant (of 26 November 1961) had not been submitted to it;
that the file contains no mention of approximately 40 information bulletins which he prepared in collaboration with Mr Hertel.
d) The applicant alleges that he had numerous private contacts with Mr Hirsch and that this official was, therefore, in a particularly good position to make a report on his abilities. Mr Hirsch, whose task was to establish and develop staff representation was the best qualified to define the importance of the applicant's duties as staff representative and thus to enable the Board to assess their influence on the quality and quantity of the services involved in his post. The defendant observes that Mr Hirsch had no special contact with the applicant and thus was not in a position to form an opinion as to his abilities. As regards the importance to be attached to the duties of staff representative, the defendant replies that in the course of Case 110/63 it appeared clearly that this matter had not escaped the Board's notice.
2. Second submission: defects in the statement of reasons for the decision
a) The applicant alleges that the statement of reasons according to which a “detailed consideration of the written work of this servant nevertheless reveals grave omissions and serious shortcomings considering the minimum requirements expected of an official of this rank” is itself inaccurate and insufficient. The Establishment Board regarded the work which it examined as being of a general and preliminary nature, even though it was aware that, particularly as regards the work to which it expressly refers, it was looking at a file containing no completed pieces of work, but merely drafts and preparatory memoranda. The applicant added to a file of 152 pages submitted to the Board, which was deemed to represent his work over a period of four years, documents which he had kept concerning the work carried out. It cannot therefore foe claimed that the Board considered a complete file, that is, one containing all the applicant's work in a final form. At the time of the first submission, he stated that three of the four pieces of work to which the Board expressly refers in giving the reasons for its decision, that is, the draft detailed list of posts, the comparative table of legislation dealing with protection against radiation and the health and welfare statistics, are incomplete and this alone justifies the criticisms made of them by the Board. There is therefore no question of complex value judgments with which the Court cannot interfere, but rather one of specific complaints establishing the inaccuracy and insufficiency of the grounds for the decision. The defendant refers to its arguments put forward at the time of the first submission and concludes that most of the documents considered by the Establishment Board, in particular those submitted by Dr Recht, in fact represent the final stage of work carried out by the applicant, and that, in any case drafts and preliminary projects are of great importance in assessing the suitability of a servant for his post. The Court will consider whether there are any grounds for it to make a pronouncement with regard to a complex value judgment, where, as in this case, there is no evidence on which it may be called in question. As regards the draft detailed list of posts (documents Nos 190 to 201 in the personal file), the defendant observes that it appears unlikely that the schedule in question even existed. First, an examination of the personal file reveals no reference to any schedule whatever and, secondly, the copy of the detailed list of posts which the applicant produced before the Establishment Board in 1963 also contained no schedule, and no mention of or reference to one. As regards the “comparative table of legislation concerning protection against radiation”, although the personal file contains six documents concerning industrial accidents, attached to document No 52, the alleged “numerous reference cards” are missing and their existence appears doubtful. Although the technical card-index exists in full it is clear that this is only partly the work of the applicant and that his abilities cannot therefore be assessed on the basis thereof. As regards the health and welfare statistics, the defendant replies that the two letters missing from the file do not exist in its archives and the applicant's inability to obtain a copy of them appears to indicate that they were never written. Finally, the Establishment Board has clearly explained the grounds on which it gave up its inquiries on this point (Schedule 12 to the application, pp. 5 and 6).
b) The applicant criticizes the passage in the report of the Establishment Board, to the effect that: “The Board voluntarily refrained from considering Mr Willame's activities as staff representative, in spite of his request that it should do so, on the grounds that it was not competent to assess the value of these services …” In fact, as the third paragraph of Article 1 of Annex II to the Staff Regulations provides that the duties undertaken by the members of Staff Committee shall be part of their normal service in their institution, the Establishment Board, by refusing to assess the quality of these services, infringed both this provision and Article 109 of the Staff Regulations. In addition, it infringed the principle of rights and freedom, sanctioned not only by the Staff Regulations but also by the rules and principles in force in the Member States and in European and international institutions (Article 13 of the Convention for the Protection of Human Rights and Article 5 of the European Social Charter). The applicant then maintains that the Establishment Board claims to have taken into account the effect of his activities as staff representative on his official duties; but even on the assumption that the Board is justified in limiting its assessment in this way, it still gives no indication of the criteria which it applied in assessing this effect. There is justifiable doubt whether the effect of the activities as staff representative on official duties can be taken into account, without such activities having first been considered and given at least an assessment in outline. The Establishment Board was obliged to take into account the qualitative and quantitative effect of the applicant's duties as staff representative on his official duties but its report does not indicate in any way what documents and evidence enabled it to assess the importance, the volume and the difficulty of his duties in this capacity. The Court is therefore unable to exercise its power of review. Finally, the fact that the Board did not hear Mr Hirsch and failed to take sufficient notice of the favourable evidence of Mr Medi assumes particular importance in relation to this point. The defendant replies that it follows from the case-law of the Court (Rec. 1965, p. 821, (m), third paragraph), that the Es'tablishment Board must examine the effect of the servant's activities as staff representative on his work in his official post and not the activities themselves. It follows from the opinion issued by the Establishment Board (Schedule 12 to the application, p. 2, fourth paragraph), that this procedure was adopted in this instance and that the Board nevertheless decided to draw up a negative report. The defendant then maintains that in its opinion (Schedule 12 to the application, pp. 2 and 3), the Establishment Board clearly defined the criteria which it applied in considering the effect of the applicant's activities as staff representative on the quality and quantity of his work involved in his official post. Although at no time was there a conflict between the two types of duties performed by the applicant, it is, however, possible that the mere existence of a dual capacity had unfavourable consequences not susceptible of measurement in concrete terms, but which were involved in the formulation of the Establishment Board's complex value judgment (Schedule 12 to the application, pp. 3 and 6). The applicant stated that “until the end of 1961, when the Staff Regulations were to come into force, the applicant had been assisted by his superior in the performance of his activities as staff representative’ (Schedule 12 to the application, p. 3 first paragraph). Basing its argument on the evidence given by Mr Medi before the Establishment Board on 3 November 1965, the defendant observes, first, that this witness had not been in a position to form a first-hand opinion of the applicant's ability and, secondly, had never regarded his establishment as virtually certain.
For this reason, the presumption of fact set out by the Court in its judgment of 8 July 1965 (Case 110/63, Rec. 1965 p. 820) cannot now be regarded as justified.
In addition, the defendant again maintained in its pleadings that the applicant never complained that he was unable to carry out properly those duties assigned to him in his post provided for in the budget because his time was completely taken up with his duties as staff representative.
3. Third submission: misuse of powers
The applicant alleges that the aim of the Establishment Board was not to make an objective assessment of his abilities, but rather to oust him from his position and to look later for excuses with which to give a semblance of justification for this decision to remove him which it had already taken.
That the Establishment Board intended to remove the applicant is shown by the fact that it:
did not require Dr Recht to produce evidence of the applicant's work in its final state, with the result that he was able to select the items to be produced in order to obtain the desired result;
in order to support its point of view, referred to work carried out by the applicant on which it did not have all the necessary information;
refused to examine the accuracy of the dates appearing in the margin of certain documents produced by Dr Recht;
did not hear the evidence of Mr Hirsch;
judged the applicant severely, although he received nothing but praise in the performance of his duties as staff representative.
The applicant has also maintained in his pleadings that the abolition of his post as Head of the Social Problems Division, of which he was informed by letter of 29 October 1965, (Schedule 3 to the application), shows that the Board's verdict had been given even before the integration procedure began.
The defendant replies that the applicant's unjustified allegations fail to show that the procedure took place without every attempt being made to ensure objectivity.
4. Fourth submission: wrongful acts and omissions
The applicant sets out the following as wrongful acts or omissions;
the file produced by Dr Recht was far from complete and was ill-assorted;
certain notes appearing in the margin of the documents in question were antedated, in order to give the impression that the work in question had been assessed severely at the time when it was done;
the allegation that a specific task was not carried out, even though the annotation made by Dr Recht at the end of document No 66 and Mr Mosthaf's statement produced in schedule 5 of the application, showed that it had been;
every time they had an opportunity to do so the members of the Establishment Board refused to consider any genuine sources of information.
The damage must foe made good by the annulment of the contested decisions, by the award of damages in respect of the non-material damage caused and, alternatively, if no order for annulment should be made, by the award of damages appropriate, in particular, to an adequate period of notice.
The defendant replies that the complaints put forward by the applicant are only repetitions of his earlier allegations, which have already been refuted.
IV — Procedure
The parties lodged their pleadings in time and the procedure followed the normal course.
By order of 16 February 1967, the President of the Court designated Judge W. Strauß to replace Judge R. Lecourt in the present case.
Upon hearing the preliminary report of the Judge-Rapporteur and the opinion of the Advocate-General at its hearing on 16 February 1967, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. The parties presented their oral submissions at the hearing on 20 April 1967.
Mr Advocate-General Roemer delivered his opinion at the hearing on 17 May 1967.
Grounds of judgment
I — Admissibility
No objection has been raised to the admissibility of the application and no grounds exist for the Court to raise the matter of its own motion.
The application is therefore admissible.
II — Substance
A — The application for annulment
1. The first submission: irregularity of the integration procedure
a) The applicant maintains that the rights of the defence were infringed, as the composition of the second Establishment Board was identical to that which issued the first opinion in 1963. As is shown by Article 102 of the Staff Regulations the duty of the Establishment Board is not to take penal or disciplinary measures, but rather to assess the ability, efficiency and conduct of officials in relation to the performance of their official duties. To this end, the Establishment Board must consider the subjective views put forward by superior officers on the abilities of their subordinates. Discriminatory treatment of officials can, therefore, only be avoided if a single Establishment Board is able, through prolonged experience, to develop homogeneous criteria of assessment and, if necessary, to balance discriminatory or divergent opinions expressed by superior officers on the officials concerned. Moreover ah ad hoc Board set up to deal with a specific case could not possess the experience gained in dealing with many cases by the Board which had functioned from the time when integration into the scheme of the Staff Regulations began. The present complaint is therefore unfounded.
b) The applicant alleges that the Establishment Board should have checked whether or not certain annotations made by Mr Recht in the margin of the documents considered had been antedated. On 15 November 1965, Mr Recht stated before the Establishment Board that he had made the marginal annotations in red ink in 1962, at the time of the first integration procedure. It is clear from the facts of the present case that this evidence was given in reply to a question concerning the undated marginal annotations. Mr Recht's explanations cannot therefore apply to the annotations in dispute, which are actually dated. The Establishment Board therefore rightly decided that the applicant's vague allegations did not constitute a valid reason for ordering an expert inquiry to determine whether the date on documents numbered 148, 152 and 202, was correct. The present complaint is therefore unfounded.
c) The applicant maintains that the Establishment Board issued its report on the basis of a file which was incomplete and which it knew to be so. The file shows that out of a total of 600 pages considered by the Establishment Board, approximately 150 pages constituted finished pieces of work, while the rest was made up of drafts and preparatory memoranda. Consequently, the criticism that the Establishment Board only based its reports on mere drafts is unjustified. Moreover, during the proceedings before the Establishment Board, the applicant did not claim that in addition to the 150 pages mentioned above, completed or almost completed documents existed for which he was alone responsible, and that, by examining these, the Board could have obtained a more favourable opinion of his abilities. The file examined by the Court only contains one observation to this effect in a letter addressed by the applicant to the Chairman of the Board on 15 December 1965, that is, after the integration procedure had come to an end. The present complaint is therefore unfounded.
d) The applicant makes the objection that the Establishment Board did not hear Mr Hirsch, the former President of the Commission of the EAEC. This official was in the best position to explain the nature and importance of the duties performed by the applicant within the Staff Committee, and thus to enable the Establishment Board to assess the effect of these duties on the quality and quantity of the services rendered in his official post. Article 102 of the Staff Regulations only prescribes that the Estabishment Board shall issue a report on the official's ability, efficiency and conduct in the service. It cannot be concluded from the third paragraph of Article 1 of Annex II to the Staff Regulations, according to which ‘The duties undertaken by members of the Staff Committee … shall be deemed to be part of their normal service in their institution’, that the value of the services rendered by an official in the sphere of staff representation can influence an assessment of the ability, efficiency and conduct of that official in relation to the performance of the duties involved in a given post provided for in the budget. The Board was therefore only required to consider the volume of the work which the applicant performed for the Staff Committee and to establish what effect the time spent on work as staff representative had on the time devoted to the performance of his official duties post. It follows both from the evidence of Mr Recht noted at the meeting on 3 November 1965 and from the wording of the opinion drawn up by the Establishment Board on 1 December 1965 on the basis of the applicant's detailed statements, that the quantitative effect of his work as a member of the Staff Committee on his activities in his official post was taken into serious consideration. The applicant is nowhere criticized for having neglected his official duties by reason of his duties as staff representative. On the contrary, official note was taken of the fact that in spite of his additional responsibilities he was able to devote a considerable amount of his time to the duties in his official post. The applicant himself has never maintained that his dual role prevented his keeping to the time-limits laid down for the work involved in his official post or that for this reason he was unable to carry out the work with sufficient thoroughness. It is clear from the minutes of the meeting of 8 February 1963 concerning the first integration procedure that the applicant acknowledges that, until the end of 1961, his superior supported him in his duties on the Staff Committee and that he always found it possible to finish his work within the required time-limits. It is clear from the above that it was unnecessary in the course of the integration procedure to consider in greater depth the question of how much time the applicant devoted to his activities on the Staff Committee. It was therefore reasonable for the Establishment Board to regard the evidence of Mr Hirsch as unnecessary. The present complaint is therefore unfounded.
2. The second submission: absence or insufficiency of grounds for the decision
a) The applicant criticizes the Establishment Board for failing to take the favourable evidence given by Mr Medi sufficiently into consideration. The evidence given by Mr Medi at the meeting on 3 November 1965 shows that he did not have at his disposal sufficient information concerning the applicant to enable him to make a comprehensive assessment of his activities. For this reason, Mr Medi's statements could not provide the Establishment Board with information such as could exercise a decisive influence on the opinion to be issued. The present complaint is therefore unfounded.
b) The applicant alleges that the Establishment Board wrongly criticized his attempts to prepare health and welfare statistics. It follows from a letter from the statistical department dated 26 January 1961 and from a memorandum addressed by the applicant to this department and dated 26 November 1961, that responsibility for the lack of progress in this field did not lie with him, but rather with the national authorities involved. It is clear from the minutes that the applicant's explanations on this point made in the course of the integration procedure were accepted and that, in any case, his work in the field of statistics did not influence the general assessment made by the Establishment Board. The present complaint is therefore unfounded.
c) The applicant alleges that the unfavourable assessment of the Establishment Board made regarding the detailed list of posts of the Directorate of Health and Safety which he had prepared was made on the basis of incomplete documents. The applicant has not established the existence of a schedule containing a resume of the staff required. Moreover, the Board's unfavourable assessment is based more on the lack of originality of the detailed list of posts than on the fact that it was incomplete. It must be acknowledged that a document which only contains paraphrases of extracts from the EAEC Treaty is inappropriate to demonstrate that its author is capable of performing the duties inherent in the post of Head of Division. The present complaint is therefore unfounded.
d) The applicant alleges that the documents on the basis of which the Establishment Board regarded as insufficient his choice of the texts of legal provisions concerning insurance and the compensation of staff exposed to nuclear radiation were also incomplete and that in its final form this work had included six additional pages concerning industrial accidents and had contained a certain number of reference cards. The defendant has replied that it was unable to find the above-mentioned documents in the archives of the Health and Safety Division. Moreover, the criticisms made by the Establishment Board did not refer to omissions in the work, but rather to its nature and its level. The present complaint is therefore unfounded.
e) The applicant criticizes the statement in the Establishment Board's opinion to the effect that the technical card-index which he had prepared regarding occupational diseases ‘cannot be regarded as convincing evidence of the spirit of initiative required from an official in the Health and Safety Division who is responsible for social problems’. Whilst agreeing that the applicant made to some extent a personal contribution to the work in question, the evidence of Dr Massart, Director of Medical Services, confirms the report of the Establishment Board by stating that it is of no great interest to the Directorate of Health and Safety. Moreover, it seems clear that a piece of work which is largely made up of information supplied by other departments of the EAEC Commission or the International Labour Office cannot be used as a basis on which to assess the applicant's ability ot perform the duties to which he was assigned. The present complaint is therefore unfounded.
3. The third submission: misuse of powers
The applicant alleges that the aim of the Establishment Board was not to make an objective assessment of his abilities, but rather to oust him from his position and then look for an excuse which would give a semblance of justification for this decision to remove him which it had already taken, and that it is significant in this respect that on 29 October 1965, that is, immediately before the integration procedure began, he learnt that his post of Head of Division for Social Problems had been abolished.
It is clear from the oral proceedings that the applicant has not established the misuse of powers which he alleges.
This submission must therefore be dismissed as unfounded.
B — The claim for damages
It follows from the foregoing that the only question remaining to be settled is whether the period of one month's notice provided for in the applicant's contract concluded before the entry into force of the Staff Regulations can be regarded as sufficient.
On his dismissal the applicant had more than seven years' service and held a post equivalent to Head of Division (Grade A 3).
The applicant thus remained in the service of the Commission well beyond the period at which the so-called ‘Brussels’ contracts normally came to an end.
A period of one month's notice is therefore insufficient in this instance. However, in calculating the amount of the damage suffered as a result of the insufficiency of the period of notice received by the applicant, it must be remembered that in pursuance of Article 102 (2) of the Staff Regulations the applicant received, in adition to one month's notice, compensation equal to two months' basic salary.
In the exercise of its unlimited jurisdiction, therefore, the Court assesses the amount of the damage at Bfrs. 100000.
III — Costs
Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
In accordance with Article 70 of the Rules of Procedure, in proceedings under the Staff Regulations of Officials, institutions shall bear their own costs.
Under the terms of Articles 69 (3) where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part.
The applicant has been successful in the part of his application concerning the period of notice.
It is therefore appropriate to order the defendant to pay one half of the costs incurred by the applicant.
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 Articles 151 and 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 34, 90, 91 and 102; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:
I Dismisses Application 12/66, to the extent to which it refers to the annulment of the decision not to integrate the applicant and to his dismissal;
2 Orders the defendant to pay Bfrs. 100000 to the applicant by way of damages, in respect of the insufficient period of notice of dismissal;
3 Orders the defendant to bear its own costs and one half of the costs incurred by the applicant, the remainder of the costs to be borne by the applicant.