JUDGMENT OF 11. 7. 1968 — CASE 16/67 LABEYRIE v COMMISSION

In Case 16/67

THE COURT (First Chamber) composed of: A. M. Donner, President, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The applicant, whose post is that of head of division and whose grade is A3, directs the technical departments at Ispra which according to two detailed lists of posts of 1 March 1964 (Schedule 4 to the application) and 15 January 1967 (Schedule 5 to the application) consists of four sections, the head of one of them, called Infrastructure, being Mr Pomar who has the same grade (A3) as the applicant.

By a note of 18 November 1966 (Schedule 1 (7) to the application) sent by the applicant to the deputy director, Mr Mercereau, he referred to a conversation between himself, Mr Mercereau and Mr Pomar and stated that the latter refused to remain in a subordinate position to the head of the Technical Services Department, that is to say to the applicant.

By a runner note of 21 November 1966 (Schedule 6 to the application), also sent to Mr Mercereau, the applicant requested that he should have the opportunity of giving his detailed opinion on an invitation to tender for the maintenance and servicing of the installations at the Research Centre at Ispra.

By a note of 22 November 1966 (Schedule 7 to the application) Mr Mercereau refused the applicant permission to give .this detailed opinion.

On 2 December 1966 Mr Kramers, Director of the Centre at Ispra, sent the applicant the following memorandum (Schedule 1(1) to the application):

‘1. With reference to your note of 21 November Mr Mercereau on 11 November (No 768) sent you a clearly worded reply which has my full approval. 2. In your note 396 of 18 November you proposed to restore the situation in which Mr Pomar and his department were directly under your authority. You do not perhaps appreciate that the decision (notified to you after I had approved it) to relieve you provisionally of the duty of supervising the Infrastructure Department was taken after mature consideration and not only because of a recent incident. During the last two years the Directorate has on several occasions had to place on record that your actions were not such as should be expected of a person entrusted with your duties. In particular you were warned by Mr Mercereau (in his note to you of 3 February 1966) and by Mr Ritter (in his note to you of 16 February 1966). 3. You may conclude from my answer that the situation is not satisfactory from your point of view. Nor is it from mine and I am forced to look for a solution of the problem which will enable the Technical Services Department to be run in a better and more coordinated way.’

On 10 January 1967 the applicant lodged a complaint (Schedule 1 to the application) with the Commission of the EAEC against the decisions and findings in the memorandum reproduced above.

On 16 March 1967 the president of the Commission answered the applicant's complaint (cf. Schedule 3 to the application) as follows:

‘The Commission has noted the complaint which you lodged on 10 January 1967 under Article 90 of the Staff Regulations. The Commission does not at the moment have at its disposal sufficient facts for the consideration of your complaint. The necessary steps have been taken to enable it to obtain all the relevant additional information and to define its position at the appropriate time when all the facts have been ascertained.’

The present application was lodged at the Court Registry on 16 May 1967.

II — Conclusions of the parties

A —. 1. In his application the applicant claims that the Court should: (1) declare that the decision of Mr Kramers contained in the first paragraph of his memorandum of 2 December 1966 is null and void to the extent to which it confirmed the decision of Mr Mercereau contained in the latter's memorandum of 22 November 1966; (2) declare that the decision of Mr Mercereau contained in the note of 22 November 1966 is null and void to the extent to which this note amounts to a refusal of the applicant's request made in his own note of 21 November 1966 for permission to submit his detailed opinion before any decision is taken by the Advisory Committee for purchases and sales with reference to the selection of an undertaking to maintain the installations at the Centre; (3) declare that the decision, alleged to have been taken and notified orally to the applicant, to ‘relieve (him) provisionally of the duty of supervising the Infrastructure Department’, is null and void; (4) declare that, having regard to the position which the applicant occupies in the service and in the detailed list of posts for the Research Centre, he has the necessary powers and is entitled to supervise the Infrastructure Department and to give his opinion on all the proposals emanating from this department, for which moreover he must assume the responsibility; (5) declare that the reprimand contained in the second sentence of the second paragraph of Mr Kramers's memorandum of 2 December 1966 which states that ‘the Directorate has on several occasions had to place on record that your actions were not such as should be expected of a person entrusted with your duties’, is null and void; (6) declare that the reprimand in the third paragraph of the said memorandum contained in the words: ‘You may conclude from my answer that the situation is not satisfactory from your point of view. Nor is it from mine and I am forced to look for a solution of the problem which will enable the Technical Services Department to be run in a better and more coordinated way’; (7) declare that the defendant must make good the damage suffered by the applicant through the acts and omissions of its servants, namely Mr Kramers, Mr Mercereau and Mr Ritter; (8) consequently order the Commission to pay to the applicant by way of damages and interest the sum of one Belgian franc; (9) order the defendant to bear the costs of the proceedings. Further: order the defendant to produce the minutes of the meeting of the Advisory Committee for purchases and sales (Document EUR/C/4 of 20 February 1966).' 2. The applicant claims in his reply that the Court should: ‘declare that the application is admissible and well founded and give effect to this finding.’

B —. 1. In its statement of defence the defendant contends that the Court should: declare that the applicant's claims for annulment and for ‘a declaration’ at heads 1 to 6 of his application are inadmissible or, alternatively, unfounded; dismiss the claim for damages and interest at heads 7 and 8 of the application as unfounded; order the applicant to pay the costs to the extent provided by Article 70 of the Rules of Procedure of the Court.' 2. In its rejoinder the defendant contends that the Court should: ‘give effect to the conclusions in its statement of defence; declare, pursuant to Article 42(2) of the Rules of Procedure of the Court, that, as they were raised out of time, the following issues are inadmissible: the issue of the alleged failure to observe the procedural requirements prescribed by the first paragraph of Article 25 of the Staff Regulations (the obligation to communicate a decision in writing to the official concerned and to state the reasons upon which the decision is based), which appears for the first time in the reply (p. 6, paragraph 3(b)); the issue of misuse of powers raised for the first time in paragraph 4 of the reply (p. 9).’

III — Submissions and arguments of the parties

A — Admissibility

The defendant asserts that the claims for annulment are inadmissible, having regard to the nature of the contested measures, arguing that they are simply internal administrative measures, which, according to the case-law of the Court, cannot be the subject of an appeal to the Court (Judgment in the Fonzi Case of 8 July 1965; [1965] E.C.R. 499).

With regard to the ‘decision’ of 22 November 1966 of Mr Mercereau referred to at head 2 of the application and to the measure of approval contained in the first paragraph of Mr Kramers's memorandum the nature of the internal administrative measure is evident.

The measure contained in the second paragraph of Mr Kramers's memorandum of 2 December 1966 is also an internal administrative measure for the reorganization of departments which in no way prejudices the applicant's position in the service and under the Staff Regulations as he retains his grade and post as head of the Technical Services Department.

In addition, as the latter decision is expressly stated to be ‘provisional’, it is therefore clear that the applicant can have no ground for complaining of this provisional, internal administrative measure.

The alleged ‘reprimand’ in the second and third paragraphs of the Kramers memo randum was contained in a simple interdepartmental memorandum and not in a decision which had legal effects and the measure criticized was not intended to be and was not in fact of a disciplinary nature.

The applicant replies that the defendant is not applying the case-law of the Court properly to the present case.

In fact in the Fonzi case the official concerned was instructed to proceed from Ispra to Brussels and was subsequently transferred by means of a duly notified decision. Therefore the Commission's jurisdiction could not be called in question and the applicant in that case had no ground for complaint because the measure affecting him was solely an administrative instruction.

The opinion of Mr Advocate-General Gand in the Klaer case ([1965] E.C.R. 1057 et seq.) that ‘the admissibility of his application is closely connected to the reasons justifying it’ also applies to this case.

The defendant replies that, with regard to the principles laid down in the Fonzi case, even if the case decided by that judgment is not on all fours with the measures challenged by the applicant, nevertheless the latter, like those in the said judgment, are ‘administrative instructions’.

With regard to the Klaer case the applicant in that case complained that he had been assigned duties corresponding to a grade lower than his own, whereas in this case no such clear-cut infringement of the applicant's rights is alleged.

Finally the defendant states that the issue of infringement of the procedural requirement provided for by the first paragraph of Article 25 of the Staff Regulations, based on the absence of any immediate communication in writing to the applicant of the ‘decision’ to withdraw from him one of his departments and the issue of misuse of powers were raised for the first time in the reply and are for that reason inadmissible.

B — The substance

1. The application for annulment

(a) Heads 1 and 2 of the application

The applicant asks the Court to annul the decision of Mr Mercereau contained in his note of 22 December 1966, to the extent to which this note amounts to a refusal of the applicant's request, contained in his own note of 21 November 1966, for permission to submit his detailed opinion, before any decision is taken by the Advisory Committee of purchases and sales concerning the selection of an undertaking to maintain the installations at the Centre.

He also asks the Court to annul the first paragraph of Mr Kramers's memorandum of 2 December 1966 to the extent to which this decision confirms that of Mr Mercereau. The applicant regards the fact that he was prevented from giving his opinion on the invitation to tender as a concealed disciplinary measure and regards this decision, like the one examined under (b) below, as illegal on the grounds of lack of jurisdiction, infringement of an essental procedural requirement and misuse of powers.

The decision of 22 November 1966 was only an explanation and possibly an anticipation of the basic decision to relieve him of the task of supervising the Infrastructure Department.

In the absence of any decision taken in the proper form the measure alleged to be unlawful amounted to a flagrant disregard of the rights of the applicant under the Staff Regulations, because it permitted the subordinate departments to submit their proposals direct to the next higher departments without even informing the head of the department.

The defendant replies that the contested measure is a simple inter-departmental memorandum by which Mr Mercereau, the applicant's immediate superior, took note of the opinion expressed by the latter and stated that he had informed the Advisory Committee for purchases and sales of its contents. The applicant could not have any cause to complain that this measure, which merely decides a question which has arisen in the course of administration, prejudices any subjective right upon which he can rely.

(b) Heads 3 and 4 of the application

The applicant then asks for the annulent of a decision ‘alleged to have been taken and orally notified to him’ to relieve him provisionally of the duty of supervising the Infrastructure Department, referred to in paragraph (2) of the memorandum of 2 December 1966 of Mr Kramers, Director of the Research Centre at Ispra.

In addition he asks the Court to ‘declare that, having regard to the position which the applicant occupies in the service and to his place in the detailed list of posts for the Research Centre he has the necessary powers and is entitled to supervise the Infrastructure Department and to give his opinion on all the proposals emanating from this department, for which moreover he must assume responsibility’.

According to the applicant the illegality of the decision lies in:

the fact that the Director and Deputy Director of the Centre have no jurisdiction to alter the duties of an official in Grade A3, as such power is vested under Article 7 of the Staff Regulations in the appointing authority;

the fact that the procedural requirement prescribed by the first paragraph of Article 25 of the Staff Regulations, namely the communication at once to the official concerned of the decision and the reasons upon which it is based was not observed:

the fact that there was a misuse of powers in that in this case the authors of the decision could not have had as their motive the strengthening of supervision in a sector where this was particularly necessary; on the contrary, their intention was, by withdrawing this supervision from a vigilant body, to prevent the observations of that body from succeeding in drawing the attention of the higher authorities to certain anomalies and irregularities in the departments.

The defendant replies that the two members of the Directorate at Ispra mentioned above acted within their powers when they proceeded to reorganize the relationship between the departments of the Centre, by, for instance, placing the Infrastructure Department directly under the Directorate. This measure is justified from the point of view of the order of precedence under the Staff Regulations, as the head of the Infrastructure Department, who has the same grade (A3) as the applicant, becomes subordinate on a provisional basis to the Administrative Director (A2). In addition, the applicant's position under the Staff Regulations has not been prejudiced because he kept his grade and his post as head of the Technical Services Department. The detailed list of posts of 1 March 1964 (Schedule 4 to the application) cannot give rise to any legal effects which can be put forward in support of the applicant's claims. It is in fact an internal and unofficial document drawn up for information only and not an official decision of the Commission relating to the definition of costs.

The issue of an infringement of an essential procedural requirement was raised in the application (p. 4) with reference to Title VI of and to Annex IX to the Staff Regulations, in connexion with the disciplinary measures and proceedings and it was only in the applicant's reply that reference was made to Article 25 of the Staff Regulations. This issue is therefore inadmissible (see above: A — Admissibility) by virtue of the application of Article 42(2) of the Rules of Procedure.

The defendant contends, however, in the alternative that the contested measure did not require to be notified or give a statement of the reasons upon which it was based, because the applicant, having actual knowledge of the measure, has constructive notice thereof and because it dealt with a reorganization of the departments, which did not adversely affect the applicant.

The defendant then alleges that the applicant's position at the Centre in no way justifies speaking of the ‘retention of his post in name only’. In fact he retained under his control three departments with a staff of 198 servants.

The defendant submits that the present case cannot be compared with the Klaer case decided by the Court on 15 December 1965, for the applicant does not complain that he was assigned duties which were inferior to those appropriate to his grade but that one of the four departments under his control was provisionally taken from him and placed under the control of the Directorate after a long drawn out and apparently insoluble dispute with the head of the said department.

Such a measure could not amount to an infringement of Article 7 of the Staff Regulations.

According to the applicant's argument this provision would have to be interpreted to mean that, once the institution has defined the duties which attach to the post assigned to each servant, notwithstanding its overriding duty to organize its departments having regard to their requirements, it no longer has the power to make the slightest adjustment to such duties whether by way of addition or subtraction, throughout the whole of the period during which the servant concerned occupies the same post.

The defendant takes the view that the imposition of such a rigid departmental structure is incompatible with the duty imposed on each institution to ensure that the departments run efficiently. This view is supported by the decided cases of French and German administrative law.

The submission based on misuse of powers is founded, in the application, (p. 4) on the fact that a reprimand is supposed to have been given under the guise of a mere appraisal and that it is only in the reply that this submission is based on the argument that the authors of the decision, by taking away from the applicant the supervision of the Infrastructure Department, sought to prevent the attention of the higher authorities from being drawn to certain irregularities. This submission is therefore inadmissible (see above: A — Admissibility) by virtue of the application of Article 42(2) of the Rules of Procedure.

The defendant nevertheless submits in the alternative that the contested decision originated in its concern to ensure the smooth running of the department, by suspending for the time being the relations established by virtue of their duties between two servants whose inability to agree was obvious and the necessary investigations had been carried out to clarify the respective allegations made by them.

With reference to the application to the Court ‘to declare that… the applicant is entitled… to give his opinion on all the proposals emanating from the Infrastructure Department…’ the defendant calls attention to the fact that, according to the case-law of the Court (the judgments in cases 78/63, 11/65 and 62/65) it is not the task of the Court to give instructions to the administration.

The applicant replies that the claim that the reduction of his duties was only provisional cannot validate their curtailment in the absence of any detailed information of the provisional nature of the circumstances which are said to have mdae the measure necessary and to have determined its duration.

The measure which is criticized cannot be justified by the fact that the head of the Infrastructure Department and his superior both had the same grade (A3).

In tact Mr Leroy, Head of the Workshops Department, has the same grade as the applicant and continues to be his subordinate.

Finally the defendant's view that a servant who continues to receive his remuneration and retains his rank cannot claim to have suffered any damage was refuted by the Court in its judgment in the Klaer case of 15 December 1965 ([1965] E.C.R. 1055 and 1056).

(c) Heads 5 and 6 of the conclusions in the application

The applicant finally submits that the Court should annul the reprimands which it claims are contained in the second line of the second paragraph and in the third paragraph of Mr Kramers's memorandum of 2 December 1966.

These paragraphs contain a criticism of his conduct, accompanied by a refusal to assist him in conformity with Article 24 of the Staff Regulations, when he was confronted by the declared intention of the head of the Infrastructure Department to refuse to obey his orders as from 10 October 1966.

The illegality of these decisions arises out of the following facts:

that these concealed disciplinary measures were taken without complying with the formalities prescribed by Title VI (disciplinary measures) of and Annex IX (disciplinary proceedings) to the Staff Regulations;

that the Director of the Research Centre did not have the powers to punish in this way the conduct of a servant having the applicant's rank;

that there was a misuse of powers on a misapplication of procedures arising first from such a total failure to state the reasons upon which the decisions were based as to justify the view that there was another motive for these reprimands and secondly from the fact that one of the reprimands was given under the guise of a simple appraisal.

The defendant replies that Mr Kramers's memorandum is a note relating to the running of the department which from its very nature cannot have any effect under the Staff Regulations, nor, as a result, adversely affect a servant within the meaning of Article 91 of the Staff Regulations.

The rule that simple internal administrative measures are not subject to a review by the Court, which is intended to guarantee the prerogatives of officials, is found in the administrative case-law of Member States.

The inter-departmental memorandum in question cannot be criticized for failure to state the reasons upon which it is based, because it is not a decision adversely affecting an official within the meaning of Article 25 of the Staff Regulations.

The applicant replies that the contradiction which the defendant claims exists between an inter-departmental memorandum and a decision is based on a formalism not found in the Staff Regulations or in the case-law of the Court.

2. The claim for compensation (heads 7 and 8 of the conclusions in the application)

The applicant submits that the decision which he asks the Court to annul constitutes a wrongful act causing him to suffer non-material damage and that he must with regret place on record that he continues to be prevented from carrying out his normal duties.

He asks that the Commission, which is required to make good the damage caused by the acts and omissions of its servants, Mr Kramers, Mr Mercereau and Mr Ritter, be ordered to pay him by way of damages and interest the sum of one Belgian franc.

The defendant replies that the claim for damages and interest proves to be completely unfounded.

The applicant has not established in this case that there has been any wrongful act whatsoever or any damage and in particular any infringement of any interest protected by law.

3. The request for production of documents

The applicant requests the Court to order the production of the minutes of the meeting of the Advisory Committee for purchases and sales, document EUR/C/4 of 20 February 1966.

He has the right and is under a duty to obtain information of the decisions taken by the Centre on matters falling within his sphere of jurisdiction and this document might complete the documents produced in support of the application.

The defendant replies that there are no minutes of the meeting bearing either this reference number or this date among the records of the Advisory Committee for purchases and sales.

IV — Procedure

The parties lodged their pleadings within the prescribed time-limits and the written procedure followed the normal course.

During the hearing on 29 February 1968 the Court (First Chamber) heard the preliminary report of the Judge-Rapporteur and the views of the Advocate-General and after calling upon the defendant, the Commission, to produce certain documents, decided to open the oral procedure.

On 14 March 1968 the defendant lodged at the Court the documents which it had been ordered to produce.

During the hearing on 15 May 1968 the oral submissions of the parties were heard.

At the conclusion of this hearing the applicant produced the documents which he had previously communicated to the defendant.

The Advocate-General delivered his opinion at the hearing on 12 June 1968.

Grounds of judgment

I — The application for annulment

The application is for the annulment of various decisions which in the view of the applicant are contained in or confirmed by notes or memoranda passing between him and his superiors. It is necessary to examine both the admissibility and the merits of these different claims separately.

A — The refusal to permit the applicant to give his opinion to the Advisory Committee on purchases and sales

The applicant in the first instance criticizes the refusal of Mr Mercereau, Deputy Director of the Research Centre at Ispra, in his note of 22 November 1966, confirmed by the Director of the Centre in his memorandum of 2 December 1966, to grant the applicant's request to give his opinion concerning the selection of an undertaking for the maintenance of the installations of the Centre.

In the contested measures a servant's superiors in the service take note of a proposal made by him relating to the running of the department and decide how to deal with it. Such measures are concerned exclusively with matters internal to the service and the way in which the administration is carried out. They are not therefore measures which can be annulled under Article 91 of the Staff Regulations so that this claim must be dismissed as inadmissible.

B — The decision to relieve the applicant provisionally of the task of supervising the Infrastructure Department

1. Admissibility

On this point the applicant submits first of all that the Director of the Research Centre did not have the powers to decide upon this step. He submits in addition that it infringes Article 25 of the Staff Regulations. He further submits that it amounts to a concealed reprimand given in breach of the procedural requirements for disciplinary proceedings and finally that it is also defective because there has been a misuse of powers, in that its aim is to prevent the observations of the applicant from drawing the attention of the higher authorities to certain anomalies and irregularities in the departments.

On the facts submitted to the Court it is clear that the Director of the Centre in fact removed the Infrastructure Department from the administrative unit for which the applicant was responsible, even though this action was merely provisional.

The higher authority alone is responsible for the organization of departments which it must be able to determine and modify according to the exigencies of the service, subject however to the necessity to respect the rights which servants enjoy under their Staff Regulations and which they can ask the Court to enforce. In particular it is clear from Articles 5 and 7 of the Staff Regulations that an official has the right to expect that the duties which are assigned to him should as a whole be in keeping with the post which corresponds to the grade which he occupies in the scale of posts: withdrawing from an official one or more of the departments for which he was previously responsible may in certain circumstances amount to an infringement of this right. The application must therefore be regarded as admissible.

2. The substance of the case

(a). It appears from the file and from the oral submissions of the parties that the contested measure was taken at a time when there had been repeated incidents and disputes between the applicant and the head of the Infrastructure Department, an official who had the same grade as he but who was subordinate to him. The Director of the Research Centre was entitled to regard this situation as detrimental to the efficient functioning of the service and that it was therefore necessary to take without delay provisional measures such as the suspension of the working relationship between these two officials. There is no doubt that in the absence of a properly executed delegation of powers, which has not been produced in this case, it is the Commission which has the authority to organize its departments but this fact does not mean that a provisional measure cannot be taken in this respect when the exigencies of the service require urgent action to be taken. The fact that this provisional measure remained in force for a long period is partly explained by the investigations carried out, at the instance of the applicant himself, into the circumstances which gave rise to the dispute between him and his subordinate. In these circumstances there is no justification for the view that a measure which was in fact final was taken in the guise of a provisional measure by an authority not empowered to take such ation.

(b). The applicant submits in the second place that the failure to notify him of and to state the reasons for the measure which he criticizes is an infringement of Article 25 of the Staff Regulations. The first point to note is that the contested measure was communicated in writing to the applicant by Mr Kramers's memorandum of 2 December 1966. The facts of this case show that this communication was made in writing within a short time and that there has been no infringement of the Staff Regulations. Next, it follows from what has been stated at (a) above that the measure which is criticized must be regarded as provisional and as having been taken because of the urgent requirements of the service. Having regard to the nature of the contested measure the reasons contained in the memorandum of 2 December 1966 must in this case be regarded as adequate.

(c). The applicant then submits, on the one hand, that the contested measure is a concealed reprimand administered in breach of the formal requirements prescribed for disciplinary proceedings and, on the other hand, that the express purpose of this measure was to prevent the applicant's observations from succeeding in drawing the attention of the higher authorities to certain anomalies and irregularities. The applicant has not produced any evidence in support of this submission which makes it permissible to presume that the Director of the Research Centre, who, moreover, was acting within his powers, exercised them with an objective in mind other than the interests of the service. The fact — which all parties to these proceedings accept — that investigations have been carried out, or are in progress, into the questions raised by the present case contradicts the applicant's allegations and at the same time confirms that Article 24 of the Rules of Procedure has been observed.

(d). In the opinion of the defendant the fact that the submissions under (b) and (c) are not contained in the application renders them inadmissible under Article 42(2) of the Rules of Procedure. As these submissions have been declared to be unfounded the question of their admissibility has ceased to be relevant.

C — The alleged reprimand

Mere observations addressed to an official by his superior, such as those contained in paragraphs 2 and 3 of Mr Kramers's memorandum, are not a disciplinary measure but an internal administrative measure, which cannot be the subject of an appeal to the Court. Such observations are not intended to and cannot have the legal effects of a disciplinary measure. On this issue the application must therefore be dismissed as inadmissible.

II — The claim for damages

The applicant claims compensation for the damage which he had suffered as a result of the contested measures. He claims the award of nominal admages of one Belgian franc for the non-material damage which he has suffered.

When the Directorate of the Centre at Ispra took the measures which are the subject of this application it did not commit any breach of duty. To put the matter more precisely, the responsible authorities of the Centre refrained from implementing the applicant's proposals to call his subordinate to order and sought to remove by a provisional measure the causes of friction which were clearly detrimental to the smooth running of the department without first clarifying the question of assigning the blame for any possible breaches of duty or mistakes committed by their subordinates; they reserved their opinion on this matter, which clearly raised complicated issues. In so doing the authorities acted with the requisite degree of caution and without committing any breach of their duties. The claim for damages must therefore be rejected as unfounded.

III — The request for production of documents

The applicant lodged submissions to the effect that the Court should order the production of the minutes of the meeting of 20 February 1966 of the Advisory Committee for purchases and sales. As the Court is of the opinion that the documents on the file provide sufficient information it is not necessary to make the order requested by the applicant.

IV — Costs

The applicant has failed in his application.

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 said Rules, in applications brought by servants of the Communities, institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to 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, especially Articles 5, 7, 21, 24, 25, 86 to 91 and Annex IX; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses the first and third heads of claim in the application as inadmissible and the second head of claim in the application as unfounded;

2 Dismisses the claim for damages as unfounded;

3 Orders each of the parties to the proceedings to bear their own costs.