61966CJ0012_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 12/66
ALFRED WILLAME, RESIDING AT SURESNES ( FRANCE ), ASSISTED BY MARCEL GREGOIRE AND EDMOND LEBRUN, ADVOCATES OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE - DUCHESSE-CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PIERRE MATHIJSEN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRY MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION :
( A ) FOR THE ANNULMENT OF THE DECISIONS NOT TO INTEGRATE THE APPLICANT AND TO TERMINATE HIS SERVICE OF WHICH HE WAS INFORMED ON 21 DECEMBER 1965;
( B ) FOR THE AWARD OF DAMAGES;
Grounds
P . 161
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 .
P . 162
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 AN 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 .
P . 163
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 ESTABLISHMENT 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 .
P 164
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 .
P 165
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 .
P . 166
( 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 TO 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 .
P . 167
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 ADDITION 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 BFR . 100 000 .
Decision on 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 ARTICLE 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 .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE - RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE 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;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . 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 BFR 100 000 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 .