61955C0001
OPINION OF MR ADVOCATE GENERAL ROEMER (
1
)
Summary
Introduction
I — T he subject-matter of the application — The jurisdiction of the Court — The nature of the application and the extent of the power of review
1. The subject-matter of the application
2. The jurisdiction of the Court
(a) The arbitration clause
(b) The claim for a car allowance
(c) The claim for four months'remuneration
(d) Assessment of the failure to renew the contract
(e) The claim for damages
3. The nature of the application and the extent of the power of review
II — The claim for a car allowance
III — The claim for an additional grant of four months' remuneration
IV — The basis of the further claim for damages
1. The legal principles
2. The facts
3. The legal assessment
4. The liability of the defendant
V — The amount claimed as damages
VI — Costs
VII — Conclusions
Mr President,
Members of the Court,
You are called upon today to consider the application of a servant of the Common Assembly of our Community whose contract of employment was not renewed upon the expiry of the period which it covered, namely two years. You are in possession of the facts. When I come to examining them from the legal point of view, I shall bring certain details afresh to your attention only where it seems necessary to do so. Let me first of all give you some explanations concerning the subject-matter of the application. I shall then be in a position to assess the jurisdiction of the Court, and, having done so, I shall be able to say what the consequences are as regards the nature of the application and the extent of the power of review by the Court.
I — Subject-matter of the application — Jurisdiction of the Court — Nature of the application and extent of the power of review
1.
The applicant claims that the defendant should be ordered to make four payments to him, the reasons for them being different in each case.
In the first place, he claims an allowance for the use of his personal car in the course of his duties, and bases his claim on the First Internal Staff Rules of the Common Assembly of 12 January 1953.
Secondly, he claims a payment in respect of the termination of his contract equal to a further four months' remuneration, basing his claim on a decision of the Bureau of the Common Assembly, which was communicated to him on 3 November 1954.
Thirdly, he claims a payment equal to two years' remuneration, in order to enable him to establish himself in a new situation and to compensate him for the non-material loss which he claims to have suffered. Finally, the applicant believes that he is justified in claiming an additional payment of three million Belgian francs or the corresponding annuity as compensation for the difference between his new salary and the salary which, in his opinion, he would have received for a further fifteen years, namely until the age of seventy, from the Common Assembly.
In order to claim the last two payments. the applicant argues that the decision not to renew his contract of employment was irregular at law.
2.
It is necessary to keep the subject-matter of these claims in mind in examining, at this stage, whether the Court of Justice has jurisdiction to pass judgment in respect of them, and, if it has, in examining the basis for that jurisdiction. The said jurisdiction must arise under the Treaty itself.
(a)
Article 42 of the Treaty provides that the Court shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Community, whether that contract be governed by public or private law. The applicant's contract of employment is such a contract governed by public law. The preamble to it refers expressly to the last paragraph of Article 6 of the Treaty, which provides that the Community shall be represented by its institutions. The contract of employment was therefore made on behalf of the Community, and it binds the Community. The Community is represented by the Common Assembly, itself represented by its President. The contract itself does not contain an arbitration clause. However, Article 17 thereof refers to the ‘Internal Rules’ in force as regards all matters not expressly covered in any clause. Provisional Rules of this type with respect to the Common Assembly were promulgated on 12 January 1953. In its final conclusions, the defendant states that that date was the date of actual publication, but that the definitive text had already been adopted on 16 December 1952. In any event, the said ‘Rules’ had been laid down by the institution and were applicable to its servants except where any provisions in their contracts expressly stated otherwise. The ‘Rules’ contained, at Article 27, an arbitration clause giving jurisdiction to the Court. Shortly thereafter, on 1 July 1953, fresh provisional Staff Rules entered into force. Article 52 thereof revoked all previous non-contractual provisions, including therefore Article 27 of the first Rules. Thus it is the arbitration clause contained in Article 50 of the Provisional Staff Rules of 1 July 1953 which is applicable. That article provides:
‘Where the appeals provided for within the Common Assembly against measures of the administration have been exhausted, any dispute to which the application of these Rules may give rise shall be submitted to the Court of Justice’.
(b)
As regards the first head of the applicant's claims, the car allowance, the point at issue is whether it is the first Rules, those of 12 January 1953, or the new ones, those of 1 July 1953, which are applicable. It thus involves a dispute as to the application of the Rules within the meaning of Article 50. This means that the Court has jurisdiction to deliver judgment in respect of this claim.
(c)
The second head of claim, the payment of four months' remuneration, is based directly on a decision of the Bureau of the Common Assembly. That decision was adopted by virtue of Article 15 of the contract which provides for the grant of a minimum of two months' remuneration, and not for a fixed amount, upon the termination of the contract. The Bureau applied that provision of the contract of employment in the case of the applicant. The arbitration clause contained in Article 27 of the First Rules of 12 January 1953 expressly covered the application and performance of the contract of employment. However, Article 50 of the Staff Rules of 1 July 1953, at present in force, only covers the application of those Rules. Nevertheless, I am of the opinion that the arbitration clause also covers the second head of claim. The applicant's contract of employment was very detailed. It contained provisions concerning the rights and obligations of the servant, family allowances, accident and sickness insurance, the residence allowance and the allowance to cover nonrenewal of the contract, all of which are questions which were covered in the Staff Rules which came into force subsequently. Therefore it has been possible for contracts of employment concluded thereafter to be limited to a small number of points, in particular to the post to be occupied and the fixing of the basic salary. As regards all other matters, such contracts have referred to the Staff Rules. This explains why the arbitration clause at present in force now merely mentions disputes concerning the application of those Staff Rules. Thus although certain questions have, since July 1953, been governed by general provisions contained in the Staff Rules, and are nevertheless dealt with in the applicant's contract of employment, this must not diminish the legal protection enjoyed by the applicant at the present time. Thus as regards the second head of claim also, the arbitration clause gives the Court jurisdiction in accordance with Article 42 of the Treaty.
(d)
The last two heads of claim are based on the ground that the decision not to renew the contract of employment was irregular. That question equally concerns the performance of the contract. But it also involves the application of the provisional Staff Rules, because the latter provide that until the publication of definitive Staff Regulations, personnel shall be engaged on a contractual basis. In my opinion, that must be understood as meaning not only the initial engagement under a contract of employment, but also the renewal of a contract which is about to expire. Therefore it may also be said, on the basis of the provisions mentioned above, that the Court has jurisdiction over this preliminary issue concerning the substance of the applicant's claims.
(e)
Until this moment, I have been able, as regards the two latter heads of the applicant's claims, to reach a finding that the Court has jurisdiction only in so far as the decision as to the question whether the failure to renew the contract of employment was irregular is concerned, that is to say, only in respect of an issue which is accessory to the substance of the claim. It is from this viewpoint that the applicant lodges his claim for damages.
Under Articles 34 and 40 of the Treaty, the Court may order damages to be paid by the Community in the case of irregular measures and wrongful acts or omissions on the part of the Community. The result of these provisions is that the general principle concerning the liability of public authorities, in force in the Member States, is also recognized in Community law. On the subject of the first paragraph of Article 40 of the Treaty, the report of the French delegation states:
‘Here we have the principle of the tortious liability of the Community, framed in such a way as to give scope for necessary developments in the case-law to adapt it to the nature of the new institutions …’ (
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)
Since Article 42 of the Treaty mentions disputes arising from contracts concluded under public or private law, the arbitration clause covers both liability for a wrongful act or omission and civil claims for damages. In the present case the legal position of servants of the Community is involved. The engagement and dismissal of staff also relates to the implementation of the Treaty, and we shall see later that the conditions of service are similar to those of an established official. Therefore it is not only administrative measures adopted in respect of servants and covered by the arbitration clause whose validity may be assessed here; in the event of a wrongful act such as to render the Community liable the payment of appropriate damages may be ordered. Thus the Court also has jurisdiction to deliver judgment on the other claims for damages, which are based on the irregular character of an administrative measure. In doing so, it will have to apply the principles as to the Community's liability under public law.
3.
Therefore, if we are able to state that the Court has jurisdiction to deliver judgment on the claims which have been submitted to it, the following consequences concerning the nature of the application arise at the same time:
It is the application and interpretation of the provisions of the provisional Staff Rules or of the contract of employment concluded with the applicant which are primarily involved. In so far as the regularity of an administrative decision is at issue, review by the Court is subject to the same limits as for a direct application for annulment. The Court will therefore examine whether the measure was legal and whether the limits of the discretionary power were respected. But it is not also required to assess whether the administrative measure was appropriate. This principle has been set out in Article 36 of the Treaty which, as regards the objection of illegality, refers back to the first paragraph of Article 33. On the other hand, a decision concerning the liability of the Community constitutes a typical example of an ‘application in which the Court exercises unlimited jurisdiction’. Accordingly, as regards all matters which go beyond the mere review of the legality of an administrative decision, the Court enjoys the widest possible powers of assessment.
II — The claim for a car allowance
Let me now come to the first head of claim, the claim for a car allowance. This head of claim can be examined at this stage because it is concerned exclusively with a question concerning the application of the provisions of the provisional Staff Rules. The applicant's contract of employment does not make provision for any allowance of this kind. The applicant therefore bases his claim on Article 3 of Annex I to the provisional Staff Rules of 12 January 1953. The question of the car allowance was not expressly dealt with in the applicant's contract of employment; the provision upon which he relies was abolished upon the entry into force of Article 52 of the provisional Staff Rules of 1 July 1953 and replaced by Article 34. Paragraph (a) of the latter article requires a special decision of the Secretary General of the Common Assembly. The applicant has not maintained that any such decision was taken in his favour. It will therefore be seen that the claim is unfounded without going any further and without its even being necessary to examine whether the applicant in fact used his car for purposes connected with the service. Let me also point out that the applicant did not put in his claim immediately, in July 1953, when payment of the allowance was suspended, but only after his departure, on 8 December 1954.
III — The claim for an additional grant of four months' remuneration
Article 15 of the applicant's contract provides that he has the right, upon the expiry of his contract of employment, to a grant which ‘shall not be less than’ one-twelfth of his annual remuneration per year spent in the service of the Common Assembly. The contract thus sets a minimum rate. The administration may therefore grant a higher payment, taking particular situations into account. This is what the Bureau of the Common Assembly did. At its meetings of3 October 1954 (cf. Annexes 15 and 20 to the statement of defence), and of 27 October 1954 (cf. Annexes 17 and 21 to the statement of defence), it fixed this grant in the applicant's case at a total of six months' remuneration in excess of the minimum rate provided for by the contract. That decision was notified in writing to the applicant on 3 November 1954 (cf. Annexes 4 to the application and 9 to the statement of defence), and it was based on the fact that the Bureau had twice examined the social and financial consequences that the applicant would have to face by reason of the decision not to renew his contract. It took into account in the applicant's case his material difficulties, for he is the head of a large family, and it thus intended to facilitate his search for a new post.
The considerations thus invoked are justified by reason of the nature of the grant. The Bureau, in this case, did no more than correctly exercise its discretionary power. After receiving the applicant's letter of 24 November 1954 (Annex 11 to the statement of defence) and having unsuccessfully invited him to withdraw it within a given time, the Bureau decided to annul its decision (cf. Annexes 17, 20 and 21 to the statement of defence). It gave as its reasons the fact that the applicant had not formally accepted this special favour and that he had shown evidence of his intention to bring his case before the Court.
As regards this, it should be observed that the decision of the Bureau did not constitute an offer, in contract, made to the applicant which the latter ought to have accepted. Nor did that decision require the applicant to relinquish any other claims, even before the Court. At a considerably earlier stage, in the exercise of its discretionary powers, the Bureau had taken a decision as to the amount of the grant. The applicant was entitled on principle to the grant by virtue of his contract which, as regards the amount thereof, only set a minimum rate. The fact that the applicant believed himself to have other rights and intended to invoke them before the Court does not constitute legal grounds for modyfying that decision of the Bureau to the applicant's disadvantage, as was done in this case.
It cannot be objected that in making claims in respect of the termination of his contract the applicant has thus recognized that the decision not to renew his contract was legitimate, and has contradicted the reasons upon which he relies as regards the other heads of claim. In reality, the applicant accepts the termination of his contract of employment as a factual situation. He is not claiming that he should be reinstated, but claiming compensation. Such a claim is admissible and accepted in German and in French law, for example, where it appears that the continuation of the relationship of employment cannot be required. Thus, in his application, the applicant is claiming, by reason of the irregular character of the decision not to renew the contract, not merely that he should be paid the grants to which he is entitled under that contract and under the special decision of the Bureau adopted by virtue thereof; he is also putting forward other claims. If the Court takes the view that those claims are well founded it will have to take into account in calculating the payments concerned the grants which have already been made and which are laid down in respect of the regular termination of a contract of employment. In any event, the Bureau annulled its original decision for unjustified reasons. That measure is therefore void and the fact that it is void may, furthermore, be argued by way of an objection.
Since the applicant in fact received only the minimum rate of two months' remuneration, his claim for payment of the four additional months which were granted to him by the first decision of the Bureau of the Common Assembly in respect of this matter is well founded.
IV — The basis of the further claim for damages
The last two heads of the applicant's claims are based on the irregularity of the decision not to renew his contract. Thus these claims are not legally separated, but the applicant presents them from different angles in order to justify their amount. So these two heads may be joined. Let me first of all examine their legal basis.
1.
No particular formal provision and no special Community text are applicable here. Thus it is desirable first of all to examine what legal principles must be borne in mind in order to assess this case.
The parties defend opposing views on this point. The applicant is of the opinion that the contractual relationship of employment which exists between the Community and its servants entitles the latter to expect without doubt that they shall later be made established officials, unless a servant shows himself to be incompetent or unless the abolition of a post results in its being no longer in the interests of the service to employ him. To this the defendant replies that the contracts of employment are concluded for a limited period and make express provision for compensation should they not be renewed, such that the decision to renew or not to renew is in the discretion of the authority which has engaged the servant.
Article 7 of the Convention on the Transitional Provisions provides:
‘Until the Committee provided for in Article 78 of the Treaty has decided upon the size of the staff of the Community and has laid down staff regulations, the personnel required shall be engaged on a contractual basis’.
On the basis of this provision, the whole of the staff of the Community was engaged under contracts of varying length, not usually exceeding two years and, in certain cases, under contracts which were considered as monthly contracts. Provisionally, those contracts were very explicit on certain points and referred, on other questions, to Internal Rules established by the relevant institution of the Community for its staff. In February 1953 the Committee of Presidents created a committee to prepare the definitive Staff Regulations. That committee first of all drew up provisional Staff Rules which rendered uniform the previous Internal Rules of the different institutions. Those provisional Staff Rules were put into force in very similar forms at the Court of Justice and at the Common Assembly in July 1953, at the Council of Ministers in November 1953 and at the High Authority in March 1954. They are based on the necessity ‘to establish provisional Staff Rules until such time as the Staff Regulations of the Institutions of the Community shall come into force’. Article 2 provides for a probationary period of a maximum length of three months, during which the institution can terminate the contract on one month's notice. Once that period is over, the Rules no longer provide that the institution may proceed to a dismissal. Admittedly, Article 46 provides for removal from post, but only as the most serious disciplinary sanction, after a normal disciplinary procedure.
When, at the beginning of 1954, the expiry of a large number of contracts was imminent, whereas the implementation of definitive Staff Regulations did not seem immediately foreseeable, the Committee of Presidents adopted, at its sixth meeting on 19 March 1954, the following decision:
‘The Commission decides to extend to 31 December 1955 the contracts of all servants holding contracts of employment for a period of more than one year. Contracts for a lesser period shall be extended by one year only. Notwithstanding the above, the institutions shall retain the power not to grant the above-mentioned extension to any servants who may show themselves unsuited to their duties. The contracts of servants who are later brought within the ambit of the Staff Regulations shall cease to have effect upon the entry into force of the said Staff Regulations’.
That decision was adopted because it was considered useful for the contracts to expire so far as possible on the same date in order to facilitate a rapid changeover to the Staff Regulations. Consideration was even given to extending the contracts until the as yet undetermined date of entry into force of the definitive Staff Regulations.
It is common knowledge that the drafting of the definitive Staff Regulations has not yet been completed and that it is still the case that the whole staff are on contracts extended beyond their original expiry date. I think that the following conclusions may be drawn from this factual situation:
Staff occupying permanent butgetary posts — which means other than auxiliary and temporary servants — whose contracts do not contain any provision to the contrary, cannot be dismissed by the institution once the probationary period has expired. The fact that the contract refers to a large extent to provisional Staff Rules of itself means that there is a similarity with the situation of an established official. The main purpose of the limitation of the contracts in time is to permit a rapid changeover from the contractual system to the anticipated Staff Regulations. So long as it is not possible to bring the definitive Staff Regulations into force, the interests of the continuity of the service require that such contracts be extended by a general measure. According to the wording of the decision of the Committee of Presidents, the institutions ‘shall retain’ the power not to grant an extension of contract in the case of a lack of professional competence on the part of the servant. It may be thought that this power is the already existing power to remove a servant from his post. However, I think that there is a distinction and that the expiry of the contract makes a difference. While the contract is in force, removal from post may only occur as a result of serious misconduct followed by a formal disciplinary procedure. But when the contract expires the administration has a wider freedom of action; it can also take into account a lack of professional competence which has become apparent without its being necessary to establish any particular instance of misconduct against the servant. Nevertheless if, on this ground, a contract is not renewed, certain conditions must be respected and the person concerned must be offered legal guarantees simular to those connected with the disciplinary procedure. Thus the requisite reports by the servant's immediate superiors must be included in his personal file concerning his ability, efficiency and conduct in the service. Those reports — as also the whole of the personal file — must be brought to the notice of the person concerned, and he must be given an opportunity to submit his observations. The institution, acting on its own responsibility, may then adopt a reasoned decision not to renew the contract. This is the only means of reaching a state of affairs whereby on the one hand the administration can part company with an unsuitable servant and on the other hand the servant enjoys adequate protection against an arbitrary decision not to renew his contract, together with the possibility of inviting the Court to review that decision. The fundamental principle of equality of treatment requires, moreover, that where there is a general renewal of identical contracts, any exception to that general measure must be justified by an appropriate procedure. Therefore while it is true that a contractual servant does not have a right to be established and to be given a permanent post, he may nevertheless claim, first, the benefit of the rights of the defence and of equality of treatment and, secondly, that any exception made as against him to the general measures of renewal of the contracts must be enshrined in a reasoned decision adopted by the competent authority in accordance with an adequate procedure and subject to review by the Court.
Let me draw the attention of the Court to certain comparisons that may be made with the very recent decision of the Administrative Tribunal of the International Labour Organization, mentioned by the applicant. As you know, I have in mind the judgment delivered in Duberg v UNESCO. The Tribunal rejected UNESCO's argument to the effect that the said institution had the discretionary and sovereign power to refuse to extend certain contracts notwithstanding a general renewal to which it had proceeded. The Tribunal held that an engagement for a specified period could not be treated as a trial engagement and that reasons had to be stated for an exceptional decision not to renew so as to exclude arbitrary decisions and to enable the Tribunal to exercise its power to review the legality of the decision. More precisely, the Tribunal expressly stated in that judgment that it intended to proceed to a general review of the legality, which was its judicial function. In that case, it delivered judgment only on the question whether the reasons given could in general terms justify a decision not to renew a contract. I have no objection, either, to following the general principles of the case-law of the Conseil d'État. Nor would it appear to me that in the other judgments of international bodies, mentioned by the parties, it was the appropriateness of an administrative decision that was reviewed.
The principles mentioned above, namely, the right to defend oneself before a court or tribunal, equality before the law and equality before the courts, are fundamental rights recognized by the constitutions of all modern States. The fact that in the case of a decision not to renew a contract of this kind there is a condition that certain payments shall be made, subject to no further conditions, does not dispense the administrative authority from the obligation to respect these fundamental rights. It should be observed that the draft definitive Staff Regulations of the Community provide that servants dismissed at the end of the probationary period shall be paid three months' salary, but that nevertheless a precise procedure is laid down: the report on the ability of the probationary official must be communicated to him, he has the right to submit his comments in writing and it is only thereafter that the relevant appointing authority adopts its decision in full knowledge of the facts. (
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) Similarly in the case of dismissal for lack of professional competence (
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) on the part of a servant engaged on a definitive basis, the Staff Regulations provide both for a payment and for a procedure, the form of which is fixed by reference to the disciplinary procedure. It is upon the conclusion of that procedure that the appointing authority adopts a reasoned decision.
These principles are of use only in assessing whether, in the case of a general renewal of similar contracts, the decision not to renew one or several of those contracts has been taken regularly. But the question whether, in addition, there exists a possible wrongful act on the part of the administration involving the obligation to pay damages is still undecided. This question of the payment of damages still has to be examined.
2.
Let me now apply the principles thus advanced to the facts of the case.
The applicant was engaged for two years without a probationary period. Neither his contract nor the first Staff Rules of 12 January 1953 make provision for such a period. It emerges, moreover, from the preparatory inquiry that shortly after the applicant took up his duties, his hierarchical superior began to work directly with the Heads of Division placed under the applicant's orders and that a draft financial regulation prepared by the latter was rejected as unusable. When the applicant was engaged, the organization of the Secretariat was not yet settled. There were only sixteen servants. A first organizational plan was drawn up in April 1953. In June, the Bureau decided to abolish the post of Head of Administrative Services ‘upon the expiry of the contract of the present incumbent, Mr Kergall (5 December 1954)’, according to the minutes of the meeting of the Bureau on 15 June 1953, which have been produced. Such was the decision of 15 June 1953. No other task was confided to the applicant. When, in October 1953, on his own initiative, he attempted to take part in the preparation of the Budget of the Assembly, he was told that his work was unusable and that he must put an end to that activity. He was then instructed to undertake a study of the social security systems applicable to the staffs of the national parliaments of the Member States. Nine months afterwards, he was reminded of this task, which he then completed, so he says, in three weeks. His hierarchical superiors also refused this latter work, which was considered unusable in practice. After that date, he was not given anything further to do, a fact on which the parties are agreed.
3.
In this regard, let me emphasize the fact that the applicant was engaged immediately on a firm basis for a period of two years in the absence of any settled organization of the Secretariat and without a given post with precise duties being assigned to him. It may be that the following are matters of internal organization and of expediency which fall within the area of discretion of the Bureau of the Assembly and are not open to review by the Court: the fact that shortly after the applicant was engaged his post as Head of Administrative Services was in fact taken away from him because it seemed expedient to have a more simple organization, and the fact that thereafter the Bureau of the Assembly decided on 15 June 1953 formally to abolish that post. There is no point in examining whether the Bureau had the power to decide upon the abolition of the post or whether it only had a right to make a proposal, because in any event the abolition of the post cannot of itself justify the conclusion which was drawn from it, namely that ‘accordingly’ the applicant's contract, which was not to expire for one and a half years, could not be extended. We know that the applicant's contract did not refer to any particular post, and upon the expiry thereof it might have been possible to use him elsewhere. Taking into account the progressive expansion of the administration and the recruitment which took place, that would seem to have been possible at first sight, such that it is necessary to call upon the Common Assembly to prove the contrary.
The defendant attempts to produce that proof by raising two arguments: first, it could not offer the applicant a post as ‘head of division’ because that would have been equivalent to demotion; secondly, the applicant was not suited to a senior post.
The first argument does not seem decisive because it would have been reasonable to require of the defendant that, despite its alleged scruples, it should explain the problem to the applicant and make him a clear offer. Although there may have been some question of ‘capitis diminutio’, it scarcely seems to me that that results from another posting, even to an inferior post; it is rather to be found in the fact that the formal decision abolishing the applicant's post was to take effect only at the date of expiry of his contract, whereas in practice for at least eighteen months it was rendered impossible for him to carry out his duties. The defendant was responsible for this enforced inactivity on the part of the applicant. The defendant ought, not only in the interests of the service but also on account of its duty towards its servant, to have examined in all conscience whether it could have used the applicant to some worthwhile purpose in another post. The parties are unanimous in admitting that the defendant did not make that attempt.
In the present proceedings, the defendant justifies these facts by alleging that it considered the applicant's abilities to be inadequate. The assessment of professional competence, particularly that of a senior servant, belongs in the first place to the competent authority. Similarly, the question whether that competence can be definitively assessed after only six months and whether the applicant ought to have been offered the possibility of showing his worth in another service seems to me to be a question of expediency. But, on this point, the authority must take a clear decision on its own responsibility. Yet, in the file and particularly in the applicant's personal file, there is not to be found any written report made out by his superiors on his duties and on his ability. We find no written and reasoned decision of the Bureau explaining why the applicant was not used in some other way. I have explained that in my opinion these rules as to form must be respected, that the person concerned must be heard and that thus legal review must be rendered possible within certain limits.
Let me summarize the above: the reasons relied upon in support of the decision not to renew the contract do not justify that decision. The abolition of the post could only be relied upon if, at the same time, it were proved that it was impossible to use the applicant in some other capacity, despite the fact that a large number of people were being recruited. No such proof has been forthcoming.
For these reasons, the decision not to extend the applicant's contract seems to me to be defective.
4.
It now remains to examine whether, in adopting that decision, the administration has committed a wrongful act for which it is liable.
Article 34 of the Treaty is the basis for the principle that an illegal measure, even one that is annulled in response to an application for annulment, does not automatically involve an obligation to pay damages.
Similarly, in French law, (
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) the illegal character of a measure is indeed a necessary condition for liability, but that condition is not sufficient. In particular, an infringement of a procedural requirement is important only if it has had an influence on the content of the decision itself. Damages are not a penalty or a sanction imposed on the administration for failing to respect legal rules, but reparation for a loss resulting from a measure which is unjustified as to substance.
As regards the problem of damages, it is clear that where the content of the measure would have been identical even if the procedural requirements had been respected this fact makes a difference. Here one might consider what would have been the position if the applicant had immediately contested the decision of 15 June 1953 and if the Court had annulled that decision because the reasons given did not justify it. One could ask whether the defendant could then have adopted a new and regular decision with respect to the applicant, having the same content while stating other reasons and adhering to the rules of procedure applicable.
It is particularly difficult to answer this question a posteriori. It involves a factual assessment to which the Court will have to proceed. To my mind, the result of the preparatory inquiry does not with sufficient certainty permit of an answer in the affirmative. The existing evidence is open to the interpretation that it must have been possible to use the applicant in another post. The lack of professional competence raised today a posteriori could be ascertained only by respecting the rules of procedure which constitute substantial guarantees for the person concerned and which are intended to influence the material content of the decision.
For all these reasons, I am of the opinion that the defendant has committed a wrongful act such as to engage its liability.
V — The amount claimed as damages
As for the damages claimed, it is appropriate to discuss factors which, in my opinion, must be taken into consideration in order to fix the amount.
The applicant does not seem to me to be correct in claiming a difference in salary calculated on the basis of a period of fifteen years, because he had no right, allegedly infringed by the defendant in its decision, to a stable post at a fixed salary. As I have said, he had merely a reasonable expectation of occupying a permanent post, provided that the showed his worth and subject to the needs of the service. Other factors contributing to uncertainty, which relate to the future and which cannot be ascertained by the Court, must be taken into account here. In any event, the existence of ‘quantifiable damage’ cannot be accepted. There then remains a payment in respect of damages, the amount of which the applicant has himself assessed at two years' remuneration. But it is necessary first to take into account sums which the applicant has already received by way of a severance grant. For even though no condition other than departure was required in order that it be paid, it nevertheless constitutes ‘damages’ for the injurious consequences which result from the fact of departure. The applicant has received a payment equal to six months' remuneration and his removal expenses have been reimbursed. Thus the expenses of his return to his place of origin and a transitional payment corresponding to his two years' service have been taken into account. I suggest that he should also be paid the four months' remuneration which the Bureau granted him by reason of his family situation and of the difficulties of finding a new post at his age. The applicant will thus at this stage receive ten months' remuneration, although a servant subject to the provisions of the provisional Staff Rules would receive only four months' salary. If the Court has it in mind to take as a point of comparison the payment which was granted in the Duberg case, mentioned above, it must be observed that the plaintiff in that case had no right to any payment whether under contract or under Staff Regulations, that he had been in the service of UNESCO for five years and that he was held in high regard. I would also mention the provisions of Article 8 of a German Law of 1951 on protection against dismissal. In the case of unfair dismissal, that provision offers the possibility, instead of reinstatement, of a payment of up to a maximum of twelve months' salary.
Finally, it is necessary also to take the applicant's work and conduct into account. He did not make any objection in writing to the decision of the Bureau of 15 June 1953 which was communicated to him in writing, and it seems that he did not seriously attempt to obtain another posting. It is true that the said decision of the Bureau was to become effective only on the expiry of his contract, and admittedly it was in the first place for the administration to use the applicant to some advantage in another post following the aboliton of the post which he occupied. Therefore the wrongful act of the administration cannot be completely counterbalanced by the applicant's behaviour. But that behaviour must be looked at in this context. Above all, some significance must be attached to the fact that the applicant, who was a very well paid servant in a senior post, was willing, without serious efforts to change the situation, to spend at least eighteen months, as he himself has stated, without being able to work in a manner in accord with his rank and his abilities.
However, all these aspects of the question can do no more than act as pointers in fixing damages ex aequo et bono, and I admit that I have perhaps not mentioned them all. I will therefore refrain from giving an exact figure and I shall leave this point to the discretion of the Court.
VI — Costs
Finally, on the basis of my conclusions, I must adopt a position on the question of costs. In application of Article 60 (2) of the Rules of Procedure of the Court, and assuming that the Court agrees with my opinion, I consider it just to require the defendant to bear the whole or at least the greater part of the applicant's costs, should the latter succeed in his claim for a payment of four months' remuneration granted by the Bureau and should he succeed in convincing the Court that his claim for additional damages is well founded, despite the fact that he has no chance of obtaining the full amount claimed. In any event, I do not think that it would be just to require the applicant to bear a part of the fees of counsel for the defendant, because the latter was not required to be assisted and because, by reason of the nature of the dispute and of the risks concerning costs, which are risks of such a nature as to discourage any servant in an application of this kind, it would not be equitable to ascribe those fees to the applicant. It should be observed that this idea has also found expression in a legal provision: Article 61 (1) of the relatively recent German law on labour tribunals in effect denies the winning party in a labour dispute the right to reimbursement of the costs resulting from recourse to an agent or to counsel. In our procedure, this principle can be applied to the defendant, but not to the applicant, because under the provisions of Article 20 (2) of the Statute of the Court, the applicant was obliged to be assisted by a lawyer.
VII — Conclusions
In conclusion, I am of the opinion that:
1.
The applicant's claim for payment of a car allowance should be rejected;
2.
His claim for payment of four months' additional remuneration should be accepted;
3.
His claim for additional damages of such an amount as the Court shall consider fair should be accepted;
4.
The defendant should be ordered to bear the whole or the greater part of the costs.
(
1
)	Translated from the German.
(
2
)	P. 37 of the Official Publication, 1951, first part, Chapter 1, Section IV, paragraph 2A 1 a II.
(
3
)	Doc. 1685 of 28 March 1955. Art. 41 to 43.
(
4
)	Art. 82.
(
5
)	Benoit — Juris-classeur administratif, Volume IV, part 720, No 27 et seq.; Odent. p. 477 et seq.