61963C0068
OPINION OF MR ADVOCATE-GENERAL GAND
delivered on 17 March 1965
Mr President, Members of the Court,
Mr Hartmut Luhleich, a Doctor of natural sciences with a degree in chemistry, had been an assistant at the University of Cologne for four years when, alter a proposal from the Federal Ministry of Atomic Energy and after contacting Dr Ritter, he was employed at Ispra. He actually took up his appointment on 1 November 1960 and was classified in Grade A6, Step 2. You are aware of the manner in which his career developed. He was first posted to the Chemistry Department, then in January 1961 was transferred to the Physical Chemistry Department which was at that time under the authority of Monsieur Gillot, the interim Head of Department, but from 1 July 1961 was under the authority of Mr Marchetti. Following certain incidents with which I will deal later, he was transferred back to the Chemistry Department by a decision of which he was informed in writing on 6 December 1961, but of which his new Head of Department was only informed in February 1962. Since this date he participated in the work of a mixed group, the coordination of which is undertaken by Mr Hannaert, Head of the Organic Chemistry Department, and which deals with the physical constants of terphenyls. It might be supposed from these successive transfers that Mr Luhleich found no situation at Ispra which met his aspirations; this led to a number of approaches to his superiors and above all to an administrative complaint addressed through his advocates on 30 August 1962 to the Commission of Euratom. He complained of a failure to carry out the promises made to him before his appointment, that his classification at Ispra was unsuitable ‘for the head of an independent group’ and did not correspond to his experience and abilities. He alleges that his career prospects were impaired since he was unable to work normally on his special project. He requested a review of his position and compensation for the treatment he had suffered, which he considered to be unjust. In order to study this complaint, the institution established a committee of three members which prepared a report known as the ‘Consolo Report’, the conclusions of which, although communicated to you, appear to have produced no changes at an administrative level.
At this point the procedure which takes place .prior to integration was already in motion and the preparation of a report on the abilities of Mr Luhleich led to his lodging a further complaint on 25 October 1962. Discussion of the applicant's case before the Establishement Board was particularly wide and involved the hearing of a dozen witnesses: the Director-General for Research, the Director and Assistant Director of the institution and Heads of Sections or Departments. The applicant was heard for more than three hours. Finally, the Board issued an opinion unfavourable to his integration, following which the Commission of the EAEC decided on 20 March 1963 to terminate Mr Luhleich's contract which came to an end on 13 June 1963. Two applications for the suspension of the operation of this decision were dismissed by the Commission and by the President of the Court of Justice respectively. It was in these circumstances that on 13 June 1963 Mr Luhleich lodged an application the primary object of which is the annulment of the implied decision rejecting his administrative complaint of 30 August 1962 and the decision refusing his integration. He is requesting you to rule that he should be classified in Grade A3, or at least A4, from 1 January 1962. In addition, by reason of the wrongful acts or omissions on the part of the Community in the conclusion and performance of his contract, he is claiming damages which he assesses at 3 million Belgian francs for material damage suffered and at 7 million Belgian francs for non-material damage. Finally, in his reply, he requests that the defendant be ordered to pay him 25706 Belgian francs representing the weighting payable during the period before the entry into force of the Staff Regulations which was deducted from his compensation for dismissal and 1698 DM as reimbursement of personal expenses incurred by him at Ispra.
The inquiry into his application has been as long and as thorough as that undertaken in the case of Mr Prakash, since you have heard no less than ten witnesses, one of them on two occasions. Here also the written and oral procedures have enabled you to make a profound study of all the aspects of this case, some of which are extremely technical. Finally, the fact that the submissions of Mr Luhleich frequently follow those of Mr Prakash will enable me, by presenting my opinion in the same order, to pass more rapidly over certain submissions in order to concentrate on the particular features of the. applicant's position.
The application for annulment and the claim for damages with the annexed pecuniary claims are the two points which I shall consider in succession.
I — Refusal to integrate the applicant
In support of his conclusions Mr Luhleich relies, in the same order, on the three submissions which were also presented by Mr Prakash.
A —
First, and for the same reasons, he claims to have the right to security of employment, all the more so as he was authorized to move and take up his duties at Ispra and was appointed on the basis of his special knowledge, both of which facts show that the Commission intended his appointment to be lasting.
For the reasons I have already indicated, you must reject this submission on the grounds that Mr Luhleich cannot take advantage of any alleged security of employment so long as he was not integrated.
B —
Infringement of an essential procedural requirement —Under this heading Mr Luhleich lists widely differing complaints which concern procedural defects as much as the validity of the contested decision.
Here also you will have to dismiss the complaint based on the alleged infringement of Article 9 and 110 of the Staff Regulations which, do not apply to cases of integration or dismissal.
(1) As regards the procedure followed in the case, the submissions of the applicant closely resemble those of Application 65/63 on many points.
(a)
The personal file of the applicant was improperly compiled in that certain documents, such as the Consolo Report, did not appear therein whilst other unauthorized documents did so, and copies of certain letters exchanged concerning Mr Luhleich appeared therein without his knowledge whilst certain documents were only attached 24 hours before his hearing by the Commission. I do not consider the detailed statements put forward by the applicant to be convincing; in particular, the Consolo Report, prepared in answer to a ‘complaint which did not concern the integration procedure, should not in principle have appeared in the personal file; the administration placed certain documents, such as exchanges of internal memoranda, in this file in order that they might be taken into account by the Commission and that the applicant might (be aware of them’ before his hearing. Finally, it is not .disputed . that Mr Luhleich was aware of the entire contents of the file; on this point, therefore, there was no irregularity vitiating the procedure.
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The circumstances in which the probation report was prepared were irregular and its preparation -was belated. Although the applicant took up his appointment on 1 November 1960, the form was only filled in on 16 May 1962; this was done by Mr Laurent who had only been his Head of Department for two months and his former superiors were not requested to give their assessment of him; it was only submitted to him .for signature in September 1962 and then in January 1963. Although, as I have said, the probationary period has scarcely any justification or legal consequences in a contractual system, a delay which, in this case, appears excessive and unjustifiable is greatly to be regretted; in no way, however, does it influence the regularity of .the integration procedure which legally and factually is distinct from the procedure taking place at the end of the probationary period. In particular, the fact that Mr Guéron made the following comment on the probation report: ‘No change in the position existing before the entry into force of the Staff Regulations’, does not and cannot affect in any way the decision on integration which alone is at issue here.
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Without over-emphasizing it, the applicant points out that in his opinion the -preparation of the establishment report by Dr Ritter and Mr Guéron contravened Article 102, since these two were not his immediate superiors. However, the Article of the Staff Regulations to which he refers employs on such adjective. Moreover, he challenges the right of these two senior officials to make an assessment of his abilities, his experience and his work but this is a purely groundless statement on his part.
(b)
Moreover, it is possible to criticize the proceedings of the Establishment Board on the ground that they did not allow both sides to be heard? The fifteen pages of the minutes devoted to the case of Mr Luhleich do not give that impression.
No -document was available to the Board which had not been seen by the servant concerned; in particular, it did not see the ‘Gonsolo Report’ and, although in another capacity one of its members was aware of it, there is no evidence at all for the damaging allegation that this member had profited from it in order to ‘lead his questions and therefore their answers in a particular direction’. The applicant refers to the ‘extracts given in a schedule to the statement of defence’. If you will refer to these minutes you will see that they include no such document.
Luhleich complains that he was not allowed to confront his Heads of Department before the Board and did not receive the minutes of the meeting at which they were heard, but you have held that as regards integration neither of these formalities is obligatory. Al though Mr Hannaert gave evidence a second time after the applicant had made his comments, he merely confirmed his earlier statements without raising any new points; thus, the contentious nature of the procedure was not infringed. Although Mr Luhleich maintains that (he was not heard on the subject of his comments made in the statement annexed to the establishment report, this allegation is contradicted by the file. Page 14 of the minutes states: ‘He (Mr Luhleich) confirms, with comments, his written observations on -the report’.
Finally, the applicant does not hesitate to challenge the objectivity of the Board: he writes (reply, p. 33) ‘those persons heard were chosen judiciously; only those certain to make an unfavourable statement were heard; Mr Gillot was not called’. I will simply point out that, if nine of Mr Luhleich's superiors assessed him unfavourably, this cannot be in his favour and that, as Mr Gillot was acting as his counsel, he had every opportunity to inform the Board of his favourable opinion and of any information likely to support the position maintained by the servant whom he was assisting.
Finally we must consider the opinion of the Board, criticized by the applicant for its lack of detail. Again it is desirable to re-read the wording of this opinion which is drafted in the following terms:
‘The Board considers that the applicant's conduct, involving repeated claims to independence within the Centre and autonomy in research, has exhibited, in connexion with various opportunities afforded to him to put his abilities at the disposal of the institution, an inability to adapt himself to the obligations of the service and, hence, has seriously affected the efficiency which the institution is entitled to expect, of him, whatever may have been the inherent difficulties in setting up the Centre.’
(2)
Thus the Board makes two basic criticisms of Mr Luhleich: first, his claim to independence within the administrative structure which led to his refusal to (recognize the authority of his immediate superiors except that of Mr Gillot, his interim Head of Department; secondly, his claim to autonomy in research which led to his failure to accept the obligations inherent in the service of an establishment such as Ispra, both of which seriously affected the efficiency which the institution was entitled to expect of him and made him unsuited to the performance of his duties.
It is this value judgment, which is based on the establishment report and the oral observations of the Heads of Department concerned, which the applicant is contesting. However, it must be remembered here that, although you have to verify whether this judgment is based upon factual inaccuracies, you have no legal right to substitute your assessment of the merits — or the defects — of Mr Luhleich for that given by the Board.
(a)
That Mr Luhleich has never wished to recognize any authority other than that of the Director of the Establishment is a fact, or rather an assessment, which I find difficult to dispute in the light of the file and the evidence given both before the Establishment Board and during the oral procedure before you; this assessment is not based on any factual inaccuracy. It is not even surprising if it is remembered that the applicant has maintained, in particular in his complaint of 30 August 1962, that he had been promised direct attachment to the Directorate of the Establishment, an allegation which has been formally denied by Dr Ritter both ‘before you and the Board by his stating that it is’‘inconceivable that a small group of research workers should be directly attached to the Directorate’. He persisted in this attitude during the entire period of his employment at the Joint Research Centre. It will be sufficient for us, without reconsidering the very full statement made by the Agent of the Commission in his oral arguments, to note several significant factors. It is indisputable that from his appointment Mr Luhleich refused to work out his probationary period at Grenoble, as he was requested to do by Mr Laurent, because at that time no fully equipped laboratory existed at Ispra and because there he could familiarize himself with his new work.
This attitude manifested itself most of all when Mr Marchetti was Director of the Physical Chemistry Department; it resulted in the joint letter of 29 August 1961, of which the applicant declared before the Establishment Board that he ‘adhered to all the statements contained therein’. Following the long discussions of this document which have taken place before you, I need not emphasize this point. I shall simply make the following observation: the applicant cannot seriously claim that at that period he was unaware that Mr Marchetti was his Head of Department (the letter states, moreover, that the addressee did not appear competent to direct a university-trained group)—and it was this Head of Department who was invited by his colleagues to consider the immediate possibility of finding other ‘openings’. This is undoubtedly a refusal to recognize the authority of the administration which, even if expressed confidentially, is contrary to the principles governing any public body. It is unimportant that signature of this letter has not prevented the integration of certain of those involved, or that the applicant did not instigate this approach to Mr Marchetti, since the letter indicates the state of mind for which he is criticized. It is also unimportant that Mr Marchetti — and here I think that he was wrong — did not react immediately, since this letter is the outward manifestation of a tendency which ought to have lead the Directorate of the Establishment to break up what it referred to as a ‘resistance group’. You will also remember the testimony of Mr Hannaert, the applicant's last Head of Department, who, as Dr Ritter has told you, was more flexible in his attitudes than Mr Marchetti. According to his evidence, ‘Mr Luhleich never desired the respect of the administration and never accepted supervisory authority, whether of the Head of the Joint Group or of the Department to which he was attached’.
You will find that the same ‘criticism of the applicant was made before the Establishment Board by Professor Lindner and Mr Mercereau’ and that it was repeated before you by the latter. Even if, as one witness has stated, the applicant's attitude could have been justified at the beginning by certain ‘misunderstandings’ —an allegation which is, moreover, specifically contested by the defendant institution — it is clear that his attitude did not change and undoubtedly represents a refusal to recognize the administration. I consider it unnecessary to bring further evidence on this point.
(b)
The Establishment Board also criticized Mr Luhleich's ‘tendency towards autonomy in his work’. Like the earlier one this assessment is considered by the applicant in his application to be ‘rather a compliment as regards an experimental scientist’ than a ground of complaint. This reaction is curious and significant in that it appears to misunderstand the task of an establishment such as the Ispra Centre, the aim of which is the realization of a programme based on the needs of the Community. Implementation of this programme implies certain obligations on the part of the research workers, namely that their work should fall within the more general framework determined by the authorities of the Commission and that they carry out research which is considered necessary to the programme or is at least compatible with it rather than research which they find interesting. That the superiors concerned consider the abilities — and even the wishes — of each research worker in determining the tasks to be entrusted to him is a condition both of the efficient performance of the work and the spirit of cooperation within the establishment, but this does not imply that each research worker is free to determine the area of his research, his preserve, at the risk of duplicating work or of compromising the realization of the general programme. Thus, any criticisms made of the applicant's desire for independence in his research work are not made for their own sake but because of the effect of this desire on his efficiency as regards that programme.
Having made these general observations, I come to an extremely technical area in which the Court risks going astray if, instead of remaining in the field of law, it attempts to meet the scientists on their own ground. The Establishment Board, criticized by the applicant on the ground that it was not composed of specialists, devoted at least as much time to the intended programme and research work as to problems of discipline. Nor will you have forgotten the hearings of witnesses at which equally qualified specialists discussed, without always being able to agree, the usefulness or otherwise of the chromatograph, or whether from a scientific point of view there is a basic difference between the concepts of ‘analysis’ and ‘control’. I freely admit that I did not always grasp the full significance of their observations.
However, I repeat that it is not for you to recast the work of the Establishment Board; your task is merely to verify that the assessment made by the Board after reading the file and hearing the evidence of witnesses is not based on an error of fact. Its opinion is drawn up in general terms and mentions no specific facts; a reading of the minutes shows, however, that various Heads of Department considered either that during the initial period the applicant gave them no assistance (the opinion of Mr Laurent), or that his experience in the field of fractional distillation was even less suited to the activity of the Physical Chemistry Group, since he exhibited a distrustful attitude (opinion of Mr Marchetti), or, finally, as regards 1962, that he showed indifference to the performance of work entrusted to him for the measuring of the physical constants of terphenyls because he preferred to pursue work in the field of distillation; it was on this Occasion that a chromatograph entrusted to him to test the purity of certain products had been misued to develop methods of analysis already in use in an adjoining laboratory (opinion of Mr Hannaert). According to the Director-General for Research, this indifference made it necessary for Euratom to enter into an outside contract, thus incurring additional expenses of 20000 units of account.
I shall not take up all these points. I shall merely say that the applicant, assigned first to the Chemistry Department, was unsuccessfully requested by Mr Laurent to make suggestions for the programme as regards this section; he made no reply. At the same time, however, he participated in the preparation of the Initial Work Programme within the context of the Physical Chemistry Department. According to the defendant institution, this programme involved several research subjects covered by the Chemistry Department, which explains why the necessary credits were refused to him. The correspondence which passed at this period between the applicant and Mr Laurent while the applicant was undertaking a more or less properly authorized journey indicates his tendency to want to choose his own mission. On 9 January 1961 he wrote ‘our proposals, aimed at finding a field of work within this framework (that of the Chemistry Department), always failed either because the post in question was already taken or because there was no provision for the Chemistry Group to carry out the work which we proposed'’; this was the reason for which he intended to transfer to the Physical Chemistry Group. And eight days later he is writing again: ‘The programme which we have submitted to the Physical Chemistry Group is completely in accordance with our wishes and includes a type of activity which we would like to initiate at Ispra’.
The same tendency is seen in 1962 when the Orgel project required precise data on the physical constants of organic fluids (terphenyls) used in die reactor as cooling agents and heat conductors. At a meeting in Brussels on 16 January the names of Mr Luhleich and his colleague Mr Kuhlboersch were mentioned. Directives were given almost immediately in two notes of 25 January that they should measure five physical constants and develop practical methods of removing certain impurities from fluids; the priorities of the programme were laid down at a meeting on 28 February and it was agreed that during the first stage only those properties of immediate interest to the project should be studied. A joint group was set up, directed by Mr Hannaert and including Mr Luhleich. It is clear from notes drafted by the applicant himself following various discussions that he showed a certain unwillingness in performing tasks which he considered purely routine. When it was insisted that he carry out this work, his reply was: ‘I suggest that other work be ultimately considered’. When reminded that the measuring of constants took priority over fractional distillation, his special subject, he replied again: ‘I will state clearly that I shall continue with my own work, since I did not come to Euratom in order to carry out solely routine work with existing equipment already developed by others’. In order to pacify him, Mr Hannaert allowed him to include in his programme the determination of the constant liquid-gas equilibrium which, although not a priority in the Orgel programme, was of interest to him and actually appeared in the Initial Work Programme of 11 January 1961. These facts are not disputed and support the assessment made by the Board.
On the other hand, one fact has given rise to more controversy, that is, the use of a chromatograph for purposes not included in the programme, which led to the performance of part of the work outside the Research Centre. Although Mr Luhleich devotes only a few lines of his application to this point, the discussion during the oral procedure was so wide that it threatened to absorb every aspect of the case. Let me try to understand the incident and replace it in the general context of the applicant's employment.
A note of 11 July 1962 from Mr Hannaert addressed to Mr Luhleich (and to him alone) put at his disposal for an indeterminate period a chromatograph purchased from Orgel credits and allocated to the Organic Chemistry Department for the group dealing with organic analyses. It was specified that ‘as agreed’ this apparatus would only be used by Mr Luhleich and his group in order to check the purity of polyphenyls obtained by distillation, the physical constants of which were to be measured by the applicant. Thus, according to the defendant, the purpose of the apparatus was to test whether, after distillation, the polyphenyls were purer than before, in other words, whether the distillation technique was efficient. However, as we know, Mr Luhleich was essentially interested in fractional distillation; he is criticized, on the basis of quarterly report No 3 of 12 October 1962, for having used the apparatus to develop methods of analysis which were outside the programme; this report contained the following phrase: ‘A high-temperature gaseous-phase chromatograph or aerograph intended for the analysis of samples of polyphenyls has been delivered. Experiments are being carried out in order to select the most appropriate fractionating material’.
This report, which concerns the activities of the three responsible specialists, Messrs Luhleich, Kuhlboersch and Van Almkerk, was signed only by the last two as the applicant was absent at the time; it was drafted by Mr Kuhlboersch, who, at ‘his hearing before you, described as absurd the phrase which had slipped inadvertently into the report concerning the selection of fractionating material. He considered that, as the following quarterly report showed that the recording apparatus was not working, this report should have spoken of an attempt to put the chromotograph in working order’.
Be that as it may, Mr Van der Venne and Mr Hannaert, considering that this report was evidence of misuse of the apparatus, communicated it to the Director of the Orgel project and, since the joint group was not in a position to carry out its tasks, proposed that new methods should be developed in 1963 by means of outside contracts, a solution which was accepted by the Director-General for Research. Several months later, the use of the chromatograph was withdrawn from Luhleich and his group.
You will remember the different positions adopted by the witnesses on whether or not the chromatograph was actually misused, on whether or not it was in working order and on whether or not it had been adapted for another purpose. I must confess that I cannot answer all these points with certainty; I must therefore return to the field of law. We are concerned with a problem of evidence; the material inaccuracy of the allegation of fact on which the opinion of the Establishment Board is based has not been proved and this is sufficient to justify the opinion. This, however, settles only part of the question. Can the misuse be imputed to Luhleich when it seems clear that the apparatus was in fact used by Van Almkerk and when the report of 12 October 1962 was not signed by the applicant? The applicant can only be made responsible for the alleged misuse if he was at least actually or virtually, if not legally, in charge of the group. For although, as is shown by the report of 12 October, there really was a group made up of these three specialists, it appears that no formal decision was ever taken by his superiors giving him responsibility for it. However, there appears to be no doubt that he was in fact the head of the group even if we only consider the memoranda which he himself brought forward in evidence; moreover, it should be remembered that the application instituting the proceedings is presented in the name of Mr Luhleich, ‘head of group in the Chemistry Department’. Throughout the whole of 1962 he alone took part in the discussions with the Heads of Department concerning the work on the physical constants of organic fluids. In April 1962 he alone presented a budget application, just as it was he who, over a long period, requested that he be supplied with a chromatograph. In particular, the note from Mr Hannaert of 11 July 1962 laying down conditions for the use of the apparatus was addressed to Mr Luhleich alone, even if it was also intended to apply to his group. It was therefore the applicant's duty to ensure that the chromatograph was used according to the instructions received and it is unlikely that Mr Van Almkerk could have disobeyed the instructions without his knowledge. His superiors were therefore justified in holding him responsible for an incident the inaccuracy of which he has been unable to establish.
I shall add that, although the chromatograph incident is revealing, it is not the whole of the matter; it constitutes only one manifestation of the independent attitude shown generally by the applicant towards his research work. Therefore I consider the opinion of the Establishment Board to be justified and that the complaint against it must be set aside.
C —
Misuse of powers —Under this heading Mr Luhleich recapitulates certain facts already set out in order to show that there had been intentional and systematic attempts to paralyse his scientific activities as a research worker, either by preventing fulfilment of the promises that he should work directly under the authority of the Director-General or by transferring him in November 1961 to the Chemistry Department, instead of constituting with the other signatories of the letter an autonomous group not subject to the authority of Mr Marchetti and thus excluding the applicant from the ‘fouling’ programme in which he had collaborated, or finally — and he emphasizes this point — by systematically depriving him of credits. General responsibility for all this could, be imputed to the ‘unflagging’ animosity shown towards him by the Director-General for Research. However, as I have said, the promises made to the applicant have in no way been fulfilled. His transfer in November 1961 was justified in the interests of the department. As to his complaint about lack of funds, the Commission disputes the applicant's allegations and replies that it is not obliged to grant financial resources for personal research work which is not part of the agreed programme. Since the above really only amounts to supposition, it cannot constitute misuse of powers.
As regards the dismissal, it is alleged that it was decided upon in order to avoid the need for the Commission of the EAEC to reply to the applicant's administrative complaint of 30 August 1962. The applicant sees evidence of this in the fact that Mr Gillot was integrated although the assessment made of him in his establishment report was even more unfavourable than that of the applicant; in fact this merely indicated that — contrary to a common allegation — the Establishment Board did not blindly confirm the reports submitted to it. I shall merely say that I see no reason why the nine members of this Board who, in the last analysis, were responsible for his dismissal, should have had feelings of animosity towards him.
For these reasons I consider that the decision dismissing Mr Luhleich cannot be annulled on the basis of any of the complaints made.
As you know, on 30 August 1962 Mr Luhleich had lodged an administrative complaint, the aim of which was his appointment to the position of Head of Department, his reclassification and the grant of larger financial resources. This complaint led to the preparation of the Consolo Report but, despite this, the Commission of the EAEC, with the apparent agreement of the applicant, postponed a decision on his complaint until the end of the integration procedure. Mr Luhleich joins his conclusions against the dismissal with his conclusions against the implied rejection of his administrative complaint. The question arises whether the latter remain relevant if, as I have suggested, you dismiss the application against the dismissal. Once finally dismissed from Euratom, Mr Luhleich is no longer entitled to the benefits of employment which he is claiming. Moreover, although the complaints referred to in his complaint through official channels appear again in the application to support his criticism of the decision refusing him integration, his claims that the implied rejection Of his complaint be annulled are not directly supported by any submissions. Thus I can only suggest that you dismiss them.
II — Claim for damages
The applicant has claimed damages of three million Belgian francs for the material damage which he has suffered and seven million Belgian francs for the non-material damage.
To the extent that these conclusions are submitted ‘whatever the outcome of the application for reversal’, they conflict— if you dismiss the conclusions against the refusal to integrate the applicant — with the case-law in the Plaumann and Leroy cases.
However, the applicant's conclusions are based not only on the wrongful acts or omissions on the part of the Commission in the conclusion, performance and termination of the contract but also on its conduct after this termination.
Let me say at once that I do not consider his submissions to be justified.
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On the first point, there is no evidence for the statement that the applicant could believe that, in spite of the termination clause contained therein, his contract ensured security of employment and automatic integration on the introduction of the Staff Regulations.
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On the second point, Mr Luhleich refers both to the lack of organization at the Ispra Centre, which seriously affected his activities as a scientist, and the alterations made to the programmes. However, measures concerning departmental organization may not be criticized or give any right to reparation unless they adversely affect the rights held by servants under the Staff Regulations or under other provisions governing their position. He complains of discrimination against servants of German nationality in the determination of salaries; an agreement made with the Federal Republic had forbidden their receiving remuneration exceeding by more than 20 % that paid in their own country. Of course, Euratom formally contests the existence of such agreements and replies that the remuneration received by Mr Luhleich at Ispra was 55 % higher than his former salary.
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As regards the termination of the contract, this was notified to the applicant by the Director-General of Administration and not by the appointing authority, as powers had been delegated to that official for this purpose. Moreover, as I have already said, it was not for the Staff Committee to intervene, in this termination. Although the Commission had the right under Article 102 to establish the applicant in a lower grade the fact that it did not use this power cannot constitute a wrongful act or omission. In addition, Mr Luhleich objects that the period of notice given to him was insufficient. On this point I can only refer to my opinion in Joined Cases 19 and 65/63.
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Finally, the applicant maintains that after his dismissal took effect personal and damaging attacks had been made against him at a press conference, by letter and by statement to a journalist from German television. Let me. say without going into further detail that a consultation of the file shows these ‘attacks’ to have been merely a question of allegations or misunderstandings over the scope of these administrative measures, which in no way constitute wrongrful acts or omissions.
There remain two subsidiary financial claims:
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The first deals with the repayment of 25706Belgian francs which the applicant claims was wrongly deducted from his compensation for dismissal. This sum represents the weighting which he received and to which, he says he was entitled, as a contractual servant. This argument appears, to be incorrect since the grant of/this, weighting results from an application of Article 64 of the Staff Regulations and only applies to established servants. Although this advance was paid to Mr Luhleich, he was warned that it in no way affected the outcome of the integration procedure and could be recovered. This is in fact what happened.
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The second claim: refers to the payment of 1698 DM by way of reimbursement for .personal expenses incurred, by the applicant during his employment at Ispra.
The explanations; given at the hearing by the Agent of the Commission show that these, sums had been used to purchase equipment, and that Mr Luhleich had been repaid in kind by being allowed to remove it. If I have correctly understood the reply given by counsel for the applicant the conclusions on this point must be regarded as withdrawn.
I am therefore of the opinion that
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Application 68/63 should be dismissed;
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in accordance with Article 70 of the Rules of Procedure both parties should bear their own costs.