Judgment of the Court (First Chamber) of 8 July 1965. - Satya Prakash v Commission of the EAEC. - Joined cases 19-63 and 65-63.



European Court reports

French edition Page 00677

Dutch edition Page 00586

German edition Page 00718

Italian edition Page 00616

English special edition Page 00533

Danish special edition Page 00101

Greek special edition Page 00137

Portuguese special edition Page 00171



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . WRITTEN PROCEDURE - PLEADINGS - REFERENCE BY THE PARTIES TO PLEADINGS ENTERED BY PARTIES IN ANOTHER CASE - INADMISSIBILITY

2 . OFFICIALS - STAFF REGULATIONS - GENERAL PROVISIONS FOR GIVING EFFECT THERETO - DUTY TO ADOPT SUCH PROVISIONS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND ECSC, ARTICLE 110 )

3 . OFFICIALS - INTEGRATION - INTEGRATION PROCEDURE - PROVISIONS RELATING THERETO - SUFFICIENCY OF SUCH PROVISIONS

4 . OFFICIALS - INTEGRATION - INTEGRATION PROCEDURE - CONFRONTATION OF THE SERVANT CONCERNED WITH HIS IMMEDIATE SUPERIORS NOT ESSENTIAL AS A GENERAL RULE - DUTY TO HAVE SUCH A CONFRONTATION TO CLARIFY FACTS IN DISPUTE

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLE 102 )

5 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - REVIEW BY THE COURT - OBJECT AND LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND ECSC, ARTICLES 91 AND 102 )

6 . OFFICIALS - WRONGFUL ACT OR OMISSION ON THE PART OF THE ADMINISTRATION - NON-MATERIAL DAMAGE RESULTING FROM A LAWFUL MEASURE - IMPOSSIBILITY IN PRINCIPLE - EXCEPTION IN CASES OF SUPERFLUOUS CRITICISM

Summary

1 . A REFERENCE BY THE PARTIES TO PLEADINGS ENTERED BY PARTIES IN ANOTHER CASE IS NOT ADMISSIBLE .

2 . CF . PARA . 4(A ), SUMMARY, CASE 16/64, ( 1965 ) ECR 135 .

THE EXPRESSION 'THE GENERAL PROVISIONS FOR GIVING EFFECT TO THESE STAFF REGULATIONS' APPEARING IN ARTICLE 110 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND THE EAEC REFERS IN THE FIRST INSTANCE TO THE PROVISIONS WHICH EACH INSTITUTION IS OBLIGED TO MAKE IN EXECUTION OF CERTAIN MANDATORY PROVISIONS OF THE REGULATIONS, SUCH AS THE FIRST PARAGRAPH OF ARTICLE 2, AND THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 4 ).

IN THE ABSENCE OF SUCH RULES THE OBLIGATION TO ADOPT 'GENERAL PROVISIONS FOR GIVING EFFECT' TO THE STAFF REGULATIONS CAN BE RECOGNIZED ONLY IN THE CASES IN WHICH THE PROVISIONS OF THE REGULATIONS ARE NOT SUFFICIENTLY EXPLICIT BY THEMSELVES .

*/ 664J0016 /*.

3 . CF . PARA . 6, SUMMARY, CASE 87/63, ( 1964 ) ECR 469 .

ARTICLE 102 OF THE STAFF REGULATIONS IS ONLY A TRANSITIONAL PROVISION OF THOSE REGULATIONS AND CONSEQUENTLY DOES NOT REQUIRE ANY GENERAL PROVISION FOR GIVING EFFECT THERETO WITHIN THE MEANING OF ARTICLE 110 OF THE SAID REGULATIONS .

*/ 663J0087 /*.

4 . THE ESTABLISHMENT BOARD IS NOT OBLIGED TO ARRANGE FOR A CONFRONTATION BETWEEN AN OFFICIAL WHOSE CASE IT IS CONSIDERING AND HIS SUPERIORS, EXCEPT IF IT IS CLEAR THAT THE ABSENCE OF SUCH A MEETING WOULD MAKE IT IMPOSSIBLE TO CLARIFY THE FACTS IN DISPUTE .

CF . PARA . 3, SUMMARY, CASE 87/63, ( 1964 ) ECR 925 .

5 . THE ASSESSMENTS OF THE ESTABLISHMENT BOARD CONSTITUTE A GENERAL VALUE-JUDGMENT, FOR WHICH THE COURT CANNOT SUBSTITUTE ITS OWN ASSESSMENT . ON THE OTHER HAND IT IS FOR THE COURT TO CHECK WHETHER THE FACTS TAKEN INTO ACCOUNT BY THE ESTABLISHMENT BOARD ARE MATERIALLY ACCURATE AND LOGICALLY COMPATIBLE WITH THAT JUDGMENT .

CF . PARA . 3, SUMMARY, JOINED CASES 35/62 AND 16/63 ( 1963 ) ECR 197 .

6 . CF . PARA . 4, SUMMARY, JOINED CASES 35/62 AND 16/63, ( 1963 ) ECR 197 .

A MEASURE WHICH HAS NOT BEEN SHOWN TO BE UNLAWFUL CANNOT CONSTITUTE A WRONGFUL ACT OR OMISSION AND THUS UNLAWFULLY PREJUDICE THE HONOUR AND REPUTATION OF THE PERSON TO WHOM IT REFERS, UNLESS IT CONTAINS SUPERFLUOUS CRITICISMS OF THAT PERSON .

*/ 662J0035 /*.

Parties

IN JOINED CASES 19 AND 65/63

SATYA PRAKASH, DOCTOR OF NATURAL SCIENCES, MASTER OF SCIENCE, RESIDING AT 7A VIA ITALIA, CARDANA DI BESOZZO ( ITALY ), ASSISTED BY ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE ABOVEMENTIONED ADVOCATE, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY ( EURATOM ), BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, JAN GIJSSELS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION :

- IN CASE 19/63 : FOR THE REVERSAL OF THE REFUSAL TO REIMBURSE REMOVAL EXPENSES AND TO PAY THE INSTALLATION ALLOWANCE;

- IN CASE 65/63 : FOR THE REVERSAL OR, ALTERNATIVELY, THE ANNULMENT OF THE DECISION AGAINST INTEGRATION, AND THE PAYMENT OF DAMAGES,

Grounds

P.545

I - AS TO CASE 19/63

THE APPLICANT CONTESTS A SERIES OF MEASURES EXPRESS OR IMPLIED, EMANATING EITHER FROM THE AUTHORITIES AT THE ISPRA CENTRE OR FROM THE ADMINISTRATION AT THE EURATOM HEADQUARTERS, ENTAILING A REFUSAL TO REIMBURSE HIS REMOVAL EXPENSES AND TO PAY HIM THE INSTALLATION ALLOWANCE .

ON 18 APRIL 1963, AFTER THE COMMENCEMENT OF THE PRESENT APPLICATION, THE COMMISSION ITSELF TOOK AN EXPRESS DECISION TO THAT EFFECT .

THE APPLICANT HAS CONTESTED THIS DECISION UNDER THE FIFTH HEAD OF HIS CONCLUSIONS IN CASE 65/63 . THE DEFENDANT, IN ITS STATEMENT OF DEFENCE IN CASE 65/63, STATED THAT IT DID NOT CHALLENGE THE ADMISSIBILITY OF THE SAID HEAD, AND THERE IS NO REASON FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

FURTHERMORE, THE DECISION OF 18 APRIL 1963 MARKED THE END OF THE ADMINISTRATIVE PROCEDURE AND THEREFORE CONSTITUTES IN EFFECT THE ACT ADVERSELY AFFECTING THE APPLICANT . IN THESE CIRCUMSTANCES APPLICATION 19/63 HAS BECOME POINTLESS .

P.546

II - AS TO APPLICATION 65/63

BASICALLY, THE APPLICANT REQUESTS THE FOLLOWING RELIEF :

- THE REVERSAL, OR AT LEAST THE ANNULMENT, OF THE DEFENDANT'S DECISION OF 20 MARCH 1963, TERMINATING HIS CONTRACT AND REFUSING TO INTEGRATE HIM, TOGETHER WITH THE IMPLIED DECISIONS REJECTING THE APPLICANT'S CLAIMS AGAINST CERTAIN ACTIONS TAKEN BY HIS HEAD OF DEPARTMENT, MR MARCHETTI, NAMELY, THE REPORT AT THE END OF THE PROBATIONARY PERIOD, THE ESTABLISHMENT REPORT AND THE ORDER GIVEN TO THE APPLICANT ON 16 JANUARY 1963 TO TRANSFER HIS LABORATORY EQUIPMENT TO ANOTHER RESEARCH WORKER;

- A DECLARATION BY THE COURT THAT HE SHOULD BE APPOINTED AS AN OFFICIAL IN GRADE A/4;

- AN ORDER THAT THE DEFENDANT PAY TO HIM DAMAGES BOTH BECAUSE OF THE ILLEGALITY OF THE SAID DECISIONS AND ALSO ' AS AN INDEPENDANT MATTER QUITE APART FROM THE LEGALITY ' OF THE DECISION NOT TO INTEGRATE HIM;

- THE REVERSAL OF THE DEFENDANT'S DECISION OF 18 APRIL 1963 REFUSING TO REIMBURSE THE APPLICANT'S REMOVAL EXPENSES FROM HIS PLACE OF ORIGIN TO THE PLACE WHERE HE WAS EMPLOYED, AND TO GRANT HIM THE INSTALLATION ALLOWANCE;

- AN ORDER FOR THE DEFENDANT TO PAY TO THE APPLICANT THE SUM OF BF 23 428 BY WAY OF COST OF LIVING ALLOWANCE;

- A DECLARATION BY THE COURT THAT THE DEFENDANT MUST ASSUME RESPONSIBILITY FOR THE EXPENSES OF THE APPLICANT'S REMOVAL FROM THE PLACE WHERE HE WAS EMPLOYED TO HIS PLACE OF ORIGIN .

1 . AS TO THE ADMISSIBILITY OF THE APPLICATION AND OF CERTAIN PLEADINGS

( A ) THE ADMISSIBILITY OF THE APPLICATION AS SUCH IS NOT CHALLENGED AND THERE IS NO REASON FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

( B ) HOWEVER, THE PARTIES TO THE PRESENT DISPUTE HAVE, ON OCCASIONS, REFERRED TO THE RESPECTIVE PLEADINGS OF THE PARTIES IN ANOTHER CASE, REGISTERED UNDER THE NUMBER 68/63 .

TO CONDUCT A CASE IN THIS WAY MAKES IT IMPOSSIBLE FOR THE COURT TO CHECK THE EXACT CONTENT AND SIGNIFICANCE OF THE SUBMISSIONS AND ARGUMENTS PUT FORWARD ON EACH SIDE . THEREFORE ONLY THE SUBMISSIONS AND ARGUMENTS WHICH DO NOT CONTAIN SUCH REFERENCES MAY BE TAKEN INTO CONSIDERATION .

P.547

( C ) THE APPLICANT REQUESTS THAT THE FILE OF CORRESPONDENCE EXCHANGED BETWEEN HIS FORMER EMPLOYER AND HIS HEAD OF DEPARTMENT AT ISPRA BE WITHDRAWN . THIS FILE WAS PRODUCED BY THE DEFENDANT IN ORDER TO DEMONSTRATE THE CORRECTNESS OF ITS ASSESSMENT OF THE APPLICANT .

THE APPLICANT ALSO REQUESTS THAT THE PASSAGES IN THE DEFENDANT'S STATEMENT OF DEFENCE RELATING TO THE SAID CORRESPONDENCE BE STRUCT OUT . FINALLY, HE ASKS THE COURT TO FIND THAT THE COPY OF THE LETTER ADDRESSED BY HIS HEAD OF DEPARTMENT TO HIS FORMER EMPLOYER, AND PRODUCED BY THE DEFENDANT, IS NOT IN CONFORMITY WITH THE ORIGINAL .

THE OTHER DOCUMENTS ON THE FILE ARE SUFFICIENT FOR A JUDGMENT TO BE GIVEN IN THIS CASE AS WILL APPEAR FROM THE GROUNDS HEREINAFTER SET OUT . IN THESE CIRCUMSTANCES, THE APPLICANT'S REQUEST IS WITHOUT OBJECT .

( D ) THE DEFENDANT CONTENDS THAT THE COURT SHOULD ORDER THE EXCLUSION FROM THE ORAL PROCEEDINGS OF CERTAIN PAPERS DESCRIBED BY THE APPLICANT AS ' GEDAECHTNISPROTOKOLLE ' (' NOTES FOR REFRESHING THE MEMORY '), AND TAKING THE FORM OF NOTES WHICH THE APPLICANT HAD DRAFTED AT THE TIME FOR HIS OWN PERSONAL USE . THE APPLICANT HAS STATED THAT HE DOES NOT INTEND TO TREAT THESE NOTES, WHICH WERE DRAFTED BY HIMSELF ALONE, AS EVIDENCE . IN THESE CIRCUMSTANCES, THERE IS NOTHING TO PREVENT THE PRODUCTION OF THE NOTES BY WAY OF FACTUAL ARGUMENT, SUBJECT TO THE COURT'S EXAMINATION IN THE SAME WAY AS ANY OTHER ARGUMENT PUT FORWARD BY A PARTY .

IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE APPLICATION IS ADMISSIBLE, SUBJECT TO THE RESERVATIONS INDICATED ABOVE .

2 . AS TO THE SUBSTANCE OF THE CASE

A - NON-INTEGRATION AND DISMISSAL

( A ) THE FIRST SUBMISSION

THE APPLICANT POINTS OUT THAT HE HAD A PERMANENT POST, AND HELD A CONTRACT FOR AN INDEFINITE PERIOD, AND THAT HE WAS THEREFORE ' ENTITLED TO SECURITY OF EMPLOYMENT '. HE ARGUES THAT THE DEFENDANT VIOLATED THE PRINCIPLE OF GOOD FAITH BY DISMISSING HIM ' IN AN ABRUPT AND IMPROPER MANNER ' WHEN IT HAD BEEN ' EXPRESSLY EMPHASIZED ' THAT THE CLAUSE IN HIS CONTRACT OF EMPLOYMENT ALLOWING FOR ITS TERMINATION AT SHORT NOTICE ' ONLY HAD THE FORCE OF A MERE STOCK PHRASE '.

P.548

THE APPLICANT'S ARGUMENT WOULD RESULT IN DESTROYING THE WHOLE LEGAL EFFECT OF THE CLEAR AND PRECISE TERMS OF A CONTRACT ACCEPTED UNCONDITIONALLY BY THE PARTY TO WHOM IT WAS OFFERED . WHATEVER THE PROSPECTS HELD OUT BY CERTAIN PERSONS, THE APPLICANT SHOULD HAVE UNDERSTOOD AT THE OUTSET THAT HIS DE FACTO SECURITY OF EMPLOYMENT WAS SUBJECT IN LAW TO THE CONDITION THAT HIS WORK SHOULD BE SATISFACTORY . FAILING THAT, ARTICLE 102 OF THE STAFF REGULATIONS ENABLED THE COMMUNITIES TO PUT AN END TO HIS EMPLOYMENT .

IT FOLLOWS THAT THE DEFENDANT'S RIGHT TO DISMISS THE APPLICANT WAS ESSENTIALLY DEPENDENT ON WHETHER THE OPINION OF THE ESTABLISHMENT BOARD WAS PROPERLY FORMED, A QUESTION WHICH WILL BE EXAMINED IN CONNEXION WITH THE SECOND SUBMISSION . THE PRESENT SUBMISSION IS THEREFORE UNFOUNDED .

( B ) THE SECOND SUBMISSION

1 . THE APPLICANT ASSERTS THAT THE DEFENDANT INFRINGED ARTICLE 110 OF THE STAFF REGULATIONS BY FAILING TO HOLD CONSULTATIONS WITH THE STAFF COMMITTEE AND THE STAFF REGULATIONS COMMITTEE BEFORE DRAWING UP THE RULES APPLICABLE TO THE PROBATION AND INTEGRATION PROCEDURES .

THE PROCEDURE FOR THE PROBATIONARY PERIOD APPLIED TO THE APPLICANT MUST BE CONSIDERED IN THE CONTEXT OF THE CONTRACTUAL CONDITIONS FOR SERVANTS EXISTING BEFORE THE STAFF REGULATIONS CAME INTO FORCE . THEREFORE THE ABOVEMENTIONED ARTICLE 110 CANNOT APPLY TO THAT PROCEDURE .

AS REGARDS THE INTEGRATION PROCEDURE THE PHRASE ' GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS ' APPEARING IN ARTICLE 110 REFERS, FIRST OF ALL, TO THE PROVISIONS WHICH EACH INSTITUTION MUST ADOPT IN ORDER TO GIVE EFFECT TO CERTAIN MANDATORY PROVISIONS IN THE STAFF REGULATIONS, SUCH AS THE FIRST PARAGRAPH OF ARTICLE 2 AND THE SECOND SUBPARAGRAPH OF ARTICLE 5(4 ).

APART FROM SUCH RULES, THE OBLIGATION TO ADOPT ' GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS ' CAN ONLY BE RECOGNIZED WHERE THE PROVISIONS OF THE STAFF REGULATIONS ARE NOT BY THEMSELVES SUFFICIENTLY CLEAR .

NONE OF THE PROVISIONS IN THE STAFF REGULATIONS CONCERNING THE INTEGRATION PROCEDURE IMPOSES AN OBLIGATION ON THE INSTITUTIONS TO ADOPT GENERAL PROVISIONS FOR GIVING EFFECT TO THE REGULATIONS . MOREOVER, THOSE PROVISIONS ARE SUFFICIENTLY PRECISE TO BE APPLIED CONSISTENTLY EVEN IN THE ABSENCE OF FORMAL PROVISIONS FOR GIVING EFFECT TO THEM . IN THESE CIRCUMSTANCES, THE RULES OF PROCEDURE WHICH WERE IN FACT ADOPTED BY THE DEFENDANT WITH REGARD TO THE INTEGRATION WERE NOT SUBJECT TO THE FORMALITIES LAID DOWN BY ARTICLE 110 OF THE STAFF REGULATIONS .

P.549

IT FOLLOWS FROM THE FOREGOING THAT THIS GROUND OF COMPLAINT MUST BE DISMISSED .

2 . THE APPLICANT CRITICIZES THE FACT THAT THE ESTABLISHMENT BOARD DID NOT CONFRONT HIM WITH HIS SUPERIORS WHO HAD PASSED UNFAVOURABLE JUDGMENTS ON HIM, BOTH IN THE ESTABLISHMENT REPORT AND ALSO BEFORE THE ESTABLISHMENT BOARD .

IN INTEGRATION CASES, THERE IS NO PROVISION REQUIRING THE PARTIES TO BE CONFRONTED WITH EACH OTHER . SUCH AN OBLIGATION COULD ONLY BE RECOGNIZED IF IT WERE CLEAR THAT THE ABSENCE OF SUCH A MEETING WOULD MAKE IT IMPOSSIBLE FOR THE ESTABLISHMENT BOARD TO CLARIFY THE FACTS IN DISPUTE TO AN EXTENT SUFFICIENT IN LAW . THIS DOES NOT APPLY IN THE PRESENT CASE, AS WILL BE SEEN FROM THE CONSIDERATIONS DISCUSSED BELOW ( PARAGRAPH 10 ). THIS GROUND OF COMPLAINT IS THEREFORE UNFOUNDED .

3 . THE APPLICANT ASSERTS THAT THE ESTABLISHMENT BOARD FAILED TO SHOW HIM THE MINUTES OF THE EVIDENCE GIVEN BY HIS SUPERIORS .

IT EMERGES FROM THE PLEADINGS THAT THE ESTABLISHMENT BOARD INFORMED THE APPLICANT ORALLY OF THE COMMENTS MADE ABOUT HIM BY THE SUPERIORS IN QUESTION . THE APPLICANT HIMSELF ASSERTS THAT HE SUCCEEDED IN ' REFUTING ' ALL THE COMPLAINTS MADE AGAINST HIM BY THOSE OFFICIALS . SINCE THE APPLICANT WAS ABLE TO PRESENT HIS DEFENCE TO THE EXTENT REQUIRED BY LAW, THE PRESENT GROUND OF COMPLAINT MUST BE DISMISSED .

4 . THE APPLICANT ALLEGES THAT THE ESTABLISHMENT BOARD DID NOT INCLUDE ANY SCIENTIFIC RESEARCH WORKER AND WAS THEREFORE NOT IN A POSITION TO REACH A FIRM CONCLUSION ON MATTERS OF PURE SCIENCE .

AS WILL BE SEEN FROM THE CONSIDERATIONS DISCUSSED LATER ( PARAGRAPH 10 ), THE EVIDENCE GIVEN BY EACH OF THE APPLICANT'S SUPERIORS WAS ENOUGH, IN THE PRESENT CASE, TO PROVIDE THE ESTABLISHMENT BOARD WITH SUFFICIENTLY PRECISE GROUNDS FOR ITS OPINION . THIS GROUND OF COMPLAINT MUST THEREFORE BE DISMISSED .

5 . THE APPLICANT ALLEGES THAT THE REPORT ON HIS PROBATIONARY PERIOD WAS DRAWN UP CONSIDERABLY LATER THAN IT SHOULD HAVE BEEN AND THAT THE DIFFERENT PROCEDURES FOR PROBATION AND INTEGRATION WERE ' MERGED '.

ALTHOUGH IT MAY BE AGREED THAT THE DELAY IN QUESTION CONSTITUTES AN IRREGULARITY, NEVERTHELESS NO CAUSAL LINK EXISTS BETWEEN THE IRREGULARITY AND THE DECISION NOT TO INTEGRATE THE APPLICANT . IT APPEARS FROM THE FILE THAT A PROBATION REPORT DRAWN UP AT THE RIGHT TIME WOULD NOT HAVE BEEN WRITTEN IN TERMS MORE FAVOURABLE TO THE APPLICANT . ON THE CONTRARY THE ITEMS IN THE FILE CONFIRM THE DEFENDANT'S ARGUMENT THAT THE HEAD OF DEPARTMENT POSTPONED WRITING THE PROBATION REPORT WITH THE SOLE OBJECT OF GIVING THE APPLICANT A CHANCE .

P.550

AS REGARDS THE ALLEGED MERGER OF THE PROCEDURES, IT IS TRUE THAT THEY TOOK PLACE MORE OR LESS SIMULTANEOUSLY, BUT IT HAS NOT BEEN SHOWN IN ANY WAY THAT THIS SIMULTANEITY, WHICH IS NOT IN ITSELF IRREGULAR, ADVERSELY AFFECTED THE APPLICANT .

IT FOLLOWS FROM THE FOREGOING THAT THE PRESENT GROUND OF COMPLAINT IS UNFOUNDED .

6 . THE APPLICANT ASSERTS THAT HIS PERSONAL FILE WAS NOT KEPT AS IT SHOULD HAVE BEEN . IN PARTICULAR, HE ALLEGES THAT CERTAIN DOCUMENTS WERE MISSING FROM IT, AND THAT OTHERS WERE IMPROPERLY INCLUDED .

THE FACT THAT A PERSONAL FILE MAY NOT HAVE BEEN KEPT AS IT SHOULD HAVE BEEN CANNOT INVALIDATE A DECISION AGAINST INTEGRATION UNLESS THE DEFECTS WERE SUCH AS TO INFLUENCE THE OPINION OF THE ESTABLISHMENT BOARD . EVEN SUPPOSING THAT THE APPLICANT'S ALLEGATIONS WERE PROVED, THEY WOULD NOT JUSTIFY THE PRESUMPTION THAT ANY SUCH CAUSAL LINK EXISTED . AS A RESULT, THE PRESENT GROUND OF COMPLAINT CANNOT BE ACCEPTED .

7 . THE APPLICANT POINTS OUT THAT HIS HEAD OF DEPARTMENT COMMITTED ' A PARTICULARLY SERIOUS IRREGULARITY ' IN PUTTING THE DATE 5 NOVEMBER 1962 ON HIS SUPPLEMENTARY COMMENTS ON THE ESTABLISHMENT REPORT WHEN, IN FACT, HE MADE THOSE OBSERVATIONS AFTER THE DIRECTOR OF THE CENTRE HAD MADE HIS ASSESSMENT ON 6 OR 11 NOVEMBER . ACCORDING TO THE APPLICANT, IT APPEARS FROM THE ORIGINAL OF THE REPORT THAT MR MARCHETTI'S COMMENTS ORIGINALLY DATED 11 NOVEMBER, BUT THAT THE FIGURE WAS SUBSEQUENTLY ERASED AND REPLACED BY THE FIGURE 5 .

THE PHOTO-COPY OF THE DOCUMENT IN QUESTION, WHICH APPEARS IN THE APPLICANT'S PERSONAL FILE, DOES NOT CONFIRM THIS ALLEGATION . BESIDES, IN SO FAR AS THE PRESENT GROUND OF COMPLAINT WOULD LEAD TO THE SUPPOSITION THAT THE COMMENTS BY THE HEAD OF DEPARTMENT HAD BEEN INFLUENCED BY THOSE WHICH THE DIRECTOR OF THE CENTRE IS SAID TO HAVE MADE AT AN EARLIER DATE, IT IS CONTRADICTED BY THE APPLICANT'S ALLEGATION TO THE EFFECT THAT THE DIRECTOR DID NO MORE THAN RATIFY THE OPINION OF THE HEAD OF DEPARTMENT .

THE APPLICANT FURTHER ALLEGES THAT THE COMMENTS IN DISPUTE WERE ADDED IN ORDER TO MEET THE CRITICISMS MADE AGAINST THE HEAD OF DEPARTMENT BY THE ADMINISTRATION, FOR HAVING DELAYED HIS REPORT ON THE APPLICANT'S PROBATIONARY PERIOD . BUT THIS ALLEGATION DOES NOT PROVE IN ANY WAY THAT THE HEAD OF DEPARTMENT WOULD HAVE PASSED A MORE FAVOURABLE JUDGMENT ON THE APPLICANT IF THE DELAY HAD NOT OCCURRED .

P.551

8 . THE APPLICANT CLAIMS THAT CERTAIN COMMENTS APPEARING IN THE PROBATION AND ESTABLISHMENT REPORTS RESPECTIVELY CONTRADICT EACH OTHER, NAMELY THE ' EXCELLENT RELATIONS WITHIN THE DEPARTMENT ' AS AGAINST HIS ' INSUFFICIENT ABILITY TO WORK IN A TEAM ', AND HIS ' DIFFICULTY IN CLEARLY DEFINING THE METHODS OF CARRYING OUT HIS PROJECTS ' AS AGAINST HIS ' GREAT CAPACITY OF SELF-EXPRESSION '.

THE GROUND OF COMPLAINT IS IRRELEVANT . A MAN MAY HAVE EXCELLENT PERSONAL RELATIONS, WITHOUT NECESSARILY BEING ABLE TO FIT HIS WORK INTO A WIDER SETTING . FURTHERMORE, IT APPEARS FROM THE CONTEXT OF THE DOCUMENTS IN QUESTION THAT THE COMMENT ABOUT ' MEANS OF CARRYING OUT HIS PROJECTS ' REFERS TO THE APPLICANT'S ABILITY TO UNDERTAKE A PROGRAMME OF RESEARCH; AND IT IS POSSIBLE TO LACK SUCH AN ABILITY WHILE STILL POSSESSING A CERTAIN VERBAL FLUENCY .

9 . THE APPLICANT CRITICIZES THE ' VAGUE AND IMPRECISE ' DRAFTING OF THE REASONS GIVEN BY THE ESTABLISHMENT BOARD .

THIS GROUND OF COMPLAINT IS UNFOUNDED . PLACED BESIDE THE MINUTES OF THE ESTABLISHMENT BOARD AND THE DOCUMENTS IN THE APPLICANT'S PERSONAL FILE, THESE MAKE SUFFICIENTLY CLEAR THE CRITICISMS MADE CONCERNING THE APPLICANT .

10 . THE APPLICANT ASSERTS THAT THE OPINION OF THE ESTABLISHMENT BOARD IS BASED ON ALLEGATIONS OF FACT WHICH ARE MATERIALLY INACCURATE .

ACCORDING TO THAT OPINION, THE APPLICANT IS ACCUSED OF A ' TENDENCY TOWARDS EXCESS IN PREPARING PROGRAMMES AND IN CALCULATING RESOURCES '. SECONDLY, BECAUSE OF THAT TENDENCY, IT IS SAID THAT THE APPLICANT HAS NOT, DESPITE THE INSTRUCTIONS GIVEN TO HIM, MANAGED TO EXPLOIT THE RESOURCES PLACED AT HIS DISPOSAL SO AS TO PROVIDE THE SCIENTIFIC CONTRIBUTION TO THE DEPARTMENT, WHICH IT WAS ENTITLED TO EXPECT OF HIM .

THESE REMARKS CONSTITUTE A GENERAL VALUE - JUDGMENT, FOR WHICH THE COURT CANNOT SUBSTITUTE ITS OWN ASSESSMENT . ON THE OTHER HAND, IT IS FOR THE COURT TO CHECK WHETHER THE FACTS TAKEN INTO ACCOUNT BY THE ESTABLISHMENT BOARD ARE MATERIALLY ACCURATE AND LOGICALLY COMPATIBLE WITH THAT JUDGMENT . THIS EXAMINATION CAN CONVENIENTLY BE UNDERTAKEN SEPARATELY FOR EACH OF THE TWO COMPLAINTS MADE ABOUT THE APPLICANT, NAMELY ( AA ) HIS TENDENCY TOWARDS EXCESS, AND ( BB ) THE INSUFFICIENT WORK RESULTING FROM THAT TENDENCY .

P.552

( AA ) THE DEFENDANT'S MAIN ALLEGATIONS ARE AS FOLLOWS :

ON 15 JANUARY 1962 ( THAT IS, THREE AND A HALF MONTHS AFTER HE TOOK UP HIS DUTIES ) THE APPLICANT FURNISHED HIS FIRST PROGRAMME WHICH WAS BARELY TWO PAGES LONG . THIS PROGRAMME ' WAS FAR AND AWAY TOO AMBITIOUS AND PRESUPPOSED APPARATUS AND EQUIPMENT WORTH MORE THAN 100 000 UNITS OF ACCOUNT AND A TEAM ESTIMATED BY MR PRAKASH ( IN FACT UNDERESTIMATED ) AT FOUR RESEARCH WORKERS IN CATEGORY A AND FOUR TECHNICIANS IN CATEGORY B ... '. THIS PROGRAMME WAS INCAPABLE OF FULFILMENT : THE CREDITS ALLOTTED TO THE WHOLE OF THE PHYSICAL CHEMISTRY DEPARTMENT IN 1962 WERE IN FACT LIMITED TO 200 000 UNITS OF ACCOUNT FOR ABOUT 50 SERVANTS, WHILST THE ' QUOTA ' FOR THE DEPARTMENT AMOUNTED TO ABOUT 1 500 UNITS OF ACCOUNT FOR EACH SERVANT IN CATEGORIES A AND B ';

- ' STRAIGHTAWAY ', THE HEAD OF DEPARTMENT ADVISED THE APPLICANT TO SHOW A GREATER SENSE OF PROPORTION IN DRAWING UP HIS PLANS, AND INSTRUCTED HIM TO START BY SETTING UP AS A FIRST STEP A METHOD OF MEASURING THE QUANTITY OF MOLECULES ADSORBED ON ALUMINIUM BY INFRA-RED ADSORPTION; THIS INSTRUCTION WAS CONFIRMED IN WRITING BY A MEMORANDUM DATED 4 JUNE 1962;

- IN SPITE OF THESE ORAL INSTRUCTIONS, AND INSTEAD OF EMBARKING UPON THE PRELIMINARY EXPERIMENTS THUS DEFINED, THE APPLICANT CONTINUED TO PREPARE EXTREMELY FAR-REACHING PROGRAMMES WHICH HE OUTLINED IN NOTES MADE BETWEEN MID - JANUARY AND 4 JUNE 1962 WHICH HAVE BEEN LODGED IN THE FILE;

- IN MARCH 1962 THE APPLICANT PRESENTED HIS HEAD OF DEPARTMENT WITH A LIST HEADED ' INITIAL EQUIPMENT ...', CONSISTING OF APPARATUS AND ACCESSORIES TO A TOTAL VALUE OF 55 000 UNITS OF ACCOUNT; AFTER REDUCING THE APPLICANT'S REQUIREMENTS, WITH HIS AGREEMENT, TO 15 000 UNITS OF ACCOUNT, THE HEAD OF THE DEPARTMENT SUBMITTED THE REQUEST TO THE LOCAL PROGRAMMES COMMITTEE WHICH, HOWEVER, REJECTED IT .

THE APPLICANT DOES NOT DISPUTE THESE FACTS, EXCEPT IN SO FAR AS HE CLAIMS NOT TO HAVE RECEIVED ANY INSTRUCTIONS FROM HIS HEAD OF DEPARTMENT PRIOR TO THE MEMORANDUM OF 4 JUNE 1962 . THIS ALLEGATION IS CONTRADICTED BY A LETTER WHICH THE APPLICANT SENT TO HIS HEAD OF DEPARTMENT ON 14 MAY 1962, IN WHICH HE WROTE, INTER ALIA : ' I SUBMITTED A PROGRAMME TO YOU IN MID-JANUARY 1962 . THEREAFTER YOU EXPRESSED THE WISH THAT IT SHOULD BE MODIFIED TO TAKE ACCOUNT OF THE FACT THAT I COULD NOT EXPECT TO LEAD A RESEARCH GROUP AT THE START, AND THAT I OUGHT TO PLAN A PROJECT ON A ONE-MAN SCALE '.

THE APPLICANT ASSERTS THAT HE WAS NOT AWARE OF THE RESOURCES AT THE DEPARTMENT'S DISPOSAL, SO THAT HE CANNOT BE BLAMED FOR THE DISPROPORTION EXISTING BETWEEN THOSE RESOURCES AND THE EQUIPMENT WHICH HE REQUESTED .

P.553

THIS ARGUMENT IS ERRONEOUS . IT IS REASONABLE TO REQUIRE A RESEARCH WORKER TO OBTAIN THE MOST PRECISE INFORMATION AVAILABLE ABOUT EXISTING RESOURCES BEFORE SUGGESTING ANY PROGRAMMES, IN ORDER NOT TO HARM HIS DEPARTMENT BY DELAYING THE START OF HIS WORK .

EVEN IF IT IS ADMITTED IN THE APPLICANT'S FAVOUR THAT A CERTAIN MARGIN OF ERROR MAY HAVE BEEN INEVITABLE AT A TIME WHEN HE WAS SETTLING IN AND WHEN THE CENTRE WAS JUST STARTING UP, AND EVEN TAKING INTO CONSIDERATION THE FACT THAT LEGITIMATE AMBITIONS MAY LEAD A RESEARCH WORKER TO TRY TO OBTAIN AS MANY RESPONSIBILITIES FOR HIMSELF AS POSSIBLE, THE FACT REMAINS THAT THE APPLICANT'S REQUIREMENTS, WHICH WERE CONSTANTLY REITERATED, WERE OF AN ORDER OF MAGNITUDE TOTALLY DIFFERENT FROM WHAT COULD HAVE APPEARED REASONABLE .

MOREOVER, THE PROGRAMMES PRESENTED BY THE APPLICANT AFTER 15 JANUARY AND PRIOR TO 4 JUNE 1962 WENT FAR BEYOND THE RANGE OF SHORT - TERM WORK FIXED BY THE HEAD OF DEPARTMENT .

THE PREPARATION OF LARGE-SCALE PROGRAMMES IS NOT IN ITSELF OPEN TO CRITICISM, BUT IT BECOMES SO IF IT IS NOT COUPLED WITH ANY SERIOUS ATTEMPT BY THE PERSON CONCERNED TO MAKE A START AT THE SAME TIME ON THE MORE MODEST PROGRAMME WHICH HAS IN FACT BEEN ASSIGNED TO HIM .

IT FOLLOWS FROM THESE CONSIDERATIONS TAKEN AS A WHOLE THAT WHEN ACCUSING THE APPLICANT OF A TENDENCY TOWARDS EXCESS THE ESTABLISHMENT BOARD DID NOT FORM AN OPINION WHICH WAS LOGICALLY INCOMPATIBLE EITHER WITH THE UNDISPUTED FACTS OR WITH THE ONES TAKEN AS PROVEN .

( BB ) HOWEVER, THE ESTABLISHMENT BOARD DID NOT RELY ON THAT TENDENCY AS AN INDEPENDENT GROUND OF COMPLAINT, BUT ONLY TO THE EXTENT THAT IT RESULTED IN AN INADEQUATE OUTPUT OF WORK ON THE PART OF THE APPLICANT .

THE APPLICANT DOES NOT DENY THAT HE DID NOT REALLY BEGIN THE EXPERIMENTS WHICH HE WAS ASKED TO CARRY OUT BUT CLAIMS THAT THE RESOURCES AT HIS DISPOSAL, PARTICULARLY APPARATUS AND LABORATORY SPACE, WERE INSUFFICIENT FOR THE PURPOSE . HE ALSO REFERS GENERALLY TO THE INEFFICIENT FUNCTIONING OF THE PHYSICAL CHEMISTRY DEPARTMENT .

THE DEFENDANT STATES THAT THE RESOURCES WERE SUFFICIENT TO BEGIN EXPERIMENTS FOR THE SHORT-TERM PROGRAMME SET OUT AND CONFIRMED IN THE NOTE OF 4 JUNE 1962, AND THAT THE COMPLAINT AGAINST THE APPLICANT IS PRECISELY THAT HE DID NOT EVEN BEGIN THOSE EXPERIMENTS .

P.554

IN QUESTIONS OF NUCLEAR RESEARCH, IT IS NOT FOR THE COURT TO DECIDE WHETHER OR NOT A PARTICULAR SET OF APPARATUS IS SUFFICIENT FOR UNDERTAKING A GIVEN PIECE OF RESEARCH . IF NECESSARY, IT WOULD HAVE TO APPOINT AN EXPERT FOR THAT PURPOSE . HOWEVER, SUCH A STEP WOULD ONLY BE JUSTIFIED IF THE FACTS ALREADY PROVED RAISED A PRESUMPTION IN FAVOUR OF THE APPLICANT'S ARGUMENT, SINCE THE BURDEN OF PROOF RESTS, GENERALLY SPEAKING, ON HIM . IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THIS IS THE CASE .

IN HIS EVIDENCE, MR MARCHETTI, THE APPLICANT'S HEAD OF DEPARTMENT, STATED IN PARTICULAR :

- THAT ' THE EQUIPMENT ALREADY PURCHASED PROVIDED THE APPLICANT WITH PLENTY OF POSSIBILITIES FOR STARTING WORK ';

- THAT ' MR PRAKASH HAS NEVER BEEN BLAMED FOR NOT HAVING PRODUCED RESULTS, BUT RATHER FOR NOT HAVING STARTED WORK ';

- THAT THE APPLICANT NEITHER TESTED NOR ADAPTED THE NEW APPARATUS AT HIS DISPOSAL, ALTHOUGH SUCH ACTION WAS INDISPENSABLE .

MR RITTER, DIRECTOR OF THE ISPRA CENTRE, IN HIS EVIDENCE, CONFIRMED THE SUBSTANCE OF MR MARCHETTI'S STATEMENTS . WHILST ADMITTING THAT HIS DUTIES DID NOT ENABLE HIM TO HAVE A DETAILED FIRST-HAND KNOWLEDGE OF THE APPLICANT'S WORKING CONDITIONS, HE STATED THAT HIS LONG EXPERIENCE HAD PUT HIM IN A POSITION TO FORM AN OPINION ON THE BASIS OF INFORMATION RECEIVED FROM MR MARCHETTI . HE ALSO SAID THAT THE APPLICANT'S FORMER EMPLOYER, FROM WHICH HE HAD REQUESTED INFORMATION, SUBSTANTIALLY CONFIRMED MR MARCHETTI'S OPINION ABOUT CERTAIN SHORTCOMINGS OF THE APPLICANT . THIS TESTIMONY IS SUCH AS TO CONFIRM THE ASSESSMENT MADE BY THE ESTABLISHMENT BOARD .

IT IS TRUE THAT THE APPLICANT ASSERTS THAT MR MARCHETTI WAS INSPIRED BY A FEELING OF ANIMOSITY TOWARDS HIM AND HAD ' SYSTEMATICALLY PARALYSED ' HIS WORK . HOWEVER, AS WILL BE SEEN FROM AN EXAMINATION OF THE THIRD SUBMISSION, THE APPLICANT'S ARGUMENTS ON THIS POINT CANNOT CONSTITUTE VALID PRIMA FACIE EVIDENCE . SIMILARLY, THE COURT CANNOT ACCEPT THE APPLICANT'S SUBSIDIARY ALLEGATION TO THE EFFECT THAT MR MARCHETTI WAS INCAPABLE OF JUDGING THE APPLICANT'S NEEDS CONCERNING APPARATUS, IN SPITE OF THE FACT THAT MR MARCHETTI WAS CLEARLY CAPABLE OF SUGGESTING THAT THE APPLICANT SHOULD CARRY OUT A PARTICULAR TASK WHICH THE APPLICANT WAS ABLE TO ACCEPT .

AS REGARDS THE TESTIMONY OF MR RITTER, IT IS NOT RENDERED VALUELESS SIMPLY BECAUSE THE WITNESS WAS UNAWARE OF CERTAIN DETAILS OF THE APPLICANT'S WORK . INDEED, BY VIRTUE OF HIS DUTIES AS DIRECTOR OF THE CENTRE AND HIS CAPACITY AS A SCIENTIST, HE WAS WELL PLACED TO JUDGE WHETHER OR NOT FINANCIAL RESOURCES OF A CERTAIN ORDER OF MAGNITUDE WERE SUFFICIENT TO BEGIN PARTICULAR EXPERIMENTS . MOREOVER IT IS CLEAR THAT MR RITTER HAD SEVERAL CONVERSATIONS WITH THE APPLICANT DURING WHICH THE APPLICANT WAS ABLE TO EXPLAIN HIS POINT OF VIEW . BESIDES, THE FACT THAT IN ANOTHER CASE BROUGHT BEFORE THE COURT MR RITTER HAS DESCRIBED MR MARCHETTI'S ATTITUDE TOWARDS HIS SUBORDINATES AS ' HARSH ' DEMONSTRATES THAT HE WAS NOT AT ALL INCLINED TO APPROVE MR MARCHETTI'S ASSESSMENTS BLINDLY .

P.555

OTHER FACTS SERVE TO CORROBORATE THE IMPRESSION WHICH EMERGES FROM THE EVIDENCE MENTIONED ABOVE . IN PARTICULAR, THE APPLICANT HAS NOT SERIOUSLY DENIED THAT HE ENJOYED LABORATORY SPACE WHICH WAS ABOVE THE AVERAGE FOR RESEARCH WORKERS AT ISPRA, OR THAT THE FINANCIAL RESOURCES WHICH HE OBTAINED IN ONE WAY OR ANOTHER DID NOT PLACE HIM AT A DISADVANTAGE IN COMPARISON WITH AVERAGE STANDARDS . NEITHER HAS HE BEEN ABLE TO DENY THAT THE MAJORITY OF THE OTHER RESEARCH WORKERS AT THE CENTRE SUCCEEDED IN WORKING WELL ENOUGH FOR THE DEFENDANT TO ESTABLISH THEM IN SPITE OF THE TECHNICAL DIFFICULTIES EXISTING DURING THE PERIOD IN QUESTION .

FINALLY, NEITHER IN HIS COMMENTS ON THE ESTABLISHMENT REPORT NOR IN THE DOCUMENTS WHICH HE HAS SUBMITTED TO THE COURT HAS THE APPLICANT FURNISHED A FULL AND CLEAR EXPLANATION, SUPPORTED BY SCIENTIFIC ARGUMENTS, DEMONSTRATING THAT THE APPARATUS AVAILABLE TO HIM WAS INSUFFICIENT TO EMBARK UPON ' THE SETTING UP OF A TECHNIQUE FOR PREPARING ALUMINUM PELLETS CAPABLE OF BEING OBSERVED BY TRANSPARENCY IN INFRA-RED RAYS ' ( THIS CONSTITUTED THE SHORT - TERM WORK LAID DOWN IN THE AFOREMENTIONED MEMORANDUM OF 4 JUNE 1962, AND IS THE ONLY WORK IN QUESTION ).

THE STATEMENTS OF THE WITNESSES CALLED BY THE APPLICANT ARE NOT SUCH AS TO PROVE TO THE COURT'S SATISFACTION THAT THE APPLICANT HAD NOT BEEN PUT IN A POSITION TO BEGIN HIS WORK . THE WITNESS MR GILLOT DECLARED THAT HE WAS NOT A SPECIALIST IN THE APPARATUS REQUIRED BY THE APPLICANT . THE WITNESS MR HOEPPER STATED THAT HE DID NOT KNOW THE APPLICANT'S RESEARCH PROGRAMME AND THEREFORE COULD NOT SAY WHETHER THE APPLICANT WAS ABLE TO EMBARK UPON HIS RESEARCH .

MR KOSIBA, BY VIRTUE OF HIS RESIDENCE IN THE UNITED STATES, WAS UNABLE TO APPEAR BEFORE THE COURT, BUT PROVIDED A WRITTEN STATEMENT, NOT UNDER OATH, WHICH THE COURT ALLOWED TO BE USED IN THE ORAL PROCEEDINGS . IT IS TRUE THAT HE DECLARED THAT, AT THE TIME WHEN HE AND THE APPLICANT WERE IN CONTACT WITH EACH OTHER, THE APPLICANT WAS NOT ADEQUATELY EQUIPPED ' WITH THE NECESSARY APPARATUS FOR PERFORMING THE RESEARCH WORK WITH WHICH HE HAD BEEN ENTRUSTED '. HOWEVER, MR KOSIBA STATED THAT HIS CONTRACTS WITH THE STAFF OF THE PHYSICAL CHEMISTRY DEPARTMENT HAD ONLY BEEN ' SPORADIC '. BESIDES, THE CONTEXT OF THE WORDS QUOTED ABOVE DOES NOT SHOW CLEARLY WHETHER MR KOSIBA THOUGHT THAT THE APPARATUS AT THE APPLICANT'S DISPOSAL WAS NOT EVEN ENOUGH TO MAKE A PROPER START ON THE SHORT-TERM PROGRAMME DEFINED IN MR MARCHETTI'S NOTE OF 4 JUNE 1962 .

P.556

( CC ) THE CONSIDERATIONS SET OUT AT ( AA ) AND ( BB ) SHOW THAT THE BASIC FACTS OF THE CASE ARE NOT SUCH AS TO GIVE RISE TO SERIOUS DOUBTS ABOUT THE ACCURACY OF THE ASSESSMENT MADE BY THE ESTABLISHMENT BOARD . THEY ALSO DISPROVE THE ARGUMENT THAT THE APPLICANT'S FAILURE WAS THE RESULT OF THE INEFFICIENT FUNCTIONING OF THE PHYSICAL CHEMISTRY DEPARTMENT .

THE FACT THAT THE APPLICANT'S PRACTICAL ABILITIES WERE JUDGED AGAINST THE BACKGROUND OF A PERIOD MARKED BY CONSIDERABLE GENUINE DIFFICULTIES MIGHT BE EVIDENCE THAT THEY WERE JUDGED WITH SOME STRICTNESS . HOWEVER, THE COURT CANNOT, WITHOUT BREAKING THE RULES CONCERNING THE SEPARATION OF JUDICIAL AND ADMINISTRATIVE POWERS, DESCRIBE THAT STRICTNESS AS ILLEGAL . INDEED, SINCE VALUE-JUDGMENTS ARE WITHIN THE EXCLUSIVE JURISDICTION OF THE INSTITUTION, IT WAS IN PRINCIPLE FOR THE INSTITUTION TO DECIDE UPON THE DEGREE OF SEVERITY OR INDULGENCE WITH WHICH IT CHOSE TO ASSESS ANY SHORTCOMINGS OF THOSE CONCERNED .

IT MUST ALSO BE CONSIDERED THAT BY ACCEPTING A CONTRACT WHICH PROVIDED FOR TERMINATION BY ONE MONTH'S NOTICE ON EITHER SIDE THE APPLICANT PLACED HIMSELF IN A POSITION IN WHICH CONSIDERABLE LATITUDE WAS GIVEN TO THE ADMINISTRATION'S DISCRETIONARY POWER .

IT FOLLOWS FROM ALL THESE POINTS THAT THE COURT MUST DISMISS THE PRESENT GROUND OF COMPLAINT, WITHOUT FINDING IT NECESSARY TO APPOINT AN EXPERT .

IT FOLLOWS FROM THE SUM TOTAL OF THE CONSIDERATIONS SET OUT IN 1 TO 10 ABOVE THAT THE APPLICANT'S SECOND SUBMISSION MUST BE DISMISSED .

( C ) THE THIRD SUBMISSION

ACCORDING TO THE APPLICANT, MR MARCHETTI EXERCISED HIS POWERS WITH THE OBJECT OF OBTAINING HIS DISMISSAL, SO THAT THERE WAS A MISUSE OF POWERS AND A MISUSE OF PROCEDURE .

UNDER THIS HEADING, THE APPLICANT REFERS TO :

- THE DELAY IN DRAWING UP THE REPORT AT THE END OF HIS PROBATIONARY PERIOD;

- THE UNFAVOURABLE ASSESSMENT MADE IN HIS ESTABLISHMENT REPORT;

- THE FACT THAT ON 16 JANUARY 1963 MR MACHETTI ORDERED THE APPLICANT TO TRANSFER HIS LABORATORY EQUIPMENT TO ANOTHER RESEARCH WORKER;

- THE FACT THAT FROM 28 JANUARY 1963 ONWARDS, THAT IS, PRIOR TO THE DECISION NOT TO INTEGRATE HIM, THE APPLICANT'S NAME NO LONGER APPEARED ON THE DETAILED LIST OF POSTS OF THE PHYSICAL CHEMISTRY DEPARTMENT .

P.557

IT FOLLOWS FROM THE REASONS GIVEN CONCERNING THE SECOND SUBMISSION THAT THE APPLICANT'S OUTPUT OF WORK COULD BE DESCRIBED AS INSUFFICIENT, AND THIS FACT IS BY ITSELF ENOUGH TO EXPLAIN THE ASSESSMENTS AND ACTIONS IN DISPUTE . BESIDES, NOTHING IN THE WRITTEN DOCUMENTS IS CAPABLE OF RAISING THE SUSPICION THAT MR MARCHETTI'S ATTITUDE TOWARDS THE APPLICANT WAS DICTATED BY IMPROPER MOTIVES . ON THE CONTRARY, IT APPEARS, PARTICULARLY FROM THE ESTABLISHMENT REPORT, WHICH IS COUCHED IN FAVOURABLE TERMS CONCERNING CERTAIN ASPECTS OF THE APPLICANT'S PERSONALITY, THAT MR MARCHETTI ENDEAVOURED IN THE PRESENT CASE TO LIMIT HIS CRITICISMS TO THE ABSOLUTE MINIMUM .

THESE CONSIDERATIONS ALSO SERVE TO REFUTE THE OTHER GROUNDS OF COMPLAINT RAISED BY THE APPLICANT AS PART OF THE PRESENT SUBMISSION - GROUNDS OF COMPLAINT TO THE EFFECT THAT BOTH MR RITTER AND THE ESTABLISHMENT BOARD DELIBERATELY OR NEGLIGENTLY CONFINED THEMSELVES TO RATIFYING MR MARCHETTI'S ALLEGEDLY HOSTILE ASSESSMENTS .

THIS SUBMISSION IS THEREFORE UNFOUNDED .

IT FOLLOWS FROM THE SUM TOTAL OF THE CONSIDERATIONS SET OUT ABOVE AT ( A ) TO ( C ) THAT THE APPLICANT'S CONCLUSIONS CONCERNING HIS DISMISSAL AND THE DECISION NOT TO INTEGRATE HIM ARE THEREFORE UNFOUNDED .

B - CLAIM FOR DAMAGES

( A ) THE PRINCIPAL HEAD OF THE APPLICANT'S CLAIM CONCERNS DAMAGE SUFFERED AS A RESULT OF THE WRONGFUL ACT OR OMISSION VITIATING THE DISPUTED DECISION .

IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE DECISION DOES NOT APPEAR TO BE VITIATED BY ANY OF THE DEFECTS ALLEGED BY THE APPLICANT .

A DECISION WHICH HAS NOT BEEN SHOWN TO BE ILLEGAL CANNOT CONSTITUTE A WRONGFUL ACT OR OMISSION OR CAUSE ILLEGAL DAMAGE TO THE INDIVIDUAL CONCERNED UNLESS IT CONTAINS SUPERFLUOUS CRITICISMS OF HIM .

SUCH IS NOT THE CASE, THE REASONS FOR THE DISPUTED DECISION BEING LIMITED TO THE ABSOLUTE MINIMUM .

P.558

THEREFORE THE PRINCIPAL HEAD OF CLAIM IS UNFOUNDED .

( B ) ALTERNATIVELY, THE APPLICANT CONSIDERS HIMSELF ENTITLED TO DAMAGES EVEN IN THE EVENT OF THE COURT'S NOT ADMITTING THE ILLEGALITY OF THE DECISION IMPUGNED .

1 . IN THIS RESPECT HE ASSERTS THAT, FOR VARIOUS REASONS, THE DEFENDANT SHOULD HAVE GIVEN HIM A LONGER PERIOD OF NOTICE .

THE PERIOD OF NOTICE OF ONE MONTH WHICH WAS GIVEN TO THE APPLICANT IS IN ACCORDANCE WITH THE PROVISIONS OF HIS CONTRACT OF EMPLOYMENT . PURSUANT TO ARTICLE 102(2 ) OF THE STAFF REGULATIONS, THE APPLICANT RECEIVED IN ADDITION THE ALLOWANCE OF TWO MONTHS' SALARY LAID DOWN IN ARTICLE 34 OF THE SAID REGULATIONS .

IN THUS ADHERING STRICTLY TO THE LETTER OF THE PROVISIONS GOVERNING THE APPLICANT'S POSITION, THE DEFENDANT WOULD ONLY HAVE COMMITTED A WRONGFUL ACT OR OMISSION IF IT WERE ESTABLISHED THAT THOSE PROVISIONS WERE MANIFESTLY UNJUST OR VEXATIOUS OR THAT THE CONSENT OF THE APPLICANT HAD NOT BEEN FREELY GIVEN WHEN THE CONTRACT OF EMPLOYMENT WAS CONCLUDED .

AS TO THE FIRST POINT, THE DIFFICULTIES INHERENT IN THE SETTING UP OF A COMMUNITY RESEARCH CENTRE JUSTIFY THE FACT THAT DURING THE PERIOD PRIOR TO THE ENTRY INTO FORCE OF THE STAFF REGULATIONS THE DEFENDANT RESERVED TO ITSELF A CERTAIN FREEDOM OF ACTION .

AS TO THE SECOND POINT, THE APPLICANT HAS NOT EVEN ALLEGED THAT HE WAS UNDER ANY UNDUE INFLUENCE WHEN HE AGREED TO THE PERIOD OF ONE MONTH'S NOTICE .

2 . THE APPLICANT COMPLAINS THAT HE WAS NOT CLASSIFIED IN A HIGHER GRADE WHEN THE PROBATIONARY PERIOD CAME TO AN END, AND HE REFERS IN A GENERAL WAY TO THE ' RESPONSIBILITY OF HIS SUPERIORS ' FOR THE ' NON-FUNCTIONING ' OF THE DEPARTMENT AT ISPRA .

AS TO THE FIRST POINT, THE GRADING OF THE APPLICANT WAS IN ACCORDANCE WITH THE TERMS OF HIS CONTRACT OF EMPLOYMENT . AS TO THE SECOND POINT, THE ABOVEMENTIONED ALLEGATIONS IN FACT TEND TO ATTRIBUTE HIS DISMISSAL TO FACTORS FOR WHICH HE HAD NO RESPONSIBILITY . THIS ARGUMENT IS REFUTED BY THE CONSIDERATIONS SET OUT ABOVE DURING THE EXAMINATION OF THE SECOND SUBMISSION .

IT FOLLOWS FROM WHAT HAS BEEN SAID ABOVE THAT THE ALTERNATIVE CLAIM FOR DAMAGES MUST BE DISMISSED .

P.559

C - REMOVAL EXPENSES FROM PLACE OF ORIGIN TO PLACE OF EMPLOYMENT AND INSTALLATION ALLOWANCE

THE APPLICANT CHALLENGES THE LEGALITY OF THE DECISION TAKEN BY THE DEFENDANT ON 18 APRIL 1963 REFUSING TO REIMBURSE THE APPLICANT'S REMOVAL EXPENSES AND TO PAY HIM THE INSTALLATION ALLOWANCE .

THE APPLICANT IS WRONG IN THINKING THAT THESE ALLOWANCES WERE GOVERNED, AS FAR AS HE WAS CONCERNED, EITHER BY THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, OR BY THE FORMER STAFF REGULATIONS OF OFFICIALS OF THE ECSC .

IN FACT THE FIRST OF THESE REGULATIONS DOES NOT APPLY TO SERVANTS RECRUITED UNDER THE SO - CALLED BRUSSELS FORM OF CONTRACT, IN THE ABSENCE OF EXPRESS PROVISIONS TO THE CONTRARY .

THE APPLICATION BY ANALOGY OF THE SECOND OF THE SAID REGULATIONS TO THESE SERVANTS WAS EXCLUDED TO THE EXTENT THAT THEIR POSITION WAS GOVERNED BY THEIR CONTRACT OR BY GENERAL CIRCULARS DRAWN UP BY THE INSTITUTION .

THE APPLICANT'S CONTRACT CONTAINED NO REFERENCE TO THE QUESTIONS AT ISSUE, BUT THOSE QUESTIONS WERE NEVERTHELESS COVERED BY CIRCULAR NO 50, ISSUED BY THE DEFENDANT ON 24 FEBRUARY 1959 . THEREFORE IT IS ON THE BASIS OF THIS CIRCULAR THAT THE PRESENT GROUND OF COMPLAINT MUST BE CONSIDERED .

ACCORDING TO THE SAID CIRCULAR, THE RIGHT OF A SERVANT TO THE ALLOWANCES IN DISPUTE IS SUBJECT, IN PARTICULAR, TO A FAVOURABLE REPORT ON THE ABILITIES OF THE SERVANT MADE BY THE HEAD OF DEPARTMENT .

IN THIS CASE THERE IS DISAGREEMENT BETWEEN THE PARTIES AS TO WHETHER THAT CONDITION WAS FULFILLED . THE APPLICANT HOLDS A COPY OF THE REQUEST FOR AUTHORIZATION WHICH HE HAD PRESENTED TO MR MARCHETTI; THIS COPY BEARS MR MARCHETTI'S SIGNATURE, AND THE REFERENCE TO THE APPLICANT'S ABILITIES IS NOT DELETED .

ON THE OTHER HAND, THAT SENTENCE WAS CROSSED OUT ON THE ORIGINAL COPY OF THE SAID REQUEST, WHICH ALSO BEARS MR MARCHETTI'S SIGNATURE, AND IN ADDITION THE WORD ' REFUSED ' SIGNED BY THE ASSISTANT DIRECTOR OF THE CENTRE, MR MERCEREAU .

THE HEAD OF DEPARTMENT DID NOT HAVE THE AUTHORITY TO TAKE A DECISION HIMSELF ON THE REQUEST IN DISPUTE . THEREFORE THE ' OPINION ' WHICH HE WAS CALLED UPON TO FORM WAS NOT A DECISION, AND COULD BE ALTERED AS LONG AS THE DECISION HAD NOT BEEN TAKEN .

P.560

FURTHERMORE, ACCORDING TO CIRCULAR NO 50, THE COMPETENT AUTHORITY WAS NOT BOUND BY A FAVOURABLE OPINION OF THE HEAD OF DEPARTMENT . THUS THE REFUSAL GIVEN BY MR MERCEREAU, AS WELL AS THE DECISION IN DISPUTE WHICH CONFIRMED IT, DO NOT IN ANY WAY INFRINGE THE PROVISIONS IN CIRCULAR NO 50 .

THE APPLICANT IS WRONG IN RAISING THE POINT THAT PRIOR TO THE ABOVEMENTIONED REFUSAL THE PERSONNEL DEPARTMENT HAS APPROVED THE ESTIMATE DRAWN UP BY A REMOVAL FIRM . IN FACT SUCH AN APPROVAL IS ONLY CONCERNED WITH THE SUMS WHICH MAY BECOME PAYABLE, AND NOT WITH THE PRINCIPLE OF REIMBURSEMENT .

IT FOLLOWS FROM ALL THAT HAS BEEN SAID ABOVE THAT THE PRESENT GROUND OF COMPLAINT IS UNFOUNDED .

D - WEIGHTING

THE APPLICANT CLAIMS THAT THE DEFENDANT SHOULD BE ORDERED TO PAY HIM THE SUM OF BF 23 428, PAID BY WAY OF ADVANCE IN JANUARY 1963 AND SUBSEQUENTLY DEDUCTED FROM HIS COMPENSATION ON DISMISSAL .

ACCORDING TO THE TERMS OF A LETTER FROM THE DIRECTOR-GENERAL OF ADMINISTRATION AND PERSONNEL PRODUCED FOR THE COURT FILE BY THE APPLICANT HIMSELF, ' THE GRANT OF THIS ADVANCE SHALL NOT AFFECT IN ANY WAY THE RESULT OF THE INTEGRATION PROCEDURE '. THIS LETTER ALSO STATES : ' THIS ADVANCE WILL BE BROUGHT INTO ACCOUNT AT A LATER DATE, AND IF THE AMOUNT THEREOF IS MORE THAN THE SUMS TO WHICH YOU ARE ENTITLED, THE EXCESS MAY BE RECOVERED BY DEDUCTION FROM MONIES DUE TO YOU FROM THE COMMISSION UNDER ANY HEAD '.

THE APPLICANT HAS NOT DENIED THAT THE ADVANCE WAS PAID TO HIM BY WAY OF WEIGHTING . THE GRANT OF SUCH WEIGHTING IS BASED ON THE PROVISIONS OF THE STAFF REGULATIONS OF THE EEC AND EAEC AND, WHERE RELEVANT, THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THOSE COMMUNITIES - PROVISIONS WHICH HAVE NEVER APPLIED TO THE APPLICANT .

FURTHERMORE THE LETTER QUOTED ABOVE PROVES THAT THE DEFENDANT RESERVED THE RIGHT TO RECOVER THE AMOUNT IN DISPUTE IN THE EVENT OF THE BENEFICIARY NOT BEING INTEGRATED UNDER THE STAFF REGULATIONS .

IT FOLLOWS THAT THE DEFENDANT ACTED WITHIN ITS RIGHTS IN RETAINING THE ABOVEMENTIONED SUM, AND THAT THEREFORE THE APPLICANT'S CLAIM IS UNFOUNDED .

E - OFFERS OF PROOF

AS THE COURT IS ALREADY IN POSSESSION OF ALL THE FACTS NEEDED TO DECIDE THE PRESENT CASE, IT DOES NOT APPEAR NECESSARY TO EXAMINE THE VARIOUS OFFERS OF PROOF PUT FORWARD BY THE PARTIES, OTHER THAN THOSE WHICH THE COURT HAS ALREADY DEALT WITH, PARTICULARLY THE APPLICATIONS FOR PREPARATORY ENQUIRIES LODGED BY THE APPLICANT ON 12 JULY 1963 AND 6 NOVEMBER 1964 RESPECTIVELY .

Decision on costs

THE APPLICANT HAS FAILED IN APPLICATION 65/63 .

ALTHOUGH APPLICATION 19/63 HAS BECOME POINTLESS, IT NEVERTHELESS FOLLOWS FROM THE REASONS GIVEN BY THE COURT FOR DISMISSING APPLICATION 65/63 THAT THE CONCLUSIONS IN IT WERE UNFOUNDED .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY INSTITUTIONS IN CASES BROUGHT BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .

THE ORDER OF 25 JUNE 1963 BY WHICH THE PRESIDENT OF THE COURT DISMISSED THE APPLICATION BY THE APPLICANT FOR THE ADOPTION OF AN INTERIM MEASURE, AS WELL AS THE ORDER OF THE COURT ( FIRST CHAMBER ) OF 13 NOVEMBER 1964 CONCERNING THE HEARING OF CERTAIN WITNESSES, RESERVED THE DECISION AS TO COSTS .

THE COSTS OF THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE MUST BE DEALT WITH IN THE SAME WAY AS THE COSTS IN THE MAIN ACTION .

THE COSTS INVOLVED IN CALLING THE WITNESSES MUST BE BORNE BY THE DEFENDANT SINCE THE WITNESSES WERE HEARD IN THEIR CAPACITY AS OFFICIALS .

BY AN ORDER DATED 5 JULY 1963 THE COURT ( FIRST CHAMBER ) PARTLY ACCEPTED THE APPLICANT'S REQUEST FOR THE GRANT OF LEGAL AID, AND DECIDED THAT THE CASHIER OF THE COURT SHOULD MAKE TO THE APPLICANT A RECOVERABLE ADVANCE OF BF 25 000 .

IN ACCORDANCE WITH ARTICLE 76(5 ) OF THE RULES OF PROCEDURE THE COURT MUST NOW ORDER THE APPLICANT TO REFUND THE SAID SUM TO THE CASHIER OF THE COURT .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . RULES THAT NO DECISION IS REQUIRED IN APPLICATION 19/63;

2 . DISMISSES APPLICATION 65/63 AS UNFOUNDED;

3 . ORDERS THE APPLICANT TO BEAR HIS OWN COSTS, INCLUDING HIS COSTS IN THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE;

4 . ORDERS THE APPLICANT TO PAY OVER THE SUM OF BF 25 000 TO THE CASHIER OF THE COURT;

5 . ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS, INCLUDING ITS COSTS IN THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE, AND ALSO THE WHOLE OF THE COSTS OCCASIONED BY THE HEARING OF THE WITNESSES .