3.

With all that in mind, it only remains to take up a position again on the procedure of the Establishment Board and possibly on the ground of complaint that the Board based its appraisal on incorrect data. (a) In the first case, we meet here also the assertion that the applicant's superior had prepared his report in a spirit of animosity. Clearly, says the applicant, this reason should have made it necessary to disregard this report at the time of the integration procedure. I have already explained in other cases that Article 102 of the Staff Regulations lays down in a mandatory manner that reports should be prepared by superiors. Thus in the case of the applicant the Establishment Board could not disregard the report of his immediate superior without infringing the Regulations. Furthermore the integration procedure was in general arranged so that possibly other means of proof might be allowed in order to correct the subjective assessment of the superior. In the Pistoj case also it is shown that the Establishment Board only gave its opinion after having taken into account many other factors (hearing witnesses and former superiors of the applicant who supported the unfavourable opinion). This opinion was, furthermore, reached unanimously. In view of this situation the Court can, in my opinion, avoid considering the existence of the alleged animosity of the applicant's superior. (b) On the other hand, a much more serious ground of complaint in the present case is that the applicant has not been able completely to defend himself during the integration procedure. In Case 78/63 I set out at length my position in principle on this point. It is from that basis that it is necessary again to consider whether the alleged infringements were actually committed and whether they are of such a nature as to cause the integration procedure to be recommenced. Three grounds of complaint have been raised in particular: — The first relates to the tact that the Establishment Board heard other servants without keeping the applicant informed of the content of their evidence and without permitting him to submit his comments. The Commission does not dispute this. It points out only that the applicant himself named two of these witnesses, from which it may be thought that he would have been aware of their evidence. If the criteria of the Leroy judgment and the Huber opinion are applied to this ground of complaint, the objection of the Commission does not appear to be substantiated. For the Court, the decisive question is as follows: could the evidence of the witnesses in question have any effect upon the formation of the opinion of the Establishment Board? As long as we do not know the content of the evidence (it does not appear in any minutes), we must take it that the answer is in the affirmative. It must not be overlooked that the observations of the applicant concerning the evidence could have influenced the judgment of the Establishment Board, independently of the fact that the applicant sent numerous written statements during the course of the procedure and defended himself tenaciously before the Board. Thus, while there remains the slightest doubt on the matter, I am forced to the conclusion that the integration procedure was irregular. It is the same in respect of the evidence of the witnesses cited by the applicant, for there is no guarantee that it was only of advantage to him and that he was in fact made aware of the content of the evidence. Furthermore the applicant rightly remarks that the fact that the Board heard evidence in secret may also have had a bearing. The witness who knows that the content of his evidence will become known to the person whom it concerns is liable in a particular case, although with shades of meaning, to give it in a manner other than that of a witness who does not fear such a confrontation. Lastly, one cannot exclude the possibility that the two witnesses cited by the applicant have in fact given evidence only of benefit to him. If that happened to be proved, the opinion of the Establishment Board might appear to be unfounded because it did not give both the positive and negative reasons for its report. — Just as serious is the ground of complaint that the Establishment Board was not aware of or did not take into account all the statements submitted by the applicant, and in particular his first statement of 12 April 1962. It appears from the minutes of the meetings of the Board that it received and examined a series of statements from the applicant. The statement of 12 April 1962 was not one of them. We are concerned here with the applicant's initial comments on the report of his superior, in which he carefully sets out his explanations of all the matters raised and in particular annexes to it a complete set of explanatory documents. One clearly cannot say that the subsequent statements submitted to the Commission are merely a repetition of the first. On the contrary, they are intended to. give further explanations and to adopt a position on other documents which were used in the applicant's integration procedure. If it is therefore true that the first statement from the applicant was not brought to the attention of the Establishment Board, which I cannot doubt, taking into account the care with which the minutes of the meetings of the Board were drawn up, there would also be in that case an offence against the required principles of procedure, because the possibility cannot be excluded that the opinion of the Establishment Board would have been different in the face of the first detailed statement. — A third ground of complaint in this respect is that the Establishment Board used a statement of the applicant's superior dated 17 February 1961, without allowing the applicant to submit his comments. The Commission rejects this complaint saying that this statement played no part in the integration procedure. In fact, it is not possible to see any factor (taken for example from the minutes) allowing it to be thought that this allegation of the applicant is correct. On the contrary, if I understand the matter correctly, the Commission used this document of 17 February 1961 in the legal procedure only to show that the applicant's superior was not hostile to him and showed himself to be quite impartial towards him. As the applicant simply presumes that the statement was used (reply, p. 24) without offering any proof of his allegation, the ground of complaint cannot be considered. A further examination would in any case appear superfluous, having regard to the results already obtained from this examination. (c) For the same reason I am allowing myself merely to pass briefly over a series of other alleged procedural defects. To the extent that they relate to points of inaccuracy and not merely to minor errors, they are hardly of such a nature as to justify annulment of the procedure. — Certainly that applies to the ground of complaint that the Establishment Board did not hear all the witnesses cited by the applicant. The Commission rightly states on this point that the Establishment Board is not obliged to do so and that, on the contrary, just like a court, it is obliged only to obtain clarification of a case to the extent to which it appears necessary. If it considers that it has sufficient material to evaluate the candidate's abilities, it can refrain from hearing other witnesses. Consequently, one may speak at most of a procedural defect, if it was certain that the witnesses who were not heard had important evidence to give, that is to say, evidence which could seriously influence the judgment of the Commission. But, according to the applicant's statements in the course of both the written and oral procedures, there is no reason to accept this. — I would also say that the role which another superior of the applicant played in the course of the integration procedure does not afford grounds for annulment. This servant was a member of the Establishment Board and, according to the applicant, for this reason he should have refrained from being present at the meetings during which questions concerning the applicant came up for discussion or in the course of which witnesses were heard concerning the applicant. In particular, says the applicant, he should have refrained in the course of the procedure from preparing another report on the applicant and submitting it to the Board. It seems to me, on the contrary, that this would add to the requirements of a pure examination procedure. When a superior has the right and the duty to give his opinion of a servant in his report he cannot be forbidden to explain this opinion again in writing during the procedure, always on the supposition that the person concerned can submit his comments, which was the case in the present instance. The duty of impartiality of members of the Board is in my opinion fulfilled when a member refrains from voting in a case concerning the official who is under him. On the other hand, in such a case I do not consider it necessary to exclude him completely from the whole procedure. (d) It remains lastly to consider the ground of complaint of an incorrect assessment of the facts. It consists in saying that the information on the absence of the applicant is incorrect, that the integration file contains a contradictory opinion of his punctuality and incorrect statements on his relations with his subordinates and his ability to adapt himself to the requirements of the new department. Certain of these complaints require real value-judgments which cannot therefore be considered in the course of judicial proceedings, for example, the question of punctuality in the sense of ability to carry out his duties in an organized and methodical manner and the question of his ability to adapt himself to his duties in the service of the EEC Commission. But to the extent that we are concerned with matters of fact which may be checked, as in the other cases, I prefer to refrain from examining them, because there will be sufficient opportunity to do so in the course of a new procedure, if my opinion is to be followed. But that is not to say that they are totally unimportant as regards the opinion of the Establishment Board.