1.

I come now to the complaints based on procedural irregularities, and these are numerous and varied. Article 102 of the Staff Regulations provides for the setting up of an Establishment Board, consisting of servants of the institution employed in a supervisory capacity, who shall be appointed thereto by the appointing authority. The Board furnishes this authority with an opinion on the ability of servants eligible for integration to carry out the duties which have been entrusted to them. It forms its opinion on the basis of a report prepared by the superiors of the person concerned on his competence, efficiency and conduct in the service. There is no need to stress the importance of the Board's functions because if its opinion is not favourable then not only can the servant not be established in the grade corresponding to the one which he had expressly or by implication attained, but his contract must generally speaking be terminated. These are the only provisions of the Staff Regulations concerning the integration procedure. Without its having the stature of any rule of law the practice which was in fact followed at Euratom was as follows. The members of the Establishment Board received reports from Heads of Department one by one as they were made. Comments submitted on these reports by the persons concerned were received in a similar way. It was only when a member of the Board raised an objection for some reason, such as knowledge of languages, general attitude or breach of discipline, that the case was reserved and gave rise to a more thorough study, including an oral discussion where appropriate. This was what happened with Mr Prakash. But an oral discussion does not in any way imply an unfavourable opinion or even a predisposition towards one. What matters is that when the Board forms its opinion it should have a thorough grasp of the case of the servant about whom it is required to form an opinion, and that the procedure should be carried out in a way which respects the servant's rights. To what extent was this so in this case? Let me say straight away that in assessing this I shall confine myself exclusively to the arguments contained in the written documents produced in Case 65/63 or expanded during the oral procedure. In his reply Mr Prakash states that he refers to all the arguments and legal submissions developed in Case 68/63 concerning his colleague Mr Luhleich, the point being that the two cases are very similar, if not exactly the same, in many respects as regards matters of both fact and law. Neither the similarity of situation nor the fact that the two persons have much in common can legally justify such a reference. If I may confine myself to Case 65/63, the criticisms turn on two sets of facts: first, various irregularities vitiating the documents as a whole contained in the file which the Board examined in forming its opinion, and secondly the circumstances in which the oral stage of the procedure took place before the Board. (a) Although the establishment report is the only document mentioned in Article 102, it is clear that it is not the only evidence which may be taken into account. The personal file and the report at the end of the probationary period may also be taken into consideration. The applicant makes complaints concerning these three categories of documents. Mr Prakash saw his personal file several times, and he complains first that it was not kept in chronological order, and that he found new documents in it every time he consulted it. It seems that this is explained by the difficulty involved in the management of staff posted far away from the institution's headquarters. However, contrary to the interpretation which the applicant claims to give to one of the administration's letters in his reply, there are not several personal files but one. It is not disputed that the whole file was made available to Mr Prakash before he was heard by the Board. Therefore, even accepting the existence of die irregularity of which he complains, I do not see how it could vitiate the procedure. The applicant took up his duties on 1 October 1961, and therefore according to the practice at Euratom his probationary period ought to have ended on 1 April 1962. In fact the probation report was only drawn up by Mr Marchetti, his superior, on 31 August 1962, and was only forwarded to him for his comments on 1 December 1962. The local Staff Committee criticized the delay at the time. One may wonder what the reasons were for insisting on a probationary period in a scheme governed by a contract of unspecified duration and terminable on one month's notice. However, whatever they may be, neither the expiry of the normal length of the probationary period, nor the making of the probation report, can alter a servant's position as regards his eligibility for integration. I do not see any way in which this delay can have adversely affected Mr Prakash's rights. It is true that Mr Prakash asserts that the two procedures for the end of the probationary period and for integration were ‘merged’. It is certain that they took place more or less simultaneously, but they were not merged. In any case, in what way could this simultaneity harm the applicant and influence the opinion of the Board? There remains finally a more important document which is the establishment report drawn up by his immediate superior on 31 August 1962. Mr Marchetti, after having stated his assessment of the various aspects of the applicant's character, makes the following general judgment: ‘I think he has the right qualifications but apparently he does nothing or almost nothing’. This report was filled out by a twenty-line schedule dated 5 November 1962. Mr Marchetti repeats his assessment of Mr Prakash's knowledge, saying that it is sufficient for carrying out the work assigned to him, and then adds that his subordinate has had difficulties in clearly seeing what methods were needed to carry this work out. He took a long time in making his only suggestions which were on too large a scale bearing in mind the means at the disposal of the Department. When at last he was restricted to acceptable limits, all that he did was to order apparatus without using the apparatus which was available in the Department. Mr Marchetti concludes as follows: ‘I have not been able to get any sort of work out of him. This shows that there is an insufficient sense of responsibility and an absence of devotion to the task which … has been entrusted to him. Therefore I cannot assess the quality of non-existent work. thought it right to delay Mr Prakash's probation report, in the hope of seeing him apply himself to his work. After a year I do not think it possible for me to keep him in my department’. This report was countersigned on 6 November 1962 by the Director-General of the Centre, Mr Ritter, in the following terms: ‘I do not think that Mr Prakash is able usefully to work at Ispra’. Finally this report was the subject of lengthy comments submitted by the applicant on 8 January 1963. Contrary to what Mr Prakash says first, there is no contradiction between the assessments made in this report and those found in the probation report, particularly between the ‘excellent relations within the Department’ which is about personal relationships, and ‘insufficient ability to work in a team’. Nor is there any contradiction between ‘difficulty in clearly defining the methods of carrying out’ his work and his ‘great capacity of self-expression’. These assessment deal respectively with his way of implementing a programme and with his verbal fluency. But the applicant makes a more serious complaint on this point and it is worth pausing at it because it throws doubt on the honesty of a Head of Department. Without drawing any express conclusion, but presumably in order to draw the essence from a document which is harshly worded the applicant asserts that the schedule to the report was written by Mr Marchetti at the earliest on 12 December [sic] 1962 (and not on 5 November 1962), and thus after the assessment made by Mr Ritter on 6 November. This was contrary to internal provisions which say that the establishment report is to be signed by the Director-General last of all. He asserts that the schedule was written in response to criticisms made by the local Staff Committee on the delay which had occurred in. drawing up the probation report. He thus asserts that the schedule is lacking in objectivity. The reply puts this on page 18 as follows: ‘The date 5 November 1962 is an antedate. This fact can be seen from the original of the report. Marchetti had at first put 11 November as the date, and this was then erased and replaced by 5 November 1962, namely the day before Dr Putter's assessment’. You will look, as I have done, at the applicant's personal file. There you will see as Document No 68 the photocopy of the schedule to the establishment report and on it the statement by Mr Prakash of 10 January 1963. The document is type-written and Mr Marchetti has signed by hand. The document is dated 5 November 1962, and there is no erasure as regards this date. (b) I do not think that there is any point in spending more time on the criticisms made against the various documents submitted to the Establishment Board, and I come now to the other aspect of the alleged procedural defect. At the oral stage of its enquiries did the Board fail to have regard to the contentious nature of the procedure? Was it in possession of all the factors necessary to form its opinion? You have the minutes relating to the applicant's case in the file. After hearing Mr Marchetti on 12 January, the Board heard him again on 11 February and also heard Dr Ritter, Mr Lindner and Mr Mercereau on that date. Three of them have given evidence before you in this case. Then Mr Prakash, to whom the Chairman had passed on the additional information and the facts stated orally to the Board, submitted his comments which are analysed in the minutes. It is not disputed that he was heard for an hour and a half, that he replied to questions and that he spoke last. The opinion of the Board was delivered on 19 February without another hearing. The applicant complains that no confrontation took place between himself and Messrs Marchetti and Ritter. He further complains that he was not provided with the minutes of the hearing given to them. But you have judged that this confrontation was not required by the integration procedure, and that the administration cannot be obliged to communicate the Board's minutes to the person concerned before the decision of the appointing authority has been announced (Case 87/63, Georges, Rec. 1964, p. 948). The contentious nature of the procedure only requires that the servant be invited to give his explanation of any new points of assessment furnished to the Board (Case 80/63, Degreef, Rec. 1964, p. 797). But, as you know, Mr Prakash had the last word. In his reply the applicant takes up the complaint about the absence of a confrontation again under another guise. He blames the Board for having refused to follow up the offers which he had made to furnish proof that his laboratory was inadequate, or to follow up similar offers concerning the want of financial resources. However, although he has indeed explained himself on these different points, there is nothing in the minutes to show that he made offers of proof concerning .them. Furthermore it was for the Board, which was in possession of the assessments concerning the applicant on which the latter had had the opportunity to explain himself, to consider whether it had a sufficiently clear view or whether on the contrary further enquiries were needed. Mr Prakash, it is true, complains that the Board did not include any experienced scientist able to form an opinon for himself on the effectiveness and the quality of the work carried out by him, and therefore it was led to rely entirely on the assessment of Mr Marchetti, his immediate superior. This ignores the fact that this Board, the membership of which complied with the conditions laid down in Article 102 of the Staff Regulations. did not only hear Mr Marchetti, but also the Director-General of the Centre and the Assistant Director-General who, it is admitted, were in a good position to assess the work of their fellow scientists. In its own words the application states that ‘the whole integration procedure must be described as arbitrary, lacking in objectivity and biased’. I think that what I have said is enough to show that this accusation is totally unjustified. Finally the application reminds you that the reason for an administrative decision must be stated clearly, and asserts that the conclusions of the Establishment Board are ‘vaguely and imprecisely worded’, and that they are vitiated because they are inadequate to an extent which makes it impossible for you to review them. In reply to this criticism I shall do no more than remind you of the full text of the opinion issued by the Board: ‘The Board considers that this servant, by his tendency towards excess in planning programmes and in calculating resources, 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.’