A —

The first is based on the irregularity of the integration procedure: the applicant alleges that insufficient regard was paid to the necessity, inherent in such procedure, for allowing the candidate to be heard. First, the applicant was not allowed a meeting before the Board with his immediate superior whose unfavourable report constituted the crucial element in the Board's unfavourable recommendation; secondly, he was not shown the minutes of the hearing of the Director-General of Economics and Energy. This submission must be examined with particular care since this is the first time that you have been required to hear an application concerning a refusal to allow integration under Article 93 of the Staff Regulations. The Staff Regulations themselves contain no provisions concerning the procedure to be followed by the Board. As you know, they merely provide that recommendations of the Board in favour of integration are not binding on the appointing authority although this authority cannot override an unfavourable recommendation; this rule obviously has the effect of giving the Board the decisive role in such cases and obliges it to require the guarantees normally necessary for a decision of this sort. In the absence of written rules what guarantees are in fact required? This is the crucial question. To answer this we must look at the subject of the decision to be taken. As the applicant himself very pertinently explained in his statements of case, this is a recruitment procedure intended primarily to enable the administration to create a corps of permanent officials qualified to perform the duties which are to be allotted to them. However, in so far as we are concerned with servants who are already in the service and who fulfil certain requirements, it is reasonable to admit that they have a certain ‘entitlement’ (to quote the term used in the Kergall judgment which is here perfectly appropriate although attempts have sometimes been made to twist its meaning) to be established in posts which they hold already or in other posts in the same administration. Hence the need to surround the decision with guarantees intended to prevent arbitrary action. The situation is therefore very different from that which arises in a disciplinary case (or, a fortiori, in a criminal case); it is not a question of enabling an official whose position is covered by Staff Regulations to defend himself against an accusation of misconduct which is likely to lead to the deprivation of all the rights which are granted to him by those Staff Regulations. It is merely a question of considering his previous services and of assessing his ability to perform permanently the duties corresponding to the grade in which he is likely to be established. It is a necessarily subjective assessment which by its very nature comes within the exercise of the discretionary power. However, since the decision to be taken is so important and since a certain consistency is desirable in the integration process as a whole, a decision made by the competent authority on the recommendation of the heads of departments concerned is not sufficient; responsibility for assessing the official's abilities is entrusted to a Board whose very membership should offer the necessary guarantees both to the administration and to the candidates. This being so I consider that it would be excessive in such cases to allow the validity of a refusal to integrate an official to depend upon the observance of a wholly contentious procedure as it would in legal or disciplinary proceedings. In my opinion it is necessary and sufficient to make sure that the Board, before taking an unfavourable decision, has considered the whole file and has, where necessary, requested such additional information from the heads of department concerned, from the official himself or from any other source which it deems useful as to enable it to make an informed assessment. This procedure appears to me without question to have been followed in this case. The Board did not limit itself to adopting the wholly unfavourable and clearly reasoned assessment made by the applicant's immediate head of department. It heard in addition the Director-General and the applicant himself, who was informed of the observations made by the Director-General and asked to comment on them. When the Board made its decision it was in possession of all the necessary evidence. It considered that it would be unnecessary for the applicant to meet the Director-General, there being little to add to what each of them had already said; it was fully entitled to adopt such an attitude in a procedure of this kind, which, it must be repeated, has no connection with criminal proceedings. Moreover the following passage is to be found in the minutes of the meeting of the Board on 20 June 1962: ‘as regards his request to meet his immediate superiors, Mr Leroy states that he is satisfied with the information given orally by Mr Signorini’, the chairman of the Board. As for the minutes of the examination of the Director-General the applicant may not have seen them before the contested decision was taken but, as I have just said, the Board gave him an oral report of the hearing and asked him for his comments. It is true that this report (which according to the High Authority, was fuller than that which appeared in the minutes) may in fact have omitted certain points; but had this been so, the applicant would not have failed to draw attention to it in his application, since as the minutes appear in his personal file and were produced by the High Authority (document no 48/1), he was aware of them at the time when he brought the application. Therefore, in my opinion the first submission, based on the irregularity of the procedure before the Establishment Board, must be rejected.