Judgment of the Court (First Chamber) of 25 June 1964. - J.A.G. Baron de Vos van Steenwijk v Commission of the European Atomic Energy Community. - Case 84-63.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - INTEGRATION UNDER THE STAFF REGULATIONS - PROBATION REPORT - EXTENSION OF PROBATIONARY PERIOD - ESTABLISHMENT REPORT - PERIOD OF REFERENCE COVERING THE OFFICIAL'S WHOLE PERIOD OF SERVICE

( EAEC STAFF REGULATIONS, ARTICLE 102 )

2 . OFFICIALS - INTEGRATION UNDER THE STAFF REGULATIONS - UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD - GROUND OF COMPLAINT TO BE RAISED BY MEANS OF AN ACTION AGAINST THE DECISION OF THE APPOINTING AUTHORITY CONFIRMING THIS REPORT

( EAEC STAFF REGULATIONS, ARTICLES 91, 102 )

3 . OFFICIALS - INTEGRATION UNDER THE STAFF REGULATIONS - OPINION OF THE ESTABLISHMENT BOARD - COMMUNICATION BEFORE NOTIFICATION OF THE DECISION NOT OBLIGATORY

( EAEC STAFF REGULATIONS, ARTICLE 102 )

Summary

1 . IN SPITE OF THE EXISTENCE OF A REPORT DRAWN UP AFTER THE SERVING BY AN OFFICIAL OF A SIX MONTHS' PROBATIONARY PERIOD AND NOTWITHSTANDING ANY EXTENSION OF THIS PERIOD, THE ADMINISTRATION HAS THE RIGHT AND THE DUTY TO SUBMIT TO THE ESTABLISHMENT BOARD A MORE RECENT REPORT COVERING THE ENTIRE PERIOD WHICH HAS ELAPSED SINCE THE APPLICANT WAS ENGAGED .

2 . ANY GROUND OF COMPLAINT BY AN OFFICIAL AGAINST AN UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD CAN ONLY BE RAISED EFFECTIVELY BY MEANS OF AN ACTION AGAINST THE DECISION OF THE APPOINTING AUTHORITY, SINCE THIS DECISION, WHICH CONSTITUTES THE FINAL STEP IN THE INTEGRATION PROCEDURE, IS REQUIRED TO CONFIRM THE OPINION .

3 . THE ADMINISTRATION IS NOT BOUND TO INFORM THE OFFICIAL OF THE OPINION OF THE ESTABLISHMENT BOARD BEFORE ITS DECISION REGARDING HIS INTEGRATION IS NOTIFIED TO HIM .

Parties

IN CASE 84/63

J . A . G . BARON DE VOS VAN STEENWIJK, REPRESENTED BY ANDRE ELVINGER, ADVOCATE AT THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ELVINGER, 84 GRAND-RUE, APPLICANT,

V

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

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION REFUSING TO INTEGRATE THE APPLICANT AND TERMINATING HIS CONTRACT AND FOR THE PAYMENT OF DAMAGES;

Grounds

ON ADMISSIBILITY

THE DEFENDANT HAS MADE NO OBJECTION TO THE ADMISSIBILITY OF THE APPLICATION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . THE APPLICATION IS THEREFORE ADMISSIBLE .

ON THE SUBSTANCE OF THE CASE

ON THE GROUND OF COMPLAINT BASED ON THE IRREGULAR EXTENSION OF THE PROBATIONARY PERIOD

THE APPLICANT MAINTAINS THAT THE EXTENSION OF HIS PROBATIONARY PERIOD WAS DETRIMENTAL TO HIM ON THE GROUND THAT THE REPORT PREPARED AT THE END OF HIS FIRST SIX MONTHS' SERVICE WAS FAVOURABLE TO HIM, WHEREAS THE REPORT PREPARED AFTER THE EXTENSION OF HIS PROBATIONARY PERIOD, ON WHICH THE ESTABLISHMENT BOARD RELIED, WAS UNFAVOURABLE . THEREFORE, SINCE THE EXTENSION WAS IRREGULAR, SO TOO MUST BE THE CONTESTED DECISION .

EVEN IF THE APPLICANT'S PROBATIONARY PERIOD DID NOT TAKE AN ENTIRELY NORMAL COURSE IT CANNOT BE SAID THAT THE IRREGULARITIES INVOKED IN THIS CONNEXION ARE SUCH AS COULD INVALIDATE THE DECISION NOT TO INTEGRATE HIM .

IN FACT, SINCE THE INTEGRATION PROCEDURE TOOK PLACE MORE THAN A YEAR AFTER THE END OF THE PERIOD REFERRED TO IN THE PROBATION REPORT OF 16 FEBRUARY 1962, THE ADMINISTRATION, NOTWITHSTANDING ANY EXTENSION OF THE APPLICANT'S PROBATIONARY PERIOD, HAD THE RIGHT AND THE DUTY TO SUBMIT TO THE ESTABLISHMENT BOARD A MORE RECENT REPORT COVERING THE ENTIRE PERIOD WHICH HAD ELAPSED SINCE THE APPLICANT WAS ENGAGED . THE ESTABLISHMENT REPORT DRAWN UP IN NOVEMBER 1962 WAS THEREFORE PROPERLY PUT BEFORE THE ESTABLISHMENT BOARD .

THIS GROUND OF COMPLAINT IS THEREFORE UNFOUNDED .

ON THE GROUND OF COMPLAINT BASED ON THE INTEGRATION PROCEDURE

THE APPLICANT COMPLAINS THAT THE FULL CONTENTS OF THE OPINION OF THE ESTABLISHMENT BOARD WERE NOT MADE AVAILABLE TO HIM BEFORE THE DECISION REFUSING TO INTEGRATE HIM WAS TAKEN AND THAT THE OPINION WAS NOT PLACED IN HIS PERSONAL FILE .

THE UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD IS BINDING ON THE APPOINTING AUTHORITY . ANY GROUND OF COMPLAINT BY THE PERSON CONCERNED AGAINST THIS OPINION COULD ONLY BE RAISED EFFECTIVELY BY MEANS OF AN ACTION AGAINST THE DECISION OF THE APPOINTING AUTHORITY, SINCE THIS DECISION, WHICH CONSTITUTES THE FINAL STEP IN THE INTEGRATION PROCEDURE, IS REQUIRED TO CONFIRM THE OPINION .

THEREFORE, THE APPLICANT COULD NOT HAVE BEEN PREJUDICED BY THE FAILURE TO INFORM HIM OF THE OPINION BEFORE THE DECISION WAS TAKEN . IN THOSE CIRCUMSTANCES, THE ADMINISTRATION CANNOT BE REGARDED AS BOUND TO INFORM THE PARTY CONCERNED OF THE OPINION OF THE ESTABLISHMENT BOARD BEFORE ITS DECISION IS NOTIFIED TO HIM .

MOREOVER, THE APPLICANT CONSIDERS THAT THE INTEGRATION PROCEDURE IS IRREGULAR IN THAT HE WAS ALLOWED NO MEETING WITH THOSE HEADS OF DEPARTMENT WHO DREW UP HIS ESTABLISHMENT REPORT .

THE APPLICANT WAS IN A POSITION TO GIVE THE ESTABLISHMENT BOARD HIS VIEWS ON THE OBSERVATIONS MADE WITH REGARD TO HIM BY HIS HEADS OF DEPARTMENT .

FURTHERMORE, IN VIEW OF THE CIRCUMSTANCES PECULIAR TO THIS CASE, A DIRECT MEETING BETWEEN THE SERVANT CONCERNED AND HIS HEADS OF DEPARTMENT COULD HARDLY HAVE BROUGHT ANY SUBSTANTIAL NEW FACTS TO THE NOTICE OF THE BOARD .

THE APPLICANT'S COMPLAINTS BASED ON THE UNLAWFUL NATURE OF THE INTEGRATION PROCEDURE ARE THEREFORE UNFOUNDED .

ON THE SUBMISSIONS CONCERNING THE IRREGULAR ASSESSMENT OF THE APPLICANT'S ABILITIES

( A ) ON THE INFRINGEMENT OF THE TREATY

THE APPLICANT MAINTAINS THAT, SINCE, DURING THE PERIOD COVERED BY THE SUBSTANCE OF THE ESTABLISHMENT REPORT, IT HAD BEEN MADE IMPOSSIBLE FOR HIM TO PERFORM HIS DUTIES AS ASSISTANT TO THE DIRECTOR OF THE ISPRA CENTRE FOR WHICH HE HAD BEEN ENGAGED, ANY ASSESSMENT OF HIS ABILITIES WAS BASICALLY DEFECTIVE .

IT IS TRUE THAT ON THE ASSIGNMENT OF THE APPLICANT TO A ' PLANNING OFFICE ' ESTABLISHED FOLLOWING THE ARRIVAL AT ISPRA OF MR MERCEREAU A CHANGE TOOK PLACE IN HIS ORIGINAL POSITION WITHIN EURATOM . IN VIEW OF THE VERY GENERAL TERMS USED IN THE LETTER OF APPOINTMENT AND OF THE REQUIREMENTS RELATING TO THE ORGANIZATION OF THE DEPARTMENTS WHICH BECAME PARTICULARLY APPARENT DURING THE ESTABLISHMENT OF THE ISPRA CENTRE, THIS TRANSFER DOES NOT APPEAR TO EXCEED THE VERY WIDE POWERS WHICH IT MUST BE ADMITTED WERE NECESSARILY HELD AT THAT TIME BY THE DIRECTORATE OF THE CENTRE .

IN THESE CIRCUMSTANCES, IT IS REASONABLE THAT THE REPORT DRAWN UP FOR THE PURPOSES OF THE INTEGRATION PROCEDURE CONCERNING THE APPLICANT SHOULD ASSESS ALL THE ACTIVITIES IN FACT CARRIED OUT BY THE APPLICANT IN THE PERFORMANCE OF THE VARIOUS TASKS ENTRUSTED TO HIM .

THIS GROUND OF COMPLAINT IS THEREFORE UNFOUNDED .

THE APPLICANT MAINTAINS, MOREOVER, THAT HE HAD NOT BEEN ALLOWED TO SHOW HIS ABILITIES SINCE NO SPECIFIC TASK HAD BEEN GIVEN TO HIM DURING THE PERIOD COVERED BY THE SUBSTANCE OF THE ESTABLISHMENT REPORT AND ALL CONTACT WITH THE VARIOUS DEPARTMENTS HAD BEEN REFUSED HIM .

AS REGARDS THE WORK HE DID DO, THE APPLICANT IS CRITICIZED MAINLY FOR HIS LACK OF INITIATIVE IN FINDING PROBLEMS FOR STUDY AND FOR HIS CARELESSNESS; ALTHOUGH, AS WAS ADMITTED IN HIS EVIDENCE GIVEN TO THE CHAMBER BY MR MERCEREAU, ASSISTANT DIRECTOR OF THE CENTRE, THE APPLICANT'S WORK ON SPECIFIC QUESTIONS WAS AT FIRST OF THE REQUIRED STANDARD . THE MEASURES OF INQUIRY CARRIED OUT BY THE CHAMBER AT THE REQUEST OF THE APPLICANT DID NOT DISCLOSE ANYTHING WHICH MIGHT SHOW THAT HE HAD BEEN PREVENTED FROM HAVING CONTACTS WITH THOSE DEPARTMENTS WHICH MIGHT HAVE BEEN AFFECTED BY HIS ACTIVITIES . THEREFORE, HAVING REGARD TO THE VERY GENERAL NATURE OF THE TASKS INVOLVED IN THE APPLICANT'S DUTIES, THERE ARE NO GROUNDS FOR STATING THAT HE HAD NO OPPORTUNITY TO DEMONSTRATE HIS ABILITIES .

ALTHOUGH IT IS POSSIBLE THAT THE DETERIORATION IN THE APPLICANT'S PERSONAL RELATIONS WITH THE DIRECTORATE OF THE ISPRA CENTRE AND HIS DISAPPOINTMENT AT BEING ASSIGNED TO THE PLANNING OFFICE AFFECTED HIS GENERAL BEHAVIOUR, THIS COULD NOT JUSTIFY HIS NEGATIVE ATTITUDE, TYPIFIED AMONG OTHER THINGS BY SEVERAL UNJUSTIFIED PERIODS OF ABSENCE, WHICH WAS CONTRARY TO THE BASIC PRINCIPLES NECESSARY FOR THE EFFICIENT RUNNING OF THE DEPARTMENTS .

THIS GROUND OF COMPLAINT CANNOT THEREFORE BE UPHELD .

( B ) ON THE MISUSE OF POWERS

THE APPLICANT MAINTAINS THAT THE DIRECTOR - GENERAL MISUSED HIS POWERS IN DRAWING UP AN UNFAVOURABLE REPORT IN THAT HE USED HIS POWERS OF ASSESSMENT FOR PERSONAL ENDS .

THE REPORT ON THE APPLICANT SUBMITTED TO THE ESTABLISHMENT BOARD BY THE ASSISTANT DIRECTOR OF THE CENTRE WHO DID NOT HAVE A POOR RELATIONSHIP WITH THE APPLICANT, CONFIRMS IN SUBSTANCE, ALTHOUGH IN MORE CAREFULLY CHOSEN TERMS, THE UNFAVOURABLE REPORT OF THE DIRECTOR-GENERAL . THIS BEING SO, THERE IS NO CONCLUSIVE EVIDENCE THAT THE UNFAVOURABLE ASSESSMENT OF THE APPLICANT MADE IN THE REPORT OF THE DIRECTOR-GENERAL OF THE CENTRE WAS BASED ON PERSONAL ANIMOSITY AGAINST THE APPLICANT . THIS SUBMISSION CANNOT THEREFORE BE UPHELD .

ON THE CLAIM FOR DAMAGES

IT IS CLEAR FROM THE ABOVE CONSIDERATIONS THAT THE APPLICANT HAS BEEN UNABLE TO SHOW THAT THE CONTESTED DECISION WAS ILLEGAL . THEREFORE, TAKING INTO ACCOUNT ITS NATURE AND PURPOSE, THIS DECISION COULD ONLY CONSTITUTE A WRONGFUL ACT GIVING RISE TO A CLAIM FOR DAMAGES IF IT CONTAINED SUPERFLUOUS CRITICISMS OF THE PERSON REFERRED TO IN IT . IN THIS CASE THE STATEMENT OF REASONS FOR THE CONTESTED DECISION DOES NOT CONTAIN SUCH CRITICISMS .

THEREFORE, IT ONLY REMAINS TO CONSIDER THE CLAIM FOR DAMAGES BASED ON INSUFFICIENCY OF THE PERIOD OF NOTICE . THE PERIOD OF ONE MONTH'S NOTICE APPLIED TO THE APPLICANT WAS THE PERIOD LAID DOWN IN HIS CONTRACT OF EMPLOYMENT . MOREOVER, UNDER ARTICLE 102 ( 2 ) OF THE STAFF REGULATIONS THE APPLICANT RECEIVED IN ADDITION COMPENSATION EQUAL TO TWO MONTHS' BASIC SALARY AS PROVIDED FOR IN ARTICLE 34 OF THE STAFF REGULATIONS . BY PAYMENT OF THIS COMPENSATION, DIRECTLY DETERMINED BY THE STAFF REGULATIONS, THE DEFENDANT HAS PROPERLY FULFILLED ITS OBLIGATIONS WITH REGARD TO NOTICE IN THIS CASE .

THEREFORE THE CONCLUSIONS OF THE APPLICANT CONCERNING DAMAGES CANNOT BE ACCEPTED .

Decision on costs

THE APPLICANT HAS FAILED IN HIS ACTION .

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

HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS INSTITUTED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

SINCE THE WITNESSES WERE HEARD IN THEIR CAPACITY AS OFFICIALS OF THE COMMISSION OF THE EAEC, THEIR TRAVEL EXPENSES MUST BE BORNE BY THE DEFENDANT .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS;

3 . ORDERS THE TRAVEL EXPENSES OF THE WITNESSES TO BE BORNE BY THE DEFENDANT .