Judgment of the Court (First Chamber) of 7 April 1965. - Kurt Weighardt v Commission of the EAEC. - Case 11-64.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - INTEGRATION - WAIVER OF THE BENEFIT OF THE CONTRACT OF EMPLOYMENT MADE PRIOR TO THE ENTRY INTO FORCE OF THE STAFF REGULATIONS - APPEAL BASED ON THIS CONTRACT AGAINST A PART OF THE INTEGRATION DECISION - ADMISSIBILITY

( EAEC STAFF REGULATIONS, ARTICLES 91, 102, 104 )

2 . OFFICIALS - INTEGRATION - APPEAL AGAINST CLASSIFICATION AWARDED BY THE INTEGRATION DECISION - ADMISSIBILITY

( EAEC STAFF REGULATIONS, ARTICLE 102 )

3 . OFFICIALS - APPEALS - MEASURES PREPARATORY TO A DECISION - ABSENCE OF AN ACT ADVERSELY AFFECTING THE OFFICIAL CONCERNED

( EAEC STAFF REGULATIONS, ARTICLE 91 )

4 . OFFICIALS - INTEGRATION - INTEGRATION MEASURES - GROUND OF COMPLAINT TO BE RAISED BY MEANS OF AN ACTION AGAINST THE DECISION OF THE ADMINISTRATION CONSTITUTING THE FORMAL TERMINATION OF THE INTEGRATION PROCEDURE

( EAEC STAFF REGULATIONS, ARTICLES 91, 102 )

5 . OFFICIALS - INTEGRATION - INTEGRATION PROCEDURE - WRITTEN EVIDENCE OF THE ENTIRE PROCEDURE REQUIRED WHERE THERE IS REASON TO DOUBT THE REGULARITY OF THE PROCEDURE

( EAEC STAFF REGULATIONS, ARTICLE 102 )

Summary

1 . WAIVER OF THE BENEFIT OF THE CONTRACT OF EMPLOYMENT MADE PRIOR TO THE ADOPTION OF THE STAFF REGULATIONS, WHEREBY THE STAFF REGULATIONS ARE SUBSTITUTED FOR THE CONTRACT DOES NOT PREVENT THE CONTRACT ITSELF FROM CONSTITUTING A LEGALLY SIGNIFICANT FACTOR IN THE APPLICATION OF ARTICLE 102 OF THE REGULATIONS .

2 . AN OFFICIAL SUBJECTED TO THE INTEGRATION PROCEDURE UNDER THE STAFF REGULATIONS MAY CONTEST THE INTEGRATION DECISION IN SO FAR AS IT CONCERNS HIS CLASSIFICATION .

3 . THE MEASURES PREPARATORY TO A DECISION CANNOT CONSTITUTE AN ACT ADVERSELY AFFECTING AN OFFICIAL WITHIN THE MEANING OF ARTICLE 91 OF THE REGULATIONS .

4 . ANY COMPLAINT CONCERNING THE INTEGRATION MEASURES CAN ONLY BE MADE EFFECTIVELY THROUGH AN APPEAL AGAINST THE DECISION OF THE ADMINISTRATION WHICH CONSTITUTES THE FINAL STEP IN THE INTEGRATION PROCEDURE .

5 . THE ADMINISTRATION IS NOT BOUND TO PRODUCE WRITTEN EVIDENCE ON ALL QUESTIONS CONCERNING THE INTEGRATION PROCEDURE UNLESS THERE IS REASON TO SUSPECT THAT THERE ARE DEFECTS IN THE PROCEDURE .

Parties

IN CASE 11/64

KURT WEIGHARDT, AN OFFICIAL OF THE EAEC RESIDENT IN BRUSSELS, ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF BERNARD SCHMITZ, 6 RUE J.B . ESCH,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PIERRE MATHIJSEN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES 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 OF THE DEFENDANT OF 8 JANUARY 1964 IN SO FAR AS IT INTEGRATES THE APPLICANT IN GRADE A5, STEP 5, OF THE OPINION GIVEN BY THE ESTABLISHMENT BOARD, AND OF ALL THE MEASURES TAKEN DURING THE INTEGRATION PROCEDURE AND FORMING THE BASIS OF THE ABOVE - MENTIONED DECISION .

Grounds

P.297

I - ADMISSIBILITY

THE DEFENDANT CONTENDS THAT THE APPLICATION FOR THE ANNULMENT OF THE APPLICANT'S APPOINTMENT, ' BUT ONLY IN SO FAR AS IT INTEGRATED HIM IN GRADE A5, STEP 5 ', IS INADMISSIBLE . BY ACCEPTING HIS INTEGRATION IN GRADE A5 WITHOUT RESERVATION, AND BY GOING SO FAR AS TO MAKE AN EXPRESS DECLARATION WAIVING THE BENEFIT OF THE CONTRACT OF EMPLOYMENT TO WHICH HE WAS SUBJECT PRIOR TO THE ADOPTION OF THE STAFF REGULATIONS, THE APPLICANT RELINQUISHED, ACCORDING TO THE DEFENDANT, ANY CLAIM TO BE CLASSIFIED IN GRADE A4 .

ALTHOUGH, HOWEVER, WAIVER OF THE BENEFIT OF THE CONTRACT OF EMPLOYMENT MADE PRIOR TO THE ADOPTION OF THE STAFF REGULATIONS ( ARTICLE 104 OF THE STAFF REGULATIONS ) HAS THE EFFECT OF SUBSTITUTING THE STAFF REGULATIONS FOR THE CONTRACT OF EMPLOYMENT, THIS DOES NOT PREVENT THE CONTRACT ITSELF FROM CONSTITUTING A LEGALLY SIGNIFICANT FACTOR IN THE APPLICATION OF ARTICLE 102 OF THE REGULATIONS . WERE THE CONTRARY TRUE, OFFICIALS SUBJECT TO THE INTEGRATION PROCEDURE WOULD BE DEPRIVED OF THEIR RIGHTS UNDER ARTICLES 102 ET SEQ . OF THE REGULATIONS .

THIS OBJECTION MUST BE DISMISSED .

THE DEFENDANT NEXT CONTESTS THE ADMISSIBILITY OF THE APPEAL ON THE GROUND THAT THE APPLICANT CANNOT AT ONE AND THE SAME TIME CLAIM TO CHALLENGE HIS CLASSIFICATION IN GRADE A5 TO RETAIN THE BENEFIT OF INTEGRATION .

P.298

HOWEVER, THE APPLICANT HAS APPEALED AGAINST THE CONTESTED DECISION NOT IN SO FAR AS IT INTEGRATES HIM, BUT ONLY BECAUSE IT CLASSIFIES HIM IN A GRADE LOWER THAN THAT PREVIOUSLY ATTAINED BY HIM .

IF THAT PART OF THE DECISION WHICH RELATES TO CLASSIFICATION COULD NOT BE MADE SUBJECT TO JUDICIAL REVIEW, AN OFFICIAL SUBJECTED TO THE INTEGRATION PROCEDURE AND WHO HAS AN INTEREST IN APPEALING AGAINST THE IRREGULARITY OF THIS PART OF THE INTEGRATION DECISION, WOULD BE FORCED - IN ORDER TO EXERCISE HIS RIGHT OF APPEAL - TO BRING ABOUT, BY REJECTING THE PROPOSAL TO ESTABLISH HIM, A DECISION DENYING HIM INTEGRATION . THIS INTERPRETATION IS NOT CONSONANT WITH EFFICIENT ADMINISTRATION .

THE APPLICANT'S CONCLUSION, SO FAR AS THEY RELATE SOLELY TO HIS CLASSIFICATION IN GRADE A5 ARE ADMISSIBLE .

THE DEFENDANT FURTHER OBJECTS THAT THE CONCLUSIONS CONCERNING THE ANNULMENT OF ' ALL THE STEPS FOLLOWED IN THE INTEGRATION PROCEDURE CONCERNING THE APPLICANT, INCLUDING THE OPINION OF THE ESTABLISHMENT BOARD, THESE FORMING THE BASIS OF THE DECISION OF 8 JANUARY 1964 TAKEN BY THE EAEC COMMISSION ' ARE INADMISSIBLE; ONLY ACTS WHICH ADVERSELY AFFECT THE APPLICANT CAN BE ANNULLED, NOT PREPARATORY MEASURES .

SUCH ACTS, WHEN TAKEN DURING THE INTEGRATION PROCEDURE, CAN ONLY BE CONTESTED INCIDENTALLY IN AN APPEAL AGAINST MEASURES CAPABLE OF BEING ANNULLED, NOT BEING SO THEMSELVES . ANY COMPLAINT CONCERNING THEM CAN ONLY BE MADE EFFECTIVELY THROUGH AN APPEAL AGAINST THE COMMISSION'S DECISION WHICH CONSTITUTES THE FINAL STEP IN THE INTEGRATION PROCEDURE .

THE OBJECTION IS THEREFORE WELL-FOUNDED .

LASTLY, THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THE SUBMISSION RELATING TO THE REGULARITY OF THE COMPOSITION OF, AND PROCEDURE FOLLOWED BY, THE ESTABLISHMENT BOARD, A SUBMISSION FIRST RAISED IN THE APPLICANT'S REPLY .

HOWEVER, THE ARGUMENT IN QUESTION IS DERIVED FROM AN EXAMINATION OF THE ESTABLISHMENT BOARD'S MINUTES, ONLY PRODUCED BY THE DEFENDANT IN THE SCHEDULE TO ITS STATEMENT OF DEFENCE .

THE OBJECTION MUST BE DISMISSED .

THE OUTCOME OF THESE CONSIDERATIONS TAKEN AS A WHOLE IS THAT THE APPLICATION IS ADMISSIBLE, WITH THE EXCEPTION OF THE CONCLUSIONS SEEKING THE ANNULMENT OF THE PREPARATORY MEASURES IN THE INTEGRATION PROCEDURE .

P.299

II - THE SUBSTANCE OF THE CASE

THE FIRST, SECOND, FOURTH AND SIXTH SUBMISSIONS

IN HIS REPLY, THE APPLICANT EXPRESSLY WITHDREW THE FIRST, SECOND, FOURTH AND SIXTH SUBMISSIONS; ACCORDINGLY THERE IS NO NEED TO EXAMINE THEM .

THE NINTH SUBMISSION

THE APPLICANT OBJECTS TO THE COMPOSITION OF AND PROCEDURE FOLLOWED BY THE ESTABLISHMENT BOARD ON THE GROUND THAT, FIRST, THE DEFENDANT HAS FAILED TO PRODUCE ANY DOCUMENT PROVING THAT IT HAD ITSELF APPOINTED THE MEMBERS OF THE ESTABLISHMENT BOARD .

CIRCULAR NO 3/62 OF 2 FEBRUARY 1962 APPEARS IN THE APPLICANT'S PERSONAL FILE, SO THAT HE WAS IN A POSITION TO ACQUAINT HIMSELF WITH ITS CONTENTS . THE DEFENDANT IS NOT BOUND TO PRODUCE WRITTEN EVIDENCE ON ALL QUESTIONS CONCERNING THE INTEGRATION PROCEDURE, UNLESS THERE IS REASON TO SUSPECT THAT THERE ARE DEFECTS IN THE PROCEDURE; THIS IS NOT THE CASE HERE .

THE APPLICANT GOES ON TO CLAIM THAT THE COMPOSITION OF THE ESTABLISHMENT BOARD WAS ALTERED IN THE COURSE OF THE INTEGRATION PROCEDURE, AND THAT MEMBERS OF THE BOARD WHO WERE NOT PRESENT WHEN THE WITNESSES WERE HEARD NONETHELESS PARTICIPATED IN THE VOTE AND IN DRAFTING THE UNFAVOURABLE OPINION .

HOWEVER THE CONTENT OF THE STATEMENTS MADE BY THE WITNESSES WAS RECORDED IN THE MINUTES AND SHOWN TO THE MEMBERS OF THE BOARD .

THE APPLICANT FINALLY CLAIMS THAT NO RULES FOR THE BOARD'S MODUS OPERANDI WERE IN EXISTENCE, OR IF THEY WERE, THE DEFENDANT HAD REFUSED TO PRODUCE THE DOCUMENT CONTAINING THEM . ACCORDING TO THE APPLICANT, THIS MAKES IT IMPOSSIBLE FOR THE COURT TO SATISFY ITSELF OF THE REGULARITY OF THE PROCEDURE FOLLOWED, AND IN PARTICULAR TO DISCOVER THE MAJORITY BY WHICH THE DECISIONS SHOULD BE TAKEN AND WHETHER SUCH A MAJORITY WAS OBTAINED IN THIS INSTANCE .

THE PRINCIPLES GOVERNING THE FUNCTIONING OF THE BOARD WERE COMMUNICATED TO STAFF REPRESENTATIVES ON 1 FEBRUARY 1962; AND THE CONTENT OF THIS COMMUNICATION IS SUFFICIENT TO ENABLE THE COURT TO REVIEW THE FUNCTIONING OF THE BOARD . NO RULE AS TO THE MAJORITY REQUISITE FOR ISSUING AN OPINION HAVING BEEN LAID DOWN, IT MUST BE ASSUMED THAT A SIMPLE MAJORITY SUFFICED .

THE TEXT OF THE UNFAVOURABLE OPINION ISSUED BY THE ESTABLISHMENT BOARD WITH REGARD TO THE APPLICANT ON 19 FEBRUARY 1963 REVEALS THAT SUCH SIMPLE MAJORITY WAS OBTAINED .

P.300

THIS SUBMISSION IS ACCORDINGLY UNFOUNDED .

THE THIRD, FIFTH AND SEVENTH SUBMISSIONS

THE APPLICANT CLAIMS THAT HE WAS INADEQUATELY INFORMED OF THE STATEMENTS MADE BY HIS SUPERIORS AND THAT THE SUBMISSION OF EXAMPLES OF HIS WORK AS EVIDENCE OF HIS ABILITIES MET WITH A REFUSAL BY THE ESTABLISHMENT BOARD TO CONSIDER THEM .

THE MINUTES OF THE ESTABLISHMENT BOARD, PARTICULARLY THOSE OF THE MEETINGS HELD ON 30 AND 31 JANUARY 1963, SHOW THAT THE STATEMENTS MADE TO THE BOARD BY HIS SUPERIORS WERE COMMUNICATED TO THE APPLICANT . THE CONFLICTING STATEMENTS OF THE PARTIES AS TO WHETHER THE ESTABLISHMENT BOARD REFUSED TO EXAMINE THE EXAMPLES OF HIS WORK PRODUCED BY THE APPLICANT DO NOT REQUIRE THE COURT'S CONSIDERATION; IT IS SUFFICIENT TO STATE THAT THESE SAMPLES HAVE NO EVIDENTIAL VALUE . THERE IS NO EVIDENCE WHICH ENABLES THE COURT TO DETERMINE WITH CERTAINTY THE ROLE PLAYED BY THE APPLICANT IN DRAFTING THESE DOCUMENTS, THE MAJORITY OF WHICH WERE PUBLISHED IN THE NAME OF HIS SUPERIORS .

THE OTHER ARGUMENTS ADDUCED BY THE APPLICANT IN SUPPORT OF THIS SUBMISSION ARE NOT SUFFICIENTLY PROVEN . THIS SUBMISSION IS ACCORDINGLY UNFOUNDED .

THE APPLICANT NEXT CLAIMS THAT THE REASONS GIVEN FOR THE UNFAVOURABLE OPINION ARE INCONSISTENT WITH THE FACTS IN THE CASE AND THAT THEIR BASIS IS FACTUALLY INACCURATE OR REPRESENTS INACCURATE EVALUATIONS OF FACT . HE SEES A CONFLICT BETWEEN, ON THE ONE HAND, THE FAVOURABLE ASSESSMENT IN HIS PROBATION REPORT ( 17 MAY 1960 ), THE PROMOTION TO GRADE A4 WITH EFFECT FROM 1 MAY 1960 AND THE ADVANCEMENT IN STEP ( 1 NOVEMBER 1961 ); AND, ON THE OTHER HAND, THE UNFAVOURABLE DECISION ISSUED A FEW MONTHS LATER ON THE BASIS OF THE INTEGRATION REPORT ( 11 APRIL 1962 ), THE STATEMENTS OF HIS SUPERIORS ( OCTOBER 1962 ) AND THE OPINION OF THE ESTABLISHMENT BOARD .

DURING THE PERIOD PRIOR TO THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, THE DEFENDANT APPLIED WITH REGARD TO ITS STAFF THE 1956 ECSC STAFF REGULATIONS, ARTICLE 38 OF WHICH PROVIDES THAT ADVANCEMENT IN STEP IS AUTOMATIC . THERE REMAIN THUS IN THE APPLICANT'S FAVOUR ONLY THE PROBATION REPORT AND THE PROMOTION ( MAY 1960 ) PRECEDING BY ALMOST TWO YEARS THE INTEGRATION REPORT ( 11 APRIL 1962 ), THE FIRST UNFAVOURABLE ELEMENT TO APPEAR .

ALTHOUGH ACCORDING TO THE STATEMENT OF REASONS GIVEN BY THE ESTABLISHMENT BOARD FOR ITS OPINION ' CERTAIN DEFICIENCIES IN THE ABILITIES ( OF THE APPLICANT)...RESULTED IN HIS BEING GIVEN DUTIES TO PERFORM OF A LEVEL LOWER THAN THE REQUIREMENTS OF THE SERVICE, THERE IS NOTHING TO EXPLAIN HOW THE ESTABLISHMENT BOARD CAME TO THIS CONCLUSION . NOR IS THERE ANYTHING IN THE FILE WHICH ENABLES THE COURT TO JUDGE WHETHER THIS GROUND IS JUSTIFIED BY THE FACTS OF THE CASE .

THE COURT MUST ACCORDINGLY CONSIDER WHETHER THE ESTABLISHMENT BOARD COULD HAVE FOUND IN ANY OF THE OTHER ARGUMENTS PRESENTED SUFFICIENT GROUNDS FOR ITS UNFAVOURABLE ASSESSMENT OF THE APPLICANT'S ABILITIES .

THE ESTABLISHMENT BOARD RELIES UPON CERTAIN DEFICIENCIES IN THE APPLICANT'S ABILITIES, IN PARTICULAR HIS INADEQUATE KNOWLEDGE AND LACK OF INITIATIVE, WHICH SERIOUSLY IMPAIRED HIS EFFICIENCY IN CARRYING OUT DUTIES ATTACHED TO HIS POST . THE COURT FINDS IN THE FACTS OF THE CASE, PARTICULARLY IN THE INTEGRATION REPORT AND IN THE STATEMENTS OF THE APPLICANT'S SUPERIORS TO THE BOARD, SUFFICIENT GROUNDS FOR THE UNFAVOURABLE OPINION AS TO THE APPLICANT'S INTEGRATION . CONSEQUENTLY, THE ARGUMENT THAT THE INADEQUACY OF THE APPLICANT'S VOCATIONAL SKILLS MEANT THAT HE HAD TO BE GIVEN WORK OF A LEVEL LOWER THAN THAT REQUIRED CAN BE LEFT OUT OF CONSIDERATION AS HAVING NO DECISIVE INFLUENCE ON THE UNFAVOURABLE OPINION .

THE OTHER ARGUMENTS PUT FORWARD BY THE APPLICANT TO COUNTER THE REASONS STATED BY THE ESTABLISHMENT BOARD FOR ITS OPINION ARE NEITHER CONCLUSIVE NOR SUPPORTED BY ADEQUATE EVIDENCE . IT HAS NOT BEEN PROVED THAT THE ESTABLISHMENT BOARD BASED ITS OPINION ON THE APPLICANT'S INADEQUATE KNOWLEDGE OF FRENCH .

THIS SUBMISSION IS THEREFORE UNFOUNDED .

THE EIGHTH SUBMISSION

THE APPLICANT CLAIMS THAT HIS IMMEDIATE SUPERIOR, MR LECLERCQ, WAS INFLUENCED BY PERSONAL ANIMOSITY TOWARDS HIM TO GIVE A FALSE ASSESSMENT OF HIS VOCATIONAL ABILITIES, AND THAT IN TAKING THIS ASSESSMENT INTO ACCOUNT THE BOARD WAS GUILTY OF A MISUSE OF ITS POWERS .

NO EVIDENCE HAS BEEN TENDERED, HOWEVER, TO SUPPORT THESE CLAIMS . MOREOVER, THE REPORTS MADE BY THE APPLICANT'S OTHER SUPERIORS WERE LIKEWISE GENERALLY UNFAVOURABLE .

THIS SUBMISSION IS ACCORDINGLY UNFOUNDED .

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 INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS BY OFFICIALS OF THE COMMUNITIES .

HOWEVER, THE REASON GIVEN BY THE ESTABLISHMENT BOARD FOR ITS OPINION, TO THE EFFECT THAT THE APPLICANT DID WORK OF A LEVEL LOWER THAN THAT REQUIRED BY THE SERVICE IS NOT BORNE OUT EITHER BY THE STATEMENTS OF THE APPLICANT'S SUPERIORS OR BY THE FILE PRODUCED TO THE COURT . SINCE THIS CIRCUMSTANCE MIGHT HAVE INFLUENCED THE APPLICANT IN HIS DECISION TO MAKE THE APPEAL, THE DEFENDANT MUST BE MADE TO BEAR A PART OF THE APPLICANT'S COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION IN CASE NO 11/64, PARTLY ON THE GROUND OF INADMISSIBILITY AND PARTLY AS BEING UNFOUNDED;

2 . ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS AND ONE HALF OF THE COSTS INCURRED BY THE APPLICANT;

3 . ORDERS THE APPLICANT TO PAY THE REMAINING HALF OF THE COSTS INCURRED BY HIM .