(e)

As I have just indicated, we must nevertheless consider whether the applicant can obtain something through his claims for damages. In this connexion he alleged that he was really compelled to retire owing to the arrangements with regard to his conditions of work in the period from July 1967 to June 1969, particularly as he was given duties to which he felt himself unfitted and, apart from this fact, pressure was also brought to bear on him to seek to be retired. As it must be acknowledged from the outset, claims for damages may in fact be founded in this way precisely because it is conceivable that a wrongful act on the part of the administration may lead to a request for dismissal, which permits the conclusion that but for this fault the official in question would have remained in the service. Let us then consider in greater detail the line of argument put forward by the applicant in the present context. In this connexion certain arguments which must be considered as irrelevant to the applicant's request can be dismissed immediately. This is so with regard to the argument that the post of Director of the Directorate-General for Industrial Affairs for which he applied, was filled both in July 1967 and in April 1968 in circumstances amounting to a misuse of powers, that is to say, on the sole basis of the nationality of the official appointed. This argument cannot be taken into consideration because the applicant failed to contest the corresponding appointments within the appropriate time-limit. As I understand it, he is thus unable to make this complaint indirectly in proceedings founded on the liability of the administration which, moreover, may turn — let it not be for gotten — as a contributory fault on the part of the applicant which may reside precisely in his failure to initiate proceedings. A similar negative conclusion is also called for as regards the argument that since the applicant did not apply for the post assigned to him, the Commission was wrong in assuming that these duties interested him. In this connexion there must be recalled first of all the letter from the Vice-President, Mr Levi Sandri, of 3 February 1969 according to which the post in dispute was assigned to the applicant ‘with his full consent’ and the applicant's letter of 15 March 1969 addressed to the President of the European Parliament in which he declared himself unable to refuse the post of Director of the Directorate-General for Dissemination of Information. Apart from this the really decisive factor, however, is that the applicant's consent was in no way necessary since posts are in principle allocated by unilateral discretionary acts taken solely in the interests of the service. Let us rather ask, therefore, what is to be made of the applicant's other arguments with regard to the assignment and retention of the duties of Director of the Directorate-General for Dissemination of Information, the last he performed before leaving the service of the Commission. In this connexion several aspects are to be distinguished. We shall not have to dwell long on a first point, that is, the complaint that the applicant was left uncertain as to what his duties of his post were because the task was not of a special nature nor was any definition of his duties given, as was done in 1970, when, after his departure, the post was opened to competition under No COM/20/70. In reality, this factor may be regarded as unimportant. Apart from the fact that the Treaty itself devotes a special chapter to the dissemination of information (which might have served as guidance) it must be expected of a senior official that he should himself endeavour to obtain the necessary clarification, in particular by communicating with his colleagues or raising the matter with the Commission. If he fails to do so he cannot subsequently complain that the nature of the duties assigned him was not precisely defined. A similar fate must befall the applicant's argument that linguistic reasons, that is to say, the fact that the applicant's lack of English which is of prime importance in internal relations prevented him from properly administering the Directorate-General for Dissemination of Information. In this connexion the applicant has put forward correspondence exchanged between him and the Director of his former Directorate-General. In my opinion however this very correspondence militates against the applicant. In the request of this director of 7 May 1968 to be allowed to use English for drafting confidential and technical notes, it is in fact said that he understands French without difficulty and can express himself verbally in this language. Furthermore the applicant's reaction to this request is instructive. In fact he declared in quite general terms in a letter of 30 May 1968 that he had no intention of altering the languages in which the Directorate-General worked; on the contrary he did not make any attempt, which would have been in line with his present argument, to suggest limiting or altering those methods. Consequently the applicant cannot now be allowed to put forward linguistic problems as a reason justifying his request to be retired on principally because the possibility existed (and was apparently even used by the applicant) to overcome the existing difficulties by selecting an assistant with a knowledge of languages. On the other hand greater weight might be accorded to the applicant's explanation that the technical and administrative requirements of the post assigned to him and which were the predominant requirements for filling it, were such that he could not meet them on the basis of his training in economics and his experience, which was largely industrial. This becomes clear if it is recalled that there was no one in his Directorate-General capable of following specialized technical, legal and scientific works (for example in the field of patent law) or of dealing with scientific information through electronic equipment. In this way the applicant was gradually reduced to a tormented state of frustration, a neurotic frustration syndrome, which finally led him to tender his resignation. With regard to this argument it cannot in fact be denied (nor does the Commission deny it) that for the applicant, as someone whose previous duties related principally to steel, there might be difficulties in performing duties for which, in the words of the abovementioned notice of competition, the requisite qualifications were as follows: knowledge of and professional experience in the field of information and scientific documentation; knowledge of the problems relating to the management of scientific research and its international relations in this subject; knowledge of the law on the protection of industrial property and of documentation in the field of patent law. Nevertheless I must accept, following the Commission, that these do not constitute insuperable difficulties. In this connexion the important factor is not solely that senior and highly qualified officials may be expected to have a certain adaptability and the capacity within a relatively short time to acquire competence in a new field of activity. The determining factor is above all, as was pointed out in particular in the letter of 3 February 1969 from the Vice-President Levi Sandri, that the duties assigned to the applicant require ‘qualities of management and personal authority rather than detailed technical knowledge’. I therefore agree with the view, expressed by the President of the Commission in his letter to the applicant of 13 June 1968, that he was convinced that the applicant could make ‘a genuine contribution to the efficient running of the institution’ as Director-General, with which Vice-President Levi Sandri concurred in his abovementioned letter of 3 February 1969 wherein he stated that the applicant was able, if only he so wished, to adapt himself perfectly well to the duties assigned to him. It thus only remains to ask whether the applicant made the necessary effort to familiarize himself with his duties or whether he neglected to do so because from the very outset he concerned himself more with other ends. In fact the latter seems to be the case judging by the applicant's repeated claims noted in the statement of facts. Viewed in this light, it also appears far from certain whether the objective difficulties of running the department caused the illness which occurred in March 1969. In my opinion it is in any event impossible to support this argument by the certificates produced by the applicant and issued by his family doctor. Since, finally, there is no evidence to be found for any other pressure brought to bear on the applicant with a view to procuring his departure, it is clear that there are no grounds for speaking of a wrongful act or omission on the part of the Commission. In conclusion I should like to add that even if such a wrongful act or omission had occurred a request to be retired and the related assertion of claims for damages would not appear unconditionally justified. We should rather require the exhaustion beforehand of all other remedies, including the institution of proceedings, for the purpose of altering the situation in dispute, if every element of contributory fault is to be excluded. Accordingly we arrive finally at the finding that since there was neither illegality nor the occurrence of a wrongful act or omission in the allocation and retention of the duties entrusted to the applicant, there can be no question of a claim for damages either in the form of the sums which the applicant has variously assessed in his pleadings or under Article 42 of the former Staff Regulations of Officials of the ECSC.