1 . THE APPLICANT CLAIMS IN THE FIRST INSTANCE THAT BOTH THE INTEGRATION PROCEDURE AND THE OPINION OF THE ESTABLISHMENT BOARD NOTIFIED TO THE APPLICANT BY LETTER OF 28 JUNE 1963 SHOULD BE ANNULLED . THE DEFENDANT MAINTAINS THAT THIS HEAD OF THE CONCLUSIONS IS NOT ADMISSIBLE, IN THAT IT DOES NOT RELATE TO THE ANNULMENT OF A MEASURE HAVING THE NATURE OF A DECISION . IT EMERGES FROM ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS THAT DISPUTES BETWEEN THE COMMUNITY AND ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY REFER TO THE LEGALITY OF AN ACT ' ADVERSELY AFFECTING SUCH A PERSON ' (' UN ACTE FAISANT GRIEF A CETTE PERSONNE '). ONLY ACTS WHICH ARE CAPABLE OF DIRECTLY AFFECTING THE LEGAL POSITION OF SERVANTS CAN BE CONSIDERED AS ADVERSELY AFFECTING A PERSON . IN THIS CASE THE INTEGRATION PROCEDURE IS NOT AN ACT ADVERSELY AFFECTING A PERSON BUT CONSISTS OF A SERIES OF LEGAL ACTS AND MEASURES PREPARATORY TO THE CONTESTED DECISION TO TERMINATE THE CONTRACT . AS FAR AS THE OPINION OF THE ESTABLISHMENT BOARD IS CONCERNED IT SHOULD BE NOTED THAT, EVEN WHEN IT IS FAVOURABLE TO THE INTEGRATION OF THE SERVANT, HIS LEGAL POSITION IS NOT AFFECTED UNTIL THE APPOINTING AUTHORITY TAKES THE DECISION AFFECTING HIM . ALTHOUGH UNDER ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS, THIS OPINION CONSTITUTES AN ESSENTIAL FACTOR ON THE BASIS OF WHICH THE DECISION OF THE SAID AUTHORITY IS TAKEN AND WHICH BINDS IT, IT IS ADDRESSED ONLY TO THE APPOINTING AUTHORITY, WHEREAS UNDER THE FIRST PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED . IT MUST THEREFORE BE CONCLUDED THAT, FOR THE PURPOSES OF THE APPEAL PROVIDED FOR BY ARTICLE 91 OF THE STAFF REGULATIONS, THE OPINION OF THE ESTABLISHMENT BOARD IS NOT A MEASURE WHICH CAN BE SEPARATED FROM THE DECISION TAKEN BY THE APPOINTING AUTHORITY . FOR ALL THESE REASONS THIS HEAD OF THE CONCLUSIONS IS INADMISSIBLE TO THE EXTENT TO WHICH IT SEEKS THE ANNULMENT OF THE INTEGRATION PROCEDURE AND OF THE DISPUTED OPINION, CONSIDERED INDEPENDENTLY OF THE CONTESTED DECISION TO DISMISS THE APPLICANT . THE ARGUMENTS PUT FORWARD IN SUPPORT OF THESE CONCLUSIONS CAN HOWEVER BE INVOKED AGAINST THE SAID DECISION .
2 . THE APPLICANT PUTS FORWARD IN ADDITION THE ARGUMENT THAT WHEN THE ESTABLISHMENT BOARD GAVE ITS DISPUTED OPINION IT RELIED ON REPORTS AND ASSESSMENTS WHICH, SINCE NO UNIFORM CRITERIA FOR THE PREPARATION OF REPORTS WERE DETERMINED BEFOREHAND, CONTAIN SUBJECTIVE ASSESSMENTS AND DO NOT RELATE TO FACTS WHICH CAN BE CHALLENGED BY PRODUCTION OF EVIDENCE TO THE CONTRARY . THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS LAYS DOWN THAT THE ESTABLISHMENT BOARD SHALL GIVE ITS OPINION ' ON THE BASIS OF A REPORT ON THE OFFICIAL'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE PREPARED BY HIS SUPERIORS '. AS THE PURPOSE OF SUCH A REPORT IS TO GIVE A VALUE-JUDGMENT ON A SERVANT'S APTITUDE IN THE PERFORMANCE OF HIS DUTIES, IT MUST OF NECESSITY CONTAIN SUBJECTIVE ASSESSMENTS BY THE PERSONS CALLED UPON TO PREPARE IT . EVEN IF THE CRITERIA FOR MAKING THIS REPORT HAD BEEN DETERMINED BEFOREHAND IN A UNIFORM MANNER, THEY WOULD ONLY CREATE THE FORMAL CONTEXT WITHIN WHICH THE FACTORS TAKEN INTO ACCOUNT BY EVERY PERSON MAKING A REPORT WOULD BE EVALUATED SUBJECTIVELY . MOREOVER, ALTHOUGH THE ESTABLISHMENT BOARD ADVISES ON THE BASIS OF THIS REPORT, IT CANNOT DISREGARD THE SPECIFIC FACTS BEFORE GIVING ITS OPINION . THIS SUBMISSION THEREFORE DOES NOT APPEAR TO BE WELL FOUNDED . INFRINGEMENT OF THE LAST PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS THE APPLICANT ARGUES THAT THE OPINION OF THE ESTABLISHMENT BOARD IS DEFECTIVE BECAUSE THE REASONS UPON WHICH IT IS BASED ARE INADEQUATE IN LAW . AS HAS ALREADY BEEN FOUND, THE SUBMISSIONS THAT THIS OPINION IS DEFECTIVE ARE ONLY ADMISSIBLE TO THE EXTENT TO WHICH THEY REFER TO THE LEGALITY OF THE DISPUTED DECISION ARISING OUT OF IT . IN THESE CIRCUMSTANCES THE MERITS OF THIS SUBMISSION MUST BE EXAMINED BY THE COURT WITH REFERENCE TO THE SAID DECISION . THE ESTABLISHMENT BOARD STATES IN ITS REPORT N . 11 OF 13 JULY 1962 THAT ITS UNFAVOURABLE OPINION ON THE INTEGRATION OF THE APPLICANT WAS GIVEN ' AFTER TAKING NOTE OF THE REPORT ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF MR DEGREEF ..., AFTER OBTAINING ALL THE NECESSARY FACTS AND AFTER HEARING THE SERVANT HIMSELF . ' IN ADDITION IT STATES IN HIS REPORT THE REASONS FOR ITS UNFAVOURABLE OPINION, THAT IS TO SAY, THAT IN THE APPLICANT'S CASE ' A SUFFICIENTLY CONSCIENTIOUS APPROACH TO HIS WORK ' AND ' THE REQUISITE PUNCTUALITY FOR HIS WORK AS A MESSENGER ' ARE BOTH LACKING . IN THESE CIRCUMSTANCES IT MUST BE FOUND THAT THE REASONS UPON WHICH THE OPINION OF THE ESTABLISHMENT BOARD IS BASED ARE ADEQUATE HAVING REGARD TO THE REFERENCES WHICH IT MAKES BOTH TO THE INFORMATION USED BY THE BOARD AND TO THE BASIC FACTS WHICH THE BOARD ACCEPTED TO JUSTIFY ITS OPINION . THE WORDING OF THE OPINION WAS NOTIFIED TO THE APPLICANT BY LETTER OF 28 JUNE 1963 TOGETHER WITH THE DISPUTED DECISION TAKEN BY THE APPOINTING AUTHORITY TO TERMINATE HIS CONTRACT OF EMPLOYMENT . IT MUST THEREFORE BE CONCLUDED THAT SUFFICIENT REASONS FOR THE SAID DECISIONS HAVE BEEN GIVEN . INFRINGEMENT OF THE RIGHTS OF THE DEFENCE AND OF GENERAL LEGAL PRINCIPLES THE APPLICANT THEN ARGUES THAT AS THE REPORT ON HIS ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE WAS ON THE WHOLE FAVOURABLE, IT OUGHT NORMALLY TO HAVE LED TO HIS INTEGRATION . HE INFERS FROM THIS FACT THAT THE DECISION TO TERMINATE HIS CONTRACT OF EMPLOYMENT IS ALL THE MORE DEFECTIVE BECAUSE THE ESTABLISHMENT BOARD, BEFORE GIVING AN UNFAVOURABLE OPINION, SHOULD, WITH DUE REGARD TO THE RIGHTS OF THE DEFENCE AND TO GENERAL LEGAL PRINCIPLES, HAVE BROUGHT TO HIS NOTICE ALL THE FACTS CAPABLE OF JUSTIFYING THIS OPINION AND MADE IT POSSIBLE FOR HIM TO CHALLENGE ITS SUBSTANCE IF NECESSARY . ACCORDING TO THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS THE BOARD GIVES ITS OPINION TO THE APPOINTING AUTHORITY ' ON THE BASIS OF A REPORT ON THE OFFICIAL'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE, PREPARED BY HIS SUPERIORS ...'. THE REPORT ON THE APPLICANT'S APTITUDE IN THE PERFORMANCE OF THE DUTIES OF HIS POST, ISSUED BY HIS SUPERIORS AND SUBMITTED TO THE ESTABLISHMENT BOARD, DEFINES HIS APTITUDE AS BEING THAT OF AN AVERAGE SERVANT . WHILE CONSIDERING SOME OF HIS ATTRIBUTES AS ' INADEQUATE AND REQUIRING IMPROVEMENT ', IT CONCLUDES THAT THE APPLICANT IS NEVERTHELESS ' CAPABLE OF PERFORMING THE DUTIES OF HIS POST '. IN SPITE OF THIS REPORT THE ESTABLISHMENT BOARD GAVE AN UNFAVOURABLE OPINION AS TO THE SUITABILITY OF THE APPLICANT FOR THESE DUTIES . UNDER ARTICLE 102 ( 1 ) ( B ) OF THE STAFF REGULATIONS OF THE EEC AN UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD BINDS THE APPOINTING AUTHORITY . BEFORE DRAWING UP ITS OPINION, THE SAID BOARD MUST THEREFORE AFFORD THE PERSON CONCERNED THE OPPORTUNITY TO SUBMIT HIS COMMENTS ON THE FACTORS WHICH MAY INFLUENCE HIS INTEGRATION . THIS OBLIGATION IS COMPLIED WITH IF THE BOARD HAS HEARD THE VIEWS OF THE PERSON CONCERNED ON THE FACTS CONTAINED IN THE REPORT, FOR WHICH PROVISION IS MADE IN THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS AND WHOSE CONCLUSIONS IT HAS ADOPTED, OR ON THE FACTORS WHICH IT CONSIDERS LIKELY TO LEAD IT TO CONCLUSIONS DIFFERENT FROM THOSE IN THE REPORT AND TO HAVE AN INFLUENCE ON THE INTEGRATION OF THE SERVANT . THE REPORT ON THE APPLICANT'S APTITUDES IN THE PERFORMANCE OF HIS DUTIES SUBMITTED TO THE ESTABLISHMENT BOARD WAS IN FAVOUR OF HIS INTEGRATION . IT EMERGED FROM THE ORAL PROCEDURE THAT THE APPLICANT WAS HEARD BY THE ESTABLISHMENT BOARD AFTER HIS SUPERIORS HAD BEEN HEARD BUT THAT HE WAS NOT INVITED TO SUBMIT HIS FURTHER COMMENTS ON THE FACTS FOR EVALUATION WHICH THE SAID BOARD OBTAINED LATER, IN PARTICULAR AT ITS FOURTH MEETING WHEN IT DREW UP ITS UNFAVOURABLE OPINION . THIS OMISSION MUST IN ITSELF LEAD TO THE NULLITY OF THE DISPUTED OPINION AS WELL AS OF THE CONTESTED DECISION . C - THE CLAIM FOR DAMAGES DURING THE ORAL PROCEDURE THE APPLICANT AMENDED HIS CLAIM FOR PAYMENT OF DAMAGES AND INTEREST THEREON AND ASKED FOR PAYMENT OF DAMAGES LIMITED TO HIS ' SALARY UP TO THE DATE OF JUDGMENT '. THE CONCLUSIONS COMPRISING THE CLAIMS FOR DAMAGES CONTAINED IN THE PLEADINGS WERE ALTERNATIVE CLAIMS TO THE APPLICATIONS FOR THE ANNULMENT OF THE CONTESTED DECISION . IN FACT THEY WERE PLEADED IN CASE THE COURT WERE TO HOLD THAT THE INVALIDITY OF THE OPINION OF THE ESTABLISHMENT BOARD DOES NOT INVALIDATE THE TERMINATION OF THE CONTRACT OF EMPLOYMENT . ON THE OTHER HAND THE CLAIMS MADE DURING THE ORAL PROCEDURE WERE PUT FORWARD IN CASE THE COURT WERE TO HOLD THAT THE CONTESTED DECISION IS NULL AND VOID . THE APPLICANT HAS THEREFORE BY IMPLICATION WITHDRAWN THE CONCLUSIONS FORMULATED IN HIS APPLICATION . UNDER ARTICLE 19 OF THE PROTOCOL ON THE STATUTE OF THE COURT, ANNEXED TO THE EEC TREATY, AND ARTICLE 38 ( 1 ) ( D ) OF THE RULES OF PROCEDURE OF THE COURT, THE SUBMISSIONS OF THE APPLICANT MUST BE CONTAINED IN HIS APPLICATION . IN THIS CASE THE CLAIM FOR REIMBURSEMENT OF ARREARS OF SALARY IS ONE OF THE CONSEQUENCES OF THE JUDGMENT OF THE COURT THAT THE CONTESTED DECISION IS NULL AND VOID . IN FACT IF THE CONTESTED DECISION TO DISMISS THE APPLICANT IS ANNULLED, HE MUST BE CONSIDERED TO BE STILL IN THE SERVICE OF THE COMMISSION AND IS ENTITLED TO CONTINUE TO RECEIVE HIS MONTHLY SALARY UNLESS AND UNTIL A NEW DECISION TO DISMISS HIM IS LAWFULLY TAKEN . IN THESE CIRCUMSTANCES HE IS ENTITLED TO BE PAID THE ARREARS OF HIS MONTHLY SALARY AND ACCOMPANYING ALLOWANCES UNTIL HIS REINSTATEMENT IN THE SERVICE, THE AMOUNT OF THESE PAYMENTS TO BE FIXED BY THE COMMISSION, ACCOUNT BEING TAKEN OF ANY SUMS WHICH THE APPLICANT MAY HAVE RECEIVED FROM ALTERNATIVE EMPLOYMENT . THEREFORE AS THE SAID SUBMISSIONS ARE BY IMPLICATION CONTAINED IN THOSE SEEKING THE ANNULMENT OF THE DISPUTED DECISION TO DISMISS THE APPLICANT, THE PROVISIONS OF ARTICLES 19 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 38 ( 1 ) ( D ) OF THE RULES OF PROCEDURE OF THE COURT DO NOT PRECLUDE THEIR ADMISSIBILITY . AS THE COURT HOLDS THAT THE DISPUTED DECISION TO DISMISS THE APPLICANT IS NULL AND VOID THESE SUBMISSIONS ARE IN ADDITION WELL FOUNDED .