C-35/62

High Authority of the European Coal and Steel Community , repre­

sented by its Legal Adviser, G. Sautter, acting as Agent, assisted by Jean Coutard, advocate of the French Conseil d'Etat and the Cour de Cassation, with an address for service in Luxembourg at its offices, 2 Place de Metz, defendant,

Application for annulment of the decision of the President of the High Author­

ity of the ECSC refusing to integrate the applicant as an established official of the Community and for damages in reparation for the injury suffered as a result

of that decision;

THE COURT (First Chamber)

I — Facts Grade A/6 on 16 July 1959 under a contract valid from 1 July 1959 to 30 fol­ June 1960. A The facts may be summarized as short time later, in the

lows: light of his qualifications and special­

Mr Leroy entered the employment of ized duties he was, at his request, pro­

the High Authority of the ECSC in moted to Grade A/5.

LEROY v HIGH AUTHORITY

On the recommendation of Mr Nora, servants. It was against this decision Director-General of Economics and that on 5 March 1963 Mr Leroy made Energy, this contract was renewed for Application 16/6). the period from 1 July 1960 to 30 June 1961. II — Conclusions of the Following the general re-organization of parties the departments of the High Authority, two posts of principal administrator In Case 35/62 the applicant claims in bearing the numbers 30 and 31 were his application that the Court should: established in the Directorate-General — annul the contested decision with all of Economics and Energy. Mr Leroy a· the consequences that this entails in obtained post No 30 and as con­

penses of the The applicant was informed ot this In its statement of defence the defendant refusal and of the offer of a new con­ contends that the Court should: tract by letter of 5 September 1962 dismiss as inadmissible and in any event from the Directorate-General of Ad­ as unfounded the application made by ministration and Finance, signed by Mr Sept­ Mr Jaurant-Singer. It was against this Leroy against the letter of 5 letter that on 5 December 1962 Mr ember 1962, signed by the Director of Personnel at the Directorate-General of Leroy made Application 35/62. Administration and Finance of the High subsequently, by letter or 4 December 1962 signed by Mr Signorini, the appli­ Authority of the ECSC, informing him of his non-integration under Article 93 cant was informed of a decision of 11 of the Staff Regulations and of his con­ October 1962, signed by the President tinued employment as a member of the of the High Authority, refusing to in­ auxiliary staff; with all the consequences tegrate him as an established official in that this entails in law, in particular as the post of principal administrator. In regards settlement of the costs and addition, this decision also terminated fees.'

his contract as a temporary official as

from 30 June 1962 and with effect from In Case 1­ 6/63 the applicant claims in 1 1962 he his application that the Court should: July was employed as a

member of the auxiliary staff at the — oraer the joinder or this case with

Directorate-General of Coal in Cate­ Case 35/62; gory A, Group 1, Class 3 of the scale annul the contested decision with all

reparation for the injury suffered by to make arrangements for the future, in the applicant from the unlawful particular as regards the contract as a

nature of the contested decision and member of the auxiliary staff which it to pay such damages as the Court had been decided to offer to him, the

shall see fit; Director of Personnel considered that — order the High Authority of the Mr Leroy should be informed of the

ECSC to pay all the costs and ex­ situation. According to the defendant, penses of the action.'

this letter was a mere notification by the In its statement of defence the defendant Director of Personnel sent on his own

contends that the Court should: responsibility but with the knowledge

be conveyed and had therefore calcu­

ments of the parties lated the time-limit for the institution of proceedings from 5 December, the The submissions and arguments of the day on which he was informed of the parties may be summarized as follows: decision, an objection would have been made on the ground that his application A — On admissibility was out of time.

In its rejoinder the defendant observes Case 35/62 de­ that the applicant is confusing the

In its statement of defence the defendant cision itself with the notification of a

contends that this application is inadmis­ decision: only former may be the the

sible since the letter of 5 September subject of an application for annulment.

of the Establishment Board is not that (a) Irregularity of the integration pro­

of a court and even though the legal ceedings 'audi partem'

principle et alteram must

The applicant observes that, since there be observed before it, it must be agreed is no provision governing the procedure that the Board is free to choose the to be followed by the Establishment means to be adopted for this purpose

Board set up under Annex X to the and the procedural safeguards to be Staff Regulations, general principles of observed are not, as the applicant ap­

law must be applied. As integration is pears to contend, necessarily the same

superior should not be the only sources cuss them; this is sufficient to satisfy of information available to the Estab­ the requirements of a procedure allow­

lishment Board, and that candidates for ing the candidate to be heard. establishment should be aware of all the

facts before the Board in order to cor­ (b) Lack of sufficient reasons for the

decision rect, if necessary, any false information. The procedure should therefore gener­ In Case 35/62 the applicant maintains de­ ally allow the candidate to be heard. that no reasons were given for the

In particular, the applicant considers cision not to integrate him. In fact, no that, if he so requests, a servant about reasons were given in the letter of 5 whom an unfavourable report is made September 1962 informing the appli­

by his superior officer should be per­ cant of the decision not to integrate mitted to interview the latter. In this him; he was only informed of the

1962, the applicant had not been shown cision contested in Application 35/62, all the minutes of its previous sessions, the reasons for the recommendation still in particular those of the meeting at appear to be insufficient since they are

which Mr Nora, Director-General of of too general a nature to enable Mr Economics and Energy, had been heard. Leroy to produce any evidence to re-

He had merely received an oral sum­ fute them.

mary of the statements made by Mr Furthermore, even if the Board inten­

Nora without receiving all the minutes ded, in its recommendation, to adopt the of the hearing. reasons given in the establishment re-

JUDGMENT OF 5. 12. 1963 — JOINED CASES 35/62 AND 16/63

Establishment Board cannot be integra­

(c) Factual inaccuracy of the reasons ted, it is the reasons for this recom­

given mendation which must be reviewed by the Court. In this context, the appli­ After recalling that its judgment in the cant makes the same criticism as those Mirossevich case the Court of Justice,

already set out in Case 35/62. while considering that the discretionary In its statement of defence in Case power to assess a candidate's ability to

35/62 the defendant contends that the perform his allotted duties is vested in letter of 5 September did not comprise the competent administrative authority, any decision and therefore no reasons nevertheless reserved the power to re­

were necessary. Moreover, since the real view the grounds for such an assess­

duties assigned to him is made only on performance of his duties, the applicant its justification for­ own discretionary assessment and states that the put

therefore neither the High Authority nor ward by Mr Maillet for this assess­

the Court could substitute a favourable ment—namely that he never made any assessment for an specific proposals for fur­ unfavourable one undertaking made by the Board. ther projects—is totally without founda­

The applicant replies that the fact that tion as he had on several occasions put the High Authority was bound by an forward concrete proposals for the carry­ unfavourable recommendation made by ing out of fresh studies. In this con­

the Establishment Board must not de­ nection the applicant refers to several

prive the Court of Justice of its power points made in his observations on the

Whilst recognizing the power of the the tasks entrusted to him, the applicant

LEROY v HIGH AUTHORITY

observes that as a statistician his task with regard to him at the beginning this was to draft preparatory documents and is because 'first, although a good statis­

that it was not his duty to prepare tician, he no longer gave satisfaction

or to debate the statistics. when, in a higher position, he was

As to the completion of the work and required to exhibit the capacities of an

ment, since in that case the only ques­

tion to be determined by the Court was (e) On the request for compensation whether a probationer had been given The applicant contends that he has been a sufficient opportunity to show her injured by the decision which reflects

abilities during the probationary period. adversely on his honour and reputation. In this case the applicant does not Out of 225 servants only Mr Leroy and claim to have been given insufficient one other were refused integration while work while he was employed by the a third was allowed a further period in High Authority. which to prove his capacities.

In addition, the applicant maintains that (d) Misuse of powers the contested decision has affected his

According to the applicant, personal normal life in that he is unable to make

animosity had led Mr Maillet to draw any arrangements for the future until

structions adressed to Mr Leroy. The defendant replies that a similar

assessment of Mr Leroy had been made IV — Procedure

by his former superior even before the arrival of Mr Nora and Mr Maillet and The procedure followed the normal

that the latter's opinion is confirmed course.

by Mr Nora and by Mr Regul. If the By an Order of 20 March 1963, the

assessment of Mr Leroy has changed First Chamber of the Court, consider­

Grounds of judgment

On admissibility

The defendant maintains that the letter contested in Application 35/62 is not a decision but merely the notification of a decision of the President of the High

Authority which was to be taken later.

The formal decision of the President of the High Authority was only taken on 11 October 1962.

Consequently, the letter contested in Application 35/62 signed by a mere official could only notify the person concerned of the content of a future decision.

The defendant does not contest the admissibility of Application 16/63 and no objection of inadmissibility need be raised by the Court of its own motion.

On the substance of the case

As regards the compliant based on me irregularity of me integration procedure

The applicant maintains that the integration procedure should allow the candi­

date full opportunity to be heard.

LEROY v HIGH AUTHORITY

failure to produce the minutes could only make the proceedings irregular if the result of this omission had been to prevent the applicant from making known to the Establishment Board bis views on the observations made with regard to him by Mr Nora.

This is not so in this case since the applicant had been informed by a summary of the substance of these observations.

Moreover, although it is clear from the letter sent to him by the defendant on 31 October 1962 that the applicant was later given access to all the passages

relating to him in the documents concerning the integration procedure, he has raised no objection, either before the administration or before the Court, to the substance of the observations made by Mr Nora with regard to him before the Establishment Board which appeared in the minutes of the meeting of 21 May 1962.

As regards the refusal to allow the applicant to meet his immediate superior, it is clear from the minutes of the meeting of the Establishment Board 20 June 1962 that, as regards his request to meet his superiors, the applicant had expressed himself at that meeting as satisfied with the oral information given

by Mr Signorini, chairman of the Board.

officials, any decision adversely affecting an official shall state the reasons on

which it is based.

This requirement is satisfied when the reasons on which the decision adversely

affecting the official is based are given clearly and unequivocally.

In its report of 16 July 1962 the Establishment Board states that its recom­

mendation not to establish Mr Leroy 'was issued on the basis of the establish­

contends that these observations are general and subjective. It must be re­

marked that the report was intended to provide an assessment of Mr Leroy's general behaviour. It cannot therefore be criticized for not going into details and mentioning specific facts.

This being so, the lack of detail noted above in the reasons for the recommen­

dation of the Board does not prevent an examination of its merits, since the reasons are sufficiently indicated by the reference made therein to the establish­

ment report drawn up by the applicant's superior officer. This omission is therefore not a sufficient reason to annul the contested decision. This being so it is desirable to consider the complaint based on the justification for the

decision.

complex value-judgments the merits of which, by their very nature and subject,

cannot be reviewed by the Court. For this reason this complaint must be rejected without any examination of the accuracy of the criticisms contained in the establishment report.

On the submission of misuse of powers

The applicant states that personal animosity had induced his immediate

superior to draft a report which did not recommend his integration. The facts referred to by the applicant in support of his allegation, although they may raise the presumption that relations between Mr Maillet and the applicant were

strained, are not of such a nature as to show that this incompatibility of character was the real cause of the unfavourable tone of the establishment

case, the reasons for the contested decision were limited to the absolute

minimum. The applicant has therefore no right to compensation for any injury caused by the decision in dispute.

Costs

The applicant has failed in his applications.

Under the terms of Article 70 of the Rules of Procedure of the Court of Justice of the European Communities and without prejudice to the second sub­

paragraph of Article 69 (3) of those Rules, in proceedings by servants of the Communities institutions shall bear their own costs.

ing with Application 35/62 from which it would have been reasonable for him to withdraw.

In these circumstances it is appropriate that the applicant's costs be borne as stated in the operative part of the judgment.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General;

Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community;

Having regard to the Staff Regulations of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

LEROY v HIGH AUTHORITY

Trabucchi Delvaux Strauß

Delivered in open court in Luxembourg on 5 December 1963.

A. Van Houtte A. Trabucchi

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL M. LAGRANGE 1 DELIVERED ON 17 OCTOBER 1963

1959, whose one-year contract had been integrate him, which, although not then renewed twice and finally expired on taken, was inevitable in view of the un­

30 June 1962, asks you to an ul: favourable recommendation made by the Board, and, secondly, in order to regu­

(1) A decision by the P­resident ot tne late his position from 1 July 1962 on­ High Authority notified in a letter wards, the date at which his contract of 5 September 1962 from the came to an end. Director-General of Administration Itmay De mat the dispatch ot the letter and Finance, rejecting his request before the decision had actually been for integration under Article 93 of taken was in the interests of the appli­ the Staff Regulations of Officials of cant, but it is nevertheless clear from the Community (Application 35/62); the terms in which the letter was drafted (2) A decision of the President of the 'I regret to have to inform you that the High Authority of 11 October 1962 President has decided (a) not to inte­ on the same question. in grate you accordance with Article Regulations' In addition he claims compensation for 93 of the Staff . . . that

the loss suffered as a result of the un­ the applicant was reasonably entitled lawful nature of the contested decisions. to conclude that the President of the

Thus the subject of both applications is High Authority, the competent author­

the same and they have been joined, ity in this case, had already taken a