C-35/62
ECLI:EU:C:1963:19
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LEROY v HIGH AUTHORITY
verify. That a real incompatibility, no appointed to post No 31. Finally, after doubt due to difference of background rejection of the applicant, post No 30 and character, existed between the two was opened to competition on 18 April men is certain; such differences exist 1963. Here beyond doubt is a series of
in human relationships between a facts which suggest that the administra
superior and his subordinate. But it tion was seeking by different means to
still remains to be proved that the real avoid the establishment of Mr Leroy.
cause of the decision was personal However, only the refusal to integrate from this incom the Article 93 of the authority resulting applicant under
patibility and not behaviour by the Staff Regulations is being contested
applicant which, considered objectively, before the Court. As regards this, it is justifies the unfavourable recommenda only necessary to establish whether facts No has been on which the Board based its unfavour tion. such proof
brought. able recommendation are the real reason
No doubt it is true that the applicant 's for the decision. There is nothing to
services were considered satisfactory at suggest that this is not so. Indeed, it the beginning of his employment. It is appears that the various circumstances
equally true that the position began to which I have just outlined attracted the
deteriorate when the applicant put attention of the Board which, as a
himself forward as a candidate for post result, undertook a particularly thorough
No 31, placed a step above post No 30, examination of the situation—deciding, Director- which he then held (the latter post had for example, to hear the him not been thrown open to competition, General and then the applicant
for reasons which have never been self instead of merely adopting the
explained). In such a situation it was clearly unfavourable report of the
quite natural that the applicant should applicant's immediate superior. It does put himself forward as a candidate for appear, therefore, that the Board decided post No 31, since his own had never not to integrate the applicant only after been opened to competition and he had it had made quite sure that he was not held it on a temporary basis for more capable of performing the duties which
than a year which contrary to the was were entrusted to him, following the
regulations in force. You know that in reorganization of his department. fact it was a Dutch official, originally To sum up, there appears to be no
classed beneath the applicant, who was evidence of misuse of powers.
I am therefore of the opinion that:
— both applications should be dismissed; and — that the costs of Application 35/62 should be borne by the High Authority.
ORDER OF THE PRESIDENT OF THE COURT 1 16 JULY 1963
In Cases 35/62 and 16/63 R
Andre Leroy , former member of the auxiliary staff and of the temporary staff in the service of the European Coal and Steel Community, residing at 20 Rue
1 — Language of the Case: French.
ORDER OF 16. 7. 1963 — JOINED CASES 35/62 AND 16/63 R
Astrid, Luxembourg, represented by Paul-François Ryziger, advocate of the Conseil d'Etat and the Cour de Cassation, 64 Rue de Longchamp, Paris 16, with an address for service in Luxembourg at the Chambers of Mr Arendt, advocate of the Luxembourg Cour d'Appel, 6 Rue Willy-Goergen,
applicant,
v
High Authority of the European Coal and Steel Community, represented by its Legal Adviser, Guy Sautter, appointed to this intent as Agent by the High Authority under Article 20 of the Protocol on the Statute of the Court of Justice, assisted by Jean Coutard, advocate of the French
Conseil d'Etat and Cour de Cassation, 58 Rue de Lisbonne, Paris, with an address for service in Luxembourg at its offices, 2 Place de Metz,
defendant,
The President of the Court of Justice of the European Communities
On the Facts
Whereas by applications lodged at the munity is the result of the refusal to Court Registry on 5 December 1962 and integrate him, Article 52 of the Condi 5 March 1963 the applicant has made tions of employment of other servants
two applications for the annulment of of the Communities cannot be a refusal to integrate him; applied; and whereas in his application lodged order that the costs be reserved.'
at the Court Registry on 22 June 1963, On 3 July 1963 the defendant lodged the applicant claimed that the Court its observations on the application for should: the adoption of the above interim
Order the implementation of the measure, in which it contends that the
decisions contested in Joined Cases Court should:
35/62 and 16/63 to be suspended; 'Dismiss all the pleas and conclusions
in doing so, of the application made by Mr Leroy order that no established official be as inadmissible or, in any event, un
recruited to fill the position recently founded; held by Mr Leroy until judgment is Make the appropriate order as to costs.'
given in the applications made by him against the refusal to integrate him; Whereas the parties on being duly order that as the position of the appli summoned put in an appearance before cant as a member of the auxiliary staff the President on 10 July 1963 and pre
of the European Coal and Steel Com sented their oral observations;
LEROY v HIGH AUTHORITY
On the Law
Whereas under the terms of Article 83 (1) of the Rules of Procedure an appli
cation to suspend the operation of any measure shall be admissible only if the applicant is challenging that measure in proceedings before the Court;
Whereas the applicant, considering that the announcement of the competition for the post formerly held by him and the expiry of his contract as an auxiliary are the direct results of the refusal to integrate him which he is challenging in the main action, maintains that his request is admissible;
Whereas the view of the applicant on this point cannot be upheld;
Whereas had the applicant been integrated he would have had the right to
establishment (under Article 93 of the Staff Regulations of officials of the
ECSC) in a grade and step of the scale of remuneration fixed by the Staff Regulations, but he had no right to a specific post;
Whereas, moreover, it has not been shown that, had the applicant been integrated, he would have held the post which the competition in question is designed to fill;
Whereas in these circumstances there is no reason to believe that the announce
ment of a competition for this post is the direct result of the decision contested in the main action;
Whereas therefore the first head of this application for suspension of the
decision is inadmissible;
Whereas secondly the applicant requests that a provision of the Staff Regulations be declared inapplicable;
Whereas Article 83 (1) of the Rules of Procedure only refers to suspension of the operation of measures;
Whereas there is no reason to treat the effect of a provision of the Staff Regulations as a measure within the meaning of Article 83 (1) of the Rules of
Procedure; and whereas this effect could be foreseen from the moment when the applicant was appointed as a member of the auxiliary staff;
Whereas, moreover, even the annulment of the measure contested in the main action could not result in the applicant's maintaining his position as a member of the auxiliary staff;
ORDER OF 16. 7. 1963 — JOINED CASES 35/62 AND 16/63 R
Whereas the second head of this application for suspension of the measure is therefore inadmissible;
On those grounds,
Upon reading the pleadings; Upon hearing the parties;
Having regard to Article 39 of the Treaty establishing the European Coal and Steel Community and Article 33 of the Statute of the Court of Justice of the European Coal and Steel Community;
Having regard to the Staff Regulations of officials of the European Coal and Steel Community;
Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
hereby orders:
1. That the application be dismissed as inadmissible;
2. That costs be reserved.
Luxembourg, 16 July 1963
A. Van Houtte A. M. Donner
Registrar President