C-19/63

defendant,

Application:

— in Case 19/63: for the reversal of the refusal to reimburse removal ex­ penses and to pay the installation allowance;

— in Case 65/63: for the reversal or, alternatively, the annulment of the decision against integration, and the payment of damages,

THE COURT (First Chamber)

composed of : L. Delvaux, acting President of Chamber, A. Trabucchi and W. Strauß (Rapporteur), Judges,

I — Summary of the facts words: 'I do not at present wish to commit myself about this'. The form The facts may foe summarized as was returned to the applicant in this follows: condition. The applicant was engaged by the C. On 27 September 1962 the applicant defendant with effect from 1 October submitted another request of like nature 1961. Since that date he has been to the said Department. This was made assigned to the Physical Chemistry in duplicate and the same sort of form Department of the Ispra Research was used. On 1 October 1962 Mr Centre (hereinafter referred to as 'the Marchetti signed one of these without Centre'), directed by Mr Marchetti. making any deletions and gave it back to the applicant who personally took it 1. Removal expenses and installation to the administration. On the other allowance (Case 19/63, Case 65/63, copy, which Mr Marchetti retained, fifth head of the conclusions) the printed text 'Removal approved … employment by the Commission' (cf. A. By letter dated 12 April 1962 the B, above) was later crossed out. This applicant sent the Head of the Per­ copy was sent to the administration in sonnel and Social Department of the this form. Centre the estimates of two removal D. Subsequently the applicant was told firms concerning his proposed removal that the Directorate of the Centre had to Italy, at the same time asking the refused to give the approval in question. said Department 'to take a decision as E. During the period between Novem­ regards the choice of a firm for my ber 1962 and March 1963 the applicant removal which is to take place later'. lodged a series of complaints against By letter dated 18 October 1962, the this refusal both with a number of the said Department informed the applicant defendant's departments and with the that it had approved the estimate of Commission itself. the firm of Schrooten, Duisburg, Since the applicant did not receive any amounting to DM 3 472.65. express decision from the Commission B. On 30 August 1962 the applicant he made Application 19/63 to the sent a request to the administration Court on 27 March 1963. asking for approval of his removal and F. By an express decision dated 18 installation. For this purpose he used a April 1963 the Commission rejected printed form which included, among the applicant's complaints. other matters, the following : On 27 May 1963 the applicant made 'Seen and forwarded. Removal and/or Application 65/63 directed against the installation approved. I consider the said decision inter alia. servant capable of performing his duties and suitable for employment by the 2. Non-integration (Case 65/63, first to Commission … (Signature of the Head fourth heads of the conclusions) of Department)'. On the same date, Mr Marchetti signed A. On 31 August 1962 Mr Marchetti the form. However he crossed out the drew up and signed the probation sentence beginning with the words 'I report on the applicant, and concluded consider … ' and replaced it by the in the following terms:

'This man does not lack culture or The applicant protested in vain against intelligence. Unfortunately so far as I this decision. know he does nothing or almost D. By letter dated 25 April 1963, and nothing. Therefore in my opinion Mr received on 29 April, the administra­ Prakash is useless to the Physical tion department of the defendant told Chemistry Department.' the applicant: In his written comments on this the — that on 20 March 1963 the Com­ mission of the EAEC had decided to applicant said that he did not agree with what had been said and asserted terminate his contract in accordance with Article 102 of the Staff that the probation report had been made outside the prescribed time- Regulations of officials of the EEC limit. and EAEC; — that this decision was based on the B. On 31 August 1962 Mr Marchetti also signed the applicant's establishment unfavourable opinion of the Estab­ lishment Board, worded as follows: report. This report. — states in particular : 'The Establishment Board … con­ siders that this servant, by bis 'I have not … been able to get tendency towards excess in planning any sort of work out of him. This shows that there is an insufficient programmes and in calculating re- sources, has not, despite the instruc­ sense of responsibility and an absence of devotion to the task which … tions given to him, managed to ex­ ploit the resources placed at his dis­ has been entrusted [to the applicant]. posal so as to provide the scientific Therefore I cannot assess the quality of non-existent work. contribution to the Department which it was entitled to expect of I thought it right to delay Mr him'. Prakash's (probation report in the hope of seeing him apply himself to E. On 27 May 1963 the applicant made his work. After a year I do not think Application 65/63 which is directed it possible for me to keep him in essentially against the abovementioned decision. my department;' — contains the following observation II — Conclusions of the made by Mr Fitter, Director of the Centre: parties 'I do not think that Mr Prakash is 1. Case 19/63 able usefully to work at Ispra.' In his application in Case 19/63 the In his written comments the applicant applicant claims that the Court should: disagrees with these assessments, alleg­ '1. declare that the application is ing factual inaccuracies and procedural admissible by virtue of Article 192 irregularities. of the Euratom Treaty, and Articles C. On 16 January 1963, Mr Marchetti 90 and 91 of the Staff Regulations; sent the applicant a memorandum in addition declare that the applica­ worded as follows: tion is presented in due form; 'As no work has been carried out in 2. rule that the application is justified respect of the task entrusted to you, as to the substance and accordingly all the equipment which you have reverse the contested decisions bought is to be handed over to Mr whereby the defendant has refused Kelly who will use it for his research to reimburse the applicant's removal on re-entry. Please show him where expenses and to grant him the every piece of equipment is.' installation allowance;

(b) a sum equivalent to one month's In its rejoinder in Cases 19 and 65/63 the defendant contends that the Court salary in respect of the installa­ should: tion allowance; should it be necessary : order pre­ 'declare that Application 19/63 is in­ paratory inquiries with a view to admissible; discovering why the form of the applicant's original request, dated 27 accept the conclusions set out by the September 1962, for the reimburse­ Commission in its statements of defence, ment of his removal expenses and to which it still adheres; the payment of the installation order the applicant to pay the costs in allowance as transmitted to higher Cases authority is not the same as the copy …19/63…' addressed to the applicant, to dis­ covering in what circumstances this 2. Case 65/63 happened, who was responsible and why and, further, to ascertaining In his application in Case 65/63 the whether the deletions in the original applicant claims that the Court should : constitute a punishable offence; 3. as to costs: order the EAEC to pay 'I — declare that it has jurisdiction the costs and expenses of the pro­ to take cognizance of the present ceedings, or, should the applicant dispute; be granted legal aid, order sums II — state that this application is equal to the amounts paid out as admissible against: legal aid to be paid over to the (a) the express decision of 20 Cashier of the Court in accordance March 1963 refusing to with Article 76 (5) of the Rules of grant integration; Procedure'. (b) the silence observed by the In its statement of defence in Case administration as regards 19/63 the defendant contends that the [the complaints made by the Court should: applicant] on 11 December 'declare the application to be inadmis­ 1962, 8 January 1963, 17 sible; January 1963 and 19 alternatively, declare it to be unfounded; February 1963; accordingly, and in either event, dismiss (c) the express and implied the application; decision dated [18 April order the applicant to pay the costs.' 1963]; In his reply in Case 19/63 the appli­ III — As to the substance of the case cant claims that the Court should: principally : 'dismiss the submissions as to inadmis­ sibility and substance raised by the 1. as to the request that certain decisions be reversed or defendant; annulled : therefore: rule that the application is admissible and that it is justified as to reverse the contested decisions substance, and allow the applicant's for infringement of the rules of

'declare that the application is unfound­ secondarily ed under all heads of claim; 2. as to the request for damages dismiss it accordingly; in respect of a wrongful act or order the applicant to pay the costs.' omission : In his reply in Cases 19 and 65/63 the hold that, independently of the applicant claims that the Court should: legality of the decision concern­ I —' … ing the integration of the appli­ II —… cant under the Staff Regulations, there have been wrongful acts III — as to the substance of the case : or omissions on the part of the

PRAKASH v COMMISSION

C — as to the request for order the defendant to pay to damages and interest submitted the applicant the sum of 23 428 on a secondary basis: Belgian francs in respect of his cost of living allowance, which rule that the notice of dismissal formed an integral part of his given to the applicant is void; salary during the period before rule that there have been wrong­ the entry into force of the Staff ful acts or omissions on the part Regulations and which was im­ of the defendant, for which it properly withheld from the com­ is contractually liable, in con­ pensation due to him by virtue cluding, applying and terminat­ of Article 102 of the Staff ing the contract of employment; Regulations; hold that the conduct of the rule that the defendant must defendant after giving notice of pay for the removal costs from dismissal was wrongful and that the place of employment to the it is therefore liable for such place of origin; conduct in tort; VI — as to costs : therefore : order the defendant to pay to order the defendant to pay all the applicant damages and in­ costs and expenses and order terest to be assessed by the appropriate sums to be paid Court, either of its own motion over to the Cashier of the or upon reading an expert's re- Court.'

JUDGMENT OF 8. 7. 1965 — JOINED CASES 19 AND 65/63

The defendant asserts that the applica­ 2. Non-integration and related matters tion is inadmissible. However both parties effectively agree that dispute as A — Application for the decision to be to this has ceased to be relevant, since reversed or, alternatively, annulled the defendant agrees that Application 65/63, which covers the same ground 1. Submission that the decision was as Application 19/63, is admissible. ultra vires

B — Basis of the applicant's request The applicant considers that he had a The applicant relies on the Staff Regu­ permanent post and that therefore he lations of officials and on Circular was 'eligible for establishment'. Con­ Notice No 50 of 25 February 1959, trary to the provisions of Article 214 issued by the defendant, for the con­ of the Treaty his contract had been clusion that he had a right to the drawn up for an unlimited period. 'By emoluments in question. Furthermore, abruptly and wrongly terminating the the administration had already approved contract' the defendant has failed to the removal by letter dated 18 October exercise 'that good faith which should 1962. Finally, the justification for this govern the contract'. The applicant had request follows from the requirement been 'expressly and emphatically told' of servants to reside at the place to that the stipulation in the contract al­ which they are posted. lowing for its termination on short

PRAKASH v COMMISSION

2. Submission based on infringement (b) Irregularities as to substance of essential procedural require­ The applicant states: ments His probation report was conspicuously (a) Irregularities as to form late in being made. This was 11 months after he entered the service. According to the applicant, the de­ The procedure at the end of the pro- fendant has infringed Article 110 of the bationary period was merged with the Staff Regulations of officials in failing integration procedure, which is im­ to get the Staff Committee and the proper. Staff Regulations Committee to take part The applicant's personal file was im­ in the drawing up of rules concerning properly kept. Certain documents were the procedures for the probationary missing, and others were in it which period and for integration. should not have been. Furthermore the integration procedure Mr Marchetti committed 'a particularly is invalidated for want of the applicant's serious breach of practice' in dating his being confronted with his immediate supplementary remarks on the establish­ superiors, Messrs Marchetti and Ritter. ment report as of 5 November 1962 It is also invalidated because his request when in fact he made these observa­ to see the minutes of the hearing given tions later, at a time when he was no to them was refused. longer officially in possession of the Since the Establishment Board did not said report. It can foe seen from the include any experimental scientist, it original that Mr Marchetti first put 11 had to rely entirely on Mr Marchetti November 1962 as the date, and that and it 'adopted his unfavourable report this was then rubbed out and replaced in its entirety'. by 5 November. The defendant replies: The defendant replies: Article 102 of the Staff Regulations of The late drawing up of the probationary officials is sufficiently clear and there­ report did not adversely affect the ap­ fore it was not necessary to supplement plicant. The probationary period was it with general provisions for giving laid down as a measure of an internal effect to it. nature, and it should be noted that The applicant had the opportunity to there was no stipulation for it in the submit his comments on all the reports letter offering employment. 'Neither the made about him by his immediate probationary period nor its expiry

could give rise to rights or obligations 'did not devote the intellectual ability on the part of servants whose contracts which he possesses to the work which could be terminated, both before and was expected of him'. after this period, on one month's The defendant points out the 'temerity' notice'. with which the applicant labels the nine The procedure concerning the proba senior officials who made up the Estab- tionary period and the integration pro lishment Board as biased. ‘It seems use cedure were not merged. The fact that ful to draw attention to the fact' that, both took place simultaneously did not of thirty servants who were given an prejudice the applicant and was not, in unfavourable report by their depart this case, improper. mental head, eighteen were nevertheless As for the criticism concerning the established. The truth is that the ex keeping of the personal file, the de planations given by the applicant 'were fendant refers to a letter dated 29 not enough to outweigh the unanimously January 1963 addressed to the appli unfavourable opinions of all the per

tasks with which he was entrusted. With posing that the allegation were correct, this in mind, the parties describe in 'this would still not be grounds for dis detail the history of events since the carding any part of the contents of this applicant joined the service. schedule which is in any event cor The applicant asserts in particular: roborated by other documents on the — that at no time did he have enough file'. funds or equipment; — that in March 1962 Mr Marchetti

PRAKASH v COMMISSION

demands; cal Chemistry Department. — that for this reason Mr Marchetti The defendant replies in particular: decided to put his previous instruc — that the applicant was given a wide tions in writing and, with this in freedom of choice in selecting a sub- mind, wrote the memorandum of 4 ject for research, on condition that June; it could be integrated with the De — that nevertheless even these instruc partment's programme; tions 'did not move the applicant to — that three and a half months after do any work' nor did they discourage taking up his duties, the applicant him from putting forward demands furnished his first programme of which had nothing to do with the work in a memorandum of less than short-term programme defined in the two pages; said memorandum;

Categories A and B'; the vast majority of the research — that Mr Marchetti immediately ad workers adapted themselves to this vised the applicant to show a greater fact and worked as well as possible sense of proportion and gave him in the circumstances; furthermore instructions as a first step to refine the applicant had more laboratory the method of measuring the quan space at his disposal than did his tity of molecules adsorbed on alumin colleagues on average.

The applicant deduces from the allega­ The applicant states that the defendant tions reproduced above at 2 (b) and deducted the sum of 23 428 BF from the (d) that Mr Marchetti used his powers emoluments paid to him upon his leav­ with a view to getting rid of him. ing the service. The reason given was The defendant replies that to accept that this sum represented the cost of this submission would amount to agree­ living weighting which was only grant­ ing that not only did Mr Marchetti ed to integrated servants. This is not show personal animosity, but so too true. The said weighting is an integral did all the members of the Establish­ part of the salary and is payable to all ment Board and even of the EAEC the servants who lived at Ispra in Commission. 1962. Furthermore the documents referred to Furthermore the applicant has the right by the applicant themselves show that to the reimbursement of his costs of Mr Marchetti expressed himself in removal from the place where he was measured and frequently diplomatic employed to the place of origin. Up to terms and that he showed himself to the present the defendant has refused to be patient to a praiseworthy extent. make this reimbursement. The defendant replies that the grant of B — Action for damages a weighting results from a provision in the Staff Regulations. Therefore only The applicant states that he makes this claim because the decision to dismiss integrated servants have a right to it. The payment of 23 428 BF made to the him was illegal and 'as an issue separate applicant was accompanied (as was the from any decision as to integration'. case for all the servants working at He asserts in particular: Ispra) by a letter making it clear that — that to annul the disputed decision 'the grant of this advance does not 'is not in itself adequate reparation'; affect the result of the integration pro­ — that quite apart from the illegality cedure in any way' and that 'this of that decision the defendant com­ advance may be recovered from any mitted wrongful acts or omissions 'in sums which may for any reason be making, applying and terminating owing to the person concerned by the the contract'; Commission'.

Chamber of the Court accepted in part witnesses and to hear Messrs Gillot, the applicant's request for the grant of Hopper, Kosiba, Marchetti, Mercereau, legal aid and decided that the Cashier Ritter and Sünner. of the Court should make the applicant The said Chamber heard these witnesses a recoverable advance of 25 000 BF. at the hearing on 9 December 1964, On 12 July 1963 the applicant made except for Mr Kosiba who did not an application under Article 91 of the appear. Mr Kosiba, who was living in Rules of Procedure for an order that the United States, sent a letter in which certain documents be lodged with the he furnished a reply to the questions Court prior to any further move in which had been put to him. At the the proceedings. hearing on 9 December 1964 the First By order of 28 October 1963 the First Chamber of the Court decided to dis­ Chamber of the Court decided that pense with oral testimony from Mr there was no reason to grant an oral Kosiba and to add his letter to the hearing in the matter and joined the file. said application to the substance of the The oral submissions of the parties case. were heard by the First Chamber of the By orders of 15 October and 13 Court on 11 February 1965. November 1964 the First Chamber of The Advocate-General delivered his the Court decided to proceed to the opinion at the hearing on 17 March verification of certain facts by means of 1965.

Grounds of judgment

I — As to Case 19/63

The applicant contests a series of measures express or implied, emanating either from the authorities at the Ispra Centre or from the administration at the Euratom Headquarters, entailing a refusal to reimburse he removal expenses and to pay him the installation allowance.

— the reversal, or at least the annulment, of the defendant's decision of 20 March 1963, terminating his contract and refusing to integrate him, together with the implied decisions rejecting the applicant's claims against certain actions taken by his Head of Department, Mr Marchetti, namely, the report at the end of the probationary period, the establishment report and the order given to the applicant on 16 January 1963 to transfer his laboratory equipment to another research worker;

— a declaration by the Court that he should be appointed as an official in Grade A/4;

— an order that the defendant pay to him damages both because of the illegality of the said decisions and also 'as an independant matter quite apart from the legality' of the decision not to integrate him;

— the reversal of the defendant's decision of 18 April 1963 refusing to reimburse the applicant's removal expenses from his place of origin to the place where he was employed, and to grant him the installation allow­ ance;

— an order for the defendant to pay to the applicant the sum of 23 428 BF by way of cost of living allowance;

— a declaration by the Court that the defendant must assume responsibility for the expenses of the applicant's removal from the place where he was employed to his place of origin.

The applicant also requests that the passages in the defendant's statement of defence relating to the said correspondence be struck out. Finally, he asks the Court to find that the copy of the letter addressed by his Head of Depart­ ment to his former employer, and produced by the defendant, is not in con­ formity with the original.

The other documents on the file are sufficient for a judgment to be given in this case as will appear from the grounds hereinafter set out. In these circum­ stances, the applicant's request is without object.

(d) The defendant contends that the Court should order the exclusion from the oral proceedings of certain papers described by the applicant as 'Gedachtnisprotokolle' ('notes for refreshing the memory'), and taking the form of notes which the applicant had drafted at the time for his own per­ sonal use. The applicant has stated that he does not intend to treat these notes, which were drafted by himself alone, as evidence. In these circum­ stance, there is nothing to prevent the production of the notes by way of factual argument, subject to the Court's examination in the same way as any other argument put forward by a party.

It follows from all these considerations that the application is admissible, subject to the reservations indicated above.

2. As to the substances of the case

A — Non-integration and dismissal

1. The applicant asserts that the defendant infringed Article 110 of the Staff Regulations by failing to hold consultations with the Staff Committee and the Staff Regulations Committee before drawing up the rules applicable to the probation and integration procedures.

The procedure for the probationary period applied to the applicant must be considered in the context of the contractual conditions for servants existing before the Staff Regulations came into force. Therefore the abovementioned Article 110 cannot apply to that procedure.

As regards the integration procedure the phrase 'general provisions for giving effect to the Staff Regulations' appearing in Article 110 refers, first of all, to the provisions which each institution must adopt in order to give effect to certain mandatory provisions in the Staff Regulations, such as the first para­ graph of Article 2 and the second subparagraph of Article 5 (4).

Apart from such rules, the obligation to adopt 'general provisions for giving effect to the Staff Regulations' can only be recognized where the provisions of the Staff Regulations are not by themselves sufficiently clear.

None of the provisions in the Staff Regulations concerning the integration procedure imposes an obligation on the institutions to adopt general pro­ visions for giving effect to the Regulations. Moreover, those provisions are sufficiently precise to be applied consistently even in the absence of formal provisions for giving effect to them. In these circumstances, the rules of pro­ cedure which were in fact adopted by the defendant with regard to integra­ tion were not subject to the formalities laid down by Article 110 of the Staff Regulations.

4. The applicant alleges that the Establishment Board did not include any scientific research worker and was therefore not in a position to reach a firm conclusion on matters of pure science.

As will be seen from the considerations discussed later (paragraph 10), the evidence given by each of the applicant's superiors was enough, in the present case, to provide the Establishment Board with sufficiently precise grounds for its opinion. This ground of complaint must therefore be dismissed.

5. The applicant alleges that the report on his probationary period was drawn up considerably later than it should have been and that the different pro­ cedures for probation and integration were 'merged'.

Although it may be agreed that the delay in question constitutes an irregular­ ity, nevertheless no causal link exists between the irregularity and the decision not to integrate the applicant. It appears from the file that a probation report drawn up at the right time would not have been written in terms more

JUDGMENT OF 8. 7. 1965 — JOINED CASES 19 AND 65/63

favourable to the applicant. On the contrary the items in the file confirm the defendant's argument that the Head of Department postponed writing the probation report with the sole object of giving the applicant a chance.

The applicant further alleges that the comments in dispute were added in order to meet the criticisms made against the Head of Department by the

PRAKASH v COMMISSION

administration, for having delayed his report on the applicant's probationary period. But this allegation does not prove in any way that the Head of Department would have passed a more favourable judgment on the applicant if the delay had not occurred.

8. The applicant claims that certain comments appearing in the probation and establishment reports respectively contradict each other, namely the 'excellent relations within the Department' as against his 'insufficient ability to work in a team', and his 'difficulty in clearly defining the methods of carrying out his projects' as against his 'great capacity of self-expression'.

The ground of complaint is irrelevant. A man may have excellent personal relations, without necessarily being able to fit his work into a wider setting. Furthermore, it appears from the context of the documents in question that the comment about 'means of carrying out his projects' refers to the appli­ cant's ability to undertake a programme of research; and it is possible to lack such an ability while still possessing a certain verbal fluency.

9. The applicant criticizes the 'vague and imprecise' drafting of the reasons given by the Establishment Board.

On 15 January 1962 (that is, three and a half months after he took up bis duties) the applicant furnished his first programme which was barely two pages long. This programme 'was far and away too ambitious and pre­ supposed apparatus and equipment worth more than 100 000 units of account and a team estimated by Mr Prakash (in fact underestimated) at four research workers in Category A and four technicians in Category B …'. This pro­ gramme was incapable of fulfilment : the credits allotted to the whole of the Physical Chemistry Department in 1962 were in fact limited to 200 000 units of account for about 50 servants, whilst the 'quota' for the Department amounted to about 1 500 units of account for each servant in Categories A and B';

— 'Straightaway', the Head of Department advised the applicant to show a greater sense of proportion in drawing up his plans, and instructed him to start by setting up as a first step a method of measuring the quantity of molecules adsorbed on aluminium by infra-red adsorption; this instruction was confirmed in writing by a memorandum dated 4 June 1962;

— In spite of these oral instructions, and instead of embarking upon the preliminary experiments thus defined, the applicant continued to prepare extremely far-reaching programmes which he outlined in notes made be­ tween mid-January and 4 June 1962 which have been lodged in the file;

— In March 1962 the applicant presented his Head of Department with a list headed 'initial equipment … ', consisting of apparatus and accessories to a total value of 55 000 units of account; after reducing the applicant's requirements, with his agreement, to 15 000 units of account, the Head of the Department submitted the request to the local Programmes Com­ mittee which, however, rejected it.

Moreover, the programmes presented by the applicant after 15 January and prior to 4 June 1962 went far beyond the range of short-term work fixed by the Head of Department.

The preparation of large-scale programmes is not in itself open to criticism, but it becomes so if it is not coupled with any serious attempt by the person concerned to make a start at the same time on the more modest programme which has in fact been assigned to him.

It follows from these considerations taken as a whole that when accusing the applicant of. a tendency towards excess the Establishment Board did not form an opinion which was logically incompatible either with the undisputed facts or with the ones taken as proven.

(bb) However, the Establishment Board did not rely on that tendency as an independent ground of complaint, but only to the extent that it resulted in an inadequate output of work on the part of the applicant.

The applicant does not deny that he did not really begin the experiments which he was asked to carry out but claims that the resources at his disposal, particularly apparatus and laboratory space, were insufficient for the purpose. He also refers generally to the inefficient functioning of the Physical Chem­ istry Department.

The defendant states that the resources were sufficient to begin experiments for the short-term programme set out and confirmed in the note of 4 June 1962, and that the complaint against the applicant is precisely that he did not even begin those experiments.

Mr Fitter, Director of the Ispra Centre, in his evidence, confirmed the sub- stance of Mr Marchetti's statements. Whilst admitting that his duties did not enable him to have a detailed first-hand knowledge of the applicant's work­ ing conditions, he stated that his long experience had put him in a position to form an opinion on the basis of information received from Mr Marchetti. He also said that the applicant's former employer, from which he had re- quested information, substantially confirmed Mr Marchetti's opinion about certain shortcomings of the applicant. This testimony is such as to confirm the assessment made by the Establishment Board.

It is true that the applicant asserts that Mr Marchetti was inspired by a feel­ ing of animosity towards him and had 'systematically paralysed' his work. However, as will be seen from an examination of the third submission, the applicant's arguments on this point cannot constitute valid prima facie evid­ ence. Similarly, the Court cannot accept the applicant's subsidiary allegation to the effect that Mr Marchetti was incapable of judging the applicant's needs concerning apparatus, in spite of the fact that Mr Marchetti was clearly cap­ able of suggesting that the applicant should carry out a particular task which the applicant was able to accept.

As regards the testimony of Mr Ritter, it is not rendered valueless simply because the witness was unaware of certain details of the applicant's work. Indeed, by virtue of his duties as Director of the Centre and his capacity

PRAKASH v COMMISSION

as a scientist, he was well placed to judge whether or not financial resources of a certain order of magnitude were sufficient to begin particular experi­ ments. Moreover it is clear that Mr Ritter had several conversations with the applicant during which the applicant was able to explain his point of view. Besides, the fact that in another case brought before the Court Mr Ritter has described Mr Marchetti's attitude towards his subordinates as 'harsh' demonstrates that he was not at all inclined to approve Mr Marchetti's assessments blindly.

Mr Kosiba, by virtue of his residence in the United States, was unable to appear before the Court, but provided a written statement, not under oath, which the Court allowed to be used in the oral proceedings. It is true that he declared that, at the time when he and the applicant were in contact with each other, the applicant was not adequately equipped 'with the necessary apparatus for performing the research work with which he had been entrust­ ed'. However, Mr Kosiba stated that his contacts with the staff of the Phy-

JUDGMENT OF 8. 7. 1965 — JOINED CASES 19 AND 65/63

sical Chemistry Department had only been 'sporadic'. Besides, the context of the words quoted above does not show clearly whether Mr Kosiba thought that the apparatus at the applicant's disposal was not even enough to make a proper start on the short-term programme defined in Mr Marchetti's note of 4 June 1962.

(cc) The considerations set out at (aa) and (bb) show that the basic facts of the case are not such as to give rise to serious doubts about the accuracy of the assessment made by the Establishment Board. They also disprove the argument that the applicant's failure was the result of the inefficient function­ ing of the Physical Chemistry Department.

The fact that the applicant's practical abilities were judged against the back­ ground of a period marked by considerable genuine difficulties might be evidence that they were judged with some strictness. However the Court cannot, without breaking the rules concerning the separation of judicial and administrative powers, describe that strictness as illegal. Indeed, since value- judgments are within the exclusive jurisdiction of the Institution, it was in principle for the Institution to decide upon the degree of severity or indul­ gence with which it chose to assess any shortcomings of those concerned.

— the delay in drawing up the report at the end of his probationary period;

— the unfavourable assessment made in his establishment report;

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— the fact that on 16 January 1963 Mr Machetti ordered the applicant to transfer his laboratory equipment to another research worker;

— the fact that from 28 January 1963 onwards, that is, prior to the decision not to integrate him, the applicant's name no longer appeared on the detailed list of posts of the Physical Chemistry Department.

It follows from the reasons given concerning the second submission that the applicant's output of work could be described as insufficient, and this fact is by itself enough to explain the assessments and actions in dispute. Besides, nothing in the written documents is capable of raising the suspicion that Mr Marchetti's attitude towards the applicant was dictated by improper motives. On the contrary, it appears, particularly from the establishment report, which is couched in favourable terms concerning certain aspects of the applicant's personality, that Mr Marchetti endeavoured in the present case to limit his criticisms to the absolute minimum.

A decision which has not been shown to be illegal cannot constitute a wrong­ ful act or omission or cause illegal damage to the individual concerned unless it contains superfluous criticisms of him.

Such is not the case, the reasons for the disputed decision being limited to the absolute minimum.

JUDGMENT OF 8. 7. 1965 — JOINED CASES 19 AND 65/63

Therefore the principal head of claim is unfounded.

(b) Alternatively, the applicant considers himself entitled to damages even in the event of the Court's not admitting the illegality of the decision impugned.

1. In this respect he asserts that, for various reasons, the defendant should have given him a longer period of notice.

It follows from what has been said above that the alternative claim for damages must be dismissed.

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C — Removal expenses from place of origin to place of employment and installation allowance

The applicant challenges the legality of the decision taken by the defendant on 18 April 1963 refusing to reimburse the applicant's removal expenses and to pay him the installation allowance.

The applicant is wrong in thinking that these allowances were governed, as far as he was concerned, either by the Staff Regulations of officials of the EEC and EAEC, or by the former Staff Regulations of officials of the ECSC.

In fact the first of these Regulations does not apply to servants recruited under the so-called Brussels form of contract, in the absence of express pro­ visions to the contrary.

JUDGMENT OF 8. 7. 1965 — JOINED CASES 19 AND 65/63

Furthermore, according to Circular No 50, the competent authority was not bound by a favourable opinion of the Head of Department. Thus the refusal given by Mr Mercereau, as well as the decision in dispute which confirmed it, do not in any way infringe the provisions in Circular No 50.

The applicant is wrong in raising the point that prior to the abovementioned refusal the Personnel Department has approved the estimate drawn up by a removal firm. In fact such an approval is only concerned with the sums which may become payable, and not with the principle of reimbursement.

It follows from all that has been said above that the present ground of com­ plaint is unfounded.

D — Weighting

The applicant claims that the defendant should be ordered to pay him the sum of 23 428 BF, paid by way of advance in January 1963 and subsequently deducted from his compensation on dismissal.

As the Court is already in possession of all the facts needed to decide the present case, it does not appear necessary to examine the various offers of proof put forward by the parties, other than those which the Court has already dealt with, particularly the applications for preparatory enquiries lodged by the applicant on 12 July 1963 and 6 November 1964 respectively.

III — Costs

The applicant has failed in Application 65/63.

Although Application 19/63 has become pointless, it nevertheless follows from the reasons given by the Court for dismissing Application 65/63 that the conclusions in it were unfounded.

Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

However, under the terms of Article 70 of the said Rules, the costs incurred by institutions in cases brought by servants of the Communities shall be borne by the institutions.

On those grounds,

Upon reading the pleadings, Upon hearing the report of the Judge-Rapporteur, Upon hearing the parties; Upon hearing the evidence of the witnesses; Upon hearing the opinion of the Advocate-General ; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to the Staff Regulations of officials of the European Economic Community and the European Atomic Energy Community, especially Articles 102 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 76,

THE COURT (First Chamber)

hereby :

I. Rules that no decision is required in Application 19/63;

2. Dismisses Application 65/63 as unfounded;

Registrar for the President of the First Chamber