C-26/63

applicant,

v

Commission of the European Economic Community , represented by its Legal Adviser, P. Leleux, acting as Agent, assisted by J. Coutard, Advocate of the Conseil d'État and of the Cour de Cassation of France, with an

address for service in Luxembourg at the office of Henri Manzanares, Secretary of the Legal Department of the European Executives, 2 place de Metz, defendant,

Application

1. Principally: for annulment of the integration procedure undergone by the applicant, as well as ancillary measures; the reinstatement of the applicant in respect of his rights and duties;

JUDGMENT

Issues of fact and of law

I —

Facts contained the following sentence:

The Establishment Board, being Mr Pistoj was appointed as Head of aware of the fact that Mr Pistoj raises Division in the Directorate-General of a social problem, suggests to the

the Internal Market of the Commission Commission of the EEC that it should of the European Economic Community make use of the power conferred upon

Alter having received various state­ previously to Mr Pistoj by Mr Caron, ments from Mr Pistoj, the Establishment Vice-President of the Commission.

Board, at its 31st meeting on 19 July T he unfavourable opinion of the Estab­

1962, issued an unfavourable opinion lishment Board was notified to the

concerning his integration, which was applicant by letter of 14 March 1963. worded as follows: In this letter he was offered a post in T he Establishment Board, alter hav­ Grade A 4, Step 6, with seniority as from

ing studied the report on the ability, 1 January 1961, in the Library and

efficiency and conduct in the service Documentation Department. This offer of Mr Pistoj, a servant in Grade A 3 of was subject to acceptance within 8 days. the Directorate-General of the In­ On 15 March 1963, Mr Slusny, counsel ternal Market, and after having ga­ for Mr Pistoj, asked for an extension of thered all the necessary information this time-limit and for his client's file to and having heard the servant himself, be sent to him. The request for an ex­

Commission of the EEC; this report ment was being terminated, subject to

PISTOJ v COMMISSION

have months'

three notice and severance continue to a right to the

basic benefits resulting from his months'

allowance equal to two other

an application against the European compensation of 5000000 Belgian Economic increase de­ Community or, alterna­ francs, subject to or

tively, the Commission which he names crease during the proceedings and parties.' as opposing for the non-material damage by

The applicant claims that the Court payment of compensation of

should: 5000000 Belgian francs, with the

1. Declare null and void the inte­ same reservation;

gration followed in res­ 6. Declare that the European Eco­ procedure

to the integration pro­ production of docu­ once more possible

cedure, after having carried out ments by the latter; the formalities laid down in the (b) offers to prove by all legal last sentence of Article 5 and in means, including the evidence Article 110 of the Staff Regula­ of witnesses, the facts which he

tions; alleges and which until now

4. Declare that consequent upon an­ have not been indicated in nulment the applicant be if such facts are dis­ should writing, regarded as being still in the puted by the opposing party.' service of the Commission, in In its statement in defence the defendant accordance with the detailed rules contended that the Court should:

of the transitional scheme to which Dismiss the application made by he had been subject until now; Mr Pistoj as inadmissible and in any declare that the European Econo­ event unfounded both in respect of

mic Community or, alternatively, the decision against integration and

the Council of Ministers con­ coliers, Brussels, cerning that part of the Staff Mr Roberto Celli, an official at —

Regulations dealing with the the Commission, integration procedure and the — Mr Alessandro Cappelletti, an application of Article 110; official at the Commission, Mr Giuseppe huis­ (b) the minutes of the meetings of —

Riccardi, Commission sier.'

the concerning the applicant's requests for an

extension of time and of those III — Submissions and argu­

concerning: his dismissal; ments of the parties

particularly a memorandum The facts are described, and above all

to the Commission (p. 17) and interpreted, in very different ways; an a declaration made to the example of these differences is provided Commission 95)); (p. by the use made by the applicant and 2. Order Mr Smulders, Director- the defendant of the designation of the

General of Administration, to be words 'social problem' used in respect

heard on the integration procedure of the applicant by the Establishment in general; Board with a view to giving him a new

In the further alternative: post in accordance with Article 102 (2) order the production of the appli­ of the Staff Regulations. cant's medical file. The integration procedure, and above

and in the final alternative: all the legal nature of the Establishment authorize the applicant to prove Board, are described quite differently.

concerned. On the contrary, according officials and the method of preparing to the applicant, the Establishment reports and to standardize the criteria

Board has a judicial character and its for the assessment of servants.

positive decisions also bind the adminis­ According to the applicant, Article 102 tration. presupposes measures of application, The parties are in disagreement on the which the Commission has by implica­ point whether all the grounds of com­ tion admitted by the adoption of regula­

plaint raised by the applicant amount to tions. He maintains finally that to

a dispute concerning legality. The de­ admit the contrary would be to deny fendant questions this. The applicant the aims, the usefulness and the guaran­

maintains that the Court has both the tees (consultation and publicity) of

of publication of the general provisions Consultation of the start of which

provided for in Article 110 of the Staff mention has been made is thus not

Regulations concerning integration in legally necessary and is only a courtesy accordance with Article 102. On this gesture, which makes the time when it point the applicant raises: occurred quite unimportant. On the —

an argument on the wording: the other hand a regulation concerning a arrangement and the position of the transitional provision does not have the Chapters of Title IX of the Staff character of a permanent implementing Regulations, and the drafting of regulation of the Staff Regulations. Articles 110 and 102; The applicant alleges that the disputed —

an argument based on the purpose decision is null and void, as the defini­

and the wording of Article 110: the tion of the duties and powers attaching collaboration of the Staff in the to each post, as provided for in the last

that the position to be filled is settled required by Article 102 of the Staff does not make it permissible to ignore Regulations, took part in the work of the the formality of prior definition. Establishment Board. The defendant replies that it was a matter The defendant replies that Mr de la of filling a particular position occupied Fontaine is an established official in since 1958 by the applicant and not a Grade A 2 which corresponds to a post position described in an abstract man­ of Director under Annex I to the Staff ner. The applicant is confusing here Regulations. application of the Staff Regulations with T he applicant disputes the decisions in

implementation of the transitional mea­ Establish­ question, as the opinion of the sures intended to allow such application. ment Board did not state the reasons on The applicant disputes the validity of which it was based in accordance with

the integration procedure to which he the requirements of Article 25 of the

was subjected and the decision to Staff Regulations although it adversely terminate his contract on the grounds affected him and he was informed of it that the audi alteram partem principle without delay. The applicant denies in and the general principles of law were any case that the two paragraphs which not respected before the Establishment represent the reasoning of the opinion

Board which is in fact an administrative may be satisfying the regarded as re­

tribunal. quirements of Article 25.

cerning him. His file contained errors in support of its argument the judgment and therefore the procedure of the of the Court in Joined Cases 35/62 and

Establishment Board was irregular. 16/63. The defendant replies that the applicant T he applicant draws attention to the

fails to recognize the nature of the incorrectness of the facts upon which

Establishment Board and refers in this the Establishment Board has based its Mr Advo­ incorrect connexion to the opinion of decision, or the assessment

cate-General Lagrange and to the judg­ which the Board has made of those facts. ments in Joined Cases 35/62 and 16/63. He gives a series of examples, in parti­

The properly reasoned opinion of the cular on the subject of his absences

(Case 10/55) in support of his request The applicant claims that the disputed for review by the Court. decisions are null and void on the ground

According to the defendant, Mr Pistoj of the participation of Mr Caron, Vice- 'paid attention to tittle-tattle and mali­ President of the Commission, in the

cious gossip' on the subject of his disputes deliberations at the end of which these

with Mr Scholz, with his previous decisions were confirmed, since Mr departments, etc. The Establishment Caron had taken part in the disputed Board based its opinion upon the evalua­ integration procedure and had accepted tion report as Article 102 obliged it to the unfavourable assessments of Mr

do, and carried out an inquiry. The Pistoj's immediate superiors. It would be reports of the immediate superiors con­ against the general principles of law to

curred. The minutes of the meetings of allow anyone to make a ruling in the last

16/63 in respect of review by the Court. The defendant replies that the Commis­

The applicant alleges that the disputed sion had no power of discretion and that decisions are null and void on the the consequences of the unfavourable

ground that the opinion of the Estab­ opinion of the Establishment Board lishment Board and the decision subse­ were automatically applicable under quently taken in respect of him were Article 102 of the Staff Regulations, based particularly upon the judgment and in consequence bound it absolutely. of Mr Scholz, his immediate superior, The offer of a new position subject to a who was motivated by personal resent­ time-limit for acceptance was a con­

ment and animosity against him; there cession to which Mr Pistoj had no right; was thus misuse of powers arising from there was thus nothing abnormal about

the remarks, attitude and reports of Mr Caron's participation in the various Mr Scholz. discussions. Lastly, the complaint has The dejendant replies that it is a question no substance since Mr Caron was not

here of gratuitious assertions and that presentat the 22nd meeting of the the part of the assessment report pre­ Commission during which the decision by Mr Scholz is in pared set out an concerning Mr Pistoj was taken. objective and impartial manner. The T ne applicant disputes tne commission s

and the applicant was due to the manner posal did not solve the question of

in which the applicant ran the depart­ seniority in the new grade; he mentions ment for which he was responsible. his state of ill health and the representa-

JUDGMENT OF 1.7.1964 — CASE 26/63

tions of his counsel and alleges that the The defendant replies that in view of the Commission has committed an abuse of the Establish­ unfavourable opinion of

law equivalent to misuse of powers. Board it impossible to inte­ ment was

The defendant replies that the termina­ grate Mr Pistoj and that it made a

gestion is repeated in the documents the existence nor the quantification of

annexed to the application. The de­ the alleged damage can be maintained. fendant considers that Mr Pistoj had time to for any necessary clarifica­ ask IV — Procedure tion and that 'Mr Pistoj who was absent

from his post and stated that he was ill The procedure followed the normal

was trying to gain time'. course. The case was assigned to the

T he defendant expresses its reservations Second Chamber and Judge Robert on the drafting of the submission and Lecourt was appointed Rapporteur with the utilization of the term 'abuse of Mr Karl Roemer as Advocate-General. law'; it mentions that 'annulment —

By letter of 12 February 1964, Mr should it come about —

damages. Having regard to the amount journed until 27 May 1964 to allow for of his salary, his age, his probable length possible agreement between the parties. of service at the Commission and the At the hearing on 10 June 1964 the

possibility of receiving a pension, the Advocate-General delivered an opinion applicant claims 5000000 Belgian francs favouring acceptance of the application ex aequo et bono for material damage and and the payment of costs by the de­

5000000 Belgian francs for non-material fendant. damage.

PISTOJ v COMMISSION

Grounds of judgment

A — The naming of the defendants as parties

channels prior to an appeal to the Court, provides that any official may submit a request or complaint to the appointing authority of his institution. The appeal to the Court referred to in Article 91 of the Staff Regulations

must, in the absence of any provision to the contrary, follow similar rules and be made against the same institution. The decision to terminate the appli­

cant's contract was taken by the Commission which, in relation to the appli­

cant, exercises the powers conferred on the appointing authority. The appeal must therefore be considered as brought against the Commission of

the EEC.

B — Application for annulment

In the present case the integration procedure, consisting of a series of

measures preparatory to the disputed decision to terminate the applicant's

contract, is not an act which in itself adversely affects the applicant.

Although under Article 102 (1) of the Staff Regulations the opinion of the Establishment Board constitutes an essential factor in the decision to be taken by the appointing authority upon which it is binding if it is unfavour­

able to the integration of the servant, it is not, however, for the purposes of an appeal under Article 91, a measure separable from the decision of that

authority. It cannot therefore have a direct adverse effect upon the applicant.

limited jurisdiction, as it has under Article 91(1) of the Staff Regulations, is unable to order the administration to carry out a specific act, the reopening

of the integration procedure must however be considered merely as one of

the consequences flowing from the execution of the judgment if the appeal were to be upheld.

The finally claims that the decision to terminate his contract, applicant

communicated to him by letter of 14 March 1963, should be annulled. The

defendant does not dispute the admissibility of this head of the conclusions and there are no grounds for the Court to raise the matter of its own motion.

The implementing provisions provided for in Article 110 are of a nature. They are therefore only necessary for the implementation of the permanent provisions of the Staff Regulations. Apart from the question

whether Article 102 Staff Regulations is sufficiently explicit to be of the

applied without any other implementing measure, it must be stated that it

only governs situations limited to a certain period of time. Since they relate to an essentially transitional provision, the measures adopted for giving

effect to it consequently cannot be general in nature. In these circumstances, the regulations adopted by the Commission on 13 December 1961 and 9 March 1962 to implement Article 102 are special implementing measures

which are not to be confused with the general implementing measures with which Article 110 is concerned and thus did not need to be adopted in accordance with the procedure provided for in that Article.

Infringement of the rights of the defence and the general principles of law

The applicant puts forward a series of facts which, according to him, establish that the procedure followed before the Establishment Board dis­ regarded the rights of the defence as well as the general principles of law.

JUDGMENT OF 1.7.1964 — CASE 26/63

It is agreed that the report on the applicant's ability, efficiency and conduct in the service prepared by his superiors concluded that he was not fit to perform the duties of his post. By virtue of Article 102 (1) of the Staff Regula­

tions an unfavourable opinion by the Establishment Board binds the appointing authority. Before issuing such an opinion this Board must however afford the person concerned an opportunity to submit his com­

ments on the factors capable of influencing his integration. This require­

he was heard by the Establishment Board.

The fact that the minutes of the hearings of the persons who appeared

before the said Board were not communicated to the applicant and that he himself was not the last to be heard is not such as to affect the regularity of

the procedure followed, since these hearings in no way altered the conclu­

sions in his superiors' report, which the Establishment Board adopted.

On this issue the application is therefore unfounded.

always run smoothly, they are not however capable of showing that this incompatibility in temperament was the determining factor in the un­

favourable assessment contained in the integration report, as Mr Scholz himself acknowledged the intelligence of the applicant.

The other grounds of complaint raised by the applicant as to the form taken

PISTOJ v COMMISSION

by the integration procedure which was applied to him stem from a con­

fusion between that procedure and criminal procedure. Such is not the case. The integration procedure enables the administration to choose the offi­

The applicant alleges that the opinion of the Establishment Board is irregular on the ground that this Board was not appointed in accordance

with Article 102 (1) of the Staff Regulations since one of its members, Mr de la Fontaine, was not employed in a supervisory capacity.

Mr de la Fontaine was classified in Grade A 2. According to Annex I to the Staff Regulations this grade corresponds to the basic post of director. On this point the regularity of the opinion delivered by the Establishment Board must therefore be accepted.

This submission is therefore unfounded.

Infringement of Article 25 of the Staff Regulations

The applicant maintains that the opinion of the Establishment Board does not sufficiently state the reasons on which it is based.

— 'it considers that Mr Pistoj has not been able to direct the work of the division under his charge with the requisite administrative ability or to his superiors and his subordinates;'

establish good relations with

— 'it considers that Mr Pistoj was unable to adapt himself to carrying out the duties entrusted to him in a satisfactory manner, because of his

inability to accommodate himself to his new work and the lack of order in his work.'

and method

In these circumstances it must be found that the opinion of the Establish­ ment Board sufficiently states the reasons on which it is based by means of the references made both to the information used and to the basic factors borne in mind underlying its assessment.

on incorrect findings of fact or made an incorrect assessment of them.

The applicant has referred in particular to the absence of valid proof of his alleged failings. The Establishment Board based its opinion on the report of

the applicant's immediate superiors, as Article 102 obliged it to do. Further­ more it carried out an inquiry and even consulted the numerous statements

produced by the applicant. In these circumstances it used its power of

discretion with full knowledge of the case.

The submission is therefore unfounded.

Insufficient time for acceptance of a lower position

The Commission offered Mr Pistoj a Grade A 4 position, subject to accept­

ance of the offer within eight days.

The applicant considered this time to be insufficient. Whatever the vicissi­

tudes occurring on this subject in 1963, the Court, in an effort to effect a

settlement, proposed to the Commission —

should be regarded as improper and as constituting a wrongful act for which

damages and compensation should be awarded.

It is apparent from an examination of the foregoing grounds of complaint

that the Commission has committed no wrongful act giving rise to liability on its part.

These is therefore no necessity to come to a decision on the request for compensation.

Costs

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-Gnral;

Having regard to the Treaty establishing the European Economic Com­ munity, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Eco­ Having regard to the Staff Regulations of officials of the European nomic Community, especially Articles 5, 25, 102 and 110; Euro­ Having regard to the Rules of Procedure of the Court ofJustice of the pean Communities, especially Articles 69 and 70;

THE COURT (Second Chamber)

her by:

1. Dismisses application 78/63;