C-68/63

(Staff Regulations of officials of the EEC and EAEC, Article 102)

1. In cases of integration under the 2. The Establishment Board is not Staff Regulations, the appointing bound by the establishment reports authority and the Establishment Board but is entitled to obtain further in­ are obliged to investigate all the re- formation, in particular by hearing liable information favourable to the any person capable of providing it person concerned. with information helpful in making its assessment.

In Case 68/63

HARTMUT LUHLEICH, Doctor of natural sciences, residing at 6, via Brugnoni, Travedona (Province of Varese), assisted by Ernest Arendt, Advocate of the Cour Superieure de Justice of the Grand-Duchy of Luxembourg, with an address for service in Luxembourg at the Chambers of Mr Arendt, 6 rue Willy-Goergen,

applicant, v

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY (EURATOM), Brussels, represented by its Legal Adviser, Jan Gijssels, acting as Agent, with an address for service in Luxembourg at the offices of Henri Manzanares, Secretary of the Legal Department of the European Executives, 2 place de Metz,

gives the following

JUDGMENT

Issues of fact and of law

I — Facts formal decision notified to the appli­ cant on 8 March 1962. The facts may be summarized as (4) On 16 May 1962 Mr Laurent, the follows: applicant's immediate superior, signed (1) On 1 November 1960 the applicant his probation report. This report assesses took up his duties at the Research the applicant's knowledge, ability, char­ Centre at Ispra (hereinafter referred to acter and efficiency as 'good' or 'satis­ as the 'Centre') as a scientific research factory'; only the applicant's 'adapt­ worker. ability' and 'ability to work in a team' He was classified in Grade A6 and first were described as 'insufficient'. Under appointed to the Chemistry Department, the heading, 'special factors which may directed by Mr Laurent. directly influence the above comments' (2) Shortly afterwards the applicant was Mr Laurent wrote: 'Mr Luhleich's re­ transferred to the Physical Chemistry cent return to the Chemistry group . . . Department, directed by Mr Gillot who prevents me from forming an accurate was replaced by Mr Marchetti in July idea of the quantity of work carried 1961. out'.

(3) Relations between Mr Marchetti and (5) On 30 August 1962, the applicant certain research workers including the addressed a very detailed complaint to applicant became strained, and on 29 the defendant, referring in particular to August 1961 the applicant and four of the following: his colleagues sent a highly critical note — failure to carry out the promise given to Mr Marchetti. On 6 December 1961 before his appointment that he would the Director of the Centre informed be put in charge of a group under the applicant in writing that he would the immediate authority of the Direc­ be transferred to the Chemistry Depart­ torate of the Centre; ment. The transfer was confirmed by * — classification in too low a grade;

— failures in administration which had tunities afforded to him to put his deprived him of possibilities of de­ abilities at the disposal of the in­ veloping and completing his scientific stitution, an inability to adapt him­ training, and which had forced him self to the obligations of the service to work in unsatisfactory conditions; and, hence, has seriously affected the — unfair and damaging assessment ot efficiency which the institution was his abilities, coupled with discrimin­ entitled to expect of him, whatever atory treatment. may have been the inherent difficul­ In order to examine these complaints, ties in setting up the Centre'; the defendant set up a Committee of — forms the opinion that the applicant Inquiry, consisting of Messrs Consolo, 'is not suited to carrying out the Euler and Lacroix (hereinafter referred duties assigned to him.' to as the 'Consolo Committee'). The (8) The defendant terminated the ap- defendant has placed the written con­ plicant contract by decision of 20 March clusions of this Committee on the file. 1963 notified to the applicant on 13 The defendant took no further action May 1963. on the applicant's complaint and admits (9) The applicant lodged the present that it was rejected by implication. application on 13 June 1963. (6) On 21 May 1962, Mr Ritter, the Director of the Centre, signed the ap­ II — Conclusions of the plicant's 'establishment report' which parties — assesses the applicant's ability, efficiency and conduct as 'good' and In his application, the applicant claims 'satisfactory'; that the Court should: — gives a negative reply to the ques­ tion whether the Director, 'by virtue I — Declare that it has jurisdiction of this report', considers the appli­ to hear the present action; cant to be capable of carrying out II —Declare admissible the present the tasks at present entrusted to him; application against: — replies to the question whether the (a) the failure of the administra­ Director considers the applicant to be capable of carrying out other tion to give any reply to the activities, if necessary in a lower formal complaint made by the applicant to the Com­ rank, in the following manner: 'We mission of the EAEC on 30 suggest that the question of integra­ tion should be deferred and that an August 1962; (b) the express decision of 20 offer of a two-year contract should be made'. The reasons for this sug­ March 1963 refusing to in­ gestion were as follows: 'Owing to tegrate the applicant, noti­ outside circumstances, the work (of fied to him on 13 May 1963 the applicant) has not reached a point by letter dated 3 May 1963; from which it might be judged III — On the substance of the case definitively; Mr Luhleich is not re- Principally: sponsible for this delay'. (7) On 19 February 1963, the Estab­ 1. On the request for reversal or annulment: lishment Board: — considering that the applicant 's con­ reverse the contested decisions

in law; IV — alternatively: V — Order the defendant to pay all annul the contested decisions the costs and, if legal aid is with all the consequences that granted, order that the sums so this entails in law, rule that this advanced be paid over to the annulment applies to the pro- Cashier of the Court of Jus­ ceedings which have already tice'. taken place and that the ap­ In its statement of defence, the defend­ plicant's case shall be submit­ ant contends that the Court should: ted again to the Establishment 'declare the application unfounded under Board after a new report has all its heads; been drawn up based on factual consequently, dismiss the application; and objective evidence from 'both order the applicant to pay the costs'. sides; irrespective of the above: In his reply, the applicant claims that the Court should: rule that the Commission or the 'I — EAEC shall compensate the ap- plicant for the damage suffered II — On the substance of the case: as a result of the illegality of the contested decisions and shall A — On the application for the pay the applicant such damages reversal or, alternatively, the an­ as the Court shall see fit; nulment of the contested decis­ ions and for damages alternatively: 1. Implied decision of rejection 2. On the claim for dam­ based on the failure of the Com­ ages for wrongful acts or mission to give any reply to the omissions: formal administrative complaint rule that, quite apart from the submitted on 30 August 1962 legality of the decision on the

LUHLEICH v COMMISSION

cision infringes the prin­ the formal complaint of 30 ciple of good faith (’Treu August 1962 constitutes a und Glauben') and is in­ wrongful act or omission on the compatible with the appli­ part of the defendant;

JUDGMENT OF 8. 7. 1965 — CASE 68/63

consequently: V — Costs:

order the defendant to pay sucn order the defendant to pay all damages to the applicant as the the costs of the action and that Court shall assess, either of its such costs shall be paid over own motion or following a report to the Cashier of the Court of drawn up by such experts as it Justice'. shall appoint; rule that the assessment of the In its rejoinder, the defendant contends damage made by the applicant that the Cour t should: in his application instituting the proceedings and set out again 'accept the conclusions of the Com­ in the present reply is not mission set out in its statement of definitive; defence, which it maintains;

LUHLEICH v COMMISSION

relations were always excellent. not form its own opinion, but 'relied The defendant replies first of all that blindly on the adverse statements' Article 102 of the Staff Regulations of of certain superiors; officials is sufficiently clear and there­ — that the member of the Board who fore it was not necessary to supplement was aware of the Console report it with general provisions for giving (of. (a) above), which was indispens­ effect to it. able in making an assessment of the

JUDGMENT OF 8. 7. 1965 — CASE 68/63

applicant. The probationary period, (d) Material inaccuracies in the which moreover was not provided for facts alleged in the letter of appointment, was adop ted as an internal measure. Neither the The applicant states that he has never probationary period nor its expiry could disputed the principle of the authority give rise to rights or obligations for of the administrative structure. As a servants whose contracts could be ter research worker, however, he did not minated on one month's notice either 'merely carry out instructions' and before or after this period. 'could expect his directors, who are also The respective procedures involved m scientists, to discuss the ideas which the probationary period and integration he put forward'; in fact, there was were not merged. The fact that both never any discussion of the numerous took place simultaneously did not pre proposals submitted by the applicant judice the applicant. although they were evidence of his As for the criticism concerning the interest in the efficient performance of manner in which the personal file was the work. kept, the defendant observes that the The fact that the applicant was trans applicant was able to examine the com ferred several times demonstrates the plete file and that he had signed and inefficient functioning of the Centre and initialled al the documents therein. arises from the fact that from the time The defendant protests against the - of his appointment he was 'persona insinuations made against the member non grata'.

LUHLEICH v COMMISSION

letter was taken into account when them. considering the case of each of its If the defendant regards the note of signatories. 29 August 1961 — which was moreover confidential—as insubordination, the From taking up his appointment the question then arises why applicant claimed to. determine for him — sole responsibility for this note is self, in line with his earlier work, his attributed to the applicant; area of activity and the research he would undertake. He carried out his — the defendant did not immediately own research 'with the means at his reprimand the signatories; disposal for the realization of the pro — it did not ask Mr Marchetti for his gramme of his department, thus creat reasons for not producing this note ing, first, an overlap between the work until one and a half years after of his colleagues and work carried out receiving it. by him (which he had not been re- As regards the claim that he misused quested to do) and, secondly, necessita a chromatograph, the applicant asserts ting the assistance of an outside research that he never used such apparatus and Centre in the work he was vainly ex that the claim is based on the mis

to the action. In particular it declares which it was allotted to him but for that 'the basis of the present action' is unnecessary work. 'At this point the a failure to appreciate the principles obstinacy of the applicant exhausted behind any administrative structure. the patience of his Head of Department Apart from Mr Gillot, the applicant who sent his superiors a report on the has never recognized the authority of shortcomings of the applicant'. The his immediate superiors. The applicant defendant 'is surprised at the attempt of here cites numerous examples such as Mr Luhleich to avoid responsibility for — the applicant's refusal to work in the misuse of this apparatus, which he an establishment of Grenoble and to ascribes to one of his colleagues, since

he always considered himself to be etc.) and although the assessment of him "head of the group" and insisted on in the integration report was even less being allocated the apparatus in favourable than that of the applicant. question'. The only difference between the two cases is that Mr Kuhlboersch submitted C—Submission based on misuse of no formal complaint to the defendant. powers and abuse of procedure The defendant replies first that the To a large extent the arguments of the applicant was not promised freedom parties under this heading overlap those to continue with earlier research work. concerning the second submission (cf. Power to organize the departments rests under B above). with the Directorate alone; servants Moreover, the applicant complains in have no right to request to be entrusted particular that he was the victim of the with the research work of their choice. 'unflagging' animosity of the Director- The events which occurred during the

The present Department. application is made against this implied In addition, the applicant criticizes the decision of rejection'. Moreover, the file procedure followed by the defendanl shows that the applicant agreed that no following his complaint of 30 August decision should be given on the com 1962: the applicant was informed on plaint until after the decision on inte several occasions that the complaint was gration was made. It is for this reason under consideration and that a decision that the defendant made no objection to would be taken towards the middle of the admissibility of the application

question. Moreover, the arbitrary nature possible. On the other hand, if annul of the integration procedure is shown by ment is 'a means of re-establishment', the fact that Mr Kuhlboersch was inte- it does not constitute sufficient repara grated although his experiences had tion for the material and non-material been the same as those of the applicant damage suffered in particular as a result (transfers, difficulties with superiors, of the following facts:

— serious disturbance of his professional imbursement of 1 698.35 DM paid out and family life (the applicant has of his personal funds to acquire labora two children); tory equipment. — lack of income and social security The defendant replies that the grant of since his dismissal; weighting arises from a provision of the Staff Regulations. Thus, only establish — hesitation on the part of many ed servants have the right to it; the potential employers who are finan payment to the applicant of 25 706 cially dependent on Euratom to Belgian francs (as was the case for all engage a research worker dismissed

It is termination of the contract of employ in no way obliged to bear the expenses ment and in its conduct after termina incurred by Mr Luhleich in carrying tion. He states that he has assessed the out his personal research work. All the resulting loss on the basis of his age, equipment bought for this purpose has his professional experience and the been returned to him'. services rendered by him to the Centre. The defendant raphes that, as the IV — Procedure illegality of the contested decision has not been shown, the applicant's request By order of 11 July 1963 the First must be dismissed a limine. Chamber of the Court accepted in part It firmly refutes the applicant's assertion the application of the applicant for legal that the facts raised constitute wrongful aid and ruled that the Cashier of the acts or omissions. Court should make the applicant a re- Finally, it emphasizes that the applicant coverable advance of 25 000 Belgian submits no calculations allowing the francs. estimated total damage to be reviewed. By order of 17 July 1963, the President of the Court dismissed the application

JUDGMENT OF 8. 7. 1965 — CASE 68/63

to reserve its decision for the final Ritter and Van der Venne should be judgment. heard. By order of 22 January 1964 the First With the exception of Mr Hannaert who Chamber of the Court dismissed the was heard on 11 February 1965, the applicant's request that the costs of Chamber heard these witnesses on 9 translating into French extracts from December 1964. certain schedules to the reply be Mr Kuhlboersch was heard a second advanced by the Cashier of the Court. time on 11 February 1965. By orders of 15 October and 13 Novem­ The oral observations of the parties ber 1964 the First Chamber of the were heard by the First Chamber of 'the Court decided that certain facts should Court on 12 February 1965. be proved by witnesses and that Messrs The Advocate-General delivered his Euler, Gillot, Hannaert, Kuhlboersch, opinion at the hearing on 17 March Lacroix, Laurent, Marchetti, Mercereau, 1965.

Grounds of judgment

I — On the submission that the decision of dis­

missal be reversed or, alternatively, annulled

The applicant requests the reversal or, alternatively, the annulment of the decision of 20 March 1963 by which the defendant terminated his contract.

Although the applicant's probationary period ended on 30 April 1961, the report was not drawn up until 17 May 1962 and then by Mr Laurent whose relations with the applicant had been strained.

Out of thirteen comments on the applicant in the report two are less than 'satisfactory', namely, those on his 'adaptability' and 'ability to work in a team'.

On the other hand, had the report in question been drawn up at the proper time, that is, in May 1961, it would have had to be drafted by the immediate superior under whom the applicant worked during that period.

The defendant has not disputed the applicant's allegation that in June 1961 the Director of the Centre 'had expressed his satisfaction and congratulated the group which, although the last to be set up, was the first to have suc­ ceeded in demonstrating its cohesion, from the point of view both of its research work and of its international character'.

When asked by the Court what he would have done as the applicant's superior, Mr Gillot assessed him in glowing terms without any reservations and stated: 'I would certainly have recommended him for integration'.

The applicant was able to refer, before the Establishment Board, to all the documents in his personal file which were favourable to him.

mittee presided over by Mr Consolo which was charged with inquiring into the applicant's complaint that the Ispra authorities had made it impossible for him to work in satisfactory conditions.

As has just been found, it was the duty of the defendant to make available to the Establishment Board every reliable piece of information capable of influencing its opinion.

The Court must therefore consider whether this applied to the report in question.

It appears from the file that there is a close connexion between certain of the complaints made by the applicant in the abovementioned complaint and those made against the applicant by the defendant. Indeed the disputes for which each side blames the other arise largely from the same set of facts.

This logical connexion is particularly well illustrated by the statement of the defendant that 'throughout his employment at the Centre' the applicant had 'considered the general difficulty and discomfort ... as personal victimization'.

This being so, and in view of the complex and at times highly technical character of the mutual recriminations, it was very difficult to allot respon­ sibility between the applicant and his superiors, without also examining whether the applicant's complaint was well-founded.

plaint was wholly unfounded, which was likely to confirm its opinion that the applicant had been unable to accommodate himself to the requirements of the department.

This being so, an examination of the criticism made by the applicant—which could equally well have taken the form of a hearing of the members of the Consolo Committee—would have done much to redress the balance.

It follows from all these considerations that the integration procedure was once more vitiated by a serious irregularity.

C — The contradiction between the establishment report and the opinion of the Establishment Board

The applicant asserts that a contradiction exists between the establishment report drafted, on the whole, in favourable terms and the opinion of the Establishment Board.

In particular, he emphasizes that the former expressly exempts him from responsibility for certain difficulties which had affected his work and mentions none of the criticisms taken into account by the Establishment Board.

All the same, the reasons which he gave for this contain no criticism of the applicant and are couched as follows: 'Owing to outside circumstances, his work'—that is, the applicant's work—'has not reached a point from which it might be judged definitively. Mr Luhleich is not responsible for this delay. We suggest that his integration be deferred and that he be offered a contract for two years, during which time the question of integration can again be considered'.

This being so, the establishment report contains an intrinsic contradiction because it puts forward no factor justifying a negative answer to the question whether the applicant was suited to the performance of his duties.

Furthermore, and for the same reasons, this report is incompatible with the unfavourable opinion of the Establishment Board.

However, in order not to reduce the Establishment Board to the level of a mere cipher, it must be admitted that it was not bound by the report in dispute but was entitled to obtain further information, in particular by hear­ ing any person capable of providing it with information helpful in making its assessment.

2. The submissions based on the inaccuracy of the facts alleged against the applicant

The arguments of the applicant tend to show that the basis on which the opinion of the Establishment Board was drawn up either does not correspond to the facts or else is incomplete.

This note, drafted in English, was signed by five research workers, including the applicant, in the Physical Chemistry Department and was addressed in confidence to Mr Marchetti.

It was highly critical of Mr Marchetti, alleging in particular that he was in­ capable of 'understanding the human and scientific problems of our group'.

Its closing words were as follows: 'As there is no reason to hope that this situation will change in the future, we beg you whether you would consider (sic) the other openings available to you at Euratom of which you have often spoken to us'.

Mr Ritter, the Director of the Centre, stated before the Establishment Board, that the 'secret leader' of these research workers had been Mr Sundermann, who had subsequently resigned, and that it was he who had been 'primarily responsible' for the difficulties in question.

Mr Kuhlboersch, who also signed the note, agreed in his evidence that it had been drafted by Mr Sundermann and that the applicant's role in the matter had been 'quite insignificant'.

However, with the exception of Mr Sundermann and the applicant, all the signatories were integrated.

However, in this instance, the unusual circumstances characterizing the period of adjustment through which the Ispra Centre was passing at that time, together with the attitude shown by the superior in question, justify the inference that the conduct of the applicant was not sufficiently open to criticism to jeopardize his integration.

B — The question of the chromatograph

According to the statement of defence, 'a chromatograph, placed at [the disposal of the applicant] for the sole purpose of checking the purity of poly- phenyl, the physical constants of which had to be measured, . . . was used not for this increasingly urgent work but as an instrument of analysis . . .'.

The statement of defence goes on to state that this incident, characterized by the 'obstinacy of the applicant', had obliged the Head of his department to make a report to his superiors on the shortcomings of the applicant.

In reply to the argument of the applicant that the chromatograph had been used only by Mr Van Almkerk, one of his colleagues, the defendant 'is sur­ prised at the attempt of Mr Luhleich to avoid responsibility for the misuse of this apparatus, which he ascribes to one of his colleagues, since he always considered himself to be 'head of the group' and insisted over a lengthy period on being allocated the apparatus in question'.

(a) These statements imply, first, that the applicant was personally respon­ sible for the misuse of the apparatus.

All these factors make it possible to determine that, since the applicant never used the apparatus in question, it could not have been misused by him.

(b) Secondly, the defendant's statements tend to show that, even supposing that the applicant did not personally misuse the chromatograph, he is none­ theless responsible, since he regarded himself as the 'head of the group'.

The important point is not whether the applicant attributed to himself the post 'head of the group', but whether he had been officially appointed to that position.

No such appointment appears in the file and it has not even been alleged by the defendant.

Moreover, the quarterly report in question refers to the applicant and his colleagues Kuhlboersch and Van Almkerk as 'specialists with responsibility' without suggesting any difference of rank. Furthermore, instructions for the use of the chromatograph were sometimes addressed to the applicant alone and sometimes to all three research workers.

Finally, the applicant was not classified in a higher grade than his two colleagues.

However, he preferred to wait until 29 October 1962 when, without pre­ viously informing the research workers in question, he addressed a note to the responsible officials at Euratom, stating that 'the chromatograph . . . en­ trusted to Mr Luhleich has not been used for its proper purpose'.

It was only on 31 October 1962, during an interview which seems in other respects to have taken place in a friendly atmosphere, that he informed the applicant that the report in dispute had made a bad impression in Brussels and that he had had difficulty in defending its authors. This statement shows on the one hand that he regarded himself as justified in coming to their de­ fence but on the other hand is in sharp contrast to his note of 29 October.

It does not appear that Mr Hannaert took advantage of the interview to give the applicant an express warning.

Nor does it appear that any other responsible official from Euratom ap­ proached the applicant and his colleagues at that time in order to ascertain either that the alleged misuse did not take place or to stop it immediately.

On the contrary, a teleprinter message of 27 November 1962 from the Director-General for Research ordered Mr Lindner, Mr Hannaert's superior, to decide how to make the most efficient use of the chromatograph while avoiding as regards the applicant 'any abruptness of manner capable of being interpreted as a (discriminatory action'.

It was only on 24 January 1963 that Mr Lindner gave instructions for the future use of the chromatograph in a note, containing no reprimand, addressed to the applicant and the research workers Kuhlboersch and Van Almkerk.

It is necessary to call expert evidence on this point, since the considera­ tions set out above show by themselves that the complaint against the appli­ cant is based on inaccurate allegations of fact.

C — The applicant's relations with Mr Laurent, his first superior

The defendant contends that at the end of 1960 and the beginning of 1961 the applicant refused to go on scientific missions to Grenoble and Freiburg, as suggested by Mr Laurent.

In this context, the defendant itself speaks of 'suggestions'.

As long as the intentions of a superior are expressed as wishes and not as orders, the subordinate's duty of obedience is not at issue.

This is particularly true for research workers for whom it is normal for formal instructions to be preceded by a period of scientific discussion in which the different opinions are considered on an equal footing.

Although it is true that in a strictly administrative sense this correspondence did not imply a transfer at that point, the letter of 5 December nevertheless gave the impression that the two Heads of Department concerned were in agreement over the applicant's new posting.

Furthermore, during this initial period marked by the absence of well-defined programmes of a precise structure, it appears that the Director of the Centre usually allowed the Heads of Department considerable liberty in the choice of their colleagues.

This is shown in particular by the fact that the applicant's move to the Physical Chemistry Department was never the subject of a written decision and that the exact date cannot even be established from the documents in his file, copious though they are.

In view of such ah unorthodox practice the applicant cannot be criticized for addressing his request for authorization to the person whom he was justified in the circumstances in regarding de facto as his immediate superior.

Moreover the defendant has not challenged the applicant's statement that Mr Laurent was also aware of the mission in question.

This being so, it is clear, that the facts referred to by the defendant are in­ capable of supporting the complaints made against the applicant.

When asked by the Court what he would have done as the applicant's superior, Mr Gillot assessed him in glowing terms without any reservations and stated: 'I would certainly have recommended him for integration'.

The applicant was able to refer, before the Establishment Board, to all the documents in his personal file which were favourable to him.

If he had been able to refer to a glowing report by Mr Gillot, this should logically have led the said Board to have reservations about the less favour­ able comments made by other superiors under whom the applicant had worked for shorter periods and, in particular, about those of Mr Marchetti, whose role will be examined below.

It was the duty of the defendant and the Establishment Board to investigate all sources of information favourable to the candidate.

The above facts therefore constitute an irregularity of procedure.

B — The defendant's failure to make available to the Establishment Board the report of the Consolo Committee

II — The submissions that the rejection of the applicant's complaint be reversed or, alter­ natively, annulled

The applicant requests the Court to reverse or, alternatively, annul the implied decision by which the defendant rejected his complaint of 30 August 1962 and to award him damages for the injury suffered as a result of the illegality of that decision.

This complaint referred, first, to the classification of the applicant and, secondly, to his working conditions at Ispra.

Since the applicant has formally declared that he does not intend to re-enter the defendant's employment, his complaint has become pointless.

It is therefore unnecessary to rule on his conclusions concerning that complaint.

III — On the claim for damages

In view of the size of the sums claimed such general allegations conform neither with the requirements of Article 18 of the Protocol on the Statute of the Court of Justice of the EAEC nor with Article 38 (1) (c) of the Rules of Procedure, according to which the application must contain at least a brief statement of the grounds on which the application is based.

The present conclusions must therefore be declared inadmissible, without its being necessary to examine whether the alleged wrongful acts or omissions actually exist.

IV — The claim for repayment of the sum deducted from the weighting

The applicant claims that the defendant should be ordered to pay him the sum of 25 706 Belgian francs, previously paid as an advance and later deducted from the compensation payable on termination of the contract.

The applicant has not denied that this sum was paid as a weighting and that the payment was accompanied by a letter providing 'that the payment of this advance is without prejudice to the outcome of the integration procedure', and that the advance 'may be recovered from any sums which might be pay­ able by the Commission for any reason to the person concerned'.

Payment of the weighting arises from the provisions of the Staff Regulations of officials of the EEC and EAEC and, where appropriate, from the Con­ ditions of Employment of Other Servants of the Communities — provisions which never became applicable to the applicant.

However, these conclusions were only put forward in his reply.

It does not appear that this delay in the formulation of his conclusions is justified by legal or factual elements which became apparent after the filing of the application.

This being-so,.these conclusions.are madmissible under the terms of Articles (d) 38 (1) and 42 (2) of the Rules of Procedure.

VI —Costs

The applicant has succeeded in the main points of his application and has claimed that the costs of the application be borne by the defendant.

Under the terms of Article 69 (2) of. the Rules of Procedure the defendant must therefore be ordered to pay the costs.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon examining the witnesses; Upon hearing the parties; Upon hearmg 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, especially Article 18; Having regard to the Staff Regulations of officials of the European Economic Community and the European Atomic Energy Community, especially Article 102; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially. Articles 38, 69 and 76;

THE COURT (First Chamber)

hereby:

I. Rules that the decision of the defendant of 20 March 1963 terminat­ ing the contract of the applicant is illegal and constitutes a wrongful act incurring the liability of the Community;

2. Orders the defendant to pay damages to the applicant equivalent to to nine times the monthly net emoluments received by him at the moment when the dismissal took effect;

Delivered in open court in Luxembourg on 8 July 1965.

A. Van Houtte L. Delvaux Registrar For the President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 17 MARCH 1965 1

Mr President, appointment on 1 November 1960 and Members of the Court, was classified in Grade A6, Step 2. You are aware of the manner in which Mr Hartmut Luhleich, a Doctor of his career developed. He was first post­ natural sciences with a degree in chem­ ed to the Chemistry Department, then istry, had been an assistant at the in January 1961 was transferred to the University of Cologne for four years Physical Chemistry Department which when, alter a proposal from the Federal was at that time under the authority Ministry of Atomic Energy and after of Monsieur Gillot, the interim Head contacting Dr Ritter, he was employed of Department, but from 1 July 1961 at Ispra. He actually took up his was under the authority of Mr

1 — Translated from the French.