C-78/63

JUDGMENT OF 1.7.1964 — CASE 78/63

9. Officials — Integration — Powers of the administration — Review by the Court —

Limits

(Staff Regulations of the EEC, Article 102)

10. Officials — Integration — Opinion of the Establishment Board — Statement of reasons

(Staff Regulations of the EEC, Article 102)

The European Economic Community the Com­ or, alternatively,

mission of the European Economic Community , represented by its Legal Adviser, Paul Leleux, acting as Agent, assisted by Jean Coutard, Advocate at the Conseil d'État and at the Cour de Cassation of France, with an

address for Luxembourg service in at the office of Henri Manzanarès,

Secretary of the Legal Department of the European Executives, 2 place de Metz, defendant,

Ap lication:

— for the annulment of the integration procedure applied to the applicant

THE COURT (Second Chamber)

composed of: Ch. L. Hammes, President (Rapporteur), R. Rossi and

R. Lecourt, Judges,

Advocate-Gnral: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

before the Establishment Board in June That decision was notified to the person and July 1962. concerned by a letter from the Director- On 18 July 1962, the Board issued an General of Administration dated 18 unfavourable report on his establish­ June 1963. ment, the text being as fol ws:

The establishment Board, after con­ II — Conclusions of the parties

sidering a report on the ability,

efficiency and conduct in the service The applicant in his appeal claims that

of Mr Huber who holds a Grade B 7 the Court should:

post in the Directorate General of annul the integration procedure fol­ 1.

apply the integration the Provisional Staff Committee proce­ again

dure to the applicant, after complet­ in June 1963 (document 7014

ing the formalities provided for in the Pers. F. 63 and in particular a

last sentence of Article 5 and in memorandum to the Commission

Article 110 of the Staff Regulations; (p. 17) and a declaration made

4. order the Community or, alternative­ to the Commission (p. 95) ; 2. Mr Smul­ ly, the Commission, to pay the appli­ order the examination of

reserves the right to raise in the as unfounded the application brought

conduct of his case such fresh issues by Mr Huber against the integration of fact and of law which it may be procedure, against the opinion of the

follow­ necessary for him to employ Establishment Board and against the

ing the submission of the arguments termination of his contract notified to

in defence and the production of him on 18 June 1963, requesting that any documents by the defendant; the integration procedure should be —

offers to prove by all legal means, re-applied to him after the formalities

ofthe Staff Regulations on the parties may be summarized as fol ws:

integration procedure and on the application of Article 110; A —

Naming the Defendants as parties (b) The communications made by the defendant to the Provisional The applicant brings his action against

Staff Committee relating to the both the European Economic Com­

integration of officials together munity and against the Commission of

with all minutes of the Provisional the EEC on the ground that, whilst he Staff Committee relating to the the Ad­ was aware of the opinion of

to re-apply the integration procedure of Article 110, which is to ensure the to the applicant. cooperation of the staff in working

According to the defendant, the applica­ out the general provisions for giving tion is also inadmissible in so far as it is effect to the Staff Regulations and

brought against the integration pro­ standardizing their application by cedure and the opinion of the Establish­ the various institutions; ment Board: a procedure is not a deci­ — An argument based on facts: on 13

sion and the opinion of the Establish­ December 1961 and on 9 March 1962 ment Board is only a preparatory the Commission enacted a regulation measure. Only the decision of the relating to the integration procedure Committee of Chairmen to terminate the and submitted it a posteriori to the applicant's contract may be the subject Staff Committee. of an application. The applicant considers that, in accord­

T he applicant replies that the Court has ance with Article 110, it was necessary unlimited jurisdiction with regard to to fix the procedure for drawing up staff appeals. The annulment of the inte­ reports on officials and the method of

gration consequently of procedure and doing so and to standardize the criteria the dismissal must moreover result in the by which the servants are appraised. re-appearance of the applicant before a He is of the opinion that Article 102

IX and considers that Article 102, The applicant claims that the whole of the governing an operation prior to the

procedure which was applied to him was application of the Staff Regulations, is a null and void on the grounds of the transitional provision.

JUDGMENT OF 1.7.1964 — CASE 78/63

It was thus not legally necessary to the Establishment Board which, accord­

consult the staff. It was a mere gesture of ing to him, is in fact an administrative courtesy, which makes the time when it tribunal.

occurred quite unimportant. In any case the audi alteram partem

the report of his immediate superior

The applicant claims that the contested comes from an official who has feelings

decision is null and void because the of animosity towards him; Commission failed to define beforehand, — the appraisals which appear in the

after consulting the Staff Regulations report are subjective and impossible Committee and the Staff Committee, to review;

the duties and powers attaching to each —

it has not been established that the

the presence of a third party renders

The defendant replies that the question in the Board's deliberations null and this case was to consider whether the void; applicant in fact fulfilled the conditions — he was not allowed the assistance of a for retention in the service of the colleague or of a legal adviser.

Commission, taking account of his The defendant replies that the applicant

previous conduct in a given post. The misunderstands the Establishment applicant confuses the implementation Board's nature, which is administrative. of the Staff Regulations with the putting In this connexion it refers to the opinion into effect of transitional provisions of the Advocate-General in the Leroy intended to facilitate this implementa­ case (Joined Cases 35/62 and 16/63). tion. The Board followed the proper pro­

cedure: the applicant was heard; he 3. Violation of the audi alteram partem submitted his comments in writing and principle and of general principles of verbally on the criticisms levelled against law him. With regard to the particular complaints The applicant contests the integration raised by the applicant, the defendant procedure and the decision to terminate contends that:

his contract on the grounds that the audi — he has not established the animosity alteram partem principle and the general of his immediate superior, but only principles of law were not observed by his own lack of deference in leaving

quired to be heard in the presence of statement of reasons in the opinion

the applicant; the confrontation might be considered as fulfilling the

would moreover have been em­ provisions of Article 25.

barrassing and the applicant confuses The defendant replies, quoting the text in the integration and disciplinary pro­ support, that the opinion of the Estab­

cedures; lishment Board contains an adequate

— there is no obligation to allow the statement of reasons. This submission is applicant the last word; moreover irrelevant, taking account of — the Head of the P­ ersonnel Department the judgment of the Court in the Leroy was required to attend the meetings case.

Mr de la Fontaine was a member of the suitability of the person concerned for Establishment Board, although not em­ the duties of his post and not to compare

ployed in a supervisory capacity as re­ the respective merits of the various

quired by Article 102 of the Staff servants.

Regulations. The defendant replies that Mr de la 7. Incorrect finding or appraisal of the Fontaine is established in Grade A 2 facts which corresponds to a supervisory post

under Annex I to the Staff Regulations. The applicant alleges that the facts on

5. Infringement the Establishment Board based of Article 25 of the which

—

that the minutes of the Board only that the Community or, alternatively, show that it heard the applicant's the Commission should be ordered to

immediate superiors; no opportunity pay damages as compensation for mater­

was given for the applicant or a ial and non-material damage suffered by his behalf to dispute him because of the termination of his person acting on their evidence and it is not known to contract of employment. In the course

what extent it influenced the Board's of the oral procedure he stated that he

opinion; only claims as damages, should the — the wording of the opinion is very contested decision be annulled, the

ledge of German, the report states which the case was assigned pursuant to only that the applicant speaks and reads the Court's decision of 9 October 1963

German very well but that he writes it (Official Journal of 29 October 1963, poorly, a judgment which shows both p. 2598/63), decided to open the oral

in­ the good bad points and contains procedure without a preparatory and

no inconsistencies. quiry.

T he parties were heard at the hearing of In any event, the Court in its judgment 13 May 1964. in the Leroy case recognized that it On 10 June 1964 Advocate-General

could not check whether the complex Roemer delivered his reasoned oral

Under Article 179 of the EEC Treaty, 'The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the

Conditions of Employment'. The expression 'the conditions laid down in the

HUBER v COMMISSION

Regulations' Staff necessarily implies that there is conferred upon the

institution itself, as the appointing authority exercising its powers either

directly or indirectly, the right to be a party to legal proceedings relating to disputes with its servants and officials.

B — Application for annulment

Admissibility

The first claim in the applicant's conclusions is for the annulment both of the integration procedure which was applied to him and of the Establishment Board's report which was communicated to him by letter of 18 June 1963.

The defendant maintains that this head of the conclusions is inadmissible in that it relates to a procedure and a measure not having the nature of a decision.

Under Article 91 (1) of the Staff Regulations there may be referred to the Court any dispute between the Communities and any person to whom the Staff Regulations apply regarding the legality of an act adversely affecting such a person ('un acte faisant grief à cette personne'). Only acts which are

capable of directly affecting a given legal situation can be considered as adversely affecting a person.

decision of that authority. It therefore cannot be considered as having a direct adverse effect upon the applicant.

The conclusions seeking the annulment of the integration procedure and of the opinion of the Establishment Board, considered separately from the contested decision to terminate the contract, are inadmissible. However, the submissions and arguments put forward in support of these conclusions

may be invoked against the decision to terminate the contract itself.

The applicant further claims that the Commission should be required to

resubmit him to the integration procedure, after completing the formalities provided for in the last sentence of Article 5 and in Article 110 of the Staff Regulations. The defendant submits that these conclusions are inadmissible,

on the ground that the present case is an application for annulment in the context of which the Court is not empowered to order such a measure.

The applicant alleges that the integration procedure which was applied to him pursuant to Article 102 of the Staff Regulations is void owing to the failure to adopt the general provisions for giving effect to it in compliance with the first paragraph of Article 110.

'general' 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. In this case, apart from the

HUBER v COMMISSION

question whether Article 102 of the Staff Regulations is sufficiently explicit to be 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 applicant maintains that the integration procedure in dispute is irregular since the definition of the duties and powers attaching to posts, provided for in the last sentence of Article 5 of the Staff Regulations, was not adopted beforehand in accordance with Article 110, and that this irregul­

arity invalidates the decision to terminate his contract of employment.

The principal aim of the definition of duties is to facilitate the classification, on the basis of Annex I to the Staff Regulations, of the servants integrated under the Regulations. It cannot therefore be considered as an indispensable legal procedure for the purposes of the application of Article 102. In this

case moreover, in view of the complexity of the task of defining the various posts and the time involved, and taking account of each institution's need to integrate its servants as quickly as possible, it must be accepted that the disputed decision discloses no irregularity in this respect.

Infringement of the audi alteram partem principle 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 audi alteram partem principle as well as the general principles of

ments on the factors capable of influencing his integration. This requirement is satisfied when the person concerned has been heard by the said Board in connexion with the factors in the report which formed the basis for its decision and from which it drew its conclusions.

A different situation would obtain if the conclusions of the report had been amended after hearing new witnesses without the issue of any invitation to the servant concerned to submit fresh comments thereon. This did not

happen in the present case. The applicant was aware of the report on him drawn up by his superiors. It is not disputed that he submitted his comments

on the conclusion of this report, that he lodged written statements and that 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 heard afresh after that hearing is not such as to affect the regularity of the procedure followed, since these hearings in no way altered the conclusions in his superiors' report, which the Establishment Board

With regard to Mr Berghold, although the facts alleged in the application give for admitting that his relations with the applicant did not grounds

always run smoothly, it does not however follow from this that they were the determining factor in the unfavourable assessment contained in the estab­

lishment report.

Finally the presence of a stranger to the proceedings, as a mere observer moreover, at the deliberations of the Establishment Board and the fact that the applicant was not assisted by a colleague or by a legal adviser are not such as to call in question the proper conduct of the proceedings before the Establishment Board.

The submission is therefore unfounded.

HUBER v COMMISSION

In its opinion of 18 July 1962 the Establishment Board declared that it had formed its opinion 'after considering a report on the ability, efficiency and conduct in the service of Mr Huber … , having gathered all the necessary information and heard the servant himself.

It indicates the reasons for its unfavourable assessment of the applicant's

suitability for the duties of his post in the following man er:

'Mr Huber has neither the administrative knowledge nor the training neces­

B.'

sary to perform the duties of a servant in Category

JUDGMENT OF 1.7.1964 — CASE 78/63

is invalid, since, lacking criteria laid down uniformly and in advance, the reports on the staff were markedly subjective, and, necessarily leading to divergent conclusions, violated the principle of equal treatment of the

various servants.

The reports on the ability, efficiency and conduct in the service provided for

by Article 102 (1) of the Staff Regulations must be prepared by the superiors of the servants who are subject to the integration procedure. Since their aim is to express a value judgment on a servant's aptitude in the performance of his duties and to supply an assessment of his general conduct, they neces­

sarily contain subjective judgments. In any event, the integration procedure does not aim at making a comparison between the respective merits of

Establishment Board does not adopt this finding which, whetheror right

wrong does not appear to have been one of the determining factors in the

unfavourable assessment of the abilities of the applicant or, consequently, in

the decision to terminate his contract.

The submission is therefore unfounded.

C — Application for damages

The applicant has failed in his action.

Under Article 70 of the Rules of Procedure of the Court of Justice of the European Communities, in proceedings commenced by servants of the

Communities, institutions shall bear their own 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 Article 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community;

Hammes Rossi Lecourt

Delivered in open court in Luxembourg on 1 July 1964.

A. Van Houtte Ch. L. Hammes Registrar President of the Second Chamber