C-80/63

JUDGMENT OF 1.7.1964 — CASE 80/63

8. Officials — Integration — Unfavourable opinion of the Board — Right of official con­ cerned to submit comments

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

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

(Staff Regulations of officials of the EEC Article 102)

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

Therefore the adoption of these likely to lead it to conclusions dif­ measures is only necessary for the ferent from those in the report and

application of those provisions of the to have an influence on the inte­

Staff Regulations which are not gration of the servant. Cf. para. 8 of

sufficiently clear and which are summary in Case 26/63. intended to remain in force. Cf. 9. Cf. para. 9 of summary in Case para. 6 of summary in Case 26/63. 26/63. 7. Ct. para. 7 of summary in Case 10. Ct. para. 10 of summary in Case

26/63. 26/63.

In Case 80/63

DEGREEF v COMMISSION

Conseil d'Etat and at the Cour de Cassation of France, with an address for

service in Luxembourg at the office of the Legal Department of the European Executives, 2 place de Metz, defendant,

Application for the annulment of

1. The integration procedure applied to the applicant, the opinion of the Establishment Board communicated to the applicant

by letter of 28 Tune 1963, the decision to terminate the applicant s contract of employment,

JUDGMENT

Issues of fact and of law

I — Facts II — Conclusions of the parties

The facts may be summarized as fol ws: The applicant claims that the Court On 25 September 1959 the applicant should:

was engaged by the Commission as a '1. annul the integration procedure

messenger in Grade C 13. He kept this applied to the applicant as well as

authority with reference to the establish­ Tune 1963; ment of servants in grades C and D, 3. declare that the Commission must

notified the applicant by letter of 28 arrange that the integration pro­

June 1963 that his contract of employ­ cedure be re-applied to the appli­

had been terminated and gave him cant after completion of the for­ ment

one month's notice of such termination. malities laid down in the last

JUDGMENT OF 1.7.1964 — CASE 80/63

cluding all disbursements and dismiss as being both inadmissible fees).' and unfounded the application of Mr

During the course of the oral procedure Degreef brought against the integra­ the applicant made the following tion procedure, against the opinion of

amendment to his conclusions under the Establishment Board communi­

head 4 namely that, if the decision ter­ cated to him by letter of Mr Van

minating his contract be annulled, the Gronsveld of 28 June 1963 and against defendant must pay to him the arrears of the termination of his contract of

his monthly salary. In addition, he employment notified to him on 28 submits that, so far as the procedure is June 1963 and his request that the

tions against him and that they must and in particular those relating to the be excluded from the proceedings.'

payment of costs.' The applicant claims, in addition, in his

reply that the Court should: III — Submissions and argu­

Alternatively ments of the parties

1. order the defendant to produce

(a) the minutes of the meetings of the The submissions and arguments of the

of the Communities and any person … ' him by letter of 28 June 1963. and by the to avoid objec­ The applicant objects however that, on necessity any tion of inadmissibility under this head. the one hand, the Court has concurrently

He emphasizes that his naming of the jurisdiction to annul and also unlimited

Community as a party could be to his jurisdiction on that, on the other hand, advantage if the Court considers that it the annulment of the integration pro­

is necessary to order production of the cedure and the termination of the con­

preparatory studies for Regulations Nos tract of employment which followed 31 and 11 of the Council. must, in accordance with the case-law

The defendant calls attention to the fact of the French and Belgian Conseils that the institutions do not have a legal d'Etat lead to:

formal requirements laid down in the fits arising out of his former contract. last sentence of Article 5 and in 3. The defendant in addition points out Regulations'

Article 110 of the Staff that the applicant pleads in a general

is inadmissible because this case is an way all the grounds for annulment laid application for annulment and in down by the Treaty without stating to such proceedings the Court has no which particular ground for annulment power to order such a step to be the various complaints set out subse­

taken. quently in the application relate. —

secondly, the claim tor the annul­ The applicant's answer on this point is ment of the integration procedure that it emerges clearly from a considera­

and of the opinion of the Establish­ tion of the facts and law upon which the ment Board is inadmissible, because application is based which of the grounds

— In these circumstances the applica­ stration. In addition he disputes the

tion is only admissible to the extent defendant's interpretation of Article 102 to which it is directed against the of the Staff Regulations and is of the

decision to terminate the applicant's opinion that production of the minutes

contract of employment notified to of the Council might make it easier to

JUDGMENT OF 1.7.1964 — CASE 80/63

understand the intention of the legisla­ tions. Article 110 is therefore applic­

Staff Regulations vision, since it issued on 13 December The applicant submits that the disputed 1961 an implementing regulation for integration procedure took place before this purpose, which was amended on

the general provisions of the Staff 9 March 1962 and sent a posteriori for Regulations referred to in Article 110 examination to the Staff Committee, as well as those relating to establishment whereas this should have been done laid down in Article 102 were adopted before the implementation procedure or at any rate before they were adopted was adopted.

in accordance with the procedure set — The wording of Article 102 is not out in Article 110. He argues, in explicit, because it says nothing addition, that the said general provisions about the composition of the Estab­ for giving effect to the Staff Regulations lishment Board nor about the pro­

have not been brought to the notice of cedure to be followed. The issue by the Staff. the Commission of the EEC of an

The defendant objects that the integration implementing regulation on this

procedure referred to in Article 102 point is sufficient proof of this fact. is a preparatory step leading to the The applicant adds that his criticisms

The applicant s reply is as fol ws: menting regulation; — T he fact that the authors of the — that the regulation issued for this

Regulations have placed Articles 110 purpose was communicated to the

after the transitional provisions indi­ provisional Staff Committee as a

cates that this Article must be ap­ matter of courtesy, such notification

plied in its entirety to all the said not being legally obligatory, and

provisions including Article 102. therefore it is of no importance —

took place before the definition of the must be upheld as the defendant duties and powers referred to in the last itself admits. sentence of Article 5 of the Staff Regula­ — T he Commission has for this pur­

tions had been carried out in accordance pose issued a regulation containing with Article 110. This means that the a certain number of rules which are

opinions expressed by the applicant's very similar to the rules of procedure superiors in the report on his ability of administrative tribunals.

et the opinions of the Establish­ The applicant adds that the doubts cetera, ment Board resulting decision and the expressed by the defendant on the

of the Commission of the EEC are void question whether new administrative

and of no effect. tribunals canbe set up under the Staff The defendant replies that the opinion Regulations are misplaced. Whether or of the Establishment Board refers to the not the Councils were right or wrong to conduct of the official in the post which create an Establishment Board and to

3. Infringement of the rights of the of the defence. This procedure, in order defence and of general principles of law that these dis­ to ensure rights are not

regarded, should at least comply with

The applicant argues to begin with that the following requirements:

the Establishment Board is an admini­ — prior production of the complete

strative tribunal. He puts forward in file; support of this view the following —

compliance with a properly ordered arguments: legal procedure, which implies the — That the opinions of the Board bind right of the official to call witnesses

conditions laid down in Article 102 and conduct of the applicant pre­

(1) (a) and (b) and in Article 28 (a) pared by his superiors only contains (b) (c) (e) and (f) have been ful­ subjective assessments which cannot

filled. be disputed, whereas it should con­ — That while conceding that it is not tain facts which can be challenged by

necessary to comply meticulously evidence to the contrary, as it is Establish­ with the rules of the codes of civil and ultimately the task of the criminal procedure in the proceed­ ment Board to form its own opinion

ings before the Establishment Board, on the general suitability of the nevertheless the rights of the defence servant on the basis of these facts.

JUDGMENT OF 1.7.1964 — CASE 80/63

is no confirmation whatsoever that position of the Establishment Board the Board was informed of the or to know who were the members

method of reporting adopted by the who took part in the inquiry and for dec­ applicant's superiors. deliberations, a request a

— The report of the applicant's im­ laration that the deliberations of the mediate superior is based on that of Board are null and void: it appears Mr Gottmann whose animosity to­ in fact from the said minutes that

wards the applicant is shown by the Mr Goeler, who was not a van

circumstances mentioned in the state­ member of the Board, took part in

ment of facts in the application. (The some of its meetings; applicant maintains, inter alia, that (b) to claim in addition he asked unsuccessfully for the instal­ —

However this problem does not in quences of the opinion given by the

fact appear to be of great importance Establishment Board. After calling at­

once it is realized that the report on tention to the fact:

the applicant by Mr Maudet is on —

that the opinion of the Board con­

the whole favourable and regards the tains a value-judgment on a man

ments put forward on this point are Treaty.

the subject of a separate submission.) the defendant maintains that the pro-

DEGREEF v COMMISSION

ceedings of the Establishment Board are — The reasons upon which the assess­

of an administrative and consultative ments of the applicant are based are but not of a judicial nature. It refers on set out as objectively as possible and this point to the opinion of the Advocate- it must not be forgotten that the General and to the judgment of the Establishment Board was informed Court in Joined Cases 35/62 and 16/63. of the method used in making the The defendant then goes on to submit reports.

that the integration of staff is equivalent, — There is no obligation at all to near

selves so provide. Finally the integration — As the integration procedure is not a

procedure limits the discretionary power judicial proceeding the applicant's of the competent authorities, but leaves complaint that he was not assisted

a sufficiently large field for the exercise by a colleague or by a legal adviser of this power which is inherent in any is inadmissible. Moreover the appli­

appointment. cant never asked for such assistance. Whilst taking the view that, having re­ — It is only necessary to read the letter gard to the nature of the Establishment of Mr van Gronsveld, referred to by Board, as an administrative body and the applicant in his application, to not a tribunal, it is unnecessary to confirm that the reasons upon which

examine certain complaints put forward the opinion of the Establishment

by the applicant, the defendant makes Board are based are adequate. the following additional comments: — T he report on the ability, efficiency 4. Infringement of Article 102 of the and conduct of the applicant in the Staff Regulations service made by the latter's superiors is based on the reports of the im­ The applicant maintains that one of the

— T he report of Mr Hoffman, which is the Commission of the EEC, ascertain

very unfavourable to Mr R. Degreef, that there are no grades in the Legal later Mr de la Fon­ was requested by the admini­ Department, of which

stration as the result of the applicant's taine is a member.

attacks against his former superior. The defendant contends that as Mr de la

JUDGMENT OF 1.7.1964 — CASE 80/63

Fontaine is in Grade A 2 he is employed tween servants, it appears that the appli­

argued above in relation to the third meetings of the Establishment Board, complaint and also to the judgment of states that he is in a position to substanti­

the Court in Joined Cases 35/62 and ate this complaint by enumerating a 16/63. certain number of facts which were

inaccurately stated or incorrectly evalu­

6. Infringement of the principle of equality ated by the Board. of treatment between servants The arguments developed by the appli­

cant cover:

The applicant states that the reports, in —

who perform duties at the same level. able opinion.

This would have been avoided if the The applicant relies in addition on

Commission had acted in accordance production of his file kept by the

with Article 110 of the Staff Regulations. administration to prove, inter alia, that

The applicant submits that the inte­ it does not support the conclusions in the gration procedure, including the pro­ opinion of the Establishment Board on

cedure for making up reports and the his aptitude in the performance of his report referred to in Article 102 of the duties. Staff Regulations, is null and void. The defendant s reply is the brief obser­

which emerge from the report on the clusion that the invalidity of the report candidate's ability, efficiency and con­ of the Establishment Board does not

duct in the service. invalidate the said decision. T he applicant requests finally that the In his reply he explains that in calculat­

new documents produced by the de­ ing material damage the Court should fendant, and which are attached to his take into account: personal file under letter G, be treated as —

his remuneration, inadmissible, because they are docu­ — his age, ments which are purely one-sided, on — the fact that he is unlikely to find a

which he was never able to express an post offering conditions as advant­

opinion and which do not comply with ageous as those which are offered to

integration procedure and are therefore cant's contract of employment and paid

of no relevance in this dispute. him all sums due under the said contract T he defendant contends that the appoint­ is not a wrongful act or omission on its

ing authority cannot be denied the part. In support of this view it refers to right to obtain, even after the opinion of its arguments in relation to the applica­

the Establishment Board, other reports tion for annulment and also to the

in order to decide whether the applicant judgments of the Court in Case 25/62 can be integrated in a lower grade than and in Joined Cases 35/62 and 16/63. the one accorded to him previously. In this connexion it calls attention to IV — Procedure the fact that the application is only admissible to the extent to which it is The procedure followed the normal

directed against the decision to ter­ course.

damage, and five million Belgian francs 13 May 1964. as damages for non-material damage,

JUDGMENT OF 1.7.1964 — CASE 80/63

Grounds of judgment

A — The naming of the defendants as parties

The application is brought against the European Economic Community or,

alternatively, against the Commission of that Community.

governing complaints by officials through official channels prior to an appeal to the Court, provides that any official insti­ may submit a request or complaint to the appointing authority of his tution. The appeal to the Court referred to in Article 91 of the Staff Regula­ tions must follow similar rules and be made against the same institution.

The present application must therefore be regarded as being brought against the Commission of the EEC, which in this case is the institution to which the

appointing authority responsible for the contested measure belongs.

B — The application for annulment

Admissibility

1. The applicant claims in the first instance that both the integration procedure and the opinion of the Establishment Board notified to the

noted that, even when it is favourable to the integration of the servant, his legal position is not affected until the appointing authority takes the decision

affecting him. Although under Article 102 (1) of the Staff Regulations, this opinion constitutes an essential factor on the basis of which the decision of

the said authority is taken and which binds it, it is addressed only to the appointing authority, whereas under the first paragraph of Article 25 of the Staff Regulations any decision relating to a specific individual shall at once be communicated in writing to the official concerned. It must therefore be concluded that, for the purposes of the appeal provided for by Article 91 of

the Staff Regulations, the opinion of the Establishment Board is not a

measure which can be separated from the decision taken by the appointing authority.

For all these reasons this head of the conclusions is inadmissible to the extent

The applicant also claims that the Commission should be obliged to re-apply the integration procedure to him after complying with the formal require­

ments laid down in the last sentence of Article 5 and in Article 110 of the Staff Regulations. The defendant pleads that this claim is inadmissible,

arguing that this action is an application for annulment and in such proceed­

ings the Court has no jurisdiction to order such a measure.

Under Article 91 (1) of the Staff Regulations the Court of Justice has un­

limited jurisdiction in any of the disputes mentioned in the said Regulations and in disputes of a financial character between the Community and any member of its staff. Although the Court, even in the context of such an

The applicant argues that the disputed integration procedure, laid down in Article 102 of the Staff Regulations, took place before the general provisions for giving effect to this procedure had been adopted in accordance with the first paragraph of Article 110. He draws from this fact the conclusion that the

disputed decision made as a consequence of this procedure is for this reason unlawful.

The implementing provisions for which provision is made by the said Article 'general' 110 are of a nature. Therefore the adoption of these measures is

only necessary for the application of those provisions of the Staff Regulations which are not sufficiently clear and which are intended to remain in force. Independently of the question whether Article 102 of the Staff Regulations is sufficiently clear to be immediately applicable, there is no doubt that it is

only intended to regulate a certain number of situations within a limited

period of time. As it is plainly only a transitional provision, the measures

The object of the definition of duties is to permit and facilitate the classifica-

DEGREEF v COMMISSION

tion of the servant on the basis of Annex I to the Staff Regulations. It cannot

therefore be regarded as a legal measure which is an essential preliminary to the application of Article 102 of the Staff Regulations. Moreover bearing in mind the complexity of the task of defining the various posts and the amount of time involved, and having regard to the need for each institution to integrate its servants as soon as possible under the new Staff Regulations, there are no grounds for finding any irregularity in the disputed decision.

Infringement of Article 102 of the Staff Regulations

1. The applicant maintains that the Establishment Board gave the appoint­

were determined beforehand, contain subjective assessments and do not

relate to facts-which can be challenged by production of evidence to the

contrary.

The last paragraph of Article 102 (1) of the Staff Regulations lays down that the Establishment Board shall give its opinion 'on the basis of a report on the official's ability, efficiency and conduct in the service prepared by his

superiors'. As the purpose of such a report is to give a value-judgment on a servant's aptitude in the performance of his duties, it must of necessity contain subjective assessments by the persons called upon to prepare it. Even if the criteria for making this report had been determined beforehand in a uniform manner, they would only create the formal context within

which the factors taken into account by every person making a report would

The applicant argues that the opinion of the Establishment Board is defective because the reasons upon which it is based are inadequate in law.

As has already been found, the submissions that this opinion is defective are

only admissible to the extent to which they refer to the legality of the disputed decision arising out of it. In these circumstances the merits of this submission must be examined by the Court with reference to the said decision.

The Establishment Board states in its report No 11 of 13 July 1962 that its unfavourable opinion on the integration of the applicant was given 'after

taking note of the report on the ability, efficiency and conduct in the service of Mr Degreef … , after obtaining all the necessary facts and after hearing himself.'

the servant In addition it states in his report the reasons for its

The applicant then argues that as the report on his ability, efficiency and conduct in the service was on the whole favourable, it ought normally to have led to his integration. He infers from this fact that the decision to terminate his contract of employment is all the more defective because the Establishment Board, before giving an unfavourable opinion, should, with due regard to the rights of the defence and to general legal principles, have brought to his notice all the facts capable ofjustifying this opinion and made it possible for him to challenge its substance if necessary.

According to the last paragraph of Article 102 (1) of the Staff Regulations

DEGREEF v COMMISSION

the Board gives its opinion to the appointing authority 'on the basis of a

report on the official's ability, efficiency and conduct in the service, prepared

by his superiors …'.

able opinion of the Establishment Board binds the authority. appointing Before drawing up its opinion, the said Board must therefore afford the person concerned the opportunity to submit his comments on the factors which may influence his integration. This obligation is complied with if the Board has heard the views of the person concerned on the facts contained in the report, for which provision is made in the last paragraph of Article 102

(1) of the Staff Regulations and whose conclusions it has adopted, or on the factors which it considers likely to lead it to conclusions different from those in the report and to have an influence on the integration of the servant.

The report on the applicant's aptitudes in the performance of his duties submitted to the Establishment Board was in favour of his integration. It emerged from the oral procedure that the applicant was heard by the

Establishment Board after his superiors had been heard but that he was not invited to submit his further comments on the facts for evaluation which the said Board obtained later, in particular at its fourth meeting when it drew up its unfavourable opinion. This omission must in itself lead to the nullity of the disputed opinion as well as of the contested decision.

C —

The claim for damages

invalidate the termination of the contract of employment. On the other

hand the claims made during the oral procedure were put forward in case the Court were to hold that the contested decision is null and void. The applicant has therefore by implication withdrawn the conclusions formul­ ated in his application.

Under Article 19 of the Protocol on the Statute of the Court, annexed to the

EEC Treaty, and Article 38 (1) (d) of the Rules of Procedure of the Court, the submissions of the applicant must be contained in his application. In this

case the claim for reimbursement of arrears of salary is one of the conse­

quences of the judgment of the Court that the contested decision is null and void. In fact if the contested decision to dismiss the applicant is annulled, he must be considered to be still in the service of the Commission and is en­

Costs

The applicant has succeeded in the essential point of his application.

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

On those grounds,

Upon reading the pleadings; Upon reading the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General;

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 ofJustice annexed

ment of Mr R. Degreef, notified to him by letter of 28 June

1963;

2. orders the Commission of the EEC to pay Mr Degreef the arrears of his monthly salary and the accompanying allowances from the date of his dismissal, taking into ac­

count any sums he may have received from alternative

employment during this period;

3. orders the Commission of the European Economic Com­

Mr President, cedure under Article 102 of the Staff Members of the Court, Regulations as regards the applicant, who since 25 September 1959 had been a The case of Degreef against the Com­ messenger in the service of the Com­

mission of the European Economic mission, and this led to his dismissal by

Community originates in the unfavour­ the Director-General of Administration able outcome of the integration pro­ (notification to the applicant by letter

1 — Translated from the German.