C-84/63
ECLI:EU:C:1964:49
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JUDGMENT OF THE COURT (FIRST CHAMBER) <ap note>1</ap note> 25 JUNE 1964
J. A. G. Baron de Vos van Steenwijk
v Commission of the European Atomic Energy Community
Case 84/63
Summary
1. Officials — Integration under the Staff Regulations Probation report Extension of — —
probationary period — Establishment report — Period of reference covering the official's whole period of service
(EAEC Staff Regulations, Article 102)
2. Officials —Integration under the Staff Unfavourable opinion of the Regulations — Establish
ment Board — Ground of complaint to be raised by means of an action against the decision of the appointing authority confirming this report
(EAEC Staff Regulations, Articles 91, 102)
3. Officials — Integration under the Staff Regulations Opinion of the Establishment —
Board — Communication before notification of the decision not obligatory (EAEC Staff Regulations, Article 102)
1. In spite of the existence of a report nion of the Establishment Board can drawn up after the serving by an only be raised effectively by means of official of a six months' probationary an action against the decision of the
deci appointing authority, since this ex-
period and notwithstanding any tension of this period, the adminis sion, which constitutes the final step tration has the right and the duty in the integration procedure, is re
to submit to the Establishment Board quired to confirm the opinion.
a more recent report covering the 3. The administration is not bound to entire period which has elapsed inform the official of the opinion of since the applicant was engaged. the Establishment Board before its 2. Any ground of complaint by an decision regarding his integration is official against an unfavourable opi notified to him.
In Case 84/63
J. A. G. BARON DE VOS VAN STEENWIJK , represented by Andre Elvinger, advocate at the Cour Supérieure de Justice of the Grand Duchy of Luxem bourg, with an address for service in Luxembourg at the Chambers of Mr Elvinger, 84 grand-Rue, applicant,
1 — Language of the Case: French.
JUDGMENT OF 25.6.1964 — CASE 84/63
V
COMMISSION THE EUROPEAN ATOMIC ENERGY COMMUNITY ( EURATOM), OF
represented by its Legal Adviser, Jan Gijssels, acting as Agent, with an address for service in Luxembourg at the office of Henri Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz, defendant,
Application for the annulment of the decision refusing to integrate the applicant and terminating his contract and for the payment of dam ges;
THE COURT (First Chamber)
of: A. Trabucchi, President of Chamber (Rapporteur), L. Del composed
vaux and W. Strauß, Judges,
Advocate-General: M. Lagrange Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts not been possible to assess the applicant ill-health had necessitated fre whose
The facts may be summarized as fol ws: quent absences. The personal file of the The applicant entered the service of the applicant contains, under the No 61, an Commission of the European Atomic extract from the minutes of the meeting
Energy Community on 15 May 1961 and of 4 February 1962 concerning the was assigned to the Directorate of the 'review of classification at the end of the Joint Research Centre at Ispra. His first six months of service', showing that letter of appointment, dated 25 May the competent committee had recom
1961, refers to a salary corresponding to mended in favour of this extension. that of a servant in Grade A 4, Step 3, of On 19 February 1963 the Establishment the scale of remuneration in force in the Board issued an opinion unfavourable
ECSC. to the integration of the applicant on the
In the probation report of 16 February basis of the establishment report and
1962 concerning the applicant drawn up the annexed memoranda of 16 and 27 the end service, Mr November 1962 by the appli at of six months of prepared
Ritter, the Director of the Centre, re cant's superiors, Mr Ritter and Mr quested that the trial period be ex Mercereau, and after hearing the appli
tended by six months, that is, until cant, Mr Gueron, the Director-General 15 May 1962, on the ground that it had of Research and Mr Ritter and Mr
DE VOS VAN STEENWIJK v COMMISSION
Mercereau, Director and Assistant Court should:
Director of the Joint Research Centre. 'find in his favour in respect of the
On the basis of this opinion, the Com conclusions in the originating appli
European Atomic Energy mission of the cation order the defendant to produce
Community decided at its meeting on before the Court: 20 March 1963 to terminate the con 1. the letter from the President, E. tract between the applicant and the Hirsch, establishing the steering Community. The applicant was notified committee at Ispra and conferring
of this decision by letter of 8 May 1963 on the applicant the duties of
President Com signed by the of the executive secretary of that body; EAEC. It is 2. administrative documents con mission of the against this all
decision that has brought Bodnar the applicant cerning the Nijsing and
the present action. escu incidents, referred to by the defendant in support of its argu
II — Conclusions of the parties ment:
3. in particular, as regards these
In his originating application the appli incidents, the relevant extracts
cant claims that the Court should: from the minutes of the delibera
'declare that the establishment re tions which took place during the the opinion of the Establish October ports and meeting of Euratom on 15 ment Board are void on the ground 1963; that they infringe the rules of law 4. as regards the Bodnarescu incident, ap licable; the letter expressly quoted in the
therefore, declare void and in any reply to Dr Ritter applicant's of
case unjustified the decision refusing 7 September 1961; to integrate the applicant and ter order the personal appearance of the
minating his contract referred to in by their above-mentioned rep parties
the letter of the President of the Com resentatives ;
mission of the EAEC of 8 May 1963 alternatively, allow the applicant to
despatched on 15 May 1963 and tender in evidence all the facts refer
received on 24 May 1963; red to in the application instituting declare that taking these decisions in the proceedings and in this reply, in violation of the rights of the applicant particular the following: amounts to a wrongful act giving rise 1. that since these various incidents
to a right to compensation by means took place, in particular those
of an award of damages; relating to the case of the officials declare that the termination of the Nijsing and Bodnarescu, that is, contract of employment is in since the period September-Octo any event improper and detrimental to ber 1961, the applicant received
the ap licant; from Dr Ritter, his immediate order the defendant to pay 5 000 000 superior, no real and responsible
Luxembourg francs to the applicant task or instructions; on the con
he de by way of damages; trary was systematically order the defendant to bear all costs prived of all contact with the
departments; action.'
of the
In its statement of defence the defendant 2. that no written or oral instructions
contends that the Court should: had ever been or were subse
'dismiss depart the application as being quently sent to the various unfounded in its entirety; order the ments or to senior or junior offi
to bear the costs.'
applicant cials concerning the applicant's
In his reply the applicant claims that the duties;
JUDGMENT OF 25.6.1964 — CASE 84/63
3. that on the contrary the heads of contract he was not required to
department with whom adminis resume his position at Ispra; trative contact was essential, in declare that this evidence is admis
particular the heads of staff ad sible, relevant and conclusive; stores and instru order an expert's report to be ob ministration, ments supervision, were advised by tained on the material and non-
Dr Ritter not to cooperate with material damage suffered by the
the applicant; ap licant; 4. that the applicant was given the make such further orders as the Court duties of executive secretary of the shall consider appropriate;
steering committee by President In its rejoinder the defendant contends Hirsch and that this committee, that the court should:
meeting so far as the applicant can declare that the evidence tendered by
recall, for the first time on 27 the applicant is submitted out of
November 1961, ceased to exist time and is therefore inadmissible; after a few meetings following a uphold the conclusions of the de
decision made or initiative taken fendant set out in its statement of
by Dr Ritter; that even before this defence and which it repeats.' committee was disbanded the ap
plicant had been relieved of the III — Submissions and argu
task of drawing up the minutes on ments of the parties
the pretext that his work was un
satisfactory, although at that time The submissions and arguments of the
he had only prepared a single parties may be summarized as follows: draft of the first minutes of the
first meeting; A — On admissibility 5. that the department or plan
ning office", for the The defendant does the appli which not contest
cant became responsible after the admissibility of the action.
appointment of Mr Mercereau as
assistant to Dr Ritter, had no B — On the substance of the case powers, no real existence as a
department in the service and no 1. General executive staff; that the applicant's
attempts to make contact with In support of his action the applicant
different departments ran into pleads the grounds of infringement of the
the express and implied counter- Treaty or of a rule of law relating to its instructions of Dr Ritter referred application and misuse of powers.
to under 2 above; Before putting forward his arguments in 6. that the presence of the applicant support of these submissions the appli
in had be "planning office"
this cant sets out certain circumstances
come completely irrelevant since it intended to show the unfair treatment
had no communications with the which he suffered at the hands of Dr
Director, the Assistant Director or Ritter, the Director of the Centre. In with the departments; order to explain the reasons for Dr 7. that on 8 April 1963, Mr Buurman, Ritter's change of attitude towards him Assistant to the Director, Mr the applicant refers to the following two Funck, informed the applicant in incdents:
the presence of Dr Ritter that in 1. His letter of 7 September 1961 to Dr view of the decision to Ritter concerning the duties of Mr refusing integrate him and terminating his Bodnarescu. The applicant main-
DE VOS VAN STEENWIJK v COMMISSION
tains that this official had succeeded 34 of the Staff Regulations, it was sub
in obtaining in a disproportionate mitted too late; it dates in fact from fluence in all departments and in November 1962 although the extended
acquiring powers which trespassed probationary period came to an end on not only on those of the applicant, 15 May 1962. but also on those of his own col T he invalidity of the report of the
leagues ; Establishment Board, which results from 2. His intervention in favour of Mr the invalidity of the establishment re
Nijsing, a Dutch official, which led to port, means that the contested decision his remaining in the department at a is also invalid since it constitutes the
time when Dr Ritter had almost necessary confirmation of the Board's decided to dismiss him. opinion.
T he defendant maintains that these two In view of the favourable statements
incidents show an unfortunate tendency contained in the probation report of 16 on the part of the applicant to see rela and 24 February 1962, the applicant
tionships within the department from a states that if the Establishment Board personal angle, which had led him has, as it should have done, based itself constantly to commit indiscretions and on this report, which is the only valid even make outrageously slanderous re one, his integration could not have been marks about the Directorate. The de refused.
fendant regards the Nijsing incident as a The defendant objects that the applicant specific act of insubordination in that has not shown to what extent the
the applicant, disregarding the refusal alleged irregularity in the preparation of his Director, sent a telegram at his own of the probation report could vitiate the
expense to the Dutch member of the integration procedure. It maintains that, Commission, Mr Sassen. having regard to the contractual nature The applicant observes that his personal of the legal relationship between the
action regarding Mr Nijsing was ac servant and the Community during the cepted by the Commission and that as a period before the entry into force of the result Mr Nijsing remained in his post Staff Regulations, the probation report
contrary to the recommendation of had no legal effect as regards servants.
Dr Ritter. As to the Bodnarescu incident, Moreover, the defendant states that, as the applicant maintains that his action the applicant had been employed since was justified 15 had been there
by the transfer of this offi May 1961, no
cial to the Centre at Mol. extension of his probationary period within the meaning of Article 34 of the 2. On the irregularity of the integration Staff Regulations. Lastly it maintains
procedure that, as the establishment report pro
vided for in Article 102 of the Staff (a) The applicant maintains that the Regulations was a specific document integration procedure as applied to expressly required by those Regulations, himself was irregular in that, instead of no other document could be substituted
being based on the first probation report for it by the Establishment Board. drawn up in February 1962, it was based The applicant maintains that the de
on a second probation report ('report on fendant is playing with words by main
abilities') drawn up following a six taining that only one establishment his trial drawn up. He emphasizes months'
extension of period. report was
This extension, authorized after the that the heading in the probation report entry into force of the Staff Regulations, which determines its content was the
is illegal. The second probation report same as that used in the establishment is also illegal in that, even under Article report. There were therefore no grounds
JUDGMENT OF 25.6.1964 — CASE 84/63
for regarding the probation report as period and maintains that such an out
invalid for the purposes of integration. come did not dispense with the need for The applicant challenges the contention the integration procedure; the applicant of the defendant that Article 34 was not could, therefore, not be integrated with
applied to him by referring to the letter out a favourable opinion from the
of 17 May 1962 from Mr Funck and to Establishment Board. the undated minutes placed in his In this respect, the attitude of the Court personal file under Reference No 61, in the Mirossevich case does not con
de informing him of the six flict months'
ex with the point of view of the
tension of the trial period. Thus the fendant. In that case Advocate-General defendant had applied Article 34, al Lagrange maintained that the contract
though it did not apply to the applicant, confers no right to a career or to security
while trying to avoid the duties arising of employment, but merely provides
from it. employment.
As regards the argument of the defen (b) The applicant maintains that the
dant that before the entry into force of integration ir actual procedure was
the Staff Regulations the probationary regular in that: period was merely an internal measure, 1. The opinion of the Establishment the applicant maintains that this con Board was not submitted to the
tradicts the principles established by the applicant in its entirety before the Court in the Mirossevich case. decision not to integrate him was
While still insisting that Article 34 of the taken, nor was it placed in his Staff Regulations was not applied to the personal file;
applicant, the defendant objects that if 2. As no meeting took place between the contrary were true the applicant the servant concerned and the heads would have to claim that the trial period of department who submitted reports
was invalid and not allege rights arising on him, the procedure made no
from the invalidity of this period. The provision for the applicant to be arguments of the applicant would result heard. in the procedures used before the entry With regard to the first of the above
into force of the Staff Regulations taking points, the defendant disputes the claim
precedence over the provisions of the that this opinion must be communicated
Regulations themselves, whereas the to the party concerned before any procedure involving the service of the decision is taken by the appointing trial period, which applied before the authority. Such a procedure would be
entry into force of the Regulations, was incompatible both with the scheme
certainly not intended to replace the established by the Staff Regulations and procedure referred to in Article 102. with the rôle of the Establishment Moreover, as from 1 January 1962, the Board as a consultative administrative
applicant's trial period could not be body. governed by Article 34, first because the The applicant was notified of the opi
conditions of application of this pro nion of the Establishment Board by the vision wore not fulfilled and, secondly, letter terminating his contract, which because in both its substance and its enabled him to make his submissions by
effects the trial period prior to the entry way of a complaint. into force of the Staff Regulations was With regard to the second point, in view different from the system laid down in of the consultative character of the
Article 34. Establishment Board, the defendant T he defendant contends that the appli considers that the principle of hearing cant could claim no rights from the the party concerned did not require a
satisfactory outcome of his probationary meeting between that party and his
DE VOS VAN STEENWIJK v COMMISSION
superiors, as the prior communication to case, invalidates the contested decision. him of both the establishment report In support of his argument the applicant and his personal file and his opportunity puts forward the following points:
to submit comments to the Board on all 1. The very general terms in which
the observations made and information Mr Mercereau's report was ex-
given by his superiors complied with pressed
that principle. 2. The report made by Mr Ritter shows The applicant replies that the Board is that, first, a set of tasks had been not acting as a consultative body when created, each more theoretical and
it gives an unfavourable opinion since illusory than the last, and, secondly, such an opinion is binding on the ap that the applicant had been given
for in pointing authority. tasks, example, concerning On the other hand, the defendant repeats surance, requiring him not to act or its argument that the opinions given by prepare plans, but merely to decide
the Board are not in themselves con 'where the problem lay', an un
clusive even though they limit the power necessary task since this problem was of the appointing authority to a con already being dealt with by Mr siderable extent. Even if the opinion is Citterio; also in questions of welfare unfavourable the authority may still and housing the applicant had only choose between termination of the con been given minor tasks which would tract and establishment in a lower normally form part of the duties of
grade. servants in Grade B and even Grade
C; finally, as regards the work of the 3. On the irregularity of the assessment applicant on the steering committee,
made in the establishment report by this committee, regarded as trouble
the Establishment Board some by Mr Ritter, had only been able to meet three times. As regards Under this heading, the applicant pleads the complaint made in the establish
infringement of the Treaty or of a rule ment report of his absences from of law to its application, as well work, the applicant maintains that relating as misuse of powers. no complaint could be made in good faith about the absences of a servant
(a) Infringement of the Treaty deprived of all real responsibility and condemned to waste his time in The applicant maintains that any assess an empty office. ment of him was impossible and in The defendant replies that there was
herently defective since, at least during never any doubts as to the duties to be the period to which the evaluation made performed by the applicant who was
in the establishment report related, he recruited to assist the Director of the
had been prevented from performing the Centre in the organizational work in
duties of Assistant to the Director of the volved in setting up the Nuclear Re
Centre on which he should have been search Establishment at Ispra. He was
judged. responsible, either on his own initiative Moreover, both his original powers and or on instructions from the Directorate, his new duties from the beginning of — for studying all the problems posed by 1962 he had been assigned to a planning the administrative organization of the
office with no real work or purpose —
establishment and for finding solutions were so theoretical that it had been quite to them, for preparing the relevant
impossible for him to demonstrate his decisions and for supervising their im
abilities, this, by analogy with the and plementation.
decision of the Court in the Mirossevich As is shown by the letter of 23 February
JUDGMENT OF 25.6.1964 — CASE 84/63
1961 sent by the applicant to Mr Ritter, instructions were given in regard to these the Director of the Centre, it was clear matters to the various departments. On before his appointment that he would the contrary, the applicant was system
perform his duties under the authority of atically isolated. Thus Mr Marcus, Mr Ritter. The applicant could not responsible for matters concerning staff
reasonably complain that he had no and administration, had refused to
chance of demonstrating his abilities allow him to become involved with any
during the eighteen months between the but the most basic maters; the applicant beginning of his service and the prepara concludes from this that Mr Marcus had
tion of the establishment report. As he been instructed to frustrate any attempt was responsible for preparing and work by him to deal seriously with the organiz
ing out the details of the organization ation of the welfare department. As to and administration of the Centre at a the creation of a planning office to deal time everything was still to be when with all the administrative questions
organized, he had a wide field of action assigned to him since the beginning of and great responsibilities which required 1962, the applicant maintains that it initiative. In his grade he could not had been deliberately in order created
expect his superiors to divide his work to conceal the fact that he had finally into a series of concrete tasks and duties. been put out of harm's way. This being so, the burden of proving that The criterion regarding the burden of the assessment made of his abilities was proof followed by the Court in the irregular rests entirely on the applicant. Mirossevich case is applicable in this
Moreover, the defendant challenges the instance, since the qualitative and quan
statement made by the applicant. It titative variations peculiar to that case
maintains that the problems with which (grade, length of probationary period
the applicant was concerned, such as and of service) do not affect the princi
insurance, housing, allocation of staff ples laid down in it. and transport, were specific and con T he defendant maintains that the opinion
crete and of great practical importance. of the Establishment Board was not
The applicant replies that, since the test based on the poor preparation of the
of his efficiency was the successful minutes of the first meeting of the steer
the"
accomplishment of concrete tasks, ing committee, but rather on the negli
general nature of the tasks given to him gent manner in which the applicant
and the fact that the general research dealt with the work entrusted to him, involved in them did not form part of a his unjustified absences, his ill-timed comprehensive indi intervention in staff affairs for which he more programme
that an old ruse had been applied the in cated was not responsible, offensive
'to keep him out of harm's way'. sinuations made against the Director of It would be extremely difficult for the the Centre at Ispra and the unaccept
applicant to prove these matters, in view way in able which he approached the
of their negative nature, if the burden of Commission of the EAEC. In the light proof fell on him. On the other hand, if of such criticisms, supported by docu precise instructions had been given to ments filed with the statement of defence, the applicant, it would have been easy the applicant could not claim that it was
for the defendant to prove this or at for the defendant to justify further the least to set out such circumstances, opinion of the Establishment Board and instead of merely disputing facts put the decisions to dismiss him.
forward by the applicant and describing With reference to the applicant 's allega
in more chosen words the tion that the duties described on page 15 carefully tasks already enumerated in abstract of the statement of defence are unilateral
terms by Mr Ritter. No written or oral since he did not agree to them as he did
DE VOS VAN STEENWIJK v COMMISSION
not know what they were, as he was not has presented no arguments and sup
informed of them, and as they were plied no proof whatever which could
created after his appointment and were establish the existence of a misuse of
therefore irrelevant to the case, the powers and submission is therefore
defendant maintains that such duties do inadmissible. not conflict with the letter of 23 T he applicant states that the Director of
February 1961 which states that the the Centre used his powers of assessment applicant would work under the author for personal ends, that is, in order to rid ity of the Director of the Centre. himself of a troublesome colleague. The
According to the defendant, it is not terms used by this Director at the
usual to inform other departments by meeting of the Establishment Board means of memoranda of the presence, are significant in this respect. the duties and the powers of servants who The defendant objects that it is not
are taking up employment; such powers sufficient for the applicant to plead
become clear through the use which is irregular conduct on the part of his made of them. The applicant is un superiors in order to establish a misuse
justified in denying that he had been of powers by the Establishment Board. responsible for the welfare department, The report made by the applicant's in particular for the housing office, since superiors is in fact only one of the factors in his observations on the establishment on the basis of which the Board formed report he had admitted this fact while its opinion. Moreover, as only the person
complaining about it. As regards the in whom a power is vested may be
planning office established at the re accused its misuse, it is necessary to of
quest of Mr Mercereau, there is no show that the Commission of the EAEC
justification for describing it as unim adopted the alleged corrupt motives of
portant, since such an office plays an the applicant's superiors.
important role in the running of many
large institutions. As regards his position 4. Damages as secretary of the steering committee, the applicant attended three of its The applicant maintains that, since the meetings without up drawing the termination of the contract is the result minutes of the last two, as was his duty. of the refusal to integrate him, the
irregularity of the refusal entailed the (b) Misuse of powers irregularity of the termination, which, having lost its justification is improper The applicant emphasizes that the only and gives rise to a claim for damages. specific task which Dr Ritter indicated Alternatively, even if the refusal to
as having been entrusted to him was the integrate him were to be upheld, the
preparation of the minutes of the first applicant maintains that the period of
one month's notice given on termination meeting of this committee and that, one year after the faulty drafting of these of the contract was insufficient. The fact
minutes, this is still the only criticism that this period was mentioned in the
which could be made of him. The appli letter of appointment did not render the cant bases his submission of misuse of less improper or detrimental the termin powers on this and on the fact that Mr ation by one month's notice of a contract Ritter had reduced the role of the held by an official with an expectation applicant, originally intended by Presi under the Staff Regulations and the
dent Hirsch to be that of executive right to security of employment: such
secretary of the committee, to that of a a period of notice would be regarded as mere secretary. insufficient by most European legal The defendant observes that the applicant systems.
JUDGMENT OF 25.6.1964 — CASE 84/63
The applicant is claiming 1 000 000 tendered while insisting that reasons be Luxembourg francs by way of damages given in order to avoid abuse of the
for loss caused by temporary unemploy provision.
ment, 3 000 000 Luxembourg francs by The defendant, while adhering to its impair way of damages in respect of the contention that such particulars are
ment and reduction of his working life inadmissible, observes that the one
and, finally, 1 000 000 Luxembourg exception laid down in Article 42 to the francs in respect of non-material rule therein stated only applies when damage. reasons are given for the delay. If the The defendant observes that the clause defendant's failure to raise objections
fixing the period of notice at one month could constitute a valid reason for the
exists in all contracts concluded by the delay, particulars of the nature of the
institutions under Article 214 (3) of the evidence tendered need never be given EAEC Treaty. As the applicant has not in the originating application and
established that any damage was Article 38 would thus have no meaning.
suffered, or submitted any figures to support the amount of his claim, the IV — Procedure defendant contends that the claim is inadmissible. The procedure followed the normal
In his reply, the applicant maintains that course.
his claim for damages is justified by the By order of la March 1964 the First
untimely nature of the termination of Chamber of the Court decided to order employment. The clause concerning the following facts to be proved by notice, although legal in itself, had been witnesses:
used improperly in this case. (a) Is it true that since September-
The defendant observes that the applicant October 1961 the applicant was
received, in addition to one month's systematically deprived of all con
notice, compensation amounting to two tacts with the departments? In months' salary according to Article 102 particular, is it true that those
(2) of the Staff Regulations. heads of department with whom
administrative contact was essential,
5. On the admissibility of the evidence notably those of staff administration tendered and of the stores and instruments supervision department, were ad
Although in his originating application, vised by Dr Ritter not to cooperate the applicant expressly reserved the right with the applicant? If so, were
to give particulars at a later stage of the reasons given for this direction, and nature of the evidence tendered if the if so. what were they?
facts and circumstances referred to in his (b) Is it true that, following his prepara
application were contested, the defendant tion of the minutes of the first objects that according to Article 42 (1) meeting of the steering committee, of the Rules of Procedure the delay in the applicant was relieved of this justi indicating such evidence must be task?
fied if it is be declared inad Is it true that the not to (c) 'planning office', missible. for which the applicant became The applicant criticizes the defendant for responsible after the assignment of
its formalistic attitude and states that Mr Mercereau to Dr Ritter, had no Article 42 (1 ) of the Rules of Procedure as a depart powers, no existence
recognizes in principle the right of the ment and no communication with
parties to formulate in the reply particu the Director, the Assistant Director lars of the nature of the evidence or the departments?
DE VOS VAN STEENWIJK v COMMISSION
On 13 May 1964 the First Chamber of Mr M. Camps, head of the Supply the Court heard the following witnesses Department of the Joint Research on these questions: Centre, Ispra; Mr H. Marcus, head of the Personnel Mr F. P. Mercereau, Assistant Direc and Welfare Department of the Joint tor of the Joint Research Centre, Research Centre, Ispra; Ispra. Mr W. Metzger, head of the Admini The parties were heard on 13 May stration and Finance Department of 1964. the Joint Research Centre, Ispra; The Advocate-General gave his opin
Mr G. L. Faa di Bruno, official of the ion at the hearing on 13 June 1964. EAEC;
Grounds of judgment
On admissibility
The defendant has made no objection to the admissibility of the application and no grounds exist for the Court to raise the matter of its own motion.
The application is therefore admissible.
On the substance of the case
On the ground of complaint based on the irregular extension of the probationary period
The applicant maintains that the extension of his probationary period was detrimental to him on the ground that the report prepared at the end of his first six service was favourable to him, whereas the report prepared months'
after the extension of his probationary period, on which the Establishment Board relied, was unfavourable. Therefore, since the extension was irregular, so too must be the contested decision.
Even if the applicant's probationary period did not take an entirely normal course it cannot be said that the irregularities invoked in this connexion are
such as could invalidate the decision not to integrate him.
In fact, since the integration procedure took place more than a year after the end of the period referred to in the probation report of 16 February 1962, the administration, notwithstanding any extension of the applicant's
probationary period, had the right and the duty to submit to the Establish
ment Board a more recent covering the entire period which had report
elapsed since the applicant was engaged. The establishment report drawn up in November 1962 was therefore properly put before the Establishment
Board.
JUDGMENT OF 25.6.1964 — CASE 84/63
This ground of complaint is therefore unfounded.
On the ground of complaint based on the irregularity of the integration procedure
The applicant complains that the full contents of the opinion of the Establish ment Board were not made available to him before the decision refusing to integrate him was taken and that the opinion was not placed in his personal file.
The unfavourable opinion of the Establishment Board is binding on the appointing authority. Any ground of complaint by the person concerned
against this opinion could only be raised effectively by means of an action against the decision of the appointing authority, since this decision, which
constitutes the final step in the integration procedure, is required to confirm the opinion.
Therefore, the applicant could not have been prejudiced by the failure to inform him of the opinion before the decision was taken. In those circum
stances, the administration cannot be regarded as bound to inform the
party concerned of the opinion of the Establishment Board before its decision is notified to him.
integration is ir Moreover, the applicant considers that the procedure
regular in that he was allowed no meeting with those heads of department who drew up his establishment report.
The applicant was in a position to give the Establishment Board his views on the observations made with regard to him by his heads of department.
Furthermore, in view of the circumstances peculiar to this case, a direct
meeting between the servant concerned and his heads of department could hardly have brought any substantial new facts to the notice of the Board.
The applicant's complaints based on the unlawful nature of the integration procedure are therefore unfounded.
On the submissions concerning the irregular assessment of the applicant's abilities
(a) On the infringement of the Treaty
The applicant maintains that, since, during the period covered by the
substance of the establishment report, it had been made impossible for him
DE VOS VAN STEENWIJK v COMMISSION
to perform his duties as Assistant to the Director of the Ispra Centre for which he had been engaged, assessment of his abilities was basically any defective.
It is true that 'planning office'
on the assignment of the applicant to a
established following the arrival at Ispra of Mr Mercereau a change took place in his original position within Euratom. In view of the very general terms used in the letter of appointment and of the requirements relating to the organization of the departments which became particularly apparent
during the establishment of the Ispra Centre, this transfer does not appear to exceed the very wide powers which it must be admitted were necessarily
held at that time by the Directorate of the Centre.
In these circumstances, it is reasonable that the report drawn up for the
purposes of the integration procedure concerning the applicant should
assess all the activities in fact carried out by the applicant in the performance
of the various tasks entrusted to him.
This ground of complaint is therefore unfounded.
The applicant maintains, moreover, that he had not been allowed to show his abilities since no specific task had been given to him during the period
covered by the substance of the establishment report and all contact with the various departments had been refused him.
As regards the work he did do, the applicant is criticized mainly for his lack of initiative in finding problems for study and for his carelessness; although, as was admitted in his evidence given to the Chamber by Mr Mercereau, Assistant Director of the Centre, the applicant's work on specific questions
was at first of the required standard. The measures of inquiry carried out by the Chamber at the request of the applicant did not disclose anything which might show that he had been prevented from having contacts with those departments which might have been affected by his activities. There fore, having regard to the very general nature of the tasks involved in the applicant's duties, there are no grounds for stating that he had no oppor
tunity to demonstrate his abilities.
Although it is possible that the deterioration in the applicant's personal
relations with the Directorate of the Ispra Centre and his disappointment at
being assigned to the planning office affected his general behaviour, this could not justify his negative attitude, typified among other things by
several unjustified periods of absence, which was contrary to the basic principles necessary for the efficient running of the departments.
JUDGMENT OF 25.6.1964 — CASE 84/63
This ground of complaint cannot therefore be upheld.
(b) On the misuse of powers
The applicant maintains that the Director-General misused his powers in
drawing up an unfavourable report in that he used his powers of assessment for personal ends.
The report on the applicant submitted to the Establishment Board by the Assistant Director of the Centre who did not have a poor relationship with the applicant, confirms in substance, although in more carefully chosen terms, the unfavourable report of the Director-General. This being so, there is no conclusive evidence that the unfavourable assessment of the
applicant made in the report of the Director-General of the Centre was
based on personal animosity against the applicant. This submission cannot therefore be upheld.
On the claim for damages
It is clear from the above considerations that the applicant has been unable to show that the contested decision was illegal. Therefore, taking into account
its nature and purpose, this decision could only constitute a wrongful act
giving rise to a claim for damages if it contained superfluous criticisms of the person referred to in it. In this case the statement of reasons for the con
tested decision does not contain such criticisms.
Therefore, it only remains to consider the claim for damages based on
insufficiency of the period of notice. The period of one month's notice
applied to the applicant was the period laid down in his contract of employ
ment. Moreover, under Article 102 (2) of the Staff Regulations the applicant received in addition compensation equal to two months' basic salary as provided for in Article 34 of the Staff Regulations. By payment of this com
pensation, directly determined by the Staff Regulations, the defendant has properly fulfilled its obligations with regard to notice in this case.
Therefore the conclusions of the applicant concerning damages cannot be accepted.
Costs
The applicant has failed in his action.
DE VOS VAN STEENWIJK v COMMISSION
Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
However, under Article 70 of the Rules of Procedure, in proceedings
instituted by servants of the Communities, institutions shall bear their own costs.
Since the witnesses were heard in their capacity as officials of the Commis sion of the EAEC, their travel expenses must be borne by the defendant.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the witnesses; Upon hearing the opinion of the Advocate-General;
Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community;
Having regard to Article 152 of the Treaty establishing the European
Atomic Energy Community; Having regard to the Staff Regulations of officials of the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
THE COURT (First Chamber)
her by:
1. Dismisses the application as unfounded;
2. Orders each party to bear its own cost ;
3. Orders the travel expenses of the witnesses to be borne by the defendant.
Trabucchi Delvaux Strauss
Delivered in open court in Luxembourg on 25 June 1964.
A. Van Houtte A. Trabucchi Registrar President of the First Chamber