C-87/63

Regulations and consequently does 4. The be any general provision for re­ administration cannot not require

garded as being obliged to pass to the giving effect thereto within the mean­

person concerned the minutes of ing of Article 110 of the said Regula­ meetings of the Establishment Board tions.

In Case 87/63

Jacqueline Georges , residing at Auderghem (Belgium), assisted by Roland

Van Lint, Advocate of the Cour d'Appel, Brussels, with an address for

Ap lication:

(a) Principally, for the reversal of the decisions against integration and of dismissal contained in the letter sent on 3 July 1963 by the defendant to the applicant, the payment of arrears of remuneration becoming due on

the reinstatement of the applicant and the payment of compensation

for non-material damage; (b) Alternatively, tor a decision that the applicant should undergo a new

integration procedure, the payment of salary and additional benefits since the termination of employment and the payment of compensation

for non-material damage;

gives the following

JUDGMENT

Issues of fact and of law

I — Facts Regulations of officials of the EEC and

EAEC (14 June 1962), the establishment The facts may be summarized as fol ws: report concerning the applicant was The applicant by the was engaged completed on 28 June 1962 and seen by defendant by a letter of 11 July 1958 the applicant on 6 July 1962 (Schedule 1 (Schedule 1 to the application). to the statement of defence). This report She remained assigned throughout her concluded that the applicant was not

period of service to the Directorate- qualified to out the duties as­ carry General of External Relations as a signed to her, or even other duties secretary/shorthand-typist. possibly at a less senior level. Mr The salary fixed in the letter of appoint­ Staderini, Director-General of External ment corresponded to that of a servant Relations, gave the following reasons for of the ECSC, Grade C/11, Step 1. By a this unfavourable opinion:

18 July 1963, the basic salary of the responsibility and her punctuality.

applicant was fixed, with effect from At its meetings on 15 ana 22 November

1 January 1963, at 8800 FB per month, 1962 the Establishment Board heard

corresponding to Step 4 of Grade C/11 Mr Staderini, Director-General of Ex­ of theECSC scale (Document No 76 on ternal Relations, and Messrs Blin and

the Dersonal file). Scheitler, servants of the same Director­ following the publication of the Staff ate-General. At its meeting on 30

JUDGMENT OF 7.7.1964 —

for an immediate transfer to the typing the personal file), the applicant was

pool, because of 'the­ clearly exaggerated temporarily seconded to the Directorate remarks made by her superiors in the of Personnel Application and Probation Directorate-General of External Rela­ Department. On 23* A. ■ pr 1 1963 (Document No 54­

(Schedule 3 to the application). On 23 April 1963 (Document No 54 on tions'

ay a letter of 11 February 1963 ( Docu­ the personal file), the Head of the

ment No 46 on the personal file), the Application and Probation Department applicant informed the above- informed the applicant that her applica­

mentioned Mr Funck that she was pre­ tion for a post as a clerk in the Executive

constructing buildings, (Documents Nos 56, 62, 65, 69 and 72 on —

interests in oil companies, the personal file). —

running an insurance agency, On 29 April 1963, P. Orianne, counsel

—

interests in fashion. for Miss Georges and five of her col­

She gave the following explanations, In leagues, wrote to the Commission of the respect of the construction of buildings EAEC requesting a review of the inte­

of a procedure offering the necessary take effect by agreement. Taking into guarantees of their competence, their account the answer to her suggestion,

efficiency, their conduct within the she simply withdrew her resignation

service and their capacity to carry out (Schedules 7 and 8 to the application). Directorate- their duties (Schedule 11 to the applica­ Subsequently, the

tion). General of Administration and Personnel In his reply dated 30 May 1963, Mr T­h. informed the applicant by letter of 3 July Vogelaar, Director-General (Legal Ser­ 1963 of the decision taken by the Com­ vice), stated that the above-mentioned mission of the EAEC at its meeting on

letter, as well as those dated 8 and 20 20 March 1963 to terminate the appli­

May 1963, had been put before the cant's contract in accordance with

letter of 27 March 1963, stated that she 'The Establishment Board, had given up ownership of her hair­ —

naving regard to tne provisions of the dressers'

shops and her insurance agency Staff Regulations of officials and and that she could produce documents particularly Article 102, proving this (Schedule 6 to the applica­ acting upon the basis ot the report on tion). the competence, efficiency and con­

On 22 May 1963, the applicant in­ duct in the service of Miss Georges, formed Director-General Ad­ the of Jacqueline, secretary assigned to the

ministration and Personnel that she Directorate-General of External Rela­ had had the opportunity to discuss her tions, Grade C 3/3, together with all position with senior officials of the oral opinions submitted concerning Commission of the EAEC and that she this servant.

had come to the conclusion from the after having heard the comments of

to the statement of defence). ties with the management of private

On 5 June 1963 the Directorate-General interests, by devoting herself in office of Administration and Personnel in­ hours and on the premises of the

formed her that her resignation had institution to various activities con­

taken effect and that she should remove her interests, to such an cerning her belongings at the latest by 1 October extent that the functioning of the

1963. The applicant replied by letter of department was often disturbed;

JUDGMENT OF 7.7.1964 — CASE 87/63

holiday not taken (Document No 79 In the unlikely event of the disputed

on the personal file). decisions for one reason or another

The applicant lodged her application at de­ not being annulled, order the

the Court on 4 October 1963. fendant to make reparation for the

damage suffered by the applicant

II Conclusions of the parties to the illegal measures and owing —

ing them, rule that the applicant shall given to her; be integrated under the Staff Regula­ Order the defendant to pay to the

tions of officials of the EAEC in her applicant interest at the rate of 6% former grade (C 3/4), with retroactive per annum on all the sums which it is effect to 20 March 1963 at least, with ordered to pay from the date on which

all the consequences in fact and in law these ought to have been or will have de­ be paid; following upon this; order the to

fendant to pay to the applicant the Urder the defendant to pay the costs.

arrears of remuneration becoming due as a consequence of her reinstate­ — In her statement in reply:

ment; Order the defendant to pay to the 'The applicant claims that the Court applicant the sum of 50000 FB by way should allow the claim as set out in of compensation for the non-material the application: damage suffered bv her: Alternatively, that the Court should:

visits of inspection received by Miss Georges and her colleagues in the The submissions and arguments of the

department during the period com­ parties may be summarized as follows: plained of, these being relevant sup­

porting documents; A — As to admissibility wit­ Order proof tne evidence by Dy nesses of the following facts: The defendant raises no objection to the —

during the years 1961, 1962 and admissibility of the application.

1963, the work given to the appli­

cant could not on average occupy B — On the substance of the case her for more than two hours a day; The maintains that the deci­ —

when the offices were actually Establishment Board are incorrect or occupied and when she might be irrelevant, ne de ; — the Commission of the EAEC has not — the conduct of Miss Georges was adhered to the normal length of

never detrimental to the function­ notice which, in this case, should be ing of the department; at least six months. —

since 1960 you at least, Miss Georges The applicant alleges, in addition, that no longer worked in the office of the irregularities committed amount to Mr Staderini who thus could not wrongful acts or omissions on the part

make a statement from his own of the defendant, for which it is liable. knowledge concerning the com­

forward.' plaint put 1. As to the first ground of complaint:

irregularity of the establishment pro­

'Accept the conclusions of the procedure which was followed al­

defendant in its defence, to which lowed neither the Establishment it adheres.' Board nor the applicant to verify

JUDGMENT OF 7.7.1964 — CASE 87/63

the accuracy of the complaints raised of her superiors. against her. It is equally objection­ As to (b) :

able that the assessments made of The defendant asserts that, noiwith-

her by the establishment report standing the absence of any express

ment Board was not able to come to —

that the establishment report was nrst

a decision with full knowledge of the communicated to the applicant who

case. used her right to add her comments

(b) She alleges, further, that the Estab­ to it (Schedule 1 to the statement of lishment Board did not employ a def nce); procedure in which both sides were — tnat tne applicant was nrst sent ner

file in­ personal file sufficiently heard: the (Schedule 2 to the state­ was

gration procedure was not governed statement of her superiors.

by general and uniform provisions in As to (c):

conformity with Article 110 of the According to the aelendant, Article 102

Staff Regulations of officials of the of the Staff Regulations of officials of

EAEC, which was indispensable to the EAEC is a directly applicable pro­

ensure the right of defence and to vision ; it is in the nature of a transitional conform to the principle of equality provision and does not require any between servants. general implementing provision within The defendant replies as follows to the the meaning of Article 110 of those integra­ arguments of the applicant. Regulations; furthermore, the

EAEC, strictly observed the guarantees plished in such circumstances. This was set out in this Article and thus made its consequently doomed in advance.

decision with full knowledge of the case. The defendant replies that the task of the The opinion of the Board was drawn up Establishment Board is to form a com­

on the basis of the explanations of the prehensive view of opinions on the

applicant and the concurring assessments general conduct of the servant, to hear

GEORGES v COMMISSION

the latter and to express a value judg­ 2 to the as­ and reply) she remained ment. The integration procedure re­ signed to the Directorate-General of 'unattached' quired that the applicant should be External Relations as an

16/63, Leroy v High Authority. to occupying herself with her private

According to the statements made to the business, on the subject of which she

Establishment Board, the applicant has gave explanations in her letter of 27 had concerning her March 1963 to the President the pri­ oral warnings of

and the consequent dis­ EAEC Commission (Schedule 4 to the vate activities

turbance to the department. The application), the contents of which have establishment report referred to by the been analysed above (I, Facts). applicant mentions her unconscientious T he defendant replies that, alter an attitude towards her work. The de­ examination at which both sides were fendant deduces from this that the heard, the Establishment Board con­

applicant cannot state that she did not sidered that the incompetence of the

this was not proved before the Establish­ ments of the applicant concerning the

ment Board. second ground of complaint.

She mentions next, in respect of the In respect ot the warnings given, the

allegation —

which she denies — of defendant points out that the establish­

having disturbed the functioning of the ment report mentions numerous ad­

(Schedule 2 to the application). tive value.

T he applicant alleges that, alter having On the subject of the allegation by the worked until the end of 1959 for Messrs applicant that she was left without work, Dumilieu and Marchal, who gave evi­ the defendant points out that, with the

dence of her work (Schedules 1 exception of Directors- good of secretaries

JUDGMENT OF 7.7.1964 — CASE 87/63

General and Directors, all the short­ constituting the proof of facts raised

hand-typists are 'unattached sec­ against her; if the defendant has not

As to the request of the applicant to be warnings, it is because at that time she assigned to the typing pool (Schedule 3 had not been accused of any particular to the application), the defendant con­ act. The complaint concerning the

siders that this is a dramatic way of management of private interests was

trying to mitigate the severity of the not, moreover, brought against her complaints raised before the Establish­ until nine months later and, at that

ment Board. time, the applicant disputed the grounds The applicant replies by criticizing the for the alleged warnings (Schedule 3 to argument of the defendant, as it would the statement of defence, page 5). In her result in requiring the applicant to letter of 27 March 1963 (Schedule 5 to

prove facts in the negative, which would the reply), the applicant stated, without

be difficult to achieve. This method of receiving any denial from the defendant, defence can be allowed only if the that no remark had been made to her

The Messrs Sta­ docu­ complaints made by cannot reply on the absence of

derini and Blin are hard to beli ve: how ments to dispute the existence of the

could seriously disturb the an employee complaints. As the work reports are not department for two years without her drawn up with a view to litigation, the superiors doing anything to stop her and institution does not feel in the least without even giving her a written inclined to prepare in advance written

warning? proof which may be used against its The applicant alleges that she worked servants.

under the orders and in the office of Mr The private activities of the applicant —

Genuardi until June 1962 and that his which she does not deny — occasioned

was his posting to the Euratom office in tracts of employment would have ap­

Washington. plied in the absence of Staff Regulations.

Before the Establishment Board, the According to Belgian law, when the

applicant's conduct was the subject of salary exceeds 120000 FB per annum, concurring evidence (which was as in the present case, the length of con­

firmed after being disputed by the notice is fixed by agreement, or by the in­ but be less applicant) by three persons whose Court, cannot than three

tegrity is not contes d; these statements months if the employment has lasted have no need to be accompanied by a less than five years and six months if it detailed and written description of many has lasted from five to ten years. successive facts only the general exis­ On the other hand, the notice can begin tence of which was of importance. to run only on the first of the month

sides were heard. According to the length of notice can be left to the dis­

defendant, that Board has expressed a cretion of the authority.

favourable opinion on the establishment T he social considerations which apply in

of eighteen servants out of thirty who private law are equally valid in public

had been the subject of unfavourable law. in hier­ reports by their superiors the Furthermore, it lollows from Article 188 archy. of the EAEC Treaty that every contract

Concerning the hearing ot witnesses is governed by a law. This law, which, requested by the applicant, the defen­ according to the argument put forward dant points out that, according to the here, falls within the category of public grounds of the judgment given on 12 law, is set out neither in the Treaty nor December 1956 in the Mirossevich in any other provision. It is necessary, case (Rec. 1955-1956), the Court can then, to refer to the custom which may only review the ways and means which be deduced from the various national led to the opinion of the Establishment laws. There is certainly none which, Board, but it cannot substitute its value apart from the case of disciplinary judgment for that of the Establishment action, permits dismissal of a public

gested to the applicant that she should her salary and of the benefits attaching resign in order to facilitate her reclassi­ to it from the termination of her duties fication (see above, I, Facts): if the until her reinstatement. applicant had accepted this suggestion, Alternatively, there is due to the appli­

she would have had the benefit of four cant compensation corresponding to her months' notice (from 20 March to remuneration during the additional no­

1 October 1963) in order to seek a new tice which, in any case, should have position. In addition the applicant been given to her, that is to say, the sum received compensation equivalent to of 60000 FB, possibly to be increased or Articles 34, during months'

two salary under reduced the proceedings, as

last paragraph, and 102 (2), of the Staff well as compensation for material dam­ Regulations of officials of the EAEC. age estimated at 150000 FB. The applicant answers that the conduct As to the damage arising non-material

of the defendant during the period from the injury suffered by the applicant prior to dismissal led to the belief that to her reputation through the disputed the defendant hesitated to undertake its measures, it may perhaps be fixed responsibilities and wished to suppress conservatively at the sum of 50000 FB the matter. On the contrary, if the appli­ (see above, II, Conclusions of the

that she offer her resignation had as its resents the approximate remuneration

dis­ aim only that of saving her the of the applicant during the extra six

being dismissed have been months'

advantages of and notice which should

making easier the search for a new given to her, the then current month not

position. being counted. At the time of her

has followed the normal course. First Chamber decided to open the oral By Order ol 28 October 1963, the Court procedure without making any pre­

(First Chamber) dismissed the appli­ naratory inquiry. cant's application for legal aid, lodged The parties presented oral argument at on 4 October 1963. the hearing on 29 May 1964. During the hearing on 18 March 1964, The Advocate-General delivered his

and after hearing the preliminary re­ opinion at the hearing on 10 June 1964.

Grounds of judgment

I —

As to admissibility

The applicant alleges, in the first place, that the precise facts on which the unfavourable opinion of the Establishment Board is based were only com­

municated to her orally at the time of her appearance before the said Board,

so that she could not effectively put forward her means of defence; the

Establishment Board, which relied furthermore on the personal and purely subjective appraisals of her superiors, did not take these facts into account and consequently the Establishment Board could not make its decision with knowledge of the facts, as the rights of the defence were not observed.

The argument of the applicant originates from confusion between disci­

plinary procedure and integration procedure.

It is true, however, that infringements of the rules concerning the conduct required of servants working for an administration constitute, if they are

serious or repeated, one of the important criteria for assessment, even if such infringements have not been individually punished.

The material correctness of the facts which served as the basis for the decision of the Establishment Board will be considered below, when the second ground of complaint is examined.

It is for the Court in addition to consider whether the Establishment Board had a sufficient knowledge of the facts to be able to check the opinions of the heads of department.

In the present case the establishment report and the personal file of the

applicant were passed to her and she was able to give her written comments upon them.

Establishment Board prior to the meeting during which the final opinion was formed were not made known to her.

The personal file of the applicant could not show the shortcomings of which she was accused, since these had given rise only to verbal warnings.

The administration cannot be regarded as being obliged to pass to the person concerned the minutes of meetings of the Establishment Board before notification of the decision of the appointing authority.

In addition the negative opinion of the Establishment Board binds the

appointing authority.Any 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 opinion constitutes the final

step in the integration procedure.

consequently does not require any general provision for giving effect to it within the meaning of Article 110 of the said Regulations.

It follows from the foregoing considerations that the establishment pro­

cedure was proper.

B —

Concerning the ground of complaint based on the inaccuracy and lack of relevance of the reasons

The applicant, although admitting having used for private purposes the premises and apparatus put at her disposal for use in the service, denies that

The applicant next denies having disturbed the functioning of the depart­ ment by the management of her private interests.

It is clear that the conduct of the applicant was in itself of such a nature as to

JUDGMENT OF 7.7.1964 — CASE 87/63

disturb the functioning of the department. Consequently a simple denial on the part of the applicant cannot amount to proof that the department was

not actually disturbed. The applicant's allegations that she was left very often without work do not amount to justification in this respect.

The applicant lastly disputes the relevance of the reasons given by the

disputed decision may possibly have caused must in the present case be precluded. In fact the disputed decision does not display any sign of the defects alleged by the applicant. Consequently, taking into account the

character and the object of this decision, it cannot amount to a wrongful act

or omission and thus cause unlawful damage unless the decision contains

superfluous criticisms in respect of the applicant, which has not been

alleged in the present case.

Furthermore, the reasons for the disputed decision contain no unnecessary criticism and are limited to the indispensable minimum.

In the present case this allowance which is directly provided for by the Regulations appears sufficient for it to be decided that the defendant has discharged its obligations in respect of notice.

Consequently, the conclusions of the applicant in respect of compensation must be dismissed.

GEORGES v COMMISSION

III — Costs

Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful

party shall be ordered to pay the costs.

Upon reading the pleadings;

Upon hearing the report of the Judge-Rapporteur;

Upon hearing the parties; 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 the Rules of Procedure of the Court of Justice of the

European Communities, especially Articles 69, 70, 76 and 95;

Delivered in open court in Luxembourg on 7 July 1964.

A. Van Houtte A. Trabucchi Registrar President of the First Chamber