C-110/63

circumstances, that is, when the pro­

son concerned of the opinion of the visions of the Staff Regulations are Establishment Board, which is ad­

so unclear and imprecise that any dressed solely to the institution. application of them must be arbitrary. Cf. paragraph 5, summary, judgment Cf. paragraph 2, summary, judgment in Case 84/63, Rec. 1964, p. 637. in Joined Cases 19 and 65/63.

2. In cases involving the integration pro­ 6. Cf. paragraph 1, summary, judgment in Case 68/63. cedure, 'the institutions possess a cer­

tain freedom fo action while 7. A proposal by the Establishment which, limited by the obligation to ensure Board made outside the context of

that the person concerned has a fair Article 102 of the Staff Regulations chance to defend himself, excludes is no more than a suggestion without safeguards similar to those laid down any binding legal consequences. The by the Staff Regulations in relation appointing authority is therefore

by their superiors, a full oral intima- in Case 26/63, Rec. 1964, p. 677.

In Case 110/63

ALFRED WILLAME , residing at 6, rue des Grands Cannes, Brussels 1, assisted by Marcel Grégoire, Advocate of the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, 85, boulevard de la Grande-Duchesse-Charlotte,

applicant,

v

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY , Brussels, represented by its Legal Adviser, Pierre Mathijsen, acting as Agent, with an

ly, for the payment of damages;

for compensation for the non-material damage caused by a wrongful act or omission on the part of the defendant;

THE COURT (First Chamber)

composed of : L. Delvaux, Acting President of Chamber, A. Trabucchi and W. Strauß (Rapporteur), Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

Social Problems and Documentation ing to which the applicant 'is not fitted to perform the duties to which he is Division. In Mr assigned'. The reasons given for this (2) the integration report Recht, report read as follows: the applicant's immediate superior, made a highly critical assessment of 'his ability '—although by their nature the duties and output and stated that the applicant of staff (representative) exercised by was not suited to the performance of the servant concerned fall outside the his duties. jurisdiction of the Establishment At the foot of the report, Mr Medi, Board, which must confine its assess­

Vice-President defendant institu- of the ment to the abilities shown by the

JUDGMENT OF 8. 7. 1965 — CASE 110/63

servant in performing his duties on October 1963 addressed to the appli­

health and safety, allowances must cant, as well as all measures taken

be made in favour of the servant for in support of these decisions, and in the detrimental effect necessarily im­ particular the unfavourable report of

qualifications of this servant do not payable following his integration; meet the requirements of the duties Order the defendant to pay bits

of head of division which he under­ 150 000 to the applicant as compen­

takes in the Directorate of Health sation for the non-material damage and Safety'. he has suffered, subject to the express Establishment Board right to amend this figure during the Moreover, the

recommended the defendant to consider course of the proceedings;

the appli­ As a subsidiary matter: possibility of establishing the in the grade immediately below state that following the annulment cant

bis existing grade. referred to above the applicant shall

Com­ the defendant takes decision meeting on 5 September 1963 the a valid

mission had decided to terminate his concerning his position;

contract. Order the defendant to pay Bfrs

On 24 December 1963, the applicant 150 000 to the applicant as compen­

lodged the present appeal to the Court. sation for the non-material damage he has suffered, subject to the express right to amend this figure during the II — Conclusions of the course of the proceedings; parties As a f­ urther subsidiary matter :

If, because it is impossible or for In his application, the applicant claims other the contested de­ any reason, that 'the Court should: be annulled, order cisions should not

Bfrs 1 500 000 for Board and, secondly, dismissal for in­ assessed at the

material damage and Bfrs 150 000 for competence. However, the integration the non-material damage, subject to procedure is not subject to the safe­

Staff Regula­ the express right to amend these guards provided by the

figures during the course of the pro­ tions in these two cases. Establish­ (c) 'The proceedings'

ceedings ; of the

2. Order the defendant pay to compen­ ment Board 'were secret and it reached

the Board would hear him on 8 ded; Order applicant to February; the pay the costs.’ — on 6 February he examined his per­

In their replies and rejoinders, the sonal file which, at that time, only parties adhere to their earlier conclu­

contained information as to his civil sions. status; — on 7 February he was invited to

examine 150 pages of documents III — Submissions and produced that day by Mr Recht (of.

arguments of the also (e) below); he then stated: parties In order not to delay the integration

procedure I accept this further item The submissions and arguments of the with one formal reservation. parties may be summarized as follows: This series of documents which re­

on 8 February the applicant was

for in Article 102 Regula­ heard vided of the by the Board; the minutes

tions after consultation with the Staff show that he was then told 'by the

Committee and the Staff Regulations Chairman of the Board that he would Committee. By lasting be any documents ques­ numerous able to submit

tions of procedure to which Article 102 which he considered helped his case; the applicant from docu­ gives no answer, attempts —

however, apart several 'deficient' to demonstrate its nature. ments presented on 12 February, the (b) The consequences of an unfavour- file, which he had given notice that

Board docu­ tioned in it does never examined these the minutes and not

ments. appear that they were discussed. In the

when it gave its report on 19 light ofcontrary opinion held by the —

February, the Board could not have Vice-President Medi, the Board should been that the in­ have in the unaware applicant shown caution accepting tended to add numerous documents judgment made by Mr Recht. to his file. (g) No precise criteria having 'been es­

—

The Board must nave expected sub­ tablished by the competent authorities, documents uniformity in the stand­ mission of those to take there was no

that the documents submitted to it (i) Since Vice-President Medi firmly by the applicant on 12 February dismissed the accusations of Mr Recht, represented only a few of those re­ the Establishment Board should have ferred to at his hearing. invited him to appear before it. It is — Even supposing this last statement significant that Mr Medi considered

to be factually inaccurate, the Board the integration of the applicant to be a

should at the very least have re­ foregone conclusion.

opened the hearings, once the other (k) The report or the Establishment documents were submitted to it. Board was not notified to the applicant

(e) The applicant had only one day in due form; he was informed of it only before his appearance before the Estab­ on receiving the dismissal decision, with lishment Board in which to examine the the result that he was unable to raise

thirty-six documents produced by Mr its illegality before the defendant had Recht to demonstrate his incompetence. made up its mind.

integration defend­ As to from of the applicant the (f) It is clear the minutes

ant made use of a report which granted of the Establishment Board that the

it, although at a grade immediately be­ applicant was able to make observations

low'. By mutilating the text of its com­ on each of the five complaints made

munication, the defendant rendered it by Mr Recht. impossible for the applicant to defend As to (g) It is true that the comments

himself properly. made by certain superiors were more

Mr Recht. More­ As to (c) The very nature of the pro­ of the applicant or of

ceedings required confidentiality; this over, his remarks were not addressed

would have been infringed by the pres­ to the Establishment Board but to the

ence of a representative of the staff. Euratom Commission. Moreover, the applicant made use of As to (k) There is no rule of law com­

his right to the assistance of another pelling the defendant to inform the ap­

Establish­ member of the staff. plicant of the report of the

for Establish­ On 12 February the applicant submitted the report given by the

three documents 'in order to complete ment Board 'is inaccurate, insufficient his file'; the term 'to complete'

must and inappropriate'. have given the Board the impression (a) The applicant s file shows that, that from that moment the applicant before the integration procedure began, considered his file to be complete. his work was never unfavourably report­

Not until 8 May 1963­ —­ more than one ed on by Mr Recht. As an example the

month after he had been informed of applicant alleges that in November 1961 the decision refusing him integration—­ he had asked Mr Recht whether a

did the applicant submit a new file of departmental reorganization in which he 85 documents, addressed moreover to (the applicant) was involved represented the Director-General of Administra­ 'a mis- measure penalizing professional

common knowledge'. This animosity The fact that Mr Recht did not want 'formalize' dates from 1961 when the applicant, in to all his criticisms, merely his capacity as staff representative, demonstrates his indulgence. Had he opposed Mr Recht's insistance that the been inspired by animosity, he would

medical services to be created in the 'quite naturally have added to the un­

various centres of the Community be favourable comments in the personal placed under his direction. file'. This toeing so, the Establishment Board It is true that at one time there was a

between doc­ should have 'paid particular attention'

difference of opinion the

to the new facts suddenly raised by Mr tors of Euratom over the organization

suming and often up minutes and from the report of the

'most of his time'. Board that it arrived at its opinion

The Establishment Board took no independently. account of the importance and quality The criticism made by the applicant

of this work, on the pretext that it fell does not refer to 'facts capable of objec­

outside its area of assessment. It thus tive verification', nor to 'assessments infringed Article 109 of the Staff which may be objectively but reviewed'

Regulations and Article 1 of Annex II to 'complex value-judgments', the merits 'penalized the for for be by applicant'

order to examine in its proper perspec­ his output in his post as provided for tive the applicant's actual output in this in the budget. Thus it only took into post'. account the inadequacy of the work

The defendant maintains: actually performed in the post to which

As to (a) From the day the applicant he was assigned. his capacity to Only took up his duties 'his superior was led perform the duties involved in this post on several occasions to remark on the fell within the purview of the Establish­

length of time he required to carry out ment Board, all the more so as 'the his work and on the fact that the tasks duties of a staff representative, whose

entrusted to him were not properly position simply depends on an election, completed'. The assessment made by are very uncertain'.

Mr Recht in the integration report was 3. Wrongful act or omission thus fully justified; moreover, it only dealt with the quality and not with The applicant considers that the com­

defendant. The applicant gives details the problem presented by the appli­

of these talks, aimed at reaching an cant'.

amicable settlement, and concludes that

the defendant — made suggestions to the applicant IV — Procedure which were withdrawn as soon as

the applicant had accepted them; The procedure followed the normal

— 'held out to Mr Willame fallacious course.

application is therefore admissible.

II — The substance of the case

1. The submission that the decision of dismissal should be annulled

The applicant claims that the Court should annul the decision of 5 September 1963 by which the defendant, on the basis of the unfavourable opinion of the Establishment Board, terminated his contract of employment.

(a) The applicant maintains that the defendant infringed Article 110 of the Staff Regulations of the EEC and EAEC by failing to draw up general pro­

visions for giving effect to Article 102 of those Regulations concerning the integration procedure, after consulting the Staff Committee and the Staff Regulations Committee.

expressly provided for by certain special provisions of the Staff Regulations in which Article 102 is not included.

In the absence of any express provision, the obligation to adopt implementing measures subject to the formal requirements of the said Article 110 can be recognized only in exceptional circumstances, that is, when the provisions of

the Staff Regulations are so unclear and imprecise that any application of

them must be arbitrary.

This does not apply in the present case.

Although it is true that the defects pointed out by the applicant have left the institutions with a certain freedom of action this freedom is limited by the obligation to ensure that the person concerned has a fair chance to defend himself.

In particular, he points out that the Establishment Board 'reached its decision in the absence of any staff representation'.

The provisions referred to by way of comparison concern officials who are already integrated.

WILLAME v COMMISSION

On the hand, although from a purely formal point of view the rules other

concerning the integration procedure are governed by the Staff Regulations, in reality they form part of the system governing contracts existing before the

entry into force of those Regulations which, being liable to termination by either side on one month's notice, allowed the institution to exercise rather

with which he intended to demonstrate his ability to perform bis duties.

According to the minutes of the meeting of the Establishment Board on 8 February 1963 the applicant was informed by the chairman at the beginning of his hearing that he would have the opportunity to submit to the Board 'any documents which he considered would help his case'.

By a letter dated 12 February he submitted three documents to the chairman 'in order to complete my file'.

The Establishment Board issued its unfavourable opinion on 19 February.

It was not until 8 May that the applicant submitted a further 85 documents, 450 pages, Director-General Ad­ running to addressed moreover to the of

ministration and Personnel with a request to 'put them on my integration file'.

This being so, the applicant should have shown greater initiative and dili­ gence, either by submitting the documents in question more quickly or at least by giving the Establishment Board a clear idea of the size of the file which he still intended to submit and the time required to compile it.

For the same reasons the Court must dismiss the complaint that after receiv­

ing the document submitted on 8 May the Establishment Board should have reopened the hearings.

It follows from all the above factors that the present complaint is unfounded.

(d) The applicant maintains that the Establishment Board did not give him sufficient time to examine the 36 documents produced by Mr Recht, his

superior, in order to demonstrate the inability of the applicant to perform his duties.

This complaint is therefore unfounded.

(e) The applicant alleges that, as the substance of Mr Recht's statements was him orally, he be that the Estab­ only communicated to could never sure

lishment Board had checked whether the criticisms were justified by the file which he had submitted.

WILLAME v COMMISSION

This complaint would lead to an admission that the Establishment Board

was bound to inform servants in writing of any unfavourable assessments

(f) The applicant points out that in the absence of precise criteria drawn up by the defendant the comments made on the various servants of the defen­ dant for the purposes of the integration procedure were widely different, according to the degree of severity shown by each superior.

The most precise criteria of assessment could not prevent some superiors

from being more severe than others in judging their subordinates.

It was for the Establishment Board to quote the assessments of the various

reporting officials.

In the present case, a comparison between the assessment made by Mr Recht and the more finely shaded and understanding assessment of the Establish­ ment Board shows the latter to have formed an independent opinion.

JUDGMENT OF 8. 7. 1965 — CASE 110/63

(h) The applicant maintains that as he was not informed of the opinion of the Establishment Board before being informed of the decision to dismiss him he was thereby deprived of the opportunity of invoking the illegality of that opinion at a time when the defendant had not yet made up its mind.

There is no provision requiring the immediate communication to the person concerned of the opinion which was addressed solely to the institution.

The interests of the candidate are sufficiently protected in law by his right to lodge a complaint and, if necessary, to appeal to the Court against the

decision refusing him integration and dismissing him.

Moreover, the complaint is factually inaccurate, since the defendant informed the applicant orally of the opinion in question, which effectively enabled him to lodge a complaint against the opinion.

was only required to give its opinion on the suitability of the candidate for the duties which he in fact carried out.

In the present case it issued an unfavourable assessment on that point, which obliged the defendant to terminate the applicant's contract.

Although it also put forward the abovementioned proposal, this constituted

no more than a suggestion without any binding legal consequences.

In these circumstances, the defendant was neither obliged to communicate

the suggestion to the person concerned nor to inform him why it had not

In support of this complaint, he points out that before the assessment in question he had never been criticized by Mr Recht.

It emerges from the minutes of the Establishment Board that Mr Recht based his unfavourable judgment on a series of definite facts and that the applicant

subsequently stated his case, in an equally definite manner, concerning the justification for these criticisms.

Moreover, the detailed nature of the criticisms made by Mr Recht may be seen from the fact that he supported his statements by filin­ g a considerable number of documents drawn up by the applicant.

Finally, as stated above, the Estabhshment Board formed its own opinion, which was more finely shaded than that of Mr Recht.

This being so, it must be held that the contested decision is based on the independent assessment made by the Establishment Board of the factual arguments put forward on both sides and is not influenced by the real or

The defendant has not claimed that this submission was made out of time

and it must be observed in addition that the applicant did not gain access to the minutes of the Establishment Board until after proceedings had com­

menced.

The applicant's establishment report, drawn up in very critical terms by Mr Recht, contains at the foot of the page, a hand-written observation by Mr

JUDGMENT OF 8. 7. 1965 — CASE 110/63

Medi reading as folows : 'Above opinion not agreed, particularly as regards the very severe strictures on certain points. After integration it will be advisable to reorganize the duties of the post'.

virtually certain.

In reply to this complaint the defendant maintains, first, that Mr Medi was not the superior of the applicant nor of Mr Recht and, secondly, that the observation in dispute was addressed to the members of the Commission of

the EAEC and not to the members of the Establishment Board.

Neither of these arguments is convincing.

Mr Medi must have been aware that according to Article 102 of the Staff Regulations the establishment report was to be drawn up solely by the candi­

date's superiors and was intended, first and foremost, for the use of the

It follows from all these considerations that the present complaint is well

founded.

(m) The Establishment Board is criticized for failing to take sufficient

repre­ account of the extent and quality of the applicant's activities as staff

sentative.

Since the complaint considered under (1) above is well founded, it is unneces­

representatives as much as possible in order to prevent their having to choose, through no fault of their own, between neglecting to defend the interests of the staff or endangering their own integration by shortcomings in their posts as provided for in the budget.

(n) It follows from the consideration set out above (under (1)) that the

integration procedure is vitiated by a serious defect.

However, short of trespassing upon areas reserved for the judgment of the Establishment Board, the Court cannot decide whether this Board would

have been entitled, even in the absence of the irregularities mentioned above, to issue an unfavourable opinion concerning the applicant.

The Court must confine itself to finding the existence of a presumption of fact that in such circumstances the Establishment Board might have reached a different solution.

value-judgment for which the Court cannot substitute its own.

The Court can, therefore, only refer the case back to the defendant and the Establishment Board for a reconsideration of the candidature of the appli­

cant in accordance with the proper procedure.

2. The arrears of remuneration

(a) The applicant claims, in the first place, that the defendant should be ordered to pay him 'the arrears of remuneration payable following his integration'.

This claim presupposes a finding by the Court that the defendant was obliged to integrate the applicant under the Staff Regulations.

The defendant must therefore be ordered to pay the applicant the emolu­

ments due under his contract, held in the period before the entry into force of the Staff Regulations, for the period between the termination of his em­

ployment by virtue of the contested decision and the notification to him of the new decision which the defendant is required to take as to whether he should or should not be integrated.

However, in order that there be no unjustified enrichment the following must, if appropriate, be deducted from the above sum :

WILLAME v COMMISSION

— the net remuneration received by the applicant as a result of employment outside the Communities between the date of termination of his appoint­

discussions which took place after the closure of the integration procedure.

(a) As regards the first part of this submission the claim is in principle well founded, since the irregularity committed by the defendant constituted a non- wrongful act or omission as a result of which the applicant suffered

material damage.

In the light of the facts of the case it is fair to fix the amount of the non-

material damage at Bfrs 20 000.

(b) As regards the second part of this submission, the applicant refers to

The second part of this submission is therefore unfounded.

4. Interest

The applicant claims that the Court should order the defendant to pay him

'compensatory interest at the rate of 6% per annum on all such sums as it

JUDGMENT OF 8. 7. 1965 — CASE 110/63

shall be ordered to pay, from the date on which it should have paid or shall be required to pay them'.

— as regards the period over which interest is due, this must be calculated separately for each month's remuneration and must begin to run on the

date on which the emoluments for the month in question should have been paid and shall expire on the date on which the applicant shall

actually receive such emoluments.

III — Costs

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

ful party shall be ordered to pay the costs.

Having regard to the Staff Regulations of Officials of the European Economic Community and the European Atomic Energy Community, especially Articles 102 and 110;

Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69;

WILLAME v COMMISSION

THE COURT (First Chamber)

her by:

I. Annuls the decision of 5 September 1963 by which the defendant terminated the contract of the applicant;

ployment outside the Community between the dates referred

to above;

defen­ ( β) the emoluments received by the applicant from the

dant by reason of his dismissal;

(c) (­ α­ ) Orders the defendant to pay to the applicant annual interest at a rate of 41/2% on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given;

(β) The period over which such interest is due begins, as re­

Delivered in open court in Luxembourg on 8 July 1965.

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