C-11/64

JUDGMENT OF 7. 4. 1965 — CASE 11/64

the meaning of Article 91 of the the integration procedure.<apnote>2</apnote> Regulations.<apnote>1</apnote> 5. The administration is not bound to 4. Any complaint concerning the inte­ produce written evidence on all gration measures can only be made questions concerning the integration effectively through an appeal against procedure unless there is reason to the decision of the administration suspect that there are defects in the which constitutes the final step in procedure.

In Case 11/64

KURT WEIGHARDT, an official of the EAEC resident in Brussels, assisted by Marcel Slusny, Advocate at the Cour d'Appel, Brussels, Lecturer at the University of Brussels, with an address for service in Luxembourg at the residence of Bernard Schmitz, 6 rue J.-B. Esch,

applicant,

v

gives the following

1 — Cf. summary, para. 3, in Case 80/63, Rec. 1964, p. 771. 2 — Cf. summary, para. 5, in Case 87/63, Rec. 1964, p. 925.

WEIGHARDT v COMMISSION

JUDGMENT

Issues of fact and of law

JUDGMENT OF 7. 4. 1965 — CASE 11/64

3. Declare that the Commission must Witness: Dr Michaelis; re-apply the integration procedure in (2) That since that same date his im­ the applicant's case after complying mediate superior, Mr Leclercq, has with the formal conditions laid down given him no work; in the last sentence of Article 5 and Witness: Dr Michaelis; in Article 110 of the Regulations; (3) That Dr Michaelis told the defend­ 4. Declare that the Commission must ant that his evidence to the Estab­ bear the costs of the proceedings in lishment Board had been favourable full; to the applicant, the only reserva­ 5. Place on record the fact that the tion being as to his knowledge of applicant: languages; (a) Reserves his right to raise in the Witnesses: Dr Michaelis, Miss further course of the proceedings Barsch, official of the EAEC Com­ any new submissions of fact or mission, Miss Ludwig, official of the of law as shall seem to him ap­ EAEC Commission; propriate after the opposite party (4) That the applicant had brought with has presented its defence and him to his interview with the Estab­ after production by it of any lishment Board a portfolio of work documents; which the Board had refused to con­ (b) Offers to prove by any means sider, examining only a letter from open to him in law, including a well-known professor and a de­ evidence by witnesses, the facts partmental record; alleged by him but not yet Witness: Mr Gillot, interpreter; proved in writing, should those B. Order the opposite party to produce facts be contested by the opposite the documents referred to on pages 11 party. and 12 of the reply; In his reply the applicant claims that C. Order the opposite party to furnish the Court should: the necessary explanations and the docu­ 'Place on record the fact that the appli­ ments relating to the inter-community cant repeats the claims set out in the meetings referred to on page 21 of the application, except that made under reply, in particular the applicant's re­ head 3, which he withdraws, and that ports of the meetings.' made under head 5 (a), which is no B — In the statement of defence, the longer necessary; defendant contends that the Court Place on record the fact that his offer should:

(i) Infringement of Article 110 of The defendant claims that the applicant the EAEC Staff Regulations; expressly waived his right to Grade A (ii) Infringement of the last sentence 4 and accepted his establishment in of Article 5 in conjunction with Grade A 5 and that consequently it is Article 10, and possibly Article not admissible to request that the in­ 110 of the Regulations; tegration be annulled and the applicant (iii) Infringement of the right to de­ classified in Grade A 4. fend himself and of general prin­ In fact, says the defendant, by waiving ciples of law; his right to the benefit of his contract (iv) The participation in the Establish­ (see Schedule 6 to the statement of de­ ment Board's procedure of some­ fence) the applicant expressly waived one not employed in a supervisory any claim to the grade and step ex­ capacity (infringement of Article pressly assigned to him under the con­ 102 (1) (b) of the Regulations); tract of employment prior to the entry (v) Lack of a proper statement of into force of the Regulations by analogy grounds in the opinion given by with the ECSC scheme. the Establishment Board, and fail­ Furthermore, since this waiver was ure to notify the applicant of it; executed 'in accordance with Article (vi) Lack of standard criteria for mak­ 104 of the EAEC Staff Regulations', ing the assessments, with the re­ that is to say, in the context of the sult that these are subjective and integration procedure, this must mean, inevitably give rise to conflicting according to the defendant, that the opinions concerning officials; applicant accepted his integration in (vii) The grounds on which the Estab­ Grade A 5. lishment Board based its opinion The applicant replies that his appeal were factually inaccurate, or repre­ should be held admissible since he sented inaccurate evaluations of never waived his right of action, either fact on its part; expressly or by implication, and is (viii) Misuse of powers occasioned by within die time-limits for exercising it. the personal animosity towards the (a) The integration in a lower grade applicant of his superior, Mr amounts to a unilateral offer by the Leclercq; defendant specifically expressed in the (ix) Irregular composition of, and pro­ document dated 8 January 1964 ap­ cedure followed by, the Establish­ pointing the applicant, which, it is ment Board. obvious, has never been accepted by the applicant, since he brought his ap­ A — Admissibility peal within the time allowed by the Regulations. Waivers cannot be pre­ The defendant claims that the first two sumed. Furthermore, says the applicant, heads of the conclusions in the appli­ rights conferred by Regulations which cation are inadmissible, as is the new are a matter of public policy cannot be submission introduced in the reply, that deemed to have been waived in ad­ of the irregular composition of and vance.

This claim relies on the circular of 8 itself must necessarily be invalid; yet February 1964 from the Staff Commit the applicant claims elsewhere (head 1) tee (Schedule 7 to the applicant's re that the appointment is valid, at least ply), which, in any case, stated that it in part. The Court must decide to what was open to the official to make a extent each of two contradictory claims complaint to the Commission even after is admissible. signing the waiver of the contract of The applicant replies that the Court employment made prior to the adoption must decide, taking into account all the of the Staff Regulations. facts of the case and the powers con (c) The waiver mentioned in Article 104 ferred on it by Article 91 of the Regu of the Regulations cannot, contrary to lations, whether a negative judgment what the defendant maintains, have the by it on the procedure followed by the effect of preventing the official from Establishment Board would result in a taking advantage of any of the pro straightforward annulment of the ap visions of the Regulations, including pointment and the return of circum those concerning administrative appeals stances to their original state or, as the and appeals to the Court. applicant requests, merely a partial an

cision of 8 January 1964'. Establishment Board. The defendant claims that this head is He claims that this issue is derived inadmissible. In fact, it says, a pro from points of fact and law which cedure, or the steps which it comprises, emerged in the course of the proceed is not capable of being annulled unless ings, in particular after the minutes of it involves administrative acts adversely the Establishment Board had been com affecting an official. The most that could municated to him. be done would be to declare that such The defendant contends that this issue a procedure was irregular. is not admissible, and denies that it is The applicant replies that the distinction derived from points of fact and law drawn by the defendant between an which have emerged in the course of irregular step in procedure and an the proceedings. administrative act which is void is somewhat futile in this case, since the B — On the substance of the case Court has now ruled that only the ap pointment itself can be questioned, the 1. As to the first submission: that the entire integration procedure being no integration procedure is void because more than a preparatory process (judg

WEIGHARDT v COMMISSION

2. As to the second submission: that his work which the applicant wished the defendant has failed to define the to show it. duties and powers attaching to each In the conclusions set out in his reply basic post as required by the last sen (pp. 27 and 28) the applicant requests tence of Article 5 of the Regulations. the Court to examine Mr Gillot, an After setting out this ground in the interpreter, as a witness on this point. application, the applicant states in his (c) Since the witnesses were heard in reply that he does not wish to pursue the applicant's absence, he was given it in the light of the judgments given no opportunity to refute their evidence, subsequently by the Court (judgment of put questions to them in person, 1 July 1964, Pistoj v EEC Commission, counter their evidence with witnesses Rec. 1964, pp. 697 and 698; judgment of his own or prepare his defence on of 1 July 1964, Hubert v EEC Com

3. As to the third submission: that the the hearing and when the decision was right of the applicant to defend himself being made. and general principles of law were not In his reply (p. 13 and 14) the appli respected by the defendant. cant notes that the minutes have been The applicant gives particulars of this produced, and that some of the submission in the application as members of the Establishment Board follows: who participated in the final decision

had not been present at previous meet As to (b) The defendant denies the ings. This point is linked to the ninth applicant's allegations and states that submission developed below. he was heard during the meeting on 30 (f) The Establishment Board gave no and 31 January 1964, when he brought reasons for its opinion. In bis reply a file of his work which was examined (p. 14) the applicant remarks that this by all the members of the Board. point is taken up in the fifth ground As to (c) This point has been settled of the application and will be examined by a judgment of the Court, the together with it. defendant says, as follows: In its statement of defence, the '… the failure to produce the minutes defendant contends that the Court has [regarding the hearing of the applicant's defined the defendant's right to be superior] could only make the pro heard by the Establishment Board as ceedings irregular if the result of this follows: omission had been to prevent the appli '… the Board must enable the candi cant from making known to the Estab lishment Board his views on the date to comment on any points likely to influence the decision as to his observations made with regard to him establishment.' by Mr Nora.

request. Next, the integration report, the composition of the Establishment which is included in the personal file Board for the various meetings is and carries the observations and signa shown in Schedules 2, 3, 4 and 5 to ture of the applicant. Lastly, the state the statement of defence. ments made by his superiors which As to (f) The defendant states that it were communicated to the applicant, will reply to this argument when it who was given an opportunity to reply answers the fifth submission. to them (cf. minutes of the meeting of In his reply, the applicant sets out the 30 and 31 January 1963 in Schedule third submission in the application, 4 to the statement of defence). together with the fifth submission (that The defendant then proceeds to answer the reasons stated by the Establishment the arguments contained in the applica Board for its opinion are not con tion, point by point. sistent with the facts of the case and As to (a) The defendant refers to the the applicant's personal file, and that case-law of the Court which states that this constitutes a lack of a valid state the integration report comprises a ment of reasons) and the seventh sub collection of 'complex value-judgments' mission (that the Establishment Board (judgment of 5 December 1963, Leroy relied on grounds which were factually v High Authority, Rec. 1963, p. 420, inaccurate or represented inaccurate first paragraph), and remarks that judg evaluations of fact on its part).

WEIGHARDT v COMMISSION

the personal file was examined. Thus opportunity of defending himself; the Establishment Board could not — the opinion of the Establishment have taken into account the fact Board and the reasons given for it that the applicant had been promot are not satisfactory, bearing in mind ed both in grade and step, which the facts of the case. contradicts the assessments made by The applicant goes on to say in pre his superiors in the integration report cisely which respects the reasons given and in their evidence to the Board. for the opinion are unsatisfactory. — The Court has held (concerning In the first place, the opinion was promotion and the absence of proper given 'after consideration of the work conduct reports) that examination referred to by the official concerned', of the personal file is an essential when in fact the Establishment Board requirement (Judgment of 19 March had not looked at the work.

appears from the minutes that the observes that while it is true that Mr evidence heard from three of his Leclercq gave him no work after superiors (Mr Leclercq, Head of December 1961, he was never given Department, Dr Michaelis, Director, work to do of a level inferior to that and Mr Von Geldern, Director- required by the service. General) were all three somewhat (c) The applicant points out that unfavourable.

JUDGMENT OF 7. 4. 1965 — CASE 11/64

— that the examination did take place mission) regarding the irregular com and the members of the Establish position of the Establishment Board and ment Board are prepared to be the procedure which it followed. witnesses to the fact; The defendant answers the arguments — that if the minutes do not mention set out in the reply concerning the such an examination it is because third, fifth and seventh submissions in Article 102 (b) of the Regulation the following manner: concerning the Establishment Board (a) As to the promotion in grade and makes no mention of the personal step to which the applicant refers, the file. defendant observes: (f) To the applicant's allegation that his — that the promotion in grade occurred inadequate knowledge of French was at the end of the probationary the deciding factor in the Establish period following a very favourable ment Board's unfavourable opinion, the probation report; the defendant ad defendant replies that it is clear from mits that the applicant had given the wording of the integration report complete satisfaction until 1960; and the statements of the applicant's — That the promotion in step was superiors 'before the Establishment automatic for all staff during the Board that his inadequate knowledge period prior to adoption of the Staff of French was an argument in fact Regulations. merely supplementary to the other com (b) The defendant contests the appli plaints regarding the applicant's cant's claim that Mr Leclercq gave deficiencies, namely: him no work after December 1961; — lack of initiative, but even were that so, says the — a pessimistic view of the feasibility defendant, Mr Leclercq's opinion, given and usefulness of the work

One has only to read these were not published under his name. documents for this to be clear, says the (d) The defendant 's response to the defendant. It also reminds the Court applicant's claim that he was not that, while it may be true that the advised of his right to be assisted by Establishment Board is to advise, a colleague before the Establishment according to Article 102 of the Regula Board is that document No 101 in the tions, on the basis of an integration personal file, lodged in the Registry, report, this does not at all mean that reminds the applicant that he may be the Establishment Board is to be

bound, when giving its opinion, by an — that this opinion is a purely internal unfavourable integration report. On the document intended for the EAEC contrary, it is the duty of the Establish Commission, preparing the ground ment Board to form its own opinion for a decision from the latter, which based on all the information available alone can give ground for complaint; to it. — that the content of the opinion was (h) As for the proceedings before the communicated verbally to the appli Establishment Board, the defendant cant by the abovementioned Mr states that the rules laid down by the Buurman, in the presence of Mr Court in its judgment of 5 December Tinelli, the Director; 1963 (Leroy v High Authority, Rec. — that it formally denies the accusa 1963, p. 417), were observed. tion made against Mr Buurman in

949). pursue it since the case-law of the As for that part of the fifth submission Court is now settled on this point. which refers to the failure to state The defendant replies that Mr Turk, reasons, the applicant's statement there the Deputy-Director, is responsible for on in his reply, and the response of the supplies within the Directorate-General defendant in its rejoinder, have been of Industry and Economy. summarized above in connexion with 5. As to the fifth submission: that the the third submission in the appeal. opinion of the Establishment Board 6. As to the sixth submission: that the contains no statement of the reasons absence of set criteria for the making on which it was based, contrary to of reports, makes the latter subjective Article 25 of the EAEC Staff Regula

fact on its part. municated to the applicant, the The applicant claims in his application defendant replies: that the following contain errors:

— the statement made to the applicant being contacted until July 1961, when by Dr Michaelis to the effect that Mr Leclercq was informed that the he had confined himself to stressing post, which had been vacant for several before the Establishment Board, the months, had been abolished by the applicant's inadequate knowledge of administration. As regards the appli French; cant's post, it became vacant following — the opinion of the Establishment the integration procedure and the Board; resultant transfer of the applicant. — the decision of the EAEC Com Another official was appointed to the mission. post in 1964. In its statement of defence, the 9. As to the ninth submission: that defendant replies that the Board's the composition of and the procedure opinion is not dependant principally on followed by the Establishment Board

8. As to the eighth submission: that of — the procedural rules for the function misuse of powers due to the personal ing of the Establishment Board; the animosity towards him of Mr Leclercq, defendant claims that no such rules the applicant's Head of Department. exist and that the procedure describ The applicant claims that Mr Leclercq, ed in its reply to Mr Faller's parlia his immediate superior, made no mentary question (Official Journal 2 attempt to conceal the animosity he felt

WEIGHARDT v COMMISSION

officials of the composition of the in the requisite form and in due time, Establishment Board. and the procedure followed the normal (b) In a leter to the applicant dated course. During the hearing on 19 22 September 1964 (Schedule 6 to January 1965, and after hearing the the applicant's reply), the defendant preliminary report of the Judge- told him that the Establishment Board Rapporteur and the Advocate-General's had naturally adopted for itself a modus opinion, the Court (First Chamber) de­ operandi. The basic principles thereof cided to open the oral procedure with­ were communicated to the staff repre­ out any preparatory inquiry. sentatives on 1 February 1962 (Sche­ The oral submissions of the parties dule 2 to the rejoinder). The defendant were heard in open court on 17 concludes that the Court is therefore February 1965. During the hearing, in a position to ascertain whether the the Court (First Chamber) requested Establishment Board adhered to its the defendant to produce the original working rules and that the proceedings minutes of the Establishment Board progressed in accordance with the Staff concerning the examination of the Regulations and the relevant rules of law. applicant's case. They were produced on 4 March 1965. IV — Procedure The Advocate-General delivered his opinion at the hearing on 10 March The parties submitted their pleadings 1965.

Grounds of judgment

I — Admissibility

The applicant's conclusion, so far as they relate solely to his classification in Grade A 5 are admissible.

The defendant further objects that the conclusions concerning the annulment of 'all the steps followed in the integration procedure concerning the appli­ cant, including the opinion of the Establishment Board, these forming the basis of the decision of 8 January 1964 taken by the EAEC Commission' are inadmissible; only acts which adversely affect the applicant can be annulled, not preparatory measures.

Such acts, when taken during the integration procedure, can only be con­ tested incidentally in an appeal against measures capable of being annulled, not being so themselves. Any complaint concerning them can only be made effectively through an appeal against the Commission's decision which con­ stitutes the final step in the integration procedure.

The objection is therefore well-founded.

Lastly, the defendant contests the admissibility of the submission relating to the regularity of the composition of, and procedure followed by, the Estab­ lishment Board, a submission first raised in the applicant's reply.

However, the argument in question is derived from an examination of the Establishment Board's minutes, only produced by the defendant in the Schedule to its statement of defence.

The ninth submission

The applicant objects to the composition of and procedure followed by the Establishment Board on the ground that, first, the defendant has failed to produce any document proving that it had itself appointed the members of the Establishment Board.

Circular No 3/62 of 2 February 1962 appears in the applicant's personal file, so that he was in a position to acquaint himself with its contents. The defen­ dant is not bound to produce written evidence on all questions concerning the integration procedure, unless there is reason to suspect that there are defects in the procedure; this is not the case here.

The applicant goes on to claim that the composition of the Establishment Board was altered in. the course of the integration procedure, and that mem­ bers of the Board who were not present when the witnesses were heard none­ theless participated in the vote and in drafting the unfavourable opinion.

However the content of the statements made by the witnesses was recorded in the minutes and shown to the members of the Board.

The applicant finally claims that no rules for the Board's modus operandi were in existence, or if they were, the defendant had refused to produce the document containing them. According to the applicant, this makes it impos­ sible for the Court to satisfy itself of the regularity of the procedure followed, and in particular to discover the majority by which the decisions should be taken and whether such a majority was obtained in this instance.

The minutes of the Establishment Board, particularly those of the meetings held on 30 and 31 January 1963, show that the statements made to the Board by bis superiors were communicated to the applicant. The conflicting state­ ments of the parties as to whether the Establishment Board refused to examine the examples of bis work produced by the applicant do not require the Court's consideration; it is sufficient to state that these samples have no evidential value. There is no evidence which enables the Court to determine with certainty the rôle played by the applicant in drafting these documents, the majority of which were published in the name of his superiors.

The other arguments adduced by the applicant in support of this submission are not sufficiently proven. This submission is accordingly unfounded.

The applicant next claims that the reasons given for the unfavourable opinion are inconsistent with the facts in the case and that their basis is factually in­ accurate or represents inaccurate evaluations of fact. He sees a conflict be­ tween, on the one hand, the favourable assessment in his probation report (17 May 1960), the promotion to Grade A 4 with effect from 1 May 1960, and the advancement in step (1 November 1961); and, on the other hand, the unfavourable decision issued a few months later on the basis of the in­ tegration report (11 April 1962), the statements of his superiors (October 1962) and the opinion of the Establishment Board.

During the period prior to the entry into force of the Staff Regulations, the defendant applied with regard to its staff the 1956 ECSC Staff Regulations, Article 38 of which provides that advancement in step is automatic. There remain thus in the applicant's favour only the probation report and the pro­ motion (May 1960), preceding by almost two years the integration report (11 April 1962), the first unfavourable element to appear.

This submission is therefore unfounded.

The eighth submission

The applicant claims that his immediate superior, Mr Leclercq, was in­ fluenced by personal animosity towards him to give a false assessment of his vocational abilities, and that in taking this assessment into account the Board was guilty of a misuse of its powers. No evidence has been tendered, however, to support these claims. Moreover, the reports made by the applicant's other superiors were likewise generally unfavourable.

This submission is accordingly unfounded.

III — Costs

The applicant has failed in his action.

hereby:

1. Dismisses the application in Case No 11/64, partly on the ground of inadmissibility and partly as being unfounded; 2. Orders the defendant to bear its own costs and one half of the costs incurred by the applicant;

3. Orders the applicant to pay the remaining half of the costs incurred by him.

Lecourt Delvaux Trabucchi

Delivered in open court in Luxembourg on 7 April 1965.

H. J. Eversen H. Lecourt