C-12/66
ECLI:EU:C:1967:21
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JUDGMENT OF THE COURT (FIRST CHAMBER) 22 JUNE 19671
Alfred Willame v Commission of the EAEG
Case 12/66
Summary
1. Officials — Integration — Establishment Board — Duties — Composition (EAEC Staff Regulations of Officials, Article 102)
2. Officials — Ability, efficiency and conduct — Assessment not influenced by services rendered in the sphere of staff representation (EAEC Staff Regulations of Officials, Annex II, third paragraph of Article 1 (3))
1. Even in the event of the reopening Cf. paragraphs 1 and 2, summary, of the integration procedure it is un Case 87/63 [1964] E.C.R. 469. necessary to modify the composition 2. The value of the services rendered of the Establishment Board. On the by an official in the sphere of staff one hand, the duty of this Board is representation must not influence the not to take penal or disciplinary assessment of the ability, efficiency measures, but rather to assess the and conduct of that official in rela ability, efficiency and conduct of an tion to the performance of the duties official in relation to the performance involved in a given post provided for of the duties of a given official post. in the budget. The administration is On the other hand only a single required only to consider the volume Establishment Board is able, through of the work performed for the Staff prolonged experience, to develop Committee by the official concerned homogeneous criteria of assessment and to establish what effect the time and, if necessary, to balance dis spent on work as staff representa criminatory or divergent opinions ex tive has had on the time devoted to pressed by superior officers on the the performance of his official officials concerned. duties.
In Case 12/66
Alfred Willame, residing at Suresnes (France), assisted by Marcel Grégoire and Edmond Lebrun, Advocates of the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande-Duchesse-Charlotte, applicant, v
Commission of the European Atomic Energy Community, represented by its Legal Adviser, Pierre Mathijsen, acting as Agent, with an address for 1 — Language of the Case: French.
JUDGMENT OF 22. 6. 1967 — CASE 12/66
service in Luxembourg at the office of Henry Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz,
defendant,
Application:
(a) for the annulment of the decisions not to integrate the applicant and to terminate his service of which he was informed on 21 December 1965;
(b) for the award of damages;
THE COURT (First Chamber)
composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and W. Strauß, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts the applicant's case during its meetings of 3, 5 and 15 November and 1 Decem In an earlier application (Case 110/63) ber 1965. the applicant had requested the annul On this latter date it issued a report to ment of the decision refusing to inte the effect that it considered that the grate him and terminating his service, applicant was unsuited to perform the of which he had been informed on 2 duties to which he was assigned. October 1963. As a result, the applicant received noti In its judgment given on 8 July 1965, fication on 21 December 1965 that at the Court (First Chamber) annulled the its meeting on 16 December 1965, the decision in dispute and referred the case Commission of the EAEC had decided back to the defendant for the re-open to terminate his service, with effect from ing of the integration procedure (Rec. the end of the period of one month from 1965, p. 804 et seq.). the date of the above-mentioned noti The Establishment Board re-examined fication.
WILLAME v COMMISSION
II — Conclusions of the integration procedure and the con pa r t i e s tested decisions and as a result of the wrongful acts or omissions, subject A — In his application, the applicant to the express right to amend this has claimed that the Court should: figure during the course of proceed ings; Primarily 1. Annul the contested decisions refus Secondarily ing to integrate the applicant and ter If, because of impossibility or for any minating his service, of which he was other reason, the contested decisions informed by letter of 20 December should not be annulled: 1965, received on 21 December 1965, 1. Order the defendant to pay to the together with the procedural meas applicant such damages and interest ures on which these decisions rested thereon as the Court shall consider and in particular the unfavourable to be in keeping with the applicant's opinion of the Establishment Board official status and period of employ and, by amending them; ment, here assessed at Bfrs. 1 500 000 2. Rule that the case be referred back for the material damage and Bfrs. to the defendant for a proper re 150 000 for the non-material damage, examination to foe made of the ap subject to the express right to amend plicant's case; these figures during the course of the 3. Rule that following the annulment of proceedings; the contested decisions the applicant 2. In addition, order the defendant to shall 'be regarded as remaining in the pay Bfrs. 100 000 to the applicant as service of the defendant, according to compensation for the non-material the provisions of his contract of em damage which he has suffered as a ployment; result of the irregularities and, at 4. Accordingly, order the defendant to least, of the wrongful acts or omis pay to the applicant the emoluments sions committed during the integra due under his contract concluded be tion procedure, subject to the express fore the entry into force of the Staff right to amend this figure during the Regulations, taking into account any course of the proceedings; adjustments which have occurred Order the defendant to pay the costs; since then, for the period between B — In its statement of defence, the the termination of his employment defendant has contended that the Court by reason of the above-mentioned should: decisions and the notification to him of a new decision; order the defen 1. Dismiss both the primary and dant to pay to the applicant interest secondary conclusions of the appli at the rate of 4.5% per annum, cal cant; culated as regards each month's re 2. Declare Application 12/66 to be un muneration, as from the date on founded; which the emoluments for that month 3. Order the applicant to pay the costs should have been paid, until the date of the action. on which the applicant shall actually C — In his reply, the applicant has have received such emoluments; claimed that the Court should: 5. Order the defendant to pay Bfrs. 100 000 to the applicant as compen Subject to all general reservations, and sation for the non-material damage without his making any admissions which he has suffered as a result of which might prejudice his case, and in the irregularities vitiating both the particular, subject to the express right
JUDGMENT OF 22. 6. 1967 — CASE 12/66
to make any further submissions con In order that the right of the defence cerning the accuracy of the minutes of might foe assured, it would have been the Establishment Board dealing with essential for him not to appear before the evidence given by the witnesses, the same 'judges' whose earlier report accept the conclusions of the applicant had been criticized by the Court. as set out in the application. The defendant maintains that the Estab lishment Board cannot foe compared to a D — In its rejoinder, the defendant has contended that the Court should: court whose judgment has been quashed, the case then being sent back for hear Dismiss both the primary and secondary ing before other judges. conclusions of the applicant; As the Board's task in this instance was Declare Application 12/66 to foe un to equate the assessments of the several founded; reporters, it could only foe performed Order the applicant to pay the costs. by members possessing a thorough knowledge of all the problems posed by the integration of several hundred III — Submissions and argu servants.
ments of the parties Therefore, the fact that the composition of the Establishment Board remained A — Admissibility the same constitutes the strongest guarantee of respect for the right of The defendant raised no objection to the defence. the admissibility of the application. (b) The applicant maintains that, in his B — Substance evidence given before the Establishment Board on 15 November 1965, Dr Recht The applicant has based his applications stated that his annotations in black ink on the four following submissions: were made to the documents in ques 1. The integration procedure followed tion when he first received them, that is unlawful and contrary to general those in red pencil were added in 1962, principles in that it infringes the at the time of the first integration pro rights of the defence; cedure and, finally, 'that he did not pre 2. The ground on which the Establish cisely remember when he had made his ment Board justified its proposal that annotations in black or blue pencil. On the applicant should not be integra this point the applicant makes the fol ted is inaccurate, insufficient and lowing observations: inappropriate; — if the above-mentioned evidence is 3. The report of the Establishment compared with the fact that three of Board is vitiated by misuse of the annotations in red pencil, dated powers; 13 March 1959, 15 April 1959 and 4. The defendant's conduct during and November 1958 respectively, appear following the integration procedure on documents numbered 148, 152 constitutes wrongful acts or omissions and 202, it must foe concluded that for which it is liable. the three annotations in question have been antedated; the applicant there 1. First submission: irregularity of the integration procedure fore requests the Court to order the originals of these documents to foe (a) The applicant maintains that the produced in order to identify the composition of the Establishment Board colour of the annotations in ques which drew up the second opinion was tion; identical to that which drew up the first — the applicant's argument that he had opinion annulled by the Court. never been the subject of criticisms
WILLAMEvCOMMISSION
intemporenonsuspectoissupported hisfileonlyconstitutedpreparatory bythefactthat,first,17annotations memorandaintendedtoshowthathe outof20areinredpenciland, hadactuallycarriedouttheworkde therefore,datefromthefirstintegra mandedofhim anddidnotconstitute tionprocedureandthat,secondly,the thefinalversionofsuchworkonthe onlytwoannotationsinblackink, basisofwhichhisabilityandefficiency whichthewitnessmaintainsdate couldbeassessed. fromthe'periodofthere-opening Adistinctionmustbemadebetween oftheprocedure,constituteneither thepreparatorymemorandawhichhe reprimandnorcriticism; producedonlyinordertoshowthathe —inviewortheapplicant'scomplaint hadundertakenthetasksassignedto concerningtheactualtime-scaleof him,andthefinisheddocumentswhich theannotationsandtheobviouscon alonecanfoeusedinordertoassess tradictionbetweentheevidenceof thequalityofaservant'swork. DrRechtandthedateofcertainof Of600pagesanalysedbytheBoard, theannotations,theEstablishment only152pagesrepresentedcompleted Boardwasobligedtoorderthe piecesofwork. preparationofanexpert'sreport,at Asregardstheincompletenatureofthe leastasregardsthedocumentsnum fileconsideredbytheBoard,theap bered148,152and202anditsre plicantalleges; fusaltodosoisevidenceofa —thattheBoardcriticizedtheabsence seriousfailuretorecognizetheright fromthedetailedlistofpostsofin ofthedefence. formationregardingthestaffrequired Thedefendantrepliesthatthealleged andtheirqualifications,eventhough contradictionbetween'thestatement thefilecontainednoscheduledeal madebyDrRechtbeforetheEstab ingwithappointments; lishmentBoardon15November1965 —thattheBoardcriticizedthecom andthedatesappearingonthedocu parativetableoflegislationdealing mentsnumbered148,152and202, withprotectionagainstradiation,al arisesfromanerroneousinterpretation thoughneitherthesixdocumentsin ofthisstatement. newspaperformatconcerningindus Itisinfactsufficienttoquotetheletter trialaccidentsnorthereferencecards addressedbyMrFuncktotheappli appearedinthefileconsidered; canton14December1965(Schedule — thattheBoardcriticizedthehealth 8totheapplication),accordingtowhich andwelfarestatistics,althoughthe 'theexplanationsgivenbyyoursuperior letter(of26January1961)from — aswascleartoeveryone—werecon MrLegrandtotheapplicant,andthe finedtoaconsiderationofthemarginal memorandumfromtheapplicant(of annotations,which,astheyshowno 26November1961)hadnotbeen precisedate,couldwithoutfurtherevid submittedtoit; encefoeplacedwithinanaccuratetime- — thatthefilecontainsnomentionof scale',inordertoshowthatthestate approximately40informationbul mentsmadebyDrRechtonlycon letinswhichhepreparedincollabora cernedtheundatedannotations. tionwithMrHertel. (c)Theapplicantmaintainsthatthe Thedefendantmaintainsthatthedrafts EstablishmentBoardinfringedtheright andpreparatorymemorandaareimport ofdefencebyissuingitsreportonthe antinmakinganassessmentofaser basisofanincompletefile,knowingthe vant'sabilities,astheyaretheexpres filetobeinsuchastate. sionofhisownthoughtsbeforehecol The85documentswhichhehadlodged laborateswiththirdparties. on8May1963inordertocomplete Bytheverynatureoftheworkde-
JUDGMENT OF 22. 6. 1967 — CASE 12/66
manded of the applicant—contributions rank' is itself inaccurate and insufficient. to surveys, preliminary plans, internal The Establishment Board regarded the memoranda, etc.—final versions do not work which it examined as being of a come within his sphere. general and preliminary nature, even The Establishment Board studied 450 though it was aware that, particularly as pages produced by 'the applicant and regards the work to which it expressly 157 pages submitted by Dr Recht. refers, it was looking at a file containing It is thus of no avail to maintain that a no completed pieces of work, but merely few pages more could constitute a 'genu drafts and preparatory memoranda. ine source of information capable of The applicant added to a file of 152 supporting the case of the servant con pages submitted to the Board, which cerned' (Rec., 1965, p. 820, seventh was deemed to represent his work over paragraph). a period of four years, documents which The information bulletins prepared in he had kept concerning the work car collaboration with Mr Hertel cannot be ried out. evidence of the ability of one of the It cannot therefore foe claimed that the authors thereof to perform 'the duties Board considered a complete file, that is, inherent in his post. one containing all the applicant's work (d) The applicant alleges that he had in a final form. numerous private contacts with Mr At the time of 'the first submission, he Hirsch and that this official was, there stated that three of the four pieces of fore, in a particularly good position to work to which the Board expressly re make a report on his abilities. fers in giving the reasons for its de Mr Hirsch, whose task was to establish cision, that is, the draft detailed list of and develop staff representation was the posts, the comparative table of legisla best qualified to define the importance tion dealing with protection against radi of the applicant's duties as staff repre ation and the health and welfare statis sentative and thus to enable the Board tics, are incomplete and this alone justi to assess their influence on the quality fies the criticisms made of them by the and quantity of the services involved in Board.
his post. There is therefore no question of com The defendant observes that Mr Hirsch plex value judgments with which the had no special contact with the applicant Court cannot interfere, but rather one and thus was not in a position to form of specific complaints establishing the an opinion as to his abilities. inaccuracy and insufficiency of the As regards the importance to be attached grounds for the decision. to the duties of staff representative, the The defendant refers to its arguments defendant replies that in the course of put forward at the time of the first Case 110/63 it appeared clearly that this submission and concludes that most of matter had not escaped the Board's the documents considered by the Estab notice. lishment Board, in particular those sub 2. Second submission: defects in the mitted by Dr Recht, in fact represent statement of reasons for the decision the final stage of work carried out by the applicant, and that, in any case (a) The applicant alleges that the state drafts and preliminary projects are of ment of reasons according to which a great importance in assessing the suit 'detailed consideration of the written ability of a servant for his post. work of this servant nevertheless reveals The Court will consider whether there grave omissions and serious shortcom are any grounds for it to make a pro ings considering the minimum require nouncement with regard to a complex ments expected of an official of this value judgment, where, as in this case,
WILLAME v COMMISSION
there is no evidence on which it may the members of Staff Committee shall be called in question. be part of their normal service in their As regards the draft detailed list of institution, the Establishment Board, by posts (documents Nos 190 to 201 in refusing to assess the quality of these the personal file), the defendant observes services, infringed both this provision that it appears unlikely that the schedule and Article 109 of the Staff Regula in question even existed. tions. First, an examination of the personal In addition, it infringed the principle file reveals no reference to any schedule of rights and freedom, sanctioned not whatever and, secondly, the copy of the only by the Staff Regulations but also detailed list of posts which the appli by the rules and principles in force in cant produced before the Establishment the Member States and in European Board in 1963 also contained no and international institutions (Article 13 schedule, and no mention of or refer
of the Convention for the Protection of ence to one. Human Rights and Article 5 of the As regards the 'comparative table of European Social Charter). legislation concerning protection against The applicant then maintains that the radiation', although the personal file Establishment Board claims to have contains six documents concerning in taken into account the effect of his acti dustrial accidents, attached to document vities as staff representative on his No 52, the alleged 'numerous reference official duties; but even on the assump cards' are missing and their existence tion that the Board is justified in limit appears doubtful. ing its assessment in this way, it still Although the technical card-index exists gives no indication of the criteria which in full it is clear that this is only partly it applied in assessing this effect. the work of the applicant and that his There is justifiable doubt whether the abilities cannot therefore be assessed on effect of the activities as staff represen the basis thereof. tative on official duties can be taken into As regards the health and welfare statis
account, without such activities having tics, the defendant replies that the two first been considered and given at least letters missing from the file do not exist an assessment in outline. in its archives and the applicant's in The Establishment Board was obliged ability to obtain a copy of them appears to take into account the qualitative and to indicate that they were never written. quantitative effect of the applicant's Finally, the Establishment Board has duties as staff representative on his clearly explained the grounds on which official duties but its report does not it gave up its inquiries on this point indicate in any way what documents (Schedule 12 to the application, pp. 5 and evidence enabled it to assess the and 6). importance, the volume and the diffi (b) The applicant criticizes the passage culty of his duties in this capacity. in the report of the Establishment The Court is therefore unable to exer Board, to the effect that: The Board cise its power of review. voluntarily refrained from considering Finally, the fact that the Board did not Mr Willame's activities as staff repre hear Mr Hirsch and failed to take suffi sentative, in spite of his request that it cient notice of the favourable evidence should do so, on the grounds that it of Mr Medi assumes particular import was not competent to assess the value ance in relation to this point. of these services . . .' The defendant replies that it follows In fact, as the third paragraph of Article from the case-law of the Court (Rec. 1 of Annex II to the Staff Regulations 1965, p. 821, (m), third paragraph), that provides that the duties undertaken by the Es'tablishment Board must examine
JUDGMENT OF 22. 6. 1967 — CASE 12/66
the effect of the servant's activities as In addition, the defendant again main staff representative on his work in his tained in its pleadings that the appli official post and not the activities them cant never complained that he was un selves. able to carry out properly those duties It follows from the opinion issued by assigned to him in his post provided the Establishment Board (Schedule 12 for in the budget because his time was to the application, p. 2, fourth para completely taken up with his duties as graph), that this procedure was adopted staff representative. in this instance and that the Board
3. Third submission: misuse of powers nevertheless decided to draw up a nega tive report. The applicant alleges that the aim of The defendant then maintains that in its the Establishment Board was not to opinion (Schedule 12 to the application, make an objective assessment of his pp. 2 and 3), the Establishment Board abilities, but rather to oust him from his clearly defined the criteria which it ap position and to look later for excuses plied in considering the effect of the with which to give a semblance of applicant's activities as staff representa justification for this decision to remove tive on the quality and quantity of his him which it had already taken. work involved in his official post.
That the Establishment Board intended Although at no time was there a con to remove the applicant is shown by the flict between the two types of duties fact that it: performed by the applicant, it is, how — did not require Dr Recht to produce ever, possible that the mere existence evidence of the applicant's work in of a dual capacity had unfavourable its final state, with the result that he consequences not susceptible of meas was able to select the items to be urement in concrete terms, but which produced in order to obtain the de were involved in the formulation of the sired result; Establishment Board's complex value — in order to support its point of view, judgment (Schedule 12 to the applica referred to work carried out by the tion, pp. 3 and 6). applicant on which it did not have The applicant stated that until the end all the necessary information; of 1961, when the Staff Regulations — refused to examine the accuracy of were to come into force, the applicant the dates appearing in the margin had been assisted by his superior in the of certain documents produced by performance of his activities as staff Dr Recht; representative' (Schedule 12 to the — did not hear the evidence of Mr application, p. 3 first paragraph).
Hirsch; Basing its argument on the evidence — judged the applicant severely, al given by Mr Medi before the Establish though he received nothing but praise ment Board on 3 November 1965, the in the performance of his duties as defendant observes, first, that this wit staff representative. ness had not been in a position to form The applicant has also maintained in a first-hand opinion of the applicant's his pleadings that the abolition of his ability and, secondly, had never regard
post as Head of the Social Problems ed his establishment as virtually Division, of which he was informed by certain. letter of 29 October 1965, (Schedule 3 For this reason, the presumption of fact to the application), shows that the set out by the Court in its judgment of Board's verdict had been given even 8 July 1965 (Case 110/63, Rec. 1965 before the integration procedure began. p. 820) cannot now be regarded as The defendant replies that the applicant's justified. unjustified allegations fail to show that
WILLAME v COMMISSION
the procedure took place without every non-material damage caused and, alter attempt being made to ensure objec natively, if no order for annulment tivity. should be made, by the award of damages appropriate, in particular, to an 4. Fourth submission: wrongful acts and omissions adequate period of notice. The defendant replies that the com The applicant sets out the following as plaints put forward by the applicant wrongful acts or omissions; are only repetitions of his earlier allega — the file produced by Dr Recht was tions, which have already been refuted. far from complete and was ill- assorted; IV — Procedure — certain notes appearing in the margin of the documents in question were The parties lodged their pleadings in antedated, in order to give the im time and the procedure followed the pression that the work in question normal course. had been assessed severely at the By order of 16 February 1967, the time when it was done; President of the Court designated Judge — the allegation that a specific task was W. Strauß to replace Judge R. Lecourt not carried out, even though the in the present case. annotation made by Dr Recht at the Upon hearing the preliminary report of end of document No 66 and Mr the Judge-Rapporteur and the opinion Mosthaf's statement produced in of the Advocate-General at its hearing schedule 5 of the application, showed on 16 February 1967, the Court (First that it had been; Chamber) decided to open the oral pro — every time they had an opportunity cedure without any preparatory inquiry. to do so the members of the Estab The parties presented their oral sub lishment Board refused to consider missions at the hearing on 20 April any genuine sources of information. 1967. The damage must foe made good by the Mr Advocate-General Roemer delivered annulment of the contested decisions, by his opinion at the hearing on 17 May the award of damages in respect of the 1967.
Grounds of judgment
I — Admissibility
No objection has been raised 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.
II — Substance
A — The application for annulment
1. The first submission: irregularity of the integration procedure
(a) The applicant maintains that the rights of the defence were infringed, as
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the composition of the second Establishment Board was identical to that which issued the first opinion in 1963.
As is shown by Article 102 of the Staff Regulations the duty of the Establish ment Board is not to take penal or disciplinary measures, but rather to assess the ability, efficiency and conduct of officials in relation to the performance of their official duties.
To this end, the Establishment Board must consider the subjective views put forward by superior officers on the abilities of their subordinates.
Discriminatory treatment of officials can, therefore, only be avoided if a single Establishment Board is able, through prolonged experience, to develop homo geneous criteria of assessment and, if necessary, to balance discriminatory or divergent opinions expressed by superior officers on the officials concerned.
Moreover ah ad hoc Board set up to deal with a specific case could not possess the experience gained in dealing with many cases by the Board which had functioned from the time when integration into the scheme of the Staff Regulations began.
The present complaint is therefore unfounded.
(b) The applicant alleges that the Establishment Board should have checked whether or not certain annotations made by Mr Recht in the margin of the documents considered had been antedated.
On 15 November 1965, Mr Recht stated before the Establishment Board that he had made the marginal annotations in red ink in 1962, at the time of the first integration procedure.
It is clear from the facts of the present case that this evidence was given in reply to a question concerning the undated marginal annotations.
Mr Recht's explanations cannot therefore apply to the annotations in dispute, which are actually dated.
The Establishment Board therefore rightly decided that the applicant's vague allegations did not constitute a valid reason for ordering an expert inquiry to determine whether the date on documents numbered 148, 152 and 202, was correct.
WILLAME v COMMISSION
The present complaint is therefore unfounded.
(c) The applicant maintains that the Establishment Board issued its report on the basis of a file which was incomplete and which it knew to be so.
The file shows that out of a total of 600 pages considered by the Establish ment Board, approximately 150 pages constituted finished pieces of work, while the rest was made up of drafts and preparatory memoranda.
Consequently, the criticism that the Establishment Board only based its reports on mere drafts is unjustified.
Moreover, during the proceedings before the Establishment Board, the appli cant did not claim that in addition to the 150 pages mentioned above, com pleted or almost completed documents existed for which he was alone respon sible, and that, by examining these, the Board could have obtained a more favourable opinion of his abilities.
The file examined by the Court only contains one observation to this effect in a letter addressed by the applicant to the Chairman of the Board on 15 December 1965, that is, after the integration procedure had come to an end.
The present complaint is therefore unfounded.
(d) The applicant makes the objection that the Establishment Board did not hear Mr Hirsch, the former President of the Commission of the EAEC.
This official was in the best position to explain the nature and importance of the duties performed by the applicant within the Staff Committee, and thus to enable the Establishment Board to assess the effect of these duties on the quality and quantity of the services rendered in his official post.
Article 102 of the Staff Regulations only prescribes that the Estabishment Board shall issue a report on the official's ability, efficiency and conduct in the service.
It cannot be concluded from the third paragraph of Article 1 of Annex II to the Staff Regulations, according to which 'The duties undertaken by members of the Staff Committee . . . shall be deemed to be part of their normal service in their institution', that the value of the services rendered by an official in the sphere of staff representation can influence an assessment of the ability, efficiency and conduct of that official in relation to the performance of the duties involved in a given post provided for in the budget.
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The Board was therefore only required to consider the volume of the work which the applicant performed for the Staff Committee and to establish what effect the time spent on work as staff representative had on the time devoted to the performance of his official duties post.
It follows both from the evidence of Mr Recht noted at the meeting on 3 November 1965 and from the wording of the opinion drawn up by the Estab lishment Board on 1 December 1965 on the basis of the applicant's detailed statements, that the quantitative effect of his work as a member of the Staff Committee on his activities in his official post was taken into serious con sideration.
The applicant is nowhere criticized for having neglected his official duties by reason of his duties as staff representative.
On the contrary, official note was taken of the fact that in spite of his ad ditional responsibilities he was able to devote a considerable amount of his time to the duties in his official post.
The applicant himself has never maintained that his dual role prevented his keeping to the time-limits laid down for the work involved in his official post or that for this reason he was unable to carry out the work with sufficient thoroughness.
It is clear from the minutes of the meeting of 8 February 1963 concerning the first integration procedure that the applicant acknowledges that, until the end of 1961, his superior supported him in his duties on the Staff Committee and that he always found it possible to finish his work within the required time-limits.
It is clear from the above that it was unnecessary in the course of the integra tion procedure to consider in greater depth the question of how much time the applicant devoted to his activities on the Staff Committee.
It was therefore reasonable for the Establishment Board to regard the evi dence of Mr Hirsch as unnecessary.
The present complaint is therefore unfounded.
2. The second submission: absence or insufficiency of grounds for the decision
(a) The applicant criticizes the Establishment Board for failing to take the favourable evidence given by Mr Medi sufficiently into consideration.
WILLAME v COMMISSION
The evidence given by Mr Medi at the meeting on 3 November 1965 shows that he did not have at his disposal sufficient information concerning the applicant to enable him to make a comprehensive assessment of his activities.
For this reason, Mr Medi's statements could not provide the Establishment Board with information such as could exercise a decisive influence on the opinion to be issued.
The present complaint is therefore unfounded.
(b) The applicant alleges that the Establishment Board wrongly criticized his attempts to prepare health and welfare statistics.
It follows from a letter from the statistical department dated 26 January 1961 and from a memorandum addressed by the applicant to this department and dated 26 November 1961, that responsibility for the lack of progress in this field did not lie with him, but rather with the national authorities involved.
It is clear from the minutes that the applicant's explanations on this point made in the course of the integration procedure were accepted and that, in any case, his work in the field of statistics did not influence the general assessment made by the Establishment Board.
The present complaint is therefore unfounded.
(c) The applicant alleges that the unfavourable assessment of the Establish ment Board made regarding the detailed list of posts of the Directorate of Health and Safety which he had prepared was made on the basis of incom plete documents.
The applicant has not established the existence of a schedule containing a resume of the staff required.
Moreover, the Board's unfavourable assessment is based more on the lack of originality of the detailed list of posts than on the fact that it was incomplete. It must be acknowledged that a document which only contains paraphrases of extracts from the EAEC Treaty is inappropriate to demonstrate that its author is capable of performing the duties inherent in the post of Head of Division.
The present complaint is therefore unfounded.
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(d) The applicant alleges that the documents on the basis of which the Estab lishment Board regarded as insufficient his choice of the texts of legal pro visions concerning insurance and the compensation of staff exposed to nuclear radiation were also incomplete and that in its final form this work had in cluded six additional pages concerning industrial accidents and had contained a certain number of reference cards.
The defendant has replied that it was unable to find the above-mentioned documents in the archives of the Health and Safety Division.
Moreover, the criticisms made by the Establishment Board did not refer to omissions in the work, but rather to its nature and its level.
The present complaint is therefore unfounded.
(e) The applicant criticizes the statement in the Establishment Board's opinion to the effect that the technical card-index which he had prepared regarding occupational diseases 'cannot be regarded as convincing evidence of the spirit of initiative required from an official in the Health and Safety Division who is responsible for social problems'.
Whilst agreeing that the applicant made to some extent a personal contribu tion to the work in question, the evidence of Dr Massart, Director of Medical Services, confirms the report of the Establishment Board by stating that it is of no great interest to the Directorate of Health and Safety.
Moreover, it seems clear that a piece of work which is largely made up of in formation supplied by other departments of the EAEC Commission or the International Labour Office cannot be used as a basis on which to assess the applicant's ability ot perform the duties to which he was assigned.
The present complaint is therefore unfounded.
3. The third submission: misuse of powers
The applicant alleges that the aim of the Establishment Board was not to make an objective assessment of his abilities, but rather to oust him from his position and then look for an excuse which would give a semblance of justifi cation for this decision to remove him which it had already taken, and that it is significant in this respect that on 29 October 1965, that is, immediately before the integration procedure began, he learnt that his post of Head of Division for Social Problems had been abolished.
WILLAME v COMMISSION
It is clear from the oral proceedings that the applicant has not established the misuse of powers which he alleges.
This submission must therefore be dismissed as unfounded.
B — The claim for damages
It follows from the foregoing that the only question remaining to be settled is whether the period of one month's notice provided for in the applicant's con tract concluded before the entry into force of the Staff Regulations can be regarded as sufficient.
On his dismissal the applicant had more than seven years' service and held a post equivalent to Head of Division (Grade A 3).
The applicant thus remained in the service of the Commission well beyond the period at which the so-called 'Brussels' contracts normally came to an end.
A period of one month's notice is therefore insufficient in this instance. However, in calculating the amount of the damage suffered as a result of the insufficiency of the period of notice received by the applicant, it must be re membered that in pursuance of Article 102 (2) of the Staff Regulations the applicant received, in adition to one month's notice, compensation equal to two months' basic salary.
In the exercise of its unlimited jurisdiction, therefore, the Court assesses the amount of the damage at Bfrs. 100 000.
III — Costs
Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
In accordance with Article 70 of the Rules of Procedure, in proceedings under the Staff Regulations of Officials, institutions shall bear their own costs.
Under the terms of Articles 69 (3) where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part.
JUDGMENT OF 22. 6. 1967 — CASE 12/66
The applicant has been successful in the part of his application concerning the period of notice.
It is therefore appropriate to order the defendant to pay one half of the costs incurred by the applicant.
On those grounds,
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 Articles 151 and 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 34, 90, 91 and 102; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
THE COURT (First Chamber)
hereby:
I. Dismisses Application 12/66, to the extent to which it refers to the annulment of the decision not to integrate the applicant and to his dismissal;
2. Orders the defendant to pay Bfrs. 100 000 to the applicant by way of damages, in respect of the insufficient period of notice of dismissal;
3. Orders the defendant to bear its own costs and one half of the costs incurred by the applicant, the remainder of the costs to be borne by the applicant.
Trabucchi Delvaux Strauß
Delivered in open court in Luxembourg on 22 June 1967.
A. Van Houtte A. Trabucchi Registrar President of the First Chamber