OPINION OF MR ADVOCATE-GENERAL LAGRANGE

DELIVERED ON 17 JUNE 1964 (*1)

Mr President,

Members of the Court,

The conclusions in the application by Mrs Minot (nee Van Nuffel) fall into two categories. The first are concerned with the regularity of the administrative position which she held under the contract of employment by which she was bound to the administration (Euratom Commission) until her dismissal and result in a request for compensation of 516000 FB because of the alleged loss of the benefits connected with the duties which she carried out from 1 January 1959 to 31 August 1963. The second are directed towards the annulment of the decision against integration and of dismissal taken on the basis of Article 102 of the Staff Regulations and towards the consequential award of damages. We must note that, contrary to what usually happens, we are not faced here with an unfavourable opinion of the Establishment Board, which binds the appointing authority according to Article 102, but with a decision taken by the Executive Commission of Euratom itself on the basis of an unfavourable report of the Establishment Board.

A — Conclusions concerning the execution of the contract

1.Admissibility. The defendant Commission applies itself in long explanations to contesting the admissibility of these conclusions by claiming that they are out of time.

I can but refer, in this respect, to the considerations with which I myself dealt in Case 69/63, Mrs Marcillat (née Capitaine), and to the judgment of 9 June 1964, from which it appears that the time-limit for appeals in Article 91 of the Staff Regulations cannot begin to run, in respect of various decisions taken under the contractual system in force prior to the Regulations, before those Regulations were applied, that is to say, until integration has been decided upon under Article 102. Time, in this case, has thus not begun to run. Furthermore, it is undoubtedly useless to decide upon this point, if it is admitted, as I believe, that the conclusions of the application cannot be admitted in respect of the substance of the case.

2.As to the substance of the case, the whole argument of the applicant consists in claiming that, at least from 1 January 1959, she in fact carried out duties of a nature and of an importance superior to those which correspond to the category and the grade which were given to her in the service.

We are here on contractual ground, where the Court has wide powers of discretion. It is true that the contract remains the legal basis of the relationship between the parties. In this respect it is certainly the contract of 28 June to 1 July 1958, (of the so-called Brussels type), corresponding by analogy to a post in Grade C of these ECSC scale and by which the applicant entered the service of the Euratom Commission, which is the basis of this relationship. Later, the position of the person concerned was improved and, in particular, she was classified as from 1 January 1960, still by analogy with the ECSC scale, in Grade 9, Step 3, of Category B. In my opinion, in order to justify the existence of a breach of contract of such a nature as to require compensation, it is necessary to establish that the actual duties given to the applicant relate to a higher category. It does not seem that such is the case: according to the detailed explanations given by the defendant, Mrs Minot was quite quickly given drafting duties, and not only administrative duties, which justified her classification in Category B; on the other hand, these were not ‘planning’ duties relevant to Category A.

To tell the truth, a doubt arises from the fact that, in the ‘provisional’ establishment report of 17 April 1962, there appears the remark, written and signed by the Director-General, that ‘these are Category A duties’, an argument used by the applicant and of which the Commission refrained from making any explanation. It appears difficult to me, nevertheless, to set this simple remark, which is not explained, against the details furnished in the statements of the Commission in respect of the real nature of the duties of the applicant. It is probable that the person concerned, in carrying out the tasks which were entrusted to her, showed evidence of ability superior to that strictly required of servants in Category B, which could have allowed certain prospects of subsequent promotion to a post in Category A. But it is not actually established that the applicant in fact carried out duties related by their nature to Category A, whilst, as you know, she possessed none of the qualifications normally required for promotion to a post in that grade.

As to classification in grades within these Categories, I consider that, during the contractual period before the Staff Regulations, and in the absence of any precise ‘job description’, such a classification could only have been made by the administration.

B — Conclusions concerning refusal of integration

Three grounds of complaint are alleged, one concerning the irregularity of the procedure, another relating to the reasons, and a third dealing with the length of notice.

1.In respect of the procedure, the applicant cites the delay with which the Board presented its unfavourable report, that is, on 9 July 1963, having decided on the previous 4 July to refer the matter to the Euratom Commission, whilst the establishment report drawn up on 17 April 1962 was very favourable to her and the Establishment Board itself had expressed a favourable opinion on 25 July, 1962 on the basis of that report.

To this one must reply that the first opinion could not bind the appointing authority which, in fact, can only be bound by an unfavourable opinion expressed by the Establishment Board. There was thus no vested right as a result of the first opinion, while the appointing authority had not yet given a decision. As to the delay, it is the fault, as you know, of the person concerned herself who was never in a position to produce the documents which had been requested of her to complete her file.

2.In respect of the reasons, I need only quote:

1.That the material inaccuracy of the facts put forward by the Commission is not established (it is, on the contrary, alas, their material accuracy which is established);

2.that these facts are of such a nature as legally to justify the opinion of the Commission in respect of refusal to integrate: that is only too clear.

3.In respect of the period of notice, there has been a proper application, in the present case as in other cases with which you have already dealt or will have to deal, of the contract (one month's notice) and of Article 102 of the Staff Regulations (2 months' salary). The applicant cannot claim further compensation, since the decision against integration is not annulled.

I am of the opinion :

—that the application should be dismissed; and

—that the applicant should bear the costs, with the exception of those incurred by the Commission of the European Atomic Energy Community, which should be borne by that institution in accordance with Article 70 of the Rules of Procedure.

* * *

(*1) Translated from the French.