OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 17 MAY 1967 (*1)

Summary

Introduction (Facts, Conclusions)

Legal Consideration

A — Application for annulment

I — Admissibility

II — The substance of the application

(a) Composition of the Establishment Board

(b) The necessary verification of the facts

(aa) The allegation that certain marginal observations made by the applicant's superior had been antedated

(bb) The need to complete the file

(cc) The hearing of the former President of the Commission

(a) Statement made by the Vice-President, Mr Medi

(b) The analytical assessments criticized by the applicant

(aa) The health and welfare statistics

(bb) The detailed list of posts of the Directorate for Health and Safety

(cc) The compilation of the table of legislation concerning protection from nuclear radiation

(dd) The technical card-index on occupational diseases

3. Summary

B — Claims for damages

C — Conclusion

Mr President,

Members of the Court,

The applicant in the action before us today is already well known to the Court, following an earlier case which has already been considered. I need, therefore, give only a brief resume of the facts involved.

In Case 110/63 we learnt that from 18 August 1958 the applicant was employed under contract in Grade A3, Step 3, in the service of the Commission of Euratom and that in his capacity of Head of Division in the Directorate for Health and Safety he was responsible for social problems and documentation. We also know that the first integration procedure, under Article 102 of the Staff Regulations concerning the integration of officials, ended with an unfavourable opinion of the Establishment Board on 19 February 1963. On the basis of this report the Commission of Euratom dismissed the applicant from the service of the Community by a decision of 5 September 1963. The applicant was, however, successful in his appeal to the Court against this decision; by judgment of 8 July 1965 the decision in question was annulled and the case referred back to the defendant in order that tie integration procedure be reopened. The Chamber based its decision principally on the fact that Mr Medi, the Vice-president of the Commission of Euratom had not been heard in relation to the applicant although he had written the following observation on the integration report: ‘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’.

As a result of this judgment, the applicant continued in the employment of the Commission of Euratom. He no longer performed the same duties as, in the meantime, his post had been abolished and he was therefore assigned to the Directorate General for Administration and Personnel. In obedience to the order of the Court the Commisson of Euratom during the autumn of 1965 reopened the integration procedure as regards the applicant. The new proceedings also took place before the Establishment Board, the composition of which remained the same, in the course of four meetings (of 3, 5 and 15 November and 1 December 1965). A memorandum of 1 December 1965 shows the Board's final assessment of the applicant to have remained unchanged; even after hearing the Vice-president of the Commission of Euratom and an expert appointed to consider a particular piece of the applicant's work, after considering a large number of documents which he produced, and after fully hearing the applicant himself, the Establishment Board adhered to its opinion that he was unfitted to perform the duties assigned to him. The Commission again adopted a decision to terminate the applicant's employment after the expiry of one month from the adoption of the decision. This decision, which was taken on 16 December 1965, was notified to the applicant on 21 December 1965 and forms the subject-matter of the present application. In this application the principal conclusions are for:

—the annulment of the decision of 16 December 1965 terminating the applicant's service;

—the payment of damages by the Commission in respect of certain wrongful acts or omissions arising out of the integration procedure and certain measures taken against the applicant;

—in the alternative: the payment of damages by the Commission in respect of its failure to give the applicant the notice appropriate to his ranks.

In order to substantiate these conclusions, the applicant puts forward certain complaints, which may be summarized as follows: infringement of an essential procedural requirement, absence of a statement of reasons and misuse of powers. However, in making my analysis of the facts, I shall not follow this classification, as to do so would oblige me to repeat myself. I shall instead refer to the various grounds for the application in a manner which will take into better account the interaction between certain facts.

Let me therefore begin my consideration of the case by the application for annulment and consider under a second head whether the claims for damages are justified.

Legal consideration

A — Application for annulment

I — Admissibility

As no objection has been made to the admissibility of the application and as no grounds exist for the Court to raise the matter of its own motion, I may immediately begin a consideration of the substance.

II — The substance of the application

The Court has repeatedly declared that it cannot review the content of value judgments made by an Establishment Board and that any such review must be primarily directed to seeing that the Board has observed the rules of procedure. (2) On these grounds the applicant maintains, first, that the second integration procedure shows serious defects concerning the composition of the Establishment Board and the necessary verification of the facts.

(a) Composition of the Establishment Board

The applicant thus criticizes the fact that the second integration procedure took place before an Establishment Board the composition of which was identical with that involved in the original procedure. For the second decision to be objective and free of all prejudice it would have been necessary to set up a new Board which would not have had to consider whether to repudiate its earlier decision.

Although it is clear that this argument cannot simply be dismissed out of hand, it is nevertheless true that in this instance it cannot be regarded as conclusive.

On this point it is not a decisive consideration that the applicant did not object to the composition of the Board during the integration procedure and that the judgment of the Court of 8 July 1965, which criticized the first report, merely ordered the matter to be referred back to the Board, without requiring its composition to be changed.

On the other hand, the nature of the integration procedure is of decisive importance. As the Chamber states in the abovementioned judgment, the assessment of the suitability of officials for certain posts in accordance with Article 102 of the Staff Regulations, does not constitute criminal or disciplinary proceedings. We are therefore not obliged to observe the rules applying to criminal proceedings, quite apart from the fact that they do not necessarily prevent the one and same body from being called upon a second time to assess the same facts after reference back from a higher court.

On the contrary, properly understood the integration procedure constitutes a procedure to examine the suitability of an official for a specific post. The Establishment Board must assess the subjective value-judgments made by superior officers on the abilities of their subordinates without any uniform criteria of application to act as a guarantee. Unequal treatment of officials can only be avoided under this procedure if the final assessment is entrusted to a single Establishment Board, which has been able in practice to establish uniform criteria of assessment and which is thus, if necessary, in a position to balance the various assessments. This result could not be assured by an ad hoc Board set up to deal with a specific case which would have no comprehensive view of the cases considered and which would be unable to acquire from the previous Establishment Board a reliable account of the experience which that Board had gained in dealing with a large number of cases.

For this reason the Commission of Euratom could not be criticized for acting in accordance with national procedures in considering the suitability of candidates and for failing to set up a new Establishment Board after the annulment of the first assessment of the applicant. Perhaps a different attitude should have been adopted, toy putting the principle of the impartiality of the Establishment Board above its role of ensuring equal treatment to which I referred above, if there was evidence that the Board might have been influenced by prejudices or might have acted in an arbitrary manner in conducting the first integration procedure concerning the applicant. This was not the case, as we know that at that period the Court merely criticized the Board for having failed to avail itself of all possible means of investigation and for thus giving rise to a procedural defect. For this reason I must dismiss the applicant's first complaint as unfounded.

(b) Was the Establishment Board's verification of the facts too superficial?

Secondly, the applicant maintains from various angles that the Establishment Board had not conducted all the measures of inquiry which he had proposed and which must be regarded as necessary. He refers here to the question whether marginal observations written by his superior on pieces of work which he had done had been antedated; he also points to the needs to complete his file by including in it such documents as were not simply rough drafts and, finally, he refers to the need to hear the former President of the Commission of Euratom on the applicant's activities on the Staff Committee.

(aa) The allegation that certain marginal observations made by the applicant's superior had been antedated

As regards the first point in this group of complaints, the minutes of the meeting of the Establishment Board of 5 November 1965 show the applicant to have expressed doubts regarding the dates on which his superior had written observations in the margin of certain documents which were submitted by that official during the first integration procedure and communicated to the applicant on 7 February 1963. These doubts are based on ‘a typographical similarity’ to other marginal notes which appear to date from different periods. The applicant's superior was heard on this point on 15 November 1965. To the applicant's statements he replied that the observations were made in black ink when the applicant handed him the documents, whilst the observations in red pencil (on a total of 17 documents) had been made in 1962, that is, when the documents had to be assembled for consideration by the Establishment Board. It is, in fact, clear that the observations written in red in the margin of a total of three documents date from the years 1958 and 1959.

The applicant concluded that, at least as regards the express statements made by his superior, it was clear that the documents were antedated. As a result, no credibility could be attached to the evidence of this official, which was regarded as very important by the Establishment Board, and it could no longer be accepted that the applicant's work had been criticized by his superior well before the integration procedure began.

In these circumstances the question arises whether, as the applicant claims, these facts should have obliged the Establishment Board to appoint an expert to determine conclusively the dates on which the various marginal observations appeared on the applicant's work. I share the view of the Commission that the reply to this question must be in the negative.

My conclusion is based on the following considerations. The Commission considers that it cannot be accepted that in making his statements of 15 November 1965 the applicant's superior admitted that he had antedated certain marginal observations. Such an admission would have been surprising, in view of the fact that this official was entitled to examine the documents in question before making his statement (cf. minutes of 3 November 1965) and in fact did so. On the contrary, the purpose of hearing this official was to obtain clarification about the dates of certain marginal observations which are not dated. The statement made by the applicant's superior had concerned this point alone and had been interpreted in this way by the Establishment Board. The applicant was not only informed of this orally during the final meeting of 1 December 1965, but also by letter of 14 December 1965 from the President of the Commission. Consequently the only valid ground for ordering an expert assessment could be a certain outward similarity of the marginal notes in question, which gave rise to doubts in the applicant's mind as to the date on which they appeared. However, the Establishment Board cannot be criticized for failing to consider these vague conjectures to be sufficient, particularly as it did not simply accept the assessment contained in these marginal observations without further consideration, but, as we have learnt in the course of the proceedings, it was careful to check their validity by referring to the documents themselves.

For this reason, therefore, it cannot be maintained that the facts are insufficiently verified.

(bb) The need to complete the file

It might be thought that the further complaint that during the second procedure the Establishment Board had come to its decision on the basis of an incomplete file to which further documents should have been added, might be immediately dismissed as inadmissible. I recall that, during the first integration procedure, the applicant had already maintained that the Board had not allowed him the necessary time in which to produce all the documents with which to demonstrate his abilities. On 12 February 1963 the applicant first produced three documents ‘in order to complete’ his file and then on 8 May 1963, that is, after the Establishment Board had drawn up its report (issued on 19 February 1963) he produced a further 85 documents consisting in all of 450 pages. In spite of this the Chamber did not criticize the fact that the integration procedure was not re-opened but declared that it was for the applicant to show greater initiative from the time when he was informed by the Board, on 8 February 1963, that he was entitled to produce all documents which he considered would help his case. If this was acceptable as regards the first integration procedure, it will be difficult to defend a different view as regards the new procedure.

However, even apart from the objections of principle to which I have just referred, the applicant's chances of success cannot be rated highly.

First, I do not clearly understand the applicant's criticism that the Establishment Board confined itself to an assessment of the documents which he produced on 8 May 1963, that is to say assessed the preliminary drafts of his work and not the final version of them. If he had in mind the final versions prepared with the collaboration of other officials, these would have to be set aside on the grounds that the several contributions of the various officials towards this work cannot be determined, or can only be determined with difficulty; as a result a correct assessment of his abilities for the purposes laid down in Article 102 cannot be ensured. Secondly, I do not consider the applicant to have emphasized during the integration procedure that, apart from preliminary drafts produced, there existed working documents at a more advanced stage for which he was alone responsible. The applicant claims that with the aid of these documents the Board could have formed a more favourable opinion of his abilities. Unless I am mistaken this observation was only made after the conclusion of the procedure, in a letter addressed to the President of the Board on 15 December 1965 and concerns only one document produced by the applicant. His claim is even less comprehensible in that the applicant was not criticized only for lack of initiative during the first integration procedure (a criticism which could have been refuted by the argument that certain pieces of work had been begun). We are aware that the Establishment Board criticized first the applicant's inability to carry out certain pieces of work in depth, that is to say the imperfection of the work done. Finally it can be held against the applicant that the Board did not form its opinion solely on the basis of the documents which he had submitted to it, but also and most importantly on a consideration of working documents of approximately 150 pages which, according to the Board's uncontested statements, constituted the final version of texts prepared by the applicant.

Consequently, the complaint that the Establishment Board based its report only on the preliminary drafts of the applicant's work is unjustified.

As regards the applicant's further claim that the Establishment Board had a duty to examine other pieces of his work and in particular certain information bulletins, and disregarding the fact that no such suggestion was made during the course of the integration procedure, the Board has quite definitely indicated that the bulletins were prepared in collaboration with another official and that they could therefore not be used to form a clear assessment of his abilities. I must also say in conclusion that I consider it sufficient for the Board to have examined some 600 pages of working documents in the course of the integration procedure, as in the nature of things it cannot be expected to examine an official's entire output.

Consequently, on the basis of the arguments so far put forward, it cannot be maintained that in the course of the integration procedure the Board failed in its duty to make a full investigation. Later, when I come to consider the validity of the reasons advanced by the Board, I shall refer again to certain specific questions concerning the applicant's file.

(cc) Should the Establishment Board have heard the former President of the Commission?

Still in the context of the complaint that the Board did not sufficiently verify the facts, the applicant claims that the Establishment Board wrongly rejected his proposal that the former President of the Commission should be heard. The Establishment Board was thus unable to obtain a clear picture of the volume and importance of the work which the applicant performed over a long period within the Staff Committee.

This complaint was drawn up following an observation which is, it is true, of no importance to the decision itself, contained in the judgment of 8 July 1965, according to which the Establishment Board was ‘bound to examine the extent to which his activity could, without any fault on his part, have had an unfavourable influence not only on the quantity but also on the quality of the work’ involved in his post as provided for in the budget. It is, in fact, conceivable that the tasks carried out by an official for the Staff Committee prevent his performing his official duties to the point where the latter suffer to a considerable extent. The Chamber considered that his position should not be prejudiced by this fact.

I feel, however, that in the present case the Board took this requirement into sufficient account.

First, the Establishment Board cannot be criticized for its statement that it is not required to give a value judgment on the services rendered within the Staff Committee, but only on the ability of the official concerned to perform the duties assigned to him. Even though the Staff Regulations (Annex II, third paragraph of Article 1) lay down the principle that the duties undertaken by members of the Staff Committee shall be deemed to be part of their normal service in their institution, and even if this principle is applied to the period before the entry into force of the Staff Regulations, it still does not mean that the value of the services rendered in the context of staff representation allows conclusions to be drawn on the ability of an official to perform his official duties.

The Board could therefore only establish the volume of the applicant's activities for the Staff Committee and find to what extent these activities hindered the performance of his own official duties. That this was in fact done is shown not only by the statement made by the applicant's superior at the hearing on 3 November 1965, but also by the express statements contained in the opinion of the Establishment Board of 1 December 1965, which is based on detailed declarations made by the applicant himself. He is nowhere criticized for having neglected his budgetary post for the duties which he performed on the Staff Committee; on the contrary, formal note is taken of the fact that, in spite of his additional responsibilities, he was able to devote a considerable part of his time to his official duties as is shown in particular by the very numerous documents considered during the integration procedure. Moreover, the applicant himself has never claimed that because of his dual role he was forced to work against time on his official duties and could therefore only perform them superficially. He emphasizes that until the end of 1961 his superior had supported him fully in the duties which he assumed on the Staff Committee and that he always found it possible to finish his work within the time-limits laid down (cf. minutes of 8 February 1963, p. 9).

In the light of the above, I consider that it was unnecessary in the integration procedure to go in greater detail into the question of how much time the applicant devoted to his activities on the Staff Committee, the less so as the applicant himself emphasized that it was extremely difficult for him to determine how he divided his time between the Staff Committee and his official duties. In particular, in the absence of specific statements from the applicant, the Establishment Board was able to forego hearing the former President of the Commission, as even had his contacts with the applicant been frequent, as that party claims, it is not clear how he would have been able to provide a closer insight into the applicant's activities within the Staff Committee than the Director-General for Administration had, because it was he who was also Chairman of the Establishment Board, or than the Board obtained from hearing the President's former Chief Executive Assistant during the first integration procedure.

Therefore, on this point also, it is impossible to see in what way the Board failed in its duty to make a full investigation.

The applicant criticizes certain points in the assessment which the Establishment Board made of his abilities: he refers to the insufficiency and inaccuracy of the grounds for the decision. However, it will be a priori very difficult to deal with this complaint, as the Court clearly could not substitute its own value-judgment for that of the Establishment Board. We must therefore examine this question carefully and consider whether there is cogent evidence on points of detail in the assessment which seriously weaken it as a whole.

(a) Statement made by the Vice-President Mr Medi

We must therefore consider first the statement made by the Vice-President of the Commission in the course of the second integration procedure, after the Court indicated that the failure to hear him was a wrongful omission during the first procedure although ‘from the remarks which he wrote in the margin of the establishment report it may be supposed that he was in a position to form a first-hand opinion of the abilities of the applicant and that he even regarded his establishment as virtually certain’. The following is the text of this observation: ‘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’. We now know just how this observation must be interpreted. The essential point of the statement made by the Vice-President on 3 November 1965 is that he lacked sufficient knowledge of the applicant to make a comprehensive assessment of him. To the extent to which he nevertheless attempted to make this assessment, he based it on facts known to him when the applicant was appointed which concerned his former activities in social affairs and as such were only of value as regards part of his duties at the Commission. Moreover, the Vice-President had the general impression that the assessment of the applicant was (particularly severe in relation to that of other officials. He concludes that he would himself have increased the mark concerning the applicant's initiative and responsibility by one point, while for the rest he would not have made any assessment. Finally, it must be realized that the phrase in his statement that ‘after integration it will be advisable to reorganize the duties of the post’ was not to be understood to mean that he regarded the integration of the applicant as virtually certain. In fact, he was making a general reference to the conclusion of the integration procedure and to the resulting need to reorganize the duties of the post in question, without making special reference to the applicant himself.

Thus, as regards the soundness of the assessment of the applicant, Mr Medi's statement can provide us with no decisive information.

(b) The analytical assessments criticized by the applicant

Let me say at once that the applicant's attempts to show up defects in certain analytical assessments contained in the opinion of the Establishment Board have been no more successful. These defects arose inter alia from an inadequate investigation on the part of the Commission, which leads me to reconsider in part a submission which I have already examined.

On this the following preliminary observation should be made: the points criticized by the applicant do not particularly concern work which unquestionably formed the basis of the Establishment Board's unfavourable opinion and is the mainstay of its general assessment. On the contrary, they concern work which the applicant himself put forward for consideration in order to demonstrate his abilities; in a certain way therefore, submission of this work was an attempt to bring contrary evidence of his abilities, in order to discredit the Establishment Board's unfavourable opinion, which was based on other factors. This is shown by a reading of the very detailed opinion and by a comparison of the various subjects considered during the two integration procedures (cf. in particular the minutes of 18 December 1962). I consider this fact to be important as it immediately shows the weakness of the applicant's arguments: even supposing that he succeeded in proving his argument to be correct as regards these particular questions, this fact need not necessarily have invalidated the Establishment Board's opinion which is based on other factors.

In spite of this, I shall not omit a detailed consideration of the applicant's arguments concerning the various points in the opinion.

(aa) The health and welfare statistics

The applicant criticizes the observations made by the Establishment Board on his attempts to draw up health and welfare statistics, on the ground that certain necessary documents had not been consulted before the opinion was prepared: these documents showed that the lack of progress in this field should not have been attributed to him, but rather to the national authorities concerned. He is, in fact, referring to a letter from the Statistical Department of the Communities addressed to the applicant on 26 January 1961, and a memorandum from the applicant addressed to the Statistical Department on 26 November 1961.

However, the Board stated during the procedure that it had been unable to find the documents in question either in the archives of the Division to which the applicant formerly belonged, or in the central archives. There were no further searches (for example, in the Statistical Department of the Communities) as it appeared that, even without these statistics, the Board had sufficient facts available on which to make its assessment. Moreover, it is clear from the opinion of the Establishment Board that the slow progress in the work undertaken in the field of statistics was not interpreted to the detriment of the applicant.

If the applicant's attempts to justify himself before the Establishment Board can be regarded as having been successful and if the results of his work in the field of statistics did not influence the Establishment Board's general assessment, he cannot make any valid complaint on this point.

(bb) The detailed list of posts of the Directorate for Health and Safety

As regards the applicant's reference to the assessment of a detailed list of posts which he prepared and the unfavourable nature thereof which he claims to be explained solely by the fact that the Establishment Board had once more proceeded on the basis of incomplete documents, the objection must be made that the detailed list of posts in question contains no indication of the existence of a schedule giving details of staff required as claimed by the applicant and that no such schedule could be found in the archives of the Commission. Moreover, we find that the Establishment Board's decision did not so much concern the incomplete nature of the applicant's work as the fact that the work did not meet the necessary standards.