OPINION OF MR ADVOCATE-GENERAL M. LAGRANGE

DELIVERED ON 17 OCTOBER 1963 (*1)

Mr President,

Members of the Court,

I — Facts and Admissibility

The facts are sufficiently familiar to you from the report of the Judge-Rapporteur and I hope that thanks to the excellent oral arguments which you heard last week, they are still fresh in your memory, so that I need not go over them again.

Let me remind you simply that Mr Leroy, a member of the temporary staff of the High Authority since 1 July 1959, whose one-year contract had been renewed twice and finally expired on 30 June 1962, asks you to annul:

(1)A decision by the President of the High Authority notified in a letter of 5 September 1962 from the Director-General of Administration and Finance, rejecting his request for integration under Article 93 of the Staff Regulations of Officials of the Community (Application 35/62);

(2)A decision of the President of the High Authority of 11 October 1962 on the same question.

In addition he claims compensation for the loss suffered as a result of the unlawful nature of the contested decisions. Thus the subject of both applications is the same and they have been joined, but the High Authority has raised a plea of inadmissibility against the first application, which must first be examined although it is important only from the point of view of costs.

The defendant maintains that the letter of 5 September 1962 is not a decision, but merely the notification of a decision of the President of the High Authority which was not formally taken until the following 11 October.

The dispatch of this letter to the applicant was in his own interest, first, because it was necessary to inform him without delay of the decision not to integrate him, which, although not then taken, was inevitable in view of the unfavourable recommendation made by the Board, and, secondly, in order to regulate his position from 1 July 1962 onwards, the date at which his contract came to an end.

It may be that the dispatch of the letter before the decision had actually been taken was in the interests of the applicant, but it is nevertheless clear from the terms in which the letter was drafted ‘I regret to have to inform you that the President has decided (a) not to integrate you in accordance with Article 93 of the Staff Regulations’ … that the applicant was reasonably entitled to conclude that the President of the High Authority, the competent authority in this case, had already taken a decision and that the purpose of the letter was to inform the applicant of this, since it is after all unusual to notify a decision which has not yet been taken! It must not be forgotten that notification begins the period in which an action may be brought and the fear of being barred is always in the mind of a prudent litigant, or at least of his counsel.

In this respect, the situation seems to me indistinguishable from that which led to your judgment in case 15/59, Société metallurgique de Knutange, 12 February 1960, (Rec. 1960, p. 24 of the French edition), in which the Court declared that in such circumstances ‘the application cannot be declared inadmissible on the grounds indicated’, and that, although the substance of the action had been dismissed, costs should be paid by the High Authority since the applicant had been induced to bring two applications instead of one and the costs of the earlier action had therefore been incurred unreasonably. I suggest that the same solution be adopted here and that the defendant be ordered to pay the costs of Application 35/62 whatever may be the decision on the substance of the case.

II — The substance of the case

I shall examine the four submissions put forward:

The first is based on the irregularity of the integration procedure: the applicant alleges that insufficient regard was paid to the necessity, inherent in such procedure, for allowing the candidate to be heard. First, the applicant was not allowed a meeting before the Board with his immediate superior whose unfavourable report constituted the crucial element in the Board's unfavourable recommendation; secondly, he was not shown the minutes of the hearing of the Director-General of Economics and Energy.

This submission must be examined with particular care since this is the first time that you have been required to hear an application concerning a refusal to allow integration under Article 93 of the Staff Regulations.

The Staff Regulations themselves contain no provisions concerning the procedure to be followed by the Board. As you know, they merely provide that recommendations of the Board in favour of integration are not binding on the appointing authority although this authority cannot override an unfavourable recommendation; this rule obviously has the effect of giving the Board the decisive role in such cases and obliges it to require the guarantees normally necessary for a decision of this sort. In the absence of written rules what guarantees are in fact required? This is the crucial question.

To answer this we must look at the subject of the decision to be taken. As the applicant himself very pertinently explained in his statements of case, this is a recruitment procedure intended primarily to enable the administration to create a corps of permanent officials qualified to perform the duties which are to be allotted to them. However, in so far as we are concerned with servants who are already in the service and who fulfil certain requirements, it is reasonable to admit that they have a certain ‘entitlement’ (to quote the term used in the Kergall judgment which is here perfectly appropriate although attempts have sometimes been made to twist its meaning) to be established in posts which they hold already or in other posts in the same administration. Hence the need to surround the decision with guarantees intended to prevent arbitrary action.

The situation is therefore very different from that which arises in a disciplinary case (or, a fortiori, in a criminal case); it is not a question of enabling an official whose position is covered by Staff Regulations to defend himself against an accusation of misconduct which is likely to lead to the deprivation of all the rights which are granted to him by those Staff Regulations. It is merely a question of considering his previous services and of assessing his ability to perform permanently the duties corresponding to the grade in which he is likely to be established. It is a necessarily subjective assessment which by its very nature comes within the exercise of the discretionary power. However, since the decision to be taken is so important and since a certain consistency is desirable in the integration process as a whole, a decision made by the competent authority on the recommendation of the heads of departments concerned is not sufficient; responsibility for assessing the official's abilities is entrusted to a Board whose very membership should offer the necessary guarantees both to the administration and to the candidates.

This being so I consider that it would be excessive in such cases to allow the validity of a refusal to integrate an official to depend upon the observance of a wholly contentious procedure as it would in legal or disciplinary proceedings. In my opinion it is necessary and sufficient to make sure that the Board, before taking an unfavourable decision, has considered the whole file and has, where necessary, requested such additional information from the heads of department concerned, from the official himself or from any other source which it deems useful as to enable it to make an informed assessment.

This procedure appears to me without question to have been followed in this case. The Board did not limit itself to adopting the wholly unfavourable and clearly reasoned assessment made by the applicant's immediate head of department. It heard in addition the Director-General and the applicant himself, who was informed of the observations made by the Director-General and asked to comment on them. When the Board made its decision it was in possession of all the necessary evidence. It considered that it would be unnecessary for the applicant to meet the Director-General, there being little to add to what each of them had already said; it was fully entitled to adopt such an attitude in a procedure of this kind, which, it must be repeated, has no connection with criminal proceedings. Moreover the following passage is to be found in the minutes of the meeting of the Board on 20 June 1962: ‘as regards his request to meet his immediate superiors, Mr Leroy states that he is satisfied with the information given orally by Mr Signorini’, the chairman of the Board.

As for the minutes of the examination of the Director-General the applicant may not have seen them before the contested decision was taken but, as I have just said, the Board gave him an oral report of the hearing and asked him for his comments. It is true that this report (which according to the High Authority, was fuller than that which appeared in the minutes) may in fact have omitted certain points; but had this been so, the applicant would not have failed to draw attention to it in his application, since as the minutes appear in his personal file and were produced by the High Authority (document no 48/1), he was aware of them at the time when he brought the application. Therefore, in my opinion the first submission, based on the irregularity of the procedure before the Establishment Board, must be rejected.

The second submission is based on the insufficient reasons given for the contested decision, or more precisely for the Board's recommendation which, being unfavourable, constitutes the actual decision since it is binding on the appointing authority.

Referring to your judgment in Lachmüller and Others (15 July 1960) on the need to give reasons for a decision, the applicant contends that the reasons for the Board's recommendation are too general to allow him to comment on them adequately. Furthermore, even if the Board had intended to adopt the reasons given in the report of the applicant's immediate head of department, they would still be insufficient as this report is vague and much too subjective.

I should like to remind you of the reasons given by the Board as they emerge from the minutes of its meeting on 2 July 1962 and from a memorandum sent on 16 July 1962 to the President of the High Authority. In the first of the documents we are told that ‘Mr Leroy does not discharge satisfactorily the duties entrusted to him ad interim’, and in the second that the ‘Establishment Board has decided unanimously that it must issue an unfavourable recommendation.

This recommendation has been issued on the basis of the establishment report drawn up by, the candidate's superior officer and of the observations made by the candidate on the report, after studying his file and hearing both Mr Leroy and his superiors’. If this recommendation is added to the documents to which it refers, in particular to the ‘detailed assessment’ made in the superior's report as to the applicant's shortcomings as regards his initiative, energy, zeal, sense of order, method and accuracy and his punctuality, then it seems to me indisputable that the reasons given in the recommendation are sufficient. The applicant complains of the subjective nature of these various assessments, but how could it be otherwise when it is necessary to assess his entire behaviour from all the points of view from which an official's abilities can possibly be judged?

The third submission based on the inaccuracy of the facts underlying the Board's assessment is closely connected with the previous one. The applicant challenges the report on the three points on which his behaviour has been described as ‘inadequate’. He claims that it is untrue:

(i)that he never made specific proposals for undertaking further projects;

(ii)that generally he did not succeed in carrying out alone the tasks entrusted to him;

(iii)that he was late in finishing his work.

Frankly, only an elaborate investigation would be capable of checking the accuracy of the criticisms made in the report under these three headings. The applicant has in fact asked for such an investigation but, like the High Authority, I believe that to do this would be to substitute the Court's judgment for that of the responsible authority. This would constitute a considerable and, I submit, an excessive extension of the principle laid down in the Mirossevich case in which the applicant was successful for the simple reason that she had not been put in a position to demonstrate her abilities, little or no work having been given to her during her probationary period. Here, on the contrary, the applicant has had every opportunity of showing his abilities. All that you are able to declare is that the inaccuracy of the facts on which the Board's recommendation is based has not been proved.

There remains the fourth submission based on misuse of powers, which learned counsel for the applicant wished to stress during the oral procedure.

Although the submission of misuse of powers is in essence subjective, the proof of its existence must be objective. In this case, it is alleged to have resulted from the personal animosity shown to the applicant by his superior, the author of the report submitted to the Board.

Such an allegation is always difficult to verify. That a real incompatibility, no doubt due to difference of background and character, existed between the two men is certain; such differences exist in human relationships between a superior and his subordinate. But it still remains to be proved that the real cause of the decision was personal authority resulting from this incompatibility and not behaviour by the applicant which, considered objectively, justifies the unfavourable recommendation. No such proof has been brought.

No doubt it is true that the applicant's services were considered satisfactory at the beginning of his employment. It is equally true that the position began to deteriorate when the applicant put himself forward as a candidate for post No 31, placed a step above post No 30, which he then held (the latter post had not been thrown open to competition, for reasons which have never been explained). In such a situation it was quite natural that the applicant should put himself forward as a candidate for post No 31, since his own had never been opened to competition and he had held it on a temporary basis for more than a year which was contrary to the regulations in force. You know that in fact it was a Dutch official, originally classed beneath the applicant, who was appointed to post No 31. Finally, after rejection of the applicant, post No 30 was opened to competition on 18 April 1963. Here beyond doubt is a series of facts which suggest that the administration was seeking by different means to avoid the establishment of Mr Leroy.

However, only the refusal to integrate the applicant under Article 93 of the Staff Regulations is being contested before the Court. As regards this, it is only necessary to establish whether facts on which the Board based its unfavourable recommendation are the real reason for the decision. There is nothing to suggest that this is not so. Indeed, it appears that the various circumstances which I have just outlined attracted the attention of the Board which, as a result, undertook a particularly thorough examination of the situation — deciding, for example, to hear the Director-General and then the applicant himself instead of merely adopting the clearly unfavourable report of the applicant's immediate superior. It does appear, therefore, that the Board decided not to integrate the applicant only after it had made quite sure that he was not capable of performing the duties which were entrusted to him, following the reorganization of his department.

To sum up, there appears to be no evidence of misuse of powers.

I am therefore of the opinion that:

—both applications should be dismissed; and

—that the costs of Application 35/62 should be borne by the High Authority.

* * *

(*1) Translated from the French.