OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 12 JUNE 1964 (*1)

Summary

Introduction (facts, conclusions)

Legal consideration

I — Heads 1-3 of the conclusions

(a) First head of the conclusions

(b) Third head of the conclusions

2. The substance of the case

(a) Infringement of Article 110 of the Staff Regulations

(b) Infringement of Article 5 of the Staff Regulations

(c) Method of compiling reports

(d) Composition of the Establishment Board

(e) Procedure of the Establishment Board

(f) Other submissions

II — Claim for damages

III — Summary and conclusion

Mr President,

Members of the Court,

The present case, like others, concerns the long efforts made by the Commission of the EEC after the entry into force of the Staff Regulations to decide which of its servants could be integrated.

In the case of Mr Rémy Huber who has been in the service of the Commission since 1 October 1958, under a ‘Brussels contract’, this integration procedure gave a negative result. The Establishment Board of the Commission issued an unfavourable opinion on him on 18 July 1962. His contract was consequently terminated by the Director-General of Administration by letter of 18 June 1963, in accordance with a decision of the Committee of Chairmen, which was competent in its capacity as the appointing authority.

As a result, this application was made, in the conclusions of which it was claimed that the Court should:

1.annul the integration procedure and the Establishment Board's opinion on the applicant:

2.annul the termination of the contract:

3.rule that the Board must reapply the integration procedure to the applicant:

4.order the Community or, alternatively, the Commission of the EEC to pay damages.

Legal consideration

The examination of this case will be devoted in the first place to heads 1 to 3 of the conclusions as a whole because they are all directed to restoring the applicant to the position he had prior to the commencement of the integration procedure. I shall then deal with head 4: the claim for damages,

As regards admissibility, which the Commission disputes in part (heads 1 and 3 of the conclusions), I can be relatively brief.

The essence of the first head is the annulment of the opinion of the Establishment Board. According to the Commission, this cannot be claimed since the opinion only constitutes a preparatory act and not a decision.

I cannot accept this argument. It is known that if the final opinion of the Establishment Board is unfavourable, the appointing authority is legally prevented from establishing the official in question in the grade and at the step which he had before the benefits under the Staff Regulations were granted. An unfavourable opinion therefore clearly has legal effects and these are such that they constitute an act adversely affecting the person concerned, within the meaning of Article 91 of the Staff Regulations, against whose legality an appeal may be made.

On the other hand the view of the Commission that the annulment of a procedure cannot be contemplated appears to be correct because a procedure does not constitute an act within the meaning of Article 91 of the Staff Regulations. But that does not exclude checking the legality of the integration procedure and, if need be, concluding that the act arising from the procedure is illegal. This is the sense in which we must understand the first head of the conclusions and consequently the Court should refrain from dismissing as inadmissible, in the operative part of the judgment, the claim for the annulment of the integration procedure.

On the third head of the conclusions, the Commission is of the opinion that the Court is prohibited from finding that the integration procedure should be re-applied to the applicant.

On this point too I cannot share the opinion of the Commission. In my opinion, the servants who, when the Staff Regulations came into force, occupied a permanent post with one of the institutions of the Communities have a right to have the integration procedure applied to them. If it appears in the course of the legal examination that the integration procedure was affected by irregularities which might influence the content of the Establishment Board's opinion, the legal consequence is that the procedure must of necessity be recommenced. In my opinion such a declaration can be made in the operative part of the judgment unless the Court does not have at its disposal all the criteria to make such a finding, but that does not concern the admissibility of the submission, but only at the most whether it is well-founded.

2. The merits of heads 1 to 3 of the conclusions

To establish the heads 1 to 3 of his conclusions, the applicant has submitted a series of arguments which I shall now consider.

It is proposed to examine first of all the purely legal arguments which are already partly familiar from other proceedings.

According to the applicant, the Commission of the EEC infringed Article 110 of the Staff Regulations in so far as it failed to adopt measures for giving effect to the integration provisions in Article 102 or at least in failing to do so in accordance with the procedure under Article 110 (that is to say, after consulting the Staff Committee and the Staff Regulations Committee) and by failing to notify the staff of them.

From the facts it is certain that the Commission had already laid down on 13 December 1961 ‘rules’ (‘un règlement’) on the composition and working procedure of the Establishment Board and on 9 March 1962 the definitive text of the ‘Internal Rules of Procedure of the Establishment Board’ (‘Règlement intérieur de la commission d'intégration’). The Director-General of Administration notified the Staff Committee of these texts on 23 March 1962, but only by way of information and not to obtain their opinion.

The principal question is then whether Article 102 requires measures for giving effect to it, laid down in accordance with Article 110. A whole series of factors, it is true, suggest that this question should be answered in the affirmative.

In the first place it seems to me to be certain, as I have already observed in Case 27/63, that Article 110 is not to be applied solely to provisions which especially refer to it. The decisive factor must be whether the substantive content of a provision requires the adoption of implementing measures, for example, because in their absence it would be impossible to apply it or to do so in the proper way.

With regard to Article 102, the Commission's adoption of implementing measures has clearly lent serious weight to the applicant's argument. These rules lay down the composition of the Establishment Board (number of its members, nationality and required grade), the procedure by which the Board arrives at its judgment (production of documents, hearing of the persons concerned, of their superiors and of other servants), the persons who may take part in these hearings, the conditions of voting (minimum number and nationality of members present, abstention if the member has an interest in the case, decisions in the event of a tied vote), etc. (cf. for example, the provisions as to secrecy, drawing-up of minutes, the order in which evidence is called).

in fact perusal of Article 102 gives the impression that it is essential to supplement it by implementing provisions. Article 102 only provides that there shall be set up in each institution an Establishment Board consisting of servants of the institution employed in a supervisory capacity, who shall be appointed thereto by the appointing authority. On the basis of a report furnished by the superiors of the servants concerned, this Board shall advise the appointing authority as to their suitability for the duties of their posts. Bearing in mind the enormous importance of the integration procedure for individual servants, this provision is by no means very detailed or precise.

In my opinion it is equally incorrect to say that the transitional provisions of Articles 102 to 109 do not form part of the Staff Regulations and that, for this reason, Article 110, which refers to the general provisions for giving effect to these Staff Regulations, is not applicable to them. From the point of view of form, all the provisions which are grouped under the title of ‘Staff Regulations of officials of the European Economic Community and of the European Atomic Energy Community’, and are contained in Articles 1 to 110, form part of the Staff Regulations. This arises from the single Article of the Regulation of the Council laying down the Staff Regulations which states: ‘The Staff Regulations of officials … of the European Economic Community and the European Atomic Energy Community are laid down in the Annex’.

However I believe that in the final analysis there has been no infringement of Article 110 in the present case. In fact, the view of the Commission that Article 110 only applies to the principal provisions of the Staff Regulations which are intended to have permanent application and not to the transitional provisions which lapse after a single application seems to be correct. Two arguments may be invoked to support this.

Article 110 speaks of general implementing provisions. In this connexion the adjective ‘general’, correctly understood, can only relate to the legislative nature of the implementing provisions. It must therefore be concerned with rules which are applicable to an indeterminate number of cases in the future. On the other hand Article 102 only applies to a precisely determinable number of officials, namely, to those who had a permanent post with one of the institutions of the Communities when the Staff Regulations entered into force. Moreover reference may be made to Article 107 which also appears among the transitional provisions and which expressly requires the consultation of the staff Regulations Committee in order to adopt implementing provisions. This actor seems to me proof that in principle Article 110 does not refer to transitional provisions. If in fact it did apply to transitional provisions it would have been unnecessary to mention the participation of the Staff Regulations Committee in Article 107, precisely because Article 110 requires the consultation of the Staff Regulations Committee as well as of the Staff Committee. Consequently, the complaint that the Commission infringed Article 110 by failing to consult the Staff Committee and by failing to publish the internal rules of procedure of the Establishment Board before adopting those rules is unfounded.

(b)The applicant derives a second complaint from Article 5 of the Staff Regulations. He says that the superiors' reports prescribed by Article 102 should only be prepared after the definitions of duties and powers attaching to posts have been established as required by Article 5, these being indispensable as criteria of assessment.

This complaint, too, seems to me to be unfounded. According to the clear wording of Article 102 the Establishment Board was only required to advise on the suitability of the servant to perform the duties which were entrusted to him, that is to say, on the way in which a servant, prior to the date of his establishment, discharged the duties of his post in the past. For this purpose the existing administrative organization, which could objectively ascertain the scope of the duties and activities of each servant, constituted a sufficient criterion. On the other hand, the function of the Establishment Board was not to pass judgment as to whether the servant could be usefully employed subsequently, that is to say, it was not to act as the future administrative organization of the Commission for the purposes of which the definitions of duties in Article 5 are the sole criteria.

(c)Closely linked to the complaint based on Article 5 is a whole series of complaints also relating to the means of drawing up assessment reports.

—Generally speaking, the applicant considers that the method of assessment was too subjective. According to him, the reports would have been more objective if they had put forward, in part at least, facts instead of appraisals. Moreover in accordance with the principle of equality of treatment, criteria for the assessment of all servants performing the same duties should have been established beforehand in a general and uniform manner.

With regard to these complaints, too, I must first of all refer to the text of Article 102 which refers to reports on the official's ability, efficiency and conduct in the service. This necessarily means a subjective appraisal, a value judgment. This is the argument which was propounded by the First Chamber of the Court in the Leroy case when it dismissed the applicant's complaint concerning the general and subjective character of his superior's remarks, observing that the objective of the report under Article 102 is to appraise the general conduct of the servant. As a result the report could not be required to go into details and mention specific facts. In fact the report would have been of boundless dimensions if it had to support each question for assessment by specifying facts. In cases of doubt or dispute, it might be possible to go into details of fact in the further course of the assessment procedure. The Establishment Board was therefore in no way obliged to support its judgment exclusively by the subjective appraisals of third parties.

With regard to fixing criteria for assessment, it may well be imagined, as anyone who has in practice set examinations well knows, that examiners may arrive at different results applying the same scale of criteria, amongst other reasons because they have varying opinions on the strictness with which these criteria should be applied. But such a danger can be obviated not only by an arithmetical system of assessment, which would aim at perfection, but also by a system whereby a single board adjudicates upon all the appraisals, as is the case in the integration procedure. It lies in its power to prevent any ultimate inequality of treatment of servants by correcting subjective deviations by recourse to other criteria (hearing other servants, calling other evidence).

In the applicant's particular case he has moreover alleged in this context that his immediate superior was hostile to him.

If it was thereby intended to maintain that no account should be taken of the report of this superior, it must be stated that Article 102 does not provide for an exception to the rule (report by superior). The Establishment Board was therefore unable to dismiss the superior's report without infringing the Staff Regulations. Besides, precisely in such cases the further course of the integration procedure made it possible to ensure the highest degree of objectivity by resorting to other criteria. This is what happened in the present case. Other superiors also expressed their opinion on the applicant, witnesses were heard and finally the opinion of the Establishment Board was given unanimously.

Taken as a whole, it does not seem possible to contest the procedure whereby a servant's aptitude and conduct in the performance of his duties is assessed in reports of his superiors.

(d)The applicant also criticized the composition of the Establishment Board. He criticizes the participation of a member of the Commission's Legal Department who, although classified in Grade A 2, is not employed in a supervisory capacity within the meaning of Article 102, and he considers as illegal the presence at the meetings of the Establishment Board of a high official in the administration who was not a member of the Board.

These complaints do not seem to me to be well-founded. Article 102 of the Staff Regulations indeed lays down that the Establishment Board shall consist ‘of servants employed in a supervisory capacity’ (French text: ‘agents exerçant des fonctions de direction’). However I consider that this passage merely requires the participation of high-ranking servants with the necessary knowledge, experience and authority. On the contrary, it does not seem necessary to me to have heads of a directorate, that is to say, officials heading a large administrative organization. In view of the actual structure of the administration of the Commission this would have meant that the members of the Legal Department could not have been members of the Establishment Board, scarcely a desirable outcome, particularly if it is considered that the observance of proper rules of procedure must be observed in the operation of the integration procedure.

With regard to the presence of the official from the Administration Department, certain objections cannot be dismissed out of hand. As a general rule, it must be recognized that the work of the Establishment Board, which leads to important results, must not be influenced by outsiders or subjected to the risks of improper influence.

I find however from reading the minutes produced that the servant in question only participated as an observer at the Preparatory sittings, without being present at the final sitting in the course of which a decision was taken on the applicant's suitability. Consequently this factor, like the others, does not justify a conclusion that the procedure of the Establishment Board was tainted with irregularity.

(e)On the other hand, there appears to be more substance in the complaint that the Establishment Board infringed the audi alteram partem principle since the witnesses were not heard in the presence of the applicant and the applicant did not have the last word.

In this connexion, it is in my opinion of little importance whether the integration procedure should, as the applicant thinks, be considered as an administrative procedure of a judicial nature. For our examination it is sufficient to bear in mind the significance and functions of the integration procedure.

Prior to the adoption of the Staff Regulations, the staff of the European Economic Community, in accordance with Article 246 of the Treaty, only had contracts of employment for a limited duration. They did not in principle confer any right to a permanent post; but, as is laid down in the case-law of the Court (Cases 43, 45, 48/59 Rec. 1960), their termination must be ‘justified for reasons connected with the interest of the service’, which suggests a certain amount of security of tenure. The entry into force of the new Staff Regulations involved a modification of that legal position. It strengthened the legal position of the servants, in the sense that any servant occupying a permanent post in one of the institutions of the Community must be allowed to undergo an assessment for the purposes of the examination of the question whether he ought to be integrated. If the examination produced a favourable result, he was in practice appointed as an established official, clearly and rightly, in recognition of a kind of ‘expectancy’ on the part of those officials, a good number of whom had worked for the Commission for several years. If the examination produced a negative result, under the Staff Regulations the contract of employment had as a general rule to be terminated.

The examination procedure was therefore of very great legal importance to servants' careers. In my opinion it follows from this that it had to be conducted with the greatest possible care and with the aim of arriving at a most conscientious and objective examination of suitability for the service. Since, moreover, the objective of the procedure consisted in making value-judgments which, as such, were not subject to judicial review, there should have been a guarantee that no criterion which could have influenced the formation of the value-judgment was neglected.

This is the basis on which appraisal of the particular complaints put forward may be made. From a perusal of the minutes produced we know that in the applicant's case the Establishment Board heard his superiors and another servant of the Commission. We know nothing of what took place at the hearing, as no minutes were drawn up. The applicant declared, without being contradicted, that he was not informed of the terms of the evidence given; consequently he was unable to submit comments on it. The possibility cannot be excluded that the general conclusion arrived at by the Establishment Board might have been influenced by the applicant's comments which might have contradicted or added to this evidence. The failure to hear the applicant therefore constitutes a procedural irregularity which the Court cannot overlook. To return to the wording of the judgment in the Leroy case which also gave a decision on the integration procedure: the Establishment Board wrongly omitted to give the person concerned an opportunity ‘to comment on any points likely to influence the decision as to his establishment’.

This procedural irregularity cannot result in the Court's attempting to obtain an idea of the importance of the evidence of the superiors and of the observations of the person concerned in this connexion. If the Court is unwilling to put itself in the position of the administration, which alone is competent to appraise the suitabilities of the person concerned for the post, the sole solution remaining is to annul the measures taken which failed to observe the necessary rules of procedure and to send the case back to the executive for a fresh examination.

In my opinion this last complaint at least is by itself sufficient to justify the annulment of the opinion of the Establishment Board and of the decision to dismiss the applicant which is based on the opinion.

(f)It might therefore appear pointless to examine the other complaints in the application. However I should like to show in a few words that the remaining complaints are not valid.

—This is so, first of all, as regards the complaint that the reasons have been insufficiently stated.

The opinion of the Establishment Board is certainly very short. It merely refers to the report of the superiors, to other information obtained, to hearing the person concerned and it mentions two reasons suggesting that the applicant is not suited for his post.

However, following the judgment by the First Chamber in the Leroy case (and moreover sustaining the view which I expressed in Case 1/63 on the statement of reasons for purely individual decisions) I consider it sufficient that the contested measure should refer to other detailed measures known to the applicant, despite the fact that there may appear to be some justification for doubts as to the vague and general reference made to ‘other information’.

Furthermore an infringement of Article 25 of the Staff Regulations cannot arise from the fact that the Establishment Board did not express an opinion on the documents produced by the applicant during the integration procedure as a requirement to discuss all the arguments put forward by the person concerned does not fall within the framework of their formal obligation to state reasons.

Likewise the complaint of an incorrect appraisal of the facts cannot in my opinion result in an additional argument for the annulment of the contested measures. It rests on the fact that in his report the applicant's superior described the latter's command of written German as mediocre. For his part, the applicant puts forward his school leaving examination in economics taken in German it Strasbourg, and a German examination passed with distinction at:he University of Liege. But I consider that this point can be disregarded, since the opinion of the Establishment Board does not give:he impression that the extent of the applicant's ignorance of German played a decisive role in the assessment made of him. Conversely, it nay be deduced from the refusal of he Establishment Board to avail itself of the evidence put forward by he applicant of his knowledge of German that this question was of little importance.

II — Finally, it remains for me to deal with the head of the conclusions relating to damages, which, under the influence of the judgment in Case 18/63, was amended in the course of the oral part of the proceedings to the effect that the applicant claims the sums which he would have received in salary from the time of his dismissal.

There is little to say on this head of the conclusions. If in fact, as I consider it should, the opinion of the Establishment Board, and therefore of the Commission's decision of dismissal, must be annulled, it is a necessary consequence that the applicant must continue in the service of the Commission and that he is entitled to his monthly salary, in accordance with the contract made on his appointment. No reason in fact exists for not applying in the present case the principles which the Court laid down in Case 18/63.

But I wonder whether it would be appropriate to mention in the operative part of the judgment an order to pay a specific sum. It may in fact be thought fit to subtract from the sum claimed the sums obtained by the applicant in another employment after the date of his dismissal by the Commission. This is the reason why the Court should limit itself to pronouncing in principle the obligation to pay damages in the judgment, and to leave the Commission to comply with the terms of the judgment taking account of the factual situation.

III — Summary and conclusion

I therefore arrive at the following conclusion:

The Court should uphold the appeal and annul the opinion of the Establishment Board and, since the dismissal could not have been pronounced without that opinion, the decision of dismissal. It should furthermore be declared that the integration procedure must be re-applied to the applicant and that, in accordance with the general principles of law, the composition of the Board must be altered. The Court should also declare that the applicant is entitled to payment of his salary even after the date of his dismissal.

The Commission must bear the costs as substantially the application has been successful.

(<span class="note"><a id="t-ECRCJ1964ENA.0100038201-E0002" href="#c-ECRCJ1964ENA.0100038201-E0002">1</a></span>) Translated from the French version.