OPINION OF MR ADVOCATE-GENERAL LAGRANGE

DELIVERED ON 3 JUNE 1964 (*1)

Mr President,

Members of the Court,

In this case, Baron de Vos van Steenwijk against the Commission of the European Atomic Energy Community, the applicant is requesting

1.Annulment of the decision by which the Commission, acting on the unfavourable opinion made by the Establishment Board concerning the integration of the applicant under Article 102 of the Staff Regulations, terminated his contract:

2.Damages which he unhesitatingly assesses at 5000000 Luxembourg francs.

Although the heads of the conclusions are rather more extensive the application is based on the two heads mentioned above, the first being an application for annulment of a decision, brought under Article 91 of the Staff Regulations, and the second (and only the second, contrary to what the applicant appears to believe) an application in which the Court has unlimited jurisdiction.

I shall not give a long explanation since, first, you are as fully informed on the facts as you could be from the written procedure, the documents in the file and from hearing the witnesses and, secondly, the questions of law seem to have been largely clarified by earlier cases, in particular by the Leroy judgment.

I — On the claim for annulment

I shall follow the analysis made by the Judge-Rapporteur in the report of the hearing.

The first ground of complaint is based on the irregularity of the integration procedure. In this respect the applicant relies on:

1.the irregularities which occurred during his probationary period and the extension of this period;

2.the irregularities of the integration procedure itself.

(a) Probationary period

The applicant explains that the probationary period expired on 15 November 1961. However, on 16 February 1962 a ‘probation report’ was drawn up which was, on the whole, favourable to the applicant, following which the Director of the Centre decided to extend the probationary period by six months, ending on 15 May 1962. At that date a second probation report should have been drawn up but this was only done in November 1962 in the form of a ‘report on abilities’ which was much less favourable than the first report and which was in fact the basis of the decision taken by the Establishment Board.

The applicant maintains that no extension could have been ordered after the entry into force of the Staff Regulations, since Article 34 of these Regulations was not applicable. If Article 34 was applicable to the case then it was infringed, since the second probation report was only drawn up in November 1962 although the probationary period had come to an end on the preceding 15 May. These irregularities seriously affected the position of the applicant since the Board based its judgment on the second report, although only the first should have been considered.

I do not see how these alleged irregularities in the probationary period can interfere with the regularity of the integration procedure. As was stated in the De Bruyn judgment, 25/60 of 1 March 1962, the exercise of a probationary period conflicts somewhat with the legal nature of a contract of employment — such as the ‘Brussels’ contract — which is of unlimited duration and terminable by either party at one month's notice. It became, however, the generally accepted custom to provide for a probationary period which is why, in the De Bruyn judgment, you took it into account in assessing the legal relationship between the parties. But you did so because you were concerned with a dismissal carried out at the end of a probationary period which was apparently based on the alleged unsatisfactory nature of the probation (in fact, no reasons were given for the decision): there was thus a direct legal connexion between the probationary period and the dismissal.

In this case, however, no such connexion exists: like other servants, those serving a probationary period are eligible for establishment under Article 102 provided they have been employed as such for at least six months. For them, as for the others, the Board provided for in Article 102 must make a decision on the basis of a report on the abilities of each candidate; this is known as the establishment report and must in any event be drawn up when the integration procedure is being employed. This was done and the Board would, on the contrary, have acted quite improperly had it been content with a ‘probation report’ drawn up almost one year earlier in the context of a contractual relationship at a time when the Staff Regulations were not even published.

(b) The irregularity of the integration procedure itself

The applicant here makes two submissions :

1.The opinion of the Establishment Board was not submitted in its entirety to the applicant before the decision not to integrate him was made, nor was it placed in his personal file.

It seems clear that the opinion of the Board, which is the final step in the integration procedure and is binding on the appointing authority, was not submitted to the applicant before the appointing authority took its decision. On the other hand, the applicant was informed of the opinion by the decision, which, as the defendant observes, enabled him to contest it by legal action.

2.The procedure gave the applicant no opportunity to be heard as no meeting took place between him and those heads of department who had submitted reports on him.

On this point, I can only refer to my observations in the Leroy case, (Rec. 1963). In my opinion the party concerned has no right to meet his superiors; 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 was done in this case. Both his personal file and the establishment report were submitted to the applicant; he was able to comment on the report and made full use of this right. Moreover, he does not specify which heads of department he should have been allowed to meet nor which points he would have liked to discuss with them. The second ground of complaint deals with the irregularity of the assessment made of the applicant both in the establishment report and by the Establishment Board. The applicant here pleads an infringement of the Treaty and misuse of powers.

(a) Infringement of the Treaty

Under this heading, that is, of objective illegality, the applicant gives a detailed account of his relations with the administration of the Euratom Commission, in particular with the Ispra authorities, and in reality discusses whether the unfavourable opinion of the Establishment Board is well founded.

As I have already stated, we are here dealing with proceedings for annulment. The purpose of the power given to the Establishment Board by Article 102 is to enable it to make a value judgment as to the conduct of the servant concerned in the performance of his duties in order to assess his abilities to perform permanently the functions corresponding to his classification in a particular grade. In view of this power, the Court may only examine (apart from the formal requirements of the statement of reasons for the decision, which are not at issue here) the accuracy of the facts on which the Board based its assessment, or the relevance of the reasons given for the decision taken.

1.The accuracy of the facts could only be questioned if the decision refusing to integrate the applicant had been solely or principally based on one or more specific facts, the accuracy of which it would then be necessary to examine. This is not the case; the opinion of the Board was based on a comprehensive assessment of the conduct of the applicant.

As regards what I nave called ‘relevance of the reasons’ for the decision taken, it would be possible first of all to imagine a case in which, as for example in Case 18/63 (Schmitz-Wollast, judgment of 19 March 1964), although judgment was not given expressis verbis on this point, the decision refusing integration was in fact a disguised disciplinary sanction taken without complying with the formal requirements laid down for that purpose. This however is not the case: the ‘failure to observe the most elementary principles of discipline, in particular, the numerous unjustified absences’, referred to in the opinion of the Establishment Board, is only one of the factors considered in the Board's general assessment of the applicant's conduct. There is no disguised disciplinary sanction. As to the accuracy of the facts, namely the ‘many unjustified absences’, this is not seriously disputed.

Secondly, one might imagine a case in which, as in the Mirossevich case, the party concerned had been given no opportunity to demonstrate his abilities. This appears to be the principle ground on which the applicant relies

Clearly the nature of the duties performed must be taken into account when such an examination is made. When considered from this angle, it can be seen that there is nothing in common between the Mirossevich case and the present one which in fact differs more from the Mirossevich case than from that of Leroy. The duties of the applicant were to assist, under the immediate authority of the Director of the Centre and without clearly defined powers, in the very general task of reorganizing the departments. It was a difficult task, accepted, if not sought, by the applicant himself. It is clear that it ended in failure. Is the applicant alone responsible for this failure? It is unlikely, but you do not have to decide this question. It is enough to state that as least for several months the applicant was responsible for various tasks which allowed him to prove his abilities and that in this respect a second chance had been offered to him with the arrival of Mr Mercercau. There is no reason to maintain that he was given no opportunity to demonstrate his abilities.

In fact, although, once again the Court is not required to substitute its own assessment for that of the Establishment Board, it cannot fail to be struck by the fact that, among all the uneven qualities ascribed to the applicant by the establishment report, his qualities of initiative were the least favourably assessed, although these were obviously the most necessary to the performance of the duties entrusted to him.

(b) Misuse of powers

The observations which I have just made save me from the need to deal with the submission of misuse of powers: there is no reason to believe that the Board's opinion was not founded on objective considerations but, for example, on the animosity which existed as from a certain point in time between the applicant and the Director of the Centre.

II — On the conclusions claiming damages

In so far as these conclusions are based on a wrongful act they are unfounded, the contested decision is not annulled and, moreover, contains no ‘superfluous criticisms’ of the applicant. (In this connexion see the Leroy judgment, Rec. 1963). Moreover, the conclusions are also unfounded to the extent that they are based on the lack of sufficient notice. Under his contract the applicant received payment of one month's salary and in addition compensation amounting to two months' salary under Article 34 of the Staff Regulations referred to in Article 102. The mandatory provisions of the Staff Regulations on this point appear to exclude a separate assessment by the Court in each case.

I am therefore of the opinion that:

—the application should be dismissed;

—the costs of the action should be borne by the applicant apart from those incurred by the Commission of the European Atomic Energy Community, which, under Article 70 of the Rules of Procedure, must be borne by that institution.

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(*1) Translated from the French.