Avis juridique important

Judgment of the Court (Second Chamber) of 1 July 1964. - Robert Degreef v Commission of the European Economic Community. - Case 80-63. European Court reports French edition Page 00767 Dutch edition Page 00805 German edition Page 00839 Italian edition Page 00763 English special edition Page 00391 Danish special edition Page 00507 Greek special edition Page 01145 Portuguese special edition Page 00495

Summary Parties Subject of the case Grounds Decision on costs Operative part

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ADMINISTRATION MADE PARTY TO THE PROCEEDINGS - APPOINTING AUTHORITY - CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS

( EEC TREATY, ARTICLE 179, STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLES 90, 91 ) 2 . OFFICIALS - DISPUTES WITH THE COMMUNITIES - DEFENDANT - CAPACITY OF THE COMMUNITY TO APPEAR BEFORE THE COURT

( EEC TREATY, ARTICLE 179, STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 91 )

3 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ACT ADVERSELY AFFECTING AN OFFICIAL - CONCEPT

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 91 )

4 . OFFICIALS - INTEGRATION - UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD - MEASURE WHICH CANNOT BE CHALLENGED SEPARATELY - PROCEEDINGS TO BE BROUGHT AGAINST DECISION TO DISMISS A SERVANT - POSSIBILITY OF INVOKING IN THOSE PROCEEDINGS SUBMISSIONS AND ARGUMENTS AGAINST THE INTEGRATION PROCEDURE

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 102 )

5 . OFFICIALS - INTEGRATION - APPEAL AGAINST DECISION TO DISMISS A SERVANT - EXECUTION OF JUDGMENT ALLOWING APPEAL - RE-OPENING OF INTEGRATION PROCEDURE ALLOWED AS A MEASURE GIVING EFFECT TO A JUDGMENT

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 91 )

6 . OFFICIALS - STAFF REGULATIONS - FINAL PROVISIONS - LEGAL NATURE THEREOF

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 110 )

7 . OFFICIALS - INTEGRATION - DEFINITION OF DUTIES NOT NECESSARY FOR THE PURPOSE OF INTEGRATION

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLES 5, 102 )

8 . OFFICIALS - INTEGRATION - UNFAVOURABLE OPINION OF THE BOARD - RIGHT OF OFFICIAL CONCERNED TO SUBMIT COMMENTS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 102 )

9 . OFFICIALS - INTEGRATION - POWERS OF THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 102 )

10 . OFFICIALS - INTEGRATION - OPINION OF THE ESTABLISHMENT BOARD - STATEMENT OF REASONS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 102 )

1 . IT FOLLOWS FROM ARTICLE 179 OF THE EEC TREATY AND FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS THAT THE APPOINTING AUTHORITY, WHICH EXERCISES IN FACT THE POWERS OF AN EMPLOYER WITH REGARD TO OFFICIALS, HAS THE CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS IN DISPUTES BETWEEN SERVANTS AND THE ADMINISTRATION . CF . PARA . 1 OF SUMMARY IN JOINED CASES 79/63 AND 82/63 .

2 . AN APPEAL TO THE COURT UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC MUST BE BROUGHT AGAINST THE INSTITUTION TO WHOM THE PERSON CONCERNED IS RESPONSIBLE . THAT INSTITUTION IS AUTHORIZED TO APPEAR ON BEHALF OF THE COMMUNITY .

CF . PARA . 1 OF SUMMARY IN CASE 18/63 .

3 . ONLY ACTS WHICH ARE CAPABLE OF DIRECTLY AFFECTING A GIVEN LEGAL SITUATION CAN BE CONSIDERED AS ADVERSELY AFFECTING A PERSON .

CF . PARA . 3 OF SUMMARY IN CASE 26/63 .

4 . THE OPINION OF THE ESTABLISHMENT BOARD IS NOT A MEASURE SEPARABLE FROM THE DECISION OF THE APPOINTING AUTHORITY FOR THE PURPOSES OF THE APPEAL PROVIDED FOR IN ARTICLE 91 . CONCLUSIONS SEEKING ANNULMENT OF THE INTEGRATION PROCEDURE AND OF THE OPINION OF THE ESTABLISHMENT BOARD, CONSIDERED SEPARATELY FROM THE CONTESTED DECISION TO TERMINATE THE CONTRACT, ARE INADMISSIBLE . HOWEVER, THE SUBMISSIONS AND ARGUMENTS PUT FORWARD IN SUPPORT OF THESE CONCLUSIONS MAY BE INVOKED AGAINST THE DECISION TO TERMINATE THE CONTRACT ITSELF .

ANY GROUND OF COMPLAINT BY AN OFFICIAL AGAINST AN UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD CAN ONLY BE RAISED EFFECTIVELY BY MEANS OF AN ACTION AGAINST THE DECISION OF THE APPOINTING AUTHORITY, SINCE THIS DECISION, WHICH CONSTITUTES THE FINAL STEP IN THE INTEGRATION PROCEDURE, IS REQUIRED TO CONFIRM THE OPINION .

CF . PARA . 4 OF SUMMARY IN CASE 26/63 .

5 . ALTHOUGH THE COURT, EVEN IN THE CONTEXT OF PROCEEDINGS IN WHICH IT HAS UNLIMITED JURISDICTION, AS IT HAS UNDER ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS, IS UNABLE TO ORDER THE ADMINISTRATION TO CARRY OUT A SPECIFIC ACT, THE REOPENING OF THE INTEGRATION PROCEDURE MUST HOWEVER BE CONSIDERED MERELY AS ONE OF THE CONSEQUENCES FLOWING FROM THE EXECUTION OF THE JUDGMENT IF THE APPEAL WERE TO BE UPHELD .

CF . PARA . 5 OF SUMMARY IN CASE 26/63 .

6 . THE IMPLEMENTING PROVISIONS FOR WHICH PROVISION IS MADE BY ARTICLE 110 OF THE STAFF REGULATIONS ARE OF A ' GENERAL ' NATURE .

THEREFORE THE ADOPTION OF THESE MEASURES IS ONLY NECESSARY FOR THE APPLICATION OF THOSE PROVISIONS OF THE STAFF REGULATIONS WHICH ARE NOT SUFFICIENTLY CLEAR AND WHICH ARE INTENDED TO REMAIN IN FORCE .

CF . PARA . 6 OF SUMMARY IN CASE 26/63 .

7 . THE DEFINITION OF DUTIES WITHIN THE MEANING OF ARTICLE 5 OF THE STAFF REGULATIONS OF OFFICIALS CANNOT BE CONSIDERED AS AN INDISPENSABLE LEGAL PROCEDURE FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 102 .

CF . PARA . 7 OF SUMMARY IN CASE 26/63 .

8 . BEFORE GIVING AN UNFAVOURABLE OPINION THE ESTABLISHMENT BOARD MUST AFFORD THE PERSON CONCERNED THE OPPORTUNITY TO SUBMIT HIS COMMENTS ON THE FACTORS WHICH MAY INFLUENCE HIS INTEGRATION . THIS OBLIGATION IS COMPLIED WITH IF THE BOARD HAS HEARD THE VIEWS OF THE PERSON CONCERNED ON THE FACTS CONTAINED IN THE REPORT, FOR WHICH PROVISION IS MADE IN THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS AND WHOSE CONCLUSIONS IT HAS ADOPTED, OR ON THE FACTORS WHICH IT CONSIDERS LIKELY TO LEAD IT TO CONCLUSIONS DIFFERENT FROM THOSE IN THE REPORT AND TO HAVE AN INFLUENCE ON THE INTEGRATION OF THE SERVANT .

CF . PARA . 8 OF SUMMARY IN CASE 26/63 .

9 . THE INTEGRATION PROCEDURE ENABLES THE ADMINISTRATION TO CHOOSE THE OFFICIALS WHO WILL HENCEFORTH BENEFIT FROM THE GUARANTEES UNDER THE STAFF REGULATIONS . THIS CHOICE PRESUPPOSES A CERTAIN FREEDOM OF JUDGMENT AND THEREFORE A PROCEDURE WHICH DOES NOT NECESSARILY INCLUDE ALL THE GUARANTEES AFFORDED TO OFFICIALS UNDER THE STAFF REGULATIONS . REVIEW BY THE COURT CAN THEREFORE BE EXERCISED ONLY OVER THOSE FACTORS IN WHICH CLEAR INJUSTICE MAY BE SEEN .

CF . PARA . 9 OF SUMMARY IN CASE 26/63 .

10 . THE OPINION OF THE ESTABLISHMENT BOARD SUFFICIENTLY STATES THE REASONS ON WHICH IT IS BASED BY MEANS OF THE REFERENCES MADE BOTH TO THE INFORMATION USED AND TO THE BASIC FACTORS BORNE IN MIND UNDERLYING ITS ASSESSMENT .

CF . PARA . 10 OF SUMMARY IN CASE 26/63 .

IN CASE 80/63

ROBERT DEGREEF OF SCHAERBEEK, 29 RUE JOSEPH-WAUTERS, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, ASSISTANT LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN, APPLICANT,

V

THE EUROPEAN ECONOMIC COMMUNITY OR ALTERNATIVELY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER PAUL LELEUX, ACTING AS AGENT, AND ASSISTED BY JEAN COUTARD, ADVOCATE AT THE CONSEIL D'ETAT AND AT THE COUR DE CASSATION OF FRANCE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF

1 . THE INTEGRATION PROCEDURE APPLIED TO THE APPLICANT, THE OPINION OF THE ESTABLISHMENT BOARD COMMUNICATED TO THE APPLICANT BY LETTER OF 28 JUNE 1963, THE DECISION TO TERMINATE THE APPLICANT'S CONTRACT OF EMPLOYMENT, NOTIFIED TO HIM BY LETTER OF 28 JUNE 1963;

2 . PAYMENT OF DAMAGES .

A - THE NAMING OF THE DEFENDANTS AS PARTIES

THE APPLICATION IS BROUGHT AGAINST THE EUROPEAN ECONOMIC COMMUNITY OR, ALTERNATIVELY, AGAINST THE COMMISSION OF THAT COMMUNITY .

THE DEFENDANT SUBMITS THAT THE INSTITUTIONS DO NOT HAVE A LEGAL PERSONALITY SEPARATE FROM THAT OF THE COMMUNITY AND THAT, THEREFORE, THE COMMISSION ALONE SHOULD BE MADE A PARTY TO THE PROCEEDINGS .

UNDER ARTICLE 179 OF THE EEC TREATY, ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT . ' THE EXPRESSION ' THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS ' NECESSARILY IMPLIES THAT THERE IS CONFERRED UPON THE INSTITUTION ITSELF, AS THE APPOINTING AUTHORITY, THE RIGHT TO BE A PARTY TO LEGAL PROCEEDINGS RELATING TO DISPUTES WITH ITS SERVANTS AND OFFICIALS . IN FACT ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC, - HEREINAFTER CALLED THE STAFF REGULATIONS - GOVERNING COMPLAINTS BY OFFICIALS THROUGH OFFICIAL CHANNELS PRIOR TO AN APPEAL TO THE COURT, PROVIDES THAT ANY OFFICIAL MAY SUBMIT A REQUEST OR COMPLAINT TO THE APPOINTING AUTHORITY OF HIS INSTITUTION . THE APPEAL TO THE COURT REFERRED TO IN ARTICLE 91 OF THE STAFF REGULATIONS MUST FOLLOW SIMILAR RULES AND BE MADE AGAINST THE SAME INSTITUTION . THE PRESENT APPLICATION MUST THEREFORE BE REGARDED AS BEING BROUGHT AGAINST THE COMMISSION OF THE EEC, WHICH IN THIS CASE IS THE INSTITUTION TO WHICH THE APPOINTING AUTHORITY RESPONSIBLE FOR THE CONTESTED MEASURE BELONGS .

B - THE APPLICATION FOR ANNULMENT

ADMISSIBILITY

1 . THE APPLICANT CLAIMS IN THE FIRST INSTANCE THAT BOTH THE INTEGRATION PROCEDURE AND THE OPINION OF THE ESTABLISHMENT BOARD NOTIFIED TO THE APPLICANT BY LETTER OF 28 JUNE 1963 SHOULD BE ANNULLED . THE DEFENDANT MAINTAINS THAT THIS HEAD OF THE CONCLUSIONS IS NOT ADMISSIBLE, IN THAT IT DOES NOT RELATE TO THE ANNULMENT OF A MEASURE HAVING THE NATURE OF A DECISION .

IT EMERGES FROM ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS THAT DISPUTES BETWEEN THE COMMUNITY AND ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY REFER TO THE LEGALITY OF AN ACT ' ADVERSELY AFFECTING SUCH A PERSON ' (' UN ACTE FAISANT GRIEF A CETTE PERSONNE '). ONLY ACTS WHICH ARE CAPABLE OF DIRECTLY AFFECTING THE LEGAL POSITION OF SERVANTS CAN BE CONSIDERED AS ADVERSELY AFFECTING A PERSON . IN THIS CASE THE INTEGRATION PROCEDURE IS NOT AN ACT ADVERSELY AFFECTING A PERSON BUT CONSISTS OF A SERIES OF LEGAL ACTS AND MEASURES PREPARATORY TO THE CONTESTED DECISION TO TERMINATE THE CONTRACT .

AS FAR AS THE OPINION OF THE ESTABLISHMENT BOARD IS CONCERNED IT SHOULD BE NOTED THAT, EVEN WHEN IT IS FAVOURABLE TO THE INTEGRATION OF THE SERVANT, HIS LEGAL POSITION IS NOT AFFECTED UNTIL THE APPOINTING AUTHORITY TAKES THE DECISION AFFECTING HIM . ALTHOUGH UNDER ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS, THIS OPINION CONSTITUTES AN ESSENTIAL FACTOR ON THE BASIS OF WHICH THE DECISION OF THE SAID AUTHORITY IS TAKEN AND WHICH BINDS IT, IT IS ADDRESSED ONLY TO THE APPOINTING AUTHORITY, WHEREAS UNDER THE FIRST PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED . IT MUST THEREFORE BE CONCLUDED THAT, FOR THE PURPOSES OF THE APPEAL PROVIDED FOR BY ARTICLE 91 OF THE STAFF REGULATIONS, THE OPINION OF THE ESTABLISHMENT BOARD IS NOT A MEASURE WHICH CAN BE SEPARATED FROM THE DECISION TAKEN BY THE APPOINTING AUTHORITY .

FOR ALL THESE REASONS THIS HEAD OF THE CONCLUSIONS IS INADMISSIBLE TO THE EXTENT TO WHICH IT SEEKS THE ANNULMENT OF THE INTEGRATION PROCEDURE AND OF THE DISPUTED OPINION, CONSIDERED INDEPENDENTLY OF THE CONTESTED DECISION TO DISMISS THE APPLICANT . THE ARGUMENTS PUT FORWARD IN SUPPORT OF THESE CONCLUSIONS CAN HOWEVER BE INVOKED AGAINST THE SAID DECISION .

2 . THE APPLICANT CLAIMS THAT THE DECISION TO TERMINATE HIS CONTRACT OF EMPLOYMENT COMMUNICATED TO HIM BY LETTER OF 28 JUNE 1963, SHOULD BE ANNULLED . THE ADMISSIBILITY OF THIS CLAIM IS NOT CHALLENGED BY THE DEFENDANT AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

THE APPLICANT ALSO CLAIMS THAT THE COMMISSION SHOULD BE OBLIGED TO RE-APPLY THE INTEGRATION PROCEDURE TO HIM AFTER COMPLYING WITH THE FORMAL REQUIREMENTS LAID DOWN IN THE LAST SENTENCE OF ARTICLE 5 AND IN ARTICLE 110 OF THE STAFF REGULATIONS . THE DEFENDANT PLEADS THAT THIS CLAIM IS INADMISSIBLE, ARGUING THAT THIS ACTION IS AN APPLICATION FOR ANNULMENT AND IN SUCH PROCEEDINGS THE COURT HAS NO JURISDICTION TO ORDER SUCH A MEASURE .

UNDER ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS THE COURT OF JUSTICE HAS UNLIMITED JURISDICTION IN ANY OF THE DISPUTES MENTIONED IN THE SAID REGULATIONS AND IN DISPUTES OF A FINANCIAL CHARACTER BETWEEN THE COMMUNITY AND ANY MEMBER OF ITS STAFF . ALTHOUGH THE COURT, EVEN IN THE CONTEXT OF SUCH AN APPLICATION, IS UNABLE TO ORDER THE ADMINISTRATION TO CARRY OUT A SPECIFIC ACT, THE RE-OPENING OF THE INTEGRATION PROCEDURE MUST HOWEVER BE CONSIDERED AS ONE OF THE CONSEQUENCES FLOWING FROM THE EXECUTION OF THE JUDGMENT IF THE APPLICATION IS GRANTED .

THE SUBSTANCE OF THE CASE

INFRINGEMENT OF ARTICLE 110 OF THE STAFF REGULATIONS

THE APPLICANT ARGUES THAT THE DISPUTED INTEGRATION PROCEDURE, LAID DOWN IN ARTICLE 102 OF THE STAFF REGULATIONS, TOOK PLACE BEFORE THE GENERAL PROVISIONS FOR GIVING EFFECT TO THIS PROCEDURE HAD BEEN ADOPTED IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 110 . HE DRAWS FROM THIS FACT THE CONCLUSION THAT THE DISPUTED DECISION MADE AS A CONSEQUENCE OF THIS PROCEDURE IS FOR THIS REASON UNLAWFUL .

THE IMPLEMENTING PROVISIONS FOR WHICH PROVISION IS MADE BY THE SAID ARTICLE 110 ARE OF A ' GENERAL ' NATURE . THEREFORE THE ADOPTION OF THESE MEASURES IS ONLY NECESSARY FOR THE APPLICATION OF THOSE PROVISIONS OF THE STAFF REGULATIONS WHICH ARE NOT SUFFICIENTLY CLEAR AND WHICH ARE INTENDED TO REMAIN IN FORCE . INDEPENDENTLY OF THE QUESTION WHETHER ARTICLE 102 OF THE STAFF REGULATIONS IS SUFFICIENTLY CLEAR TO BE IMMEDIATELY APPLICABLE, THERE IS NO DOUBT THAT IT IS ONLY INTENDED TO REGULATE A CERTAIN NUMBER OF SITUATIONS WITHIN A LIMITED PERIOD OF TIME . AS IT IS PLAINLY ONLY A TRANSITIONAL PROVISION, THE MEASURES ADOPTED FOR ITS APPLICATION CANNOT BE GENERAL IN CHARACTER .

IN THESE CIRCUMSTANCES THE REGULATIONS ADOPTED BY THE COMMISSION OF THE EEC ON 13 DECEMBER 1961 AND ON 9 MARCH 1962 FOR THE IMPLEMENTATION OF THE PROVISIONS OF ARTICLE 102 OF THE STAFF REGULATIONS CONSIST OF A COLLECTION OF SPECIAL IMPLEMENTING MEASURES WHICH ARE NOT TO BE CONFUSED WITH THE GENERAL IMPLEMENTING MEASURES REFERRED TO IN ARTICLE 110 AND FOR THIS REASON, DO NOT HAVE TO BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY THIS ARTICLE AND BROUGHT TO THE ATTENTION OF THE STAFF .

THIS SUBMISSION IS THEREFORE UNFOUNDED .

INFRINGEMENT OF THE LAST SENTENCE OF ARTICLE 5 OF THE STAFF REGULATIONS

THE APPLICANT SUBMITS THAT THE DISPUTED INTEGRATION PROCEDURE TOOK PLACE BEFORE THE DEFINITION OF THE DUTIES AND POWERS, REFERRED TO IN THE LAST SENTENCE OF ARTICLE 5 OF THE STAFF REGULATIONS, HAD BEEN CARRIED OUT IN ACCORDANCE WITH ARTICLE 110 AND THAT SUCH A DEFECT MAKES THE CONTESTED DECISION TO TERMINATE HIS CONTRACT OF EMPLOYMENT INVALID .

THE OBJECT OF THE DEFINITION OF DUTIES IS TO PERMIT AND FACILITATE THE CLASSIFICATION OF THE SERVANT ON THE BASIS OF ANNEX I TO THE STAFF REGULATIONS . IT CANNOT THEREFORE BE REGARDED AS A LEGAL MEASURE WHICH IS AN ESSENTIAL PRELIMINARY TO THE APPLICATION OF ARTICLE 102 OF THE STAFF REGULATIONS . MOREOVER BEARING IN MIND THE COMPLEXITY OF THE TASK OF DEFINING THE VARIOUS POSTS AND THE AMOUNT OF TIME INVOLVED, AND HAVING REGARD TO THE NEED FOR EACH INSTITUTION TO INTEGRATE ITS SERVANTS AS SOON AS POSSIBLE UNDER THE NEW STAFF REGULATIONS, THERE ARE NO GROUNDS FOR FINDING ANY IRREGULARITY IN THE DISPUTED DECISION .

INFRINGEMENT OF ARTICLE 102 OF THE STAFF REGULATIONS

1 . THE APPLICANT MAINTAINS THAT THE ESTABLISHMENT BOARD GAVE THE APPOINTING AUTHORITY A DEFECTIVE OPINION IN THAT IT WAS NOT DRAWN UP IN ACCORDANCE WITH ARTICLE 102 ( 1 ), AS ONE OF ITS MEMBERS, MR DE LA FONTAINE, WAS AT THAT TIME A LEGAL ADVISER AND WAS NOT EMPLOYED IN A SUPERVISORY CAPACITY .

MR DE LA FONTAINE WAS CLASSIFIED IN GRADE A 2 . ACCORDING TO ANNEX I TO THE STAFF REGULATIONS THE BASIC POST IN THIS GRADE IS THAT OF DIRECTOR . ACCORDING TO THE DEFINITION OF DUTIES AND POWERS PREPARED BY THE COMMISSION AND APPROVED BY THE PROVISIONAL STAFF REGULATIONS COMMITTEE THE POWERS AND DUTIES OF A LEGAL ADVISER CLASSIFIED IN GRADE A 2 CORRESPOND TO THOSE OF DIRECTOR . AS A RESULT, MR DE LA FONTAINE'S PARTICIPATION IN THE PROCEEDINGS OF THE ESTABLISHMENT BOARD COMPLIED WITH ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS AND THIS SUBMISSION IS THEREFORE UNFOUNDED .

2 . THE APPLICANT PUTS FORWARD IN ADDITION THE ARGUMENT THAT WHEN THE ESTABLISHMENT BOARD GAVE ITS DISPUTED OPINION IT RELIED ON REPORTS AND ASSESSMENTS WHICH, SINCE NO UNIFORM CRITERIA FOR THE PREPARATION OF REPORTS WERE DETERMINED BEFOREHAND, CONTAIN SUBJECTIVE ASSESSMENTS AND DO NOT RELATE TO FACTS WHICH CAN BE CHALLENGED BY PRODUCTION OF EVIDENCE TO THE CONTRARY .

THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS LAYS DOWN THAT THE ESTABLISHMENT BOARD SHALL GIVE ITS OPINION ' ON THE BASIS OF A REPORT ON THE OFFICIAL'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE PREPARED BY HIS SUPERIORS '. AS THE PURPOSE OF SUCH A REPORT IS TO GIVE A VALUE-JUDGMENT ON A SERVANT'S APTITUDE IN THE PERFORMANCE OF HIS DUTIES, IT MUST OF NECESSITY CONTAIN SUBJECTIVE ASSESSMENTS BY THE PERSONS CALLED UPON TO PREPARE IT . EVEN IF THE CRITERIA FOR MAKING THIS REPORT HAD BEEN DETERMINED BEFOREHAND IN A UNIFORM MANNER, THEY WOULD ONLY CREATE THE FORMAL CONTEXT WITHIN WHICH THE FACTORS TAKEN INTO ACCOUNT BY EVERY PERSON MAKING A REPORT WOULD BE EVALUATED SUBJECTIVELY . MOREOVER, ALTHOUGH THE ESTABLISHMENT BOARD ADVISES ON THE BASIS OF THIS REPORT, IT CANNOT DISREGARD THE SPECIFIC FACTS BEFORE GIVING ITS OPINION . THIS SUBMISSION THEREFORE DOES NOT APPEAR TO BE WELL FOUNDED .

INFRINGEMENT OF THE LAST PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS

THE APPLICANT ARGUES THAT THE OPINION OF THE ESTABLISHMENT BOARD IS DEFECTIVE BECAUSE THE REASONS UPON WHICH IT IS BASED ARE INADEQUATE IN LAW .

AS HAS ALREADY BEEN FOUND, THE SUBMISSIONS THAT THIS OPINION IS DEFECTIVE ARE ONLY ADMISSIBLE TO THE EXTENT TO WHICH THEY REFER TO THE LEGALITY OF THE DISPUTED DECISION ARISING OUT OF IT . IN THESE CIRCUMSTANCES THE MERITS OF THIS SUBMISSION MUST BE EXAMINED BY THE COURT WITH REFERENCE TO THE SAID DECISION .

THE ESTABLISHMENT BOARD STATES IN ITS REPORT N . 11 OF 13 JULY 1962 THAT ITS UNFAVOURABLE OPINION ON THE INTEGRATION OF THE APPLICANT WAS GIVEN ' AFTER TAKING NOTE OF THE REPORT ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF MR DEGREEF ..., AFTER OBTAINING ALL THE NECESSARY FACTS AND AFTER HEARING THE SERVANT HIMSELF . ' IN ADDITION IT STATES IN HIS REPORT THE REASONS FOR ITS UNFAVOURABLE OPINION, THAT IS TO SAY, THAT IN THE APPLICANT'S CASE ' A SUFFICIENTLY CONSCIENTIOUS APPROACH TO HIS WORK ' AND ' THE REQUISITE PUNCTUALITY FOR HIS WORK AS A MESSENGER ' ARE BOTH LACKING . IN THESE CIRCUMSTANCES IT MUST BE FOUND THAT THE REASONS UPON WHICH THE OPINION OF THE ESTABLISHMENT BOARD IS BASED ARE ADEQUATE HAVING REGARD TO THE REFERENCES WHICH IT MAKES BOTH TO THE INFORMATION USED BY THE BOARD AND TO THE BASIC FACTS WHICH THE BOARD ACCEPTED TO JUSTIFY ITS OPINION .

THE WORDING OF THE OPINION WAS NOTIFIED TO THE APPLICANT BY LETTER OF 28 JUNE 1963 TOGETHER WITH THE DISPUTED DECISION TAKEN BY THE APPOINTING AUTHORITY TO TERMINATE HIS CONTRACT OF EMPLOYMENT . IT MUST THEREFORE BE CONCLUDED THAT SUFFICIENT REASONS FOR THE SAID DECISIONS HAVE BEEN GIVEN .

INFRINGEMENT OF THE RIGHTS OF THE DEFENCE AND OF GENERAL LEGAL PRINCIPLES

THE APPLICANT THEN ARGUES THAT AS THE REPORT ON HIS ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE WAS ON THE WHOLE FAVOURABLE, IT OUGHT NORMALLY TO HAVE LED TO HIS INTEGRATION . HE INFERS FROM THIS FACT THAT THE DECISION TO TERMINATE HIS CONTRACT OF EMPLOYMENT IS ALL THE MORE DEFECTIVE BECAUSE THE ESTABLISHMENT BOARD, BEFORE GIVING AN UNFAVOURABLE OPINION, SHOULD, WITH DUE REGARD TO THE RIGHTS OF THE DEFENCE AND TO GENERAL LEGAL PRINCIPLES, HAVE BROUGHT TO HIS NOTICE ALL THE FACTS CAPABLE OF JUSTIFYING THIS OPINION AND MADE IT POSSIBLE FOR HIM TO CHALLENGE ITS SUBSTANCE IF NECESSARY .

ACCORDING TO THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS THE BOARD GIVES ITS OPINION TO THE APPOINTING AUTHORITY ' ON THE BASIS OF A REPORT ON THE OFFICIAL'S ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE, PREPARED BY HIS SUPERIORS ...'.

THE REPORT ON THE APPLICANT'S APTITUDE IN THE PERFORMANCE OF THE DUTIES OF HIS POST, ISSUED BY HIS SUPERIORS AND SUBMITTED TO THE ESTABLISHMENT BOARD, DEFINES HIS APTITUDE AS BEING THAT OF AN AVERAGE SERVANT . WHILE CONSIDERING SOME OF HIS ATTRIBUTES AS ' INADEQUATE AND REQUIRING IMPROVEMENT ', IT CONCLUDES THAT THE APPLICANT IS NEVERTHELESS ' CAPABLE OF PERFORMING THE DUTIES OF HIS POST '. IN SPITE OF THIS REPORT THE ESTABLISHMENT BOARD GAVE AN UNFAVOURABLE OPINION AS TO THE SUITABILITY OF THE APPLICANT FOR THESE DUTIES .

UNDER ARTICLE 102 ( 1 ) ( B ) OF THE STAFF REGULATIONS OF THE EEC AN UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD BINDS THE APPOINTING AUTHORITY . BEFORE DRAWING UP ITS OPINION, THE SAID BOARD MUST THEREFORE AFFORD THE PERSON CONCERNED THE OPPORTUNITY TO SUBMIT HIS COMMENTS ON THE FACTORS WHICH MAY INFLUENCE HIS INTEGRATION . THIS OBLIGATION IS COMPLIED WITH IF THE BOARD HAS HEARD THE VIEWS OF THE PERSON CONCERNED ON THE FACTS CONTAINED IN THE REPORT, FOR WHICH PROVISION IS MADE IN THE LAST PARAGRAPH OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS AND WHOSE CONCLUSIONS IT HAS ADOPTED, OR ON THE FACTORS WHICH IT CONSIDERS LIKELY TO LEAD IT TO CONCLUSIONS DIFFERENT FROM THOSE IN THE REPORT AND TO HAVE AN INFLUENCE ON THE INTEGRATION OF THE SERVANT .

THE REPORT ON THE APPLICANT'S APTITUDES IN THE PERFORMANCE OF HIS DUTIES SUBMITTED TO THE ESTABLISHMENT BOARD WAS IN FAVOUR OF HIS INTEGRATION . IT EMERGED FROM THE ORAL PROCEDURE THAT THE APPLICANT WAS HEARD BY THE ESTABLISHMENT BOARD AFTER HIS SUPERIORS HAD BEEN HEARD BUT THAT HE WAS NOT INVITED TO SUBMIT HIS FURTHER COMMENTS ON THE FACTS FOR EVALUATION WHICH THE SAID BOARD OBTAINED LATER, IN PARTICULAR AT ITS FOURTH MEETING WHEN IT DREW UP ITS UNFAVOURABLE OPINION . THIS OMISSION MUST IN ITSELF LEAD TO THE NULLITY OF THE DISPUTED OPINION AS WELL AS OF THE CONTESTED DECISION .

C - THE CLAIM FOR DAMAGES

DURING THE ORAL PROCEDURE THE APPLICANT AMENDED HIS CLAIM FOR PAYMENT OF DAMAGES AND INTEREST THEREON AND ASKED FOR PAYMENT OF DAMAGES LIMITED TO HIS ' SALARY UP TO THE DATE OF JUDGMENT '. THE CONCLUSIONS COMPRISING THE CLAIMS FOR DAMAGES CONTAINED IN THE PLEADINGS WERE ALTERNATIVE CLAIMS TO THE APPLICATIONS FOR THE ANNULMENT OF THE CONTESTED DECISION . IN FACT THEY WERE PLEADED IN CASE THE COURT WERE TO HOLD THAT THE INVALIDITY OF THE OPINION OF THE ESTABLISHMENT BOARD DOES NOT INVALIDATE THE TERMINATION OF THE CONTRACT OF EMPLOYMENT . ON THE OTHER HAND THE CLAIMS MADE DURING THE ORAL PROCEDURE WERE PUT FORWARD IN CASE THE COURT WERE TO HOLD THAT THE CONTESTED DECISION IS NULL AND VOID . THE APPLICANT HAS THEREFORE BY IMPLICATION WITHDRAWN THE CONCLUSIONS FORMULATED IN HIS APPLICATION .

UNDER ARTICLE 19 OF THE PROTOCOL ON THE STATUTE OF THE COURT, ANNEXED TO THE EEC TREATY, AND ARTICLE 38 ( 1 ) ( D ) OF THE RULES OF PROCEDURE OF THE COURT, THE SUBMISSIONS OF THE APPLICANT MUST BE CONTAINED IN HIS APPLICATION . IN THIS CASE THE CLAIM FOR REIMBURSEMENT OF ARREARS OF SALARY IS ONE OF THE CONSEQUENCES OF THE JUDGMENT OF THE COURT THAT THE CONTESTED DECISION IS NULL AND VOID . IN FACT IF THE CONTESTED DECISION TO DISMISS THE APPLICANT IS ANNULLED, HE MUST BE CONSIDERED TO BE STILL IN THE SERVICE OF THE COMMISSION AND IS ENTITLED TO CONTINUE TO RECEIVE HIS MONTHLY SALARY UNLESS AND UNTIL A NEW DECISION TO DISMISS HIM IS LAWFULLY TAKEN . IN THESE CIRCUMSTANCES HE IS ENTITLED TO BE PAID THE ARREARS OF HIS MONTHLY SALARY AND ACCOMPANYING ALLOWANCES UNTIL HIS REINSTATEMENT IN THE SERVICE, THE AMOUNT OF THESE PAYMENTS TO BE FIXED BY THE COMMISSION, ACCOUNT BEING TAKEN OF ANY SUMS WHICH THE APPLICANT MAY HAVE RECEIVED FROM ALTERNATIVE EMPLOYMENT .

THEREFORE AS THE SAID SUBMISSIONS ARE BY IMPLICATION CONTAINED IN THOSE SEEKING THE ANNULMENT OF THE DISPUTED DECISION TO DISMISS THE APPLICANT, THE PROVISIONS OF ARTICLES 19 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 38 ( 1 ) ( D ) OF THE RULES OF PROCEDURE OF THE COURT DO NOT PRECLUDE THEIR ADMISSIBILITY . AS THE COURT HOLDS THAT THE DISPUTED DECISION TO DISMISS THE APPLICANT IS NULL AND VOID THESE SUBMISSIONS ARE IN ADDITION WELL FOUNDED .

THE APPLICANT HAS SUCCEEDED IN THE ESSENTIAL POINT OF HIS APPLICATION . UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE DEFENDANT SHALL BE ORDERED TO PAY THE COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION TO TERMINATE THE CONTRACT OF EMPLOYMENT OF MR R DEGREEF, NOTIFIED TO HIM BY LETTER OF 28 JUNE 1963;

2 . ORDERS THE COMMISSION OF THE EEC TO PAY MR DEGREEF THE ARREARS OF HIS MONTHLY SALARY AND THE ACCOMPANYING ALLOWANCES FROM THE DATE OF HIS DISMISSAL, TAKING INTO ACCOUNT ANY SUMS HE MAY HAVE RECEIVED FROM ALTERNATIVE EMPLOYMENT DURING THIS PERIOD;

3 . ORDERS THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY TO PAY THE COSTS .