Opinion of mr advocate-general M. Lagrange

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:

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:

A —. 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.

B —. 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.

C —. 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:

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

I am therefore of the opinion that:

1 Translated from the French.