Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

Mr Satya Prakash, a Doctor of natural sciences, was working at the Institute of Radio Chemistry at Karlsruhe when he was given employment with the organization at Ispra in the Joint Nuclear Research Centre with effect from 1 October 1961. He was appointed as a scientific collaborator in the Physical Chemistry Department, under the supervision of Dr Marchetti. He remained there until the Commission of the EAEC took a decision on 20 March 1963 to dismiss him, as the Establishment Board provided for by Article 102 of the Staff Regulations had on 19 February 1963 formed an opinion unfavourable to his integration.

Before the notification of this decision, Mr Prakash had already lodged Application 19/63 which was directed against a certain number of decisions, taken by his superiors, refusing to reimburse his removal expenses and to acknowledge his right to the installation allowance. He requests you to order the Commission of the EAEC to pay him the sum of 3472 DM in respect of reimbursement of his removal expenses, and a sum equivalent to one month's salary in respeot of the installation allowance.

These conclusions are repeated in Application 65/63 which is directed principally against the decision of 20 March 1963 by which he was dismissed. Mr Prakash asks you to reverse this decision or to annul it, and secondarily to order the Commission to pay damages for the wrongful acts or omissions which he asserts it committed in making, carrying out and terminating the contract. He estimates the damages at 2000000 BF for material damage and 6000000 BF for non material damage.

The examination of these matters which you have undertaken has been long and painstaking. You have been determined not to leave any stone unturned in an argument which from the applicant's side has been profuse, often emotional, and sometimes excessive in its choice of phrase. A number of procedural incidents have been involved: an order of the President of the Court has dismissed an application for the postponement of the putting into effect of the decision to dismiss the applicant. An order of the First Chamber has added to the main action an application based on Article 91 of the Rules of Procedure asking for .the production of certain documents. You spent the whole of 9 December last hearing six witnesses. Finally the speeches by the applicant's counsel and by the Commission's agent, coupled with a truly exhaustive oral hearing, have succeeded in giving you a complete understanding of the different aspects of these cases, of the pleas raised by the applicant and of the facts on which he purports to base them.

I think that in these circumstances — and this observation holds equally good for Application 68/63 made by Mr Luhleich on which I shall shortly deliver my opinion — my part must mainly be to get to the bare bones of the discussion, and to focus the discussion on a limited number of rules of law emerging from the Staff Regulations and the case-law of this Court. It must be my role to do so in the clearest, most precise and shortest possible way.

Contrary to the order in which the applications were brought, but in conformity with the order adopted in the speeches, I shall successively examine the legality of the decision of dismissal, the request for damages and finally the right to the reimbursement of the removal expenses.

I — The decision of dismissal

By a decision dated 20 March 1963, of which notice was given by a letter of 20 April 1963, the Commission of the EAEC terminated the contract which constituted the relationship between Mr Prakash and that Community. The unfavourable opinion of the Establishment Board had in fact rendered this measure inevitable. The dismissal took effect after the expiry of a period of notice of one month from the day on which notice was given. Apart from this period of notice the dismissal involved the payment of compensation equal to two months' basic salary as provided for by Article 102 of the Staff Regulations.

Thus the disputed decision constitutes both a refusal to integrate the applicant and, at the same time, the termination of his contract. The submissions made by Mr Prakash refer to either one or other of thes aspects depending on the particular point argued. These submissions are three in number:

A —. In the first place he relies on the right to security of employment, saying that the understanding of the authorities of the Ispra Centre was that he had been offered employment on a permanent basis. This would appear from his being appointed to a permanent post, as is shown by the fact that as from the moment when his laboratory actually became fit for use it would take a period of at least a year to carry out the programme of work which had been assigned ot him. Thus the letter offering him employment intentionally did not say when this was to end, contrary to the provisions of Article 214 (3) of the Treaty. As for the clause in this letter providing for the possibility of terminating the contract at any time on either side by one month's notice, Mr Prakash says that he was expressly told that this was simply a matter of form. He concludes from this that he was eligible for establishment.

B —. The second complaint made by the applicant about the decision to dismiss him is based on infringement of essential procedural requirements. This submission constitutes the essential arguments in this case. It groups under the heading of infringement of essential procedural requirements a series of complaints some of which are indeed about procedural irregularities. But others in fact deal with the material inaccuracy of the reasons on which the unfavourable opinion of the Establishment Board was based.

1. I come now to the complaints based on procedural irregularities, and these are numerous and varied. Article 102 of the Staff Regulations provides for the setting up of an Establishment Board, consisting of servants of the institution employed in a supervisory capacity, who shall be appointed thereto by the appointing authority. The Board furnishes this authority with an opinion on the ability of servants eligible for integration to carry out the duties which have been entrusted to them. It forms its opinion on the basis of a report prepared by the superiors of the person concerned on his competence, efficiency and conduct in the service. There is no need to stress the importance of the Board's functions because if its opinion is not favourable then not only can the servant not be established in the grade corresponding to the one which he had expressly or by implication attained, but his contract must generally speaking be terminated.

2. However, when the applicant thus disputes the sufficiency of the reasons given by the Establishment Board he is in fact doing so to dispute the soundness of its unfavourable opinion. Article 102 places on the Board the onus of making a value-judgment based on the conduct of the person concerned in carrying out his duties. This judgment is with a view to assessing the suitability of the person to continue to carry out those duties as an established official. You cannot substitute your own assessment for that of the Board nor can you make a general value-judgment of the conduct and ability of the applicant. On the other hand, you do have jurisdiction to satisfy yourselves as to whether the opinion issued by the Board is based on facts which are materially inaccurate, as the applicant asserts. If it is, it amounts not just to a procedural failing but is something affecting the substance of the case. I must also remind you that in this case the burden of proving the accuracy of the facts which might be called in question does not fall on the defendant institution. I must further remind you that, since the opinion as issued was a general value-judgment on the conduct of the applicant, the inaccuracy of a fact would only vitiate it for irregularity if that fact was sufficiently important for it to have an influence in itself on the judgment made by the Board.

C —. In the third place the applicant raises misuse of powers which he says vitiates the impugned decision in two ways: it is asserted that Mr Marchetti's animosity towards the applicant was continually made plain on the occasion of the various incidents to which I have already alluded, with the result that the applicant's scientific activity as a research worker was systematically and intentionally paralysed. The other aspect is that according to the applicant the integration procedure was a mere formality so far as he was concerned, and he asserts that the refusal to inter grate him was in the nature of a disciplinary measure taken because of the complaint which he had submitted to the Director of the Centre in September 1962. In his reply he even argues that, although the report of the Consolo Commission, which we shall come across again in another case, had come down in favour of the responsibility of superiors, the defendant preferred to throw this responsibility on to the shoulders of subordinates — hence the refusal to integrate him.

II — Request for damages

The conclusions concerning damages which Mr Prakash brings before you are supported by him in two ways. Even if you were to annul the decision which be attacks, this annulment would not compensate for the loss caused by the measure in view of his status as a scientist. This is because, quite apart from the affront to his reputation, the temporary interruption of his work caused him damage, so it is said, to the extent that he was thereby prevented from continuing his creative activity. If, as I suggest you should, you dismiss the conclusions for annulment of the decision, the conclusions concerning damages as thus supported will necessarily go the same way. You have already judged, in fact, that a measure which has not been shown to be unlawful cannot constitute a wrongful act or omission and thus unlawfully prejudice the honour and reputation of the person to whom it refers, unless it contains superfluous criticisms of that person. These are the terms of your judgment in Leroy delivered in a case which, like this one, was about a refusal to integrate ([1963] E.C.R. 197). In the present case the opinion of the Establishment Board, the terms of which were adopted by the Euratom Commission, does not come in for any criticism from this point of view. And the solution in the Leroy judgment is of very general application: a legal decision can never constitute a wrongful act giving rise to unlawful damage (Case 25/62, Plaumann, [1963] E.C.R. 95).

In case you should reject his conclusions for the annulment of the decision, Mr Prakash asserts that the length of notice gven to him was too short. You know that this was a period of one month by virtue of the letter offering him employment, and that Articel 102 grants, inter alia, two months' salary as supplementary compensation where a servant is dismissed pursuant to the application of this Article. The applicant thinks that the contractual period of notice could no longer be applied so rigidly after the end of the usual length of the probationary period. Furthermore he again relies on the fact that he is a scientist, which does not allow him to obtain another suitable post in such a short time.

According to your case-law the application of the contractual period of notice can only be set aside if the servant's consent was not freely given or if the period is patently unjust or onerous (De Bruyn, Rec. 1962, p. 45). And where there is a dismissal carried out in accordance with Article 102 you have strictly bound yourselves by the combined provisions of this Article and the contract (Baron de Vos, Rec. 1964, p. 639).

These principles remain valid. Mr Prakash freely consented to the conditions of his employment. He indicates that his former contract at Karlsruhe provided for a period of notice of six months. This does not mean either that his contract with Euratom was vitiated for want of consent or that the period laid down in it was patently unjust or onerous. The disadvantage of a shorter notice period was compensated for by other material advantages. A contract is a compromise and cannot consist exclusively of favourable aspects. Besides, in prolonging the contractual period by two months, Article 102 was clearly intended to effect a complete settlement of situations arising from refusals to integrate. In his opinion in the Baron de Vos case, the Advocate-General emphasized that the mandatory provisions of the Staff Regulations seemed to preclude any special assessment by the Court of each particular case. I do not see any reason in law or in fact which could lead to the adoption of a different standpoint for scientists. I invite you to confirm your case-law which has been consistent up till now and to dismiss the conclusions of Mr Prakash.

Ill — Removal expenses and installation allowance

In 1962 Mr Prakash was refused authorization to set up house at Ispra, which would have meant the reimbursement of his removal expenses and payment of the installation allowance. In application 19/63 he submitted to you various decisions express or implied taken on this subject and the Commission raised a number of objections of inadmissibility to his conclusions. Later the defendant institution expressly rejected Mr Prakash's demand and its decision of 18 April 1963 has been contested in Application 65/63 in due form. Therefore you can pass judgment on the substance of the dispute.

Before examining the fairly confused factual circumstances in which Mr Prakash met with a refusal, it is necessary to clarify which set of legal rules is applicable to this matter. Contrary to what he claims, this cannot be the Staff Regulations because unless otherwise expressly stated these only apply to officials, a status which he has never had. Nor can it be the Staff Regulations of the ECSC applicable by analogy because this application by analogy can only arise to the extent to which the position of contractual servants is not governed by the contract or by circulars of a general nature promulgated by the institution for the functioning of its departments. There was nothing in Mr Prakash's contract of employment. However the Euratom Commission had issued Circular No 50 on 24 February 1959, and its provisions were in force at the time of the matters in dispute.

The procedure is as follows: a servant who has been employed for at least six months can ask for authority to change his permanent residence. This request is transmitted to the Director of Administration by the Director of the Division to which he is posted, acting as intermediary. The latter must state that he does not see any objection to the removal and that he considers the person making the request to be capable of fulfilling the duties which have been entrusted to him and to be fit for service with the Community. Furthermore it is stated that such authorization is necessary in order to obtain the installation allowance as well as the reimbursement of removal expenses.

In other words, there must be a minimum period of service but there must also be a favourable assessment of the servant's ability by the Head of Department. Furthermore, even if these two conditions are fulfilled, the power of decision is entirely reserved to the higher authority.

Another point is that the circular lays down that the servant must present two detailed estimates one month prior to the intended removal at the latest. The administration may either approve one of them or call for an estimate from a third firm.

The above is the law applicable. What happened in fact? Mr Prakash arrived at Ispra on 1 October 1961 and submitted his request on 30 August 1962. At that time Mr Marchetti said that he was unable to confirm the servant's abilities. A second request was made on 27 September on the official form. You know that there are in existence two versions of this request. There is a photocopy held by Mr Prakash on which the Head of Department has signed under the sentences about approving the removal and about the abilities of the applicant, but without the Director's having signed. On the original, on the contrary, the same sentences are crossed out and followed by Mr Marchetti's signature dated 1 October 1962. The document carries the remark refused signed by the Assistant Director, Mr Mercereau, on 7 November.

The parties have discussed at length the reasons for and the consequences of this divergence between the two forms of the same document. According to Mr Prakash, Mr Marchetti gave his approval and returned the document to the applicant; his approval was irrevocable. According to the Commission, the Head of Department could change his mind so long as a decision had not been taken by the competent authority, and the reasons justifying such a change of mind have been given to you.

Whatever may be said of these arguments, it is certain that while the approval cannot be given without a favourable report from the Head of Department, this report is not in the nature of a decision and cannot therefore of itself create any rights. It can be altered so long as a decision has not been taken. It does not even bind the competent authority, and that authority is free to refuse to give it. Therefore the decision of 7 November 1962 does not run counter to the provisions of Circular No 50 in any way. Mr Prakash objects, in fact, that on 18 October 1962 the Personnel Department approved the removal estimate made by a Duisburg firm and that approval of the estimate means approval of the request. This is not correct; that approval was for the sum for which the administration was to be potentially responsible, but it does not mean that the principle of changing permanent resident was approved. What is more, this approval of 18 October 1962 was given under irregular circumstances which do not permit Mr Prakash to rely on it. Circular No 50 lays down that the estimates must be submitted at least one month before the intended removal. As he himself admits, it was on 12 April 1962 that Mr Prakash addressed them to the administration for approval, but the removal had been carried out in two stages on 8 January and 19 February 1962.

The applicant was clearly free to conduct this operation when he wanted, but payment for it by the Community presupposed an authority which was refused on 7 November 1962 in due and proper form. His conclusions directed against both this decision and the decision of 18 April 1963 by which the Commission rejected his complaint can only be set aside.

I am therefore of the opinion:

1 Translated from the French.