OPINION OF MR ROEMER — CASE 26/63 PISTOJ v COMMISSION

Mr President,

Members of the Court,

The third in a series of cases concerning integration puts to us the question whether it is proper for the Commission of the EEC to refuse to integrate a contractual official.

We are concerned here with a servant taken into the service of the EEC by a decision of the Commission of 4 September 1958, who was assigned to the Directorate-General of the Internal Market, as Head of the Services Division. His salary corresponded at the beginning to that of Grade A 3, Step 2, in the salary scale of the Staff Regulations of the ECSC. Later it was increased by his classification in Grade A 3, Step 5, as from 1 March 1960.

As in the two Cases 78 and 80/63, the integration procedure of Article 102 of the Staff Regulations ended in a result unfavourable to the applicant. This result was notified to him by a letter from the Directorate-General of Administration of 14 March 1963.

At the same time he was offered integration in Grade A 4, Step 6, with seniority from 1 June 1961, in the Directorate-General of Administration in the Library and Documentation Department. The applicant was given eight days from such notification in which to accept this offer.

Subsequently, attempts were made to obtain an extension of time. They led to refusals by the Director-General of Administration by letter of 22 March 1963 and, following a new request on 25 March 1963, by the Head of the Directorate of Budget and Finance by letter of 11 April 1963.

Finally, the Directorate-General of Administration informed the applicant on 6 May 1963 that his employment with the Commission was being terminated on three months' notice.

Those are the facts.

The application made to the Court on the basis of all these events claims that the Court should:

Alternatively:

Legal consideration

The fact that the conclusions and the submissions overlap at least in part those of Cases 78/63 and 80/63 will help us to consider these facts.

That is why, for the moment, I am going to deal particularly only with the points which have not yet been dealt with in those cases or which appear in another light in the present case, taking into account its particular facts; for the rest I shall content myself with a simple repetition.

I — The principal conclusions 1 to 5

1. In repect of the admissibility of the principal conclusions which the Commission disputes with the exception of head 2, I can already take advantage of the possibility of referring back. In my opinion, as explained in Cases 78/63 and 80/63, there is no reason to dismiss a part of the conclusions as inadmissible in the operative part of the judgment.

2. Similarly, so far as the merits are concerned, Case 78/63 already gives the answer to a series of problems.

3. With all that in mind, it only remains to take up a position again on the procedure of the Establishment Board and possibly on the ground of complaint that the Board based its appraisal on incorrect data.

4. As a result, in respect of the applicant's principal conclusions I must keep to this: I find the existence in the integration procedure of a series of serious infringements of important rules of procedure. It is thus essential to annul the opinion of the Establishment Board. In the same way the Commission's decision of dismissal must be annulled, because in the absence of the unfavourable opinion of the Establishment Board the applicant would have remained in the service of the Commission. It follows that the Commission should be obliged to recommence the integration procedure. At the same time it is certain that the applicant remains in the service of the Commission with all the rights flowing from his former position.

II — Alternative conclusions

An examination of the applicant's alternative conclusions and of all the arguments concerning the way in which his situation has been terminated thus becomes unnecessary. The same goes for the application for damages, at least in so far as it was amended in the event of the disputed opinion's being annulled, in the sense that only the salary which was withheld must be paid.

III — The Final Opinion

To sum up I should state that the application appears to me to be well-founded and that in consequence the Commission must be ordered to pay the costs.

1 Translated from the French version.