OPINION OF MR GAND — CASE 68/63 LUHLEICH v COMMISSION

Mr President, Members of the Court,

Mr Hartmut Luhleich, a Doctor of natural sciences with a degree in chemistry, had been an assistant at the University of Cologne for four years when, alter a proposal from the Federal Ministry of Atomic Energy and after contacting Dr Ritter, he was employed at Ispra. He actually took up his appointment on 1 November 1960 and was classified in Grade A6, Step 2. You are aware of the manner in which his career developed. He was first posted to the Chemistry Department, then in January 1961 was transferred to the Physical Chemistry Department which was at that time under the authority of Monsieur Gillot, the interim Head of Department, but from 1 July 1961 was under the authority of Mr Marchetti. Following certain incidents with which I will deal later, he was transferred back to the Chemistry Department by a decision of which he was informed in writing on 6 December 1961, but of which his new Head of Department was only informed in February 1962. Since this date he participated in the work of a mixed group, the coordination of which is undertaken by Mr Hannaert, Head of the Organic Chemistry Department, and which deals with the physical constants of terphenyls. It might be supposed from these successive transfers that Mr Luhleich found no situation at Ispra which met his aspirations; this led to a number of approaches to his superiors and above all to an administrative complaint addressed through his advocates on 30 August 1962 to the Commission of Euratom. He complained of a failure to carry out the promises made to him before his appointment, that his classification at Ispra was unsuitable for the head of an independent group and did not correspond to his experience and abilities. He alleges that his career prospects were impaired since he was unable to work normally on his special project. He requested a review of his position and compensation for the treatment he had suffered, which he considered to be unjust. In order to study this complaint, the institution established a committee of three members which prepared a report known as the Consolo Report, the conclusions of which, although communicated to you, appear to have produced no changes at an administrative level.

At this point the procedure which takes place .prior to integration was already in motion and the preparation of a report on the abilities of Mr Luhleich led to his lodging a further complaint on 25 October 1962. Discussion of the applicant's case before the Establishement Board was particularly wide and involved the hearing of a dozen witnesses: the Director-General for Research, the Director and Assistant Director of the institution and Heads of Sections or Departments. The applicant was heard for more than three hours. Finally, the Board issued an opinion unfavourable to his integration, following which the Commission of the EAEC decided on 20 March 1963 to terminate Mr Luhleich's contract which came to an end on 13 June 1963. Two applications for the suspension of the operation of this decision were dismissed by the Commission and by the President of the Court of Justice respectively. It was in these circumstances that on 13 June 1963 Mr Luhleich lodged an application the primary object of which is the annulment of the implied decision rejecting his administrative complaint of 30 August 1962 and the decision refusing his integration. He is requesting you to rule that he should be classified in Grade A3, or at least A4, from 1 January 1962. In addition, by reason of the wrongful acts or omissions on the part of the Community in the conclusion and performance of his contract, he is claiming damages which he assesses at 3 million Belgian francs for material damage suffered and at 7 million Belgian francs for non-material damage. Finally, in his reply, he requests that the defendant be ordered to pay him 25706 Belgian francs representing the weighting payable during the period before the entry into force of the Staff Regulations which was deducted from his compensation for dismissal and 1698 DM as reimbursement of personal expenses incurred by him at Ispra.

The inquiry into his application has been as long and as thorough as that undertaken in the case of Mr Prakash, since you have heard no less than ten witnesses, one of them on two occasions. Here also the written and oral procedures have enabled you to make a profound study of all the aspects of this case, some of which are extremely technical. Finally, the fact that the submissions of Mr Luhleich frequently follow those of Mr Prakash will enable me, by presenting my opinion in the same order, to pass more rapidly over certain submissions in order to concentrate on the particular features of the. applicant's position.

The application for annulment and the claim for damages with the annexed pecuniary claims are the two points which I shall consider in succession.

I — Refusal to integrate the applicant

In support of his conclusions Mr Luhleich relies, in the same order, on the three submissions which were also presented by Mr Prakash.

(1) As regards the procedure followed in the case, the submissions of the applicant closely resemble those of Application 65/63 on many points.

A —. First, and for the same reasons, he claims to have the right to security of employment, all the more so as he was authorized to move and take up his duties at Ispra and was appointed on the basis of his special knowledge, both of which facts show that the Commission intended his appointment to be lasting.

B —. Infringement of an essential procedural requirement —Under this heading Mr Luhleich lists widely differing complaints which concern procedural defects as much as the validity of the contested decision.

(1) As regards the procedure followed in the case, the submissions of the applicant closely resemble those of Application 65/63 on many points.

(2). Thus the Board makes two basic criticisms of Mr Luhleich: first, his claim to independence within the administrative structure which led to his refusal to (recognize the authority of his immediate superiors except that of Mr Gillot, his interim Head of Department; secondly, his claim to autonomy in research which led to his failure to accept the obligations inherent in the service of an establishment such as Ispra, both of which seriously affected the efficiency which the institution was entitled to expect of him and made him unsuited to the performance of his duties.

C —. Misuse of powers —Under this heading Mr Luhleich recapitulates certain facts already set out in order to show that there had been intentional and systematic attempts to paralyse his scientific activities as a research worker, either by preventing fulfilment of the promises that he should work directly under the authority of the Director-General or by transferring him in November 1961 to the Chemistry Department, instead of constituting with the other signatories of the letter an autonomous group not subject to the authority of Mr Marchetti and thus excluding the applicant from the fouling programme in which he had collaborated, or finally — and he emphasizes this point — by systematically depriving him of credits. General responsibility for all this could, be imputed to the unflagging animosity shown towards him by the Director-General for Research. However, as I have said, the promises made to the applicant have in no way been fulfilled. His transfer in November 1961 was justified in the interests of the department. As to his complaint about lack of funds, the Commission disputes the applicant's allegations and replies that it is not obliged to grant financial resources for personal research work which is not part of the agreed programme. Since the above really only amounts to supposition, it cannot constitute misuse of powers.

II — Claim for damages

The applicant has claimed damages of three million Belgian francs for the material damage which he has suffered and seven million Belgian francs for the non-material damage.

To the extent that these conclusions are submitted whatever the outcome of the application for reversal, they conflict— if you dismiss the conclusions against the refusal to integrate the applicant — with the case-law in the Plaumann and Leroy cases.

However, the applicant's conclusions are based not only on the wrongful acts or omissions on the part of the Commission in the conclusion, performance and termination of the contract but also on its conduct after this termination.

Let me say at once that I do not consider his submissions to be justified.

There remain two subsidiary financial claims:

The explanations; given at the hearing by the Agent of the Commission show that these, sums had been used to purchase equipment, and that Mr Luhleich had been repaid in kind by being allowed to remove it. If I have correctly understood the reply given by counsel for the applicant the conclusions on this point must be regarded as withdrawn.

I am therefore of the opinion that