Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

Mr Alfred Willame, a French national, who had taken part in union activity and who was from 1950 a member of the French Economic and Social Council, entered the service of the EAEC on 18 August 1958. He was assigned in Grade A3 to the Directorate of Health and Safety as head of the division dealing with social problems and documentation. From November 1958 he was involved in the formation of a Euratom staff association; he was elected by his colleagues to the original Joint Committee (comité mixte) and thereafter sat on both the provisional Staff Committee and the present Joint Committee (commission paritaire).

On the opening of the integration procedure on 13 April 1962 his immediate superior, Dr Recht, made the following assessment of him: on the occasions on which he had actually (been engaged on the work of the Directorate he showed neither the knowledge nor the abilities needed to deal with the tasks allotted to him and this in an area in which only properly conceived, positive action, performed in a spirit of initiative and with steadfastness was capable of producing results. It must be added here that the Vice-President of Euratom, Mr Medi, made the following note on this report: Above opinion not agreed, particularly as regards the very severe strictures on certain points. After integration it will be advisable to reorganize the duties of the post.

On 18 December 1962, having received this report the Establishment Board heard Dr Recht who, after describing the post held by the applicant, made a detailed criticism of the way in which he performed his duties. On 8 February 1963, the Board heard both Mr Willame and the colleague who was assisting him. It received from both parties documents to which I shall refer later and on 19 February issued a seasoned report indicating that Mr Willame was not fitted to perform the duties to which he was assigned; the Board added, however, that the appointing authority should consider his establishment in the grade immediately below.

On 3 April 1963 the applicant was informed verbally of the intention of the Commission of Euratom not to integrate him and on 8 May, together with several of his colleagues; he demanded a review of the integration procedure; this was refused and he was so informed on 30 May. Some rather confused discussions took place with a view to giving him a new contract as a temporary servant; these were suspended, reopened and finally completely broken off. Eventually, on 2 October 1963 Mr Willame was informed that, following the unfavourable opinion of the Establishment Board, the Commission had decided to terminate his contract.

In the main he is asking you to annul the decisions contained in this letter refusing him integration and terminating his contract, as well as the measures taken in support of these decisions, to order his integration in Grade A3, Step 4, with retroactive effect and to order the Community to pay him arrears of remuneration together with Bfrs 150000 as compensation for the non-material damage which he has suffered.

He also presents a subsidiary plea, the object of which is, as I understand it, the reopening of the integration procedure and an order chat the defendant pay him his salary from the date on which he gave up his duties until a valid, new decision is taken. As yet a further subsidiary plea, should the contested decisions not be annulled, he increases his claims for damages to Bfrs 1500000 for the material damage and Bfrs 150000 for the non-material damage.

You will have to rule on two submissions: first, the regularity of the procedure and, secondly, the accuracy of the reason given by the Establishment Board on which the decision of the Commission of the EAEC was based. I shall examine them in turn.

A — Regularity of the procedure

Although the complaints, certain of which were already set out in the official claim, are numerous they are by no means all of equal weight.

B — Correctness of the reason given by the Board

The decision is based on the unfavourable opinion issued according to Article 102 and binding on the appointing authority. Mr Willame's second submission thus contests the opinion of the consultative body.

You are aware of the terms of this opinion. The Commission maintains, first, that although by their nature the duties of the candidate as staff representative do not fall within its area of judgment the detrimental effect necessarily implied by this plurality of offices as regards his output in the post must be taken into account in his favour. Then, after acknowledging that he had some capacity for dealing with social problems, the Commission criticizes the applicant for certain failings as regards his ability, bis sense of initiative and responsibility and his capacity to carry out in depth the work undertaken; it is on this point that the Board bases its opinion that he was unsuited to perform the duties of head of division.

Mr Willame's criticism of this opinion, the reasons for which he considers inaccurate, insufficient and inappropriate, is based on two points.

I am therefore of the opinion that:

1 Translated from the French.