JUDGMENT OF 8. 7. 1965 — JOINED CASES 19 AND 65/63 PRAKASH v COMMISSION
In Joined Cases 19 and 65/63
THE COURT (First Chamber) composed of: L. Delvaux, acting President of Chamber, A. Trabucchi and W. Strauß (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts
1. Removal expenses and installation allowance (Case 19/63, Case 65/63, fifth head of the conclusions)
2. Non-integration (Case 65/63, first to fourth heads of the conclusions)
II — Conclusions of the parties
1. Case 19/63
2. Case 65/63
III — Submissions and arguments of the parties
1. Removel expenses and installation allowance
A — Admissibility of Application 19/63
B — Basis of the applicant's request
2. Non-integration and related matters
A — Application for the decision to be reversed or, alternatively, annulled
1. Submission that the decision was ultra vires
2. Submission based on infringement of essential procedural requirements
(a) Irregularities as to form
(b) Irregularities as to substance
(c) Insufficient reasons given; contradiction tantamount to lack of reasons
(d) Material inaccuracies in the facts alleged
3. Submission based on misuse of powers and misuse of procedure
B — Action for damages
C — Weighting and repatriation expenses
IV— Procedure
Grounds of judgment
I — As to Case 19/63
II — As to Application 65/63
1. As to the admissibility of the application and of certain pleadings
2. As to the substances of the case
A — Non-integration and dismissal
(a) The first submission
(b) The second submission
(c) The third submission
B — Claim for damages
C — Removal expenses from place of origin to place of employment and installation allowance
D — Weighting
E — Offers of proof
III — Costs
I —. Summary of the facts
1. Removal expenses and installation allowance (Case 19/63, Case 65/63, fifth head of the conclusions)
A. By letter dated 12 April 1962 the applicant sent the Head of the Personnel and Social Department of the Centre the estimates of two removal firms concerning his proposed removal to Italy, at the same time asking the said Department to take a decision as regards the choice of a firm for my removal which is to take place later.
B. On 30 August 1962 the applicant sent a request to the administration asking for approval of his removal and installation. For this purpose he used a printed form which included, among other matters, the following :
C. On 27 September 1962 the applicant submitted another request of like nature to the said Department. This was made in duplicate and the same sort of form was used. On 1 October 1962 Mr Marchetti signed one of these without making any deletions and gave it back to the applicant who personally took it to the administration. On the other copy, which Mr Marchetti retained, the printed text Removal approved … employment by the Commission (cf. B, above) was later crossed out. This copy was sent to the administration in this form.
D. Subsequently the applicant was told that the Directorate of the Centre had refused to give the approval in question.
E. During the period between November 1962 and March 1963 the applicant lodged a series of complaints against this refusal both with a number of the defendant's departments and with the Commission itself.
F. By an express decision dated 18 April 1963 the Commission rejected the applicant's complaints.
2. Non-integration (Case 65/63, first to fourth heads of the conclusions)
A. On 31 August 1962 Mr Marchetti drew up and signed the probation report on the applicant, and concluded in the following terms:
B. On 31 August 1962 Mr Marchetti also signed the applicant's establishment report. This report.
C. On 16 January 1963, Mr Marchetti sent the applicant a memorandum worded as follows:
D. By letter dated 25 April 1963, and received on 29 April, the administration department of the defendant told the applicant:
E. On 27 May 1963 the applicant made Application 65/63 which is directed essentially against the abovementioned decision.
II —. Conclusions of the parties
1. Case 19/63
1. declare that the application is admissible by virtue of Article 192 of the Euratom Treaty, and Articles 90 and 91 of the Staff Regulations;
2. rule that the application is justified as to the substance and accordingly reverse the contested decisions whereby the defendant has refused to reimburse the applicant's removal expenses and to grant him the installation allowance;
3. as to costs: order the EAEC to pay the costs and expenses of the proceedings, or, should the applicant be granted legal aid, order sums equal to the amounts paid out as legal aid to be paid over to the Cashier of the Court in accordance with Article 76 (5) of the Rules of Procedure.
2. Case 65/63
I —. declare that it has jurisdiction to take cognizance of the present dispute;
II —. state that this application is admissible against:
III —. As to the substance of the case :
IV —. Measures of inquiry
V —. reverse the defendant's express decision of (18 April 1963) in so far as it refuses reimbursement of the applicant's removal expenses and refuses to grant him the installation allowance;
VI —. order the defendant to pay all costs and expenses and order appropriate sums to be paid over to the Cashier of the Court of Justice in accordance with the provisions concerning legal aid.
I —. …
II —. …
III —. as to the substance of the case :
IV —. alternatively :
V —. in the further alternative and in any event:
VI —. as to costs :
III —. Submissions and arguments of the parties
1. Removel expenses and installation allowance
A —. Admissibility of Application 19/63
B —. Basis of the applicant's request
2. Non-integration and related matters
A —. Application for the decision to be reversed or, alternatively, annulled
1. Submission that the decision was ultra vires
2. Submission based on infringement of essential procedural requirements
(a). Irregularities as to form
(b). Irregularities as to substance
(c). Insufficient reasons given; contradiction tantamount to lack of reasons
(d). Material inaccuracies in the facts alleged
3. Submission based on misuse of powers and misuse of procedure
B —. Action for damages
C —. Weighting and repatriation expenses
IV—. Procedure
I —. As to Case 19/63
II —. As to Application 65/63
1. As to the admissibility of the application and of certain pleadings
(a). The admissibility of the application as such is not challenged and there is no reason for the Court to raise the matter of its own motion.
(b). However, the parties to the present dispute have, on occasions, referred to the respective pleadings of the parties in another case, registered under the number 68/63.
(c). The applicant requests that the file of correspondence exchanged between his former employer and his Head of Department at Ispra be withdrawn. This file was produced by the defendant in order to demonstrate the correctness of its assessment of the applicant.
(d). The defendant contends that the Court should order the exclusion from the oral proceedings of certain papers described by the applicant as Gedachtnisprotokolle (notes for refreshing the memory), and taking the form of notes which the applicant had drafted at the time for his own personal use. The applicant has stated that he does not intend to treat these notes, which were drafted by himself alone, as evidence. In these circumstance, there is nothing to prevent the production of the notes by way of factual argument, subject to the Court's examination in the same way as any other argument put forward by a party.
2. As to the substances of the case
A —. Non-integration and dismissal
(a). The first submission
(b). The second submission
1. The applicant asserts that the defendant infringed Article 110 of the Staff Regulations by failing to hold consultations with the Staff Committee and the Staff Regulations Committee before drawing up the rules applicable to the probation and integration procedures.
2. The applicant criticizes the fact that the Establishment Board did not confront him with his superiors who had passed unfavourable judgments on him, both in the establishment report and also before the Establishment Board.
3. The applicant asserts that the Establishment Board failed to show him the minutes of the evidence given by his superiors.
4. The applicant alleges that the Establishment Board did not include any scientific research worker and was therefore not in a position to reach a firm conclusion on matters of pure science.
5. The applicant alleges that the report on his probationary period was drawn up considerably later than it should have been and that the different procedures for probation and integration were merged.
6. The applicant asserts that his personal file was not kept as it should have been. In particular, he alleges that certain documents were missing from it, and that others were improperly included.
7. The applicant points out that his Head of Department committed a particularly serious irregularity in putting the date 5 November 1962 on his supplementary comments on the establishment report when, in fact, he made those observations after the Director of the Centre had made his assessment on 6 or 11 November. According to the applicant, it appears from the original of the report that Mr Marchetti's comments were originally dated 11 November, but that the figure was subsequently erased and replaced by the figure 5.
8. The applicant claims that certain comments appearing in the probation and establishment reports respectively contradict each other, namely the excellent relations within the Department as against his insufficient ability to work in a team, and his difficulty in clearly defining the methods of carrying out his projects as against his great capacity of self-expression.
9. The applicant criticizes the vague and imprecise drafting of the reasons given by the Establishment Board.
10. The applicant asserts that the opinion of the Establishment Board is based on allegations of fact which are materially inaccurate.
(c). The third submission
B —. Claim for damages
(a). The principal head of the applicant's claim concerns damage suffered as a result of the wrongful act or omission vitiating the disputed decision.
(b). Alternatively, the applicant considers himself entitled to damages even in the event of the Court's not admitting the illegality of the decision impugned.
C —. Removal expenses from place of origin to place of employment and installation allowance
D —. Weighting
E —. Offers of proof
III —. Costs
On those grounds, Upon reading the pleadings, Upon hearing the report of the Judge-Rapporteur, Upon hearing the parties; Upon hearing the evidence of the witnesses; Upon hearing the opinion of the Advocate-General ; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to the Staff Regulations of officials of the European Economic Community and the European Atomic Energy Community, especially Articles 102 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 76, THE COURT (First Chamber) hereby :
1 Rules that no decision is required in Application 19/63;
2 Dismisses Application 65/63 as unfounded;
3 Orders the applicant to bear his own costs, including his costs in the application for the adoption of an interim measure;
4 Orders the applicant to pay over the sum of 25000 BF to the Cashier of the Court;
5 Orders the defendant to bear its own costs, including its costs in the application for the adoption of an interim measure, and also the whole of the costs occasioned by the hearing of the witnesses.