JUDGMENT OF 8. 7. 1965 — CASE 68/63 LUHLEICH v COMMISSION

In Case 68/63

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 — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Application for the decision of dismissal to be reversed or, alternatively, annulled

A — Submission that the decision was ultra vires

B — Submission based on infringement of essential procedural requirements

(a) Irregularities as to form

(b) Irregularities of substance

(c) Insufficient and contradictory nature of the reasons given

(d) Material inaccuracies in the facts alleged

C — Submission based on misuse of powers and abuse of procedure

2. Application for damages

3. Weighting; reimbursement of personal expenses

IV — Procedure

Grounds of judgment

I — On the submission that the decision of dismissal be reversed or, alternatively, annulled

1. On the submissions based on the irregularity of the procedure

A — The delay in preparing the probation report and the failure of the Establishment Board to hear Mr Gillot

B — The defendant's failure to make available to the Establishment Board the report of the Consolo Committee

C — The contradiction between the establishment report and the opinion of the Establishment Board

2. The submissions based on the inaccuracy of the facts alleged against the applicant

A — The note of 29 August 1961 addressed to Mr Marchetti by certain research workers

B — The question of the chromatograph

C — The applicant's relations with Mr Laurent, his first superior

D — The applicant's delay in carrying out work on the determination of certain physical constants

B — The defendant's failure to make available to the Establishment Board the report of the Consolo Committee

II — The submissions that the rejection of the applicant's complaint be reversed or, alternatively, annulled

III — On the claim for damages

IV — The claim for repayment of the sum deducted from the weighting

V — The claim for repayment of the sum paid by the applicant out of his personal funds

VI — Costs

I —. Facts

(1). On 1 November 1960 the applicant took up his duties at the Research Centre at Ispra (hereinafter referred to as the Centre) as a scientific research worker.

(2). Shortly afterwards the applicant was transferred to the Physical Chemistry Department, directed by Mr Gillot who was replaced by Mr Marchetti in July 1961.

(3). Relations between Mr Marchetti and certain research workers including the applicant became strained, and on 29 August 1961 the applicant and four of his colleagues sent a highly critical note to Mr Marchetti. On 6 December 1961 the Director of the Centre informed the applicant in writing that he would be transferred to the Chemistry Department. The transfer was confirmed by * formal decision notified to the applicant on 8 March 1962.

(4). On 16 May 1962 Mr Laurent, the applicant's immediate superior, signed his probation report. This report assesses the applicant's knowledge, ability, character and efficiency as good or satisfactory; only the applicant's adaptability and ability to work in a team were described as insufficient. Under the heading, special factors which may directly influence the above comments Mr Laurent wrote: Mr Luhleich's recent return to the Chemistry group … prevents me from forming an accurate idea of the quantity of work carried out.

(5). On 30 August 1962, the applicant addressed a very detailed complaint to the defendant, referring in particular to the following:

(6). On 21 May 1962, Mr Ritter, the Director of the Centre, signed the applicant's establishment report which

(7). On 19 February 1963, the Establishment Board:

(8). The defendant terminated the applicant contract by decision of 20 March 1963 notified to the applicant on 13 May 1963.

(9). The applicant lodged the present application on 13 June 1963.

II —. Conclusions of the parties

I —. Declare that it has jurisdiction to hear the present action;

II —. Declare admissible the present application against:

III —. On the substance of the case Principally:

IV —. …

V —. Order the defendant to pay all the costs and, if legal aid is granted, order that the sums so advanced be paid over to the Cashier of the Court of Justice.

I —. …

II —. On the substance of the case:

III —. Alternatively:

IV —. Further in the alternative and irrespective of the above:

V —. Costs:

III —. Submissions and arguments of the parties

1. Application for the decision of dismissal to be reversed or, alternatively, annulled

A —. Submission that the decision was ultra vires

B —. Submission based on infringement of essential procedural requirements

(a). Irregularities as to form

(b). Irregularities of substance

(c). Insufficient and contradictory nature of the reasons given

(d). Material inaccuracies in the facts alleged

C —. Submission based on misuse of powers and abuse of procedure

2. Application for damages

As to (a). Since the applicant has found a new post, beginning on 1 February 1964, restitutio in integrum is no longer possible. On the other hand, if annulment is a means of re-establishment, it does not constitute sufficient reparation for the material and non -material damage suffered in particular as a result of the following facts:

As to (b). The applicant imputes to the defendant wrongful acts or omissions in the conclusion, implementation and termination of the contract of employment and in its conduct after termination. He states that he has assessed the resulting loss on the basis of his age, his professional experience and the services rendered by him to the Centre.

3. Weighting; reimbursement of personal expenses

IV —. Procedure

I —. On the submission that the decision of dismissal be reversed or, alternatively, annulled

1. On the submissions based on the irregularity of the procedure

A —. The delay in preparing the probation report and the failure of the Establishment Board to hear Mr Gillot

B —. The defendant's failure to make available to the Establishment Board the report of the Consolo Committee

C —. The contradiction between the establishment report and the opinion of the Establishment Board

2. The submissions based on the inaccuracy of the facts alleged against the applicant

A —. The note of 29 August 1961 addressed to Mr Marchetti by certain research workers

B —. The question of the chromatograph

(a). These statements imply, first, that the applicant was personally responsible for the misuse of the apparatus.

(b). Secondly, the defendant's statements tend to show that, even supposing that the applicant did not personally misuse the chromatograph, he is nonetheless responsible, since he regarded himself as the head of the group.

(c). Finally, the passages in the quarterly report in question which gave rise to the present allegation are worded as follows: A chromatograph … which will be used in the analysis of samples of polyphenyl has been delivered … We will undertake the chromatographic separation of mixtures of terphenyl with the aid [of the chromatograph].

(d). The applicant also makes the general allegation that the chromatograph had never been misused and that this impression arose solely from the fact that Mr Van Almkerk had drafted the quarterly report in question in a manner open to misinterpretation.

C —. The applicant's relations with Mr Laurent, his first superior

D —. The applicant's delay in carrying out work on the determination of certain physical constants

B —. The defendant's failure to make available to the Establishment Board the report of the Consolo Committee

II —. The submissions that the rejection of the applicant's complaint be reversed or, alternatively, annulled

III —. On the claim for damages

(1). The applicant claims that the Court should order the defendant to pay him damages by reason of the irregular nature of the decision of dismissal. He leaves the amount of damages to the discretion of the Court. It follows from the considerations set out above under I (3) that these conclusions are well founded.

(2). In addition, the applicant maintains that, regardless of the legality of the decision of dismissal, he has suffered damage.

IV —. The claim for repayment of the sum deducted from the weighting

V —. The claim for repayment of the sum paid by the applicant out of his personal funds

VI —. Costs

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon examining the witnesses; Upon hearing the parties; Upon hearmg 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, especially Article 18; Having regard to the Staff Regulations of officials of the European Economic Community and the European Atomic Energy Community, especially Article 102; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially. Articles 38, 69 and 76; THE COURT (First Chamber) hereby:

1 Rules that the decision of the defendant of 20 March 1963 terminating the contract of the applicant is illegal and constitutes a wrongful act incurring the liability of the Community;

2 Orders the defendant to pay damages to the applicant equivalent to to nine times the monthly net emoluments received by him at the moment when the dismissal took effect;

3 Dismisses as inadmissible the applicant's claim for damages for loss suffered independently of the illegality of the above decision;

4 Dismisses as unfounded the request of the applicant for the payment of a weighting of 25706 Belgian francs;

5 Dismisses as inadmissible the request of the applicant for the payment of a sum expended out of his personal funds on his laboratory at Ispra.

6 Declares it unnecessary to rule on the applicant's request for the reversal or, alternatively, the annulment of the implied decision of the defendant rejecting the complaint of 30 August 1962 and for the payment of damages by virtue of the alleged illegality of that decision;

7 Orders the defendant to pay the costs of the action, including those incurred in the application for the adoption of an interim measure, in the hearing of witnesses and in the grant of legal aid;

8 Orders the defendant to pay 25000 Belgian francs to the Cashier of the Court.