JUDGMENT OF 8. 7. 1965 — CASE 110/63 WILLAME v COMMISSION
In Case 110/63
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. Irregularity of the integration procedure
2. Inaccuracy of the reason given
3. Wrongful act or omission
IV — Procedure
Grounds off judgment
I — Admissibility
II — The substance of the case
1. The submission that the decision of dismissal should be annulled
2. The arrears of remuneration
3. The non-material damage
4. Interest
III — Costs
I —. Facts
(1). Mr Alfred Willame entered the employment of the defendant on 18 August 1958. He was assigned to the Directorate of Health and Safety where he remained, and was responsible for the Social Problems and Documentation Division.
(2). In the integration report Mr Recht, the applicant's immediate superior, made a highly critical assessment of his ability and output and stated that the applicant was not suited to the performance of his duties.
(3). On 19 February 1963 the Establishment Board issued a report according to which the applicant is not fitted to perform the duties to which he is assigned. The reasons given for this report read as follows:
(4). The parties subsequently considered the possibility of offering the applicant a contract as a temporary servant; it was not possible to reach an agreement.
(5). By letter of 27 September 1963, received by the applicant on 2 October, Mr Funck, head of the Directorate-General of Administration and Personnel, informed the applicant that at its meeting on 5 September 1963 the Commission had decided to terminate his contract.
II —. Conclusions of the parties
1. Annul the contested decisions refusing to integrate the applicant and terminating his contract contained in the letter of the defendant of 2 October 1963 addressed to the applicant, as well as all measures taken in support of these decisions, and in particular the unfavourable report of the Establishment Board and, by reversing them: state that the applicant shall be integrated under the Staff Regulations of the EAEC in the grade held at the date of integration, that is, in Grade A3, Step 4, with retroactive effect and all the consequences involved both in fact and in law;
2. Order the defendant to pay compensatory interest to the applicant at the rate of 6 % per annum on all the sums it shall be ordered to pay from the date on which it should have paid or shall be required to pay them ;
3. Order the defendant to pay the costs.
III —. Submissions and arguments of the parties
1. Irregularity of the integration procedure
(a). Contrary to Article 110 of the EEC-EAEC Staff Regulations no general implementing provision was adopted as regards the integration procedure provided for in Article 102 of the Regulations after consultation with the Staff Committee and the Staff Regulations Committee. By lasting numerous questions of procedure to which Article 102 gives no answer, the applicant attempts to demonstrate its deficient nature.
(b). The consequences of an unfavourable report by the Establishment Board are comparable to those which follow, first, the most serious penalty which may be ordered by the Disciplinary Board and, secondly, dismissal for incompetence. However, the integration procedure is not subject to the safeguards provided by the Staff Regulations in these two cases.
(c). The proceedings of the Establishment Board were secret and it reached its decision in the absence of any staff representation. There is no reason for the proceedings of this Board to be more secret man those of the Disciplinary Board.
(d). The Establishment Board did not allow the applicant time to produce documents establishing the quality of his work:
(e). The applicant had only one day before his appearance before the Establishment Board in which to examine the thirty-six documents produced by Mr Recht to demonstrate his incompetence. At that time the applicant was unable to see the effect which these documents would have on the proceedings.
(f). At no time was the applicant assured that the statements made against him were properly verified. The content of these statements was only communicated to him orally and the minutes do not mention whether the Establishment Board checked whether the criticisms made by Mr Recht were justified by the file which he had submitted. In fact, this file and its submission are not mentioned in the minutes and it does not appear that they were discussed. In the light of the contrary opinion held by Vice-President Medi, the Board should have shown caution in accepting the judgment made by Mr Recht.
(g). No precise criteria having been established by the competent authorities, there was no uniformity in the standards adopted in the integration reports and this led to widely differing views being taken of similar situations.
(h). Complaints made against the applicant were not established in proceedings in which he was able to argue his case.
(i). Since Vice-President Medi firmly dismissed the accusations of Mr Recht, the Establishment Board should have invited him to appear before it. It is significant that Mr Medi considered the integration of the applicant to be a foregone conclusion.
(k). The report or the Establishment Board was not notified to the applicant in due form; he was informed of it only on receiving the dismissal decision, with the result that he was unable to raise its illegality before the defendant had made up its mind.
(l). This omission also constitutes a failure to give proper reasons for the decision; in fact, in order to refuse the integration of the applicant the defendant made use of a report which granted it, although at a grade immediately below. By mutilating the text of its communication, the defendant rendered it impossible for the applicant to defend himself properly.
As to (a). Article 102 of the Staff Regulations is sufficiently explicit for it to be applied without prior formalities.
As to (b). The rights of officials are not automatically acquired by staff holding contracts in the period before the entry into force of the Staff Regulations.
As to (c). The very nature of the proceedings required confidentiality; this would have been infringed by the presence of a representative of the staff. Moreover, the applicant made use of his right to the assistance of another member of the staff.
As to (d). During his hearing, the applicant submitted certain documents to the Establishment Board; during the meeting these documents were circulated among the members of the Board; at the end of the meeting they were returned to the applicant with the result that it is no longer possible to determine precisely what documents were involved.
As to (e). The documents in question had been drawn up by the applicant himself, with the result that he required only a short time in which to examine them.
As to (f). It is clear from the minutes of the Establishment Board that the applicant was able to make observations on each of the five complaints made by Mr Recht.
As to (g). It is true that the comments made by certain superiors were more generous than those made by others but the Establishment Board equated the assessments of the several reporters.
As to (h). It is clear from the case-law of the Court that the Establishment Board was not bound to allow the applicant to argue his case.
As to (i). Mr Medi was not the superior of the applicant or of Mr Recht. Moreover, his remarks were not addressed to the Establishment Board but to the Euratom Commission.
As to (k). There is no rule of law compelling the defendant to inform the applicant of the report of the Establishment Board.
as to (k) and (l). The Establishment Board had no power to decide in favour of establishment in a lower grade; thus the passage referred to by the applicant only amounts to a recommendation.
2. Inaccuracy of the reason given
(a). The applicant s file shows that, before the integration procedure began, his work was never unfavourably reported on by Mr Recht. As an example the applicant alleges that in November 1961 he had asked Mr Recht whether a departmental reorganization in which he (the applicant) was involved represented a measure penalizing professional mis-conduct or any other form of criticism. Mr Recht made no reply although he would not have failed to criticize the applicant had he been in a position to do so. In fact, the animosity shown by Dr Recht to the applicant was almost common knowledge. This animosity dates from 1961 when the applicant, in his capacity as staff representative, opposed Mr Recht's insistance that the medical services to be created in the various centres of the Community be placed under his direction.
(b). From June 1959 the applicant played an important role in the representation of the staff; this work, time-consuming and often difficult, took up most of his time.
3. Wrongful act or omission
IV —. Procedure
I —. Admissibility
II —. The substance of the case
1. The submission that the decision of dismissal should be annulled
(a). The applicant maintains that the defendant infringed Article 110 of the Staff Regulations of the EEC and EAEC by failing to draw up general provisions for giving effect to Article 102 of those Regulations concerning the integration procedure, after consulting the Staff Committee and the Staff Regulations Committee.
(b). The applicant maintains that as the consequences of an unfavourable opinion by the Establishment Board may be compared with those of the most serious disciplinary measures and of dismissal for incompetence the integration procedure should have been accompanied by safeguards similar to those laid down by the Staff Regulations in these two cases.
(c). The applicant complains that the Establishment Board did not allow him sufficient time to provide it with all the documents, amounting to 450 pages, with which he intended to demonstrate his ability to perform bis duties.
(d). The applicant maintains that the Establishment Board did not give him sufficient time to examine the 36 documents produced by Mr Recht, his superior, in order to demonstrate the inability of the applicant to perform his duties.
(e). The applicant alleges that, as the substance of Mr Recht's statements was only communicated to him orally, he could never be sure that the Establishment Board had checked whether the criticisms were justified by the file which he had submitted.
(f). The applicant points out that in the absence of precise criteria drawn up by the defendant the comments made on the various servants of the defendant for the purposes of the integration procedure were widely different, according to the degree of severity shown by each superior.
(g). The applicant criticizes the Establishment Board for having failed to allow him a confrontation with Mr Recht.
(h). The applicant maintains that as he was not informed of the opinion of the Establishment Board before being informed of the decision to dismiss him he was thereby deprived of the opportunity of invoking the illegality of that opinion at a time when the defendant had not yet made up its mind.
(i). The applicant complains that, by concealing from him the fact that the Establishment Board had recommended his integration in the grade immediately below, the defendant rendered it impossible for him to defend himself properly.
(k). The applicant states that the unfavourable assessment made by Mr Recht and endorsed by the Establishment Board was in fact influenced by the personal animosity which Mr Recht had felt for him since the occurrence of certain specific events.
(l). In his reply, the applicant maintains that the Establishment Board acted improperly in failing to hear Mr Medi, Vice-President of the Commission of the EAEC.
(m). The Establishment Board is criticized for failing to take sufficient account of the extent and quality of the applicant's activities as staff representative.
(n). It follows from the consideration set out above (under (1)) that the integration procedure is vitiated by a serious defect.
2. The arrears of remuneration
(a). The applicant claims, in the first place, that the defendant should be ordered to pay him the arrears of remuneration payable following his integration.
(b). Alternatively, the applicant claims payment of remuneration appropriate to his duties that is, Bfrs 45502 net per month, from at the least the date on which he ceased to perform his duties until the defendant has taken a valid decision concerning him.
3. The non-material damage
(a). As regards the first part of this submission the claim is in principle well founded, since the irregularity committed by the defendant constituted a wrongful act or omission as a result of which the applicant suffered non-material damage.
(b). As regards the second part of this submission, the applicant refers to alleged equivocations by the defendant during the discussions which took place between the parties in order to reach an amicable settlement on the conclusion of a new contract of employment.
4. Interest
III —. Costs
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; 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 Article 69; THE COURT (First Chamber) hereby :
1 Annuls the decision of 5 September 1963 by which the defendant terminated the contract of the applicant;
2 Refers the case back to the defendant in order that the integration procedure be reopened as regards the applicant;
3 (a) Orders the defendant to pay to the applicant the emoluments due under his contract, concluded before the entry into force of the Staff Regulations, for the period between the termination of his employment by reason of the abovementioned decision and the notification to him of a new decision on the question of his integration; (b) Where appropriate the sum referred to under (a) shall be reduced by the amount of: (α) the net remuneration received by the applicant from employment outside the Community between the dates referred to above; (β) the emoluments received by the applicant from the defendant by reason of his dismissal; (c) (α) Orders the defendant to pay to the applicant annual interest at a rate of 4½ % on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given; (β) The period over which such interest is due begins, as regard each month's remuneration, on the date on which the emoluments for the month in question should have been paid and expires on the date on which the applicant shall actually receive such emoluments;
(a) Orders the defendant to pay to the applicant the emoluments due under his contract, concluded before the entry into force of the Staff Regulations, for the period between the termination of his employment by reason of the abovementioned decision and the notification to him of a new decision on the question of his integration;
(b) Where appropriate the sum referred to under (a) shall be reduced by the amount of:
(α) the net remuneration received by the applicant from employment outside the Community between the dates referred to above;
(β) the emoluments received by the applicant from the defendant by reason of his dismissal;
(c) (α) Orders the defendant to pay to the applicant annual interest at a rate of 4½ % on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given; (β) The period over which such interest is due begins, as regard each month's remuneration, on the date on which the emoluments for the month in question should have been paid and expires on the date on which the applicant shall actually receive such emoluments;
(α) Orders the defendant to pay to the applicant annual interest at a rate of 4½ % on the sum resulting from the application of subparagraphs (a) and (b) above, to the extent that this sum relates to the period before this judgment was given;
(β) The period over which such interest is due begins, as regard each month's remuneration, on the date on which the emoluments for the month in question should have been paid and expires on the date on which the applicant shall actually receive such emoluments;
4 Orders the defendant to pay to the applicant Bfrs 20000 as compensation for non-material damage;
5 Orders the defendant to pay the costs of the action.