JUDGMENT OF 22. 6. 1967 — CASE 12/66 WILLAME v COMMISSION
In Case 12/66
THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and W. Strauß, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Conclusions of the parties
A — In his application, the applicant has claimed that the Court should:
Primarily
Secondarily
B — In its statement of defence, the defendant has contended that the Court should:
C — In his reply, the applicant has claimed that the Court should:
D — In its rejoinder, the defendant has contended that the Court should:
III — Submissions and arguments of the parties
A — Admissibility
B — Substance
1. First submission: irregularity of the integration procedure
2. Second submission: defects in the statement of reasons for the decision
3. Third submission: misuse of powers
4. Fourth submission: wrongful acts and omissions
IV — Procedure
Grounds of judgment
I — Admissibility
II — Substance
A — The application for annulment
1. The first submission: irregularity of the integration procedure
2. The second submission: absence or insufficiency of grounds for the decision
3. The third submission: misuse of powers
B — The claim for damages
III — Costs
I —. Facts
II —. Conclusions of the parties
A —. In his application, the applicant has claimed that the Court should:
1. Annul the contested decisions refusing to integrate the applicant and terminating his service, of which he was informed by letter of 20 December 1965, received on 21 December 1965, together with the procedural measures on which these decisions rested and in particular the unfavourable opinion of the Establishment Board and, by amending them;
2. Rule that the case be referred back to the defendant for a proper reexamination to foe made of the applicant's case;
3. Rule that following the annulment of the contested decisions the applicant shall be regarded as remaining in the service of the defendant, according to the provisions of his contract of employment;
4. Accordingly, order the defendant to pay to the applicant the emoluments due under his contract concluded before the entry into force of the Staff Regulations, taking into account any adjustments which have occurred since then, for the period between the termination of his employment by reason of the above-mentioned decisions and the notification to him of a new decision; order the defendant to pay to the applicant interest at the rate of 4.5 % per annum, calculated as regards each month's remuneration, as from the date on which the emoluments for that month should have been paid, until the date on which the applicant shall actually have received such emoluments;
5. Order the defendant to pay Bfrs. 100000 to the applicant as compensation for the non-material damage which he has suffered as a result of the irregularities vitiating both the integration procedure and the contested decisions and as a result of the wrongful acts or omissions, subject to the express right to amend this figure during the course of proceedings;
1. Order the defendant to pay to the applicant such damages and interest thereon as the Court shall consider to be in keeping with the applicant's official status and period of employment, here assessed at Bfrs. 1500000 for the material damage and Bfrs. 150000 for the non-material damage, subject to the express right to amend these figures during the course of the proceedings;
2. In addition, order the defendant to pay Bfrs. 100000 to the applicant as compensation for the non-material damage which he has suffered as a result of the irregularities and, at least, of the wrongful acts or omissions committed during the integration procedure, subject to the express right to amend this figure during the course of the proceedings;
B —. In its statement of defence, the defendant has contended that the Court should:
1. Dismiss both the primary and secondary conclusions of the applicant;
2. Declare Application 12/66 to be unfounded;
3. Order the applicant to pay the costs of the action.
C —. In his reply, the applicant has claimed that the Court should:
D —. In its rejoinder, the defendant has contended that the Court should:
III —. Submissions and arguments of the parties
A —. Admissibility
B —. Substance
1. The integration procedure followed is unlawful and contrary to general principles in that it infringes the rights of the defence;
2. The ground on which the Establishment Board justified its proposal that the applicant should not be integrated is inaccurate, insufficient and inappropriate;
3. The report of the Establishment Board is vitiated by misuse of powers;
4. The defendant's conduct during and following the integration procedure constitutes wrongful acts or omissions for which it is liable.
1. First submission: irregularity of the integration procedure
(a). The applicant maintains that the composition of the Establishment Board which drew up the second opinion was identical to that which drew up the first opinion annulled by the Court.
(b). The applicant maintains that, in his evidence given before the Establishment Board on 15 November 1965, Dr Recht stated that his annotations in black ink were made to the documents in question when he first received them, that those in red pencil were added in 1962, at the time of the first integration procedure and, finally, that he did not precisely remember when he had made his annotations in black or blue pencil. On this point the applicant makes the following observations:
(c). The applicant maintains that the Establishment Board infringed the right of defence by issuing its report on the basis of an incomplete file, knowing the file to be in such a state.
(d). The applicant alleges that he had numerous private contacts with Mr Hirsch and that this official was, therefore, in a particularly good position to make a report on his abilities.
2. Second submission: defects in the statement of reasons for the decision
(a). The applicant alleges that the statement of reasons according to which a detailed consideration of the written work of this servant nevertheless reveals grave omissions and serious shortcomings considering the minimum requirements expected of an official of this rank is itself inaccurate and insufficient. The Establishment Board regarded the work which it examined as being of a general and preliminary nature, even though it was aware that, particularly as regards the work to which it expressly refers, it was looking at a file containing no completed pieces of work, but merely drafts and preparatory memoranda.
(b). The applicant criticizes the passage in the report of the Establishment Board, to the effect that: The Board voluntarily refrained from considering Mr Willame's activities as staff representative, in spite of his request that it should do so, on the grounds that it was not competent to assess the value of these services …
3. Third submission: misuse of powers
4. Fourth submission: wrongful acts and omissions
IV —. Procedure
I —. Admissibility
II —. Substance
A —. The application for annulment
1. The first submission: irregularity of the integration procedure
(a). The applicant maintains that the rights of the defence were infringed, as the composition of the second Establishment Board was identical to that which issued the first opinion in 1963.
(b). The applicant alleges that the Establishment Board should have checked whether or not certain annotations made by Mr Recht in the margin of the documents considered had been antedated.
(c). The applicant maintains that the Establishment Board issued its report on the basis of a file which was incomplete and which it knew to be so.
(d). The applicant makes the objection that the Establishment Board did not hear Mr Hirsch, the former President of the Commission of the EAEC.
2. The second submission: absence or insufficiency of grounds for the decision
(a). The applicant criticizes the Establishment Board for failing to take the favourable evidence given by Mr Medi sufficiently into consideration.
(b). The applicant alleges that the Establishment Board wrongly criticized his attempts to prepare health and welfare statistics.
(c). The applicant alleges that the unfavourable assessment of the Establishment Board made regarding the detailed list of posts of the Directorate of Health and Safety which he had prepared was made on the basis of incomplete documents.
(d). The applicant alleges that the documents on the basis of which the Establishment Board regarded as insufficient his choice of the texts of legal provisions concerning insurance and the compensation of staff exposed to nuclear radiation were also incomplete and that in its final form this work had included six additional pages concerning industrial accidents and had contained a certain number of reference cards.
(e). The applicant criticizes the statement in the Establishment Board's opinion to the effect that the technical card-index which he had prepared regarding occupational diseases cannot be regarded as convincing evidence of the spirit of initiative required from an official in the Health and Safety Division who is responsible for social problems.
3. The third submission: misuse of powers
B —. The claim for damages
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 Articles 151 and 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 34, 90, 91 and 102; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:
I Dismisses Application 12/66, to the extent to which it refers to the annulment of the decision not to integrate the applicant and to his dismissal;
2 Orders the defendant to pay Bfrs. 100000 to the applicant by way of damages, in respect of the insufficient period of notice of dismissal;
3 Orders the defendant to bear its own costs and one half of the costs incurred by the applicant, the remainder of the costs to be borne by the applicant.