OPINION OF MR DUTHEILLET DE LAMOTHE — CASE 19/70 ALMINI V COMMISSION

Mr President,

Members of the Court,

Mr Almini who had entered the service of the High Authority of the ECSC in 1954, performed the duties of Director of Personnel of that institution in Grade A 2 until 28 March 1968.

Consequent upon the merger and the restructuring activities of the services necessitated thereby, Mr Almini was appointed Director of Publications in the Commission's Directorate-General for Personnel and Administration on 28 March 1968.

But at that same time the competent authorities—under, it must be said, somewhat confused conditions—were engaged on the establishment of an Office for Publications of the Communities the creation of which was envisaged by Article 8 of a decision of the representatives of the Governments of Member States, annexed to the Merger Treaty.

Their work resulted in a decision of 16 January 1969, to which I shall in due course return, whereby the Office for Official Publications of the Communities was organized.

But at this point one realizes that no arrangements had been made for getting together the staff of this new body.

It was in fact considered mat the Director of the Office be an official in Grade A 2 but at that time no post in that grade was vacant.

Obviously, from that point of view it might have seemed simpler to appoint Mr Almini to the post as he was performing identical duties and was already established in Grade A 2.

But for reasons which are somewhat complex this was not the solution adopted by the Commission.

Acting upon a proposal of the Management Committee of the Office of 18 April 1969, the Commission decided on 23 July of that year:

Some months later, at its 106th meeting on 14 January 1970, the Commission acting on the proposal of Mr Bodson, resolved to retire Mr Almini in the interests of the service under the provisions of Article 50 of the Staff Regulations.

It instructed Mr Bodson to put the necessary procedure into operation and it was even laid down that this matter had to be settled by 21 January.

It proved impossible to adhere to this time-table but matters nevertheless moved quite fast since the Commission on 11 February decided to retire Mr Almini in the interests of the service, at the same time declaring vacant three posts in Grade A 2.

In tne present application Mr Almini s principal and essential claim is that the Court should annul the decision to retire him and his alternative claim is that, in so far as may be necessary, the appointments of Messrs Reichling and Leclerc should be annulled and that he should be awarded damages.

Clearly it is the mam conclusions directed against the decision to retire him, which must first be examined and which call for the longest explanation.

I

I think that the Court will have to accede to the applicant's submissions on this point, for the decision contested under the main head of claim seems vitiated by several illegalities or irregularities such as to justify its annulment.

1. I think that in the course of the procedure which resulted in his service being terminated Mr Almini was not afforded those safeguards the observance of which is one of the conditions of the legality of the measure finally adopted. Unlike certain national regulations, the Staff Regulations in fact apply in principle even to officials occupying the highest posts in the service, that is to say, officials in Grades A 1 and A 2.

2. This it seems to me could also be done for a second reason.

3. In the applicant's view there finally remains a third ground for annulment.

II

Since there are at least two grounds which seem to lead to an annulment of the act contested in the main submission, I shall be quite brief on the other submissions and arguments contained in the application.

In support of his arguments tor annulment of the decision to retire him from his post, the applicant puts forward two further grounds in addition to those already examined:

I am therefore of the opinion that:

1 Translated from the French.