Opinion of Mr Advocate General Gand delivered on 17 March 1965. # Hartmut Luhleich v Commission of the EAEC. # Case 68-63.

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The circumstances in which the probation report was prepared were irregular and its preparation -was belated. Although the applicant took up his appointment on 1 November 1960, the form was only filled in on 16 May 1962; this was done by Mr Laurent who had only been his Head of Department for two months and his former superiors were not requested to give their assessment of him; it was only submitted to him .for signature in September 1962 and then in January 1963. Although, as I have said, the probationary period has scarcely any justification or legal consequences in a contractual system, a delay which, in this case, appears excessive and unjustifiable is greatly to be regretted; in no way, however, does it influence the regularity of .the integration procedure which legally and factually is distinct from the procedure taking place at the end of the probationary period. In particular, the fact that Mr Guéron made the following comment on the probation report: ‘No change in the position existing before the entry into force of the Staff Regulations’, does not and cannot affect in any way the decision on integration which alone is at issue here.

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Without over-emphasizing it, the applicant points out that in his opinion the -preparation of the establishment report by Dr Ritter and Mr Guéron contravened Article 102, since these two were not his immediate superiors. However, the Article of the Staff Regulations to which he refers employs on such adjective. Moreover, he challenges the right of these two senior officials to make an assessment of his abilities, his experience and his work but this is a purely groundless statement on his part.

(a)

That Mr Luhleich has never wished to recognize any authority other than that of the Director of the Establishment is a fact, or rather an assessment, which I find difficult to dispute in the light of the file and the evidence given both before the Establishment Board and during the oral procedure before you; this assessment is not based on any factual inaccuracy. It is not even surprising if it is remembered that the applicant has maintained, in particular in his complaint of 30 August 1962, that he had been promised direct attachment to the Directorate of the Establishment, an allegation which has been formally denied by Dr Ritter both ‘before you and the Board by his stating that it is’‘inconceivable that a small group of research workers should be directly attached to the Directorate’. He persisted in this attitude during the entire period of his employment at the Joint Research Centre. It will be sufficient for us, without reconsidering the very full statement made by the Agent of the Commission in his oral arguments, to note several significant factors. It is indisputable that from his appointment Mr Luhleich refused to work out his probationary period at Grenoble, as he was requested to do by Mr Laurent, because at that time no fully equipped laboratory existed at Ispra and because there he could familiarize himself with his new work.

This attitude manifested itself most of all when Mr Marchetti was Director of the Physical Chemistry Department; it resulted in the joint letter of 29 August 1961, of which the applicant declared before the Establishment Board that he ‘adhered to all the statements contained therein’. Following the long discussions of this document which have taken place before you, I need not emphasize this point. I shall simply make the following observation: the applicant cannot seriously claim that at that period he was unaware that Mr Marchetti was his Head of Department (the letter states, moreover, that the addressee did not appear competent to direct a university-trained group)—and it was this Head of Department who was invited by his colleagues to consider the immediate possibility of finding other ‘openings’. This is undoubtedly a refusal to recognize the authority of the administration which, even if expressed confidentially, is contrary to the principles governing any public body. It is unimportant that signature of this letter has not prevented the integration of certain of those involved, or that the applicant did not instigate this approach to Mr Marchetti, since the letter indicates the state of mind for which he is criticized. It is also unimportant that Mr Marchetti — and here I think that he was wrong — did not react immediately, since this letter is the outward manifestation of a tendency which ought to have lead the Directorate of the Establishment to break up what it referred to as a ‘resistance group’. You will also remember the testimony of Mr Hannaert, the applicant's last Head of Department, who, as Dr Ritter has told you, was more flexible in his attitudes than Mr Marchetti. According to his evidence, ‘Mr Luhleich never desired the respect of the administration and never accepted supervisory authority, whether of the Head of the Joint Group or of the Department to which he was attached’.

You will find that the same ‘criticism of the applicant was made before the Establishment Board by Professor Lindner and Mr Mercereau’ and that it was repeated before you by the latter. Even if, as one witness has stated, the applicant's attitude could have been justified at the beginning by certain ‘misunderstandings’ —an allegation which is, moreover, specifically contested by the defendant institution — it is clear that his attitude did not change and undoubtedly represents a refusal to recognize the administration. I consider it unnecessary to bring further evidence on this point.

(b)

The Establishment Board also criticized Mr Luhleich's ‘tendency towards autonomy in his work’. Like the earlier one this assessment is considered by the applicant in his application to be ‘rather a compliment as regards an experimental scientist’ than a ground of complaint. This reaction is curious and significant in that it appears to misunderstand the task of an establishment such as the Ispra Centre, the aim of which is the realization of a programme based on the needs of the Community. Implementation of this programme implies certain obligations on the part of the research workers, namely that their work should fall within the more general framework determined by the authorities of the Commission and that they carry out research which is considered necessary to the programme or is at least compatible with it rather than research which they find interesting. That the superiors concerned consider the abilities — and even the wishes — of each research worker in determining the tasks to be entrusted to him is a condition both of the efficient performance of the work and the spirit of cooperation within the establishment, but this does not imply that each research worker is free to determine the area of his research, his preserve, at the risk of duplicating work or of compromising the realization of the general programme. Thus, any criticisms made of the applicant's desire for independence in his research work are not made for their own sake but because of the effect of this desire on his efficiency as regards that programme.

Having made these general observations, I come to an extremely technical area in which the Court risks going astray if, instead of remaining in the field of law, it attempts to meet the scientists on their own ground. The Establishment Board, criticized by the applicant on the ground that it was not composed of specialists, devoted at least as much time to the intended programme and research work as to problems of discipline. Nor will you have forgotten the hearings of witnesses at which equally qualified specialists discussed, without always being able to agree, the usefulness or otherwise of the chromatograph, or whether from a scientific point of view there is a basic difference between the concepts of ‘analysis’ and ‘control’. I freely admit that I did not always grasp the full significance of their observations.

However, I repeat that it is not for you to recast the work of the Establishment Board; your task is merely to verify that the assessment made by the Board after reading the file and hearing the evidence of witnesses is not based on an error of fact. Its opinion is drawn up in general terms and mentions no specific facts; a reading of the minutes shows, however, that various Heads of Department considered either that during the initial period the applicant gave them no assistance (the opinion of Mr Laurent), or that his experience in the field of fractional distillation was even less suited to the activity of the Physical Chemistry Group, since he exhibited a distrustful attitude (opinion of Mr Marchetti), or, finally, as regards 1962, that he showed indifference to the performance of work entrusted to him for the measuring of the physical constants of terphenyls because he preferred to pursue work in the field of distillation; it was on this Occasion that a chromatograph entrusted to him to test the purity of certain products had been misued to develop methods of analysis already in use in an adjoining laboratory (opinion of Mr Hannaert). According to the Director-General for Research, this indifference made it necessary for Euratom to enter into an outside contract, thus incurring additional expenses of 20000 units of account.

I shall not take up all these points. I shall merely say that the applicant, assigned first to the Chemistry Department, was unsuccessfully requested by Mr Laurent to make suggestions for the programme as regards this section; he made no reply. At the same time, however, he participated in the preparation of the Initial Work Programme within the context of the Physical Chemistry Department. According to the defendant institution, this programme involved several research subjects covered by the Chemistry Department, which explains why the necessary credits were refused to him. The correspondence which passed at this period between the applicant and Mr Laurent while the applicant was undertaking a more or less properly authorized journey indicates his tendency to want to choose his own mission. On 9 January 1961 he wrote ‘our proposals, aimed at finding a field of work within this framework (that of the Chemistry Department), always failed either because the post in question was already taken or because there was no provision for the Chemistry Group to carry out the work which we proposed'’; this was the reason for which he intended to transfer to the Physical Chemistry Group. And eight days later he is writing again: ‘The programme which we have submitted to the Physical Chemistry Group is completely in accordance with our wishes and includes a type of activity which we would like to initiate at Ispra’.

The same tendency is seen in 1962 when the Orgel project required precise data on the physical constants of organic fluids (terphenyls) used in die reactor as cooling agents and heat conductors. At a meeting in Brussels on 16 January the names of Mr Luhleich and his colleague Mr Kuhlboersch were mentioned. Directives were given almost immediately in two notes of 25 January that they should measure five physical constants and develop practical methods of removing certain impurities from fluids; the priorities of the programme were laid down at a meeting on 28 February and it was agreed that during the first stage only those properties of immediate interest to the project should be studied. A joint group was set up, directed by Mr Hannaert and including Mr Luhleich. It is clear from notes drafted by the applicant himself following various discussions that he showed a certain unwillingness in performing tasks which he considered purely routine. When it was insisted that he carry out this work, his reply was: ‘I suggest that other work be ultimately considered’. When reminded that the measuring of constants took priority over fractional distillation, his special subject, he replied again: ‘I will state clearly that I shall continue with my own work, since I did not come to Euratom in order to carry out solely routine work with existing equipment already developed by others’. In order to pacify him, Mr Hannaert allowed him to include in his programme the determination of the constant liquid-gas equilibrium which, although not a priority in the Orgel programme, was of interest to him and actually appeared in the Initial Work Programme of 11 January 1961. These facts are not disputed and support the assessment made by the Board.

On the other hand, one fact has given rise to more controversy, that is, the use of a chromatograph for purposes not included in the programme, which led to the performance of part of the work outside the Research Centre. Although Mr Luhleich devotes only a few lines of his application to this point, the discussion during the oral procedure was so wide that it threatened to absorb every aspect of the case. Let me try to understand the incident and replace it in the general context of the applicant's employment.

A note of 11 July 1962 from Mr Hannaert addressed to Mr Luhleich (and to him alone) put at his disposal for an indeterminate period a chromatograph purchased from Orgel credits and allocated to the Organic Chemistry Department for the group dealing with organic analyses. It was specified that ‘as agreed’ this apparatus would only be used by Mr Luhleich and his group in order to check the purity of polyphenyls obtained by distillation, the physical constants of which were to be measured by the applicant. Thus, according to the defendant, the purpose of the apparatus was to test whether, after distillation, the polyphenyls were purer than before, in other words, whether the distillation technique was efficient. However, as we know, Mr Luhleich was essentially interested in fractional distillation; he is criticized, on the basis of quarterly report No 3 of 12 October 1962, for having used the apparatus to develop methods of analysis which were outside the programme; this report contained the following phrase: ‘A high-temperature gaseous-phase chromatograph or aerograph intended for the analysis of samples of polyphenyls has been delivered. Experiments are being carried out in order to select the most appropriate fractionating material’.

This report, which concerns the activities of the three responsible specialists, Messrs Luhleich, Kuhlboersch and Van Almkerk, was signed only by the last two as the applicant was absent at the time; it was drafted by Mr Kuhlboersch, who, at ‘his hearing before you, described as absurd the phrase which had slipped inadvertently into the report concerning the selection of fractionating material. He considered that, as the following quarterly report showed that the recording apparatus was not working, this report should have spoken of an attempt to put the chromotograph in working order’.

Be that as it may, Mr Van der Venne and Mr Hannaert, considering that this report was evidence of misuse of the apparatus, communicated it to the Director of the Orgel project and, since the joint group was not in a position to carry out its tasks, proposed that new methods should be developed in 1963 by means of outside contracts, a solution which was accepted by the Director-General for Research. Several months later, the use of the chromatograph was withdrawn from Luhleich and his group.

You will remember the different positions adopted by the witnesses on whether or not the chromatograph was actually misused, on whether or not it was in working order and on whether or not it had been adapted for another purpose. I must confess that I cannot answer all these points with certainty; I must therefore return to the field of law. We are concerned with a problem of evidence; the material inaccuracy of the allegation of fact on which the opinion of the Establishment Board is based has not been proved and this is sufficient to justify the opinion. This, however, settles only part of the question. Can the misuse be imputed to Luhleich when it seems clear that the apparatus was in fact used by Van Almkerk and when the report of 12 October 1962 was not signed by the applicant? The applicant can only be made responsible for the alleged misuse if he was at least actually or virtually, if not legally, in charge of the group. For although, as is shown by the report of 12 October, there really was a group made up of these three specialists, it appears that no formal decision was ever taken by his superiors giving him responsibility for it. However, there appears to be no doubt that he was in fact the head of the group even if we only consider the memoranda which he himself brought forward in evidence; moreover, it should be remembered that the application instituting the proceedings is presented in the name of Mr Luhleich, ‘head of group in the Chemistry Department’. Throughout the whole of 1962 he alone took part in the discussions with the Heads of Department concerning the work on the physical constants of organic fluids. In April 1962 he alone presented a budget application, just as it was he who, over a long period, requested that he be supplied with a chromatograph. In particular, the note from Mr Hannaert of 11 July 1962 laying down conditions for the use of the apparatus was addressed to Mr Luhleich alone, even if it was also intended to apply to his group. It was therefore the applicant's duty to ensure that the chromatograph was used according to the instructions received and it is unlikely that Mr Van Almkerk could have disobeyed the instructions without his knowledge. His superiors were therefore justified in holding him responsible for an incident the inaccuracy of which he has been unable to establish.

I shall add that, although the chromatograph incident is revealing, it is not the whole of the matter; it constitutes only one manifestation of the independent attitude shown generally by the applicant towards his research work. Therefore I consider the opinion of the Establishment Board to be justified and that the complaint against it must be set aside.