Opinion of Mr Advocate General Roemer delivered on 10 June 1964. # Rémy Huber v Commission of the European Economic Community. # Case 78-63.

Introduction (facts, conclusions)

Legal consideration

I — Heads 1-3 of the conclusions

1. Admissibility

(a) First head of the conclusions

(b) Third head of the conclusions

2. The substance of the case

(a) Infringement of Article 110 of the Staff Regulations

(b) Infringement of Article 5 of the Staff Regulations

(c) Method of compiling reports

(d) Composition of the Establishment Board

(e) Procedure of the Establishment Board

(f) Other submissions

II — Claim for damages

III — Summary and conclusion

1.

annul the integration procedure and the Establishment Board's opinion on the applicant:

2.

annul the termination of the contract:

5.

rule that the Board must reapply the integration procedure to the applicant:

4.

order the Community or, alternatively, the Commission of the EEC to pay damages.

I —

The examination of this case will be devoted in the first place to heads 1 to 3 of the conclusions as a whole because they are all directed to restoring the applicant to the position he had prior to the commencement of the integration procedure. I shall then deal with head 4: the claim for damages,

1.

As regards admissibility, which the Commission disputes in part (heads 1 and 3 of the conclusions), I can be relatively brief.

(a)

According to the applicant, the Commission of the EEC infringed Article 110 of the Staff Regulations in so far as it failed to adopt measures for giving effect to the integration provisions in Article 102 or at least in failing to do so in accordance with the procedure under Article 110 (that is to say, after consulting the Staff Committee and the Staff Regulations Committee) and by failing to notify the staff of them.

From the facts it is certain that the Commission had already laid down on 13 December 1961‘rules’ (‘un règlement’) on the composition and working procedure of the Establishment Board and on 9 March 1962 the definitive text of the ‘Internal Rules of Procedure of the Establishment Board’ (‘Règlement intérieur de la commission d'intégration’). The Director-General of Administration notified the Staff Committee of these texts on 23 March 1962, but only by way of information and not to

obtain their opinion

The principal question is then whether Article 102 requires measures for giving effect to it, laid down in accordance with Article 110. A whole series of factors, it is true, suggest that this question should be answered in the affirmative.

in fact perusal of Article 102 gives the impression that it is essential to supplement it by implementing provisions. Article 102 only provides that there shall be set up in each institution an Establishment Board consisting of servants of the institution employed in a supervisory capacity, who shall be appointed thereto by the appointing authority. On the basis of a report furnished by the superiors of the servants concerned, this Board shall advise the appointing authority as to their suitability for the duties of their posts. Bearing in mind the enormous importance of the integration procedure for individual servants, this provision is by no means very detailed or precise.

However I believe that in the final analysis there has been no infringement of Article 110 in the present case. In fact, the view of the Commission that Article 110 only applies to the principal provisions of the Staff Regulations which are intended to have permanent application and not to the transitional provisions which lapse after a single application seems to be correct. Two arguments may be invoked to support this.

Article 110 speaks of general implementing provisions. In this connexion the adjective ‘general’, correctly understood, can only relate to the legislative nature of the implementing provisions. It must therefore be concerned with rules which are applicable to an indeterminate number of cases in the future. On the other hand Article 102 only applies to a precisely determinable number of officials, namely, to those who had a permanent post with one of the institutions of the Communities when the Staff Regulations entered into force. Moreover reference may be made to Article 107 which also appears among:he transitional provisions and which expressly requires the consultation of the staff Regulations Committee in order to idopt implementing provisions. This actor seems to me proof that in principle Article 110 does not refer to transitional provisions. If in fact it did apply to transitional provisions it would lave been unnecessary to mention the participation of the Staff Regulations Committee in Article 107, precisely because Article 110 requires the conultation of the Staff Regulations Committee as well as of the Staff Committee. Consequently, the complaint that the Commission infringed Article 110 by ailing to consult the Staff Committee and by failing to publish the internal rules of procedure of the Establishment Board before adopting those rules is unfounded.

(b)

The applicant derives a second complaint from Article 5 of the Staff Regulations. He says that the superiors' reports prescribed by Article 102 should only be prepared after the definitions of duties and powers attaching to posts have been established as required by Article 5, these being indispensable as criteria of assessment.

This complaint, too, seems to me to be unfounded. According to the clear wording of Article 102 the Establishment Board was only required to advise on the suitability of the servant to perform the duties which were entrusted to him, that is to say, on the way in which a servant, prior to the date of his establishment, discharged the duties of his post in the past. For this purpose the existing administrative organization, which could objectively ascertain the scope of the duties and activities of each servant, constituted a sufficient criterion. On the other hand, the function of the Establishment Board was not to pass judgment as to whether the servant could be usefully employed subsequently, that is to say, it was not to act as the future administrative organization of the Commission for the purposes of which the definitions of duties in Article 5 are the sole criteria.

(c)

Closely linked to the complaint based on Article 5 is a whole series of complaints also relating to the means of drawing up assessment reports.

(d)

The applicant also criticized the composition of the Establishment Board. He criticizes the participation of a member of the Commission's Legal Department who, although classified in Grade A 2, is not employed in a supervisory capacity within the meaning of Article 102, and he considers as illegal the presence at the meetings of the Establishment Board of a high official in the administration who was not a member of the Board.

These complaints do not seem to me to be well-founded. Article 102 of the Staff Regulations indeed lays down that the Establishment Board shall consist ‘of servants employed in a supervisory capacity’ (French text: ‘agents exerçant des fonctions de direction’). However I consider that this passage merely requires the participation of high-ranking servants with the necessary knowledge, experience and authority. On the con trary, it does not seem necessary to me to have heads of a directorate, that is to say, officials heading a large administrative organization. In view of the actual structure of the administration of the Commission this would have meant that the members of the Legal Department could not have been members of the Establishment Board, scarcely a desirable outcome, particularly if it is considered that the observance of proper rules of procedure must be observed in the operation of the integration procedure.

With regard to the presence of the official from the Administration Department, certain objections cannot be dismissed out of hand. As a general rule, it must be recognized that the work of the Establishment Board, which leads to important results, must not be influenced by outsiders or subjected to the risks of improper influence.

I find however from reading the minutes produced that the servant in question only participated as an observer at the Preparatory sittings, without being present it the final sitting in the course of which a decision was taken on the applicant's suitability. Consequently this factor, like:he others, does not justify a conclusion:hat the procedure of the Establishment Board was tainted with irregularity.

(e)

On the other hand, there appears to be more substance in the complaint that the Establishment Board infringed the audi alteram partem principle since the witnesses were not heard in the presence of the applicant and the applicant did not have the last word.

In this connexion, it is in my opinion of little importance whether the integration procedure should, as the applicant thinks, be considered as an administrative procedure of a judicial nature. For our examination it is sufficient to bear in mind the significance and functions of the integration procedure.

Prior to the adoption of the Staff Regulations, the staff of the European

Economic Community, in accordance with Article 246 of the Treaty, only had contracts of employment for a limited duration. They did not in principle confer any right to a permanent post; but, as is laid down in the case-law of the Court (Cases 43, 45, 48/59 Rec. 1960), their termination must be ‘justified for reasons connected with the interest of the service’, which suggests a certain amount of security of tenure. The entry into force of the new Staff Regulations involved a modification of that legal position. It strengthened the legal position of the servants, in the sense that any servant occupying a permanent post in one of the institutions of the Community must be allowed to undergo an assessment for the purposes of the examination of the question whether he ought to be integrated. If the examination produced a favourable result, he was in practice appointed as an established official, clearly and rightly, in recognition of a kind of ‘expectancy’ on the part of those officials, a good number of whom had worked for the Commission for several years. If the examination produced a negative result, under the Staff Regulations the contract of employment had as a general rule to be terminated.

The examination procedure was therefore of very great legal importance to servants' careers. In my opinion it follows from this that it had to be conducted with the greatest possible care and with the aim of arriving at a most conscientious and objective examination of suitability for the service. Since, moreover, the objective of the procedure consisted in making value-judgments which, as such, were not subject to judicial review, there should have been a guarantee that no criterion which could have influenced the formation of the value-judgment was neglected.

This is the basis on which appraisal of the particular complaints put forward may be made. From a perusal of the minutes produced we know that in the applicant's case the Establishment Board heard his superiors and another servant of the Commission. We know nothing of what took place at the hearing, as no minutes were drawn up. The applicant declared, without being contradicted, that he was not informed of the terms of the evidence given; consequently he was unable to submit comments on it. The possibility cannot be excluded that the general conclusion arrived at by the Establishment Board might have been influenced by the applicant's comments which might have contradicted or added to this evidence. The failure to hear the applicant therefore constitutes a procedural irregularity which the Court cannot overlook. To return to the wording of the judgment in the Leroy case which also gave a decision on the integration procedure: the Establishment Board wrongly omitted to give the person concerned an opportunity ‘to comment on any points likely to influence the decision as to his establishment’.

This procedural irregularity cannot result in the Court's attempting to obtain an idea of the importance of the evidence of the superiors and of the observations of the person concerned in this connexion. If the Court is unwilling to put itself in the position of the administration, which alone is competent to appraise the suitabilities of the person concerned for the post, the sole solution remaining is to annul the measures taken which failed to observe the necessary rules of procedure and to send the case back to the executive for a fresh examination.

In my opinion this last complaint at least is by itself sufficient to justify the annulment of the opinion of the Establishment Board and of the decision to dismiss the applicant which is based on the opinion.

(f)

It might therefore appear pointless to examine the other complaints in the application. However I should like to show in a few words that the remaining complaints are not valid.

II —

Finally, it remains for me to deal with the head of the conclusions relating to damages, which, under the influence of the judgment in Case 18/63, was amended in the course of the oral part of the proceedings to the effect that the applicant claims the sums which he would have received in salary from the time of his dismissal.

There is little to say on this head of the conclusions. If in fact, as I consider it should, the opinion of the Establishment Board, and therefore of the Commission's decision of dismissal, must be annulled, it is a necessary consequence that the applicant must continue in the service of the Commission and that he is entitled to his monthly salary, in accordance with the contract made on his appointment. No reason in fact exists for not applying in the present case the principles which the Court laid down in Case 18/63.

But I wonder whether it would be appropriate to mention in the operative part of the judgment an order to pay a specific sum. It may in fact be thought fit to subtract from the sum claimed the sums obtained by the applicant in another employment after the date of his dismissal by the Commission. This is the reason why the Court should limit itself to pronouncing in principle the obligation to pay damages in the judgment, and to leave the Commission to comply with the terms of the judgment taking account of the factual situation.