61967CJ0016_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 16/67
HENRI LABEYRIE, HEAD OF DIVISION AT THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDENT AT ISPRA, ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, TAKING THE PLACE OF THE COMMISSION OF THE EAEC PURSUANT TO ARTICLE 9 OF THE TREATY OF 8 APRIL 1965, REPRESENTED BY ITS LEGAL ADVISER, MAURICE PRELLE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES,
DEFENDANT,
Subject of the case
APPLICATION
( A ) FOR THE ANNULMENT OF THE DECISION CONTAINED IN THE NOTE ADDRESSED TO THE APPLICANT ON 22 NOVEMBER 1966 BY MR MERCEREAU, DEPUTY DIRECTOR OF THE RESEARCH CENTRE AT ISPRA, TO THE EXTENT TO WHICH IT AMOUNTS TO A REFUSAL OF THE APPLICANT'S REQUEST TO PERMIT HIM, BEFORE ANY DECISION WAS TAKEN, TO SUBMIT TO THE ADVISORY COMMITTEE ON PURCHASES AND SALES A DETAILED OPINION CONCERNING THE SELECTION OF AN UNDERTAKING TO MAINTAIN THE INSTALLATIONS OF THE CENTRE AND ALSO FOR THE ANNULMENT OF THE FIRST PARAGRAPH OF THE MEMORANDUM ADDRESSED TO HIM ON 2 DECEMBER 1966 BY MR KRAMERS, DIRECTOR OF THE RESEARCH CENTRE AT ISPRA TO THE EXTENT TO WHICH IT CONFIRMS THE SAID NOTE OF MR MERCEREAU ( HEADS 1 AND 2 OF THE CONCLUSIONS IN THE APPLICATION );
( B ) FOR A DECLARATION THAT THE APPLICANT HAS BEEN GIVEN THE NECESSARY POWERS AND IS ENTITLED TO SUPERVISE THE ACTIVITIES OF THE INRASTRUCTURE DEPARTMENT AND TO GIVE HIS OPINION ON ALL PROPOSALS EMANATING FROM THIS DEPARTMENT ( HEAD 4 OF THE CONCLUSIONS IN THE APPLICATION ) AND FOR THE ANNULMENT OF THE ORAL DECISION OF MR KRAMERS TO RELIEVE HIM PROVISIONALLY OF THE TASK OF SUPERVISING THE INFRASTRUCTURE DEPARTMENT ( HEAD 3 OF THE SAID CONCLUSIONS );
( C ) FOR THE ANNULMENT OF THE REPRIMANDS CONTAINED IN THE SECOND AND THIRD PARAGRAPHS OF THE SAID MEMORANDUM OF MR KRAMERS ( HEADS 5 AND 6 OF THE SAID CONCLUSIONS );
( D ) FOR THE AWARD TO THE APPLICANT OF DAMAGES AND INTEREST ( HEADS 7 AND 8 OF THE SAID CONCLUSIONS ),
Grounds
P . 301
I - THE APPLICATION FOR ANNULMENT
THE APPLICATION IS FOR THE ANNULMENT OF VARIOUS DECISIONS WHICH IN THE VIEW OF THE APPLICANT ARE CONTAINED IN OR CONFIRMED BY NOTES OR MEMORANDA PASSING BETWEEN HIM AND HIS SUPERIORS . IT IS NECESSARY TO EXAMINE BOTH THE ADMISSIBILITY AND THE MERITS OF THESE DIFFERENT CLAIMS SEPARATELY .
A - THE REFUSAL TO PERMIT THE APPLICANT TO GIVE HIS OPINION TO THE ADVISORY COMMITTEE ON PURCHASES AND SALES
THE APPLICANT IN THE FIRST INSTANCE CRITICIZES THE REFUSAL OF MR MERCEREAU, DEPUTY DIRECTOR OF THE RESEARCH CENTRE AT ISPRA, IN HIS NOTE OF 22 NOVEMBER 1966, CONFIRMED BY THE DIRECTOR OF THE CENTRE IN HIS MEMORANDUM OF 2 DECEMBER 1966, TO GRANT THE APPLICANT'S REQUEST TO GIVE HIS OPINION CONCERNING THE SELECTION OF AN UNDERTAKING FOR THE MAINTENANCE OF THE INSTALLATIONS OF THE CENTRE .
IN THE CONTESTED MEASURES A SERVANT'S SUPERIORS IN THE SERVICE TAKE NOTE OF A PROPOSAL MADE BY HIM RELATING TO THE RUNNING OF THE DEPARTMENT AND DECIDE HOW TO DEAL WITH IT . SUCH MEASURES ARE CONCERNED EXCLUSIVELY WITH MATTERS INTERNAL TO THE SERVICE AND THE WAY IN WHICH THE ADMINISTRATION IS CARRIED OUT . THEY ARE NOT THEREFORE MEASURES WHICH CAN BE ANNULLED UNDER ARTICLE 91 OF THE STAFF REGULATIONS SO THAT THIS CLAIM MUST BE DISMISSED AS INADMISSIBLE .
P . 302
B - THE DECISION TO RELIEVE THE APPLICANT PROVISIONALLY OF THE TASK OF SUPERVISING THE INFRASTRUCTURE DEPARTMENT
1 . ADMISSIBILITY
ON THIS POINT THE APPLICANT SUBMITS FIRST OF ALL THAT THE DIRECTOR OF THE RESEARCH CENTRE DID NOT HAVE THE POWERS TO DECIDE UPON THIS STEP . HE SUBMITS IN ADDITION THAT IT INFRINGES ARTICLE 25 OF THE STAFF REGULATIONS . HE FURTHER SUBMITS THAT IT AMOUNTS TO A CONCEALED REPRIMAND GIVEN IN BREACH OF THE PROCEDURAL REQUIREMENTS FOR DISCIPLINARY PROCEEDINGS AND FINALLY THAT IT IS ALSO DEFECTIVE BECAUSE THERE HAS BEEN A MISUSE OF POWERS, IN THAT ITS AIM IS TO PREVENT THE OBSERVATIONS OF THE APPLICANT FROM DRAWING THE ATTENTION OF THE HIGHER AUTHORITIES TO CERTAIN ANOMALIES AND IRREGULARITIES IN THE DEPARTMENTS .
ON THE FACTS SUBMITTED TO THE COURT IT IS CLEAR THAT THE DIRECTOR OF THE CENTRE IN FACT REMOVED THE INFRASTRUCTURE DEPARTMENT FROM THE ADMINISTRATIVE UNIT FOR WHICH THE APPLICANT WAS RESPONSIBLE, EVEN THOUGH THIS ACTION WAS MERELY PROVISIONAL .
THE HIGHER AUTHORITY ALONE IS RESPONSIBLE FOR THE ORGANIZATION OF DEPARTMENTS WHICH IT MUST BE ABLE TO DETERMINE AND MODIFY ACCORDING TO THE EXIGENCIES OF THE SERVICE, SUBJECT HOWEVER TO THE NECESSITY TO RESPECT THE RIGHTS WHICH SERVANTS ENJOY UNDER THEIR STAFF REGULATIONS AND WHICH THEY CAN ASK THE COURT TO ENFORCE . IN PARTICULAR IT IS CLEAR FROM ARTICLES 5 AND 7 OF THE STAFF REGULATIONS THAT AN OFFICIAL HAS THE RIGHT TO EXPECT THAT THE DUTIES WHICH ARE ASSIGNED TO HIM SHOULD AS A WHOLE BE IN KEEPING WITH THE POST WHICH CORRESPONDS TO THE GRADE WHICH HE OCCUPIES IN THE SCALE OF POSTS : WITHDRAWING FROM AN OFFICIAL ONE OR MORE OF THE DEPARTMENTS FOR WHICH HE WAS PREVIOUSLY RESPONSIBLE MAY IN CERTAIN CIRCUMSTANCES AMOUNT TO AN INFRINGEMENT OF THIS RIGHT . THE APPLICATION MUST THEREFORE BE REGARDED AS ADMISSIBLE .
2 . THE SUBSTANCE OF THE CASE
( A ) IT APPEARS FROM THE FILE AND FROM THE ORAL SUBMISSIONS OF THE PARTIES THAT THE CONTESTED MEASURE WAS TAKEN AT A TIME WHEN THERE HAD BEEN REPEATED INCIDENTS AND DISPUTES BETWEEN THE APPLICANT AND THE HEAD OF THE INFRASTRUCTURE DEPARTMENT, AN OFFICIAL WHO HAD THE SAME GRADE AS HE BUT WHO WAS SUBORDINATE TO HIM . THE DIRECTOR OF THE RESEARCH CENTRE WAS ENTITLED TO REGARD THIS SITUATION AS DETRIMENTAL TO THE EFFICIENT FUNCTIONING OF THE SERVICE AND THAT IT WAS THEREFORE NECESSARY TO TAKE WITHOUT DELAY PROVISIONAL MEASURES SUCH AS THE SUSPENSION OF THE WORKING RELATIONSHIP BETWEEN THESE TWO OFFICIALS . THERE IS NO DOUBT THAT IN THE ABSENCE OF A PROPERLY EXECUTED DELEGATION OF POWERS, WHICH HAS NOT BEEN PRODUCED IN THIS CASE, IT IS THE COMMISSION WHICH HAS THE AUTHORITY TO ORGANIZE ITS DEPARTMENTS BUT THIS FACT DOES NOT MEAN THAT A PROVISIONAL MEASURE CANNOT BE TAKEN IN THIS RESPECT WHEN THE EXIGENCIES OF THE SERVICE REQUIRE URGENT ACTION TO BE TAKEN . THE FACT THAT THIS PROVISIONAL MEASURE REMAINED IN FORCE FOR A LONG PERIOD IS PARTLY EXPLAINED BY THE INVESTIGATIONS CARRIED OUT, AT THE INSTANCE OF THE APPLICANT HIMSELF, INTO THE CIRCUMSTANCES WHICH GAVE RISE TO THE DISPUTE BETWEEN HIM AND HIS SUBORDINATE . IN THESE CIRCUMSTANCES THERE IS NO JUSTIFICATION FOR THE VIEW THAT A MEASURE WHICH WAS IN FACT FINAL WAS TAKEN IN THE GUISE OF A PROVISIONAL MEASURE BY AN AUTHORITY NOT EMPOWERED TO TAKE SUCH ACTION .
P . 303
( B ) THE APPLICANT SUBMITS IN THE SECOND PLACE THAT THE FAILURE TO NOTIFY HIM OF AND TO STATE THE REASONS FOR THE MEASURE WHICH HE CRITIZES IS AN INFRINGEMENT OF ARTICLE 25 OF THE STAFF REGULATIONS .
THE FIRST POINT TO NOTE IS THAT THE CONTESTED MEASURE WAS COMMUNICATED IN WRITING TO THE APPLICANT BY MR KRAMER'S MEMORANDUM OF 2 DECEMBER 1966 . THE FACTS OF THIS CASE SHOW THAT THIS COMMUNICATION WAS MADE IN WRITING WITHIN A SHORT TIME AND THAT THERE HAS BEEN NO INFRINGEMENT OF THE STAFF REGULATIONS . NEXT, IT FOLLOWS FROM WHAT HAS BEEN STATED AT ( A ) ABOVE THAT THE MEASURE WHICH IS CRITICIZED MUST BE REGARDED AS PROVISIONAL AND AS HAVING BEEN TAKEN BECAUSE OF THE URGENT REQUIREMENTS OF THE SERVICE . HAVING REGARD TO THE NATURE OF THE CONTESTED MEASURE THE REASONS CONTAINED IN THE MEMORANDUM OF 2 DECEMBER 1966 MUST IN THIS CASE BE REGARDED AS ADEQUATE .
( C ) THE APPLICANT THEN SUBMITS, ON THE ONE HAND, THAT THE CONTESTED MEASURE IS A CONCEALED REPRIMAND ADMINISTERED IN BREACH OF THE FORMAL REQUIREMENTS PRESCRIBED FOR DISCIPLINARY PROCEEDINGS AND, ON THE OTHER HAND, THAT THE EXPRESS PURPOSE OF THIS MEASURE WAS TO PREVENT THE APPLICANT'S OBSERVATIONS FROM SUCCEEDING IN DRAWING THE ATTENTION OF THE HIGHER AUTHORITIES TO CERTAIN ANOMALIES AND IRREGULARITIES . THE APPLICANT HAS NOT PRODUCED ANY EVIDENCE IN SUPPORT OF THIS SUBMISSION WHICH MAKES IT PERMISSIBLE TO PRESUME THAT THE DIRECTOR OF THE RESEARCH CENTRE, WHO, MOREOVER, WAS ACTING WITHIN HIS POWERS, EXERCISED THEM WITH AN OBJECTIVE IN MIND OTHER THAN THE INTERESTS OF THE SERVICE . THE FACT - WHICH ALL PARTIES TO THESE PROCEEDINGS ACCEPT - THAT INVESTIGATIONS HAVE BEEN CARRIED OUT, OR ARE IN PROGRESS, INTO THE QUESTIONS RAISED BY THE PRESENT CASE CONTRADICTS THE APPLICANT'S ALLEGATIONS AND AT THE SAME TIME CONFIRMS THAT ARTICLE 24 OF THE RULES OF PROCEDURE HAS BEEN OBSERVED .
( D ) IN THE OPINION OF THE DEFENDANT THE FACT THAT THE SUBMISSIONS UNDER ( B ) AND ( C ) ARE NOT CONTAINED IN THE APPLICATION RENDERS THEM INADMISSIBLE UNDER ARTICLE 42(2 ) OF THE RULES OF PROCEDURE .
AS THESE SUBMISSIONS HAVE BEEN DECLARED TO BE UNFOUNDED THE QUESTION OF THEIR ADMISSIBILITY HAS CEASED TO BE RELEVANT .
C - THE ALLEGED REPRIMAND
MERE OBSERVATIONS ADDRESSED TO AN OFFICIAL BY HIS SUPERIOR, SUCH AS THOSE CONTAINED IN PARAGRAPHS 2 AND 3 OF MR KRAMERS'S MEMORANDUM, ARE NOT A DISCIPLINARY MEASURE BUT AN INTERNAL ADMINISTRATIVE MEASURE, WHICH CANNOT BE THE SUBJECT OF AN APPEAL TO THE COURT . SUCH OBSERVATIONS ARE NOT INTENDED TO AND CANNOT HAVE THE LEGAL EFFECTS OF A DISCIPLINARY MEASURE . ON THIS ISSUE THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .
II - THE CLAIM FOR DAMAGES
THE APPLICANT CLAIMS COMPENSATION FOR THE DAMAGE WHICH HE HAD SUFFERED AS A RESULT OF THE CONTESTED MEASURES . HE CLAIMS THE AWARD OF NOMINAL DAMAGES OF ONE BELGIAN FRANC FOR THE NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED .
WHEN THE DIRECTORATE OF THE CENTRE AT ISPRA TOOK THE MEASURES WHICH ARE THE SUBJECT OF THIS APPLICATION IT DID NOT COMMIT ANY BREACH OF DUTY . TO PUT THE MATTER MORE PRECISELY, THE RESPONSIBLE AUTHORITIES OF THE CENTRE REFRAINED FROM IMPLEMENTING THE APPLICANT'S PROPOSALS TO CALL HIS SUBORDINATE TO ORDER AND SOUGHT TO REMOVE BY A PROVISIONAL MEASURE THE CAUSES OF FRICTION WHICH WERE CLEARLY DETRIMENTAL TO THE SMOOTH RUNNING OF THE DEPARTMENT WITHOUT FIRST CLARIFYING THE QUESTION OF ASSIGNING THE BLAME FOR ANY POSSIBLE BREACHES OF DUTY OR MISTAKES COMMITTED BY THEIR SUBORDINATES; THEY RESERVED THEIR OPINION ON THIS MATTER, WHICH CLEARLY RAISED COMPLICATED ISSUES . IN SO DOING THE AUTHORITIES ACTED WITH THE REQUISITE DEGREE OF CAUTION AND WITHOUT COMMITTING ANY BREACH OF THEIR DUTIES . THE CLAIM FOR DAMAGES MUST THEREFORE BE REJECTED AS UNFOUNDED .
III - THE REQUEST FOR PRODUCTION OF DOCUMENTS
THE APPLICANT LODGED SUBMISSIONS TO THE EFFECT THAT THE COURT SHOULD ORDER THE PRODUCTION OF THE MINUTES OF THE MEETING OF 20 FEBRUARY 1966 OF THE ADVISORY COMMITTEE FOR PURCHASES AND SALES . AS THE COURT IS OF THE OPINION THAT THE DOCUMENTS ON THE FILE PROVIDE SUFFICIENT INFORMATION IT IS NOT NECESSARY TO MAKE THE ORDER REQUESTED BY THE APPLICANT .
Decision on costs
THE APPLICANT HAS FAILED IN HIS APPLICATION .
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE SAID RULES, IN APPLICATIONS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Endorsements
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 ARTICLE 152 OF THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY;
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 ATOMIC ENERGY COMMUNITY, ESPECIALLY ARTICLES 5, 7, 21, 24, 25, 86 TO 91 AND ANNEX IX;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE FIRST AND THIRD HEADS OF CLAIM IN THE APPLICATION AS INADMISSIBLE AND THE SECOND HEAD OF CLAIM IN THE APPLICATION AS UNFOUNDED;
2 . DISMISSES THE CLAIM FOR DAMAGES AS UNFOUNDED;
3 . ORDERS EACH OF THE PARTIES TO THE PROCEEDINGS TO BEAR THEIR OWN COSTS .