61978CJ0018_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 18/78
MRS V ., AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT AVENUE HOF TEN BERG, 1200 BRUSSELS, REPRESENTED AND ASSISTED BY PHILIPPE DU JARDIN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34 B IV, RUE PHILIPPE II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, JEAN MONNET BUILDING, PLATEAU DE KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR :
- THE ANNULMENT OF THE IMPLIED DECISION OF THE DEFENDANT REJECTING THE APPLICANT ' S COMPLAINT ;
- THE ANNULMENT OF THE MEASURE ASSIGNING THE APPLICANT TO A NEW POST ;
- AN ORDER TO THE DEFENDANT TO PAY DAMAGES TO THE APPLICANT ;
- AN ORDER TO THE DEFENDANT TO PAY THE COSTS,
Grounds
1 THIS APPLICATION, WHICH WAS LODGED ON 20 FEBRUARY 1978, SEEKS THE ANNULMENT, FIRST, OF THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT ' S COMPLAINT, THROUGH WHICH SHE SOUGHT TO OBTAIN THE ASSISTANCE OF THE COMMISSION IN ACCORDANCE WITH ARTICLE 24 OF THE STAFF REGULATIONS, AND, SECONDLY, OF THE MEASURE TRANSFERRING THE APPLICANT TO A NEW POST . IT ALSO SEEKS AN ORDER FOR THE COMMISSION TO PAY COMPENSATION TO THE APPLICANT FOR THE MATERIAL AND NON-MATERIAL DAMAGE CAUSED TO HER BY BOTH THE DECISION AND THE MEASURE TRANSFERRING HER .
2 ON 7 JULY 1976 AN ALTERCATION AROSE AT THE CENTRAL OFFICES OF THE COMMISSION IN BRUSSELS BETWEEN THE APPLICANT AND MR T ., BOTH OF WHOM WERE OFFICIALS IN GRADE C 2 AT THE COMMISSION AND HAD BEEN PLACED AT THE DISPOSAL OF THE LOCAL STAFF COMMITTEE, BRUSSELS SECTION .
3 THE APPLICANT CLAIMS THAT DURING THAT INCIDENT SHE WAS STRUCK BY MR T ., SECRETARY GENERAL TO THAT COMMITTEE . FOR HIS PART MR T . CLAIMS THAT, WITHOUT ANY PROVOCATION ON HIS PART, HE WAS SUBJECTED TO A DIATRIBE BY THE APPLICANT CONCERNING HIS PERSONAL CONDUCT AND HIS QUALIFICATIONS . ON SEEKING TO SHOW THE APPLICANT OUT OF HIS OFFICE HE WAS KICKED AND RECEIVED SLIGHT INJURIES TO THE FACE .
4 ON THE DAY ON WHICH THE INCIDENT TOOK PLACE THE DIRECTOR OF THE COMMISSION ' S MEDICAL DEPARTMENT ASCERTAINED THAT THE APPLICANT HAD SUSTAINED MINOR INJURIES . IT IS ALSO COMMON GROUND THAT DURING THE DISPUTE MR T . RECEIVED BLOWS TO THE FACE .
5 THAT INCIDENT GAVE RISE INTER ALIA TO TWO WRITTEN STATEMENTS OF THE FACTS . THE FIRST WAS SENT BY MR T . TO THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION ON 8 JULY 1976 AND THE SECOND WAS SENT BY THE APPLICANT TO THE DIRECTOR GENERAL FOR PERSONNEL AND ADMINISTRATION ON 12 JULY 1976 .
6 THE COMMISSION STATES THAT THE SECURITY OFFICE CARRIED OUT AN INQUIRY INTO THE INCIDENT WITHOUT, HOWEVER DRAWING UP ITS FINDINGS IN WRITING . THE INCIDENT WAS ALSO THE SUBJECT OF A SERIES OF DISCUSSIONS BETWEEN THE REPRESENTATIVES OF THE TRADE UNIONS AND THE ADMINISTRATION . FOLLOWING THOSE EXCHANGES OF VIEWS THE COMMISSION PROPOSED A CHANGE OF ASSIGNMENT TO THE APPLICANT .
7 BY LETTER OF 10 MARCH 1977 THE APPLICANT ASKED THE COMMISSION WHAT ACTION WAS TO BE TAKEN FOLLOWING THE INQUIRY WHICH IT WAS ASSUMED HAD BEEN CARRIED OUT BY THE ADMINISTRATION . IN THE SAME LETTER SHE STATED THAT, IN THE CIRCUMSTANCES, ANY MEASURE TRANSFERRING HER WOULD HAVE TO BE REGARDED AS A REPRIMAND . IN HIS REPLY DATED 21 APRIL 1977 THE DIRECTOR GENERAL FOR PERSONNEL AND ADMINISTRATION INFORMED THE APPLICANT THAT AN ' ' APPROPRIATE INQUIRY ' '
HAD BEEN CARRIED OUT, BUT HAD NOT MADE IT POSSIBLE ' ' TO DRAW ANY CONCLUSION AS TO THE EXACT RESPONSIBILITY FOR THE EVENTS WHICH TOOK PLACE . . . ' '
AND THAT THE APPLICANT ' S TRANSFER WAS PART OF A MEASURE PROVIDING FOR CHANGES OF ASSIGNMENT FOR ALL THE STAFF ATTACHED TO THE STAFF COMMITTEE, WHICH HAD BEEN PLANNED A LONG TIME BEFORE .
8 ON 20 JULY 1977 THE APPLICANT SUBMITTED A COMPLAINT TO THE APPOINTING AUTHORITY UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH SOUGHT, IN PARTICULAR, TO OBTAIN, FIRST, THE ASSISTANCE OF THE COMMISSION, AS PROVIDED FOR IN ARTICLE 24 OF THE STAFF REGULATIONS, SO AS TO ENABLE HER TO SUCCEED IN THE COMPLAINT THROUGH OFFICIAL CHANNELS SUBMITTED AGAINST MR T . ON 12 JULY 1976, AND, SECONDLY, THE REVOCATION OF ANY MEASURE TRANSFERRING HER TO A NEW POST .
9 THE APPLICANT WAS SUBSEQUENTLY ASSIGNED, WITHIN THE CONTEXT OF THE TRANSFER OF MOST OF THE STAFF PLACED AT THE DISPOSAL OF THE SECRETARIAT OF THE STAFF COMMITTEE, TO DIRECTORATE IX.D, TRANSLATION, DOCUMENTATION, REPRODUCTION AND LIBRARY, WITH EFFECT FROM 1 OCTOBER 1977 .
10 NO REPLY WAS RECEIVED TO THE APPLICANT ' S COMPLAINT WITHIN THE PERIOD PRESCRIBED BY THE STAFF REGULATIONS AND SHE THEREFORE LODGED THIS APPLICATION . SHE SEEKS, FIRST, THE ANNULMENT OF THE IMPLIED DECISION REJECTING HER COMPLAINT, SECONDLY, THE ANNULMENT OF THE MEASURE ASSIGNING HER TO A NEW POST AND, THIRDLY, AN ORDER FOR THE COMMISSION TO PAY, BY WAY OF DAMAGES, A SUM TO BE FIXED EX AEQUO ET BONO IN COMPENSATION FOR MATERIAL AND NON-MATERIAL DAMAGE CAUSED TO HER BY THE COMMISSION ' S CONDUCT .
11 IT WAS ONLY AFTER THE APPLICATION WAS LODGED, FOLLOWING STEPS TAKEN BY THE COMMISSION ' S AGENT, THAT THE COMMISSION ASKED FOR AND OBTAINED THE WRITTEN TESTIMONY OF TWO OFFICIALS WHO WERE PRESENT DURING AT LEAST A PART OF THE DISPUTE WHICH TOOK PLACE ON 7 JULY 1976 .
12 IN THOSE CIRCUMSTANCES THE APPLICANT COMPLAINS THAT THE COMMISSION CARRIED OUT AN ALTOGETHER PERFUNCTORY AND INADEQUATE INQUIRY INTO THE EVENTS REPORTED BY HER AND THUS FAILED IN THE DUTY TO PROVIDE ASSISTANCE WHICH IS IMPOSED UPON IT BY THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS OF OFFICIALS .
13 IT IS NECESSARY TO CONSIDER WHETHER THOSE ALLEGATIONS ARE JUSTIFIED .
14 THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS STATES THAT THE COMMUNITIES ' ' SHALL ASSIST ANY OFFICIAL . . ., IN PARTICULAR IN PROCEEDINGS AGAINST ANY PERSON PERPETRATING THREATS, INSULTING OR DEFAMATORY ACTS OR UTTERANCES, OR ANY ATTACK TO PERSON . . . TO WHICH HE . . . IS SUBJECTED BY REASON OF HIS POSITION OR DUTIES ' ' .
15 ALTHOUGH THAT PROVISION IS DEVISED PRIMARILY TO PROTECT THE OFFICIALS OF THE COMMUNITIES AGAINST ATTACKS AND MALTREATMENT BY THIRD PARTIES THE DUTY TO PROVIDE ASSISTANCE LAID DOWN IN ARTICLE 24 ALSO EXISTS IN A CASE IN WHICH THE PERPETRATOR OF THE ACTS REFERRED TO BY THAT PROVISION IS ANOTHER OFFICIAL OF THE COMMUNITIES . IN THIS CASE THE DUTY TO PROVIDE PROTECTION WAS PARTICULARLY COMPELLING, SINCE THE INCIDENT, WHICH TOOK PLACE DURING WORKING HOURS ON THE COMMISSION ' S PREMISES INVOLVED TWO OFFICIALS PLACED AT THE DISPOSAL OF THE LOCAL STAFF COMMITTEE, ONE OF WHOM, THE APPLICANT, WAS IN A SUBORDINATE POSITION TO THE OTHER WITHIN THAT ADMINISTRATIVE UNIT . IN THE LIGHT OF THAT SITUATION AND FACED WITH AN INCIDENT WHICH WAS INCOMPATIBLE WITH THE GOOD ORDER AND TRANQUILLITY OF THE SERVICE THE COMMISSION WAS REQUIRED TO INTERVENE WITH ALL THE NECESSARY VIGOUR SO AS TO ASCERTAIN THE FACTS AND, HAVING DONE SO, TO TAKE THE APPROPRIATE ACTION IN FULL KNOWLEDGE OF THE MATTER .
16 IT IS CLEAR FROM THE ABOVE FINDINGS THAT THE RESPONSIBLE OFFICERS OF THE COMMISSION DID NOT RESPOND WITH THE RAPIDITY AND CONCERN DESIRABLE TO THE SPECIAL SITUATION IN WHICH THE APPLICANT FOUND HERSELF AS REGARDS HER SUPERIOR OFFICER, SO MUCH SO THAT IT NOW APPEARS TO BE IMPOSSIBLE TO RECONSTRUCT WITH THE NECESSARY CERTAINTY THE CIRCUMSTANCES SURROUNDING THE INCIDENT WHICH GAVE RISE TO THE APPLICATION . IT MUST THEREFORE BE STATED THAT THE COMMISSION FAILED IN THE OBLIGATIONS IMPOSED UPON IT, IN THE PARTICULAR CIRCUMSTANCES OF THE CASE, BY THE DUTY TO PROVIDE ASSISTANCE WHICH IS INCUMBENT UPON COMMUNITY AUTHORITIES BY VIRTUE OF ARTICLE 24 OF THE STAFF REGULATIONS .
17 HOWEVER, THAT FINDING DOES NOT AFFECT THE QUESTION OF THE ASSESSMENT TO BE MADE OF THE ACTION TAKEN BY THE COMMISSION AS A RESULT OF THE INCIDENT .
18 CONTRARY TO THE VIEW EXPRESSED BY THE APPLICANT HER TRANSFER CANNOT BE REGARDED AS A DISGUISED DISCIPLINARY MEASURE AGAINST HER . IT MAY EVEN BE FELT THAT, FOLLOWING THE INCIDENT DESCRIBED ABOVE AND REGARDLESS OF THE RESPONSIBILITY OF EACH OF THE PROTAGONISTS, IT WAS IN THE INTERESTS OF THE SERVICE TO PUT AN END TO AN ADMINISTRATIVE SITUATION WHICH HAD BECOME INTOLERABLE FOR ALL CONCERNED . THE TRANSFER DECIDED UPON BY THE COMMISSION MAY THEREFORE BE REGARDED AS A MEASURE WHICH WAS NECESSARY IN THE GENERAL INTEREST . FURTHERMORE, THE COMMISSION WAS CAREFUL TO MAKE IT PART OF A TRANSFER WHICH ALSO CONCERNED SEVERAL OTHER OFFICIALS, SO AS TO PREVENT IT FROM BEING IN ANY WAY INDIVIDUAL IN NATURE . IT THEREFORE APPEARS THAT THERE IS, IN FACT, NO CONNEXION BETWEEN THE NEGLIGENCE SHOWN BY THE COMMISSION IN THE PERFORMANCE OF ITS DUTY TO PROVIDE THE APPLICANT WITH PROTECTION AND THE TRANSFER AT ISSUE . THAT HEAD OF THE APPLICATION MUST THEREFORE BE DISMISSED .
19 ON THE OTHER HAND, IT MUST BE ACKNOWLEDGED THAT THE APPLICANT IS ENTITLED TO A GESTURE FROM THE COMMISSION IN COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE HAS SUFFERED AS A RESULT OF THE DEFENDANT ' S CLEAR LACK OF VIGOUR IN FULFILLING ITS DUTY TO PROVIDE PROTECTION . IN THAT RESPECT THE AWARD OF SYMBOLIC DAMAGES APPEARS TO OFFER SUITABLE SATISFACTION . THE COMMISSION SHOULD THEREFORE BE ORDERED TO PAY TO THE APPLICANT A SUM CORRESPONDING TO ONE EUROPEAN MONETARY BY WAY OF COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE HAS SUFFERED .
Decision on costs
COSTS
20 UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS . ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE PROVIDES INTER ALIA THAT WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART . AS EACH OF THE PARTIES HAS FAILED ON AT LEAST ONE OF THE HEADS OF CLAIM, THE COMMISSION MUST BE ORDERED TO PAY ONE HALF OF THE COSTS INCURRED BY THE APPLICANT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
( 1 ) ANNULS THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT ' S COMPLAINT, THROUGH WHICH SHE SOUGHT TO OBTAIN THE ASSISTANCE OF THE COMMISSION IN ACCORDANCE WITH ARTICLE 24 OF THE STAFF REGULATIONS ;
( 2 ) ORDERS THE COMMISSION TO PAY TO THE APPLICANT A SUM CORRESPONDING TO ONE EUROPEAN MONETARY UNIT BY WAY OF COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE HAS SUFFERED ;
( 3 ) DISMISSES THE REMAINDER OF THE APPLICATION ;
( 4 ) ORDERS THE COMMISSION TO PAY ITS OWN COSTS AND, IN ADDITION, ONE- HALF OF THE COSTS INCURRED BY THE APPLICANT .