61963CJ0087_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 87/63
JACQUELINE GEORGES, RESIDING AT AUDERGHEM ( BELGIUM ), ASSISTED BY ROLAND VAN LINT, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, 6 RUE WILLY-GOERGEN, APPLICANT
V
COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, JAN GIJSSELS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION :
( A ) PRINCIPALLY, FOR THE REVERSAL OF THE DECISIONS AGAINST INTEGRATION AND OF DISMISSAL CONTAINED IN THE LETTER SENT ON 3 JULY 1963 BY THE DEFENDANT TO THE APPLICANT, THE PAYMENT OF ARREARS OF REMUNERATION BECOMING DUE ON THE REINSTATEMENT OF THE APPLICANT AND THE PAYMENT OF COMPENSATION FOR NON-MATERIAL DAMAGE;
( B ) ALTERNATIVELY, FOR A DECISION THAT THE APPLICANT SHOULD UNDERGO A NEW INTEGRATION PROCEDURE, THE PAYMENT OF SALARY AND ADDITIONAL BENEFITS SINCE THE TERMINATION OF EMPLOYMENT AND THE PAYMENT OF COMPENSATION FOR NON-MATERIAL DAMAGE;
( C ) IN THE FURTHER ALTERNATIVE, FOR THE AWARD OF COMPENSATION FOR NON-MATERIAL AND MATERIAL DAMAGE AND FOR AN ORDER FOR THE DEFENDANT TO PAY 60000 FB . IN LIEU OF ADDITIONAL NOTICE, TOGETHER WITH INTEREST ON ALL THE AMOUNTS FOR WHICH JUDGMENT IS GIVEN AGAINST THE DEFENDANT;
Grounds
I - AS TO ADMISSIBILITY
THE DEFENDANT DOES NOT DISPUTE THE ADMISSIBILITY OF THE PRESENT APPLICATION . NO OBJECTION NEED BE RAISED IN THE PRESENT CASE BY THE COURT OF ITS OWN MOTION .
THE APPLICATION IS ADMISSIBLE .
II - ON THE SUBSTANCE OF THE CASE
A - CONCERNING THE GROUND OF COMPLAINT BASED UPON THE IRREGULARITY OF THE INTEGRATION PROCEDURE
THE APPLICANT ALLEGES, IN THE FIRST PLACE, THAT THE PRECISE FACTS ON WHICH THE UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD IS BASED WERE ONLY COMMUNICATED TO HER ORALLY AT THE TIME OF HER APPEARANCE BEFORE THE SAID BOARD, SO THAT SHE COULD NOT EFFECTIVELY PUT FORWARD HER MEANS OF DEFENCE; THE ESTABLISHMENT BOARD, WHICH RELIED FURTHERMORE ON THE PERSONAL AND PURELY SUBJECTIVE APPRAISALS OF HER SUPERIORS, DID NOT TAKE THESE FACTS INTO ACCOUNT AND CONSEQUENTLY THE ESTABLISHMENT BOARD COULD NOT MAKE ITS DECISION WITH KNOWLEDGE OF THE FACTS, AS THE RIGHTS OF THE DEFENCE WERE NOT OBSERVED .
THE ARGUMENT OF THE APPLICANT ORIGINATES FROM CONFUSION BETWEEN DISCIPLINARY PROCEDURE AND INTEGRATION PROCEDURE .
INTEGRATION PROCEDURE DOES NOT HAVE THE CHARACTER OF A DISCIPLINARY PROCEDURE . THE ESTABLISHMENT BOARD REFERRED TO IN ARTICLE 102 OF THE STAFF REGULATIONS HAS THE TASK OF EVALUATING THE GENERAL CONDUCT OF THE PERSONS CONCERNED IN ORDER TO MAKE A VALUE JUDGMENT ON THEIR ABILITY TO CARRY OUT ON A PERMANENT BASIS THE DUTIES CORRESPONDING TO THEIR CLASSIFICATION IN THE HIERARCHY .
IT IS TRUE, HOWEVER_THAT INFRINGEMENTS OF THE RULES CONCERNING THE CONDUCT REQUIRED OF SERVANTS WORKING FOR AN ADMINISTRATION CONSTITUTE, IF THEY ARE SERIOUS OR REPEATED, ONE OF THE IMPORTANT CRITERIA FOR ASSESSMENT, EVEN IF SUCH INFRINGEMENTS HAVE NOT BEEN INDIVIDUALLY PUNISHED .
THE MATERIAL CORRECTNESS OF THE FACTS WHICH SERVED AS THE BASIS FOR THE DECISION OF THE ESTABLISHMENT BOARD WILL BE CONSIDERED BELOW, WHEN THE SECOND GROUND OF COMPLAINT IS EXAMINED .
IT IS FOR THE COURT IN ADDITION TO CONSIDER WHETHER THE ESTABLISHMENT BOARD HAD A SUFFICIENT KNOWLEDGE OF THE FACTS TO BE ABLE TO CHECK THE OPINIONS OF THE HEADS OF DEPARTMENT .
IN THE PRESENT CASE THE ESTABLISHMENT REPORT AND THE PERSONAL FILE OF THE APPLICANT WERE PASSED TO HER AND SHE WAS ABLE TO GIVE HER WRITTEN COMMENTS UPON THEM .
THE ESTABLISHMENT BOARD HEARD THE HEADS OF DEPARTMENT AND THE APPLICANT ALTERNATELY WITHOUT, HOWEVER, BRINGING THEM FACE TO FACE . A CONFRONTATION IS NOT, HOWEVER, NECESSARY IN RESPECT OF AN INTEGRATION PROCEDURE .
IT FOLLOWS FROM THE FOREGOING THAT THE ESTABLISHMENT BOARD, WHEN IT EXPRESSED ITS FINAL OPINION, WAS IN A POSITION TO FORM THAT OPINION WITH A KNOWLEDGE OF THE CASE .
THE APPLICANT ALLEGES, IN THE SECOND PLACE, THAT THE PERSONAL FILE WHICH WAS PASSED TO HER WAS INCOMPLETE AND THAT THE MINUTES OF THE MEETINGS OF THE ESTABLISHMENT BOARD PRIOR TO THE MEETING DURING WHICH THE FINAL OPINION WAS FORMED WERE NOT MADE KNOWN TO HER .
THE PERSONAL FILE OF THE APPLICANT COULD NOT SHOW THE SHORTCOMINGS OF WHICH SHE WAS ACCUSED, SINCE THESE HAD GIVEN RISE ONLY TO VERBAL WARNINGS .
THE ADMINISTRATION CANNOT BE REGARDED AS BEING OBLIGED TO PASS TO THE PERSON CONCERNED THE MINUTES OF MEETINGS OF THE ESTABLISHMENT BOARD BEFORE NOTIFICATION OF THE DECISION OF THE APPOINTING AUTHORITY .
IN ADDITION THE NEGATIVE OPINION OF THE ESTABLISHMENT BOARD BINDS THE APPOINTING AUTHORITY . ANY COMPLAINT BY THE PERSON CONCERNED AGAINST THIS OPINION COULD ONLY BE RAISED EFFECTIVELY BY MEANS OF AN ACTION AGAINST THE DECISION OF THE APPOINTING AUTHORITY, SINCE THIS OPINION CONSTITUTES THE FINAL STEP IN THE INTEGRATION PROCEDURE .
CONSEQUENTLY, THE FAILURE TO MAKE A PRELIMINARY COMMUNICATION OF THE MINUTES OF THE MEETINGS OF THE ESTABLISHMENT BOARD CANNOT BE DETRIMENTAL TO THE PERSON CONCERNED .
IT APPEARS, FURTHERMORE, FROM THE PROCEDURAL DOCUMENTS THAT THE ESTABLISHMENT BOARD MADE KNOWN TO THE APPLICANT THE STATEMENTS MADE WITH REGARD TO HER BY THE OFFICIALS WHO HAD BEEN HEARD AND THAT IT INVITED HER TO GIVE EXPLANATIONS IN THIS RESPECT .
THE APPLICANT ALLEGES, IN THE THIRD PLACE, THAT THE INTEGRATION PROCEDURE WAS NOT GOVERNED BY WAY OF UNIFORM GENERAL PROVISIONS, IN ACCORDANCE WITH ARTICLE 110 OF THE REGULATIONS .
ARTICLE 102 IS ONLY A TRANSITIONAL PROVISION OF THE STAFF REGULATIONS AND CONSEQUENTLY DOES NOT REQUIRE ANY GENERAL PROVISION FOR GIVING EFFECT TO IT WITHIN THE MEANING OF ARTICLE 110 OF THE SAID REGULATIONS .
IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE ESTABLISHMENT PROCEDURE WAS PROPER .
B - CONCERNING THE GROUND OF COMPLAINT BASED ON THE INACCURACY AND LACK OF RELEVANCE OF THE REASONS
THE APPLICANT, ALTHOUGH ADMITTING HAVING USED FOR PRIVATE PURPOSES THE PREMISES AND APPARATUS PUT AT HER DISPOSAL FOR USE IN THE SERVICE, DENIES THAT VERBAL WARNINGS WERE GIVEN TO HER ON THIS SUBJECT .
THIS DENIAL OF THE APPLICANT DIRECTLY CONTRADICTS THE FORMAL AND CONCURRING STATEMENTS SUPPLIED IN THIS RESPECT BY THE OFFICIALS WHO WERE HEARD BY THE ESTABLISHMENT BOARD .
IT IS IMPROBABLE FURTHERMORE THAT THE ADMINISTRATION, HOWEVER TOLERANT IT WAS, DID NOT AT LEAST GIVE THE APPLICANT VERBAL WARNINGS CONCERNING HER CONDUCT DURING WORKING HOURS .
CONSEQUENTLY, THE APPLICANT HAS NOT BEEN ABLE TO PROVE THE MATERIAL INACCURACY OF THE FACTS ON THIS POINT .
THE APPLICANT NEXT DENIES HAVING DISTURBED THE FUNCTIONING OF THE DEPARTMENT BY THE MANAGEMENT OF HER PRIVATE INTERESTS .
IT IS CLEAR THAT THE CONDUCT OF THE APPLICANT WAS IN ITSELF OF SUCH A NATURE AS TO DISTURB THE FUNCTIONING OF THE DEPARTMENT . CONSEQUENTLY A SIMPLE DENIAL ON THE PART OF THE APPLICANT CANNOT AMOUNT TO PROOF THAT THE DEPARTMENT WAS NOT ACTUALLY DISTURBED . THE APPLICANT'S ALLEGATIONS THAT SHE WAS LEFT VERY OFTEN WITHOUT WORK DO NOT AMOUNT TO JUSTIFICATION IN THIS RESPECT .
THE APPLICANT LASTLY DISPUTES THE RELEVANCE OF THE REASONS GIVEN BY THE ESTABLISHMENT BOARD . IT APPEARS ON THE CONTRARY THAT THESE REASONS ARE OF JUST SUCH A NATURE AS LEGALLY TO JUSTIFY THE UNFAVOURABLE OPINION OF THE CONDUCT OF THE PERSON CONCERNED IN RESPECT OF HER ABILITY TO CARRY OUT HER DUTIES ON A PERMANENT BASIS .
CONSEQUENTLY, THIS GROUND OF COMPLAINT CANNOT BE ACCEPTED .
C - CONCERNING THE REQUEST FOR COMPENSATION
ANY RIGHT OF THE APPLICANT TO COMPENSATION FOR THE DAMAGE WHICH THE DISPUTED DECISION MAY POSSIBLY HAVE CAUSED MUST IN THE PRESENT CASE BE PRECLUDED . IN FACT THE DISPUTED DECISION DOES NOT DISPLAY ANY SIGN OF THE DEFECTS ALLEGED BY THE APPLICANT . CONSEQUENTLY, TAKING INTO ACCOUNT THE CHARACTER AND THE OBJECT OF THIS DECISION, IT CANNOT AMOUNT TO A WRONGFUL ACT OR OMISSION AND THUS CAUSE UNLAWFUL DAMAGE UNLESS THE DECISION CONTAINS SUPERFLUOUS CRITICISMS IN RESPECT OF THE APPLICANT, WHICH HAS NOT BEEN ALLEGED IN THE PRESENT CASE .
FURTHERMORE, THE REASONS FOR THE DISPUTED DECISION CONTAIN NO UNNECESSARY CRITICISM AND ARE LIMITED TO THE INDISPENSABLE MINIMUM .
CONSEQUENTLY, IT ONLY REMAINS TO CONSIDER THE REQUEST FOR COMPENSATION FOUNDED UPON INSUFFICIENT NOTICE .
IT IS NECESSARY TO STATE, FIRST OF ALL, THAT THE NOTICE OF ONE MONTH CORRESPONDS TO WHAT WAS PROVIDED FOR IN THE APPLICANT'S CONTRACT OF APPOINTMENT .
UNDER ARTICLE 102 ( 2 ) OF THE STAFF REGULATIONS, THE APPLICANT HAS RECEIVED, IN ADDITION, COMPENSATION CORRESPONDING TO TWO MONTHS' BASIC SALARY, AS PROVIDED FOR IN ARTICLE 34 OF THE REGULATIONS .
IN THE PRESENT CASE THIS ALLOWANCE WHICH IS DIRECTLY PROVIDED FOR BY THE REGULATIONS APPEARS SUFFICIENT FOR IT TO BE DECIDED THAT THE DEFENDANT HAS DISCHARGED ITS OBLIGATIONS IN RESPECT OF NOTICE .
CONSEQUENTLY, THE CONCLUSIONS OF THE APPLICANT IN RESPECT OF COMPENSATION MUST BE DISMISSED .
Decision on costs
UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY THE INSTITUTIONS IN APPEALS BY SERVANTS OF THE COMMUNITIES SHALL BE PAID BY THE FORMER .
ON 4 OCTOBER 1963 THE APPLICANT MADE AN APPLICATION FOR LEGAL AID, WHICH WAS DISMISSED BY ORDER OF THE FIRST CHAMBER OF THE COURT ON 28 OCTOBER 1963, THE COSTS BEING RESERVED .
THE APPLICANT HAS FAILED IN ALL HER SUBMISSIONS . FOR THE REASONS SET OUT ABOVE, IT IS PROPER FOR EACH PARTY TO BEAR ITS OWN COSTS IN RESPECT OF BOTH THE MAIN APPLICATION AND THE APPLICATION FOR LEGAL AID .
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 THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ATOMIC ENERGY COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLES 69, 70, 76 AND 95;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, ESPECIALLY ARTICLES 34, 91, 102 AND 110;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES APPLICATION N . 87/63 AS UNFOUNDED;
2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS IN RESPECT OF BOTH THE MAIN APPLICATION AND THE APPLICATION FOR LEGAL AID .