61985CJ0403_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 403/85
F ., A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY G . VANDERSANDEN AND L . DEFALQUE, BOTH OF THE BRUSSELS BAR, AND BY L . FELLI, AVOCAT AT THE COUR D 'APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . BIVER, 4 RUE GOETHE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY H . VAN LIER, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY R . ANDERSEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE COMMISSION' S DECISION OF 6 MAY 1985 IMPOSING ON THE APPLICANT THE DISCIPLINARY PENALTY OF REMOVAL FROM HIS POST AND, IF NECESSARY, ANNULMENT OF THE COMMISSION' S DECISION OF 4 OCTOBER 1985 REJECTING THE APPLICANT' S COMPLAINT AGAINST THE DECISION OF 6 MAY 1985,
THE COURT ( SECOND CHAMBER )
COMPOSED OF : T.F . O' HIGGINS, PRESIDENT OF THE CHAMBER, O . DUE AND K . BAHLMANN, JUDGES,
ADVOCATE GENERAL : J . MISCHO
REGISTRAR : S . HACKSPIEL, ADMINISTRATOR,
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 23 OCTOBER 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 11 DECEMBER 1986,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 6 DECEMBER 1985, F ., A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION ADOPTED BY THE COMMISSION CONCERNING HIM ON 6 MAY 1985 AS A RESULT OF DISCIPLINARY PROCEEDINGS AND WHICH FOR THE SECOND TIME IMPOSED ON HIM THE PENALTY OF REMOVAL FROM HIS POST .
2 IN ITS JUDGMENT OF 29 JANUARY 1985 IN CASE 228/83 ( F . V COMMISSION (( 1985 )) ECR 275 ), THE COURT ( SECOND CHAMBER ) ANNULLED THE COMMISSION' S DECISION OF 7 APRIL 1983 REMOVING THE APPLICANT FROM HIS POST WITHOUT ANY REDUCTION OR WITHDRAWAL OF ENTITLEMENT TO A RETIREMENT PENSION . THE COURT CONSIDERED IN PARTICULAR THAT THE STATEMENT OF REASONS CONTAINED IN THAT DECISION DID NOT ALLOW IT EITHER TO VERIFY THE FACTS ON WHICH THE DECISION WAS BASED OR, MORE IMPORTANTLY, TO ASSESS THE REASONS FOR WHICH THE APPOINTING AUTHORITY CHOSE A PENALTY WHICH WAS MORE SEVERE THAN THE DOWNGRADING PROPOSED BY THE DISCIPLINARY BOARD . AS A RESULT OF THE ANNULMENT OF THE DECISION, THE COMMISSION HAD TO ADOPT A FRESH DECISION, WITH A PROPER STATEMENT OF REASONS, TERMINATING THE DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT .
3 FOLLOWING THE COURT' S JUDGMENT, THE DISCIPLINARY PROCEEDINGS WERE RE-CONVENED AND THE APPLICANT, TOGETHER WITH HIS ADVISERS, WAS HEARD BY MR CHRISTOPHERSEN, THE MEMBER OF THE COMMISSION RESPONSIBLE FOR PERSONNEL MATTERS, ON 15 FEBRUARY 1985 . FINALLY, BY A DECISION OF 6 MAY 1985, MR CHRISTOPHERSEN, IN HIS CAPACITY AS APPOINTING AUTHORITY, ONCE AGAIN IMPOSED ON THE APPLICANT THE PENALTY OF REMOVAL FROM HIS POST, WITHOUT ANY REDUCTION OR WITHDRAWAL OF ENTITLEMENT TO A RETIREMENT PENSION, THIS TIME WITH EFFECT FROM 31 MAY 1985 .
4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING AND TO THE JUDGMENT OF THE COURT OF 29 JANUARY 1985 FOR A MORE DETAILED SUMMARY OF THE FACTS, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
5 IN SUPPORT OF HIS CLAIM FOR ANNULMENT, THE APPLICANT MAKES TWO SUBMISSIONS :
THE COMMISSION' S DECISION OF 6 MAY 1985 CONTAINED AN ERRONEOUS AND INADEQUATE STATEMENT OF REASONS;
THERE WAS A BREACH OF THE PRINCIPLE OF PROPORTIONALITY, IN SO FAR AS THE APPOINTING AUTHORITY IMPOSED A PENALTY WHICH WAS DISPROPORTIONATE TO THE MISCONDUCT COMPLAINED OF .
6 THE FIRST SUBMISSION, CHALLENGING THE STATEMENT OF REASONS IN THE FRESH DECISION, CONCERNS BOTH THE SUMMARY OF THE ALLEGATIONS MADE AGAINST THE APPLICANT AND THE INDICATION OF THE REASONS FOR WHICH THE APPOINTING AUTHORITY CHOSE THE PENALTY OF REMOVING THE APPLICANT FROM HIS POST . IT IS APPROPRIATE TO EXAMINE THE LATTER HEAD OF THE FIRST SUBMISSION IN CONJUNCTION WITH THE SECOND SUBMISSION ON BREACH OF THE PRINCIPLE OF PROPORTIONALITY .
7 HOWEVER, BEFORE DECIDING ON THOSE SUBMISSIONS, IT MUST FIRST BE CONSIDERED WHETHER AN ORDER SHOULD BE MADE FOR THE HEARING OF THE APPLICANT AND THREE WITNESSES, IN ACCORDANCE WITH THE APPLICATION MADE BY THE APPLICANT PURSUANT TO ARTICLE 47 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT .
REQUEST FOR THE HEARING OF THE APPLICANT AND THREE WITNESSES
8 IN THE FIRST PLACE, THE APPLICANT REQUESTS THAT HE HIMSELF AND MR DUCHATEAU, THE PERMANENT DELEGATE OF THE EEC AT THE OECD, SHOULD BE HEARD IN ORDER TO ESTABLISH THAT THE LATTER TELEPHONED THE APPLICANT IN MARCH 1985 TO INFORM HIM THAT HE WOULD PROBABLY BE REMOVED FROM HIS POST FOR THE SECOND TIME . SECONDLY, THE APPLICANT REQUESTS THAT MR AUDIBERT, FORMER HEAD OF THE PRIVATE OFFICE OF THE FRENCH MINISTER FOR COOPERATION, SHOULD BE HEARD IN ORDER TO ESTABLISH THAT THE FRENCH AUTHORITIES, WHO WERE FULLY AWARE OF THE EVENTS OF 6 OCTOBER 1982, WISHED THE APPLICANT TO CONTINUE TO PERFORM HIS DUTIES WITH THEM AS A COMMUNITY OFFICIAL SECONDED TO A NATIONAL ADMINISTRATION AS PART OF THE POLICY OF EXCHANGING OFFICIALS . LASTLY, THE APPLICANT REQUESTS THAT HIS FATHER SHOULD BE HEARD TO SHOW, IN THE FIRST PLACE, THAT AFTER THE APPLICANT WAS HEARD BY MR CHRISTOPHERSEN, ON 15 FEBRUARY 1985, ONLY TWO SOLUTIONS SEEMED TO BE ACCEPTABLE TO THE COMMISSION - NAMELY THE APPLICANT' S RESIGNATION OR HIS REMOVAL FROM HIS POST FOR THE SECOND TIME - AND, SECONDLY, THAT MR MOREL REFUSED TO GIVE THE APPLICANT AN OPPORTUNITY TO PRESENT HIS APOLOGIES .
9 THIS OFFER TO PRESENT EVIDENCE MUST BE ASSESSED IN THE LIGHT OF THE SUBMISSIONS MADE BY THE APPLICANT, WHICH CONCERN ONLY THE STATEMENT OF REASONS FOR THE DECISION AND BREACH OF THE PRINCIPLE OF PROPORTIONALITY . ALTHOUGH THE STATEMENT OF REASONS FOR THE DECISION STRESSES THAT THE APPLICANT DID NOT EXPRESS ANY REGRET "UNTIL THE HEARING OF 15 FEBRUARY 1985, WHICH TOOK PLACE UNDER SPECIAL CIRCUMSTANCES", IT IS ALSO CLEAR THAT THE APPLICANT' S FATHER DID NOT APPROACH THE COMMISSION UNTIL AFTER THAT HEARING . THE OTHER FACTS OFFERED IN EVIDENCE ARE EXTRANEOUS TO THE STATEMENT OF REASONS FOR THE DECISION . MOREOVER, NONE OF THE MATTERS REFERRED TO BY THE APPLICANT IN HIS REQUEST FOR THE HEARING OF WITNESSES IS RELEVANT TO THE ASSESSMENT OF WHETHER THE PENALTY IMPOSED IS DISPROPORTIONATE TO THE ALLEGATIONS MADE AGAINST HIM IN THE DECISION .
10 CONSEQUENTLY, THE APPLICANT' S REQUEST FOR THE HEARING OF WITNESSES SHOULD NOT BE UPHELD .
THE SUMMARY OF THE FACTS IN THE STATEMENT OF THE REASONS FOR THE CONTESTED DECISION
11 THE APPLICANT CONSIDERS THAT THE STATEMENT OF REASONS FOR THE CONTESTED DECISION IS ERRONEOUS AND INADEQUATE . HE CLAIMS THAT THE DECISION IS BASED ON ALLEGATIONS WHICH HE DENIES, IN PARTICULAR THAT HE THREW AN ASHTRAY AT MR MOREL AND KICKED HIM . ON THE OTHER HAND, IT DOES NOT REFER TO THE PROVOCATIVE AND HUMILIATING CIRCUMSTANCES OF THE INTERVIEW WITH MR MOREL, AT WHICH THE INCIDENT OF 6 OCTOBER 1982 OCCURRED . IN THAT REGARD, THE APPLICANT STRESSES IN PARTICULAR MR MOREL' S REFUSAL TO PAY ATTENTION TO HIS REPEATED ARGUMENTS, HIS APPARENT DESIRE TO HARM THE APPLICANT, THE SCORNFUL LAUGHTER WITH WHICH MR MOREL RECEIVED THE APPLICANT' S DESPONDENT CONCLUSION THAT HE HAD NO ALTERNATIVE BUT TO BRING AN ACTION BEFORE THE COURT, AND THE FACT THAT MR MOREL HAD LED THE APPLICANT TO BELIEVE THAT HE HAD RECEIVED THE AGREEMENT OF THE FRENCH AUTHORITIES TO THE TERMINATION OF HIS SECONDMENT IN PARIS .
12 IN THE FIRST PLACE, IT MUST BE STATED THAT THE FRESH DECISION ADOPTED BY THE COMMISSION, UNLIKE THE PREVIOUS DECISION OF 7 APRIL 1983, CLEARLY SETS OUT THE FACTS ON WHICH THE PENALTY IMPOSED ON THE APPLICANT ARE BASED . THUS IT ALLOWS THE COURT TO VERIFY WHETHER THERE ARE ANY ERRORS OR OMISSIONS THEREIN .
13 AS REGARDS THE FACTS ON WHICH THE DECISION IS BASED, THE RECITALS IN THE DECISION STATE THAT A DIFFERENCE OF OPINION AROSE AT THE INTERVIEW OF 6 OCTOBER 1982 BETWEEN THE APPLICANT AND MR MOREL; THAT AT THE END OF THE INTERVIEW, THE APPLICANT STRUCK MR MOREL, GRABBED HOLD OF THE FRONT OF HIS SHIRT, CAUSING IT TO TEAR, AND CAUSED HIM TO FALL FROM THE ARMCHAIR IN WHICH HE WAS SITTING; THAT IT WAS NOT POSSIBLE TO DETERMINE WITH CERTAINTY THE ORIGIN OF THE GRAZING OF THE RIGHT EARLOBE WHICH MR MOREL ATTRIBUTED TO THE FACT THAT THE APPLICANT HAD THROWN AN ASHTRAY AT HIM, AN ALLEGATION WHICH WAS DENIED BY THE APPLICANT; THAT THE APPLICANT STATED THAT HE HAD NO RECOLLECTION OF HAVING KICKED MR MOREL, AS MR MOREL MAINTAINED; AND LASTLY, THAT THE GRAZING AND BRUISES FOUND ON MR MOREL' S PERSON AFTER THE INCIDENT WERE THE DIRECT OR INDIRECT RESULT OF THE VIOLENCE WITH WHICH THE APPLICANT ATTACKED MR MOREL . FROM THOSE FINDINGS THE COMMISSION CONCLUDES THAT IT IS ESTABLISHED THAT THE APPLICANT COMMITTED A VIOLENT ACT OF AGGRESSION AGAINST MR MOREL .
14 IT IS CLEAR FROM THOSE RECITALS THAT ALTHOUGH THE COMMISSION REFERRED TO CERTAIN ALLEGATIONS MADE BY MR MOREL WHICH WERE DENIED BY THE APPLICANT, IT ACCEPTED IN THE END ONLY THOSE ALLEGATIONS WHICH WERE NOT DENIED .
15 AS REGARDS THE CONTEXT IN WHICH THE INCIDENT OCCURRED, THE RECITALS MERELY STATE THAT THE PURPOSE OF THE INTERVIEW WAS TO CONSIDER THE ADMINISTRATIVE CONSEQUENCES OF THE APPLICANT' S RECENT ELECTION TO THE CORSICAN ASSEMBLY . THUS IT IS CORRECT TO SAY THAT THE DECISION DOES NOT MENTION THE PROVOCATIVE AND HUMILIATING NATURE OF THE INTERVIEW REFERRED TO BY THE APPLICANT . HOWEVER, IT MUST BE STATED THAT THAT ALLEGATION WAS CATEGORICALLY DENIED BY MR MOREL AND BY THE WITNESS WHO WAS PRESENT AT THE INTERVIEW ON 6 OCTOBER 1982 . THE COMMISSION WAS THEREFORE JUSTIFIED IN DISREGARDING IT, IN THE SAME WAY AS IT HAD DISREGARDED THE ALLEGATIONS DENIED BY THE APPLICANT .
16 THEREFORE IT HAS NOT BEEN ESTABLISHED THAT AS REGARDS THE SUMMARY OF THE FACTS THE STATEMENT OF REASONS FOR THE DECISION IS VITIATED BY UNJUSTIFIED ERRORS OR OMISSIONS .
THE STATEMENT OF REASONS FOR THE CHOICE OF THE PENALTY AND THE PRINCIPLE OF PROPORTIONALITY
17 THE APPLICANT CLAIMS THAT THE STATEMENT OF REASONS FOR THE DECISION DOES NOT TAKE ACCOUNT OF THE MITIGATING CIRCUMSTANCES REFERRED TO BY THE DISCIPLINARY BOARD, NAMELY HIS NEUROTIC CHARACTER, HIS FEELING OF INSECURITY AND ANXIETY AS A RESULT IN PARTICULAR OF THE SERIOUS CONSEQUENCES WHICH ANY DECISION TAKEN MIGHT HAVE FOR HIM AND, LASTLY, THE OBVIOUS ABSENCE OF PREMEDITATION . AS A RESULT, HE ALLEGES THAT THE CONTESTED DECISION DOES NOT RESPECT THE PRINCIPLE THAT THE PENALTY IMPOSED MUST BE PROPORTIONATE TO THE ACTS ALLEGED TO HAVE BEEN COMMITTED . THE DECISION DOES NOT ATTRIBUTE ANY IMPORTANCE TO THE FEELINGS WHICH GAVE RISE TO THE APPLICANT' S IMPULSIVE ACTION OR TO THE ERRORS AND PROVOCATIVE BEHAVIOUR OF MR MOREL . MOREOVER, THE APPLICANT CONSIDERS THAT IN THE ABSENCE OF PREMEDITATION THERE IS NO CHOICE BUT TO IMPOSE A PENALTY LESS SEVERE THAN REMOVAL FROM HIS POST, WHICH IS THE MOST SEVERE PENALTY . LASTLY, THE APPLICANT STRESSES THE SERIOUS CONSEQUENCES WHICH THE COMMISSION' S DECISION HAS HAD FOR HIS PERSONAL SITUATION, AS REGARDS BOTH HIS CAREER AND HIS PRIVATE LIFE AND STATE OF HEALTH .
18 IN ITS JUDGMENT OF 29 JANUARY 1985, THE COURT HAS ALREADY REFERRED TO ITS CONSISTENT DECISIONS TO THE EFFECT THAT, ONCE THE TRUTH OF THE ALLEGATIONS AGAINST THE OFFICIAL HAS BEEN ESTABLISHED, IT IS FOR THE APPOINTING AUTHORITY TO CHOOSE THE APPROPRIATE PENALTY . THE COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE APPOINTING AUTHORITY EXCEPT IN THE CASE OF A MANIFEST ERROR OR MISUSE OF POWERS .
19 IN THAT REGARD, IT MUST BE STATED FIRSTLY THAT THE ACTS FOUND TO HAVE BEEN COMMITTED IN THE DECISION, NAMELY A VIOLENT ACT OF AGGRESSION RESULTING IN THE INJURIES SET OUT IN THE DECISION, ARE SUFFICIENTLY SERIOUS TO JUSTIFY THE REMOVAL OF THE OFFICIAL FROM HIS POST . HOWEVER, IT REMAINS TO BE CONSIDERED WHETHER THE COMMISSION COMMITTED A MANIFEST ERROR BY DISREGARDING THE MITIGATING CIRCUMSTANCES RECOGNIZED BY THE DISCIPLINARY BOARD . ON THIS POINT, AGAIN, THE STATEMENT OF REASONS FOR THE FRESH DECISION CONTAINS PARTICULARS ENABLING THE COURT TO EXERCISE ITS SUPERVISORY JURISDICTION .
20 IN ITS OPINION OF 3 MARCH 1983 THE DISCIPLINARY BOARD CONSIDERED THAT THERE WERE MITIGATING CIRCUMSTANCES ARISING, FIRSTLY, FROM THE APPLICANT' S NEUROTIC NATURE CHARACTERIZED BY AN INABILITY TO CONTAIN FRUSTRATION, SECONDLY, FROM THE FEELING OF INSECURITY AND ANXIETY ASSOCIATED WITH THE HIGH LEVEL OF FRUSTRATION TO WHICH THE APPLICANT WAS SUBJECT OWING TO THE SERIOUS CONSEQUENCES WHICH ANY DECISIONS TAKEN MIGHT HAVE FOR HIM, TO THE CIRCUMSTANCES IN WHICH THE MEETING WAS ARRANGED AND TO THE COURSE WHICH IT TOOK, AND, LASTLY, FROM THE OBVIOUS ABSENCE OF PREMEDITATION .
21 AS REGARDS THE FIRST POINT REFERRED TO, IT APPEARS THAT THE DISCIPLINARY BOARD BASED ITS OPINION ON A MEDICAL REPORT DRAWN UP BY DR DE GEYTER AND DR DUMONT ON 27 OCTOBER 1982, WHICH FOUND ESSENTIALLY THAT THE APPLICANT SHOULD BE CONSIDERED LEGALLY RESPONSIBLE FOR HIS ACTIONS AT THE TIME OF THE FACTS IN QUESTION, BUT THAT ACCOUNT SHOULD BE TAKEN OF HIS NEUROTIC PERSONALITY AND HIS MEDITERRANEAN TEMPERAMENT .
22 IT MUST BE RECOGNIZED THAT, ESPECIALLY IN AN INSTITUTION WHICH EMPLOYS OFFICIALS OF ALL NATIONALITIES AND FROM ALL REGIONS OF THE COMMUNITY, ACCOUNT MUST BE TAKEN, EVEN FOR PURPOSES OF DISCIPLINARY PROCEEDINGS, OF DIFFERENCES OF CHARACTER AND TEMPERAMENT . NEVERTHELESS, THE COMMUNITY INSTITUTIONS ARE BOUND TO ENSURE THAT SUCH DIFFERENCES DO NOT RESULT IN UNACCEPTABLE BEHAVIOUR SUCH AS VIOLENT ACTS OF AGGRESSION . IN THAT CONTEXT IT IS PERMISSIBLE TO TAKE INTO CONSIDERATION THE FACT THAT THIS CASE CONCERNS AN OFFICIAL OF THE RANK OF PRINCIPAL ADMINISTRATOR . IT THEREFORE DOES NOT APPEAR TO THE COURT THAT THE COMMISSION COMMITTED A MANIFEST ERROR IN TAKING THE VIEW THAT NOTWITHSTANDING THE APPLICANT' S IMPULSIVE NATURE, HE "EXCEEDED THE BOUNDS OF ACCEPTABLE CONDUCT ON THE PART OF A RESPONSIBLE OFFICIAL IN THE PERFORMANCE OF HIS DUTIES ".
23 AS REGARDS THE SECOND POINT REFERRED TO AS A MITIGATING CIRCUMSTANCE BY THE DISCIPLINARY BOARD, NAMELY THE APPLICANT' S FEELING OF INSECURITY AND ANXIETY DURING THE INTERVIEW WITH MR MOREL ON 6 OCTOBER 1982, IN PARTICULAR AS REGARDS HIS DELICATE PERSONAL AND DOMESTIC SITUATION OWING TO COMMITMENTS CONNECTED WITH HIS POSTING TO PARIS, IT MUST BE RECOGNIZED THAT IN DISCIPLINARY PROCEEDINGS ACCOUNT MUST BE TAKEN OF THE PARTICULAR SITUATION WHICH PROVOKED THE BEHAVIOUR OF WHICH THE OFFICIAL IS ACCUSED . IN THAT REGARD, THE COMMISSION POINTED OUT IN THE RECITALS TO THE DECISION THAT THE APPLICANT WAS HIMSELF PARTLY RESPONSIBLE FOR THE SITUATION IN QUESTION, INASMUCH AS HE HAD DECIDED TO STAND IN THE ELECTIONS FOR THE CORSICAN ASSEMBLY WITHOUT INFORMING THE COMMISSION AT THE OUTSET, AS HE WAS REQUIRED TO DO BY ARTICLE 15 OF THE STAFF REGULATIONS OF OFFICIALS, AND THAT THE APPLICANT OUGHT TO HAVE FORESEEN THE POSSIBILITY OF HIS BEING RECALLED TO BRUSSELS . THE COMMISSION ALSO POINTED OUT THAT THERE WERE AMPLE OPPORTUNITIES AVAILABLE TO THE APPLICANT AT DIFFERENT LEVELS, IN ADMINISTRATIVE AND COURT PROCEEDINGS, FOR CHALLENGING ANY DECISION WHICH THE COMMISSION MIGHT TAKE TERMINATING HIS SECONDMENT . ON THAT POINT, TOO, IT DOES NOT APPEAR TO THE COURT THAT THE COMMISSION COMMITTED A MANIFEST ERROR IN NOT ACCEPTING THAT THE APPLICANT' S SITUATION AT THE TIME WAS A MITIGATING CIRCUMSTANCE PREVENTING HIS REMOVAL FROM HIS POST .
24 AS REGARDS THE QUESTION WHETHER THE SERIOUSNESS OF THE ACTS OF WHICH THE APPLICANT WAS ACCUSED WAS MITIGATED BY THE ABSENCE OF PREMEDITATION, IT SHOULD BE NOTED THAT THE ONLY PRECONDITION FOR DISCIPLINARY ACTION LAID DOWN IN ARTICLE 86 OF THE STAFF REGULATIONS IS THAT AN OFFICIAL SHOULD HAVE FAILED TO COMPLY WITH HIS OBLIGATIONS INTENTIONALLY OR THROUGH NEGLIGENCE . THE EXTENT TO WHICH PREMEDITATION ON THE PART OF THE OFFICIAL IS RELEVANT AS REGARDS THE CHOICE OF PENALTY LARGELY DEPENDS ON THE NATURE OF THE CONDUCT OF WHICH HE IS ACCUSED . SINCE THIS CASE CONCERNS A VIOLENT ACT OF AGGRESSION, THE FACT THAT THE COMMISSION CONSIDERED THAT THE ABSENCE OF PREMEDITATION DID NOT PREVENT THE APPLICANT FROM BEING REMOVED FROM HIS POST CANNOT BE REGARDED AS A MANIFEST ERROR .
25 ALTHOUGH CONSIDERATION OF THE STATEMENT OF THE REASONS FOR THE CONTESTED DECISION HAS NOT DISCLOSED ANY MANIFEST ERROR IN THE APPRAISAL BY THE COMMISSION OF EACH OF THE FACTORS REGARDED BY THE DISCIPLINARY BOARD AS MITIGATING CIRCUMSTANCES, IT MUST FURTHER BE CONSIDERED WHETHER OR NOT THE PENALTY OF REMOVING THE APPLICANT FROM HIS POST IS MANIFESTLY DISPROPORTIONATE TO THE CIRCUMSTANCES OF THE CASE .
26 IN THAT REGARD, IT MUST BE STRESSED THAT THE PROVISIONS OF THE STAFF REGULATIONS ON DISCIPLINARY MEASURES ( ARTICLES 86 TO 89 ) DO NOT SPECIFY ANY FIXED RELATIONSHIP BETWEEN THE MEASURES PROVIDED FOR AND THE VARIOUS SORTS OF FAILURE BY OFFICIALS TO COMPLY WITH THEIR OBLIGATIONS; NOR DO THEY STATE THE EXTENT TO WHICH THE EXISTENCE OF AGGRAVATING OR MITIGATING CIRCUMSTANCES SHOULD AFFECT THE CHOICE OF PENALTY . THE DETERMINATION OF THE PENALTY TO BE IMPOSED IN EACH INDIVIDUAL CASE IS THEREFORE BASED ON A COMPREHENSIVE APPRAISAL OF ALL THE PARTICULAR FACTS AND CIRCUMSTANCES PECULIAR TO THE CASE .
27 IN VIEW OF THOSE CONSIDERATIONS, AND HAVING REGARD IN PARTICULAR FIRSTLY TO THE SERIOUSNESS OF THE ALLEGATIONS MADE AGAINST THE APPLICANT AND SECONDLY TO THE FACTORS REGARDED BY THE DISCIPLINARY BOARD AS MITIGATING CIRCUMSTANCES AND THE SERIOUS CONSEQUENCES WHICH THE COMMISSION' S DECISION HAS HAD ON THE PERSONAL AND PROFESSIONAL SITUATION OF THE APPLICANT, THE COURT DOES NOT CONSIDER THAT THE REMOVAL OF THE APPLICANT FROM HIS POST WITHOUT ANY REDUCTION OR WITHDRAWAL OF HIS PENSION RIGHTS CAN BE REGARDED AS A MANIFESTLY DISPROPORTIONATE PENALTY .
28 THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
29 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
On those grounds,
THE COURT ( Second Chamber )
hereby :
( 1 ) Dismisses the application;
( 2 ) Orders the parties to bear their own costs .