61975CJ0129_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 129/75
LYDIA HIRSCHBERG ( NEE NEMIROVSKY ), AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT HOEILAART ( BELGIUM ), REPRESENTED BY MARIE-THERESE CUVELLIEZ, ADVOCATE AT THE COUR D ' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT . CENTRE LOUVIGNY, 34 B IV, RUE PHILIPPE II,
APPLICANT,
V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, THOMAS F . CUSACK, WITH REGARD TO THE WRITTEN PROCEDURE, AND RAYMOND BAEYENS, WITH REGARD TO THE ORAL PROCEDURE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, MARIO CERVINO, BATIMENT CFL ., PLACE DE LA GARE,
DEFENDANT,
Subject of the case
APPLICATION PRINCIPALLY FOR A RULING REGARDING THE LEGALITY OF THE REFUSAL BY A SUPERIOR OFFICER TO ALLOW THE APPLICANT TO CARRY OUT A MISSION WITHIN THE FRAMEWORK OF A COMPETITION PROCEDURE AND THE CLAIMS RELATING THERETO IN THE ACTION FOR ANNULMENT AND COMPENSATION,
Grounds
1 IN SUBSTANCE THE APPLICATION IS FOR THE WITHDRAWAL OF A MEMORANDUM ADDRESSED TO THE APPLICANT, AN ADMINISTRATOR IN DIRECTORATE GENERAL VI, DIRECTORATE G, DIVISION 3, BY HER IMMEDIATE SUPERIOR, AS A RESULT OF A MISSION CARRIED OUT BY THE OFFICIAL CONCERNED AWAY FROM HER PLACE OF EMPLOYMENT WITHOUT A TRAVEL ORDER FOR THAT PURPOSE .
2 THE APPLICANT HAD BEEN APPOINTED BY THE CENTRAL STAFF COMMITTEE TO TAKE PART, AS AN ALTERNATE MEMBER OF THE SELECTION BOARD, IN A RECRUITMENT COMPETITION ORGANIZED IN LUXEMBOURG, AT A TIME WHEN SHE WAS ON SICK LEAVE ALTHOUGH CONTINUING HER WORK AT HOME .
3 IN THESE CIRCUMSTANCES, THE HEAD OF DIVISION, THE DIRECT SUPERIOR OF THE APPLICANT, REFUSED TO ISSUE A TRAVEL ORDER AND, BY A TELEGRAM OF 22 APRIL 1975, EXPRESSLY ASKED THE OFFICIAL CONCERNED TO ABANDON THE PROJECTED TRIP ; THE APPLICANT HOWEVER WENT TO LUXEMBOURG ON 23 APRIL 1975, AFTER CONSULTING THE CHAIRMAN OF THE SELECTION BOARD .
4 BY A LETTER OF 23 APRIL 1975 THE HEAD OF DIVISION ASKED FOR EXPLANATIONS . THEN ON 30 APRIL 1975 HE ADDRESSED A MEMORANDUM DESCRIBED AS A ' WARNING '
TO THE APPLICANT, IN WHICH HE CRITICIZES BOTH THE CIRCUMSTANCES UNDER WHICH THE APPLICATION FOR A TRAVEL ORDER HAD BEEN SUBMITTED TO HIM AND THE FACT THAT THE MISSION HAD BEEN CARRIED OUT DESPITE HIS FORMAL OPPOSITION AND DURING A PERIOD WHEN, AS FAR AS HER ORDINARY DUTIES WERE CONCERNED, THE APPLICANT WAS ON SICK LEAVE .
5 FOLLOWING THIS NOTE, THE APPLICANT ADDRESSED TO THE SECRETARIAT GENERAL OF THE COMMISSION A ' COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS ', WHICH WAS LODGED ON 9 JUNE 1975 .
6 THE COMMISSION TOOK NO ACTION WITH REGARD TO THAT COMPLAINT EXCEPT FOR A LETTER DATED 22 OCTOBER 1975 IN WHICH THE DIRECTOR GENERAL FOR PERSONNEL DESCRIBED THE INCIDENT AS THE PRODUCT OF A ' MISUNDERSTANDING '
AND ASSURED THE APPLICANT THAT IT WOULD HAVE NO UNFAVOURABLE CONSEQUENCES FOR HER CAREER, CONCLUDING THAT IN HIS OPINION THE COMPLAINT ADDRESSED TO THE COMMISSION NO LONGER SERVED ANY PURPOSE IN THESE CIRCUMSTANCES .
7 AFTER THE APPLICATION HAD BEEN LODGED ON 22 DECEMBER 1975, THE ADMINISTRATION OF THE COMMISSION TRIED ONCE MORE, THROUGH THE HEAD OF DIRECTORATE G OF DIRECTORATE GENERAL VI, TO SETTLE AMICABLY THE DIFFICULTIES WHICH HAD ARISEN BETWEEN THE APPLICANT AND HER SUPERIOR .
8 ON THAT OCCASION THE APPLICANT WAS INFORMED THAT THE LATTER WAS WILLING TO RECOGNIZE ' THAT AT THE TIME SHE HAD BEEN IN A DIFFICULT POSITION AND THAT SHE WAS FACED WITH A CONFLICT OF DUTY '
AND THAT HE WAS PREPARED TO CONSIDER THE INCIDENT AS CLOSED .
9 THE APPLICANT HOWEVER REFUSED TO ACCEPT THIS PROPOSAL AND CONTINUED WITH HER ACTION AT LAW .
10 THE CONCLUSIONS IN HER APPLICATION ARE FOR THE ANNULMENT BY THE COURT OF THE MEMORANDUM OF 30 APRIL 1975, THE ANNULMENT OF THE REFUSAL OF THE COMMISSION TO ADMIT THE COMPLAINT OF 9 JUNE 1975 AND FOR A SERIES OF DECLARATIONS AND ORDERS FOR THE PURPOSE OF ESTABLISHING THAT THE TRAVEL ORDER SOUGHT WAS WRONGFULLY REFUSED, ACKNOWLEDGING THE APPLICANT ' S ' DEVOTION TO DUTY ', DECLARING ' THE BASELESSNESS OF THE ACCUSATIONS '
MADE AGAINST HER AND BRINGING THESE DECLARATIONS TO THE NOTICE OF ALL PERSONS CONCERNED IN THIS MATTER .
11 FURTHER, THE APPLICANT SEEKS THE AWARD OF THE SYMBOLIC SUM OF FB 1 BY WAY OF COMPENSATION FOR THE INJURY SUFFERED WITH REGARD TO HER OFFICIAL REPUTATION, HAVING REGARD TO THE ' INSINUATIONS AND ANNOYANCES '
TO WHICH SHE IS STILL BEING SUBJECTED AT THE PRESENT TIME IN HER DAILY WORK .
ADMISSIBILITY
12 AS THE COMMISSION HAS CHALLENGED THE ADMISSIBILITY OF CERTAIN HEADS OF THE APPLICATION, THE COURT REQUESTED THE APPLICANT TO SPECIFY THE WAY IN WHICH, IN HER OPINION, THE CONCLUSIONS IN HER APPLICATION COME WITHIN THE FRAMEWORK OF THE JURISDICTION OF THE COURT AS DEFINED BY ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS .
13 IT FOLLOWS FROM THE REPLIES GIVEN BY THE APPLICANT THAT THE BASIC SUBJECT-MATTER OF THE APPLICATION, HAVING REGARD TO THE REQUIREMENTS LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, CONSISTS IN THE FAILURE OF THE COMMISSION TO ACT UPON THE COMPLAINT SUBMITTED ON 9 JUNE 1975 .
14 THE ADMISSIBILITY OF THE APPLICATION MUST BE CONSIDERED FIRST WITH REGARD TO THAT OMISSION .
15 IN HER COMPLAINT, AFTER REFERRING TO THE VARIOUS COMMUNICATIONS SPECIFIED ABOVE, THE APPLICANT ASKS THE COMMISSION TO ACKNOWLEDGE THE BLAMELESSNESS OF HER CONDUCT, TO WITHDRAW THE ACCUSATIONS IN THE COMMUNICATIONS OF HER SUPERIOR AND IN FUTURE TO ' PROTECT ( HER ) . . . FROM ACTS WHICH UNJUSTLY DAMAGE ( HER ) PERSONAL DIGNITY AND ( HER ) POSITION AS AN OFFICIAL ' .
16 IT IS NECESSARY TO EXAMINE WHETHER THE COMMISSION WAS UNDER ANY DUTY TO TAKE A DECISION OF THIS NATURE CONCERNING THE APPLICANT AND WHETHER, IN CONSEQUENCE, ITS FAILURE TO REPLY TO THE COMPLAINT OF 9 JUNE 1975 CAN BE THE SUBJECT-MATTER OF AN APPLICATION UNDER THE STAFF REGULATIONS .
17 THE PURPOSE OF THE APPEALS PROVIDED FOR UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS IS TO ARRANGE FOR THE REVIEW BY THE COURT OF ACTS AND OMISSIONS BY THE ' APPOINTING AUTHORITY '
LIABLE TO AFFECT THE POSITION UNDER THE STAFF REGULATIONS OF OFFICIALS AND SERVANTS OF THE COMMUNITY .
18 THE GRIEVANCES EXPRESSED IN THE COMPLAINT AND IN THIS APPLICATION DO NOT CONCERN THE POSITION OF THE APPLICANT UNDER THE STAFF REGULATIONS, BUT EXCLUSIVELY INTERNAL RELATIONSHIPS WITHIN THE SERVICE AND, MORE PARTICULARLY, QUESTIONS OF ADMINISTRATIVE AND WORKING ORGANIZATION IN THE OFFICES OF THE COMMISSION .
19 THEREFORE THE SUCCESSIVE ATTITUDES ADOPTED BY THE APPLICANT ' S SUPERIOR REGARDING THE TRAVEL ORDER IN QUESTION WERE NOT IN THE NATURE OF ACTS SUBJECT TO ANNULMENT WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .
20 WHEN A COMPLAINT CONCERNING THIS MATTER WAS SUBMITTED TO THE COMMISSION IT WAS UNDER NO OBLIGATION TO GRANT THE APPLICANT ' S REQUESTS, SINCE HER POSITION UNDER THE STAFF REGULATIONS WAS IN NO WAY AFFECTED BY THE INCIDENT WHICH GAVE RISE TO THE COMPLAINT .
21 ACCORDINGLY THIS HEAD OF THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .
22 THAT INADMISSIBILITY ENTAILS THE INADMISSIBILITY OF ALL THE OTHER REQUESTS MADE IN THE APPLICATION, INCLUDING THE CLAIM FOR COMPENSATION, SINCE, WITHOUT EXCEPTION THEY CONCERN THE SAME SUBJECT-MATTER AS THE PRINCIPAL APPLICATION .
Decision on costs
COSTS
23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
24 THE APPLICANT HAS FAILED IN HER SUBMISSIONS .
25 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .