61975CJ0124_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 124/75
LETIZIA PERINCIOLO, A FORMER OFFICIAL OF THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EEC, RESIDING AT 11, RUE MAJOR PETILLON, ETTERBEEK-BRUSSELS, REPRESENTED AND ASSISTED BY THIERRY VANDERLINDEN AND PATRICK VAN DAMME, ADVOCATES AT THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 84 GRAND RUE,
APPLICANT,
V COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ANTONIO SACCHETTINI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . NICOLAS VAN DEN HOUTEN, HEAD OF THE LEGAL SERVICE OF THE EUROPEAN INVESTMENT BANK, 20 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION PRIMARILY FOR THE ANNULMENT OF THE DECISION OF THE DEFENDANT OF 16 OCTOBER 1972 WHEREBY DISCIPLINARY PROCEEDINGS WERE COMMENCED AGAINST THE APPLICANT, AND OF THE DECISION OF 24 FEBRUARY 1975 REVOKING IT,
Grounds
1 BY APPLICATION LODGED IN THE COURT REGISTRY ON 17 DECEMBER 1975, THE APPLICANT, WHO ENTERED THE SERVICE OF THE COUNCIL ON 16 JANUARY 1964 AND WHO WAS ESTABLISHED ON THE FOLLOWING 16 JULY AS AN OFFICIAL IN GRADE C 4 AS A TYPIST, CLAIMED PRIMARILY THAT THE DECISION OF THE DEFENDANT OF 16 OCTOBER 1972 INITIATING DISCIPLINARY PROCEEDINGS AGAINST HER AND THE DECISION OF 24 FEBRUARY 1975 REMOVING HER FROM HER POST SHOULD BE ANNULLED .
2 AS A RESULT OF AN ACCIDENT WHICH SHE SUSTAINED WHILE OUT HORSE-RIDING, THE APPLICANT WAS GRANTED AN INVALIDITY BENEFIT OF 15 % UNDER THE INSURANCE SCHEME ESTABLISHED PURSUANT TO THE STAFF REGULATIONS AGAINST ACCIDENTS ARISING IN PRIVATE LIFE .
3 SHE REQUESTED THAT SHE BE NO LONGER REQUIRED TO DO TYPING ' INCOMPATIBLE WITH HER STATE OF HEALTH ', AND WAS ASSIGNED TO THE ACCOUNTS BRANCH FROM JANUARY 1971 TO JANUARY 1972 .
4 A MEDICAL EXAMINATION CARRIED OUT BY THE INSTITUTION ' S MEDICAL OFFICER AND BY A SPECIALIST CONSULTED BY THE INSTITUTION FOUND THAT THE APPLICANT WAS FIT TO CARRY OUT WORK AS A TYPIST AND SHE WAS PLACED AT THE DISPOSAL OF THE TYPING POOL BY NOTE OF 24 MAY 1972 .
5 THE APPLICANT REFUSED TO APPEAR AT HER POST AND THE APPOINTING AUTHORITY COMMENCED DISCIPLINARY PROCEEDINGS AGAINST HER ON 16 OCTOBER 1972 FOR FAILURE TO COMPLY WITH THE DUTY OF OBEDIENCE ( THIRD PARAGRAPH OF ARTICLE 21 OF THE STAFF REGULATIONS ) AND OF THE DUTY TO BE AT ALL TIMES AT THE DISPOSAL OF THE INSTITUTION ( FIRST PARAGRAPH OF ARTICLE 55 OF THE STAFF REGULATIONS ).
6 IN ITS OPINION OF 4 JULY 1973, THE DISCIPLINARY BOARD SET UP BY THE DEFENDANT RECOMMENDED THAT A NEW MEDICAL EXAMINATION OF THE APPLICANT BE CARRIED OUT .
7 THAT EXAMINATION TOOK PLACE ON 25 JULY 1973, BUT SINCE THE APPLICANT HAD SUBMITTED THE OPINION OF A SPECIALIST WHOM SHE HAD CONSULTED, THE DEFENDANT DECIDED TO PROCEED TO AN ADDITIONAL MEDICAL INQUIRY AT WHICH THE INTERESTS OF BOTH PARTIES WOULD BE REPRESENTED .
8 FOR THAT EXAMINATION, THE ADMINISTRATION APPOINTED DR CASTIAUX, THE APPLICANT DR D ' AVANZO, AND THE TWO DOCTORS SO APPOINTED AGREED UPON THE NAME OF DR GODENNE AS A THIRD DOCTOR .
9 THE REPORT ON THE EXAMINATION, WHICH DR D ' AVANZO REFUSED TO SIGN, CONCLUDED THAT THE APPLICANT WAS FIT FOR WORK AS A TYPIST .
ADMISSIBILITY
10 IN HER APPLICATION, THE APPLICANT CLAIMS THAT THE COURT SHOULD :
' 1 . DECLARE NULL AND VOID THE DECISION OF 16 OCTOBER 1972 BY WHICH THE AUTHORITY DECIDED TO INITIATE DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT ;
2 . DECLARE THE WHOLE OF THE DISCIPLINARY PROCEEDINGS VOID FOR DEFECTS OF FORM AND DECLARE THE OPINION OF THE DISCIPLINARY BOARD OF 4 JULY 1973 VOID AND OF NO EFFECT ;
3 . DECLARE THE MEDICAL REPORT OF 21 NOVEMBER 1974 CONCERNING THE STATE OF HEALTH OF THE APPLICANT TO BE VOID AND OF NO SUFFICIENT SCIENTIFIC VALUE ;
4 . DECLARE THE HEARING OF THE APPLICANT ON 29 JANUARY 1975 BY THE SECRETARY GENERAL TO BE OF NO EFFECT OWING TO A VIOLATION OF THE RIGHTS OF THE DEFENCE ;
5 . AS A RESULT DECLARE THE DECISION OF 24 FEBRUARY 1975 ( NO 146/75 ) REMOVING THE APPLICANT FROM HER POST TO BE VOID AND OF NO EFFECT AND RULE THAT THE APPLICANT SHALL BE RE-ESTABLISHED AS FROM 1 MARCH 1975 WITH ALL HER RIGHTS AS AN OFFICIAL IN GRADE C 3 OF THE GENERAL SECRETARIAT OF THE COUNCIL . '
11 THE COUNCIL OBJECTS THAT THE CLAIMS OTHER THAN THE CLAIM FOR THE ANNULMENT OF THE DECISION REMOVING HER FROM HER POST ARE INADMISSIBLE .
12 HOWEVER, IN HER REPLY, THE APPLICANT LIMITS HER CLAIMS TO THIS ONE ONLY, STATING THAT THE OTHERS SHOULD BE CONSIDERED AS MERE GROUNDS .
13 THEREFORE THE OBJECTION OF INADMISSIBILITY HAS CEASED TO BE RELEVANT .
SUBSTANCE
14 THE APPLICANT CLAIMS FIRST OF ALL THAT THE ADMINISTRATION OUGHT, IN ACCORDANCE WITH ARTICLE 59 ( 3 ) OF THE STAFF REGULATIONS, TO HAVE REFERRED THE CASE TO THE INVALIDITY COMMITTEE BEFORE SETTING UP THE DISCIPLINARY BOARD .
15 SHE STATES THAT, HAVING REGARD TO THE MEDICAL CERTIFICATES PRODUCED BY HER, THE ADMINISTRATION WAS NOT WITHIN ITS RIGHTS IN REQUIRING HER TO COMPLY WITH HER ASSIGNMENT TO THE TYPING POOL .
16 ON THE OTHER HAND, THE DIFFERENCE BETWEEN THE OPINIONS OF THE ADMINIS- TRATION ' S MEDICAL ADVISER AND OF THE SPECIALIST WHOM IT CONSULTED AND THOSE DELIVERED IN THE CERTIFICATES PRODUCED BY THE APPLICANT SHOULD HAVE CAUSED THE ADMINISTRATION TO REFER TO THE INVALIDITY COMMITTEE UNDER ARTICLE 59 ( 3 ) OF THE STAFF REGULATIONS .
17 ARTICLE 59 OF THE STAFF REGULATIONS DEALS, ON THE ONE HAND, WITH SICK LEAVE FOR AN OFFICIAL PREVENTED FROM PERFORMING HIS DUTIES BECAUSE OF SICKNESS OR ACCIDENT AND, ON THE OTHER HAND, WITH AUTOMATIC LEAVE ON THE DECISION OF THE INSTITUTION .
18 THEREFORE, AS THE THIRD PARAGRAPH OF THAT ARTICLE PROVIDES THAT CASES OF DISPUTE SHALL BE REFERRED TO THE INVALIDITY COMMITTEE, IT CAN ONLY REFER TO CASES OF SICK LEAVE, WITHOUT PREJUDICE TO THE QUESTION OF WHETHER IT REFERS ONLY TO THE CASE LAID DOWN IN PARAGRAPH ( 2 ) OF THE ARTICLE OR ALSO TO THAT REFERRED TO IN PARAGRAPH ( 1 ).
19 IT IS SUFFICIENT FOR THE PURPOSES OF THE PRESENT CASE TO STATE THAT IT DOES NOT CONCERN SICK LEAVE OF THE APPLICANT BUT THE SITUATION CREATED BY THE OBJECTIONS SHE RAISED, BECAUSE OF HER STATE OF HEALTH, TO HER ASSIGNMENT TO THE TYPING POOL .
20 IN ANY CASE ARTICLE 59, AND ESPECIALLY PARAGRAPH ( 3 ) THEREOF, DOES NOT REFER TO SUCH A SITUATION AND CANNOT THEREFORE BE INVOKED IN THE PRESENT CASE .
21 THE APPLICANT ALSO CRITICIZES THE PROCEDURE FOLLOWED BY THE DISCIPLINARY BOARD, AND CLAIMS THAT THE OPINION WHICH IT DELIVERED SHOULD BE ANNULLED, BECAUSE ONE OF THE MEMBERS THEREOF WAS ABSENT AS FROM 5 DECEMBER 1972, AND HIS SIGNATURE DID NOT APPEAR AT THE FOOT OF THE OPINION OF THE SAID BOARD .
22 IN SO FAR AS THE FACTS STATED BY THE APPLICANT SUGGEST THAT THE OPINION OF THE DISCIPLINARY BOARD WAS PREPARED AND DELIVERED IN IRREGULAR CIRCUMSTANCES, THAT IRREGULARITY CANNOT, NEVERTHELESS, HAVE ADVERSELY AFFECTED HER .
23 IN FACT THE OPINION SUBSTANTIALLY ACCEPTS HER COMPLAINTS, AND AFTER PROPOSING TWO ALTERNATIVE SOLUTIONS, THE BOARD RECOMMENDS ' THAT A MEDICAL EXAMINATION OF THE APPLICANT BE CARRIED OUT IN ORDER TO DETERMINE HER PRESENT STATE OF HEALTH ' .
24 IN ACTING THUS, THE BOARD, WHICH IS NOT ITSELF QUALIFIED TO MAKE ASSESSMENTS OF A MEDICAL NATURE, LEFT THE SUBSTANCE OF THE APPLICANT ' S CLAIMS TO BE DECIDED BY THE RESULT OF A NEW MEDICAL EXAMINATION .
25 SINCE THE APPOINTING AUTHORITY FOLLOWED THAT RECOMMENDATION AND PROCEEDED TO SET UP A COMMITTEE OF DOCTORS, THE RESULT OF THE DISCIPLINARY PROCEDURE WAS AS FAVOURABLE TO THE APPLICANT AS IT COULD HAVE BEEN IN THE CIRCUMSTANCES .
26 IN THESE CIRCUMSTANCES, THE SUBMISSION THAT THE DISCIPLINARY PROCEDURE SHOULD BE DECLARED IRREGULAR AND THAT THE APPOINTING AUTHORITY SHOULD BE OBLIGED TO REPEAT IT IS UNREASONABLE BECAUSE IT IS CLEAR THAT SUCH A MEASURE COULD BE OF NO ADVANTAGE TO THE APPLICANT .
27 THEREFORE THE SUBMISSION CANNOT BE UPHELD .
28 THE APPLICANT ALSO ARGUES THAT THE REPORT OF THE MEDICAL COMMITTEE, SET UP AT THE REQUEST OF THE SECRETARY-GENERAL TO JUDGE THE APPLICANT ' S FITNESS FOR WORK AS A TYPIST, SHOULD BE CONSIDERED AS VOID FOR THE FOLLOWING REASONS :
( 1 ) ONE OF THE MEMBERS OF THAT COMMITTEE IS USUALLY APPOINTED BY THE INSURANCE COMPANY WITH WHICH THE INSURANCE POLICY IN FAVOUR OF OFFICIALS OF THE COMMUNITIES AGAINST ACCIDENTS IN PRIVATE LIFE HAS BEEN TAKEN OUT, AND THEREFORE THERE IS A CONFLICT OF INTERESTS AS REGARDS THAT PERSON ;
1964
PERINCIOLO V COUNCIL
( 2 ) THE REPORT DOES NOT MENTION IN DETAIL CERTAIN OPINIONS OF MEDICAL EXPERTS PRODUCED BY THE APPLICANT ;
( 3 ) THE REPORT WAS NOT SIGNED BY DR D ' AVANZO .
29 AS REGARDS THE FIRST COMPLAINT, THE FACTS ALLEGED DO NOT SHOW THE EXISTENCE OF A CONFLICT OF INTERESTS, FOR THE MEDICAL COMMITTEE HAD TO GIVE THE SECRETARY-GENERAL AN OPTION ON THE APPLICANT ' S FITNESS FOR WORK - A QUESTION WHICH DOES NOT AFFECT THE LIABILITY OF AN INSURANCE COMPANY .
30 MOREOVER, THE DOCTOR IN QUESTION WAS CHOSEN BY COMMON CONSENT BETWEEN THE DOCTORS APPOINTED BY THE COUNCIL AND BY THE APPLICANT .
31 AS REGARDS THE SECOND COMPLAINT, IT WAS NOT ESSENTIAL FOR THE REPORT OF THE MEDICAL COMMITTEE TO REFER TO A DOCUMENT SUBMITTED TO IT, THE PURPOSE OF SUCH A REPORT BEING TO FURNISH THE APPOINTING AUTHORITY WITH AN OPINION ON THE STATE OF HEALTH OF THE PERSON CONCERNED .
32 AS REGARDS THE ABSENCE OF A SIGNATURE, IT APPEARS FROM THE MEDICAL REPORT THAT THE MEMBERS OF THE MEDICAL COMMITTEE TOOK PART IN THE DIFFERENT STAGES OF THE EXAMINATION AND THAT IT WAS ONLY WHEN IT CAME TO DRAFTING THE OPINION THAT DR D ' AVANZO REFUSED TO TAKE PART IN THE WORK .
33 A MEMBER OF A MEDICAL COMMITTEE, APPOINTED BY ONE OF THE INTERESTED PARTIES, CANNOT, BY HIS REFUSAL TO SIGN, BLOCK THE PROCEDURE AND MAKE THE APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS IMPOSSIBLE .
34 FOR THESE REASONS, THE SUBMISSION RELATING TO THE VALIDITY OF THE REPORT OF THE MEDICAL COMMITTEE CANNOT BE UPHELD .
35 FINALLY THE APPLICANT STATES THAT WHEN SHE WAS HEARD ON 29 JANUARY 1975, THE SECRETARY-GENERAL REFUSED TO HEAR HER APPLICATION IN INFRINGEMENT OF THE RIGHTS OF THE DEFENCE AND OF ANNEX IX TO THE STAFF REGULATIONS ON DISCIPLINARY PROCEEDINGS .
36 ARTICLE 4 OF ANNEX IX ENTITLES THE OFFICIAL CHARGED TO BE ASSISTED IN HIS DEFENCE BY A PERSON OF HIS OWN CHOICE BEFORE THE DISCIPLINARY BOARD, BUT NO SIMILAR RIGHT IS GIVEN TO HIM IN RESPECT OF A HEARING BY THE APPOINTING AUTHORITY .
37 THEREFORE THIS SUBMISSION IS UNFOUNDED .
Decision on costs
COSTS
38 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
39 THE APPLICANT HAS FAILED IN HER SUBMISSIONS .
40 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE FORMER .
Operative part
ON THOSE GROUNDS
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .