61986CJ0175_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 175/86 AND 209/86
M ., A FORMER OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY F . ENTRINGER, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 2 RUE DU PALAIS DE JUSTICE,
APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY M . GROSSMANN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . KAESER, MANAGER OF THE LEGAL DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD ADENAUER,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF DECISION NO 528/86 OF 13 JUNE 1986 OF THE SECRETARY GENERAL OF THE COUNCIL REMOVING THE APPLICANT FROM HIS POST UNDER ARTICLE 86 ( 2 ) OF THE STAFF REGULATIONS,
THE COURT ( SECOND CHAMBER )
COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T.F . O' HIGGINS, JUDGES,
ADVOCATE GENERAL : G.F . MANCINI
REGISTRAR : H.A . ROEHL, PRINCIPAL ADMINISTRATOR,
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 24 SEPTEMBER 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 19 JANUARY 1988,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 16 JULY AND 5 AUGUST 1986, MR M . ( HEREINAFTER REFERRED TO AS "THE APPLICANT "), A FORMER OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, BROUGHT TWO ACTIONS FOR THE ANNULMENT OR, FAILING THAT, THE AMENDMENT OF THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL, WHICH WAS ADOPTED ON 13 JUNE 1986 FOLLOWING DISCIPLINARY PROCEEDINGS AND IMPOSED ON THE APPLICANT THE PENALTY OF REMOVAL FROM HIS POST UNDER ARTICLE 86 ( 2 ) ( F ) OF THE STAFF REGULATIONS .
2 ACCORDING TO THE DOCUMENTS BEFORE THE COURT, THE APPLICANT CERTIFIED BY MEANS OF TWO DECLARATIONS, MADE WHEN HE TOOK UP HIS DUTIES ON 1 JULY 1982 AND REPEATED IN THE ANNUAL DECLARATIONS OF 1983 AND 1984, THAT HE WAS MARRIED, THAT HE HAD TWO DEPENDENT CHILDREN AND THAT HIS WIFE WAS NOT IN RECEIPT OF FAMILY ALLOWANCES . ON THE BASIS OF THOSE DECLARATIONS THE COUNCIL PAID HIM SUBSISTENCE ALLOWANCE, FAMILY ALLOWANCES AND ANNUAL TRAVEL EXPENSES UNTIL JUNE 1985 . IN POINT OF FACT, A DIVORCE DECREE HAD BEEN DELIVERED ON 14 NOVEMBER 1981; ON 8 JULY 1982 THE APPLICANT' S EX-WIFE WAS GRANTED CUSTODY OF THEIR TWO CHILDREN AND HE WAS ORDERED TO PAY MAINTENANCE IN RESPECT OF THEM; THE NETHERLANDS AUTHORITIES PAID HIS EX-WIFE FAMILY ALLOWANCES IN RESPECT OF BOTH CHILDREN UNTIL 1 OCTOBER 1982 AND AGAIN FROM 1 JULY 1984 IN RESPECT OF ONE OF THE CHILDREN .
3 IN ADDITION, THE APPLICANT WAS ORDERED TO PAY DEBTS AMOUNTING TO APPROXIMATELY BFR 1 350 000 BY FIVE JUDGMENTS IN DEFAULT, WHICH WERE NOTIFIED TO THE ADMINISTRATION OF THE COUNCIL FOR ENFORCEMENT .
4 ON 28 OCTOBER 1985 THE SECRETARY-GENERAL OF THE COUNCIL, IN HIS CAPACITY AS APPOINTING AUTHORITY, SENT A MEMORANDUM TO THE APPLICANT SETTING OUT THE CHARGES MADE AGAINST HIM . AFTER HEARING HIM, THE APPOINTING AUTHORITY REFERRED THE MATTER TO THE DISCIPLINARY BOARD IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 87 OF THE STAFF REGULATIONS .
5 IN ITS OPINION OF 16 MAY 1986 THE DISCIPLINARY BOARD CONSIDERED THAT THE APPLICANT' S FALSE DECLARATIONS CONSTITUTED A FAILURE TO COMPLY WITH HIS DUTY OF INTEGRITY AND THAT THE APPROPRIATE PENALTY WOULD BE DOWNGRADING, WHICH WOULD GIVE HIM AN OPPORTUNITY TO REDEEM HIMSELF .
6 IN THE CONTESTED DECISION OF 13 JUNE 1986 THE APPOINTING AUTHORITY, AFTER HAVING HEARD THE APPLICANT ONCE MORE, TOOK THE VIEW THAT THE SANCTION PROPOSED BY THE DISCIPLINARY BOARD WAS DISPROPORTIONATE TO THE GRAVITY OF THE CHARGES AGAINST THE APPLICANT AND THEREFORE DECIDED TO REMOVE HIM FROM HIS POST .
7 THE APPLICANT CONTESTS THAT DECISION ON THE GROUNDS THAT IT CONTAINS PROCEDURAL IRREGULARITIES, AN INADEQUATE STATEMENT OF REASONS AND MANIFEST ERRORS . FOR ITS PART, THE COUNCIL CLAIMS THAT THE APPLICATIONS ARE NOT ONLY UNFOUNDED BUT ALSO INADMISSIBLE; THE FIRST IN SO FAR AS IT SEEKS THE AMENDMENT OF THE DECISION AND THE SECOND IN SO FAR AS ITS SUBJECT-MATTER IS NO DIFFERENT FROM THAT OF THE FIRST APPLICATION .
8 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE RELEVANT COMMUNITY LEGISLATION, THE PROCEDURE BEFORE THE COURT 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 .
ADMISSIBILITY
9 AS REGARDS THE OBJECTION OF INADMISSIBILITY RAISED AGAINST THE FIRST APPLICATION ( CASE 175/86 ), IT MUST BE POINTED OUT THAT THE COURT HAS ALREADY HELD, IN PARTICULAR IN ITS JUDGMENTS OF 30 MAY 1973 IN CASE 46/72 DE GREEF V COMMISSION (( 1973 )) ECR 543 AND OF 29 JANUARY 1985 IN CASE 228/83 F . V COMMISSION (( 1985 )) ECR 275, 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 APPLICATION IN CASE 175/86 MUST THEREFORE BE DISMISSED AS INADMISSIBLE IN SO FAR AS THE APPLICANT SEEKS THE AMENDMENT OF THE CONTESTED DECISION .
10 AS REGARDS THE SECOND APPLICATION ( CASE 209/86 ), IT MUST BE POINTED OUT THAT IT IS BASED ESSENTIALLY ON A CONFIDENTIAL MEMORANDUM DATED 4 JUNE 1986 FROM THE APPOINTING AUTHORITY TO THE CHAIRMAN OF THE DISCIPLINARY BOARD WHICH SET OUT THE REASONS FOR IMPOSING A MORE SEVERE PENALTY IN TERMS OTHER THAN THOSE USED IN THE CONTESTED DECISION OF 13 JUNE 1986 . WHEN THAT MEMORANDUM CAME TO HIS NOTICE THE APPLICANT CONSIDERED THAT HE COULD USE IT TO SUPPORT SUBMISSIONS WHICH HE HAD ALREADY MADE IN HIS FIRST APPLICATION . IN THOSE CIRCUMSTANCES THE SECOND APPLICATION, WHICH WAS LODGED WITHIN THE PRESCRIBED PERIOD, MUST BE REGARDED AS ADMISSIBLE .
SUBSTANCE
( A ) THE DISCIPLINARY PROCEEDINGS
11 THE APPLICANT FIRST MAINTAINS THAT THE SECRETARY-GENERAL HAD ALREADY ADOPTED A POSITION AGAINST HIM BEFORE THE MATTER WAS REFERRED TO THE DISCIPLINARY BOARD . ACCORDING TO THE APPLICANT THAT IS CLEAR FROM THE MEMORANDUM OF 28 OCTOBER 1985, WHICH CONTAINS THE FOLLOWING INTRODUCTORY SENTENCE :
"I HAVE BEEN INFORMED THAT SINCE YOU TOOK UP YOUR DUTIES ON 1 JULY 1982, YOU HAVE INTENTIONALLY COMMITTED A SERIOUS BREACH OF YOUR OBLIGATIONS UNDER THE STAFF REGULATIONS ".
CONSEQUENTLY, THE APPLICANT WAS DEPRIVED OF HIS RIGHT TO AN INDEPENDENT AND IMPARTIAL JUDGE .
12 IN THAT CONNECTION IT MUST BE POINTED OUT THAT ARTICLE 87 OF THE STAFF REGULATIONS PROVIDES THAT THE APPOINTING AUTHORITY IS TO HEAR THE OFFICIAL BEFORE INITIATING DISCIPLINARY PROCEEDINGS . THAT RULE PRESUPPOSES THAT THE OFFICIAL IS INFORMED BEFOREHAND OF THE CHARGES AGAINST HIM . IN ADDITION, ARTICLE 1 OF ANNEX IX TO THE STAFF REGULATIONS PROVIDES THAT A REPORT IS TO BE SUBMITTED TO THE DISCIPLINARY BOARD BY THE APPOINTING AUTHORITY, STATING CLEARLY THE FACTS COMPLAINED OF AND, WHERE APPROPRIATE, THE CIRCUMSTANCES IN WHICH THEY AROSE . THOSE COMMUNICATIONS MUST NECESSARILY BE BASED ON A PROVISIONAL APPRAISAL BY THE APPOINTING AUTHORITY OF THE OFFICIAL' S CONDUCT AND MUST IN NO CASE CONCEAL THE SERIOUS AND DELIBERATE NATURE OF THE ACTS WHICH MAY APPEAR FROM THAT APPRAISAL . IN THIS CASE, THE SECRETARY-GENERAL CERTAINLY EMPHASIZED IN HIS MEMORANDUM OF 28 OCTOBER 1985 THE PROVISIONAL NATURE OF THE ASSESSMENT BY USING THE WORDS "I HAVE BEEN INFORMED THAT ... ". THE APPLICANT' S FIRST SUBMISSION MUST THEREFORE BE REJECTED .
13 IN THE SECOND PLACE, THE APPLICANT COMPLAINS THAT THE CHAIRMAN OF THE DISCIPLINARY BOARD REQUESTED HIM TO SUBMIT HIS DEFENCE WITHIN 15 DAYS OF RECEIPT OF THE APPOINTING AUTHORITY' S REPORT WHEREAS ARTICLE 4 ( 1 ) OF ANNEX IX TO THE STAFF REGULATIONS PROVIDES THAT HE IS TO HAVE NOT LESS THAN 15 DAYS .
14 THAT COMPLAINT IS MANIFESTLY UNFOUNDED . NOT ONLY DID THE CHAIRMAN OF THE DISCIPLINARY BOARD ALLOW THE APPLICANT THE PERIOD PROVIDED FOR IN ARTICLE 4 ( 1 ), THE LATTER IN FACT HAD A MUCH LONGER PERIOD AND THE CHAIRMAN OF THE BOARD REMINDED HIM ON SEVERAL OCCASIONS OF HIS RIGHT TO SUBMIT A DEFENCE .
15 THIRDLY, THE APPLICANT CLAIMS THAT THE TIME-LIMIT LAID DOWN IN ARTICLE 7 OF ANNEX IX, WHICH PROVIDES THAT THE DISCIPLINARY BOARD IS TO DELIVER ITS OPINION WITHIN ONE MONTH OF THE DATE ON WHICH THE MATTER WAS REFERRED TO IT, WAS NOT COMPLIED WITH .
16 IN THAT REGARD, IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD THAT THE TIME-LIMITS LAID DOWN IN ARTICLE 7 OF ANNEX IX ARE NOT MANDATORY BUT CONSTITUTE RULES OF SOUND ADMINISTRATION; FAILURE TO OBSERVE THOSE TIME-LIMITS MAY RENDER THE INSTITUTION LIABLE FOR ANY DAMAGE CAUSED TO THOSE CONCERNED ( SEE THE COURT' S JUDGMENTS OF 4 FEBRUARY 1970 IN CASE 13/69 VAN EICK V COMMISSION (( 1970 )) ECR 3, AND OF 29 JANUARY 1985, F . V COMMISSION, CITED ABOVE ). SINCE THE FACT THAT THE TIME-LIMIT OF ONE MONTH WAS EXCEEDED DOES NOT IN ANY WAY AFFECT THE VALIDITY OF THE CONTESTED DECISION, THE THIRD COMPLAINT MUST BE REJECTED AND, CONSEQUENTLY, THE WHOLE OF THE SUBMISSION CONCERNING THE PROCEDURE .
( B ) THE STATEMENT OF REASONS
17 THE APPLICANT CLAIMS THAT INSUFFICIENT REASONS WERE GIVEN BY THE APPOINTING AUTHORITY FOR IMPOSING A MORE SEVERE DISCIPLINARY MEASURE COMPARED WITH THAT PROPOSED BY THE DISCIPLINARY BOARD . HE ALSO COMPLAINS THAT IN ITS MEMORANDUM OF 4 JUNE 1986 TO THE CHAIRMAN OF THE DISCIPLINARY BOARD THE APPOINTING AUTHORITY CITED AS A REASON FOR IMPOSING A MORE SEVERE PENALTY A CIRCUMSTANCE NOT MENTIONED IN THE CONTESTED DECISION AND NOT COVERED BY THE DISCIPLINARY PROCEEDINGS, NAMELY "FRUSTRATION BY PROCEDURAL MEANS ".
18 IN THAT CONNECTION IT MUST BE POINTED OUT THAT IN THE CONTESTED DECISION THE APPOINTING AUTHORITY GAVE THE FOLLOWING REASONS FOR IMPOSING A MORE SEVERE PENALTY :
- THE FALSE DECLARATIONS REVEAL A CONSTANT INTENTION ON THE PART OF M . TO DISREGARD THE HONESTY AND TRUST WHICH SHOULD GOVERN RELATIONS BETWEEN OFFICIALS AND THE PUBLIC SERVICE, AND INDICATE HIS LACK OF INTEGRITY;
- M .' S FAILURE TO FULFIL PRIVATE OBLIGATIONS, WHICH HAVE BEEN THE SUBJECT OF COURT ORDERS, REVEALS HIS MANIFEST CONTEMPT FOR THE JUDICIAL AUTHORITIES OF THE COUNTRY IN WHICH HE IS EMPLOYED AND WHICH PARTICULARLY REFLECTS ON HIS POSITION;
- IN SUCH CIRCUMSTANCES, THE POSSIBILITY OF HIS REDEEMING HIMSELF, REFERRED TO BY THE DISCIPLINARY BOARD, IS THEORETICAL;
- THE ABSENCE OF ANY MITIGATING CIRCUMSTANCES .
IT WAS, MOREOVER, IN CONNECTION WITH THE LAST-MENTIONED GROUND THAT THE APPOINTING AUTHORITY EMPHASIZED, ALSO IN THE CONTESTED DECISION, THAT INSTEAD OF GIVING ANY EXPLANATION WITH REGARD TO THE SUBSTANCE OF THE MATTER, THE APPLICANT TOOK REFUGE BEHIND CLAIMS OF NUMEROUS PROCEDURAL IRREGULARITIES ALLEGEDLY COMMITTED BY THE APPOINTING AUTHORITY AND THE DISCIPLINARY BOARD .
19 IT MUST BE CONCLUDED THAT IN THE CONTESTED DECISION THE APPOINTING AUTHORITY STATED THE REASONS FOR IMPOSING A MORE SEVERE DISCIPLINARY MEASURE IN SUCH A WAY AS TO INFORM THE APPLICANT OF THE ESSENTIAL CONSIDERATIONS WHICH GUIDED THE ADMINISTRATION IN ITS DECISION AND SO AS TO ENABLE THE COURT TO REVIEW THE LEGALITY OF THAT DECISION . IT MUST BE ADDED THAT THE MEMORANDUM OF 4 JUNE 1986 DOES NOT DISCLOSE ANY ADDITIONAL REASONS WHICH INFLUENCED THE DECISION BUT WERE NOT REFERRED TO IN THE STATEMENT OF REASONS SET OUT THEREIN . IT FOLLOWS THAT THE SUBMISSION CONCERNING THE STATEMENT OF REASONS MUST BE REJECTED .
( C ) THE EXISTENCE OF MANIFEST ERRORS
20 THE APPLICANT CLAIMS THAT THE CONTESTED DECISION IS VITIATED BY MANIFEST ERRORS RELATING BOTH TO HIS PRESUMED BAD FAITH AND HIS ALLEGED FRAUDULENT INTENTION . SINCE UNDER NETHERLANDS PROCEDURE, DECISIONS RELATING TO DIVORCE AND TO THE CUSTODY OF THE CHILDREN ARE NOT SERVED PERSONALLY ON THE PARTIES OR AT THEIR ADDRESS, THE DECISIONS IN QUESTION WERE NEVER BROUGHT TO HIS NOTICE . IN ADDITION, HIS EX-WIFE WAS PAID DUTCH FAMILY ALLOWANCES WITHOUT HIS KNOWLEDGE . MOREOVER, SINCE HE WAS ORDERED TO CONTRIBUTE TOWARDS THE MAINTENANCE OF HIS TWO CHILDREN AND ONE OF THEM LIVED WITH HIM FOR A SUBSTANTIAL PART OF THE PERIOD IN QUESTION, HE WAS ENTITLED TO VIRTUALLY THE SAME ALLOWANCES AS WERE PAID BY THE COUNCIL ON THE BASIS OF THE OBJECTIVELY INCORRECT DECLARATIONS, AND HENCE THERE WAS NO FRAUDULENT INTENTION ON HIS PART .
21 WITHOUT ITS BEING NECESSARY FOR THE COURT TO RULE ON THE CREDIBILITY OF THE EXPLANATIONS AS TO THE IGNORANCE OF THE FACTS COMPLAINED OF ON THE PART OF THE APPLICANT - WHO IS HIMSELF A LAWYER BY TRAINING AND WHO WAS REPRESENTED BY A LAWYER BEFORE THE NETHERLANDS COURTS - IT MUST BE EMPHASIZED THAT THE APPLICANT KNEW THAT DIVORCE PROCEEDINGS HAD BEEN STARTED AGAINST HIM AND WAS THEREFORE UNDER A DUTY TO FIND OUT WHAT STAGE THOSE PROCEEDINGS HAD REACHED, BEFORE HE MADE THE DECLARATIONS IN QUESTION . HE WAS AWARE THAT THOSE DECLARATIONS WOULD CONSTITUTE THE BASIS ON WHICH THE VARIOUS ALLOWANCES WOULD BE PAID AND EVEN IF, IN THE FINAL ANALYSIS, THE FINANCIAL LOSS SUFFERED BY THE COUNCIL IS RELATIVELY SMALL, THAT DOES NOT ALTER THE FACT THAT THE DECLARATIONS WERE FALSE, CONTRARY TO THE HONESTY AND TRUST WHICH SHOULD GOVERN RELATIONS BETWEEN THE ADMINISTRATION AND OFFICIALS AND INCOMPATIBLE WITH THE INTEGRITY WHICH EACH OFFICIAL IS REQUIRED TO SHOW .
22 AS REGARDS THE PRIVATE DEBTS, THE APPLICANT ARGUES THAT EVERY DEBTOR HAS THE RIGHT TO ALLOW JUDGMENT IN DEFAULT TO BE ENTERED AGAINST HIM AND THAT THE NON-PAYMENT OF THOSE DEBTS CONSTITUTES A PRIVATE MATTER WHICH IN ITSELF CANNOT JUSTIFY THE ADOPTION OF A DISCIPLINARY MEASURE . THE APPLICANT CONSIDERS THAT HIS VIEW IS CONFIRMED BY THE FACT THAT THE APPOINTING AUTHORITY TOOK NO ACTION ON A PREVIOUS PROPOSAL BY HIS IMMEDIATE SUPERIOR TO IMPOSE A DISCIPLINARY MEASURE ON HIM ON THE GROUND OF UNPAID DEBTS .
23 ALTHOUGH IT IS TRUE THAT FACTORS APPERTAINING TO AN OFFICIAL' S PRIVATE LIFE CANNOT AS A GENERAL RULE JUSTIFY THE IMPOSITION OF DISCIPLINARY MEASURES, IT MUST, HOWEVER, BE ADMITTED THAT A DELIBERATE FAILURE TO COMPLY WITH SEVERAL COURT DECISIONS INVOLVING A VERY SUBSTANTIAL SUM OF MONEY CONSTITUTES A FACT WHICH MAY REFLECT ON HIS POSITION AS AN OFFICIAL . IN THIS CASE SUCH CONDUCT COULD THEREFORE BE REGARDED AS AGGRAVATING CIRCUMSTANCES .
24 IT FOLLOWS FROM THOSE CONSIDERATIONS THAT THE APPLICANT' S ARGUMENTS HAVE NOT DISCLOSED ANY MANIFEST ERRORS ON THE PART OF THE APPOINTING AUTHORITY AND THAT, CONSEQUENTLY, THAT SUBMISSION MUST ALSO BE REJECTED .
25 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
26 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION .
( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS, INCLUDING THOSE OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .