61967CJ0035_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 35/67
AUGUST JOSEF VAN EICK, A FORMER OFFICIAL OF THE COMMISSION OF THE EAEC, RESIDING AT ISPRA-SAN GIACOMO ( VARESE, ITALY ), CASCINE MARIA TERESA, ASSISTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, LECTURER AT THE INDEPENDENT UNIVERSITY OF 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, TAKING THE PLACE OF THE COMMISSION OF THE EAEC BY VIRTUE OF ARTICLE 9 OF THE TREATY OF 8 APRIL 1965, REPRESENTED BY ITS LEGAL ADVISER, JUERGEN UTERMANN, 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 ) FOR THE ANNULMENT
- OF THE PROCEDURE FOLLOWING BEFORE THE DISCIPLINARY BOARD;
- OF THE OPINION OF THE DISCIPLINARY BOARD DELIVERED ON 23 JUNE 1967;
- OF THE DECISION TAKEN BY THE COMMISSION AT ITS MEETING OF 4 JULY 1967 REMOVING THE APPLICANT FROM HIS POST; AND
( B ) FOR THE PAYMENT OF ARREARS OF SALARY AND COMPENSATION FOR MATERIAL AND NON-MATERIAL DAMAGE SUFFERED .
Grounds
P . 341
ADMISSIBILITY
THE PURPOSE OF THE APPLICATION IS THE ANNULMENT OF THE PROCEDURE FOLLOWED BEFORE THE DISCIPLINARY BOARD, OF THE OPINION DELIVERED BY THIS BOARD AND THE DECISION TAKEN BY THE COMMISSION TO REMOVE THE APPLICANT FROM HIS POST .
UNDER ARTICLE 91(1 ) OF THE STAFF REGULATIONS OF OFFICIALS, ANY ACTION BETWEEN THE COMMUNITY AND ANY PERSON TO WHOM THOSE STAFF REGULATIONS APPLY REGARDING THE LEGALITY OF AN ACT ' ADVERSELY AFFECTING HIM ' MAY BE SUBMITTED TO THE COURT .
THE PROCEDURE FOLLOWED BEFORE THE DISCIPLINARY BOARD IS MADE UP OF A BODY OF PURELY PREPARATORY MEASURES WHICH ARE ONLY CAPABLE OF AFFECTING THE OFFICIAL CONCERNED ADVERSELY TO THE EXTENT TO WHICH THEY INFLUENCE THE OPINION OF THE BOARD .
ON THIS POINT, THEREFORE, THE APPLICATION MUST BE DECLARED INADMISSIBLE AND THE COMPLAINTS RAISED AGAINST THIS PROCEDURE MUST BE CONSIDERED IN THE CONTEXT OF THE APPLICATION DIRECTED AGAINST THE OPINION OF THE BOARD .
P . 342
SUBSTANCE OF THE CASE
A - ANNULMENT OF THE OPINION OF THE DISCIPLINARY BOARD
THE APPLICANT MAINTAINS, FIRST, THAT THE PROCEDURE FOLLOWED BEFORE THE BOARD IS CONTRARY TO THE STAFF REGULATIONS OF OFFICIALS, AND IN PARTICULAR TO ARTICLES 4, 6 AND 7 OF ANNEX IX .
IN SUPPORT OF THIS SUBMISSION, THE APPLICANT ARGUES THAT THE BOARD INFRINGED ARTICLE 4 BY DECIDING TO HEAR ONLY SOME OF THE WITNESSES CALLED BY THE APPLICANT .
THE SECOND PARAGRAPH OF ARTICLE 4 OF ANNEX IX TO THE STAFF REGULATIONS ACKNOWLEDGES THAT THE OFFICIAL CHARGED HAS THE RIGHT TO CALL WITNESSES BEFORE THE BOARD . ALTHOUGH, WITHIN THE CONTEXT OF THE POWERS CONFERRED UPON IT BY ANNEX IX TO THE STAFF REGULATIONS, THE BOARD IS AN ADVISORY BODY OF THE APPOINTING AUTHORITY, IT IS, HOWEVER, BOUND IN THE EXERCISE OF ITS POWERS TO OBSERVE THE FUNDAMENTAL PRINCIPLES OF THE LAW OF PROCEDURE . IN ACCORDANCE WITH THESE PRINCIPLES IT COULD NOT REFUSE TO COMPLY WITH AN APPLICATION FOR THE EXAMINATION OF WITNESSES, ONCE THIS REQUEST CLEARLY INDICATES THE FACTS ON WHICH THERE IS REASON TO HEAR THE WITNESS OR WITNESSES NAMED AND THE REASONS WHICH ARE LIKELY TO JUSTIFY THEIR EXAMINATION . IT IS, HOWEVER, FOR THE BOARD TO ASSESS BOTH THE RELEVANCE OF THE APPLICATION IN RELATION TO THE SUBJECT-MATTER OF THE DISPUTE AND THE NEED TO EXAMINE THE WITNESSES NAMED .
THE BOARD COULD, IN PRINCIPLE, TAKE THE VIEW THAT THE EXAMINATION OF ONLY SOME OF THE WITNESSES CALLED BY THE APPLICANT WAS SUFFICIENT FOR THE PURPOSES OF THE INQUIRY INTO THE CASE . MOREOVER, ALTHOUGH THE APPLICANT HAD BEEN INFORMED OF ITS DECISION TO HEAR ONLY SOME OF THESE WITNESSES, HE DID NOT INSIST EITHER IN WRITING OR AT THE HEARING ON THE EXAMINATION OF THE OTHER WITNESSES NAMED IN HIS APPLICATION OF 1 JUNE 1967 . THIS BEING SO, THE BOARD WAS ENTITLED AND INDEED OBLIGED TO TAKE THE VIEW THAT THE APPLICANT WAS NOT PERSISTING IN HIS EARLIER APPLICATION, BUT HAD ACCEPTED THE BOARD'S EVALUATION OF THE MATTER .
THE FIRST SUBMISSION MUST, THEREFORE, BE DISMISSED AS UNFOUNDED .
THE APPLICANT MAINTAINS THAT HE WAS ONLY ABLE TO FOLLOW A POSTERIORI THE CONDUCT OF THE INQUIRY ORDERED BY THE BOARD ON 28 APRIL 1967 . FURTHERMORE, THE BOARD IS SAID TO HAVE HEARD ONE OF ITS MEMBERS ON THE ' BIRD ' PROJECT WITHOUT ENABLING THE OFFICIAL CONCERNED TO SUBMIT HIS OBSERVATIONS SO THAT A WITNESS HAD BEEN HEARD IN CAMERA UNDER THE PRETEXT OF DISCUSSION . FOR THESE REASONS, THE APPLICANT SAYS THAT THIS INQUIRY WAS NOT ONE IN WHICH EACH SIDE COULD SUBMIT ITS CASE AND REPLY TO THE CASE OF THE OTHER SIDE, AS REQUIRED BY THE FIRST PARAGRAPH OF ARTICLE 6 OF ANNEX IX TO THE STAFF REGULATIONS .
THE FIRST PARAGRAPH OF ARTICLE 6 PROVIDES THAT IF THE DISCIPLINARY BOARD REQUIRES FURTHER INFORMATION CONCERNING THE FACTS COMPLAINED OF OR THE CIRCUMSTANCES IN WHICH THEY AROSE, IT MAY ORDER AN INQUIRY ' IN WHICH EACH SIDE CAN SUBMIT ITS CASE AND REPLY TO THE CASE OF THE OTHER SIDE '. IN THE PRESENT CASE THE MINUTES OF THE MEETING OF THE BOARD OF 28 APRIL 1967 SHOW THAT IN THIS CASE THE INQUIRY CONSISTED IN A CONSIDERATION OF THE DOCUMENTS REFERRED TO IN THE COMMISSION'S REPORT TO THE BOARD . IT IS NOT DISPUTED THAT ALL THE DOCUMENTS SUBMITTED TO THE BOARD FOR THIS PURPOSE WERE COMMUNICATED IMMEDIATELY AND IN THEIR ENTIRETY TO THE APPLICANT, AS WERE THE MINUTES OF ALL THE MEETINGS OF THE BOARD . THE NATURE OF AN INQUIRY, IN WHICH EACH SIDE CAN SUBMIT ITS CASE AND REPLY TO THE CASE OF THE OTHER SIDE, DID NOT DEMAND THAT THE OFFICIAL CONCERNED SHOULD TAKE PART IN THE EXAMINATION OF THESE DOCUMENTS BY THE RAPPORTEUR OR IN THE REPORT WHICH THE RAPPORTEUR MADE TO HIS COLLEAGUES IN THE COURSE OF THE INQUIRY, BUT ONLY THAT HE BE KEPT INFORMED OF THE CONDUCT OF THE INQUIRY AND ENABLED, IN GOOD TIME, TO SUBMIT HIS OBSERVATIONS ON THE INFORMATION OBTAINED . THE FILE SHOWS THAT THIS REQUIREMENT WAS SATISFIED BY THE COMMUNICATION OF BOTH THE DOCUMENTS AND THE ABOVEMENTIONED MINUTES .
P . 343
AS REGARDS THE STATEMENT ABOUT THE ' BIRD ' PROJECT, THIS WAS INFORMATION GIVEN BY A MEMBER OF THE BOARD TO HIS COLLEAGUES WHICH WAS INTENDED TO FACILITATE COMPREHENSION OF THE ' BIRD ' REPORT WHICH APPEARED AMONG THE DOCUMENTS FORMING THE SUBJECT OF THE INQUIRY . SUCH A COMMUNICATION BETWEEN THE MEMBERS OF THE BOARD FALLS WITHIN THE SPHERE OF INTERNAL DISCUSSION, WHICH CANNOT BE TAKEN INTO ACCOUNT OUTSIDE THE MEETING OF THE BOARD . THE PRESENT SUBMISSION MUST, THEREFORE, BE DISMISSED .
FURTHERMORE, THE APPLICANT ALLEGES THAT THE PROCEEDINGS BEFORE THE BOARD DID NOT RESPECT THE RIGHTS OF THE DEFENCE AND ARE FOR THIS REASON IRREGULAR . ON THIS POINT HE MAINTAINS THAT THE BOARD DID NOT ALLOW THE PERSON WHOM HE CHOSE TO ASSIST HIM IN HIS DEFENCE THE NECESSARY TIME IN WHICH TO PREPARE A WRITTEN NOTE TO BRING TO THE NOTICE OF THE COMMISSION THE FINAL ORAL ARGUMENTS PUT FORWARD BEFORE THE BOARD, AND TO INFORM IT AS TO THE SCOPE AND CONTENT OF THE ADDITIONAL DOCUMENTS PRODUCED DURING THESE PROCEEDINGS .
IT IS UNNECESSARY FOR THE FINAL ORAL ARGUMENTS SUBMITTED TO THE BOARD TO BE RECORDED IN WRITING, AS THEY ARE INTENDED ONLY FOR THIS BODY .
THE ORAL ARGUMENTS CONSTITUTE ONE OF THE FACTORS WHICH ENABLE THE BOARD TO DELIVER A REASONED OPINION ON THE DISCIPLINARY ACTION APPROPRIATE TO THE FACTS ESTABLISHED . IT FOLLOWS FROM THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS THAT THE APPOINTING AUTHORITY SHALL TAKE ITS DECISION IN THE LIGHT OF THIS OPINION AND AFTER HEARING THE OFFICIAL CONCERNED . MOREOVER, BY VIRTUE OF THIS PROVISION, THE OFFICIAL IS ENABLED TO SUBMIT HIS OBSERVATIONS TO THE APPOINTING AUTHORITY ON THE OPINION DELIVERED BY THE BOARD AND TO PROVIDE ANY MATERIAL INFORMATION CONCERNING THE SIGNIFICANCE OF THE DOCUMENTS WHICH HE HAS PRODUCED AND ON WHICH HE INTENDS TO RELY .
P . 344
THEREFORE, AS THE PRESENT SUBMISSION HAS NO LEGAL BASIS IN THE PROVISIONS OF THE STAFF REGULATIONS, IT MUST BE DISMISSED .
THE APPLICANT MAINTAINS THAT THE SECOND RECITAL OF THE OPINION OF THE BOARD CONTRADICTS THE EVIDENCE WHICH MR EDER GAVE TO THAT BODY DURING ITS FOURTH MEETING . THIS EVIDENCE SHOWED THAT THE APPLICANT CARRIED OUT ROUTINE WORK AND TOOK PART IN WORK OTHER THAN THAT WHICH WAS EXPRESSLY REQUESTED OF HIM .
THIS EVIDENCE WAS REFERRED TO IN THE MINUTES OF THE FOURTH MEETING OF THE BOARD AND SHOWS THAT IN CARRYING OUT A STUDY ON THE NOISE OF REACTORS WHICH HAD BEEN ENTRUSTED TO HIM IN 1966 THE APPLICANT DID NOT SHOW THE INITIATIVE NECESSARY TO ENSURE THAT THE CURRENT WORK FOR WHICH HE WAS RESPONSIBLE WAS CARRIED OUT . NO CONTRADICTION CAN THUS BE SHOWN TO EXIST BETWEEN THIS EVIDENCE AND THE ABOVEMENTIONED RECITAL . THE PRESENT SUBMISSION MUST, THEREFORE, BE DISMISSED AS UNFOUNDED .
FOR ALL THESE REASONS IT MUST BE CONCLUDED THAT THE PROCEEDINGS BEFORE THE BOARD WERE CONDUCTED IN ACCORDANCE WITH THE STAFF REGULATIONS AND THAT THE OPINION DRAWN UP BY THE BOARD AT THE CLOSE OF THESE PROCEEDINGS ON 23 JUNE 1967 MUST BE REGARDED AS REGULAR .
B - ANNULMENT OF THE DECISION TO REMOVE THE APPLICANT FROM HIS POST
THE APPLICANT MAINTAINS THAT THE TASK OF HEARING THE OFFICIAL CONCERNED WHICH THE COMMISSION GAVE TO MR BUURMAN, A DIRECTOR AT THE DIRECTORATE - GENERAL FOR ADMINISTRATION, IS CONTRARY TO THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS . THE RESULT OF THIS PROVISION, WHEN CONSIDERED TOGETHER WITH THE FIRST PARAGRAPH OF ARTICLE 87 OF THE STAFF REGULATIONS, IS TO OBLIGE THE APPOINTING AUTHORITY TO HEAR THE OFFICIAL ITSELF AND TO EXCLUDE ANY DELEGATION OF POWERS .
THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX PROVIDES THAT THE APPOINTING AUTHORITY SHALL TAKE ITS DECISION WITHIN ONE MONTH, AND ' IT SHALL FIRST HEAR THE OFFICIAL CONCERNED '. IN INTERPRETING THIS PHRASE IT IS NOT POSSIBLE TO REFER EITHER TO THE FIRST OR TO THE SECOND PARAGRAPH OF ARTICLE 87 OF THE STAFF REGULATIONS, AS THESE PROVISIONS REFER TO THE HEARING OF AN OFFICIAL IN CASES OR AT STAGES OF THE DISCIPLINARY PROCEEDINGS WHICH ARE DIFFERENT FROM THOSE IN THIS INSTANCE .
AS A RESULT, THE JUSTIFICATION FOR THE APPLICANT'S SUBMISSION MAY ONLY BE ASSESSED IN THIS CASE IN THE LIGHT OF THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS .
BY REASON OF THE GRAVITY OF THE DISCIPLINARY ACTION TO WHICH THE PROCEEDINGS REFERRED TO IN ANNEX IX TO THE STAFF REGULATIONS MAY LEAD, AND HAVING REGARD TO THE FORM OF WORDS EMPLOYED, THE ARTICLE IN QUESTION CONSTITUTES A PEREMPTORY LEGAL REQUIREMENT . IT MUST BE INTERPRETED AS IMPOSING ON THE APPOINTING AUTHORITY A DUTY TO HEAR THE OFFICIAL ITSELF . ONLY BY OBSERVING THIS PRINCIPLE AND IN CONDITIONS WHICH ENSURE THE PROTECTION OF THE RIGHTS OF THE OFFICIALS CONCERNED MIGHT THE APPOINTING AUTHORITY, FOR REASONS CONNECTED WITH THE EFFICIENT RUNNING OF ITS DEPARTMENTS, ENTRUST TO ONE OR MORE OF ITS MEMBERS THE TASK OF HEARING THE OFFICIAL CONCERNED .
P . 345
THIS REQUIREMENT WAS NOT SATISFIED IN THIS INSTANCE, AS THE TASK OF HEARING THE OFFICIAL CONCERNED WAS DELEGATED BY THE APPOINTING AUTHORITY TO AN OFFICIAL OF THE INSTITUTION . SUCH A PROCEDURE MUST, THEREFORE, BE REGARDED AS IRREGULAR .
IN VIEW OF THIS FACT THE CONTESTED DECISION APPEARS TO HAVE BEEN ADOPTED IN DISREGARD OF THE CONDITION SET OUT IN THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS . IT MUST THEREFORE BE ANNULLED .
C - PAYMENT OF DAMAGES
THE APPLICANT CLAIMS THAT THE COURT SHOULD DECLARE AND ADJUDGE THAT FOLLOWING THE ANNULMENT OF THE CONTESTED DECISION, HE HAS THE RIGHT TO RECEIVE HIS SALARY AND ALL THE BENEFITS ATTACHING TO HIS POSITION AS AN OFFICIAL, AS FROM 1 AUGUST 1967 .
THE MEASURE REQUESTED IS ENTAILED IN THE EXECUTION OF THE JUDGMENT OF THE COURT ORDERING THIS DECISION TO BE ANNULLED . IN ACCORDANCE WITH ARTICLE 149 OF THE EAEC TREATY THE COMMISSION IS REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT OF JUSTICE . IT IS THUS UNNECESSARY FOR ANY DECISION TO BE MADE ON THIS CLAIM .
IN ADDITION, SUBJECT TO HIS RIGHT TO VARY THIS SUM IN THE COURSE OF THE PROCEEDINGS, THE APPLICANT CLAIMS THE SUM OF BF 25 000 BY WAY OF DAMAGES IN RESPECT OF THE TRAVELLING EXPENSES AND THE COSTS OF HIS DEFENCE WHICH HE HAS INCURRED IN THE COURSE OF THE DISCIPLINARY PROCEEDINGS .
UNDER ARTICLE 10 OF ANNEX IX TO THE STAFF REGULATIONS, COSTS INCURRED ON THE INITIATIVE OF AN OFFICIAL IN THE COURSE OF DISCIPLINARY PROCEEDINGS, IN PARTICULAR FEES TO A PERSON CHOSEN FOR HIS DEFENCE FROM OUTSIDE THE THREE EUROPEAN COMMUNITIES, SHALL BE BORNE BY THE OFFICIAL WHERE THE DISCIPLINARY PROCEEDINGS RESULT IN ANY OF THE MEASURES PROVIDED FOR UNDER ARTICLE 86(2)(C ) TO ( G ) OF THE STAFF REGULATIONS . IN THE PRESENT CASE, AS THE CONTESTED DECISION TO REMOVE THE APPLICANT FROM HIS POST HAS BEEN ANNULLED, THE DISCIPLINARY PROCEEDINGS CONCERNING THE APPLICANT RESULTED IN NONE OF THE DISCIPLINARY MEASURES PROVIDED FOR IN THAT ARTICLE . AT THE PRESENT STAGE OF THESE PROCEEDINGS, THEREFORE, IT IS UNNECESSARY FOR ANY DECISION TO BE MADE ON THIS CLAIM .
FINALLY, THE APPLICANT CLAIMS COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED AS A RESULT OF THE CONSIDERABLE DIFFICULTIES CAUSED TO HIM BY HIS REMOVAL FROM HIS POST . THE APPLICANT HAS NOT SET OUT IN SUFFICIENT DETAIL THE NATURE AND EXTENT OF THESE DIFFICULTIES . THIS CLAIM MUST THEREFORE BE DISMISSED .
Decision on costs
UNDER THE FIRST PARAGRAPH OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE DEFENDANT HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
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 TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY, ESPECIALLY ARTICLES 149 AND 152;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, ESPECIALLY ARTICLES 25, 87 AND 91 AND ANNEX IX;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLE 69;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION TAKEN BY THE COMMISSION OF THE EAEC AT ITS MEETING OF 4 JULY 1967 REMOVING MR AUGUST VAN EICK FROM HIS POST;
2 . DISMISSES THE APPLICATION AS UNFOUNDED TO THE EXTENT TO WHICH IT IS DIRECTED AGAINST THE OPINION OF THE DISCIPLINARY BOARD;
3 . DISMISSES THE CLAIM FOR DAMAGES IN RESPECT OF THE NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED;
4 . DECLARES THAT IT IS UNNECESSARY TO ADJUDICATE ON THE OTHER CLAIMS;
5 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS OF THE PROCEEDINGS .