61968CJ0012(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 12/68
X, A FORMER OFFICIAL OF THE AUDIT BOARD OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, CENTRE LOUVIGNY, 34/B/IV, RUE PHILIPPE-II, APPLICANT,
V
AUDIT BOARD OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALEX BONN, ADVOCATE AT THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN, 22, COTE D' EICH, DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE DECISION TAKEN BY THE AUDIT BOARD ON 26 MARCH 1968 TO REMOVE THE APPLICANT FROM HIS POST, AND DAMAGES,
Grounds
THE APPLICATION FOR ANNULMENT
1 BY AN INTERLOCUTORY JUDGMENT OF 7 MAY 1969 THE COURT ( SECOND CHAMBER ), AFTER REJECTING CERTAIN SUBMISSIONS MADE BY THE APPLICANT CONCERNING THE DECISION TO REMOVE HIM FROM HIS POST TAKEN IN RESPECT OF HIM BY THE DISCIPLINARY AUTHORITY, RESERVED ITS JUDGMENT REGARDING HIS RESPONSIBILITY FOR THE CONDUCT COMPLAINED OF AND ORDERED AN EXPERT' S REPORT ON THE SUBJECT .
2 THE EXPERT WAS GIVEN THE TASK " OF ESTABLISHING WHETHER, AT THE TIME OF THE CONDUCT WHICH GAVE RISE TO THE DISCIPLINARY DECISION ADOPTED ON 26 MARCH 1968 AGAINST THE APPLICANT BY THE AUDIT BOARD, THE MENTAL STATE OF THE APPLICANT WAS SUCH THAT THE ACTS WHICH HAVE BEEN ATTRIBUTED TO HIM COULD NOT HAVE BEEN INTENTIONAL ".
3 IT APPEARS FROM THE EXPERT' S REPORT THAT AT THE TIME OF THE CONDUCT IN QUESTION THE APPLICANT WAS SUFFERING FROM A PSYCHOLOGICAL DISORDER CLASSIFIED AS " SERIOUS " BY THE EXPERT AND LIKELY TO INFLUENCE HIS BEHAVIOUR .
4 AT NO TIME, HOWEVER, DID THAT PSYCHOLOGICAL STATE TAKE THE FORM OF A COMPULSION WHICH WOULD HAVE CAUSED THE PERSON CONCERNED TO LOSE CONTROL OF HIS ACTIONS .
5 THE EXPERT DESCRIBES THE MENTAL STATE OF THE PERSON CONCERNED AS BEING TYPIFIED BY " CONSCIOUSNESS OF HIS ACTIONS WITH UNCONSCIOUSNESS OF THEIR BASIC MOTIVATION " AND HE CONCLUDES CONSEQUENTLY THAT THERE WAS DIMINISHED RESPONSIBILITY .
6 THIS EVALUATION IS CONFIRMED BY THE FACT THAT AT THE TIME OF THE ACTIONS WHICH GAVE RISE TO THE DISCIPLINARY PROCEEDINGS, THE APPLICANT CARRIED OUT HIS DUTIES NORMALLY AND THAT AT THE END OF A PERIOD OF ACUTE ILLNESS, AFTER THE CONDUCT IN QUESTION AND CONCURRENTLY WITH THE DISCIPLINARY PROCEDURE, HE AGAIN TOOK UP AN OCCUPATION IN THE PRIVATE SECTOR .
7 ARTICLE 86 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS MAKES THE APPLICATION OF DISCIPLINARY MEASURES SUBJECT TO THE CONDITION THAT THE FAILURE TO CARRY OUT OFFICIAL DUTIES SHALL HAVE BEEN COMMITTED " INTENTIONALLY OR THROUGH NEGLIGENCE ".
8 IT IS THEREFORE NOT POSSIBLE TO DEDUCE ABSENCE OF RESPONSIBILITY FROM THE DISCIPLINARY POINT OF VIEW, EXCEPT IN THE CASE OF MENTAL ILLNESS OF SUCH A DEGREE OF SERIOUSNESS THAT THE INTENTIONAL NATURE OF THE DISCIPLINARY OFFENCE IS EXCLUDED .
9 ON THE OTHER HAND A PSYCHOLOGICAL DISORDER, EVEN THOUGH A SERIOUS ONE, CAUSING A MERE DIMINUTION IN RESPONSIBILITY CANNOT BE REGARDED AS EXCLUDING BLAME FOR THE CONDUCT COMPLAINED OF .
10 IT SHOULD THEREFORE BE ACCEPTED THAT THE APPLICANT MUST BE REGARDED AS HAVING VOLUNTARILY FAILED TO COMPLY WITH HIS OBLIGATIONS AS AN OFFICIAL WITHIN THE MEANING OF ARTICLE 86 ( 1 ) OF THE STAFF REGULATIONS .
11 IT CANNOT BE COMPLAINED THAT THE DISCIPLINARY AUTHORITY EXCEEDED ITS POWERS IN THE CHOICE OF THE DISCIPLINARY MEASURE IMPOSED .
12 IN FACT, TAKING INTO ACCOUNT THE NATURE OF THE CONDUCT IN QUESTION, IT APPEARS THAT, IN THE INTEREST OF THE NORMAL FUNCTIONING OF THE DEPARTMENTS OF THE AUDIT BOARD, THE APPLICANT COULD NOT BE RETAINED ON ITS STAFF .
13 IN THESE CIRCUMSTANCES, EVEN WHEN FACED WITH A DIMINUTION IN RESPONSIBILITY FOR THE PURPOSES OF DISCIPLINE, THE COMPETENT AUTHORITY HAD NO CHOICE BUT TO REMOVE THE PERSON CONCERNED FROM HIS POST .
14 IT FOLLOWS FROM ALL THE PRECEDING CONSIDERATIONS THAT THE APPLICATION MUST BE DISMISSED .
THE APPLICATION FOR DAMAGES
15 IN VIEW OF THE DISMISSAL OF THE APPLICATION FOR ANNULMENT, THE APPLICATION FOR DAMAGES HAS LOST ITS PURPOSE .
16 THIS APPLICATION MUST THEREFORE BE DISMISSED .
Decision on costs
17 THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS .
18 HE MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS EXCEPT THE COSTS INCURRED BY THE AUDIT BOARD, WHICH, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, MUST BEAR ITS OWN COSTS .
19 NEVERTHELESS, THE COSTS INCURRED AFTER THE JUDGMENT OF 7 MAY 1969 MUST BE BORNE BY THE AUDIT BOARD, AS THE CONTINUATION OF THE PROCEEDINGS WAS DUE TO THE FACT THAT IT HAD INSUFFICIENTLY ELUCIDATED AN IMPORTANT ASPECT OF THE DISPUTE .
20 BY ORDER OF 24 OCTOBER 1968 THE COURT ( SECOND CHAMBER ) ALLOWED THE APPLICANT THE BENEFIT OF LEGAL AID .
21 UNDER ARTICLE 76 ( 5 ) OF THE RULES OF PROCEDURE, IT IS APPROPRIATE TO ORDER THAT SUMS EQUAL TO THE AMOUNTS PAID OUT AS LEGAL AID SHALL BE PAID OVER TO THE CASHIER OF THE COURT .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON READING THE EXPERT' S REPORT;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE EXPERT AND THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS, ESPECIALLY ARTICLE 86;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATIES ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY AND THE EUROPEAN ATOMIC ENERGY COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLES 49, 51 ( 1 ), 69, 70, 73 ( A ) AND 76,
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION IN RESPECT OF BOTH THE REQUEST FOR ANNULMENT AND THE REQUEST FOR DAMAGES;
2 . ORDERS THE APPLICANT TO PAY THE COSTS INCURRED BY HIM UNTIL THE JUDGMENT OF 7 MAY 1969, WITH RECOVERY OF THE AMOUNTS PAID OUT AS LEGAL AID BY THE COURT;
3 . ORDERS THE AUDIT BOARD TO PAY THE COSTS INCURRED BY IT UNTIL THE JUDGMENT OF 7 MAY 1969, AS WELL AS ALL COSTS INCURRED AFTER THAT DATE .