Judgment of the Court (Second Chamber) of 30 May 1973. - Giuseppe Drescig v Commission of the European Communities. - Case 49-72.



European Court reports 1973 Page 00565

Greek special edition Page 00551

Portuguese special edition Page 00235



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . OFFICIALS - APPOINTING AUTHORITY - POWERS - EXERCISE - FORMALITIES - DIVISION OF FUNCTIONS - DEVIATIONS THEREFROM - SUB-DELEGATION OF POWERS - ADMISSIBILITY - CONDITIONS

( DECISION OF THE COMMISSION OF 26 FEBRUARY, 1971, ARTICLE 5 )

2 . OFFICIALS - DISCIPLINARY PROCEEDINGS - PROCEDURE - DOCUMENTS - SIGNATURE BY CHAIRMAN OF THE DISCIPLINARY BOARD - ADMISSIBILITY

( STAFF REGULATIONS, ANNEX IX, ARTICLES 8 AND 9 )

Summary

1 . THE SUB-DELEGATION OF POWERS OR DEVIATION FROM STANDARDS LAID DOWN BY THE COMMISSION IN THE DECISION OF 26 FEBRUARY, 1971, FOR THE DIVISION OF FUNCTIONS WITHIN THE SERVICE, CANNOT RENDER VOID AN ACT DONE BY THE ADMINISTRATION, UNLESS IT INVOLVES THE POSSIBILITY OF ADVERSELY AFFECTING ONE OF THE GUARANTEES GIVEN TO OFFICIALS BY THE STAFF REGULATIONS OR THE PRINCIPLES OF GOOD ADMINISTRATION IN STAFF MANAGEMENT .

2 . THE SIGNATURE BY THE CHAIRMAN OF THE DISCIPLINARY BOARD OF VARIOUS DOCUMENTS RELATING TO THE DISCIPLINARY PROCEDURE MERELY CONSTITUTES THE NORMAL EXERCISE OF HIS PREROGATIVES, WHICH INCLUDE THE POWER OF CERTIFYING THE REGULARITY OF THE PROCEDURE AND OF AUTHENTICATING THE BOARD' S DOCUMENTS .

Parties

IN CASE 49/72

GIUSEPPE DRESCIG, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT BRUSSELS, REPRESENTED BY MAITRE MARCEL SLUSNY, ADVOCATE OF THE BRUSSELS COURT OF APPEAL WITH AN ADDRESS FOR SERVICE AT LUXEMBOURG AT THE CHAMBERS OF MAITRE JACQUES MERSCH, 11A BOULEVARD PRINCE HENRI, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MR LOUIS DE LA FONTAINE, ITS LEGAL ADVISER, AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER MR EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION OF REMOVAL OF THE APPLICANT FROM HIS POST AND OF THE PRELIMINARY DISCIPLINARY PROCEDURE,

Grounds

1 THE ACTION HAS AS ITS OBJECT THE ANNULMENT OF THE DECISION OF REMOVAL FROM HIS POST GIVEN ON 14 APRIL 1972 BY THE DIRECTOR-GENERAL OF PERSONNEL OF THE COMMISSION, CONSEQUENT UPON A DISCIPLINARY PROCEDURE INSTITUTED IN RELATION TO THE APPLICANT, ARISING OUT OF REPREHENSIBLE ACTIVITIES INVOLVING AN ABUSE OF OFFICIAL STATUS AND A DEMAND FOR PAYMENT FROM PERSONS DESIRING TO OBTAIN EMPLOYMENT WITH THE COMMISSION .

2 WITHOUT DENYING THE FACTS LEADING TO THE DISCIPLINARY MEASURE IMPOSED, THE APPLICANT ARGUES AGAINST THE VALIDITY OF THE DECISION TAKEN BY INVOKING ARGUMENTS BASED UPON IRREGULARITIES IN THE DISCIPLINARY PROCEDURE AND AN ERRONEOUS DESCRIPTION OF THE FACTS .

AS REGARDS THE PLEAS BASED UPON INFRINGEMENT OF ARTICLE 87 OF THE REGULATIONS AND OF THE COMMISSION' S DECISION OF 26 FEBRUARY 1971

3 THE APPLICANT ARGUES THAT UNDER THE TERMS OF ARTICLE 87 OF THE STAFF REGULATIONS THE DISCIPLINARY PROCEDURE SHALL BE INITIATED BY THE APPOINTING AUTHORITY AFTER HEARING THE OFFICIAL CONCERNED .

4 UNDER THE TERMS OF THE COMMISSION' S DECISION OF 26 FEBRUARY 1971 CONCERNING THE EXERCISE OF THE POWERS CONFERRED BY THE REGULATIONS UPON THE APPOINTING AUTHORITY, THE HEARING, AS REGARDS OFFICIALS IN HIS CATEGORY, WAS A MATTER FOR THE DIRECTOR OF PERSONNEL .

5 ON THE OTHER HAND THE DIRECTOR OF PERSONNEL IN THIS CASE APPOINTED ANOTHER OFFICIAL FOR THIS PURPOSE .

6 THE DISREGARD OF THE PROVISIONS OF THE DECISION OF 26 FEBRUARY 1971 IS SAID TO HAVE PREJUDICED THE RIGHTS OF THE DEFENCE SINCE THE APPLICANT WAS NOT ABLE TO ENJOY ALL THE SAFEGUARDS TO WHICH HE IS ENTITLED UNDER THE REGULATIONS .

7 UNDER THE PROVISIONS OF THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 87 OF THE REGULATIONS, THE DISCIPLINARY PROCEDURE SHALL BE " INITIATED BY THE APPOINTING AUTHORITY AFTER HEARING THE OFFICIAL CONCERNED ".

8 THE REGULATION DOES NOT SET OUT MORE FULLY THE METHODS AND PROCEDURES BY WHICH THIS HEARING IS TO TAKE PLACE .

9 THE COMMISSION' S DECISION OF 26 FEBRUARY 1971 - MADE UNDER ARTICLE 2 OF THE REGULATIONS, UNDER THE TERMS OF WHICH EACH INSTITUTION SHALL DETERMINE WHO WITHIN IT SHALL EXERCISE THE POWERS CONFERRED ON THE APPOINTING AUTHORITY - PROVIDES BY ARTICLE 5 THEREOF THAT THE DIRECTOR OF PERSONNEL SHALL EXERCISE IN REGARD TO OFFICIALS OF CATEGORIES C AND D THE POWERS CONFERRED UPON THE APPOINTING AUTHORITY INSOFAR AS RELATING TO THE PRIOR HEARING PROVIDED FOR BY THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 87 OF THE REGULATIONS .

10 THE GENERAL SYSTEM CREATED BY THIS DECISION, WHICH CONTAINS A DETAILED ENUMERATION OF FUNCTIONS OF VERY VARIED IMPORTANCE, SHOWS THAT ONE IS DEALING WITH A DISTRIBUTION OF BUSINESS WITHIN THE COMMISSION' S SERVICES, RATHER THAN WITH THE CONFERMENT OF RIGID POWERS, THE OBSERVANCE OF WHICH COULD ENTAIL THE NULLITY OF ACTS DONE OUTSIDE THE LIMITS LAID DOWN .

11 THE FACT THAT THIS IS THE NATURE OF THE DECISION OF 26 FEBRUARY 1971 IS CONFIRMED BY THE FACT IT WAS PUBLISHED BY THE COMMISSION NOT IN THE OFFICIAL JOURNAL BUT IN AN INFORMATION BULLETIN INTENDED FOR THE STAFF .

12 IN THESE CIRCUMSTANCES ONE CANNOT INTERPRET THIS DOCUMENT AS EXCLUDING IN ADVANCE ALL POSSIBILITY OF SUB-DELEGATION BY THE OFFICIALS APPOINTED OR OF A DEVIATION IN PARTICULAR CASES FROM THE PRINCIPLES OF DIVISION OF FUNCTIONS DETERMINED BY THE COMMISSION .

13 A SUB-DELEGATION OR DEVIATION FROM THESE STANDARDS CAN ONLY INVOLVE THE NULLITY OF AN ACT DONE BY THE ADMINISTRATION IF IT INVOLVES THE POSSIBILITY OF ADVERSELY AFFECTING ONE OF THE GUARANTEES GIVEN TO OFFICIALS BY THE REGULATIONS OR THE PRINCIPLES OF GOOD ADMINISTRATION IN MATTERS OF STAFF ADMINISTRATION .

14 IN THE EVENT THIS WAS NOT THE CASE, THE DIRECTOR-GENERAL OF PERSONNEL HAVING ENTRUSTED THE HEARING OF THE APPLICANT TO AN OFFICIAL PARTICULARLY QUALIFIED IN THIS RESPECT, I . E . THE HEAD OF THE INDIVIDUAL RIGHTS DIVISION COMING UNDER THE DIRECTORATE-GENERAL OF PERSONNEL .

15 EXAMINATION OF THE REPORT PREPARED BY THIS OFFICIAL SHOWS THAT THE APPLICANT HAS HAD THE BENEFIT OF A DETAILED AND IMPARTIAL ENQUIRY IN THE COURSE OF WHICH THE RIGHTS OF THE DEFENCE HAVE BEEN FULLY RESPECTED .

16 IN THESE CIRCUMSTANCES THE FAIR NATURE OF THE HEARING CANNOT BE DISPUTED .

17 THE PLEA MUST THEREFORE BE REJECTED .

ON THE PLEA BASED ON ERRONEOUS DESCRIPTION OF THE FACTS

18 THE APPLICANT ALSO MAINTAINED THAT DURING THE WHOLE PRELIMINARY PROCEDURE THE OFFICIALS CARRYING OUT THE INVESTIGATION HAD CONTINUALLY IN RELATION TO THE FACTS ALLEGED AGAINST HIM USED TERMS DRAWN FROM CRIMINAL LAW, THAT IS TO SAY " EXTORTION " AND " FRAUD ".

19 WHILST IT IS TRUE THAT THESE TERMS WERE NOT REPRODUCED BY THE DISCIPLINARY BOARD AND THE DIRECTOR-GENERAL OF PERSONNEL IN HIS DECISION OF 14 APRIL 1972, IT IS NONETHELESS A FACT THAT THE CONSTANT USE OF THIS TERMINOLOGY WAS OF A KIND ADVERSELY TO INFLUENCE THE OPINION BOTH OF THAT BOARD AND OF THE OFFICIAL WHO MADE THE DECISION OF REMOVAL .

20 FOR THIS REASON, THIS CONSTITUTED A VIOLATION OF THE RIGHTS OF THE DEFENCE OF SUCH A NATURE AS TO RENDER VOID BOTH THE OPINION OF THE DISCIPLINARY BOARD AND THE DECISION OF REMOVAL ITSELF .

21 NOTHING PREVENTS THE DISCIPLINARY AUTHORITIES FROM USING APPROXIMATIONS TO THE CONCEPTS OF CRIMINAL LAW FOR THE PURPOSE OF DEFINING AND POSSIBLY DESCRIBING THE FACTS SUBMITTED FOR THEIR CONSIDERATION .

22 IN THE LIGHT OF THE BASIC SEPARATION BETWEEN THE DISCIPLINARY SYSTEM AND CRIMINAL PROCEDURE, THERE THEREFORE EXISTS NO RISK OF CONFUSION WHICH MIGHT PREJUDICE THE OFFICIAL WHO IS THE SUBJECT OF DISCIPLINARY PROCEDURES .

23 THIS PLEA MUST ACCORDINGLY BE REJECTED .

AS REGARDS THE PLEAS BASED ON THE INFRINGEMENT OF ARTICLES 8 AND 9 OF ANNEX IX OF THE REGULATIONS

24 THE APPLICANT FURTHER CASTS DOUBT UPON THE VALIDITY OF THE PROCEEDINGS OF THE DISCIPLINARY BOARD BY REASON OF THE FACT THAT NOT ONLY WAS THE REASONED OPINION SIGNED BY THE CHAIRMAN BUT IT ALSO EMERGES FROM THE MINUTES THAT THE CHAIRMAN TOOK AN ACTIVE PART IN THE PROCEEDINGS, WHEN IN FACT UNDER THE TERMS OF ARTICLE 8 OF ANNEX IX OF THE REGULATIONS THE CHAIRMAN OF THE DISCIPLINARY BOARD SHALL NOT TAKE A PART IN THEIR DECISION, SAVE ON PROCEDURAL QUESTIONS OR IN CASE OF EQUALITY OF VOTES, AND ARTICLE 9 REQUIRES THE REASONED OPINION TO BE SIGNED ONLY BY THE MEMBERS OF THE BOARD .

25 ARTICLE 8 OF ANNEX IX HAS AS ITS OBJECT TO ENABLE THE PARITY OF REPRESENTATION WHICH FORMS THE BASIS OF THE CONSTITUTION OF DISCIPLINARY BOARDS TO FUNCTION TO THE FULLEST EXTENT THAT IT IS POSSIBLE FOR BOARDS TO PRODUCE A MAJORITY ON THAT BASIS .

26 UNDER THIS SYSTEM THE CHAIRMAN IS CALLED UPON TO INTERVENE WITH HIS VOTE ONLY IN CASE OF EQUALITY OF VOTES AND, APART FROM THIS, ON PROCEDURAL QUESTIONS .

27 IN OTHER RESPECTS, THE CHAIRMAN BY VIRTUE OF HIS OFFICE ENJOYS ALL POWERS NECESSARY FOR ENSURING THE NORMAL FUNCTIONING OF THE DISCIPLINARY BOARD .

28 IT APPEARS FROM THE MINUTES ATTACHED TO THE FILE THAT THE CHAIRMAN DID NOT HAVE REASON TO INTERVENE IN THE DECISION UPON THE REASONED OPINION SINCE THE MEMBERS OF THE BOARD WERE ABLE TO REACH UNANIMITY ON THE SUBJECT .

29 THE CHAIRMAN' S ACT IN SIGNING THE VARIOUS DOCUMENTS RELATING TO THE DISCIPLINARY PROCEDURE CONSTITUTES MERELY THE NORMAL EXERCISE OF HIS PREROGATIVES, WHICH INCLUDE THE POWER OF CERTIFYING THE REGULARITY OF THE PROCEDURE AND OF AUTHENTICATING THE BOARD' S DOCUMENTS .

30 THE VALIDITY OF THESE DOCUMENTS CANNOT THEREFORE BE AFFECTED BY THE FACT THAT THEY BEAR THE CHAIRMAN' S SIGNATURE .

31 THE PLEA MUST THEREFORE BE REJECTED .

Decision on costs

32 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

33 THE APPLICANT HAS FAILED IN HIS ACTION .

34 NEVERTHELESS UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS BY OFFICIALS OF THE COMMUNITIES .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION;

2 . ORDERS EACH PARTY TO PAY ITS OWN COSTS .