Judgment of the Court (Third Chamber) of 21 October 1980. - Franco Vecchioli v Commission of the European Communities. - Dismissal for incompetence. - Case 101/79.



European Court reports 1980 Page 03069

Greek special edition Page 00201



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - DISMISSAL FOR INCOMPETENCE - CRITERIA FOR ASSESSING INCOMPETENCE

( STAFF REGULATIONS OF OFFICIALS , ART . 51 )

2 . OFFICIALS - DISMISSAL FOR INCOMPETENCE - DISCIPLINARY ACTION - CONDUCT AMENABLE TO BOTH PROCEDURES - RECOURSE TO DISMISSAL PROCEDURE - LEGALITY

( STAFF REGULATIONS OF OFFICIALS , ARTS 51 AND 86 )

3 . OFFICIALS - STAFF REGULATIONS - GENERAL IMPLEMENTING PROVISIONS - CONCEPT - PROVISIONS ON THE EXERCISE OF THE POWERS CONFERRED ON THE APPOINTING AUTHORITY - EXCLUSION - LEGAL NATURE - INTERNAL MEASURES - OBLIGATION TO HOLD CONSULTATIONS - NONE

( STAFF REGULATIONS OF OFFICIALS , ARTS 2 , FIRST PARAGRAPH , AND 110 , FIRST PARAGRAPH )

4 . OFFICIALS - ACTION - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - NATURE OF THE PROCEDURE - OBJECT - RE-EXAMINATION OF THE CONTESTED DECISION - CONSEQUENCE - PARTICIPATION OF THE PERSON RESPONSIBLE FOR THE DECISION IN QUESTION IN THE COLLECTIVE DECISION-MAKING PROCESS - PERMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ART . 90 ( 1 ) AND ( 2 ))

Summary

1 . THE INCOMPETENCE OF AN OFFICIAL WITHIN THE MEANING OF ARTICLE 51 OF THE STAFF REGULATIONS MUST BE EVALUATED WITH PARTICULAR REGARD TO HIS ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE , THAT IS TO SAY , TO THE FACTORS REFERRED TO IN ARTICLE 43 OF THE STAFF REGULATIONS CONCERNING PERIODIC REPORTS , IT BEING UNDERSTOOD THAT THE COMPETENT AUTHORITY MUST BE ABLE TO TAKE INTO CONSIDERATION THE OFFICIAL ' S CAREER AS A WHOLE .

2 . IF CONSIDERATION OF THE ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE OF AN OFFICIAL LEADS TO THE CONCLUSION THAT THE CONDITIONS FOR APPLYING ARTICLE 51 OF THE STAFF REGULATIONS ARE MET THE APPOINTING AUTHORITY IS ENTITLED TO DISMISS OR DOWNGRADE OFFICIALS IN THE MANNER CONTEMPLATED BY THAT PROVISION EVEN IF THE INCOMPETENCE IS ACCOMPANIED BY ATTITUDES WHICH MIGHT LEAD TO DISCIPLINARY PROCEEDINGS BEING BROUGHT . THE SPECIFIC NATURE OF ARTICLE 51 , THE APPLICATION OF WHICH MOREOVER ENTAILS , PURSUANT TO THE LAST SUBPARAGRAPH OF PARAGRAPH ( 2 ) THEREOF , THE SAME SAFEGUARDS AS ARE BUILT INTO DISCIPLINARY PROCEDURE , IS IN FACT DUE NOT ONLY TO THE GROUNDS JUSTIFYING IT BUT ALSO TO THE MEASURES TO WHICH IT LEADS AND THE NATURE AND EFFECTS OF WHICH , UNLIKE THOSE IN DISCIPLINARY PROCEEDINGS , ARE BETTER FITTED TO THE SITUATION WHICH HAS TO BE RECTIFIED IN THE INTERESTS OF THE SERVICE .

3 . THE DETERMINATION BY EACH INSTITUTION PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 2 OF THE STAFF REGULATIONS OF THE AUTHORITIES WITHIN IT WHICH SHALL EXERCISE THE POWERS CONFERRED ON THE APPOINTING AUTHORITY CONSTITUTES AN INTERNAL MEASURE WHICH IS NOT REFERRED TO BY ARTICLE 110 OF THE STAFF REGULATIONS AND CONSEQUENTLY IS NOT SUBJECT TO THE OBLIGATION TO HOLD CONSULTATIONS LAID DOWN BY THAT PROVISION .

4 . THE MEMBER OF AN INSTITUTION WHICH , AS AN APPOINTING AUTHORITY , HAS TAKEN A DECISION ADVERSELY AFFECTING AN OFFICIAL IS NOT BOUND TO ABSTAIN FROM PARTICIPATING IN THE COLLECTIVE DECISION - MAKING PROCESS ON THE COMPLAINT BROUGHT BY THAT OFFICIAL AGAINST THE DECISION IN QUESTION . IT IS IN FACT APPARENT BOTH FROM THE NATURE OF THE COMPLAINT PROCEDURE AND FROM THE COMBINED PROVISIONS OF ARTICLE 90 ( 1 ) AND ( 2 ) OF THE STAFF REGULATIONS THAT THAT PROCEDURE IS NOT A MEANS OF APPEAL BUT IS INTENDED TO COMPEL THE AUTHORITY HAVING CONTROL OVER THE OFFICIAL TO RECONSIDER ITS DECISION IN THE LIGHT OF ANY OBJECTIONS WHICH THAT OFFICIAL MAY MAKE .

Parties

IN CASE 101/79

FRANCO VECCHIOLI , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 17 RUE DE LA FONTAINE , PARIS-16 , ASSISTED AND REPRESENTED BY M . SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT , OF THE LUXEMBOURG BAR , 34 B RUE PHILIPPE II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MRS DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF 27 JULY 1978 OF THE MEMBER OF THE COMMISSION RESPONSIBLE FOR STAFF MATTERS TO DISMISS THE APPLICANT FOR INCOMPETENCE , IN PURSUANCE OF ARTICLE 51 OF THE STAFF REGULATIONS OF OFFICIALS , AND OF THE EXPRESS DECISION REJECTING HIS COMPLAINT OF 16 MARCH 1979 ,

Grounds

1 THE APPLICATION LODGED AT THE COURT REGISTRY ON 25 JUNE 1979 SEEKS FIRST THE ANNULMENT OF THE DECISION OF 27 JULY 1978 OF THE APPOINTING AUTHORITY OF THE COMMISSION OF THE EUROPEAN COMMUNITIES DISMISSING THE APPLICANT FOR INCOMPETENCE WITH EFFECT FROM 1 NOVEMBER 1978 PURSUANT TO ARTICLE 51 OF THE STAFF REGULATIONS OF OFFICIALS AND SECONDLY THE ANNULMENT OF THE DECISION OF 16 MARCH 1979 REJECTING THE APPLICANT ' S COMPLAINT .

2 IN 1959 THE APPLICANT WAS ENGAGED IN THE SERVICE OF EURATOM AND ASSIGNED TO THE SAFEGUARDS DIRECTORATE . IN 1962 HE WAS TRANSFERRED AT HIS OWN REQUEST TO A POST IN THE THERMONUCLEAR FUSION DEPARTMENT OF THE DIRECTORATE-GENERAL FOR RESEARCH AND EDUCATION TO CARRY OUT RESEARCH WORK IN THE FIELD OF PLASMA PHYSICS AND FOR THAT PURPOSE HE WAS PLACED AT THE DISPOSAL OF THE NUCLEAR STUDIES CENTRE AT SACLAY . IN 1970 THE STEERING COMMITTEE FOR THE EURATOM/AEC ASSOCIATION CONTRACT PLACED HIM ONCE AGAIN AT THE DISPOSAL OF EURATOM BELIEVING THAT HE WAS NOT ADAPTING HIMSELF TO THE RESEARCH PROGRAMME OF THE NUCLEAR STUDIES CENTRE . IN 1974 , AFTER FUTILE AND PROTRACTED ATTEMPTS TO OBTAIN HIS AGREEMENT TO TAKE ON FRESH DUTIES , THE COMMISSION , WHILE MAINTAINING HIS ATTACHMENT FOR ADMINISTRATIVE PURPOSES TO DIRECTORATE-GENERAL XII ( RESEARCH , SCIENCE AND EDUCATION ), PLACED HIM AT THE DISPOSAL OF DIRECTORATE-GENERAL XVII ( ENERGY ), OR MORE ACCURATELY , AT THE DISPOSAL OF THE ENERGY AND EURATOM SAFEGUARDS DIRECTORATE , WHERE HE RESUMED THE TASKS WHICH HE HAD PERFORMED BEFORE 1962 AT THE SAFEGUARDS DIRECTORATE .

3 HIS SUPERIORS FOUND THAT THE WORK ACCOMPLISHED BY THE APPLICANT AFTER HE HAD THUS RESUMED HIS DUTIES WAS INADEQUATE AND ON 17 DECEMBER 1976 THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XII ADOPTED A PROPOSAL TO DISMISS HIM UNDER ARTICLE 51 OF THE STAFF REGULATIONS WHICH , FOLLOWING A PROCEDURE CERTAIN ASPECTS OF WHICH ARE CRITICIZED BY THE APPLICANT , RESULTED IN THE DECISION WHICH IS NOW CHALLENGED .

4 IN SUPPORT OF HIS APPLICATION THE APPLICANT MAKES VARIOUS SUBMISSIONS AS TO THE INFRINGEMENT OF VARIOUS PROVISIONS OF THE STAFF REGULATIONS , IN PARTICULAR ARTICLE 51 THEREOF , AND AS TO THE INFRINGEMENT OF THE COMMISSION ' S DECISIONS OF 25 JULY 1974 AND 5 OCTOBER 1977 ON THE EXERCISE OF POWERS CONFERRED BY THE STAFF REGULATIONS ON THE APPOINTING AUTHORITY ( INFORMATIONS ADMINISTRATIVES ( ADMINISTRATIVE NOTICES ) NO 10 OF 4 NOVEMBER 1974 ; STAFF COURIER OF 17 NOVEMBER 1977 ).

FIRST SUBMISSION

5 THE APPLICANT FIRST ASSERTS THAT THE DECISION IN ISSUE INFRINGED ARTICLE 51 OF THE STAFF REGULATIONS OF OFFICIALS IN SO FAR AS THE CONDUCT FOR WHICH HE WAS CRITICIZED CONSTITUTED BREACHES OF DISCIPLINE WITHIN THE MEANING OF ARTICLE 86 OF THE STAFF REGULATIONS SO THAT IF THERE WERE GROUNDS FOR TAKING CERTAIN ACTION AGAINST HIM IT SHOULD HAVE BEEN IN THE CONTEXT OF DISCIPLINARY PROCEEDINGS . HE STATES THAT IT IS IN HIS INTERESTS TO BE DISCIPLINED RATHER THAN DISMISSED FOR INCOMPETENCE .

6 BY ARTICLE 51 OF THE STAFF REGULATIONS AN OFFICIAL WHO PROVES INCOMPETENT IN THE PERFORMANCE OF HIS DUTIES MAY BE DISMISSED . THE APPOINTING AUTHORITY MAY , HOWEVER , OFFER TO CLASSIFY THE OFFICIAL IN A LOWER GRADE .

7 THE INCOMPETENCE OF AN OFFICIAL WITHIN THE MEANING OF ARTICLE 51 OF THE STAFF REGULATIONS MUST BE EVALUATED WITH PARTICULAR REGARD TO HIS ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE , THAT IS TO SAY , TO THE FACTORS REFERRED TO IN ARTICLE 43 OF THE STAFF REGULATIONS CONCERNING PERIODIC REPORTS .

8 IF CONSIDERATION OF THE CONDUCT OF AN OFFICIAL IN THE LIGHT OF THOSE FACTORS LEADS TO THE CONCLUSIONS THAT THE CONDITIONS FOR APPLYING ARTICLE 51 ARE MET THE APPOINTING AUTHORITY IS ENTITLED TO DISMISS OR DOWNGRADE OFFICIALS IN THAT MANNER EVEN IF THE INCOMPETENCE IS ACCOMPANIED BY ATTITUDES WHICH MIGHT LEAD TO DISCIPLINARY PROCEEDINGS BEING BROUGHT . THE SPECIFIC NATURE OF ARTICLE 51 , THE APPLICATION OF WHICH MOREOVER ENTAILS , PURSUANT TO THE LAST SUBPARAGRAPH OF PARAGRAPH ( 2 ) THEREOF , THE SAME SAFEGUARDS AS ARE BUILT INTO DISCIPLINARY PROCEDURE , IS IN FACT DUE NOT ONLY TO THE GROUNDS JUSTIFYING IT BUT ALSO TO THE MEASURES TO WHICH IT LEADS AND THE NATURE AND EFFECTS OF WHICH , UNLIKE THOSE IN DISCIPLINARY PROCEEDINGS , ARE BETTER FITTED TO THE SITUATION WHICH HAS TO BE RECTIFIED IN THE INTERESTS OF THE SERVICE .

9 THE SUBMISSION MUST ACCORDINGLY BE REJECTED .

SECOND AND THIRD SUBMISSIONS

10 THE APPLICANT THEN SUBMITS IN RELIANCE OF ARTICLE 51 OF THE STAFF REGULATIONS AND ARTICLE 3 OF THE COMMISSION DECISIONS OF 25 JULY 1974 AND OF 5 OCTOBER 1977 ON THE EXERCISE OF POWERS CONFERRED BY THE STAFF REGULATIONS OF OFFICIALS ON THE APPOINTING AUTHORITY THAT THE PROPOSAL TO DISMISS HIM AND THE DECISION TO DO SO WERE NOT ADOPTED BY THE AUTHORITIES COMPETENT IN THE MATTER AND THAT THAT CIRCUMSTANCE POINTS TO A MISUSE OF POWERS . THE PROPOSAL SHOULD HAVE COME NOT FROM THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XII ( RESEARCH , SCIENCE AND EDUCATION ), TO WHOM HE WAS NO LONGER SUBJECT EXCEPT FOR ADMINISTRATIVE PURPOSES , BUT FROM THE MEMBER OF THE COMMISSION RESPONSIBLE FOR MATTERS OF PERSONNEL AND ADMINISTRATION OR AT ANY RATE FROM THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XVII ( ENERGY ) AT WHOSE DISPOSAL HE HAD BEEN PLACED . AS FOR THE DECISION TO DISMISS HIM , THAT SHOULD HAVE BEEN TAKEN BY THE COMMISSION ITSELF , AND NOT ONLY BY THE MEMBER OF THE INSTITUTION RESPONSIBLE FOR STAFF MATTERS .

11 THE APPLICANT HERE REFERS TO ARTICLE 3 OF THE SAID DECISIONS OF 25 JULY 1974 AND OF 5 OCTOBER 1977 BY WHICH THE MEMBER OF THE COMMISSION RESPONSIBLE FOR MATTERS OF PERSONNEL AND ADMINISTRATION ' ' SHALL EXERCISE THE POWERS CONFERRED ON THE APPOINTING AUTHORITY ; IN RESPECT OF OFFICIALS IN GRADES A 4/LA 4-8 , BY ARTICLES . . . 51 : PROPOSAL FOR DISMISSAL FOR INCOMPETENCE OR FOR CLASSIFICATION IN A LOWER GRADE ' ' . IT IS APPARENT FROM THAT TEXT THAT THE PROPOSAL MUST COME FROM THE MEMBER OF THE COMMISSION , AND THE DECISION ON DISMISSAL FROM THE COMMISSION ITSELF , WHEREAS IN THE PRESENT CASE THE PROPOSAL CAME FROM THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XII AND THE DECISION WAS TAKEN BY ONLY THE MEMBER OF THE COMMISSION RESPONSIBLE FOR STAFF MATTERS .

12 THE COMMISSION REPLIES THAT ARTICLE 3 CONTAINS AN ERROR OF SUBSTANCE IN THAT RESPECT AND THAT THE TEXT SHOULD ACTUALLY READ . ' ' ARTICLE 51 - DISMISSAL OR PROPOSAL FOR CLASSIFICATION IN A LOWER GRADE ' ' SO THAT A DECISION TO DISMISS AN OFFICIAL IS A MATTER FOR THE MEMBER OF THE COMMISSION .

13 NOTWITHSTANDING THE FAULTY DRAFTING OF THE TEXT IN DISPUTE THE COMMISSION ' S INTERPRETATION MUST BE ACCEPTED AS IT IS THE ONLY ONE WHICH IS IN KEEPING WITH THE SYSTEM OF THE DISTRIBUTION OF THE VARIOUS POWERS CONFERRED ON THE APPOINTING AUTHORITY AS CONTEMPLATED BY THE DECISIONS OF 25 JULY 1974 AND OF 5 OCTOBER 1977 AND IN PARTICULAR BY ARTICLE 3 THEREOF .

14 IN THAT REGARD IT SHOULD BE OBSERVED THAT ARTICLE 2 OF THOSE DECISIONS , WHICH EXHAUSTIVELY LISTS THE CATEGORIES OF OFFICIALS WITH RESPECT TO WHOM THE COMMISSION IS ITSELF TO EXERCISE THE POWERS OF THE APPOINTING AUTHORITY , DOES NOT MENTION , WITH REGARD TO THE APPLICATION OF ARTICLE 51 , OFFICIALS IN GRADE A 4/A 5 . ON THE OTHER HAND IT EXPRESSLY DESIGNATES THE COMMISSION TO TAKE DECISIONS ON ' ' DISMISSAL FOR INCOMPETENCE OR PROPOSAL FOR CLASSIFICATION IN A LOWER GRADE ' ' OF OFFICIALS IN GRADE A 1 , A 2 AND A 3/LA 3 AND IN ORDER TO DO SO IT USES THE VERY SAME PHRASE WHICH , ACCORDING TO THE COMMISSION , IS TO BE FOUND ON A CLOSE READING OF THE CORRESPONDING TEXT OF ARTICLE 3 .

15 FURTHERMORE THE CONTEXT OF ARTICLE 3 SHOWS BEYOND ALL POSSIBLE DOUBT THAT IN THE CASE OF OFFICIALS IN GRADES A 4/A 5 DISMISSAL FOR INCOMPETENCE FALLS WITHIN THE COMPETENCE OF THE MEMBER OF THE COMMISSION RESPONSIBLE FOR MATTERS OF PERSONNEL AND ADMINISTRATION . IT APPEARS IN FACT THAT ARTICLE 3 CONFERS ON THAT MEMBER OF THE COMMISSION THE POWER TO TAKE DECISIONS IN A NUMBER OF POSSIBLE SITUATIONS IN WHICH THE CONSEQUENCES OF THE DECISION ARE JUST AS , IF NOT MORE , SERIOUS FOR THE PERSON CONCERNED . IT IS IN FACT THAT MEMBER OF THE COMMISSION WHO IN THE CASE OF OFFICIALS IN THE SAME GRADE TAKES DECISIONS AS TO , AMONGST OTHER THINGS , THEIR COMPULSORY RESIGNATION ( ARTICLE 49 OF THE STAFF REGULATIONS ), RETIREMENT FOR INVALIDITY ( ARTICLE 53 OF THE STAFF REGULATIONS ), AND THE IMPOSITION OF DISCIPLINARY MEASURES AFTER CONSULTATION WITH THE DISCIPLINARY BOARD ( SECOND PARAGRAPH OF ARTICLE 87 ). THERE IS NO PLAUSIBLE REASON WHY IN THOSE CIRCUMSTANCES THE SAME MEMBER OF THE COMMISSION MAY NOT TAKE A DECISION IN THE CASE IN WHICH ARTICLE 51 IS APPLIED AND WHY HE SHOULD BE RESTRICTED TO MAKING A PROPOSAL TO THE COMMISSION ACTING AS A BODY , WHICH THEN TAKES A COLLECTIVE DECISION .

16 IN THE RESULT THE DECISION IN QUESTION TO DISMISS THE OFFICIAL IS WITHIN THE COMPETENCE OF THE MEMBER OF THE COMMISSION RESPONSIBLE FOR MATTERS OF PERSONNEL AND ADMINISTRATION .

17 THE SUBMISSION THAT THE DECISION IN ISSUE WAS TAKEN BY AN AUTHORITY WITH NO COMPETENCE TO DO SO MUST THEREFORE BE REJECTED .

18 THE APPLICANT THEN SUBMITS THAT THE PROPOSAL TO PUT ARTICLE 51 INTO EFFECT SHOULD HAVE COME NOT FROM THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XII ( RESEARCH , SCIENCE AND EDUCATION ) BUT FROM THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XVII ( ENERGY ) UNDER WHICH COMES THE EURATOM SAFEGUARDS DEPARTMENT AT WHOSE DISPOSAL HE HAD BEEN PLACED . HE ADDS THAT THE FACT THAT THE PROPOSAL CAME FROM THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL XII ( RESEARCH , SCIENCE AND EDUCATION ) IS INDICATIVE OF A MISUSE OF POWERS BECAUSE THAT DIRECTOR-GENERAL HAD BEEN HOSTILE TOWARDS HIM AND BECAUSE COMING FROM HIM THE PROPOSAL TO DISMISS THE APPLICANT COULD TAKE ACCOUNT OF CONSIDERATIONS BEARING ON THE PERIOD PRIOR TO HIS BEING PLACED AT THE DISPOSAL OF DIRECTORATE-GENERAL XVII IN 1974 , WHICH IS UNLAWFUL .

19 ACCORDING TO ARTICLE 13 OF THE DECISIONS OF 25 JULY 1974 AND OF 5 OCTOBER 1977 A PROPOSAL TO APPLY THE MEASURES MENTIONED IN ARTICLE 51 OF THE STAFF REGULATIONS TO OFFICIALS IN GRADE A 4/A 5 SHOULD COME FROM THE MEMBER OF THE COMMISSION RESPONSIBLE FOR THE DIRECTORATE-GENERAL OR FOR THE DEPARTMENT TO WHICH THE OFFICIAL IN QUESTION BELONGS , A CONDITION WHICH IS NOT FULFILLED IN THIS CASE . HOWEVER THAT HAS NOT BEEN PLEADED BY THE APPLICANT AND THE COURT BELIEVES THAT SINCE THE FINAL DECISION WAS ITSELF TAKEN BY THE COMPETENT AUTHORITY THE COURT SHOULD NOT RAISE THAT ISSUE OF ITS OWN MOTION .

20 FURTHERMORE THE COMPLAINT ALLEGING A MISUSE OF POWERS IS NOT SUPPORTED BY ANY ASSERTION WHICH IS AT ALL VERIFIABLE AND WHAT IS MORE IT IS BELIED BY THE WAY IN WHICH THE INVESTIGATION OF THE APPLICANT ' S CASE TOOK PLACE IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR DISCIPLINARY ACTION AS REQUIRED BY THE SECOND SUBPARAGRAPH OF ARTICLE 51 ( 2 ) OF THE STAFF REGULATIONS .

21 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE SUBMISSIONS TO THE EFFECT THAT THE PROPOSAL AND THE DECISION TO DISMISS THE APPLICANT CAME FROM AUTHORITIES OTHER THAN THOSE COMPETENT TO DO SO OR THAT THEY WERE VITIATED BY MISUSE OF POWERS MUST BE REJECTED .

FOURTH SUBMISSION

22 THE APPLICANT THEN RAISES A PLEA OF ILLEGALITY AGAINST THE AFOREMENTIONED DECISIONS OF 25 JULY 1974 AND 5 OCTOBER 1977 ON THE EXERCISE OF POWERS CONFERRED ON THE APPOINTING AUTHORITY . ACCORDING TO HIM THOSE DECISIONS WERE ADOPTED CONTRARY TO ARTICLE 110 OF THE STAFF REGULATIONS BY WHICH ' ' THE GENERAL PROVISIONS FOR GIVING EFFECT TO ( THESE ) STAFF REGULATIONS SHALL BE ADOPTED BY EACH INSTITUTION AFTER CONSULTING ITS STAFF COMMITTEE AND THE STAFF REGULATIONS COMMITTEE ' ' . SINCE THOSE DECISIONS WERE ADOPTED WITHOUT THE CONSULTATION REFERRED TO IN ARTICLE 110 TAKING PLACE THEY ARE UNLAWFUL WITH THE RESULT THAT IN THE ABSENCE OF VALID RULES ALL THE MEASURES WHICH THOSE DECISIONS ALLOCATED TO VARIOUS AUTHORITIES SHOULD BE TAKEN BY THE COMMISSION .

23 AS IS PLAINLY APPARENT FROM THE WORDING OF ARTICLE 110 THE OBLIGATION TO HOLD CONSULTATIONS REFERRED TO THEREIN CONCERNS THE GENERAL PROVISIONS WHICH THE INSTITUTIONS ARE OBLIGED TO ADOPT TO IMPLEMENT CERTAIN PROVISIONS OF THE STAFF REGULATIONS . THE DETERMINATION BY EACH INSTITUTION PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 2 OF THE STAFF REGULATIONS OF THE AUTHORITIES WITHIN IT WHICH SHALL EXERCISE THE POWERS CONFERRED ON THE APPOINTING AUTHORITY CONSTITUTES HOWEVER AN INTERNAL MEASURE WHICH IS NOT REFERRED TO BY ARTICLE 110 SO THAT THE SUBMISSION MUST BE REJECTED .

FIFTH SUBMISSION

24 SINCE THE APPLICANT HAS ABANDONED THIS SUBMISSION THERE IS NO NEED TO CONSIDER IT .

SIXTH SUBMISSION

25 THE SIXTH SUBMISSION IS BASED ON THE BREACH OF THE RIGHTS OF THE DEFENCE DURING THE INQUIRY STAGE BEFORE THE DISCIPLINARY BOARD ON THE GROUND THAT THE BOARD SOUGHT THE OPINION OF THREE EXPERTS TO ASSESS THE APPLICANT ' S WORK BUT REFUSED TO ORDER FURTHER EXPERT EVIDENCE AS REQUESTED BY THE APPLICANT . THAT CONTENTION IS ALSO RAISED AGAINST THE REFUSAL OF THE MEMBER OF THE COMMISSION TO OBTAIN THAT EXPERT EVIDENCE BEFORE ADOPTING THE DECISION IN ISSUE .

26 CONSIDERATION OF THE PAPERS BEFORE THE COURT SHOWS THAT THIS SUBMISSION IS PLAINLY UNFOUNDED .

27 THE APPLICANT HAS MAINTAINED THROUGHOUT THE PROCEEDINGS THAT HE DEVOTED HIMSELF TO PERSONAL WORK OF GREAT IMPORTANCE IN THE FIELD OF PLASMA PHYSICS AND THAT THE WORK WAS PROOF OF HIS PROFESSIONAL ABILITY . ALTHOUGH THE DISCIPLINARY BOARD WAS NOT BOUND TO DO SO , SINCE INCOMPETENCE AS REFERRED TO IN ARTICLE 51 CONCERNS THE TASKS WHICH AN INSTITUTION WISHES TO BE PERFORMED BY ITS SERVANTS AND NOT WORK OF THEIR OWN PERSONAL PREFERENCE , IT SUBMITTED THAT WORK TO THREE SCIENTISTS WHO CONFIRMED THE EARLIER OPINION OF OTHER SCIENTISTS THAT THE WORK WAS OF NO INTEREST .

28 ONCE OBJECTIVELY INFORMED IN THAT WAY THE DISCIPLINARY BOARD WAS NOT OBLIGED TO ACCEDE TO THE REQUEST FOR FURTHER EXPERT EVIDENCE ON THE APPLICANT ' S BEHALF WHICH , MOREOVER , HE WAS ENTITLED AND ABLE TO FURNISH ON HIS OWN INITIATIVE .

29 THE SUBMISSION MUST ACCORDINGLY BE REJECTED .

SEVENTH SUBMISSION

30 THE SEVENTH SUBMISSION ALLEGES INFRINGEMENT OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS ON THE GROUND THAT IT IS NOT ESTABLISHED THAT THE DECISION TO REJECT THE APPLICANT ' S COMPLAINT AGAINST HIS DISMISSAL WAS TAKEN COLLECTIVELY BY THE COMMISSION AND THAT WHEN THE DECISION WAS ADOPTED THE MEMBER OF THE COMMISSION RESPONSIBLE FOR STAFF MATTERS ABSTAINED .

31 IT IS APPARENT FROM THE PAPERS BEFORE THE COURT THAT THE REJECTION OF THE APPLICANT ' S COMPLAINT NOTIFIED TO HIM ON 26 MARCH 1976 BY A LETTER BEARING THE SIGNATURE OF MR TUGENDHAT , THE MEMBER OF THE COMMISSION RESPONSIBLE FOR MATTERS OF PERSONNEL AND ADMINISTRATION , FOLLOWED A DECISION OF THE COMMISSION OF 16 MARCH 1979 ADOPTED ON THE PROPOSAL OF THAT MEMBER OF THE COMMISSION . THE ASSERTION THAT THE SAID MEMBER OF THE COMMISSION SHOULD NOT HAVE TAKEN PART IN THE COLLECTIVE DECISION-MAKING PROCESS MUST BE REJECTED . IT IS IN FACT APPARENT BOTH FROM THE NATURE OF THE PROCEDURE IN QUESTION AND FROM THE COMBINED PROVISIONS OF ARTICLE 90 ( 1 ) AND ( 2 ) OF THE STAFF REGULATIONS THAT THE COMPLAINT PROCEDURE IS NOT A MEANS OF APPEAL BUT IS INTENDED TO COMPEL THE AUTHORITY HAVING CONTROL OVER THE OFFICIAL TO RECONSIDER ITS DECISION IN THE LIGHT OF ANY OBJECTIONS WHICH THAT OFFICIAL MAY MAKE .

32 THE SUBMISSION MUST CONSEQUENTLY BE REJECTED .

EIGHTH SUBMISSION

33 FINALLY THE APPLICANT CLAIMS THAT THE DECISION IN ISSUE IS BASED ON FACTS WHICH ARE IRRELEVANT , INACCURATE OR INACCURATELY INTERPRETED OR WHICH , IN THE OTHER HAND , DO NOT TAKE ACCOUNT OF CERTAIN DECISIVE FACTORS . HE CONTENDS IN PARTICULAR THAT THE DECISION IN ISSUE TAKES INTO CONSIDERATION FACTORS RELATING TO THE PERIOD PRIOR TO 1974 , THAT IS TO SAY , DURING HIS SECONDMENT AT SACLAY , WHEREAS ONLY HIS ATTITUDE AFTER THE TIME WHEN HE RESUMED HIS DUTIES IN THE SERVICE OF THE COMMISSION , NOTABLY WITH EURATOM SAFEGUARDS , CAN BE TAKEN INTO ACCOUNT .

34 IN A PROCEDURE TO DISMISS AN OFFICIAL FOR INCOMPETENCE THE AUTHORITY EMPOWERED TO DO SO MUST BE ABLE TO TAKE INTO CONSIDERATION THE OFFICIAL ' S CAREER AS A WHOLE . MOREOVER THE DECISION IN ISSUE TAKES EXPRESS ACCOUNT OF THE CRUCIAL FACT THAT THE APPLICANT GAVE NO SATISFACTION IN THE POST WHICH HE LAST HELD AND TAKES PROPER COGNIZANCE OF THE FACT THAT THE APPLICANT HIMSELF DID NOT DENY THAT THE QUALITY OF HIS WORK DURING THAT PERIOD WAS NOT THAT WHICH MIGHT BE EXPECTED OF A PRINCIPAL ADMINISTRATOR .

35 THAT SUBMISSION MUST ACCORDINGLY BE REJECTED AS WELL .

36 AS THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS HIS APPLICATION SHOULD BE DISMISSED .

Decision on costs

37 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS FAILED IN HIS SUBMISSION HE MUST BE ORDERED TO PAY THE COSTS .

HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .