Judgment of the Court (First Chamber) of 8 July 1965. - Fulvio Fonzi v Commission of the EAEC. - Joined cases 27-64 and 30-64.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - APPEAL THROUGH OFFICIAL CHANNELS MADE WITHIN THE TIME-LIMIT FOR APPEAL TO THE COURT - TIME-LIMIT FOR APPEAL TO THE COURT RETAINED - REJECTION OF APPEAL THROUGH OFFICIAL CHANNELS - NOTIFICATION TO APPLICANT - DATE OF NOTIFICATION CONSTITUTING THE DATE FROM WHICH TIME RUNS IN RESPECT OF THE DATE FROM WHICH TIME RUNS IN RESPECT OF TIME-LIMIT FOR LODGING AN APPEAL TO THE COURT

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLES 90, 91 )

2 . OFFICIALS - VOCATIONAL COMPETENCE - ASSESSMENT BY THE ADMINISTRATION - JURISDICTION OF THE COURT - LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLE 91 )

3 . OFFICIALS - PROMOTION - LIST OF THOSE PROPOSED FOR PROMOTION - EXCLUSION - NO REQUIREMENT TO GIVE REASONS

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLES 25, 45 )

4 . OFFICIALS - DISCIPLINARY SYSTEM - HEARING OF THE PERSON CONCERNED THROUGH THE INTERMEDIARY OF A SENIOR OFFICIAL - PERMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLE 87 )

Summary

1 . IT APPEARS FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, READ TOGETHER, THAT APPEALS THROUGH OFFICIAL CHANNELS ARE SUBJECT TO THE SAME TIME-LIMIT AS APPLIES TO APPEALS TO THE COURT OF JUSTICE, PROVIDED THAT THEY WERE THEMSELVES INSTITUTED WITHIN THE TIME LAID DOWN FOR APPEALS TO THE COURT . IN THE CASE OF A REJECTION OF AN APPEAL THROUGH OFFICIAL CHANNELS, THE DATE ON WHICH THE APPLICANT BECOMES AWARE OF THIS REJECTION CONSTITUTES THE TERMINATION OF THE ADMINISTRATIVE PROCEDURE AND MARKS THE DATE FROM WHICH TIME BEGINS TO RUN IN RESPECT OF THE TIME-LIMIT FOR LODGING AN APPEAL TO THE COURT .

2 . THE COURT HAS NO JURISDICTION TO SUBSTITUTE ITS OWN VALUE JUDGMENT FOR THE ASSESSMENTS OF THE LOCAL VOCATIONAL COMPETENCE OF AN OFFICIAL BY THE ADMINISTRATION ( CF . PARA . 3, SUMMARY, JOINED CASES 35/62 AND 16/63, ( 1963 ) ECR 403 ).

3 . ARTICLE 45 OF THE EAEC STAFF REGULATIONS DOES NOT REQUIRE DECISIONS REGARDING PROMOTION TO BE REASONED IN RESPECT OF CANDIDATES NOT PROMOTED . A FORTIORI, THERE IS NO OBLIGATION TO GIVE REASONS FOR PROPOSALS FROM AN INTERNAL ADMINISTRATIVE BODY HAVING ONLY CONSULTATIVE POWERS . ( CF . PARA . 3, SUMMARY, CASE 27/63, ( 1964 ) ECR 251 ).

4 . IN DISCIPLINARY MATTERS THE HEARING OF THE PERSON CONCERNED MAY BE ENTRUSTED TO A SENIOR OFFICIAL .

Parties

IN JOINED CASES 27 AND 30/64

FULVIO FONZI, ENGINEER, A SCIENTIFIC OFFICIAL OF THE EAEC, RESIDING AT SESTO CALENDE ( VARESE, ITALY ), ASSISTED BY MARIO GIULIANO, PROFESSOR IN THE FACULTY OF LAW AT THE UNIVERSITY OF MILAN, ADVOCATE AT THE CORTE DI CASSAZIONE OF THE ITALIAN REPUBLIC AND AT THE CORTE D' APPELLO OF MILAN WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEUR DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISERS ANTONIO MARCHINI-CAMIA AND MAURICE PRELLE, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION

( A ) IN CASE 27/64 :

1 . FOR THE ANNULMENT OF THE DECISION OR DECISIONS REGARDING PROMOTION IN SO FAR AS TRANSFERS FROM GRADE A5 TO GRADE A4, ADOPTED BY THE DEFENDANT FOR THE YEAR 1963 AND POSTED IN THE ESTABLISHMENT AT ISPRA ON 9 JANUARY 1964 ARE CONCERNED;

2 . IN ADDITION, FOR THE ANNULMENT OF THE DECISION OF 26 MARCH 1964 REJECTING THE COMPLAINT OF THE APPLICANT AGAINST THE ABOVEMENTIONED DECISION REGARDING PROMOTION AND NOTIFIED TO THE APPLICANT BY LETTER OF 7 APRIL 1964 FROM THE DIRECTOR-GENERAL OF ADMINISTRATION AND PERSONNEL;

3 . FURTHER, FOR A DECLARATION BY THE COURT THAT THE DEFENDANT IS OBLIGED TO GIVE CONSIDERATION TO THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION IN 1963 AND THAT IT IS OBLIGED TO RECONSIDER THE CASE OF THE APPLICANT DURING SUCH EXAMINATION;

( B ) IN CASE 30/64 :

1 . FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT THROUGH OFFICIAL CHANNELS SUBMITTED ON 21 FEBRUARY 1964 BY THE APPLICANT REQUESTING THE DEFENDANT TO TAKE ACTION AGAINST CONDUCT PREJUDICIAL TO HIS HONOUR AND PROFESSIONAL DIGNITY, AND THE ANNULMENT OF THE EXPLICIT DECISION OF REJECTION TAKEN ON 24 JUNE 1964;

2 . FOR THE ANNULMENT OF THE DECISION TO ISSUE A REPRIMAND TAKEN BY THE DEFENDANT ON 26 MARCH 1964 AND NOTIFIED ON 24 APRIL 1964;

3 . FOR THE ANNULMENT OF THE DECISION TO TRANSFER ( OR SECOND THE APPLICANT ) TAKEN ON 24 JUNE 1964 AND NOTIFIED THE FOLLOWING DAY, AND FOR THE AWARD OF DAMAGES OF 1 BELGIAN FRANC AGAINST THE DEFENDANT;

Grounds

P.496

I - ADMISSIBILITY

1 . THE ADMISSIBILITY OF THE APPLICATION IN CASE 27/64

( A ) THE DEFENDANT ALLEGES THAT THE REQUEST FOR ANNULMENT OF THE DECISION REGARDING PROMOTION POSTED AT ISPRA ON 9 JANUARY 1964 IS INADMISSIBLE AS BEING OUT OF TIME SINCE IN FACT THE APPLICATION IN CASE 27/64 WAS NOT LODGED UNTIL 29 JUNE 1964 WHILST THE TIME LIMIT OF THREE MONTHS PROVIDED FOR IN ARTICLE 91 OF THE STAFF REGULATIONS, EXTENDED BY TEN DAYS ON ACCOUNT OF DISTANCE, HAD EXPIRED ON 20 APRIL 1964 . ACCORDING TO THE DEFENDANT, THE APPEAL THROUGH OFFICIAL CHANNELS LODGED ON 12 FEBRUARY 1964 COULD NOT, IN THE ABSENCE OF EXPRESS PROVISIONS, SUSPEND THE RUNNING OF THE TIME AVAILABLE FOR THE APPEAL TO THE COURT .

P.497

IT APPEARS FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, READ TOGETHER, THAT APPEALS THROUGH OFFICIAL CHANNELS ARE SUBJECT TO THE SAME TIME - LIMIT AS APPLIES TO APPEALS TO THE COURT OF JUSTICE, PROVIDED THAT THEY WERE THEMSELVES INSTITUTED WITHIN THE TIME-LIMIT LAID DOWN FOR APPEALS TO THE COURT . IN FACT THE INTENTION OF THE AUTHORS OF THESE REGULATIONS CANNOT HAVE BEEN TO COMPEL OFFICIALS TO COMMENCE SIMULTANEOUSLY AN ADMINISTRATIVE APPEAL THROUGH OFFICIAL CHANNELS AND AN APPEAL TO THE COURT OF JUSTICE IN ORDER TO AVOID BEING OUT OF TIME .

IN THE PRESENT CASE THE APPEAL THROUGH OFFICIAL CHANNELS ON 12 FEBRUARY 1964 WAS BROUGHT WITHIN THE TIME-LIMIT LAID DOWN FOR APPEALS TO THE COURT . IT WAS EXPRESSLY REJECTED BY A DECISION NOTIFIED TO THE APPLICANT ON 7 APRIL 1964 . IT FOLLOWS THAT THE TIME-LIMIT WITHIN WHICH THE APPLICANT HAD TO CHALLENGE BEFORE THE COURT THE DECISION ON PROMOTION POSTED AT ISPRA ON 9 JANUARY 1964 HAD NOT EXPIRED ON 29 JUNE 1964, THE DATE OF THE APPEAL TO THE COURT . CONSEQUENTLY THE SUBMISSION OF THE DEFENDANT MUST BE REJECTED .

( B ) THE APPLICANT CLAIMS THAT THE EXPRESS DECISION OF REJECTION NOTIFIED TO HIM ON 7 APRIL 1964 SHOULD BE ANNULLED .

THIS REQUEST IS ADMISSIBLE FOR THE SAME REASONS AS THE REQUEST FOR THE ANNULMENT OF THE DECISION REGARDING PROMOTION POSTED AT ISPRA ON 9 JANUARY 1964 .

2 . THE ADMISSIBILITY OF THE APPLICATION IN CASE 30/64

( A ) THE DEFENDANT ALLEGES THAT THE REQUEST FOR ANNULMENT OF THE IMPLIED DECISION OF REJECTION OF THE APPEAL MADE THROUGH OFFICIAL CHANNELS ON 21 FEBRUARY 1964 BY THE APPLICANT WITH THE OBJECT OF OBTAINING THE INTERVENTION OF THE DEFENDANT AGAINST THE CONDUCT WHICH HE DESCRIBES AS PREJUDICIAL TO HIS HONOUR AND HIS PROFESSIONAL DIGNITY IS INADMISSIBLE AS BEING OUT OF TIME . IN FACT, ACCORDING TO THE DEFENDANT, THE APPLICATION IN CASE 30/64 WAS NOT LODGED UNTIL 13 JULY 1964, WHEREAS SINCE THE IMPLIED DECISION OF REJECTION OF THE APPEAL THROUGH OFFICIAL CHANNELS WAS DATED 22 APRIL 1964, THE TIME-LIMIT FOR AN APPEAL TO THE COURT TO CONTEST THIS IMPLIED DECISION, EXTENDED BY TEN DAYS ON ACCOUNT OF DISTANCE, HAD EXPIRED ON 3 JULY 1964 .

THE APPEAL THROUGH OFFICIAL CHANNELS ON 21 FEBRUARY 1964 WAS MADE WITHIN THE TIME-LIMIT LAID DOWN FOR AN APPEAL TO THE COURT . BECAUSE OF THIS FACT AND FOR THE REASONS SET OUT ABOVE ( SUPRA 1(A )) THE APPLICANT HAS RETAINED THE BENEFIT OF THE TIME-LIMIT LAID DOWN FOR APPEALS TO THE COURT . BECAUSE OF THE SILENCE OF THE ADMINISTRATION, AN IMPLIED DECISION OF REJECTION IS DEEMED, UNDER ARTICLE 91(2 ) OF THE STAFF REGULATIONS, TO HAVE BEEN TAKEN ON 22 APRIL 1964 .

P.498

HOWEVER, THE DEFENDANT, ON 25 JULY 1964, PRODUCED IN A SCHEDULE TO ITS OBSERVATIONS ON THE SUBJECT OF THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE IN CASE 30/64R, A DECISION DATED 24 JUNE 1964 EXPRESSLY REJECTING THE APPEAL OF 21 FEBRUARY 1964 THROUGH OFFICIAL CHANNELS . IT APPEARS FROM THE STATEMENTS OF THE APPLICANT, WHICH ARE NOT CONTRADICTED BY THE DEFENDANT, THAT HE DID NOT KNOW OF THE EXISTENCE OF THE DECISION OF 24 JUNE 1964 BEFORE 25 JULY 1964 . THIS LATTER DATE IN CONSEQUENCE CONSTITUTES THE TERMINATION OF THE ADMINISTRATIVE PROCEDURE COMMENCED BY THE APPEAL OF 21 FEBRUARY 1964 THROUGH OFFICIAL CHANNELS . IT FOLLOWS THAT THE TIME-LIMIT LAID DOWN FOR TAKING ACTION BEFORE THE COURT AGAINST THE FAILURE OF THE COMMISSION OF THE EAEC TO INTERVENE AGAINST THE CONDUCT DESCRIBED BY THE APPLICANT AS PREJUDICIAL TO HIS HONOUR AND PROFESSIONAL DIGNITY DID NOT EXPIRE UNTIL THREE MONTHS AND TEN DAYS AFTER 25 JULY 1964, THAT IS TO SAY, 6 NOVEMBER 1964 . CONSEQUENTLY THE SUBMISSION OF THE DEFENDANT MUST BE REJECTED .

( B ) THE APPLICANT CLAIMS IN HIS REPLY THAT THE EXPRESS DECISION OF REJECTION OF 24 JUNE 1964 MENTIONED ABOVE SHOULD BE ANNULLED . THIS REQUEST IS ADMISSIBLE FOR THE SAME REASONS AS THE REQUEST FOR THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION OF 22 APRIL 1964 .

( C ) THE APPLICANT CLAIMS THE ANNULMENT OF A ' DECISION TO TRANSFER OR SECOND HIM ', TAKEN IN RESPECT OF HIM BY THE DEFENDANT ON 24 JUNE 1964 . UNDER ARTICLE 91 OF THE STAFF REGULATIONS, THE COURT OF JUSTICE HAS JURISDICTION TO REVIEW THE LEGALITY OF MEASURES WITH REGARD TO OFFICIALS ONLY IF THEY ARE ADVERSELY AFFECTED BY SUCH MEASURES . THERE IS REASON, CONSEQUENTLY, FOR THE COURT TO CONSIDER OF ITS OWN MOTION THE ADMISSIBILITY OF THE ABOVEMENTIONED REQUEST .

IT APPEARS FROM THE MINUTES OF THE 249TH MEETING OF THE COMMISSION OF THE EAEC, DATED 24 JUNE 1964, PRODUCED BY THE DEFENDANT AS A SCHEDULE TO ITS OBSERVATIONS CONCERNING THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE IN CASE 30/64R, THAT THE CONTESTED MEASURE IS DRAFTED AS FOLLOWS :

' IF THE PERSON CONCERNED CANNOT ACTUALLY TAKE UP HIS DUTIES AT JUELICH WITHIN THE SHORTEST POSSIBLE TIME, HE IS TO BE ASKED TO GO TO BRUSSELS FORTHWITH THERE TO RECEIVE ALL PROPER INSTRUCTIONS '.

THIS WORDING CLEARLY DOES NOT ORDER A SECONDMENT TO JUELICH BUT IS SIMPLY A REQUIREMENT TO GO TO BRUSSELS . IT EMERGES MOREOVER FROM THE FILE THAT THE APPLICANT, FOLLOWING THE ABOVEMENTIONED ORDER, STAYED ONLY A FEW DAYS AT JUELICH AND AT BRUSSELS, THAT HE THEN TOOK HIS ANNUAL LEAVE AND THAT IT WAS ONLY BY THE DECISION OF 10 OCTOBER 1964, NOTIFIED ON 15 OCTOBER 1964, WHICH IS NOT THE SUBJECT OF THE PRESENT CASE, THAT THE APPLICANT WAS TRANSFERRED TO BRUSSELS .

P.499

THE CONTESTED MEASURE IS THUS TO BE REGARDED AS AN INTERNAL DEPARTMENTAL MATTER FALLING WITHIN THE POWERS OF THE EAEC COMMISSION . IT CANNOT ADVERSELY AFFECT THE APPLICANT (' FAIRE GRIEF ') WITHIN THE MEANING OF ARTICLE 91 OF THE REGULATIONS AND, CONSEQUENTLY, CANNOT BE THE SUBJECT OF AN APPEAL TO THE COURT . THE REQUEST FOR ANNULMENT IS THUS INADMISSIBLE .

CONSEQUENTLY, WITH THE EXCEPTION OF THE REQUEST FOR ANNULMENT OF THE ' DECISION TO TRANSFER OR SECOND ' THE APPLICANT TAKEN ON 24 JUNE 1964, THE APPLICATIONS IN CASES 27/64 AND 30/64 ARE THUS ADMISSIBLE .

II - ON THE SUBSTANCE OF THE CASES

1 . THE REQUEST FOR ANNULMENT OF THE DECISION REGARDING PROMOTION

( A ) THE APPLICANT ALLEGES THAT, BY ITS GENERAL INSTRUCTION CONTAINED IN CIRCULAR 11/63 OF 23 APRIL 1963, THE DEFENDANT ADOPTED PROVISIONS FOR GIVING EFFECT TO ARTICLE 45 OF THE STAFF REGULATIONS, WITHOUT CONFORMING TO THE PROCEDURAL REQUIREMENTS CONTAINED IN ARTICLE 110 .

SINCE ARTICLE 45 DOES NOT REQUIRE GENERAL PROVISIONS FOR GIVING EFFECT TO IT, THE REQUIREMENTS LAID DOWN BY ARTICLE 110 ARE NOT APPLICABLE IN THE PRESENT CASE . FURTHER, IT FOLLOWS FROM THE SAID CIRCULAR THAT THE TASK ASSIGNED TO THE PROMOTION COMMITTEES, WHICH IS OF A PURELY PREPARATORY NATURE, CONSISTS OF HELPING THE EAEC COMMISSION, AND THAT THE LATTER HAS RESERVED TO ITSELF THE POWER TO DECIDE UPON PROMOTIONS, CONFINING ITSELF TO SETTING UP PURELY INTERNAL ADMINISTRATIVE ORGANS TO SUPPORT IT IN ITS WORK . CONSEQUENTLY, THIS COMPLAINT MUST BE DISMISSED .

( B ) IN ADDITION THE APPLICANT RAISES THE ILLEGALITY OF THE CONTESTED DECISION ON THE GROUND THAT HE WAS NOT INCLUDED IN THE CONSIDERATION OF THE COMPARATIVE MERITS, ALTHOUGH HAVING COMPLETED THE REQUISITE PERIOD IN HIS GRADE UNDER ARTICLE 45 .

IT APPEARS FROM THE MINUTES OF THE 215TH MEETING OF THE EAEC COMMISSION, DATED 17 JULY 1963, SET OUT IN A SCHEDULE TO THE REJOINDER, THAT THE COMMISSION, IN EXAMINING PROPOSALS FOR PROMOTION, ADDED NAMES TO THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE PROMOTION COMMITTEES . CONSEQUENTLY, THE FACT THAT THE NAME OF THE APPLICANT DID NOT APPEAR UPON THE PROMOTION LIST DRAWN UP BY THE PROMOTION COMMITTEE AT ISPRA IN NO WAY SHOWS THAT THE EAEC COMMISSION, WHICH IS THE APPOINTING AUTHORITY, DID NOT ITSELF PROCEED TO CONSIDER THE COMPARATIVE MERITS OF THE APPLICANT . THIS COMPLAINT MUST THEREFORE BE DISMISSED .

P.500

( C ) THE APPLICANT ALLEGES THAT THE PROMOTION COMMITTEE AT ISPRA DID NOT HAVE HIS PERSONAL FILE AVAILABLE AT THE TIME WHEN THE PROMOTION LISTS WERE DRAWN UP AND THAT IN ADDITION HE WAS NOT ABLE TO MAKE OBSERVATIONS ON HIS REPORT FOR THE YEAR 1963 .

THE DEFENDANT HAS DENIED THIS AND THE APPLICANT'S ALLEGATION IS SUPPORTED BY NO PROOF WHATEVER .

IN RESPECT OF THE OBSERVATIONS OF THE APPLICANT ON HIS REPORT, THESE ARE DATED 5 JULY 1963, AND CONSEQUENTLY THE EAEC COMMISSION WAS IN A POSITION TO TAKE ACCOUNT OF THEM WHEN IT DREW UP THE LIST OF SUITABLE CANDIDATES ON 25 JULY 1963 .

THE PRESENT COMPLAINT IS THUS UNFOUNDED .

( D ) THE APPLICANT ALLEGES THAT HIS MERITS WERE AT LEAST EQUAL TO THOSE OF CERTAIN CANDIDATES ACTUALLY PROMOTED . THE COURT HAS NO JURISDICTION TO SUBSTITUTE ITS OWN VALUE JUDGMENT FOR THE ASSESSMENTS MADE BY THE INSTITUTIONS ITSELF . THE COMPLAINT MUST THEREFORE BE DISMISSED .

( E ) THE APPLICANT ALLEGES, LASTLY, THAT THE PROMOTION COMMITTEE AT ISPRA DID NOT GIVE THE REASONS FOR HIS EXCLUSION FROM THE LIST OF THOSE PROPOSED FOR PROMOTION .

ARTICLE 45 OF THE REGULATIONS DOES NOT REQUIRE DECISIONS REGARDING PROMOTION TO BE REASONED IN RESPECT OF CANDIDATES NOT PROMOTED . A FORTIORI, THERE IS NO OBLIGATION TO GIVE REASONS FOR PROPOSALS FROM AN INTERNAL ADMINISTRATIVE BODY HAVING ONLY CONSULTATIVE POWERS . CONSEQUENTLY, THE COMPLAINT MUST BE DISMISSED .

( F ) IT FOLLOWS FROM THE FOREGOING THAT THE REQUEST FOR ANNULMENT OF THE DECISION REGARDING PROMOTION POSTED AT ISPRA ON 9 JANUARY 1964 MUST BE DISMISSED AS UNFOUNDED . THE DISMISSAL OF THIS REQUEST NECESSARILY CARRIES WITH IT THE DISMISSAL BOTH OF THE REQUEST CONCERNING THE DECISION UPON THE COMPLAINT OF THE APPLICANT THROUGH OFFICIAL CHANNELS AND OF THE REQUEST THAT THE COURT SHOULD HOLD THAT THE DEFENDANT MUST UNDERTAKE A FRESH CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION, INCLUDING THE APPLICANT .

2 . THE REQUEST FOR ANNULMENT OF THE DECISION TO ISSUE A REPRIMAND

( A ) THE APPLICANT ALLEGES THE INFRINGEMENT OF ARTICLE 87 OF THE REGULATIONS, ON THE GROUND THAT HIS CASE WAS NOT REFERRED BY THE EAEC COMMISSION TO THE DISCIPLINARY BOARD .

P.501

ARTICLE 87 PROVIDES THAT THE DISCIPLINARY MEASURE OF REPRIMAND MAY BE ISSUED WITHOUT CONSULTING THE DISCIPLINARY BOARD .

( B ) IN ADDITION THE APPLICANT RELIES ON THE INFRINGEMENT OF ARTICLE 87 ON THE GROUND THAT HE WAS NOT HEARD BY THE APPOINTING AUTHORITY BUT BY AN ASSISTANT DIRECTOR OF THE ISPRA JOINT RESEARCH CENTRE .

THE PROVISIONS OF ARTICLE 87 DO NOT PREVENT THE HEARING OF THE PERSON CONCERNED BY A SENIOR OFFICIAL .

( C ) THE APPLICANT ALLEGES THAT THERE IS A CONTRADICTION IN THE REASONS GIVEN FOR THE CONTESTED DECISION SINCE, ON THE ONE HAND THIS DECISION ACCUSES THE APPLICANT OF A SERIOUS INFRINGEMENT OF HIS PROFESSIONAL DUTIES AND THAT ON THE OTHER HAND IT TOOK ONLY MILD DISCIPLINARY ACTION .

HOWEVER, IN SPITE OF THE SERIOUSNESS OF THE FACTS COMPLAINED OF, THE ADMINISTRATION IS JUSTIFIED IN IMPOSING ONLY A MILD PENALTY, TAKING INTO ACCOUNT CIRCUMSTANCES INDEPENDENT OF THE COMPLAINTS MADE, SUCH AS THE ABSENCE OF ANY PREVIOUS DISCIPLINARY ACTION .

( D ) THE APPLICANT DISPUTES THE ACTUAL BASIS OF THE DISCIPLINARY DECISION AND THE CORRECTNESS OF THE FACTS UPON WHICH IT IS FOUNDED .

IT APPEARS FROM THE CONTESTED DECISION AND THE NOTE OF 25 MARCH 1964 ADDRESSED BY THE ADMINISTRATION TO THE EAEC COMMISSION, WHICH ARE ANNEXED TO THE APPLICATION, THAT THE PENALTY IMPOSED IS BASED PRIMARILY UPON THE CHARGE THAT THE APPLICANT MADE DISPARAGING REMARKS ABOUT A SUPERIOR AND A COLLEAGUE ON THE SUBJECT OF THEIR UNIVERSITY QUALIFICATIONS AND BECAUSE OF THE FACT THAT HE CALLED UPON AN ENQUIRY AGENCY TO OBTAIN CONFIDENTIAL INFORMATION CONCERNING THEM . WHAT IS DISPUTED IS NOT THE RELEVANCE OF THE ACCUSATIONS MADE BY THE APPLICANT CONCERNING THESE TWO OFFICIALS, BUT ONLY THE REPREHENSIBLE NATURE OF THOSE ACCUSATIONS . NEVERTHELESS THIS BEHAVIOUR, WHICH IS CONTRARY TO THE INTERESTS OF THE SERVICE, COULD NOT BE ALLOWED BY THE INSTITUTION RESPONSIBLE . IN ADDITION, CALLING UPON AN ENQUIRY AGENCY IN ORDER TO COLLECT INFORMATION CONCERNING SUPERIORS OR COLLEAGUES IS BEHAVIOUR OPEN TO CRITICISM, WHICH IS NOT DENIED BY THE APPLICANT, AND IS ITSELF SUFFICIENT TO JUSTIFY THE PENALTY .

( E ) IT FOLLOWS FROM THE FOREGOING THAT THE REQUEST FOR ANNULMENT OF THE DECISION TO ISSUE A REPRIMAND, NOTIFIED TO THE APPLICANT ON 24 APRIL 1964, MUST BE DISMISSED AS UNFOUNDED .

3 . THE REQUEST FOR ANNULMENT OF THE DECISIONS TO REJECT THE COMPLAINT REQUESTING THE INTERVENTION OF THE EAEC COMMISSION AGAINST CONDUCT REGARDED AS PREJUDICIAL BY THE APPLICANT

THE APPLICANT'S COMPLAINT REFERRED TO UNFAVOURABLE STATEMENTS ABOUT HIM BY HIS SUPERIORS, MESSRS . RITTER AND KRAMERS, AND THE FACT OF HAVING BEEN THE SUBJECT OF REPEATED AND PERSISTENT ATTEMPTS TO RELIEVE HIM OF THE RESPONSIBILITY FOR WORK PLANNED BY HIM .

P.502

IT IS CLEAR FROM THE FILE AS A WHOLE, AND PARTICULARLY FROM THE FACTS CONCERNING THE DECISION TO REPRIMAND HIM, THAT THE APPLICANT HAS HAD DIFFICULT RELATIONSHIPS WITH HIS IMMEDIATE SUPERIORS . CONSEQUENTLY, ASSUMING THE OPINIONS ATTRIBUTED BY THE APPLICANT TO HIS SUPERIORS TO BE CORRECT, THEY MUST BE REGARDED AS EXCUSABLE, THE REACTIONS OF THE SUPERIORS BEING EXPLICABLE HAVING REGARD TO THE APPLICANT'S BEHAVIOUR .

AS FAR AS THE POSITION OF THE APPLICANT WITHIN THE EUROPEAN CENTRE FOR THE PROCESSING OF SCIENTIFIC INFORMATION ( CETIS ) IS CONCERNED, WHEN THE DUTIES OF THE APPLICANT WERE CHANGED, THIS WAS CLEARLY DONE IN THE INTERESTS OF THE SERVICE .

THE APPLICANT POINTS, LASTLY, TO THE IRREGULARITY OF THE PROCEDURE FOLLOWED BY THE EAEC COMMISSION IN THE EXAMINATION OF THE APPEAL MADE BY HIM THROUGH OFFICIAL CHANNELS ON 21 FEBRUARY 1964 .

IT IS CLEAR FROM THE DOCUMENTS ON THE FILE AND THE EXPLANATIONS OF THE PARTIES THAT ARTICLES 27 AND 43 OF THE REGULATIONS WERE NOT INFRINGED IN THE PRESENT CASE . IN PARTICULAR, THE REPORT ADDRESSED BY THE MANAGEMENT COMMITTEE OF CETIS TO MR KRAMERS AND PRODUCED BY THE DEFENDANT IN SCHEDULE 5 TO ITS REJOINDER, WAS A NOT UNFAVOURABLE REPORT ON THE WORK OF THE APPLICANT AND THERE WAS NO REASON IN CONSEQUENCE TO COMMUNICATE THIS DOCUMENT TO HIM OR TO PUT IT ON HIS PERSONAL FILE . IT APPEARS, MOREOVER, THAT THE FACTS KNOWN TO THE EAEC COMMISSION WERE SUFFICIENT TO ALLOW IT TO TAKE A DECISION WITHOUT HAVING TO HEAR THE APPLICANT OR MESSRS . POMAR AND BRAFFORT .

IT FOLLOWS FROM THE FOREGOING THAT THE DEFENDANT HAS COMMITTED NO IRREGULARITY BY REFUSING TO INTERVENE AS REQUESTED BY THE APPLICANT . CONSEQUENTLY THE REQUEST FOR ANNULMENT OF BOTH THE IMPLIED AND EXPRESS DECISIONS OF REJECTION OF THE COMPLAINT ASKING FOR THE INTERVENTION OF THE EAEC COMMISSION AGAINST CONDUCT REGARDED AS PREJUDICIAL BY THE APPLICANT MUST BE DISMISSED AS UNFOUNDED .

4 . CONCERNING THE APPLICATION FOR DAMAGES

THE APPLICANT ASKS THE COURT ON THE SUBJECT OF THE ' DECISION TO TRANSFER OR SECOND HIM, TAKEN ON 24 JUNE 1964, TO GRANT HIM 1 BELGIAN FRANC AS DAMAGES . THE COURT DISMISSED THE APPLICATION FOR ANNULMENT AS INADMISSIBLE . CONSEQUENTLY IT IS IMPOSSIBLE IN THE PRESENT CASE TO FIND THAT THE APPLICANT HAS ANY RIGHT TO COMPENSATION FOR ANY DAMAGE THAT THE CONTESTED ACT MAY HAVE CAUSED HIM .

5 . THE CONCLUSIONS OF THE APPLICANT SEEKING AN ORDER FOR MEASURES OF INQUIRY

THE APPLICANT HAS LODGED CONCLUSIONS REQUESTING THE COURT TO ORDER CERTAIN MEASURES OF INQUIRY .

THE COURT CONSIDERS THAT, AS THE DOCUMENTS IN THE FILE HAVE PROVIDED SUFFICIENT INFORMATION, THERE IS NO NEED TO ORDER THE MEASURES OF INQUIRY SOUGHT BY THE APPLICANT .

Decision on costs

THE APPLICANT HAS FAILED IN HIS APPLICATIONS .

UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY INSTITUTIONS IN APPEALS BY SERVANTS OF THE COMMUNITIES SHALL BE PAID BY THE FORMER .

NEVERTHELESS, TAKING INTO ACCOUNT THE CIRCUMSTANCES OF THE CASE, THERE ARE GROUNDS UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69(3 ) OF THE RULES OF PROCEDURE TO ORDER THE DEFENDANT TO PAY ONE-QUARTER OF THE COSTS OF THE APPLICANT .

THE ORDER OF THE PRESIDENT OF THE COURT DATED 7 AUGUST 1964 DISMISSED THE APPLICATION FOR SUSPENSION LODGED BY THE APPLICANT AS INADMISSIBLE, COSTS BEING RESERVED . THE COSTS RELATING TO THAT APPLICATION MUST BE APPORTIONED IN THE MANNER SET OUT ABOVE .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS IN CASES 27/64 AND 30/64;

2 . ORDERS THE DEFENDANT TO BEAR THE COSTS INCURRED BY IT BOTH IN RESPECT OF THE MAIN PROCEEDINS AND OF THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE AND IN ADDITION ONE-QUARTER OF THE COSTS INCURRED BY THE APPLICANT;

3 . THREE-QUARTERS OF THE COSTS INCURRED BY THE APPLICANT, BOTH IN THE MAIN PROCEEDINGS AND IN THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE SHALL BE BORNE BY HIM .