Order of the President of the Second Chamber of the Court of 5 September 1986. - R. M. v Council of the European Communities. - Application for interim measures - Suspension of operation of a decision - Conditions for granting. - Case 175/86 R.



European Court reports 1986 Page 02511



Parties

Subject of the case

Grounds

Operative part



Keywords

APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE - SUSPENSION OF OPERATION OF A DECISION - CONDITIONS FOR GRANTING - PRIMA FACIE CASE

( RULES OF PROCEDURE , ART . 83 ( 2 ))

Parties

IN CASE 175/86 R

R . M ., AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED AND ASSISTED BY F . ENTRINGER , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS CHAMBERS , 2 RUE DU PALAIS DE JUSTICE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED AND ASSISTED BY M . GROSSMANN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . KASER , DIRECTOR OF THE LEGAL AFFAIRS DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 , BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

Subject of the case

APPLICATION FOR AN INTERIM ORDER SUSPENDING THE OPERATION OF DECISION NO 528/86 OF THE SECRETARY GENERAL OF THE COUNCIL OF 13 JUNE 1986 REMOVING THE APPLICANT FROM HIS POST PURSUANT TO ARTICLE 86 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 JULY 1986 , R . M ., AN OFFICIAL OF THE COUNCIL IN GRADE LA 7 , BROUGHT AN ACTION SEEKING PRIMARILY THE ANNULMENT OF DECISION NO 528/86 OF THE SECRETARY GENERAL OF THE COUNCIL OF 13 JUNE 1986 REMOVING HIM FROM HIS POST WITH EFFECT FROM 16 SEPTEMBER 1986 .

2 BY AN APPLICATION FOR INTERIM MEASURES LODGED ON THE SAME DAY , THE APPLICANT SOUGHT THE SUSPENSION OF THE OPERATION OF THAT DECISION , PURSUANT TO ARTICLE 83 OF THE RULES OF PROCEDURE OF THE COURT AND ARTICLE 91 ( 4 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES .

3 THE APPLICANT WAS APPOINTED A PROBATIONARY OFFICIAL IN GRADE LA 7 ON 14 MAY 1982 . HE ENTERED THE SERVICE OF THE COUNCIL ON 1 JULY 1982 AND WAS ESTABLISHED WITH EFFECT FROM 1 APRIL 1983 BY A COUNCIL DECISION DATED 20 APRIL 1983 .

4 WHEN HE TOOK UP HIS DUTIES THE APPLICANT CERTIFIED BY MEANS OF TWO DECLARATIONS DATED 1 JULY 1982 THAT HE WAS MARRIED TO MRS W . M ., NEE O ., THAT HE HAD TWO DEPENDENT CHILDREN OF THE MARRIAGE AND THAT HIS WIFE WAS NOT IN RECEIPT OF FAMILY ALLOWANCES . THE APPLICANT MADE ANOTHER DECLARATION TO THE SAME EFFECT ON 13 APRIL 1983 . THE DECLARATIONS WERE ACCOMPANIED BY AN UNDERTAKING TO INFORM THE RELEVANT COUNCIL AUTHORITIES OF ANY CHANGE IN HIS CIRCUMSTANCES IMMEDIATELY AND IN WRITING .

5 ON THE BASIS OF THOSE DECLARATIONS THE COUNCIL PAID TO HIM FROM 1 JULY 1982 UNTIL JUNE 1985 THE DAILY SUBSISTENCE ALLOWANCE , THE INSTALLATION ALLOWANCE , THE FAMILY ALLOWANCES AND THE ANNUAL TRAVEL EXPENSES PAYABLE TO OFFICIALS .

6 THE DOCUMENTS BEFORE THE COURT SHOW THAT ON 14 NOVEMBER 1981 THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), HAARLEM , DISSOLVED THE MARRIAGE BETWEEN MR AND MRS M . THE DIVORCE WAS REGISTERED IN THE REGISTER OF MARRIAGES OF THE MUNICIPALITY OF HAARLEMMERMEER ON 24 APRIL 1982 ON THE APPLICATION OF MRS M . BY JUDGMENT OF 8 JULY 1982 THE ARRONDISSEMENTSRECHTBANK , HAARLEM , FOLLOWING PROCEEDINGS ATTENDED BY BOTH PARTIES , AWARDED CUSTODY OF THE TWO CHILDREN OF THE DISSOLVED MARRIAGE TO MRS M .

7 IT WAS NOT UNTIL THE COUNCIL ' S ADMINISTRATIVE AUTHORITIES RECEIVED MRS M ' S LETTER OF 14 JUNE 1985 THAT THEY LEARNT OF THE FINAL DIVORCE DECREE AND THE AFOREMENTIONED JUDGMENT OF 8 JULY 1982 . IN ADDITION , IT IS CLEAR FROM A LETTER DATED 25 JULY 1985 , SENT BY THE RAAD VAN ARBEID ( LABOUR COUNCIL ) TO THE COUNCIL , THAT UNTIL 1 OCTOBER 1982 AND AS FROM 1 JULY 1984 THE RAAD PAID MRS M . FAMILY ALLOWANCES IN RESPECT OF THE DEPENDENT CHILDREN .

8 THE DOCUMENTS BEFORE THE COURT ALSO SHOW THAT SINCE MR M . TOOK UP HIS DUTIES AT THE COUNCIL FIVE JUDGMENTS IN DEFAULT HAVE BEEN ENTERED AGAINST HIM IN BELGIUM FOR THE PAYMENT OF VARIOUS SUMS OF MONEY . THE ADMINISTRATIVE AUTHORITIES OF THE COUNCIL HAVE RECEIVED REQUESTS FOR THE ENFORCEMENT OF JUDGMENTS ORDERING HIM TO PAY A TOTAL AMOUNT OF APPROXIMATELY BFR 1 350 000 IN RESPECT OF PRIVATE DEBTS .

9 ON THE BASIS OF THE FOREGOING FACTS , THE COUNCIL ' S ADMINISTRATIVE AUTHORITIES DECIDED IN OCTOBER 1985 TO COMMENCE DISCIPLINARY PROCEEDINGS AGAINST MR M . ON 28 OCTOBER 1985 THE SECRETARY GENERAL OF THE COUNCIL WROTE TO MR M . STATING THAT HE HAD INTENTIONALLY COMMITTED A SERIOUS BREACH OF HIS OBLIGATIONS UNDER THE STAFF REGULATIONS . THE SAME ALLEGATION WAS MADE IN THE REPORT DATED 4 MARCH 1986 SUBMITTED TO THE DISCIPLINARY BOARD .

10 THAT REPORT WAS NOTIFIED TO MR M . ON 9 MARCH 1986 AND THE DOCUMENTS RELATING THERETO WERE COMMUNICATED TO HIM ON 26 MARCH 1986 .

11 IN THE COURSE OF THE DISCIPLINARY PROCEEDINGS MR M . MADE ORAL SUBMISSIONS TO THE SECRETARY GENERAL AND THE DISCIPLINARY BOARD CONCERNING THE ALLEGATIONS MADE AGAINST HIM . HE RAISED OBJECTIONS WITH REGARD TO THE DISCIPLINARY PROCEEDINGS BUT REFUSED TO COMMENT ON THE SUBSTANCE OF THE CASE .

12 ON 16 MAY 1986 THE DISCIPLINARY BOARD DELIVERED THE REASONED OPINION PROVIDED FOR IN ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS . IN THAT OPINION THE BOARD STATED THAT MR M . HAD COMMITTED A SERIOUS OFFENCE BUT SHOULD BE GIVEN AN OPPORTUNITY TO REDEEM HIMSELF . THE BOARD TOOK THE VIEW THAT THE APPROPRIATE DISCIPLINARY ACTION WAS DOWNGRADING TO GRADE LA 8 .

13 THE DECISION REMOVING THE APPLICANT FROM HIS POST WAS TAKEN BY THE SECRETARY GENERAL ON 13 JUNE 1986 . AT PAGES 6 AND 7 OF THAT DECISION THE SECRETARY GENERAL FOUND THAT MR M . HAD CONSISTENTLY AND INTENTIONALLY DISREGARDED THE RELATIONSHIP OF HONESTY AND TRUST WHICH SHOULD EXIST BETWEEN AN OFFICIAL AND THE COUNCIL AND THAT HE LACKED THE INTEGRITY AND MORAL FITNESS TO HOLD ANY POST IN THE COMMUNITY PUBLIC SERVICE . IN ADDITION , THE SECRETARY GENERAL STATED THAT MR M . ' S FAILURE TO FULFIL HIS PRIVATE OBLIGATIONS , RESULTING IN COURT ORDERS WITH WHICH HE HAD DELIBERATELY FAILED TO COMPLY , SHOWED A MANIFEST CONTEMPT FOR THE AUTHORITIES OF THE COUNTRY IN WHICH HE WAS EMPLOYED . CONSEQUENTLY , IN THE SECRETARY GENERAL ' S VIEW , THE POSSIBILITY REFERRED TO BY THE DISCIPLINARY BOARD ( THAT THE APPLICANT MIGHT REDEEM HIMSELF ) WAS THEORETICAL AND THE DISCIPLINARY MEASURE PROPOSED BY IT WAS ' LESS THAN APPROPRIATE ' .

14 IN A CONFIDENTIAL LETTER TO THE CHAIRMAN OF THE DISCIPLINARY BOARD DATED 4 JUNE 1986 , THE SECRETARY GENERAL SET OUT THE REASONS FOR WHICH HE HAD DEPARTED FROM THE DISCIPLINARY BOARD ' S REASONED OPINION . HE EXPLAINED THAT THE SERIOUSNESS OF THE FACTS COMPLAINED OF WITH REGARD TO MR M . CALLED FOR MORE SEVERE DISCIPLINARY ACTION THAN THAT PROPOSED BY THE DISCIPLINARY BOARD , ESPECIALLY AS MR M . HAD AT NO TIME ATTEMPTED TO PROVIDE ANY EXPLANATION OF HIS CONDUCT BUT HAD , ON THE CONTRARY , MERELY SOUGHT TO AVOID THE DISCIPLINARY PROCEEDINGS BROUGHT AGAINST HIM BY PROCEDURAL MEANS .

15 IN HIS APPLICATION FOR AN INTERIM MEASURE , THE APPLICANT CLAIMS THAT THE COUNCIL SHOULD BE ORDERED TO SUSPEND THE OPERATION OF THE DECISION OF 13 JUNE 1986 UNTIL A FINAL DECISION HAS BEEN ADOPTED ON THE SUBSTANCE OF THE CASE , EITHER AS A RESULT OF HIS COMPLAINT DATED 14 JULY 1986 PURSUANT TO ARTICLE 90 ( 3 ) OF THE STAFF REGULATIONS OR BY JUDGMENT OF THE COURT .

16 TO ESTABLISH THE URGENCY FOR THE SUSPENSION OF THE OPERATION OF THE DECISION TAKEN , THE APPLICANT RELIES ON THE MANIFESTLY PREJUDICIAL NATURE OF THE DECISION .

17 WITH REGARD TO THE SUBSTANCE OF THE CASE , THE APPLICANT RAISES FIVE OBJECTIONS TO THE CONTESTED DECISION : THE PARTIALITY OF THE SECRETARY GENERAL AND HIS FAILURE TO OBSERVE THE RIGHTS OF THE DEFENCE , FAILURE TO STATE THE REASONS FOR IMPOSING A MORE SEVERE DISCIPLINARY MEASURE THAN THAT CONTAINED IN THE DISCIPLINARY BOARD ' S REASONED OPINION , FAILURE TO COMPLY WITH THE FIRST PARAGRAPH OF ARTICLE 7 ( 1 ) OF ANNEX IX TO THE STAFF REGULATIONS , MANIFEST ERROR IN THE APPRAISAL OF THE FACTS AND THE FACT THAT THE DISCIPLINARY MEASURE WAS DISPROPORTIONATE TO THE FACTS COMPLAINED OF .

18 THE COUNCIL , IN ITS OBSERVATIONS DATED 25 AUGUST 1986 , CONTENDS THAT THE MAIN APPLICATION IS UNFOUNDED AND CONSIDERS THAT THE APPLICANT HAS NOT SUFFERED IRREPARABLE OR IRREVERSIBLE DAMAGE AS A RESULT OF THE OPERATION OF THE CONTESTED DECISION .

19 SINCE THE PARTIES HAVE STATED THEIR RESPECTIVE POINTS OF VIEW FULLY IN THEIR WRITTEN STATEMENTS AND HAVE SUBMITTED ALL THE DOCUMENTS WHICH MUST BE TAKEN INTO ACCOUNT IN ORDER THAT JUDGMENT MAY BE GIVEN ON THE APPLICATION FOR INTERIM MEASURES , IT IS NOT NECESSARY TO CONDUCT ANY PREPARATORY INQUIRY OR TO HEAR ORAL ARGUMENT FROM THE PARTIES .

20 ACCORDING TO ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , IT IS FOR THE APPLICANT TO ESTABLISH , ON THE ONE HAND , THE CIRCUMSTANCES GIVING RISE TO URGENCY AND , ON THE OTHER HAND , THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR ( FUMUS BONI JURIS ).

21 IT MUST BE STATED IN THIS CASE , WITHOUT IN ANY WAY PREJUDGING THE DECISION ON THE MAIN APPLICATION , THAT THE GROUNDS PUT FORWARD FOR THE ADOPTION OF INTERIM MEASURES HAVE NOT BEEN SUFFICIENTLY ESTABLISHED . IT IS THEREFORE UNNECESSARY TO CONSIDER THE FIRST CONDITION LAID DOWN IN ARTICLE 83 ( 2 ).

22 WITH REGARD TO THE ALLEGED PARTIALITY OF THE SECRETARY GENERAL AND HIS ALLEGED FAILURE TO OBSERVE THE RIGHTS OF THE DEFENCE , IT MUST BE OBSERVED THAT THE PERSONS WHO ARE RESPONSIBLE FOR CARRYING OUT DISCIPLINARY PROCEEDINGS MUST NOT BE BIASED AND MUST BE PREPARED TO LISTEN TO ALL THE OBSERVATIONS AND ARGUMENTS OF THE PERSON CONCERNED . HOWEVER , THE WORDING OF THE LETTER OF 28 OCTOBER 1985 AND THE REPORT DATED 4 MARCH 1986 DO NOT DISCLOSE THAT THE SECRETARY GENERAL WAS PREJUDICED AGAINST MR M . AND WAS NOT PREPARED TO LISTEN TO HIS EXPLANATIONS . IN THE LETTER OF 28 OCTOBER MR M . IS EXPRESSLY REQUESTED TO SUBMIT HIS OBSERVATIONS . AS REGARDS THE REPORT DATED 4 MARCH , IT IS CLEAR THAT THAT REPORT WAS INTENDED MERELY TO ESTABLISH AND APPRAISE THE FACTS . IN SUCH CIRCUMSTANCES THE FIRST SUBMISSION IS PRIMA FACIE UNFOUNDED .

23 WITH REGARD TO THE FAILURE TO STATE THE REASONS FOR IMPOSING A MORE SEVERE DISCIPLINARY MEASURE , IT IS CLEAR FROM THE DECISION ITSELF , IN PARTICULAR PAGES 6 AND 7 THEREOF , THAT THE SECRETARY GENERAL STATES THE REASONS FOR WHICH , HAVING FAILED TO FIND ANY MITIGATING CIRCUMSTANCES IN THE DOCUMENTS BEFORE HIM , HE CONSIDERED IT NECESSARY TO DEPART FROM THE DISCIPLINARY BOARD ' S REASONED OPINION . CONSEQUENTLY , THE SECOND SUBMISSION CANNOT PRIMA FACIE BE UPHELD .

24 WITH REGARD TO THE FAILURE TO COMPLY WITH THE FIRST PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS , WHICH PROVIDES THAT THE DISCIPLINARY BOARD IS TO DELIVER A REASONED OPINION WITHIN ONE MONTH OF THE DATE ON WHICH THE MATTER WAS REFERRED TO IT , IT IS COMMON GROUND THAT THE DISCIPLINARY BOARD FAILED TO OBSERVE THAT TIME-LIMIT . HOWEVER , IN VIEW OF THE SPECIAL FEATURES INHERENT IN THE SUBJECT-MATTER GOVERNED BY ANNEX IX TO THE STAFF REGULATIONS AND HAVING REGARD TO THE OTHER PROVISIONS IN ANNEX IX CONCERNING DISCIPLINARY PROCEEDINGS , THAT TIME-LIMIT CANNOT BE REGARDED AS A MANDATORY PERIOD OF LIMITATION , THE DISREGARD OF WHICH ENTAILS THE NULLITY OF THE MEASURES ADOPTED AFTER ITS EXPIRY ( SEE THE COURT ' S JUDGMENT OF 4 FEBRUARY 1970 IN CASE 13/69 , VAN EICK V COMMISSION , ( 1970 ) ECR 3 ). IT FOLLOWS THAT , PRIMA FACIE , THE THIRD SUBMISSION CANNOT BE UPHELD .

25 WITH REGARD TO THE SUBMISSIONS CONCERNING MANIFEST ERROR IN THE APPRAISAL OF THE FACTS AND THE DISPROPORTIONALITY OF THE DISCIPLINARY MEASURE , IT MUST BE OBSERVED THAT THE FACTS REFERRED TO IN THE DECISION ARE NOT DISPUTED IN SUBSTANCE BY THE APPLICANT . MOREOVER , IN THIS CASE THE COURT IS UNABLE TO SUBSTITUTE ITS OWN APPRAISAL OF THE FACTS FOR THAT OF THE DISCIPLINARY AUTHORITY EXCEPT IN THE CASE OF MANIFEST ERROR OR MISUSE OF POWERS . IT MUST BE STATED THAT , PRIMA FACIE , THE FACT THAT AN OFFICIAL IS REMOVED FROM HIS POST BECAUSE HE INTENTIONALLY AND REPEATEDLY MADE INCORRECT DECLARATIONS CONCERNING HIS MARITAL STATUS AND DEPENDENTS AND THEREBY FOR THREE YEARS RECEIVED FAMILY ALLOWANCES AND OTHER ALLOWANCES DOES NOT CONSTITUTE A MANIFEST ERROR OR MISUSE OF POWERS .

26 WITH REGARD TO THE APPLICANT ' S ASSERTION THAT HE WAS NOT AWARE OF THE FINAL DECREE OF DIVORCE , IT SUFFICES TO OBSERVE THAT THE JUDGMENT OF THE ARRONDISSEMENTSRECHTBANK , HAARLEM , OF 8 JULY 1982 STATES THAT BOTH SPOUSES APPEARED BEFORE IT IN PERSON , THAT MRS M . PETITIONED FOR A DIVORCE AND MADE CERTAIN ANCILLARY APPLICATIONS AND THAT , FOLLOWING THE FINAL DECREE OF DIVORCE , PROVISION HAD TO BE MADE FOR THE CHILDREN WHO WERE MINORS . IN THOSE CIRCUMSTANCES THE APPLICANT ' S ARGUMENTS IN THIS RESPECT ARE NOT , IN THE CONTEXT OF AN APPLICATION FOR AN INTERIM MEASURE , SUFFICIENTLY COGENT . CONSEQUENTLY , THE FOURTH AND FIFTH SUBMISSIONS CANNOT BE ACCEPTED .

27 SINCE ALL THE FACTUAL AND LEGAL GROUNDS SUBMITTED BY THE APPLICANT ARE PRIMA FACIE UNFOUNDED , HIS APPLICATION FOR THE SUSPENSION OF OPERATION OF THE CONTESTED DECISION CANNOT BE ALLOWED .

28 COSTS SHOULD , AT THIS STAGE , BE RESERVED .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT OF THE SECOND CHAMBER ,

PURSUANT TO ARTICLES 9 ( 4 ) AND 96 OF THE RULES OF PROCEDURE ,

AFTER HEARING THE VIEWS OF THE ADVOCATE GENERAL ,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION FOR INTERIM MEASURES IS DISMISSED ;

( 2 ) COSTS ARE RESERVED .