Judgment of the Court (Second Chamber) of 7 May 1969. - X. v Audit Board of the European Communities. - Case 12-68.



European Court reports 1969 Page 00109

Danish special edition Page 00027

Greek special edition Page 00039

Portuguese special edition Page 00039



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PROCEDURE - APPLICATION - REQUIREMENTS OF FORM - SUBMISSIONS MADE - MISTAKE IN DESIGNATION OF RELEVANT PROVISION - ADMISSIBILITY

( PROTOCOL ON THE STATUTE OF THE COURT, ARTICLE 19; RULES OF PROCEDURE OF THE COURT, ARTICLE 38 )

2 . DISCIPLINARY PROCEDURE - RIGHTS OF THE DEFENCE - LIMITS

( STAFF REGULATIONS OF OFFICIALS, ANNEX IX, ARTICLE 7 )

Summary

1 . A MISTAKE MADE BY THE APPLICANT IN DESIGNATING THE RELEVANT PROVISION CANNOT LEAD TO THE INADMISSIBILITY OF THE SUBMISSION PUT FORWARD .

2 . THE DISCIPLINARY AUTHORITY DOES NOT PREJUDICE THE RIGHTS OF THE DEFENCE BY IMPOSING A DISCIPLINARY SANCTION IN THE ABSENCE OF THE OFFICIAL CONCERNED, WHEN THAT ABSENCE IS ATTRIBUTABLE EXCLUSIVELY TO THE BEHAVIOUR OF THE LATTER .

Parties

IN CASE 12/68

X, A FORMER OFFICIAL OF THE AUDIT BOARD OF THE EUROPEAN COMMUNITIES, RESIDING AT BRUSSELS, REPRESENTED IN THE WRITTEN PROCEDURE BY MARCEL SLUSNY AND, IN THE ORAL PROCEDURE BY HENRI ROLIN, BOTH ADVOCATES AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE 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, AS WELL AS FOR DAMAGES;

Grounds

1 THE APPLICATION IS FOR THE ANNULMENT OF THE DECISION TAKEN ON 26 MARCH 1968 BY THE AUDIT BOARD TO REMOVE THE APPLICANT FROM HIS POST FOLLOWING DISCIPLINARY PROCEEDINGS .

2 THE APPLICANT FURTHER ASKS THAT THE AUDIT BOARD BE ORDERED TO PAY HIM A SUM OF BF 100 000 FOR MATERIAL DAMAGE AND A SIMILAR SUM FOR NON-MATERIAL DAMAGE .

3 AT THE ORAL PROCEEDINGS BEFORE THE COURT THE APPLICANT PUT FORWARD ADDITIONAL CONCLUSIONS IN WHICH HE ASKED THE COURT, AMONG OTHER THINGS, TO TAKE NOTE THAT HE WOULD GIVE UP HIS EMPLOYMENT WITH THE AUDIT BOARD ON THE DATE ON WHICH THE JUDGMENT ANNULLING THE DECISION TO REMOVE HIM FROM HIS POST WAS GIVEN .

4 THIS HEAD OF THE CONCLUSIONS IS NOT ADMISSIBLE SINCE IT IS IRRELEVANT TO THE SUBJECT-MATTER OF THE PROCEEDINGS .

A - THE APPLICATION FOR ANNULMENT

1 . SUBMISSION BASED ON ARTICLE 87 OF THE STAFF REGULATIONS AND ON THE LAST PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE SAID REGULATIONS

5 THE APPLICANT COMPLAINS THAT ON 26 MARCH 1968 THE AUDIT BOARD DECIDED TO REMOVE HIM FROM HIS POST WITHOUT HAVING PREVIOUSLY HEARD HIM IN ACCORDANCE WITH THE PROVISIONS GOVERNING DISCIPLINARY PROCEEDINGS .

6 THE AUDIT BOARD HAS DISPUTED THE ADMISSIBILITY OF THIS SUBMISSION, WHICH IS BASED ON ARTICLE 87 OF THE STAFF REGULATIONS, SINCE THE RELEVANT PROVISION IS THE LAST PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE SAID REGULATIONS .

7 A MISTAKE MADE BY THE APPLICANT IN DESIGNATING THE RELEVANT PROVISION CANNOT HOWEVER LEAD TO THE INADMISSIBILITY OF THE SUBMISSION PUT FORWARD .

8 IT IS NOT DISPUTED THAT THE DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT WERE PROPERLY INITIATED AND PURSUED AS REGARDS THE STAGES PRIOR TO THE MEETING OF 26 MARCH 1968 DURING WHICH THE AUDIT BOARD TOOK THE DECISION WHICH IS THE SUBJECT OF THE APPLICATION .

9 THE DISPUTE IS SOLELY CONCERNED WITH THE FACT THAT THE AUDIT BOARD TOOK A DECISION WITHOUT HAVING HEARD THE PERSON CONCERNED AS IS REQUIRED BY ARTICLE 7 OF ANNEX IX TO THE REGULATIONS .

10 BEFORE THE MEETING OF 26 MARCH 1968 THE AUDIT BOARD THREE TIMES ADJOURNED THE HEARING OF THE APPLICANT, TWICE IN VIEW OF HIS STATE OF HEALTH, AND THE THIRD TIME, ALTHOUGH THE APPLICANT HAD BEEN FOUND MEDICALLY FIT TO ANSWER THIS SUMMONS, BECAUSE COUNSEL WHOM HE HAD ASKED TO BE ALLOWED TO ACCOMPANY HIM WAS NOT AVAILABLE .

11 ON BEING SUMMONED FOR THE FOURTH TIME TO ATTEND, ON 26 MARCH 1968, THE APPLICANT FAILED TO APPEAR BEFORE THE AUDIT BOARD .

12 IN VIEW OF THESE CIRCUMSTANCES THE REASONS PUT FORWARD IN THE LAST INSTANCE BY THE APPLICANT TO EXPLAIN HIS ABSENCE CANNOT BE REGARDED AS AMOUNTING TO A VALID EXCUSE .

13 AFTER TRYING SEVERAL TIMES TO SECURE THE APPEARANCE OF THE APPLICANT, THE AUDIT BOARD WAS ENTITLED TO CONTINUE EVEN IN HIS ABSENCE .

14 THE EVIDENCE TENDERED BY THE APPLICANT, FOR THE PURPOSE OF PROVING HIS ALLEGATIONS IN THE CONCLUSIONS PRESENTED AT THE ORAL PROCEEDINGS MUST, CONSEQUENTLY, BE REJECTED WITHOUT ITS BEING NECESSARY TO CONSIDER THEIR ADMISSIBILITY IN THE LIGHT OF THE RULES OF PROCEDURE .

15 IN THOSE CIRCUMSTANCES THE AUDIT BOARD WAS ENTITLED TO ADOPT THE DISCIPLINARY MEASURE IN THE ABSENCE OF THE APPLICANT .

16 THAT METHOD OF PROCEEDING IS ALL THE MORE JUSTIFIED BECAUSE THE AUDIT BOARD, BY THE SUCCESSIVE ADJOURNMENT TO WHICH IT HAD CONSENTED HAD AMPLY TAKEN ACCOUNT OF THE STATE OF HEALTH OF THE APPLICANT AND OF HIS WISH TO BE ASSISTED BY COUNSEL .

17 IT APPEARS FROM THE WHOLE OF THE FOREGOING THAT THE DISCIPLINARY AUTHORITY BOTH DURING THE PRELIMINARY STAGES OF THE PROCEEDINGS AND BY ITS CONDUCT AT THE TIME OF THE MEETING OF 26 MARCH 1968, RESPECTED THE RIGHTS OF THE DEFENCE, THE FAILURE TO HEAR THE APPLICANT BEING ATTRIBUTABLE EXCLUSIVELY TO THE BEHAVIOUR OF THE LATTER .

18 THE FIRST SUBMISSION MUST THEREFORE BE REJECTED .

2 . SUBMISSION BASED ON ARTICLE 110 OF THE STAFF REGULATIONS

19 THE APPLICANT MAINTAINS THAT RESPECT FOR THE RIGHTS OF THE DEFENCE REQUIRED THAT AN OFFICIAL, WHO HAS BEEN FOUND GUILTY WITHOUT HAVING BEEN HEARD, MAY APPEAL AGAINST A DISCIPLINARY MEASURE TAKEN AGAINST HIM IN DEFAULT OF HIS APPEARANCE .

20 THIS COMPLAINT IS BASED ON ARTICLE 110 OF THE STAFF REGULATIONS CONCERNING THE " GENERAL PROVISIONS FOR GIVING EFFECT TO THESE STAFF REGULATIONS ".

21 THE EXPRESSION " APPEAL " ( OPPOSITION ) MEANS, IN PROCEDURAL LAW, THE REMEDY WHICH ENABLES A DEFAULTING PARTY TO BRING THE CASE AGAIN BEFORE THE COURT WHICH GAVE JUDGMENT IN DEFAULT .

22 SUCH A REMEDY IS NOT PROVIDED FOR BY THE STAFF REGULATIONS WHICH HAVE SECURED THE LEGAL PROTECTION OF OFFICIALS IN DISCIPLINARY MATTERS BY THE INSTITUTION OF AN APPEAL TO THE COURT OF JUSTICE .

23 THERE DOES NOT EXIST, FURTHER, ANY GENERAL PRINCIPLE OF LAW FROM WHICH IT WOULD BE POSSIBLE TO INFER THE EXISTENCE OF THE TYPE OF REMEDY TO WHICH THE APPLICANT REFERS .

24 CONSEQUENTLY ARTICLE 110 OF THE STAFF REGULATIONS IS, IN THE PRESENT CASE, IRRELEVANT AND THE SUBMISSION MUST BE REJECTED .

3 . SUBMISSION BASED ON ARTICLE 86 OF THE STAFF REGULATIONS

25 THE APPLICANT COMPLAINS THAT THE AUDIT BOARD CHARGED HIM WITH MISCONDUCT WHICH HE DENIES HAVING COMMITTED, OR FOR WHICH AT LEAST, IF HE DID SO, HE DENIES THAT HE WAS RESPONSIBLE IN LAW .

26 FURTHERMORE HE STATES THAT ONE OF THE MATTERS CONSIDERED BY THE AUDIT BOARD HAD ALREADY BEEN THE SUBJECT OF PREVIOUS DISCIPLINARY PROCEEDINGS .

( A ) PROOF OF THE FACTS :

27 THE DISPUTE IN RESPECT OF THE PROOF OF THE FACTS CONCERNS ONLY THE THIRD PIECE OF MISCONDUCT TAKEN INTO ACCOUNT BY THE DISCIPLINARY AUTHORITY - THEFT OF DOCUMENTS AND DISSEMINATION OF AN ANONYMOUS NOTE .

28 ALTHOUGH IT IS TRUE THAT CERTAIN DOUBTS STILL EXISTED DURING THE PREPARATORY STAGE OF THE DISCIPLINARY PROCEEDINGS, THE AUDIT BOARD, IN THE DECISION WHICH ADVERSELY AFFECTS THE APPLICANT, STATES EXPRESSLY THAT IT HAD NO HESITATION IN FINDING THAT THE FACTS ALLEGED AGAINST THE APPLICANT HAD BEEN PROVED .

29 THE APPLICANT HAS NOT PUT BEFORE THE COURT ANYTHING WHICH MIGHT RAISE DOUBTS WHETHER THE FINDING OF THE AUDIT BOARD WAS IN ACCORDANCE WITH THE TRUTH OF THE MATTER .

( B ) THE EARLIER DISCIPLINARY PROCEEDINGS :

30 THE APPLICANT POINTS OUT THAT THE FIRST OF THE COMPLAINTS ACCEPTED AS PROVED BY THE DISCIPLINARY BOARD - THEFT FROM THE DISPLAY STAND - GAVE RISE AT THE TIME TO PROCEEDINGS WITHIN THE AUDIT BOARD WHICH DID NOT HOWEVER END IN A DISCIPLINARY MEASURE .

31 FURTHERMORE A JUDICIAL INQUIRY OPENED IN RESPECT OF THE SAME FACTS ENDED AN ORDER THAT THE MATTER LIE ON THE FILE .

32 IN VIEW OF THESE FACTS WHICH ARE NOT DISPUTED, THE AUDIT BOARD IN FACT DECIDED ON 12 APRIL 1965 NOT TO COMMENCE DISCIPLINARY PROCEEDINGS, ALTHOUGH WARNING THE APPLICANT THAT A REPETITION OF ACTIONS OF THE SAME TYPE WOULD INEVITABLY LEAVE HIM OPEN TO DISCIPLINARY MEASURES .

33 AS THE BOARD REFRAINED FROM TAKING ACTION SUBJECT TO SUCH AN EXPRESS CONDITION, IT WAS IN A POSITION TO TAKE THE SAME FACTS LAWFULLY INTO ACCOUNT IN DISCIPLINARY PROCEEDINGS BROUGHT IN RESPECT OF LATER FACTS .

( C ) RESPONSIBILITY FOR THE ACTS COMPLAINED OF :

34 THE APPLICANT CLAIMS THAT BECAUSE OF HIS ABNORMAL PSYCHOLOGICAL STATE, HE CANNOT BE REGARDED AS RESPONSIBLE FROM A DISCIPLINARY POINT OF VIEW FOR THE ACTS OF WHICH HE IS ACCUSED .

35 UNDER ARTICLE 86 OF THE STAFF REGULATIONS, A FAILURE BY AN OFFICIAL TO COMPLY WITH HIS OBLIGATIONS UNDER THE REGULATIONS MAY GIVE RISE TO DISCIPLINARY ACTION ONLY IF SUCH FAILURE WAS INTENTIONAL OR THROUGH NEGLIGENCE ON HIS PART .

36 THE FILE TRANSMITTED BY THE AUDIT BOARD INCLUDES CERTAIN MATERIAL WHICH, WITHOUT ALLOWING DEFINITE CONCLUSIONS TO BE DRAWN, NEVERTHELESS RAISES DOUBTS CONCERNING THE MENTAL BALANCE OF THE APPLICANT AT THE TIME OF THE CONDUCT IN QUESTION AND CONSEQUENTLY THE VOLUNTARY NATURE OF THE ACTS OF WHICH HE IS ACCUSED .

37 THESE CIRCUMSTANCES, ALTHOUGH NOT RAISED BY THE APPLICANT DURING THE DISCIPLINARY PROCEEDINGS, WERE KNOWN BY THE DISCIPLINARY BOARD AND THE AUDIT BOARD .

38 AT LEAST THE MEDICAL CERTIFICATES PUT FORWARD BY THE APPLICANT IN THE FINAL STAGE OF THAT PROCEDURE WOULD HAVE JUSTIFIED AN INVESTIGATION INTO HIS MENTAL STATE AT THE TIME OF THE CONDUCT IN QUESTION .

39 IN THE DECISION WHICH IS THE SUBJECT OF THE APPLICATION, THE AUDIT BOARD HELD THE ACTS COMPLAINED OF TO BE ATTRIBUTABLE TO THE PERSON CONCERNED AND THAT HE WAS RESPONSIBLE FOR THEM .

40 NEVERTHELESS NEITHER THE TERMS OF THE DECISION NOR THE INFORMATION PROVIDED BY THE DEFENDANT MAKE IT POSSIBLE, AS THINGS STAND, TO EVALUATE THE JUSTIFICATION OF THE CONTESTED DECISION IN RESPECT OF THE APPLICANT'S RESPONSIBILITY FOR THE CONDUCT IN QUESTION .

41 THERE IS THEREFORE REASON TO CALL FOR AN EXPERT'S REPORT IN ORDER TO ESTABLISH WHETHER AT THE TIME OF THE ACTS WHICH GAVE RISE TO THE DISCIPLINARY DECISION, THE APPLICANT WAS MENTALLY DISTURBED TO SUCH AN EXTENT AS TO EXCLUDE RESPONSIBILITY FOR HIS CONDUCT .

4 . THE SUBMISSION AS A WHOLE

42 THE APPLICANT HAS FAILED IN RESPECT OF THE APPLICATION FOR ANNULMENT IN HIS FIRST TWO SUBMISSIONS, AND IN HIS THIRD SUBMISSION SUBJECT TO THE QUESTION CONCERNING RESPONSIBILITY FOR THE ACTS COMPLAINED OF .

43 THE LAST QUESTION WILL ONLY BE DECIDED ON THE BASIS OF THE CONCLUSIONS WHICH THE COURT MAY DRAW FROM THE EXPERT'S REPORT WHICH IS TO BE ORDERED .

B - THE CLAIM FOR DAMAGES

44 THE CLAIM FOR DAMAGES IS BASED UPON MATERIAL DAMAGE AND NON-MATERIAL DAMAGE SUFFERED BY THE APPLICANT BECAUSE OF HIS REMOVAL FROM HIS POST .

45 ANY DECISION ON THAT CLAIM DEPENDS UPON THE DECISION TO BE MADE ON THE APPLICATION FOR ANNULMENT .

Decision on costs

46 IT IS APPROPRIATE TO RESERVE THE COSTS UNTIL THE DECISION BRINGING THE PROCEEDINGS TO A CLOSE .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY RULES :

1 . THE COURT SHALL BY ORDER DESIGNATE AN EXPERT WITH THE DUTY OF ESTABLISHING WHETHER, AT THE TIME OF THE ACTS 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;

2 . THE COSTS ARE RESERVED .