JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

9 July 2002

Case T-70/01

Pier V. Aimone

v

Court of Justice of the European Communities

‛Officials — Leave on personal grounds — Refusal of reinstatement — Compulsory resignation — Articles 40(4)(d) and 49, second paragraph, of the Staff Regulations’

Full text in Italian II-575

Application for:

first, annulment of the decision of the Court of Justice of 22 May 2000 requiring the official to resign from his post with effect from 1 June 2000 and, secondly, compensation to make good the nonmaterial and psycho-physiological damage allegedly suffered as a result of that decision.

Held:

The application for annulment is dismissed. The claim for damages is dismissed. The parties are ordered to bear their own costs.

Summary

The obligation laid down in the second paragraph of Article 49 of the Staff Regulations to hear the official concerned before the reasoned decision requiring resignation is taken by the appointing authority is an embodiment of the principle of the right to a fair hearing. Since the stage at which the hearing of the official concerned must take place, namely, before or after the Joint Committee delivers its opinion, is not laid down by the second paragraph of Article 49 of the Staff Regulations, that provision must be construed as intending to ensure the most effective possible observance of the right of the official concerned to a fair hearing. The purpose of the provision is to give him an opportunity to express his views at the vital stages of the procedure concerned. In that regard, the right of the official concerned to a fair hearing is observed most effectively when he is in a position to express his views with full knowledge of all the facts and circumstances which are at the disposal of the appointing authority and, in particular, on the content of the Joint Committee's opinion. Since the relevant decision under the second paragraph of Article 49 is taken by the appointing authority and not by the Joint Committee, an additional opportunity to submit observations before the matter is referred to the Joint Committee cannot be considered necessary for the protection of the right of the official concerned to a fair hearing where he has the opportunity to submit observations on that opinion to that authority. (see paras 34-37) See: Opinion of Advocate General Lenz in 12/87 Heyl v Commission [1988] ECR 2943, 2949, point 32; T-169/95 Quijano v Commission [1997] ECRSCI-A-91 and II-273, para. 44; T-211/98 F v Commission [2000] ECRSC I-A-107 and II-471, para. 28

When a vacant post in an administration is filled, regard must be had to the exigencies of the public service rather than to the personal convenience of officials. Consequently, when the competent authority offers a post to an official at the end of his leave on personal grounds, in accordance with Article 40(4)(d) of the Staff Regulations, allowing him a reasonable time within which to take up duty, his refusal or failure to take up the post on the date which has been fixed is to be treated as a refusal, which is not inconsistent with a purely formal acceptance of the post which is not subsequently put into effect. The concept of reasonable time in the context of Article 40(4)(d) of the Staff Regulations must be assessed objectively taking account of the need to reconcile, on the one hand, the administration's obligation to make two offers of reinstatement to the official, in particular in a post corresponding to his grade which falls vacant in his category or service, and, on the other hand, the fact that there is no obligation on the part of the institution to leave open a vacant post in order to suit the convenience of the official. Whether or not the time allowed by the administration for reinstatement in public office is reasonable depends on the particular circumstances of the case. Consequently, a relatively short time could be regarded as reasonable if it is justified in the context of the previous relations between the institution and the official. (see paras 55-56)