OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 13 MARCH 1969 ( 1 )

Mr President,

Members of the Court,

Mr X who entered the service of the Audit Board of the European Communities on 15 March 1962 as an auxiliary, was established in a post of assistant in Grade B 3 as from 15 September 1963.

Following several incidents to which I must return, the institution to which he belonged commenced disciplinary proceedings against him in 1967 in the circumstances provided for by Article 87 of the Regulations. These proceedings first followed their normal course and the Disciplinary Board, after hearing Mr X and various witnesses, by a reasoned opinion of 31 October 1967 unanimously proposed that he be removed from his post without reduction of his right to retirement pension. It remained, according to the wording of the third paragraph of Article 7 of Annex IX, for the Audit Board to take its decision‘… within one month; it shall first hear the official concerned’. In fact, for reasons which I shall mention in a moment, because they are the basis of the first submission raised in support of the application, that hearing was not held and, by a decision of 26 March 1968, the Audit Board removed Mr X from his post with effect from 1 April 1968, that measure involving neither reduction nor withdrawal of any right which he had to a pension.

Mr X asks you to annul that decision and to order the opposite party to pay him a sum of BF 200000 by way of material and non-material damages.

In the oral proceedings he put forward conclusions asking you to take note that should a judgment be delivered annulling the decision he would give up his employment with the Board on the date of such judgment. Such conclusions appear to me to be entirely irrelevant to the proceedings. It is in fact obvious that an undertaking of such a nature can have no influence on the decision which you will consider necessary to give in the case. Supposing on the other hand that you were to annul the contested measure and that Mr X thus found himself re-instated in his post, it would remain for the Audit Board and for himself to see what attitude they proposed to adopt in their reciprocal relationships, and it is not for you now to decide what those relationships might be.

I shall examine in turn the three submissions put forward — occasionally not without some confusion — during the course of the written procedure.

I

The applicant criticizes in the first place, the irregularity of the procedure which, he says, resides in the fact that he has not been heard by the Audit Board (and not by the Disciplinary Board as the applicant mistakenly says) before the contested decision was taken.

That hearing by the appointing authority is expressly provided for by the third paragraph of Article 7 of Annex IX of the Staff Regulations. It is so important that, according to your case-law, the authority which is responsible for it must carry it out itself, although when that authority is of a collegiate nature it may entrust it to one or more of its members, but it cannot transfer its duty to an official of the institution (Judgment of 11 July 1968 in Case 35/67, Van Eick v Commission of the European Communities, Rec. 1968, p. 513 ).

It is obvious however that an official cannot take advantage of the failure to carry out a procedural step when it is because of his own actions that such a step could not be taken in the conditions provided for by the Staff Regulations (see, by analogy, as regards the constitution of the Invalidity Committee, judgment of 14 December 1966 in Case 3/66, Alfieri v European Parliament [1966] ECR 437). A sanction may thus be validly applied by the competent authority without the hearing of the competent authority without the hearing of the servant concerned, if the latter has not appeared on the date on which he was properly summoned.

A careful reading of the file shows convincingly that such is certainly the case in the present instance and that in particular, the Audit Board did all that was in its power to give Mr X the opportunity of putting his defence before it. To be convinced of this, it is only necessary to recall the sequence of the events.

— Following the opinion given on 31 October 1967 by the Disciplinary Board, Mr X was asked to attend on 25 November. He was then on sick leave at his home and the medical officer considered that he was not in a fit condition to appear. The case was thus adjourned until the following January.

— A new summons was issued on 11 January 1968 for the applicant to attend on 19th January. On that date the applicant was being treated at the psychiatric institute of the hôpital universitaire Brugmann, and his doctor considered on 18th January that it would be desirable if this appearance could be adjourned to between 15 days to one month.

— That is what was done: on 19 February, Mr X was summoned a third time to attend on 27 February. The administration received in advance, on 6 February, from the doctor treating him, the assurance that his patient was in a fit state to comply with that summons. All could thus have finished unexceptionally if on the very day of the meeting, and after the time fixed for it, the Audit Board had not been informed by Mr Slusny that he had been asked by Mr X to assist him and that, not being available, he requested that the case should be brought on between 1 and 15 April.

— Article 4 of Annex IX gives to officials the opportunity — which Mr X had not used — of being assisted by an advocate before the Disciplinary Board, but there is no such provision concerning his hearing by the appointing authority. The Audit Board, taking account of the gravity of the proposed sanction, agreed however to give a last chance to the defaulting applicant. On 1 March it summoned him to attend on 26 March at 4 p.m., and informed him that he could be assisted by his advocate. On 13 March it received from the doctor treating the applicant the assurance that ‘nothing from the strictly medical point of view prevents the person concerned from complying with’ the summons. Mr Slusny, who had noted the date of that meeting, was informed on 22 March that he could examine the file, as he had requested.

But on 25 March, the advocate, pleading the short time he had to prepare the defence and a meeting of the Council of the Ordre des Avocats which would occupy him at the time fixed for the hearing of his client, asked for a further adjournment. This time the Audit Board refused. On 26 March, in the morning, it informed Mr Slusny and Mr X of this by telegram, and since neither was present at the meeting it took the contested decision.

The correctness of these facts is not disputed. You will remember, however, that at the hearing Mr X, through Mr Rolin who assisted him in the oral procedure, put forward conclusions in which he tendered eviednce, if necessary by witnesses, of the following facts upon which he relies to justify his default. It was without warning him that his wife consulted an advocate who demanded a first adjournment. He had, furthermore, the intention of going to the meeting on 26 March and was dissuaded by the secretary of his counsel. Lastly at that date, as on 27 February, the medicine which he was taking would have prevented him from putting forward his defence in a fully lucid manner.

One may ask, as did counsel for the Audit Board, whether these conclusions are not out of time. In fact, Article 42 of the Rules of Procedure, whilst reserving to the parties the opportunity of indicating further evidence in reply or rejoinder, on condition that they explain the delay in indicating it, appears to imply that they can no longer do so during the oral procedure. It would be necessary at the very least in such a case for the applicant to set out the reasons which prevented him from pleading at an earlier stage facts which were already old. It is of little importance, furthermore, since Article 60 of the Rules of Procedure authorizes you of your own motion to order at any time any measure of inquiry if you consider it would be appropriate. But such does not appear to me to be the case, for, even supposing them to be established, the facts alleged deal simply with the relationships between the applicant and his counsel, and the advice which the latter could have given him cannot have any influence upon the regularity of the proceedings. Furthermore, as I have said above, the doctor treating Mr X had on two occasions indicated that the latter was in a state to answer the summons which had been sent to him.

In brief, leaving aside the first two summonses at the dates on which he was medically indisposed, the Audit Board offered the applicant two successive opportunities of being heard by it. It granted him a first adjournment to enable him to be assisted by an advocate — which is not even provided for in the Staff Regulations — but it refused to grant him another adjournment and warned him in good time of its refusal.

I do not say, as the advocate of the Audit Board implied in the rejoinder, that Mr X tried to use delaying tactics or to make the proceedings impossible, but I must state that he failed to appear on 26th March without putting forward a valid excuse. It is of little importance whether this failure is due to his own fault or more likely to that of the advocate who assisted him. It justified the Audit Board in dispensing with the hearing, above all, since according to Article 7 of Annex IX the decision had to be taken, at the latest, one month after the notification of the opinion of the Disciplinary Board.

I suggest therefore that you should reject the first submission of the application.

II

Apart from the application by means of which it can be contested before you, the disciplinary measure taken is in the nature of a definitive administration decision, even if it took place without the person concerned being heard. Mr X maintains that in such a case respect for the rights of the defence requires that a measure taken in default of his appearance should be subject to appeal: that is a principle recognized both by the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the law of all the Member States, and one which should have been put into concrete form by one of the general provisions for giving effect to the Staff Regulations provided for in Article 110.

When that Article has been pleaded before you, you have often replied that the duty to enact such provisions can be accepted only in the case where the Regulations themselves are not sufficiently explicit. As is apparent from the wording of Article 110, that Article is only concerned to ensure that it is possible for the Regulations to be given effect, and not to fill in any gaps which they may contain by laying down a rule for which they do not provide. The Article concerned therefore has no application in the present case.

If the applicant means on the other hand to reply upon a principle of law, the submission appears to me to rest upon confusion between judicial decisions and administrative decisions, a confusion which is shown by the employment of the expressions ‘appeal’ (opposition) and ‘in default of appearance’ which belong to the judicial sphere. To begin with it is doubtful whether the principle has, within the latter sphere, the general applicability which the application suggests can be given to it (for example French administrative law does not accept, save where express provision is made, appeals against judgments in default unless the latter are given by a court of last instance), but nothing allows it to be extended to administrative decisions, even those which are given within the framework of disciplinary proceedings. All that one may say is that, within this sphere, our legal systems tend to establish a rule that respect for the rights of the defence does not permit the competent administrative authority to impose a punitive sanction without the person concerned being previously heard, as is laid down, furthermore, by Article 87 of the Staff Regulations. But it is for the court to ensure that this rule is observed. The absence of a hearing will be a ground pleaded in support of an appeal made to it, and it is for the court to decide whether or not in view of the circumstances of the case, the lack of a hearing amounts to a defect in procedure amounting to an irregularity invalidating the contested decision.

I do not think that there is any need to go further and I suggest that you reject the second submission.

III

Lastly Mr X maintains that the facts which were accepted by the Audit Board cannot justify a disciplinary measure. It is therefore no longer the form of the decision but its intrinsic legality which is disputed in this case.

To assess the merits of this argument it is appropriate to refer first of all to the report addressed in accordance with Article 1 of Annex IX by the appointing authority to the Disciplinary Board. There the facts which led to the disciplinary proceedings commenced against Mr X are set out in detail.

— First. It was found as a fact that the applicant on 14 November 1964 took six bottles of alcohol from the display stand of a store. According to the information given at the time by the Minister of Foreign Affairs, the Procureur du Roi considered it inappropriate to prosecute the matter, having regard to the fact that the act was ‘perhaps the consequence of a particular psychological state of the person concerned’. A doctor had in fact stated that he had prescribed medicine for him which could induce acute neuro-psychic excitement, and had considered that the act complained of must very probably be seen in the light of this circumstance. The medical officer to the institution gave the opinion that, although there could have been a deterioration in his mood and in his behaviour, his judgment and free will would appear to have been influenced to a lesser degree; in any case it had to be allowed that there were considerable extenuating circumstances. Taking account of these factors and of the previous behaviour of Mr X, the Audit Board decided on 12 April 1965 not to commence disciplinary proceedings against him but to warn him that a repetition of similar conduct would inevitably render him liable to disciplinary action.

— Further, the sending in November 1965 of an anonymous letter accompanied by numerous documents consisting of accusations against many members or servants of the Audit Board, enabled the latter to discover that these documents had been stolen from its premises and had been used to prepare this anonymous note. After a searching inquiry, described in the report and in view of the results of an expert's examination, the Board came to be convinced that Mr X was responsible for the theft of the documents and for the note.

It is in these circumstances that it commenced disciplinary proceedings against him both in respect of these two matters as well as in respect of the theft from the display stand. On this latter point, the report points out that the decision of the Board follows that taken previously by it ‘on the clear condition that the subsequent behaviour of Mr X should be beyond reproach’.

Not only did the applicant's conduct fall short of this requirement, but the Board points out in two of the matters complained of, a certain similarity (theft) showing the same type of moral confusion and misconduct. On the other hand the conditions in which the theft from the display stand was committed and which the report sets out, do not appear to indicate that the conduct was unpremeditated and due to acute excitement which the person concerned could not resist.

You know that in view of this report and after hearing Mr X, the Disciplinary Board gave a guarded opinion; although it took the view that one of the complaints concerning the applicant's conduct was not irrefutably proved, it nonetheless proposed that he be removed from his post.

But what must above all give us serious cause for thought is the decision of the Audit Board. The Board states that it had ‘come to the unanimous conclusion that the responsibility for the acts of which Mr X is accused must properly be attributed to him and that these acts which are very serious from a disciplinary point of view are evidence of a moral confusion and flagrant misconduct which present an obstacle to the continuing presence of this official in the service’.

That being so, the applicant relies on the infringement of Article 86 of the Staff Regulations which does not allow failure to comply with obligations under the Regulations to be punished, unless it be intentional or through negligence. Those instances of which he is accused, assuming them to be established, are, he says, attributable to the nervous illness from which he is suffering.

Let us here leave aside what particularly in the reply confuses the statements of the Disciplinary Board and those of the appointing authority. The argument of Mr X bears essentially on the theft committed by him in 1964 and which is explicable by the treatment which he was then receiving.

It is quite certain that an official cannot be the subject of a disciplinary action if the acts which he has actually carried out were done while he was not in full possession of his faculties. That is a general rule, but the competent authority has not normally to consider the question of the psychological state of the official and of its influence on his responsibility except when the problem is raised before it or when it has serious reasons to raise the question itself. It is necessary here to state first of all that during the disciplinary proceedings Mr X does not appear himself to have raised this submission in his defence. On the other hand the Audit Board did not ignore this aspect of the matter. In the report to the Disciplinary Board which I have just analysed, after referring to the various medical opinions given at the time, it considered that the circumstances in which the theft was committed did not disclose behaviour attributable to an irresistable impulse. This is an assessment arrived at by the author of the contested measure for which, in so far as it is not based upon a clearly incorrect opinion or is not vitiated by any other mistake of law, you cannot in the context of a dispute concerning legality, substitute your own point of view.

No doubt the contested decision itself is less exact, but this is not surprising since the Audit Board had already given full particulars in the report originating the proceedings. I do not think therefore that the criticism contained in the application should be accepted.

But another criticism was put forward during the oral proceedings in a more or less precise manner. It is the contradiction which is said to exist as to the position successively adopted by the institution on the theft from the display stand. Having decided in 1965 not to inflict disciplinary measures for this act, it included it in 1967 in the disciplinary proceedings commenced against Mr X. The contradiction is only apparent, since the Board had first of all decided to wipe the slate clean on the express condition that acts of the same type should not occur again. However, that condition was not fulfilled. Also I think that the practice followed in the present case does not fall under your case-law which, applying the rule non bis in idem, forbids the administrative authority to make the same matter the subject of two successive disciplinary proceedings (Judgment 5 March 1966 in Joined Cases 18 and 35/65, Gutmann v Euratom, [1966] E.C.R. 103 and judgment of 15 March 1967, same parties, Rec. 1967, p. 76). In the present case there was in fact only one set of proceedings.

From whatever point of view one considers it, the arguments set out do not appear to me to be of such a character as to establish the irregularity of the contested decision, which consequently takes away the whole basis of the claim for damages. In my opinion, therefore, the Court should:

— dismiss the application of Mr X;

( 1 ) Translated from the French.