CELEX: C1996/370/38
Language: en
Date: 1996-12-07 00:00:00
Title: Action brought on 18 October 1996 by Bernard Connolly against the Commission of the European Communities (Case T-163/96)

No C 370/ 18           I EN 1              Official Journal of the European Communities                                    7 . 12 . 96
Pleas in law and main arguments adduced in support:                   Action brought on 18 October 1996 by Bernard Connolly
                                                                          against the Commission of the European Communities
                                                                                               Case T-163/96 )
The applicant, Deputy Head of Division B/4 ( Common
Customs Tariff) of DG XXI, states that, by a memorandum                                        ( 96/C 370/38 )
of 29 October 1992, his immediate superior asked him to
take on , forthwith and until further notice, the duties of
Head of Division B/4, because he had to spend all of                                   (Language of the case: French)
his own time on the workload inherent in his duties as
head of SAMCOMM ( Sanctions Assistance Missions
Communication Centre ). Since 29 October 1992, the                    An action aganst the Commission of the European
applicant has therefore been performing the duties of Head            Communities was brought before the Court of First
of Division, as recorded in the two staff reports drawn up            Instance of the European Communities on 18 October 1996
since that date .                                                     by Bernard Connolly, resident at Everberg ( Belgium ),
                                                                      represented by Jacques Sambon and Pierre-Paul Van
                                                                      Gehuchten, both of the Brussels Bar, with an address for
On 18 October 1995 , the applicant requested the                      service in Luxembourg at the Chambers of Louis Schiltz, 2
Commission to appoint him formally as temporary Head of               Rue du Fort Rheinsheim .
Division and to grant him the differential allowance
provided for by Article 7 ( 2 ) of the Staff Regulations . That
request was rejected. In response to the complaint lodged             The applicant claims that the Court should :
by. the applicant against that rejection, the Commission
gave him the temporary posting, but only from 1 August                — annul the suspension decision of 27 September 1995 ,
1996 .
                                                                      — annul the opinion of the Disciplinary Board of
The applicant's main plea contesting that decision is that                 7 December 1995 ,
Article 7 ( 2 ) of the Staff Regulations was infringed . He
contends      that all    the material  conditions  under that
provision for the grant of a temporary posting were met               — annul the appointing authority's decision of 16 January
from 29 October 1992 since, first, it has never been                       1996 , imposing on him the sanction of removal from
disputed that there continued to be an A 3 post in                         post, without reduction or withdrawal of pension
Division XXI/B/4 after the Head of Division had been                       rights,
assigned to SAMCOMM and, secondly, it is from that date
that the applicant was called upon by the appointing
authority, in this case his immediate superior, to take on a          — set aside the express rejection on 12 July 1996 of his
temporary posting. He claims, therefore, that the temporary                preliminary appeal of 7 March 1996 against the
posting should have taken effect on 29 October 1992 and                    opinion of the Disciplinary Board and the appointing
that he should have been paid the differential allowance                   authority's decision, referred to above,
from 30 January 1993 .
                                                                      — allow his claim for compensation by ordering the
Should the view be taken that the memorandum from his                      Commission to pay him Bfrs 7 500 000 , subject to
immediate superior cannot be regarded as a decision of the                 upward or downward adjustment in the course of the
appointing authority calling upon him to take on a                         proceedings, in respect of material damage, and Bfrs
temporary posting, the applicant claims in the alternative                 1 500 000 , subject as above, in respect of non-material
that the failure to assign him temporarily to the post of                  damage, in compensation for the loss and damage he
Head       of   Division    XXI/B/4  from  29   October    1992            has suffered by reason of the alleged irregular and
constitutes an infringement of Article 7 ( 2 ) of the Staff                unlawful conduct,
Regulations . Since all the requisite material conditions were
 satisfied, the Commission committed a manifest error in its
assessment of the circumstances of the case and breached its          — order the Commission to pay the costs.
 duty to have regard for his interests by failing to take the
necessary decision .                                                  Pleas in law and main arguments adduced in support:
The applicant points out, finally, that the Commission                Mr Connolly, who, in disciplinary proceedings brought
 should have seconded the Head of Division XXI/B/4 to
                                                                       against him for publishing a book without prior
 SAMCOMM, inasmuch as he manifestly satisfied the                      authorization , has already challenged the decisions taken to
 conditions for a secondment in the interests of the service
                                                                       suspend him under Article 88 of the Staff Regulations and
 within the meaning of the first indent of subparagraph ( a )          to refer the matter to the Disciplinary Board ( ] ), and has
 of the first paragraph of Article 37 of the Staff Regulations         also sought the annulment of the Board's opinion ( 2 ), asks
 ( official directed to serve temporarily in a post outside his        the Court, in the present case, to annul the Commission's
 institution ).                                                        decision of 16 January 1996 imposing on him the
                                                                       disciplinary sanction of removal from post without loss of
                                                                       pension rights .
 ---pagebreak--- 7 . 12 . 96             EN |               Official Journal of the European Communities                                        No C 370/ 19
1 . He alleges, first, infringement of the disciplinary                    second paragraph of Article 17 of the Staff Regulations
     procedure and of essential procedural requirements .                  infringes Article 10 (2 ) of the Convention on Human
                                                                           Rights, since it leads to a fundamental prohibition of
     He maintains that the contested decision was taken in                 publication which goes beyond the limitations
     breach of Articles 87 and 88 of the Staff Regulations                 envisaged by the latter provision.
     and of the general principles concerning policy in
     disciplinary matters, in that it was based on a fault —          3 . Finally, Mr Connolly alleges misuse of powers,
     an alleged conflict between the substance of his work                 maintaining that there is precise and consistent evidence
     and Commission policy — which was not raised in the                   to show that, in this case, the decision to remove him
     report of the authority which referred the matter to the              from his post was taken before any assessment of the
     Disciplinary Board.                                                   seriousness of the facts in the context of the disciplinary
                                                                           procedure .
     He also complains of a lack of reasoning in the
     Disciplinary Board's opinion and the appointing
     authority's decision and of infringement of Article 7 of         As regards his claim for compensation, Mr Connolly argues
     Annex IX to the Staff Regulations and of the rights of           that the irregularities of which he complains have caused
     the defence, in that neither the Board nor the                   him material and non-material damage. The material
     appointing authority took the trouble to deal with the           damage consists in his removal from his employment,
     pleas he raised in his defence .                                 resulting in the reduction and then the withdrawal of his
                                                                      remuneration; concomitantly, he has lost any chance of
     He also alleges infringement of the procedural                   obtaining the promotions which his qualifications and his
     provisions in Title VI of the Staff Regulations and              position warranted . The non-material damage consists,
     Articles 3 , 4, 5, 6 and 8 of Annex IX, in that: ( a ) both      first, in his being deprived of his legitimate expectation in
     the Disciplinary Board's opinion and the appointing              the pursuit of his career and, secondly, in the damage to his
     authority's decision were drawn up on the strength of            reputation and professional esteem by reason of the
     facts that were not the subject of a prior hearing; ( b ) no     accusations upheld against him, in respect of which he was
     report was made on the matter as a whole; (c ) the               not even asked to explain himself.
     decision was taken with the active participation of the
     chairman of the Board; and ( d ) the decision was taken          0 ) Case T-203/95 , OJ No C 351 , 30 . 12 . 1995 , p . 16 .
     without even a proper examination of his pleas in                (2 ) Case T-34/96, OJ No C 133 , 4 . 5 . 1996, p. 32.
     defence .
2 . As regards the content of the contested decision, Mr
     Connolly argues, first, that both the Disciplinary Board
     and the appointing authority regarded his receipt of                         Removal from the register of T- 19/96 ( ! )
     royalties for the work in question as contrary to
     Article 1 1 of the Staff Regulations, on the basis of an                                     ( 96/C 370/39 )
     interpretation of that provision whereby any
     remuneration from sources outside the institution is                              (Language of the case: English)
     prohibited without the prior authorization of the
     appointing authority. He considers that that                     By order of 22 October 1996 the President of the Fourth
     interpretation is contrary to Article 1 of Protocol No 1         Chamber of the Court of First Instance of the European
     of 20 March 1952 to the European Convention on                   Communities has ordered the removal from the register of
     Human Rights.                                                    Case T-19/96 : John Carvel and Guardian Newspapers Ltd
                                                                      v. Council of the European Union .
     He also considers that the interpretation given by the
     Disciplinary Board and the appointing authority to the           0 ) OJ No C 133 , 4 . 5 . 1996 .