1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 NOVEMBER 1981 MR GEIST , A SCIENTIFIC OFFICER ASSIGNED TO THE JOINT RESEARCH CENTRE AT ISPRA , BROUGHT AN ACTION CLAIMING : 1 . THE ANNULMENT OF : THE DECISION NOTIFIED TO THE APPLICANT ON 5 DECEMBER 1980 SUMMONING HIM TO RETURN TO THE ISPRA ESTABLISHMENT ; THE DECISION NOTIFIED TO THE APPLICANT ON 12 JANUARY 1981 INFORMING HIM THAT HIS SALARY WOULD BE SUSPENDED AFTER 1 JANUARY 1981 ; THE REFUSAL IN THE LETTER TO THE APPLICANT OF 21 JANUARY 1981 ; THE REFUSAL CONTAINED IN THE LETTER TO THE APPLICANT OF 21 JANUARY 1981 CONCERNING HIS REQUEST TO BE ALLOWED TO REMAIN IN THE NETHERLANDS FOR THE DURATION OF HIS ILLNESS . 2.AN ORDER THAT THE COMMISSION : PAY THE APPLICANT THE ARREARS OF REMUNERATION DUE , AMOUNTING , SUBJECT TO THE RIGHT TO ADJUST THE SUM DURING THE PROCEEDINGS , TO BFR 1 000 000 , TO BE INCREASED BY INTEREST AT SUCH RATE AS THE COURT REGARDS AS NORMAL ; AND PRO RATA AS REGARDS THE LENGTH OF TIME FOR WHICH SUCH PAYMENTS HAVE BEEN OUTSTANDING ; REIMBURSE THE APPLICANT FOR EACH AND EVERY EXPENSE , INCLUDING PAYMENTS MADE TO THE DOCTOR SELECTED BY HIM TO TAKE PART IN THE PROCEEDINGS BEFORE THE INVALIDITY COMMITTEE IN 1978 AND HIS OWN COSTS IN APPEARING BEFORE THE COMMITTEE .
2 MR GEIST TOOK UP DUTY ON 1 APRIL 1962 AT THE JOINT RESEARCH CENTRE AT PETTEN ( THE NETHERLANDS ) AS THE HEAD OF HYDRAULIC STUDIES AND IN 1963 WAS APPOINTED HEAD OF THE HYDRODYNAMICS AND MEASUREMENTS DIVISION . ON 1 JANUARY 1966 , AFTER A PERIOD OF SECONDMENT IN THE USA , HE WAS PROMOTED TO GRADE A 5 . FOLLOWING A CHANGE DECIDED UPON BY THE COUNCIL ON 15 JUNE 1965 IN THE 1962 RESEARCH PROGRAMME FOR WHICH MR GEIST CARRIED OUT THE WORK IN HIS SPECIAL FIELD , HE WAS FORCED TO DEVOTE HIMSELF TO NEW DUTIES DEFINED BY THE INSTITUTION . AFTER THE NEW CHANGE IN THE RESEARCH PROGRAMMES DECIDED UPON BY THE COUNCIL ON 22 AUGUST 1975 IT BECAME IMPOSSIBLE TO USE MR GEIST ' S ABILITIES IN THE ESTABLISHMENT AT PETTEN AND THE DIRECTOR-GENERAL OF THE CENTRE DECIDED ON 10 DECEMBER 1975 TO TRANSFER HIM AS FROM 1 MARCH 1976 TO THE HEAT TRANSFER AND FLUID MECHANICS DIVISION AT THE JOINT RESEARCH CENTRE AT ISPRA .
3 MR GEIST BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION TO TRANSFER HIM BUT THE ACTION WAS DISMISSED BY JUDGMENT OF THE COURT OF 14 JULY 1977 ( CASE 61/76 ( 1977 ) ECR 1419 ).
4 THE APPLICANT IN FACT WORKED AT THE ESTABLISHMENT AT ISPRA ONLY FOR THE PERIOD FROM 8 MARCH TO 22 JUNE 1976 , SINCE HIS NEW POSTING REPRESENTED IN HIS EYES A PROGRESSIVE REDUCTION IN HIS RESPONSIBILITIES AND OCCURRED AT A DIFFICULT PERIOD IN HIS PERSONAL LIFE . HE FELL ILL AND PRODUCED MEDICAL CERTIFICATES TO THE EFFECT THAT HIS STATE OF HEALTH DID NOT ALLOW HIM TO WORK IN ITALY .
5 IN SEPTEMBER 1977 , HOWEVER , AFTER MR GEIST HAD BEEN ABSENT FOR MORE THAN A YEAR , THE JOINT RESEARCH CENTRE AT ISPRA REFERRED THE MATTER TO THE INVALIDITY COMMITTEE PURSUANT TO ARTICLE 59 ( 3 ) OF THE STAFF REGULATIONS . ACCORDING TO THE OPINION GIVEN BY THAT COMMITTEE ON 26 JULY 1978 MR GEIST WAS FIT TO PERFORM HIS DUTIES . THE CHAIRMAN OF THE INVALIDITY COMMITTEE STATED , HOWEVER , THAT THE COMMISSION SHOULD ENDEAVOUR TO FIND A SOLUTION TO THE PROBLEM OF A FRESH POSTING FOR THE APPLICANT .
6 VARIOUS POSSIBILITIES OF ASSIGNMENT , INTER ALIA TO THE CENTRAL OFFICE OF THE COMMISSION IN BRUSSELS , WERE THEN CONSIDERED BUT CAME TO NOTHING .
7 FAILING AN OPPORTUNITY FOR REASSIGNMENT TO THE CENTRAL OFFICE AND IN VIEW OF THE APPLICANT ' S PROLONGED ABSENCE , THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE ASKED IN JUNE 1980 FOR A FRESH MEDICAL EXAMINATION TO BE ARRANGED FOR MR GEIST . FOLLOWING THAT EXAMINATION AND IN SPITE OF THE OPINION OF THE APPLICANT ' S PERSONAL DOCTORS , DR DE GEYTER , WHO HAD ALREADY BEEN CONSULTED IN 1978 , STATED IN A LETTER DATED 15 NOVEMBER 1980 TO THE HEAD OF THE COMMISSION ' S MEDICAL BRANCH THAT ' ' MR GEIST ' S ABSENCE FROM WORK IS NOT DUE TO MEDICAL REASONS ' ' AND CONFIRMED THAT THE OPINION GIVEN BY THE INVALIDITY COMMITTEE IN 1978 WAS STILL VALID .
8 IN A LETTER DATED 5 DECEMBER 1980 THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE , NOTING THAT MR GEIST WAS FIT FOR WORK AND THAT THERE SEEMED TO BE NO PROSPECT OF WORK FOR HIM IN BRUSSELS , INVITED HIM TO RESUME HIS DUTIES AT ISPRA . MR GEIST , IN RELIANCE UPON A CERTIFICATE FROM HIS OWN DOCTOR , DID NOT ACCEPT THAT SUGGESTION AND BY LETTER DATED 22 DECEMBER 1980 ASKED THE HEAD OF THE MEDICAL BRANCH AT ISPRA FOR PERMISSION TO STAY WITH HIS FAMILY IN THE NETHERLANDS DURING HIS SICK LEAVE .
9 BY LETTER DATED 12 JANUARY 1981 MR HANNAERT , THE HEAD OF THE ADMINISTRATION AND PERSONNEL DIVISION OF ISPRA , REFERRED TO THE APPLICANT ' S FITNESS FOR WORK ACCORDING TO THE REPORT MADE IN NOVEMBER 1980 BY DR DE GEYTER AND INFORMED MR GEIST THAT HE WAS ABSENT WITHOUT AUTHORIZATION AND THAT PURSUANT TO ARTICLE 60 OF THE STAFF REGULATIONS THE PAYMENT OF HIS SALARY WOULD BE SUSPENDED AS FROM 1 JANUARY 1981 . BY LETTER DATED 21 JANUARY 1981 MR GEIST WAS INFORMED THAT PERMISSION TO STAY IN THE NETHERLANDS WAS REFUSED .
10 BY LETTER DATED 11 FEBRUARY 1981 MR GEIST MADE A COMPLAINT , INTER ALIA AGAINST THE DECISION OF 5 DECEMBER 1980 REQUESTING HIM TO RETURN TO HIS POST AT ISPRA AND THE DECISION OF 12 JANUARY 1981 SUSPENDING PAYMENT OF HIS SALARY . IN THE SAME LETTER THE APPLICANT ASKED FOR PAYMENT OF HIS DOCTOR ' S FEES AND EXPENSES AND REIMBURSEMENT OF HIS OWN EXPENSES IN THE INVALIDITY PROCEEDINGS . THAT COMPLAINT WAS REJECTED BY THE COMMISSION ON 27 JULY 1981 . CONCLUSIONS DIRECTED AGAINST THE DECISION OF 5 DECEMBER 1980
11 IN THE APPLICANT ' S VIEW THAT DECISION , WHICH STATES IN THE RECITALS IN THE PREAMBLE THERETO THAT HE HAD REFUSED POSTS OFFERED TO HIM OUTSIDE ISPRA , IS BASED ON SUBSTANTIALLY INCORRECT FACTS . IN DISREGARDING THE ALLEGED UNDERTAKING TO FIND HIM A POST OUTSIDE THE JOINT RESEARCH CENTRE AT ISPRA THAT DECISION MOREOVER DISREGARDS THE PRINCIPLE OF CARE FOR THE WELFARE OF STAFF CONTAINED IN ARTICLE 24 OF THE STAFF REGULATIONS AND FRUSTRATES THE LEGITIMATE EXPECTATION WHICH MUST CHARACTERIZE RELATIONS BETWEEN THE ADMINISTRATION AND ITS OFFICIALS .
12 IT MUST BE OBSERVED IN THE FIRST PLACE THAT , CONTRARY TO THE APPLICANT ' S STATEMENTS , THE GROUNDS ON WHICH THE CONTESTED DECISION IS BASED DO NOT INCLUDE THE FACT THAT MR GEIST REFUSED ALL POSTS OFFERED TO HIM . ALTHOUGH THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE POINTED OUT THAT THE APPLICANT HAD REFUSED A FIRST POST , HE SUBSEQUENTLY CONFINED HIMSELF TO OBSERVING THAT THE APPLICANT ' S RESERVATIONS AND HIS RETICENT ATTITUDE HAD LED THE DIRECTOR RESPONSIBLE TO WITHDRAW THE OFFER OF A SECOND POST MADE TO HIM . NEITHER THE DOCUMENTS IN THE FILE NOR THE ARGUMENTS BEFORE THE COURT HAVE SHOWN THOSE OBSERVATIONS TO BE WRONG . THE CONTESTED DECISION CANNOT THEREFORE BE REGARDED AS BASED ON SUBSTANTIALLY INCORRECT FACTS AND THE FIRST SUBMISSION MUST THEREFORE BE DISMISSED .
13 IN THE SECOND PLACE IT SHOULD BE RECALLED THAT IN THE JUDGMENT OF 14 JULY 1977 (( 1977 ) ECR 1419 ) THE COURT HELD THAT MR GEIST ' S POSTING TO THE JOINT RESEARCH CENTRE AT ISPRA HAD BEEN DECIDED FOR REASONS WHICH WERE NOT ALIEN TO THE INTERESTS OF THE SERVICE AND THAT THE NEW POST TO WHICH HE WAS APPOINTED WAS BETTER SUITED TO THE EXERCISE OF HIS SKILLS THAN THE PREVIOUS ONE AND DID NOT INVOLVE ANY DOWN-GRADING . IN THE SAME JUDGMENT THE COURT ALSO HELD THAT OFFICIALS OF THE COMMUNITY MUST BE EXPECTED TO BEAR THE DOMESTIC INCONVENIENCES AND FINANCIAL DIFFICULTIES CAUSED THEM BY A TRANSFER .
14 IT IS APPARENT MOREOVER FROM THE DOCUMENTS IN THE FILE THAT ALTHOUGH THE COMMISSION MADE EFFORTS TO TAKE MR GEIST ' S PERSONAL PREFERENCES INTO ACCOUNT AND TO FIND HIM ANOTHER POST , IT NEVER WITHDREW THE DECISION TO TRANSFER HIM TO ISPRA AND NEVER UNDERTOOK TO DISPENSE HIM FROM THE DUTY TO TAKE UP HIS POST UNTIL A NEW TRANSFER MIGHT BECOME POSSIBLE . IT IS ALSO ESTABLISHED THAT FROM JULY 1978 MR GEIST COULD NOT VALIDLY PUT FORWARD ANY MEDICAL REASONS TO JUSTIFY HIS ABSENCE AND THAT THE COMMISSION NEVERTHELESS WAITED UNTIL DECEMBER 1980 BEFORE GIVING HIM FORMAL NOTICE TO RETURN TO HIS POST .
15 IN THOSE CIRCUMSTANCES IT CANNOT BE ACCEPTED THAT IN REQUESTING MR GEIST TO RETURN TO DUTY WITHOUT DELAY THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE DISREGARDED THE PRINCIPLE OF CONCERN FOR THE WELFARE OF OFFICIALS OR HIS LEGITIMATE EXPECTATION AND THE SECOND PART OF THE FIRST SUBMISSION MUST THEREFORE BE DISMISSED .
16 THE CONCLUSIONS DIRECTED AGAINST THE DECISION OF 5 DECEMBER 1980 MUST THEREFORE BE DISMISSED .
17 IN CONSEQUENCE IT IS NECESSARY ALSO TO DISMISS THE CONCLUSIONS DIRECTED AGAINST THE REJECTION OF THE REQUEST OF 22 DECEMBER 1980 FOR PERMISSION TO STAY AWAY FROM ISPRA WHILST HE WAS SICK . CONCLUSIONS DIRECTED AGAINST THE DECISION OF 12 JANUARY 1981
18 IN SUPPORT OF HIS CLAIM THE APPLICANT MAINTAINS IN THE FIRST PLACE THAT THE CONTESTED DECISION , WHICH AMOUNTS TO A PENALTY , COULD BE TAKEN ONLY BY THE COMMISSION OR THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE AND NOT BY THE HEAD OF THE ADMINISTRATION AND PERSONNEL DIVISION OF THE ISPRA ESTABLISHMENT .
19 ARTICLE 60 OF THE STAFF REGULATIONS PROVIDES AS FOLLOWS : ' ' EXCEPT IN CASE OF SICKNESS OR ACCIDENT , AN OFFICIAL MAY NOT BE ABSENT WITHOUT PRIOR PERMISSION FROM HIS IMMEDIATE SUPERIOR . WITHOUT PREJUDICE TO ANY DISCIPLINARY MEASURES THAT MAY APPLY , ANY UNAUTHORIZED ABSENCE WHICH IS DULY ESTABLISHED SHALL BE DEDUCTED FROM THE ANNUAL LEAVE OF THE OFFICIAL CONCERNED . IF HE HAS USED UP HIS ANNUAL LEAVE , HE SHALL FORFEIT HIS REMUNERATION FOR AN EQUIVALENT PERIOD . IF AN OFFICIAL WISHES TO SPEND LEAVE ELSEWHERE THAN AT THE PLACE WHERE HE IS EMPLOYED HE SHALL OBTAIN PRIOR PERMISSION FROM THE APPOINTING AUTHORITY . ' '
20 IT IS TO BE OBSERVED THAT THE EFFECT OF THOSE PROVISIONS IS THAT ALTHOUGH THE SECOND PARAGRAPH OF ARTICLE 60 REQUIRES PERMISSION TO BE OBTAINED FROM THE APPOINTING AUTHORITY IF AN OFFICIAL WISHES TO SPEND HIS SICK LEAVE ELSEWHERE THAN AT THE PLACE WHERE HE IS EMPLOYED , THE FIRST PARAGRAPH THEREOF DOES NOT SPECIFY THAT IT IS THE APPOINTING AUTHORITY WHICH MUST DECIDE THAT THE SALARY OF AN OFFICIAL ABSENT WITHOUT AUTHORIZATION SHALL BE FORFEIT IF HE HAS USED UP HIS ANNUAL LEAVE .
21 CONTRARY TO THE APPLICANT ' S CONTENTION , THE DECISION TO TERMINATE PAYMENT OF SALARY IS NEITHER A DISCIPLINARY MEASURE , WHICH WOULD REQUIRE ACTION ON THE PART OF THE COMMISSION ITSELF , NOR AN EQUIVALENT MEASURE . THE EFFECT OF THE PROVISIONS SET OUT ABOVE IS THAT ANY UNAUTHORIZED ABSENCE WHICH IS DULY ESTABLISHED ON THE PART OF AN OFFICIAL WHO HAS USED UP HIS ANNUAL LEAVE RESULTS IN HIS AUTOMATICALLY FORFEITING HIS REMUNERATION . IN THOSE CIRCUMSTANCES IT MAY BE ACCEPTED THAT THE AUTHORITY EMPOWERED TO ESTABLISH UNAUTHORIZED ABSENCE AND TO ORDER THAT PAYMENT OF SALARY BE TERMINATED IS THE SAME AS THAT REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 60 , THAT IS TO SAY THE APPOINTING AUTHORITY .
22 IT APPEARS FROM THE FILE THAT BY DECISION OF 20 NOVEMBER 1979 THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE DECIDED THAT THE POWERS DEVOLVING UPON THE APPOINTING AUTHORITY BY THE SECOND PARAGRAPH OF ARTICLE 60 OF THE STAFF REGULATIONS SHOULD BE EXERCISED IN RESPECT OF OFFICIALS IN MR GEIST ' S CATEGORY ASSIGNED TO THE ISPRA ESTABLISHMENT BY THE DIRECTOR OF THE ESTABLISHMENT AND EMPOWERED HIM TO SUB-DELEGATE HIS POWERS TO THE HEAD OF THE PERSONNEL AND ADMINISTRATION DIVISION . IT FOLLOWS THAT THE CONTESTED DECISION BY WHICH THE HEAD OF THE PERSONNEL AND ADMINISTRATION DIVISION AT ISPRA , ACTING BY DELEGATION FROM THE DIRECTOR , FOUND THAT THE APPLICANT ' S ABSENCE WAS UNAUTHORIZED AND DECIDED THAT PAYMENT OF HIS SALARY SHOULD BE TERMINATED WAS TAKEN BY A COMPETENT AUTHORITY . THE FIRST SUBMISSION MUST THEREFORE BE DISMISSED .
23 IN THE SECOND PLACE THE APPLICANT MAINTAINS THAT THE ADMINISTRATION COULD NOT LAWFULLY FIND THAT HIS ABSENCE WAS UNAUTHORIZED SO THAT PAYMENT OF HIS SALARY MIGHT BE TERMINATED . HE ALLEGES THAT HE HAD PRODUCED MEDICAL CERTIFICATES TO THE EFFECT THAT HIS STATE OF HEALTH DID NOT ALLOW HIM TO RETURN TO WORK AND THAT IF THE ADMINISTRATION DOUBTED THEIR VALIDITY IT SHOULD , BEFORE TAKING ANY UNILATERAL DECISION , EITHER HAVE REQUIRED HIM TO UNDERGO A MEDICAL EXAMINATION PURSUANT TO ARTICLE 59 ( 1 ) OF THE STAFF REGULATIONS OR HAVE REFERRED THE MATTER TO THE INVALIDITY COMMITTEE PURSUANT TO ARTICLE 59 ( 3 ).
24 IN THAT RESPECT IT SHOULD BE BORNE IN MIND THAT AFTER TAKING NOTE OF THE OPINION OF MR GEIST ' S OWN DOCTOR GIVEN ON 13 NOVEMBER 1980 AND AFTER EXAMINING HIM PERSONALLY , DR DE GEYTER CONCLUDED ON 15 NOVEMBER 1980 THAT MR GEIST ' S ABSENCE FROM WORK WAS NOT DUE TO MEDICAL REASONS BUT TO THE FACT THAT IT HAD NOT BEEN POSSIBLE TO RESOLVE THE CONFLICT WHICH HAD EXISTED FOR YEARS BETWEEN HIM AND HIS ADMINISTRATION . THERE IS NOTHING IN THE FILE TO INDICATE THAT THAT MEDICAL EXAMINATION WAS NOT PROPERLY CONDUCTED . IT WAS THEREFORE FOR THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE TO INVITE MR GEIST , AS HE DID BY HIS LETTER OF 5 DECEMBER 1980 , TO RESUME HIS DUTIES AT ISPRA WITHOUT DELAY .
25 IT IS TRUE THAT FOLLOWING THAT WARNING THE APPLICANT ' S OWN DOCTOR WROTE ON 14 DECEMBER 1980 TO THE HEAD OF THE MEDICAL BRANCH AT THE ISPRA CENTRE A LETTER INFORMING HIM THAT UPON HIS ADVICE MR GEIST WOULD NOT BE GOING TO ISPRA BECAUSE HE WAS NOT FIT TO WORK THERE . THAT LETTER WAS THUS CONFINED TO GIVING AN OPINION OF WHICH DR DE GEYTER WAS ALREADY AWARE ; IT CONTAINED NO PRECISE MEDICAL DIAGNOSIS AND DID NOT MENTION ANY NEW FACTOR AFFECTING THE APPLICANT ' S HEALTH SUBSEQUENT TO THE MEDICAL EXAMINATION OF THE PREVIOUS 15 NOVEMBER . THE HEAD OF THE ADMINISTRATION AND PERSONNEL DIVISION AT ISPRA THEREFORE RIGHTLY TOOK THE VIEW THAT THE LETTER COULD NOT JUSTIFY MR GEIST ' S ABSENCE NOR COULD IT NECESSITATE A FRESH MEDICAL EXAMINATION OR A REFERENCE TO THE INVALIDITY COMMITTEE . ALTHOUGH THE APPLICANT RELIES ON THE PRODUCTION OF VARIOUS ADDITIONAL MEDICAL CERTIFICATES DATING FROM OCTOBER 1981 , THEY ARE SUBSEQUENT TO THE CONTESTED DECISION AND IN ANY EVENT DO NOT AFFECT ITS VALIDITY .
26 IN THOSE CIRCUMSTANCES THE SUBMISSIONS AND CONCLUSIONS DIRECTED AGAINST THE DECISION OF 12 JANUARY 1981 TERMINATING THE PAYMENT OF MR GEIST ' S SALARY MUST BE DISMISSED .
27 IN CONSEQUENCE THE CLAIM THAT THE COMMISSION BE ORDERED TO PAY MR GEIST THE REMUNERATION WHICH HE HAS NOT RECEIVED SINCE 1 JANUARY 1981 MUST ALSO BE DISMISSED . THE CONCLUSIONS TO THE EFFECT THAT THE COMMISSION BE ORDERED TO REIMBURSE TO THE APPLICANT ALL THE COSTS INCURRED IN CONNECTION WITH THE PROCEEDINGS OF THE INVALIDITY COMMITTEE IN 1978
28 DURING THE ORAL PROCEDURE THE APPLICANT STATED THAT AFTER BRINGING HIS ACTION HE RECEIVED FROM THE COMMISSION THE REIMBURSEMENT REQUESTED . THE CONCLUSIONS MENTIONED ABOVE HAVE THEREFORE LOST THEIR PURPOSE AND THERE IS NO NEED FOR THE COURT TO ARRIVE AT A DECISION THEREON .