C-32/62

2. Appeals by officials—Dismissal on disciplinary grounds—Absence of preliminary notification — Apportionment of costs — Exceptional circumstances

(Rules of Procedure, Articles 69 (3), first subparagraph, and 70)

1. According to a generally accepted notify the applicant formally of the

principle of law in force in the facts leading to dismissal which, al­

Member States of the EEC, Com­ though accompanied by notice, is

munity institutions must allow their based on disciplinary grounds, con­

Chambers of Tean Welter, advocate of Luxembourg

applicant,

Council of the European Economic COMMUNITY , represented by its Legal

Adviser, Raffaello Fornasier, acting as Agent, with an address for service

inLuxembourg at the office of Jacques Leclerc at the Secretariat of the

Council, 3 rue Auguste-Lumière, defendant,

W. Strauß, Judges,

Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts have applied for membership of those

The letter of appointment contained a by Mr Feipel. clause which provided that 'this agree­ The was a repetition of this conduct

ment . . . may be terminated at any during the negotiations on the night of time by either party on one month's 4 to 5 August, as is confirmed by several notice'. of your colleagues. While in this con­

By a letter dated 8 August 1962 from dition you were responsible for several

the Secretariat of the Conference, Mr ill-considered actions which might have Alvis was informed that his contract had serious consequences.

was terminated as from 9 August 1962. In these circumstances, you are reques­

The letter continued as folows: ted not to report for work as from

Conclusions II — of the (a) As regards the first incident parties The that on 16 applicant asserts

February 1962 Mr Newing, a British In his conclusions of 2 October 1962 servant of the Secretariat of the Con­

the applicant requests the Court: ference, entered his office and criticized to establish as fact and to rule that the him for certain errors of translation, 'silly' notice communicated to the applicant on calling him in front of Mr Michael 8 August 1962 is unjustified and damag­ Powell. After examining with competent ing and that it constitutes a wrongful colleagues the translation to which ex­

act giving rise to compensation; ception had been taken, the applicant

to order the defendant to withdraw the came to the conclusion that only one

said notice in the same conditions as of the criticisms made by Mr Newing those in which it was given; was iustifiable. to order the defendant to pay to the The applicant states that the letter sent

The defendant contends that the Court threatening tone used in the letter to

should: Mr Newing, copies of which had also

been sent to the Head of the Transla­ 'rule that both the principal and second­ tion Department and to Mr Alvis's ary claims of the applicant are un­

lawyers in London. The defendant states founded; that Mr Newing had used the word accordingly, dismiss the application; 'silly' to describe not Mr Alvis himself the applicant to costs.'

order pay the but only his errors of translation.

(b) As regards the second incident III — Submissions and argu­

the three acts alleged in the letter of department (Mr Buyken) and his secre­

dismissal to have been committed by tary (Miss Potz) one evening when he the applicant 'are only individual mani­ was detained until 9.30 p.m. without festations of a general level of conduct dinner. Following this protest, which

on which its overall assessment of Mr was attributed to his alleged state of

Alvis was based'. intoxication, the applicant was called

The applicant contends that no refer­ upon by Mr Feipel to explain his con­

ence was made to this general assess­ duct. ment either in the letter of dismissal or The defendant again states that on the

it was well-known in the Translation nesses were questioned about incidents Department of the Conference that Mr which are not specified in the letter of

Alvis drank during working hours, as dismissal. Furthermore, the applicant

fact his de­ is shown by the that on states that, contrary to the view taken

parture the messenger had to remove by the defendant, the evidence of Mr about twenty empty bottles, mainly of Van Audenhoven and Mr Andrien does whiskv and brandy. not show that it was the applicant who

In his reply the applicant, while admit­ was responsible for throwing three

ting that 'on occasions when kept in glasses. On this point the conclusions

ception in honour of Mr Battin only throwing incident and that the latter two bottles of whisky had been served. had admitted dropping a glass. It has not been possible to identify a third (c) As regards the third incident person who appears to have been The 'ill-considered actions which might present on the occasion. have had consequences'

serious referred Furthermore, the applicant points out to in the dismissal consist, as letter of that there are several inaccuracies in the the defendant indicates in its statement statement given by Miss Potz regarding of defence, throwing of four in the the incident of 11 July 1962. or five empty glasses from the gallery of the ninth floor into the main entrance Rue des 2. On the damaging and prejudicial of the office block in the

Quatre-Bras where several journalists nature of the dismissal were gathered.

(a) The applicant criticizes the public The applicant expressly denies this. He and formal way in which he was noti­

the de­ emphasizes moreover that, as fied by the defendant of the decision fendant itself admits, this incident, like to dismiss him. He had been summoned, the earlier one, is alleged to have occur­ flanked by two colleagues, into the office red outside working hours. of a superior, who formally handed him According to the defendant, the respons­

the letter of 8 August, without allowing ibility of Mr Alvis for this incident is him to give anv explanation.

The applicant observes that, since the the allegations made against him in letter gave no details on which he could sufficient detail. Moreover, considering base such observations, it would have the errors in the dates in the second

been difficult for him to make any. In and third paragraphs of the letter of

particular, as regards the third incident, 8 August (the second incident mentioned he states that, in order for him to be therein actually occurred after and not

able to defend himself, the details given before the first incident, while the third

by the defendant only in the statement occurred during the night of 3 to 4 of defence should also have been given August and not 4 to 5 August, as is in letter in incidents de­ the of dismissal. stated the letter), the

scribed therein must be disregarded a (b) In response to the applicant's com­

The defendant replies that the applicant ligation to give reasons for a decision

has not shown that any damage has of dismissal only where the contract is been suffered. Moreover, while recog­ terminated without notice (Articles 74

nizing that the applicant's career in and 76 of the Conditions of employ­

international agencies is finished as a ment of other servants of the Commun­

result of the charges made against him ities). The defendant gave reasons for

JUDGMENT OF 4. 7. 1963 — CASE 32/62

consolidated Laws). By an Order dated 11 March 1963, the dis­ First Chamber of the Court decided to Moreover, even if the reasons for missal given in the letter could be re­ examine the following witnesses: garded as unjustified or insufficient, the Messrs G. Andrien, only compensation under Belgian law G. Battin, open to the applicant on termination J. Buyken, of the contract would be payment in L. Bouveroux, lieu of notice of a sum equal to his H. Cohen, remuneration for that period. This pay­ A. Dubois, ment has already been made (Article A. Feipel, 20 of the consolidated Laws and the A. Ferrari, Cour d'Appel, Brussels, 15 October Y. Galichon, 1949, PAS. 1949, II, p. 110). Miss F. Hogard, Mr P. Marlow, IV — Procedure Miss G. Potz,

The procedure followed the norma Mr G. Van Audenhoven.

course. With the exception of Mr J. Buyken and Mr H. Cohen who were absent, V —

Measures of inquiry the First Chamber of the Court exam­

By an Order dated 1 February 1963, ined these witnesses at the hearing on the First Chamber of the Court decided 20 March 1963.

Grounds of judgment

giving him any opportunity of submitting his defence, by informing him of the incidents on which his dismissal was based. The defendant does not dispute this claim.

ALVIS v COUNCIL

According to a generally accepted principle of administrative law in force in the Member States of the European Economic Community, the adminis­

trations of these States must allow their servants the opportunity of

replying to allegations before any disciplinary decision is taken concerning them.

This rule, which meets the requirements of sound justice and good

submit his defence before being dismissed.

Nevertheless the Court, in exercise of its unlimited jurisdiction under

Article 91 of the Staff Regulations of officials of the European Economic

Community, considers that, in this case, the failure of the defendant to

observe this obligation is not sufficient to annul the decision of dismissal. This failure does not justify the award of damages to the applicant, but should nevertheless affect the apportionment of costs between the parties.

In fact, in the absence of a procedure allowing him to be heard, the

applicant might have made, as he was expressly invited to do.

The applicant might claim to have suffered from the publicity given to

the decision dismissal only if the of allegations made against him by the defendant proved to be unfounded.

JUDGMENT OF 4. 7. 1963 — CASE 32/62

2. On the reasons for the dismissal

The letter of dismissal alleges that the applicant was involved in three

that at the time when the glasses were thrown, between 8.30 and 8.55 p.m., the applicant was in an obvious state of intoxication on the balcony of the ninth floor of the block in which his office was situated, and that glasses

were thrown from this balcony into the Rue des Quatre-Bras or in front of the main entrance of the office block.

Although it is not certain that the applicant himself threw these glasses, it is at least clear that he was at that moment on the balcony and that he has done nothing to show that he was not responsible for these incidents.

In all the circumstances therefore, the applicant can reasonably be regarded as in part responsible for this act which was capable both of injuring third parties and of bringing discredit upon the European institutions.

This view is by the fact that the applicant has failed to provide, confirmed

either to superiors or to the Court, the least indication or his immediate information as to what he was doing and where he was on the evening of 3 August 1962, between 8.30 and 8.55 p.m.

ALVIS v COUNCIL

Even though the administration at that time saw fit to overlook this

incident, its gravity was nevertheless pointed out to the applicant.

It appears from the foregoing that the truth of the facts on which the

contested decision is based has been sufficiently established in law, and that they reveal an attitude and conduct incompatible with the functioning

of the European institutions.

the Communities, institutions shall bear their own costs.

Under the terms of Article 69 (3) of the above Rules, where the circum­

stances are exceptional, the Court may order that the parties bear their

own costs in whole or in part.

In this case, as stated above, the failure of the defendant to allow the

applicant to submit his defence before his dismissal has undoubtedly encouraged the applicant to make an application to the Court. It is therefore reasonable to order the defendant to pay four-fifths of the balance of the costs.

THE COURT (First Chamber)

hereby:

I. Dismisses Application 36/62 as unfounded;

2. Orders the costs incurred by the defendant to be paid by that

party. The balance of the costs shall be apportioned, and shall be borne as to four-fifths by the defendant and as one-fifth by the

applicant.

given at any time by either party. How­

I I the first three months were con­ ever, This case has been given such extensive sidered as a 'trial period'

after which

treatment in both the written and the the employment became 'definitive'. I The de­ oral procedures that am prompted to contract was terminated by a

limit my own account to the very mini­ cision dated 8 August 1962, signed by mum. This applies in particular to cer­ the Director-General, in the form of a

tain questions of fact on which you notice of dismissal taking effect from have all had an opportunity to form an the following day and giving reasons

and third countries which had applied 1962, Mr Alvis sought first the annul­

for membership of those Communities. ment of the decision taken on 8 August

1 — Translated from the French.