C-28/65

JUDGMENT OF THE COURT (FIRST CHAMBER) 15 DECEMBER 19661

Fulvio Fonzi

v Commission of the European Atomic Energy Community

Case 28/65

Summary

1. Procedure — Extension of time-limits on account of distance — Applicant's place of residence to be taken into account (Rules of Procedure, Annex II, Article 1)

applicant,

v

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COM UNITY, represented by its

1 — Language of the case: Italian.

JUDGMENT OF 15. 12. 1966 — CASE 28/65

Legal Adviser, Antonio Marchini-Camia, acting as Agent, with an address for service in Luxembourg at the office of Henri Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz,

THE COURT (First Chamber)

composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and R. Lecourt, Judges,

Advocate-General: K. Roemer

Registrar: H. J. Eversen, Deputy Registrar

gives the following

JUDGMENT

the Directorate-General for Personnel and 2. Rule as to costs in accordance with the Administration in Brussels. requirements of Article 70 of the Rules of As early as 19 October 1964 the applicant Procedure.' wrote to the Director-General for Personnel C — In his observations on the objection of and Administration to say that while he inadmissibility the applicant claims that the would comply with the abovementioned Court should: decision he intended to exercise the rights of '1. Reject the defendant's preliminary ob appeal accorded him by the Staff Regula jection or reserve its decision for the final tions. judgment; Accordingly he made an appeal through the 2. Order the defendant to pay the costs of official channels on 10 December 1964, the preliminary objection.' which was rejected by a decision of the D — In its statement of defence the defend EAEC Commission taken on 3 February ant contends that the Court should: 1965, and notified in a letter dated 5 Feb

Order the applicant to pay the costs in accordance with the requirements of II — Conclusions of the parties Article 70 of the Rules of Procedure.' E — In his reply the applicant: Whilst reserving the right to amplify his 'On all those grounds and subject to all submissions and arguments at a later stage, reservations, including any measures of to introduce new submissions and argu inquiry which the Court may call for after ments if necessary, and to produce new the Commission's rejoinder, repeats the documents and to call for measures of conclusions he has submitted in the applica inquiry should the need arise, tion but modifies head 4 thereof, by sub A — the applicant claims in his application stituting for it the following: that the Court should: '4. Order the defendant to pay the applica

4. Order the defendant to pay the applicant is yet to be caused as a result of the false the subsistence allowance for an official statements made concerning the content on mission for the whole period during of the minutes of the Commission's which, consequent upon the above deci 249th meeting on 24 June 1964,' and adds sion, he worked at Brussels; the following conclusions as regards 5. Order the defendant to pay the costs of measures of inquiry: the application.' '4. (a) Summon the following witnesses to B — The defendant contends in an objection be heard: of inadmissibility that the Court of Justice B. J. Asbeck-Brusse, Paule Marc van

JUDGMENT OF 15. 12. 1966 — CASE 28/65

grounds therein stated; likewise Mr francs as compensation for the non- Chatenet, the President, Mr Medi, the material and material injury which Vice-President, Messrs de Groote, Sas­ has been and will continue to be sen and von Moltke, Members of the caused as a result of the false state­ Commission, and Mr Vernaeve, the ments made concerning the content Secretary, to confirm if need be the of the minutes of the Commission's authenticity of the text of the resolution 249th meeting of 24 June 1964; regarding the applicant adopted at the (b) The request made in the second part Commission's 249th meeting held in of the new head 4 (a) which appears Brussels on 24 June 1964;' and explains for the first time in the reply, in further, as regards head 5, that the order which the applicant requests that the for the defendant to pay the costs of this Court hear as witnesses Mr P. action should be extended to cover the Chatenet, the President, Mr Medi, costs of Application No 28/65 R for the the Vice-President, Messrs de Groo­ adoption of an interim measure and the te, Sassen and von Moltke, Members proceedings which resulted from the pre­ of the Commission, and Mr Ver­ liminary objection made by the defend­ naeve, the Secretary, to confirm if ant.' need be the authenticity of the text of F — In its application on a procedural issue the resolution regarding the appli­ of 15 January 1966 the defendant claims that cant adopted at the Commission's the Court should: 249th meeting held in Brussels on 24 June 1964; '1. Exclude from the proceedings the draft of the minutes of the Commission's 5. Take note that the defendant leaves to

3. In addition, exclude from the proceed­ 'Dismiss the preliminary objection without ings the following documents, annexed going into the substance of the case, keep by the applicant to his reply: the time-limit lodging the defendant's re­ — a copy of a report by a private detec­ joinder to the date already fixed and order tive agency on the activities of Mr the defendant to pay the entire costs.' Gazzano prior to his entering employ­ H — In its rejoinder the defendant contends ment with Euratom (Schedule 22 to that the Court should: the reply); '1. Declare the application inadmissible; — a telex message from Mr Barthélemy failing that, declare inadmissible the new to Mr Funck of 16 October 1964 conclusions introduced by the appli­ (Schedule 34 to the reply); cant's reply and exclude from the file of 4. Declare inadmissible the following new the case the documents annexed to the requests made by the applicant in his reply which have no bearing on the pres­ reply: ent issue; (a) The request presented in the latter 2. Alternatively, dismiss the application as part of the new head 4, introduced by unfounded; his reply, in which the applicant 3. Order the applicant to pay the costs, sub­ requests that the defendant be or­ jects to the requirements of Article 70 of dered to pay damages of 600 000 the Rules of Procedure.'

FONZI v COMMISSION

It through official channels does not affect the points out that the decision of 3 February time-limit for introducing an appeal to the 1965 dismissing the appeal through official Court; second, the appeal through official channels refused on this ground to grant channels suspends the operation of the the request for a mission order which it con time-limit; and third, the appeal through tained. Thus the applicant could no longer official channels interrupts it. believe, after the rejection of this appeal, In the case of the first possibility, it says, the from which the period for lodging an appeal period for lodging an appeal to the Court to the Court began to run, that he was in expired on 26 January 1965, and in the Brussels on mission. Consequently the second on 26 March 1965. period for lodging the appeal expired three In the third case, the defendant calculates months and two days after 7 February 1965, the period as follows: on 7 February 1965, that is to say, on 10 May 1965, and the the day on which he was notified of the application was only lodged on 12 May decision dismissing his appeal through offi 1965, that is to say, two days late. cial channels, the applicant's habitual res Lastly the defendant recalls, as a further idence was in Belgium, which means that point, that in its preliminary objection, the the extension of the period on account of decision on which the Court has reserved distance amounts to two days. Accordingly, for the final judgment, it asked that some of the period of three months and two days the conclusions formulated for the first starting the day after notification expired time in the reply be declared inadmissible,

business. This is proved by the compulsory first-mentioned decision, are those of lack of requirement that an official be assisted by competence, infringement of an essential an advocate before the Court (Rules of procedural requirement (failure to state Procedure, Article 58), the fact that the reasons), infringement of the Treaty and of pleadings are signed by the advocate (ibid, the Staff Regulations of officials, and misuse Article 37) and the right of the parties to be of powers. assisted by an advocate resident in a country He also claims payment of the daily sub-

1. Lack of competence, failure to state rea applicant's arguments in support of his sons, infringement of the Treaty and of claim that the Staff Regulations were the Staff Regulations of officials infringed. Replying to the arguments presented by the The applicant states that the decision of 7 applicant in the course of his appeal through October 1964 assigning him to a place of official channels of 10 December 1964 work should, since it concerns the applicant (Schedule 5 to the application) the defend and was contrary to his wishes, have stated ant explains that it never intended to sep the reasons for it in accordance with Article arate the permanent post from the duties 24 (1) of the Staff Regulations. attributed to it, that it did not confuse the Secondly, the same decision, in so tar as it said post with the basic post and that it did assigns the applicant to a new place while not, finally, identify it with a mere post preserving his status under the Staff Regu under the budget scheme. lations, in other words the post he occupied The defendant says that assigning the appli at Ispra, infringes Article 1, 3, 4, 5, 7, 11, 27, cant's post to the purchasing department in 35, 36, 37, 92 and 102 of the Staff Regula

location. tial procedural requirements, and to a mis To the alleged infringement of Article 35 of use of powers. the Staff Regulations on the ground that The defendant replies, first as regards the this provision does not expressly mention, complaint about the failure to state the in its list of situations, assignment in the reasons for the decision, that according to same post to a different place of work, the Article 25 of the Staff Regulations only defendant replies that such an assignment is decisions adversely affecting an official have not a particular situation under the Staff to state the reasons on which they are based. Regulations; that is, changing the place of The case-law of the Court shows that any work does not in itself constitute an alter 'decision adversely affecting an official' ation of the official's situation.

FONZI v COMMISSION

duties which it contains reveals that those memorandum No 15 of 17 April 1964 on the duties are at the same level and of the same organization of the purchasing department nature as those he performed at Ispra and in the Directorate-General of Personnel and that they are in accordance with the appli Administration (Schedule 5 to the reply) cant's general standard, scientific qualifica shows, according to the applicant, that the tions and experience. duties assigned by the disputed decision It adds that if any adjustment at all of the bear no resemblance to those of the basic manner in which duties are performed so as post to which his official position corre to correspond to developments in the de

form those duties. Paragraphs (1) and (4) of mission would be responsible to the Council Article 5 of the Staff Regulations mean that of Ministers for any infringement of budg it is unlawful to assign the applicant, that is, etary regulations committed by it, but such to impose on him whilst keeping him in the an infringement would not be an act ad same permanent post, duties which are new versely affecting the applicant and could and different from those normally attached not, therefore, be the subject of an applica to his permanent post.

other hand. He concludes that the duties Since such consultation was not first held, assigned to him in Brussels by the disputed the contested decision is defective not only decision are fundamentally different from because it infringes the Regulations but also those of the official post in which the de because the Commission lacks the requisite fendant claims he was kept. He adds that powers. the definition of duties for a scientific officer The applicant points out that the contested

decision was criticized by the Audit Board edged in an internal memorandum from the in its accounting report for the financial administration dated 2 June 1965 contain­ year 1964 (Schedule 6 to the reply) for ing proposed amendments to the Staff infringing the Staff and Budgetary Regula­ Regulations envisaging the possibility of tions. adopting decisions to assign officials the As regards the admissibility of the submis­ legality of which, according to the Regula­ sion of lack of competence, not raised in the tions then in force, could only be assured by original application, the applicant submits, transferring the official or by sending him first, that this should be considered as on mission (Schedule 7 to the reply). having been put forward by implication in The applicant then criticizes the defend­ the allegation of infringement of Article 5 ant's allegation that the applicant's assign­ (4) of the Regulations and, consequently, ment to Brussels should be viewed as a that this submission is based on the defend­ simple 'alteration of service or place of ant's claim, in its statement of defence, that work' for the permanent post occupied by it considered itself free to modify the duties the applicant till the present day. attaching to posts under the Staff Regula­ If this is so, how, asks the applicant, can he tions as defined by the second paragraph of be considered to be on the staff at Ispra, as Article 5 (4) of the Regulations. is shown by Schedules 1, 2 and 3 to the (d) The applicant explains that according reply? And why are official communications to Article 7 (1) of the Regulations, 'the still addressed to him at the Joint Research appointing authority shall ... assign each Centre at Ispra, Department CETIS? official by appointment or transfer to a post (Schedules 8, 9 and 32 to the reply). Why in his category or service which corresponds were the travelling expenses refunded to the to his grade'. applicant for his annual holiday in 1965 It follows that, except in the case of an calculated with Ispra as the departure interim appointment or secondment, the point? (Schedule 9 to the reply). Why, lastly, assignment may only be made by appoint­ was notice of the applicant's assignment to ment or transfer. And since, under the first Brussels not published in the Community's paragraph of Article 4 and Article 29 of the Monthly Staff Bulletin as required by the Regulations no appointments, promotions second paragraph of Article 25 of the Reg­ and transfers can be made for any purpose ulations? other than that of filling a vacant post, it The applicant claims that all these facts follows that an assignment automatically show that he was in Brussels on mission, presupposes that the post to which the offi­ with all the financial and legal consequences cial is to be assigned is a vacant one. which that entails.

FONZI v COMMISSION

the abovementioned decision. duties assigned to the applicant were pre viously carried out by an official in Grade The defendant replies as follows. B 3 (Schedule 5 to the reply). The applicant First, it contends that the contested decision claims that the survey carried out on the is a measure of administrative organization purchasing department was done before he taken by the departments for which the came, that the Commission made a con superior authority alone is responsible and tract with the Interburo Company to con which it must have the power to determine duct the survey, and that it confined itself to and to modify so as to meet changing situa giving advice to the company (Schedules 11, tions and requirements (Opinion of Mr 12, 13 and 14 to the reply). Also, says the Advocate-General Gand in Case 15/65, applicant, a survey causing all the institu Klaer v High Authority, Rec. 1965, p. 1313). tion's purchases, referred to by the con In deciding whether this measure injures the tested decision, is not possible because the rights conferred on the applicant by the purchasing department based in Brussels Regulations, one must, says the defendant, has no authority over the purchasing de decide what is the content of the right to the partments of the research centres, and the post and to the duties attached to it.

Article 25 of the Staff Regulations. He says which an official is entitled to perform must that the judgment of the Court in the case of be specified. Thus what the official is guar Huber of 1 July 1964, referred to by the anteed as being the substance of his right defendant, is not relevant to this case. to a post is that his duties must by their According to the applicant the contested nature and level always correspond to the decision altered his legal position by chang qualifications and professional training ing the nature and level of the duties attach which were the determining factors in his ing to his post under the Regulations, appointment. And Annex VII to the Reg changing the location of his place of work ulations, in Article 5, 7, 9 and 10, affords against his wishes and not in the context of ample compensation for any practical dis secondment or transfer, disrupting the advantages which may result for an official previous legal situation without substi from changing his place of work. tuting a fresh one, as required by the Reg After comparing the ap licant's profession ulations, and creating uncertainty in the al situation before the contested decision applicant's job without granting him the and now, the defendant concludes that no daily subsistence allowance for being on difference exists between the two such as mission. could mean that the contested decision had (g) The applicant claims that he was as infringed an essential procedural require signed to new duties in Brussels as from 28 ment, provisions of Community law or that January 1965 purely by a note from the it was defective for lack of competence, as Director-General for Administration and claimed by the applicant. Personnel, and without the least mention of In fact, says the defendant, the applicant, a

Scientific Officer, was not engaged directly the nature of the duties guaranteed to the in research at Ispra. His work for CETIS applicant under the Regulations. (Centre Europeen de Traitement de l'lnfor As to (b). The defendant replies that the mation Scientifique) (European Centre for statement of defence does not confuse but the Processing of Scientific Information) explains. It is obvious, it says, that the duties consisted of organization and management performed by the applicant in Brussels tasks, requiring scientific abilities.

tested decision was criticized by the Audit applicant's and correspond to the duties Board, the defendant replies that the Com attaching to the basic post of scientific mission is still bound to observe the funda officer in Grade A 5. mental criterion of the interests of the serv The defendant concludes that it decided to ice and that if the budgets are misused the assign the applicant to Brussels in the inter applicant is not thereby prejudiced and he ests of the service while maintaining him in cannot challenge it before the Court under

The defendant considers that the solution of Concerning the internal memorandum of 2 abolishing the applicant's post at Ispra, June 1965 referred to by the applicant, the defendant remarks that this memorandum immediately creating a new one in Brussels, and assigning the official concerned by proves that the contested decision was in means of a transfer carried out under Ar deed taken in the interests of the service.

which he is entitled to perform under the its statement of defence are not sufficient to Regulations. justify the measure to which he objects. As to (f). The defendant replies that since Concerning the argument based on the de the contested decision does not affect the velopments in the activities of CETIS, the applicant's legal situation it should not be applicant observes that even if the interests counted among those for which Article 25 of the service can be relied upon in order to of the Regulations requires reasons to be have him removed from CETIS, they cannot

ber. tions. As regards the reason based on the appli cant's conduct towards his colleagues at 2. Misuse of powers CETIS, he says that this behaviour was censured once and for all by the decision The applicant claims that the contested de reprimanding him taken on 24 April 1964, cision is in fact a disciplinary measure in as shown by the judgment of 8 July 1965 in disguised form. Cases 27 and 30/64, which declared that the The defendant replies that the applicant is reprimand was given in the interests of the seeking to make a ground for annulment service. In consequence the facts already out of what is mere suspicion on his part, censured in that judgment could not be used wholly without foundation, and observes to justify the present transfer decision, that the burden of proof is on the applicant. which therefore violates the fundamental The defendant states that the applicant's principle non bis in idem. removal from CETIS was necessary in the (b) The applicant observes that develop interests of the service both as a result of the ments in the activities of CETIS are not development of that institution's activities sufficient ground for his removal from and because of the applicant's conduct, Ispra. He points put, in particular, that two which had irreparably prejudiced the con scientific posts were declared vacant at the fidence indispensable for any cooperation. time at Ispra and that he possessed the The defendant also alleges that the appli required qualifications for them (Schedules cant sought of his own accord his removal 17 and 18 to the reply). from Ispra, and that the Commission had (c) The applicant claims that after his as considered the possibility of transferring signment under the contested decision to him to Garching and Jülich laboratories. It the purchasing department at Brussels to do further alleges that the introduction of data- work performed by an official in Grade B 3, processing methods in the purchasing de he was then appointed, though without any partment at Brussels required the services formal measure, to replace Mr Viellard, an of an administrative official with the appli official in Grade A 5, deputy to the head of cant's qualifications. the purchasing department Mr Asbeck- The defendant concludes that the decision Brusse, so that Mr Viellard could be made of 7 October 1964 is not a concealed sanc (without the issue of any vacancy notice or

JUDGMENT OF 15. 12. 1966 — CASE 28/65

He explains that situation is to deprive him of the periodical his wish to leave Ispra was due to the dis bonus which his excellent reports would agreement with Mr Gazzano and other offi have justified (Schedules 10 and 25 to the cials at Ispra which was' the subject of reply) and to cut him off from promotion by Joined Cases 27 and 30/64. reason of the uncertainty as to which Direc (e) The applicant replies to the allegations tor General would be competent to propose of 'deliberate distortion' and 'bad faith' it.

thanks to the transfer decision, in prevent missible the application for the annulment ing him from continuing to exercise those of the transfer and secondment decision duties. taken with regard to the defendant on 24 The defendant replies as follows to the appli June 1964. cant's allegations in the reply. The authentic text, he says, establishes that As to (a), the defendant observes that it the applicant was not merely sent to Brus was in the interests of the service not only to sels on mission, but that he was transferred recall the applicant from CETIS but also to there. assign him to the purchasing department. It is for the Court to decide, he concludes, to To the argument based on the principle non which of the parties to the case the epithets bis in idem the defendant replies that under used by the defendant should be applied. Italian law it is lawful for the administra The applicant then asks the Court to order tion, when it has disciplined one of its the hearing as witnesses of those present at employees, to send him to another place of the Commission's 249th meeting. work, in particular when the employee's He formally reserves the right to take any conduct has undermined his standing in a further action, in particular the procedure particular place of employment. for revision under Articles 98 et seq. of the As to (b).

The defendant replies that the — to prevent him from carrying out his need to appoint to the purchasing depart-

ment an official of the same standing and 3. The request for payment of the daily sub with the same training as that of the appli sistence allowance for officials on mis cant became apparent, even before the con sion, and the application for damages tested decision was adopted, as a result of the survey conducted by Interburo. The applicant says that according to the It remarks, next, that the applicant's duties Regulations there are only two ways of were not the same as those of Mr Viellard. validly moving an official to a different loca Only later were certain of the latter's duties, tion for duties other than those attaching to together with other new duties, given to the his post under the Regulations: mission and applicant in addition to those originally transfer. Since the defendant states that the assigned to him. applicant was kept in his official post under As to (d). The defendant recalls that the the Regulations and was not transferred to applicant's accusation that Mr Gazzano Brussels, his assignment to Brussels could and Miss Pozzi gave false information in only be on mission, together with its con their applications for the post was rejected sequences including payment of the daily by the Court in its judgment of 8 July 1965 subsistence allowance for officials on mis

sions. It recalls that on 22 March 1966 it (Schedule 5 to Application 28/65 R on a submitted to the Judge-Rapporteur the procedural issue and Schedules 27 and 28 to record of the Commission's resolutions and the reply). He observes that if the Court did that this showed that the document pro not consider itself competent to award him duced by it earlier corresponded to the offi the sum requested as mission allowance, it cial text of the minutes of the Commission's could do so as compensation for the ma meeting of 24 June 1964. terial damage caused him by putting the As to (f). The defendant observes: contested decision into effect. — that bonuses for outstanding service are He also seeks payment of the sum of 600 000 given only in very exceptional cases, and francs in damages to compensate for the not to all who have had good personal non-material and material injury caused to reports; him by the defendant's statements concern — the promotion procedure followed by ing the contents of the minutes of the 249th the EAEC Commission does not include meeting of the Commission of 24 June 1964. proposals for promotion by Directors- The defendant replies that even if an annul General, but a comparative examination ment is granted, the applicant should not of the merits of all officials enjoying the automatically be held to be in Brussels on requisite seniority; mission.

JUDGMENT OF 15. 12. 1966 — CASE 28/65

ted a second application on a procedural Mr Advocate-General Roemer delivered issue, asking that certain documents an­ his opinion to the Court at the hearing on nexed by the applicant to his reply be 19 October 1966. removed from the file and that part of the

Grounds of judgment

I — Admissibility

A — Applications for annulment

The defendant alleges that the applications for annulment of the decision to allocate the applicant to Brussels, notified on 15 October 1964, and the decision rejecting the appeal through official channels, notified on 7 February 1965, are inadmissible because they are out of time. Application 28/65 was not, in fact,

FONZI v COMMISSION

The appeal through official channels, lodged within the period prescribed for an appeal to the Court, has preserved the time-limit under the Staff Regulations for making an appeal to the Court. The extension on account of distance is dependent solely on the facts, that is to say, on where the applicant has his place of residence. Accordingly the applicant, being habitually resident in Belgium, had three months and two days within which to bring an appeal to the Court. Since this period expired on 9 May 1965, the applications for annulment lodged on 12 May 1965 are inadmissible because they are out of time.

B — Application for payment of the daily subsistence allowance for officials on mission

In the conclusions in his application, the applicant asks that the defendant be ordered to pay him the mission allowance for the entire period of his service in Brussels following the abovementioned decision to transfer him.

This claim is obviously dependent on the applications for annulment and since it is ancillary to the main application it shares its fate and must be declared inadmiss­ ible.

JUDGMENT OF 15. 12. 1966 — CASE 28/65

The applicant also asks in his reply that, should the Court, whilst annulling the contested decisions, not consider it possible to award him the daily subsistence allowance for an official on mission, he should nonetheless be awarded a corre­ sponding sum as compensation for the material damage which he suffered when the said decisions were put into effect.

II — The application on a procedural issue of 15 January 1966

By an order of the Court (First Chamber) of 10 March 1966 there was excluded from the proceedings, as requested by the defendant, the document annexed to the reply as item No 23, and it was ordered that, for the rest, the decision on the procedural issue should be reserved for the final judgment. It therefore remains to examine the defendant's conclusions to the effect that the documents constituting Schedules 22 and 34 to the reply should be excluded from the proceedings.

FONZI v COMMISSION

The inquiry by a private detective agency into the activities of EAEC officials prior to taking up their duties (Schedule 22 to the reply) is capable of prejudicing third parties not involved in the present proceedings and unable to defend them­ selves. On that ground therefore it must be removed from the file.

On the other hand, the telex message from the President of the Staff Committee at Ispra to the Director-General for Administration (Schedule 34 to the reply) is relevant to the present proceedings and is manifestly incapable of prejudicing the rights of third parties. As regards this document therefore the defendant's request should be rejected.

Ill — Costs

Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT (First Chamber)

hereby:

1. Dismisses Application 28/65 as inadmissible;

OPINION OF MR ROEMER — CASE 28/65

2. Orders the removal from the file of the case of the document appearing as Schedule 22 to the reply;

Summary

Introduction (Facts, conclusions of the parties, procedure) 495

Legal consideration 496

A — Admissibility of the applications 496 B — Substance 499

I — Case 28/65 499 1. The applications for annulment 499 (a) Do the Staff Regulations provide for a 'change in the place of employment'? 499 (b) Is the effect of the contested measure really only a change in the place of employment? 499

2. The claim for payment by the Commission of the daily subsistence allowance for an official on mission 502

3. Summary 505 C — Conclusions 506

1 — Translated from the German.