C-16/67

(a) Forthe annulment of the decisioncontained in thenote addressed to the appli­ cant on22 November1966 byMr Mercereau, DeputyDirectorof the Research Centre at Ispra, tothe extent to which it amounts to a refusal of the applicant's request to permit him, beforeany decision was taken, to submitto the Advisory Committeeon purchases and sales adetailed opinion concerning the selection ofan undertaking to maintainthe installationsofthe Centre and also forthe annulmentof thefirst paragraph ofthememorandum addressed to him on 2 December 1966 by Mr Kramers, Director ofthe Research Centre atIspra to the extentto whichit confirms the said note ofMr Mercereau (heads 1 and 2 of the conclusions in the application): (b) For a declarationthat the applicant hasbeen given the necessary powers and is entitledto supervise the activitiesofthe Infrastructure Department and to give his opinionon allproposals emanating fromthis department (head4 of the conclusions in the application) and for theannulmentof theoral decision of Mr Kramers torelieve him provisionallyof the task of supervising the infra­ structure Department (head3 ofthe said conclusions); (c) For the annulmentof the reprimands contained in thesecond and third para­ graphsof thesaid memorandum of Mr Kramers (heads 5and 6 of the said conclusions); (d) Forthe award to the applicant of damagesand interest (heads 7 and8 of the said conclusions),

THE COURT (First Chamber)

composed of:A. M.Donner, President,R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges,

LABEYRIE vCOMMISSION

Advocate-General:K.Roemer

I — Facts 2. In yournote 396 of 18November you proposed to restore the situation in The applicant, whose postis that ofhead of whichMr Pomar and his department divisionand whose grade is A3, directsthe were directly underyour authority. You technical departmentsat Ispra which do notperhaps appreciate that the according to twodetailed lists ofposts of decision (notified to you after I had 1 March 1964 (Schedule 4tothe applica­ approved it) to relieve you provisionally tion) and 15 January 1967(Schedule 5 to the ofthe duty of supervising the Infra­ application) consists offour sections, the structure Department wastaken after head ofoneof them, called Infrastructure, mature consideration and not only being MrPomar whohas the samegrade because of a recent incident. (A3)asthe applicant. During the last two yearsthe Directorate By a noteof 18 November 1966(Schedule 1 has onseveral occasions had to place on (7) to the application) sent by the applicant recordthat youractions were not such as to thedeputy director,Mr Mercereau,he should be expected of a personentrusted referred to a conversation betweenhimself, with your duties. In particular you were Mr Mercereauand MrPomar and stated warned by Mr Mercereau (in his note to that thelatter refused to remain in asub­ you of 3February 1966) and by Mr Ritter ordinateposition tothe head of the Tech­ (inhis note to you of 16 February 1966). nical ServicesDepartment, that isto sayto the applicant. 3.You may conclude from my answer that By arunnernote of 21 November 1966 the situation is not satisfactory from (Schedule 6 to theapplication), also sent to your point of view. Nor is it from mine and I amforced to lookfor asolution of Mr Mercereau, the applicant requested that he should have the opportunityof givinghis the problem which will enable the detailed opinionon aninvitation totender Technical Services Department to be run for the maintenance and servicing of the in abetter andmore coordinatedway.' installations atthe Research Centreat On10 January 1967 the applicant lodged a Ispra. complaint (Schedule 1to the application) Bya noteof 22November 1966 (Schedule 7 with the Commission of theEAEC against to theapplication) MrMercereau refused the decisions and findings in the memoran­ the applicant permissionto give .this dumreproduced above. detailed opinion. On 16March 1967 the president of the Com­ On 2 December1966 Mr Kramers, Director missionanswered the applicant's complaint of theCentre at Ispra, sent theapplicant the (cf. Schedule 3 to the application) as follows: followingmemorandum (Schedule 1(1)to 'TheCommission has noted the complaint the application): which you lodgedon 10 January 1967 under '1. Withreference toyour note of 21Nov­ Article 90 of the Staff Regulations. emberMrMercereau on11November The Commission does not atthe moment

necessary stepshave beentaken to enableit person entrusted with your duties', is toobtain all the relevantadditional infor null and void; mation andto define itsposition at the (6) declare that thereprimand inthe third appropriatetime whenall the factshave paragraphof the said memorandum been ascertained.' containedin the words: 'You may con The present application was lodged at the clude from my answer that the situation CourtRegistry on16 May 1967. is not satisfactory from your point of

memorandum of2 December 1966 is itsservants, namely Mr Kramers, Mr null andvoid to the extent to which it Mercereau andMr Ritter; confirmed the decisionof Mr Mercereau (8)consequently order theCommission to contained inthe latter's memorandum payto the applicant by way of damages of 22 November 1966; and interest the sum of one Belgian (2) declare that the decision of Mr Merce franc; reau contained in thenote of 22 Nov (9) order the defendant to bear the costs of ember 1966 is null and void tothe

Court should: installations at theCentre; (3) declarethat thedecision, alleged tohave 'declare thatthe applicationis admissible been taken and notifiedorally to the and wellfoundedand give effect to this applicant, to'relieve (him)provisionally finding.' of the duty of supervising theInfra structure Department',is nulland void; B — 1. In its statement of defence the (4) declare that,having regardto the posi defendant contends that the Court should: tion which the applicant occupiesin the — declare that the applicant's claims for service and in the detailedlist ofposts annulment and for "adeclaration" at for theResearch Centre,he has the heads 1 to 6 of his application are in necessary powers and isentitled to admissible or,alternatively, unfounded;

LABEYRIE v COMMISSION

declare,pursuant toArticle 42(2) of the randum wascontained in a simple inter­ Rules ofProcedureof theCourt, that, as departmental memorandum and not in a theywere raised outof time, thefollowing decision which had legal effects and the issues are inadmissible: measurecriticized was not intended to be

—theissue of the alleged failureto observe and wasnot in fact of a disciplinary nature. theprocedural requirementsprescribed Theapplicant replies that the defendant is by thefirst paragraph of Article25 ofthe not applyingthe case-law of theCourt StaffRegulations(theobligation to com­ properlyto the present case. In fact in theFonzi case the official concerned municatea decision in writing to the official concernedand to state the was instructedto proceedfrom Ispra to reasons upon whichthe decision is Brussels and was subsequently transferred based), which appears forthe first timein by meansof a duly notified decision.There­ the reply(p. 6, paragraph 3(b)); fore theCommission's jurisdiction could — the issue of misuse of powersraised for not be calledin question and the applicant the firsttime in paragraph4 of thereply in that case had no ground for complaint (p.9).' because the measure affecting him was solely an administrativeinstruction.

JUDGMENT OF11. 7. 1968 —CASE 16/67

noteof22 December 1966,to theextent to Infrastructure Department, referred to in which thisnote amounts toa refusal of the paragraph (2) ofthe memorandum of 2 applicant's request,contained in hisown December 1966 of Mr Kramers, Directorof noteof 21 November 1966, for permission to theResearch Centre atIspra. submithis detailed opinion,before any In addition he asks the Court to 'declare decisionis takenby the Advisory Commit­ that, having regard to the position which tee of purchases andsales concerning the the applicantoccupies in the service and to selection ofan undertakingto maintain the his place in the detailed list of posts for the installations atthe Centre. Research Centre he hasthe necessary He alsoasks the Court to annulthe first powers and is entitledto supervise the paragraphof Mr Kramers's memorandum Infrastructure Department and to give his of 2 December1966 to the extenttowhich opinion on all theproposals emanating thisdecision confirms that of Mr Mercereau. fromthisdepartment, for whichmoreover The applicant regards thefact that he was he must assumeresponsibility'. prevented from giving hisopinion on the Accordingto the applicant the illegality of invitation to tender asaconcealed disci­ the decision lies in: plinary measureand regardsthis decision, likethe one examined under(b)below, as — thefactthat the Director and Deputy illegalon the grounds of lack ofjurisdiction, Director ofthe Centre have no jurisdic­ infringement ofan essental procedural re­ tionto alter the duties of an official in quirement and misuse of powers. Grade A3,as such power is vestedunder The decision of22November 1966was only Article 7 of the Staff Regulations in the an explanationand possiblyan anticipation appointingauthority; of the basicdecision to relievehim ofthe — thefact that the procedural requirement taskof supervising the Infrastructure prescribedby the first paragraph of Department. Article 25 of the Staff Regulations, In the absence of any decisiontaken in the namelythe communication at once to the properform the measure allegedto beun­ official concerned ofthe decision andthe lawfulamounted to a flagrant disregardof reasons upon which itis basedwas not therights ofthe applicant undertheStaff observed:

LABEYRIEv COMMISSION

claims. It is infact an internal and unofficial adjustment to such duties whether by way of documentdrawn upforinformation only additionor subtraction, throughout the and not an officialdecision of theCommis whole ofthe period during which the sion relating to the definitionof costs. servant concernedoccupies the same post. Theissue ofan infringement ofan essential The defendant takes the view that the im procedural requirementwas raised in the position of such a rigid departmentalstruc application (p. 4)with referencetoTitle VI ture is incompatiblewith the duty imposed of andto Annex IXto the Staff Regulations, on each institution to ensure that the depart inconnexion with thedisciplinarymeasures mentsrun efficiently. This view issupported andproceedings andit was onlyin the appli by thedecided cases ofFrench and German cant'sreplythat reference was made to administrative law. Article25 of theStaff Regulations. This The submission based on misuse ofpowers issue is therefore inadmissible (see above: is founded, inthe application, (p. 4) on the A— Admissibility)by virtueof the applica fact that a reprimand is supposed to have tionof Article 42(2)of the Rules of beengiven underthe guise of amere apprai Procedure. sal and thatit is only in the reply that this Thedefendant contends, however, inthe submission is based on the argument that alternative thatthe contestedmeasure did the authors of the decision, by taking away not require tobe notifiedor give a statement from the applicant the supervision of the of thereasons upon whichit was based, Infrastructure Department, soughtto pre because theapplicant, havingactual knowl vent the attention of thehigher authorities edge ofthemeasure, has constructive notice from being drawn to certain irregularities. thereof andbecauseit dealt witha re Thissubmission is therefore inadmissible organization ofthe departments, which did (see above: A — Admissibility) by virtue of not adversely affect theapplicant. theapplication of Article 42(2) of theRules The defendant then alleges thatthe appli of Procedure. cant's position at the Centre in no way The defendant neverthelesssubmits in the justifies speakingof the 'retention ofhis post alternative thatthe contested decision in name only'.In facthe retained under his originated in itsconcern to ensure the control three departmentswith a staff of198 smoothrunning of the department,by sus

. . the applicant is was provisionally taken from himand entitled. . . togive his opinion on all the placed under thecontrolof the Directorate proposals emanatingfrom the Infrastruc after a long drawn out and apparentlyin ture Department. . .' the defendant calls soluble dispute with thehead of the said attentionto the fact that, according to the department. case-law ofthe Court (the judgments in

cases 78/63,11/65 and 62/65) itis not the way the conduct of a servant having the task of the Court to give instructions tothe applicant's rank; administration. —that therewas amisuse of powers on a Theapplicant replies that the claim that the misapplication of proceduresarising reduction ofhis duties was only provisional first from such a total failure to state the cannot validate theircurtailment in the reasons upon which the decisions were absence ofany detailed informationof the based as to justify the viewthat there was provisional nature of thecircumstances another motive for these reprimands and which aresaid tohave mdae the measure secondly fromthe fact that one of the necessaryand to have determined its reprimands was givenunder the guise duration. of a simple appraisal.

ordinate. Article 91 of the Staff Regulations. Finallythe defendant's view thata servant Therule thatsimple internal administrative who continuesto receivehis remuneration measures are not subject to a review by the andretains his rankcannot claimtohave Court, which is intended toguarantee the suffered anydamage was refuted by the prerogatives of officials, is found in the Court in itsjudgment in the Klaer case of 15 administrative case-law of Member States. December 1965 ([1965] E.C_R_1055 and The inter-departmental memorandumin 1056). question cannot be criticized for failure to state the reasons upon which it isbased, (c) Heads5 and6 of the conclusions in the becauseit is nota decision adversely affect application inganofficial within the meaning of Article

These paragraphs containa criticismofhis conduct,accompanied by arefusal to assist 2.The claim for compensation (heads 7 and him inconformity with Article 24of the 8 of theconclusions in the application) Staff Regulations,when he was confronted by thedeclaredintention of the head of the Theapplicant submits that the decision InfrastructureDepartment to refuseto obey whichhe asks the Court to annulconstitutes his ordersas from 10 October 1966. awrongful act causing him to suffernon- The illegalityofthese decisions arises out of materialdamage and that he mustwith the following facts: regret place on recordthat he continues to be prevented from carrying out his normal — that theseconcealed disciplinary meas

LABEYRIE v COMMISSION

damages andinterestproves to be com­ recordsof the AdvisoryCommittee for pletely unfounded. purchasesand sales. The applicanthas notestablishedin this case that therehas been any wrongfulact IV— Procedure whatsoever orany damage and inparticular anyinfringement of any interest protected Theparties lodged their pleadings within by law. the prescribed time-limits and the written procedure followed the normal course. During thehearing on 29 February 1968 the 3. The request for productionof documents Court (First Chamber) heard the pre­ liminary reportof the Judge-Rapporteur Theapplicantrequests the Courtto order andtheviews of the Advocate-General and theproduction of the minutesof the meeting after callingupon the defendant, theCom­ of the Advisory Committeefor purchases mission,to produce certain documents, andsales, document EUR/C/4 of20 decidedto open the oralprocedure. February1966. On 14March1968 the defendant lodged at Hehas therightand is under a duty to the Court the documents which it had been obtain information ofthe decisions taken ordered toproduce. by the Centre onmattersfalling within his During thehearing on 15 May 1968 the oral sphere ofjurisdiction and thisdocument submissions of the parties were heard. mightcompletethe documentsproduced in Atthe conclusion of this hearingthe appli­ supportof the application. cantproduced the documents which he had Thedefendant replies that there are no previously communicated to the defendant. minutesof the meeting bearing eitherthis TheAdvocate-General delivered his opinion reference number or thisdate among the at thehearingon 12 June 1968.

JUDGMENTOF 11.7. 1968 — CASE 16/67

which canbe annulledunder Article91 of theStaff Regulations so that this claim must be dismissed asinadmissible.

B— Thedecision to relieve theapplicant provisionally of the task of supervising the Infrastructure Department

1. Admissibility

On this point theapplicant submitsfirst ofall that the Director of the Research Centre didnot have thepowers to decide upon thisstep. He submits in addition that itinfringes Article 25of the Staff Regulations. Hefurther submits that it amounts toa concealedreprimand given in breachof the procedural requirements for disciplinary proceedings and finally that it isalsodefective because there has been a misuse ofpowers, in thatits aim is to prevent the observationsof the applicant fromdrawing the attentionof thehigher authoritiesto certain anomalies and irregularitiesin the departments.

On thefacts submittedto the Court itisclear that the Director of the Centre in fact

LABEYRIE vCOMMISSION

exigenciesofthe servicerequire urgent action to betaken. The fact thatthis provisionalmeasure remained in force for a long period is partlyexplained by the investigationscarriedout, at the instance of the applicant himself, into the circum­ stances whichgave rise to the dispute between himand his subordinate. Inthese circumstancesthere is no justification forthe view thata measure which was in fact final wastaken in the guise of aprovisionalmeasure by an authority not empowered totake suchation.

(b) Theapplicant submitsin thesecond place thatthe failure to notify him of and tostate the reasons for the measure which he criticizesis an infringement of Article 25 ofthe Staff Regulations.

The firstpoint to noteis that the contested measure was communicated in writing to theapplicant byMr Kramers's memorandumof 2 December1966. The factsof this caseshowthat this communication was madeinwriting within a short time and that therehas beenno infringement of the StaffRegulations. Next, it follows from what hasbeen stated at(a) abovethat themeasure which is criticized must be regarded asprovisionaland ashaving beentaken because of the urgent require­ mentsof theservice. Having regard to thenature ofthe contested measure the reasons containedinthe memorandumof 2 December1966 must in this case be

regarded asadequate.

in paragraphs 2and3 ofMr Kramers's memorandum, are not a disciplinary measure but aninternal administrative measure, whichcannot be the subject of an appeal to the Court. Such observations are notintended to and cannot havethe legal effects of adisciplinary measure. On this issue the application must therefore be dismissedas inadmissible.

II — The claim for damages

The applicant claims compensationfor thedamage which he had suffered as a result of the contested measures. He claimsthe awardof nominal admages of one Belgian franc for thenon-material damage whichhe has suffered.

When the Directorate of theCentre atIspra took the measures which are the subject of this application itdid notcommit any breachof duty. To put the matter more precisely, the responsible authorities of the Centre refrained from implement­ ing the applicant's proposalsto call his subordinateto order and soughtto remove by aprovisional measure the causes offriction which were clearly detrimental tothe smooth running of the departmentwithout first clarifying the question of assigning the blame for any possiblebreaches of duty ormistakes committedby their sub­ ordinates; they reserved their opinionon this matter, which clearly raised com­ plicatedissues. In so doing the authorities actedwith the requisite degree of caution and without committing any breach oftheir duties.The claim fordamages must thereforebe rejected as unfounded.

III — The request for production of documents

The applicantlodged submissions tothe effect that the Court should order the productionof the minutes of the meetingof 20 February 1966 of the Advisory Committee forpurchasesand sales.As the Court is of the opinionthat the docu­ ments on the fileprovide sufficientinformation it is not necessary to make the order requestedbythe applicant.

Uponhearing the parties; Upon hearing theopinion of the Advocate-General; Having regard to Article 152 ofthe Treaty establishingthe European Atomic Energy Community; Having regardto theProtocol onthe Statuteof theCourt of Justice of the European AtomicEnergy Community; Havingregard to theStaffRegulations of Officialsof the European Atomic Energy Community, especially Articles 5, 7,21, 24, 25, 86to 91 and Annex IX; Havingregard tothe Rules of Procedure of theCourt ofJustice of the European Communities;

THECOURT (FirstChamber)

hereby:

1.Dismisses thefirst and thirdheads of claim inthe application as inadmissible and the second headof claimin the application as unfounded;

2.Dismissesthe claimfor damages as unfounded;

3.Orders each ofthe parties tothe proceedings to beartheir own costs.

Introduction (facts, conclusions of the parties) 306

Legal consideration 307 I — Admissibility 307

1. Heads1 and 2of the applicant s conclusions 307

2.Heads 3and 4 of theapplicant's conclusions 308

3.Heads 5and 6 of theapplicant's conclusions 310

II — Substance of thecase 311