C-35/67

Commission of the European Communities , taking the place of the Commission of the EAEC by virtue of Article 9 of the Treaty of 8 April 1965, represented by its Legal Adviser, Jürgen Utermann, acting as Agent, with an address for service in Luxembourg at the offices of Henri Manzanarès, Secretary of the Legal Depart­ ment of the European Executives, 2 place de Metz,

defendant,

Application:

(a) for the annulment

— of the procedure followed before the Disciplinary Board;

— of the opinion of the Disciplinary Board delivered on 23 June 1967;

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts official as regards the level of his post in no way relieve him of the obligation to carry On 5 April 1967 the Commission of the out the work for which he is responsible in EAEC decided to conduct disciplinary the post to which he is assigned. proceedings concerning August Josef Van Eick, a scientific officer in Grade A6, em­ ployed at Ispra. (b) Unjustified absences and lack of punc­ On 13 April 1967 the Commission sub­ tuality: mitted a report to the Disciplinary Board regarding certain allegations made against The facts complained of are not disputed, Mr Van Eick. On 28 April 1967 the Board with the exception of the absence from 18 decided to order an inquiry into the matter to 26 August 1966 for which Mr August Van and on 23 June 1967 it delivered a reasoned Eick had produced a medical certificate at opinion on the disciplinary measure which the appropriate time. it considered appropriate to this case. On several occasions Mr August Van Eick's The Board expressed its opinion as follows: attention was drawn to these many short­ comings, and earlier shortcomings as (a) As regards the performance of his duties regards his punctuality have already been in the library: penalized by a reprimand.

However, the keen disappointment felt by ible with his position as a scientific Mr August Van Eick in 1962 on the dis­ officer. In these circumstances the most continuance of an activity to which he had severe measure must be applied to Mr devoted all his energies may have influenced Van Eick, namely that provided for in certain aspects of his behaviour.' Article 86(f) of the Staff Regulations of On the basis of the foregoing considerations Officials.' the Disciplinary Board delivered the follow­ This decision, which was sent from Brussels ing opinion: on 13 July 1967, by letter of 5 July 1967 Having regard to the circumstances of the signed by Mr Funck, was received by Mr case it would be proper to apply the sanction Van Eick on 15 July 1967. provided for in Article 86(2)(e) to Mr On 13 October 1967 Mr Van Eick lodged August Van Eick, namely downgrading, the present application at the Court with classification in Grade A7, Step 6.' Registry. By a memorandum of 26 June 1967 the On 11 March 1968 the applicant applied for Chairman of the Disciplinary Board trans­ legal aid. mitted this opinion to the Commission with In the light of the defendant's observations the following note: lodged on 29 March 1968 and after hearing 'In spite of the gravity of the facts on the the view of the Advocate-General, the basis of which the Board proposes one of the Court (First Chamber) by order of 3 April most severe disciplinary measures provided 1968 granted legal aid up to the amount of for by the Staff Regulations, the Members BF 15 000. of the Board and I express the wish that Mr By letter of 14 May 1968 the Registrar of the Van Eick be given the opportunity to make Court informed the applicant's Counsel that a valid contribution to the work of the Com­ the Court (First Chamber) had considered mission.' it preferable for this sum to be paid 'when Meanwhile, on 22 June 1967 the Commis­ the case is concluded, unless special costs sion had designated Mr Buurman to hear justify an application for an advance pay­ Mr Van Eick on its behalf, by virtue of ment'. Article 7 of Annex IX to the Staff Regula­ Upon hearing the report of the Judge- tions of Officials. Rapporteur and the view of the Advocate- In his report of 29 June 1967, Mr Buurman General, the Court (First Chamber) decided declared under this Article that it was im­ that there was no need to conduct any pre­ possible for Mr Van Eick to be heard. liminary measures of inquiry. During its meeting of 4 July 1967 the Com­ The parties submitted their oral observa­ mission decided to terminate Mr Van Eick's tions at the hearing on 15 May 1968. employment as from 1 August 1967. The Advocate-General delivered his opin­ The statement of reasons for this decision: ion at the hearing on 12 June 1968.

attaching to his position as an official, as all the names which he put forward the from 1 August 1967; Disciplinary Board decided to hear, as a 3. To the extent necessary, order the de­ witness called by the applicant, only Mr fendant to pay the sums owing under this Van Scheepen. head, that is, BF 100 000, subject to the The defendant replies by putting forward the applicant's right to vary the said amount following arguments: in the course of the proceedings; 4. Order the defendant to pay the sum of — Contrary to the statement made in the BF 25 000 to the applicant by way of application, the Disciplinary Board did damages in respect of the material not hear only Mr Van Scheepen, but damage suffered, subject to the appli­ also heard Mr Kramers and Mr Ritt­ cant's right to vary this sum in the course berger, both of whom were witnesses of the proceedings; called by the applicant. 5. Order the defendant to pay the sum of — It is not correct to state that the Dis­ BF 100 000 to the applicant by way of ciplinary Board is bound to hear all the damages in respect of non-material witnesses called by an official subject to damage suffered, subject to the appli­ disciplinary proceedings, as: cant's right to vary this sum in the course (a) the disciplinary proceedings provid­ of the proceedings.' ed for in the provisions of the Staff The defendant contends that the Court Regulations are of an administrative should: or even investigatory nature, as the Disciplinary Board is its elf merely an '— declare that the application is admiss­ advisory body of the appointing ible but unfounded: authority; — dismiss the requests made by Mr Van (b) in any case, a witness cannot be called Eick; before the Board if the facts on which — order him to pay the costs to the extent the evidence of each witness is sought provided for in Article 70 of the Rules of are not set out in such a way as to Procedure of the "Court.' enable the Board to assess whether it would serve any useful purpose to III — Submissions and arguments of hear him. the parties The application for the examination of wit­ Admissibility nesses contained in the applicant's letter of 1 June 1967 did not fulfil this requirement. The defendant puts forward no objections The applicant replies: to the admissibility of the application. — as regards the first argument, that, al­ Substance though it is true that the Disciplinary Board heard three witnesses called by the A — The application for annulment applicant rather than one, it is neverthe­ less true that in the abovementioned The submissions and arguments of the letter the applicant had requested that at parties may be summarized as follows: least eight witnesses be heard.

reason of the hybrid nature of the only some of the witnesses named, the appli Disciplinary Board at once judicial cant did not criticize this decision during the and investigatory. When one reads, disciplinary proceedings, or give more in Article 6 of this Annex, that the details of facts likely to influence the Board may order an inquiry in Board's opinion. Its decision in this respect which each side may submit its case was in no way influenced by the need, to and reply to the case of the other side which reference has been made, to comply and that no other form of inquiry is with the period laid down for the trans provided for, it becomes clear that mission of the Board's opinion to the ap the procedure followed by this body pointing authority. is in no way 'inquisitorial': (b) that the letter of 1 June 1967 had set 2. Infringement of Article 6 of Annex IX out the facts on which he requested to the Staff Regulations the witnesses to be examined: references to these facts are to be The applicant states, in particular: found next to the names of these — that the inquiry which the Disciplinary

He documents are communicated to the official received copies of all the documents concerned and he remains free to submit his transmitted to the Board and submitted observations and requests at any time. observations thereon in several letters As regards the application for the examina addressed to this body. In addition, the tion of witnesses contained in the letter of Board sent to the applicant a copy of the 1 June 1967, the applicant had merely minutes of each of its meetings, with the annexed to this letter a list containing no result that he was able to follow the less than 45 documents which he stated to be procedure in all its details. This being so, for the information of the Disciplinary it must be admitted that the inquiry con Board, and stated that he wished a series of ducted by the Disciplinary Board was witnesses to be examined, in the order in genuinely one in which each side could which these documents were filed, on the submit its case and reply to the case of facts indicated.

VAN EICK v COMMISSION

sions. As the applicant was, therefore, only able to follow the conduct of these pro 3. Infringement of the rights of the defence ceedings a posteriori, they could not be considered to be proceedings in which each The applicant observes that since the wit side could submit its case and reply to the nesses were heard on the morning of 21 June case of the other side. 1967, then at the beginning of the afternoon, The defendant rejoins that all the documents his Counsel was given only approximately transmitted by the Commission to the Board three-quarters of an hour in which to pre were communicated to the applicant and pare his oral arguments and had thus been that he was, at the same time, enabled to unable to draft a written memorandum. submit his observations. Moreover, there Moreover, the Disciplinary Board had had been no special meeting during which prepared neither a verbatim record nor a the Rapporteur had examined the appli summary of these oral arguments.

cussions. Any discussion presupposes that oral arguments and which are referred to the facts involved have previously been in the minutes. brought to light in the proceedings. How The defendant makes the following ob ever, the statement in question put before servation : the members of the Board a new factor for their consideration, with the result that in — The oral argument before the Disciplin this instance a witness was heard in camera, ary Board forms merely one element in under the pretext of a discussion. The the defence of the official concerned, breach of the rights of the defence is thus which is prepared as the proceedings of particularly conspicuous, the more so: the Board take place. In this instance,

JUDGMENT OF 11. 7. 1968 — CASE 35/67

ings. ceedings, that the oral arguments im The applicant maintains that it is also in mediately follow the examination of wit correct to claim that the person chosen to nesses. assist him in his defence had been allowed — furthermore, the applicant raised no two and three-quarter hours in which to objection on this point on the day of the prepare his oral argument. First, an oral hearing. On the contrary, he maintains argument is not prepared before all the in the application that these oral argu evidence is known and, in this instance, one ments 'had, however, appeared suffi witness was still to be heard.

Furthermore, in comparison with criminal proceedings is stead of requesting, as he could have also unfounded. First, no such proceedings done, permission to lodge a written note, are involved in this case; secondly, in such the applicant merely began his oral argu proceedings the accused's representative is ments by acknowledging the consistent informed, several days in advance, of the concern for objectivity which had char content of the criminal file in which appears acterized the proceedings of the Board. the evidence of any witnesses involved in the — Finally, it is not clear what advantage case. Nothing of this nature took place in might be gained by the applicant in the this instance. unusual formality claimed in this in The applicant goes on to acknowledge that stance, in particular as the authority it is true that Annex IX of the Staff Regula responsible for taking the decision hears tions does not oblige the Commission to the official concerned in accordance with consider the arguments of the person the third paragraph of Article 7 of the chosen to defend him before taking its abovementioned Annex. decision, but it is also true that in providing In reply, the applicant maintains that by that the official concerned shall first be claiming that his lawyer had 'a period of heard, the second paragraph of Article 87 of more than two months in which to prepare these Regulations and Article 7 of Annex IX his defence and the oral arguments', the thereto allow it to be supposed that such a defendant is confusing quite distinct con

VAN EICK v COMMISSION

criticizing such performance. First, this Buurman that he was available, both to appreciation did not apply ad futurum; reply orally to his questions and to hand to secondly, as the Disciplinary Board was him a written note. both judge of and party to the proceedings, The defendant replies that by reason of the the applicants' representative could not complex structure of the institution and the criticize the Board's performance of its task scope of the tasks entrusted to it, to con before it had delivered its opinion. clude that, before taking its final decision as The defendant states in its rejoinder that, a body, the Commission must itself'hear the after the examination of the three witnesses official concerned and has no power to which had taken place during the morning, entrust this duty to an associate of high rank the applicant's representative was aware of was to distort the intentions of the authors almost all the 'evidence arising from the of the Treaty. The wording of Article 7 does inquiry' which he required and that after the not prevent such a delegation of power. examination of the fourth witness he was As regards the impossibility of hearing the only required to complete his oral argu applicant, the report prepared by Mr Buur ments. man on the applicant's failure to appear Furthermore, the defendant insists that shows that he simply avoided this hearing. there could be no question in this case of Finally, the defendant states that the appli drafting a text which 'had later to be com cant has provided no explanation as to the municated to the appointing authority', as nature of the 'series of exceptional circum the provisions of the Staff Regulations in no stances amounting to force majeure'' which way provide for the possibility for the appli

4. Infringement of the third paragraph of a number of his colleagues. Article 7 of Annex IX to the Staff The applicant replies that the defendant 's Regulations interpretation of the third paragraph of Article 7 of Annex IX to the Staff Regula The applicant maintains that the third para tions and of the first paragraph of Article 87 graph of Article 7 of Annex IX of the Staff thereof leads to the situation, peculiar to Regulations and the first paragraph of say the least, that a body of high-ranking Article 87 of these Regulations clearly show officials, delegated by the Commission, that the appointing authority is bound to which has followed all the hearings, in hear the official itself, and is unable to quiries and pleadings and which has heard delegate its power in this matter to anyone the witnesses as well as the official charged

JUDGMENT OF 11. 7. 1968 — CASE 35/67

binding force, while a single official whose man and was forced to visit a dentist. rank is no higher than that of the majority of Finally, the applicant notes that the Dutch the members of the Disciplinary Board, who copy of the letter from Mr Funck of 5 July was not present at the hearings and who, in 1967 contained in a schedule a copy in Dutch this instance, did not hear the applicant, of the decision of the Commission which may come to a final decision which invali­ was also dated 5 July 1967. On the other dates the opinion of the Board. hand, the French copies annexed to the The applicant states that both the provisions French text of the same letter which was of the Staff Regulations in this matter and addressed to him several days later were not references to the legal systems of Member dated.

It may opinion: the regularity of this procedure not, therefore, include 'a statement of the appears questionable. submissions of the defence by the adviser The applicant adds that the report prepared of the official concerned' since this party's by Mr Buurman on 29 June 1967 shows that intervention comes to an end at the close it was only during the evening of 27 June of the hearing before the Disciplinary that this official handed to him the opinion Board. Moreover, it must be noted that of the Board on which he and his represent during the disciplinary proceedings ative were invited to express their views the neither the applicant nor his representa following day at 9.15 a.m.

Mr Buurman toothache are accompanied by no evidence, was at that time deputy to the Director- although the truth of the matter is shown by General for Administration and in that the medical certificate produced as a capacity he suggested to the Commission schedule to the application. It is true that that the necessary powers be delegated the applicant was present at the cocktail to him, having regard to the very short party on 27 June 1967, but this does not periods available to the Commission imply that, 24 hours later, he did not suffer before the term of office of its members from a toothache which was so serious that expired as a result of the merger of the he was unable to appear before Mr Buur- executives which took place on 6 July

1967. (The defendant vigorously and reasons for the decision differs on this point expressly disputes that Mr Buurman from the opinion of the Establishment was in any way responsible for the con Board in that, contrary to the opinion, it tested decision); does not refer to the undertaking given by — As regards the report prepared by Mr Mr Van Eick to return this document as Buurman, it must be recalled that, as soon as possible. from 23 June 1967, he had requested the applicant to contact the secretary of the (b) The failure to consider extenuating Disciplinary Board for the purposes of circumstances

applicant since 6 May 1967. Further consideration by the Disciplinary Board or more, it is at least curious that in his to justify the reasons for which it did not letter of 2 July 1967 the applicant con expressly refer thereto. Secondly, the appli sidered that he was not obliged to make cant's belated declaration of intent con any allusion to his state of health or the cerning the return of the periodic report treatment by his dentist; moreover, the could not influence the seriousness of the dental certificate was only produced shortcomings on the part of the applicant when the application was lodged in the which had been found to exist.

1967. This detail could not justify the Member States and, by its nature, cannot vexatious conclusions which the appli simply be transposed into the area of dis cant appears to draw from it. ciplinary codes of practice, which obey separate rules. 5. The allegation that the statement of The applicant replies that it seems very sur reasons for the contested decision prising that the Commission adopted, word was incomplete or based on erron for word, the statement of reasons for the eous considerations opinion of the Disciplinary Board, which was the only factor on which ti could base (a) The failure to return the pe its decision, while omitting without any ex riodic report planation the recitals favourable to Mr Van Eick, in order to conclude in favour of a The applicant observes that the statement of disciplinary measure which was more

serious than that proposed by the Board. which is reproduced in the report from the It is true that the Commission was not Commission to the Disciplinary Board, but bound by this opinion, but, if it set it aside, which did not form the subject of a hearing. it should have given reasons for its decision The Commission is thus wrong to allude to on this point and should previously have these reminders. Moreover, the facts for questioned the official concerned. which Mr Van Eick was criticized at that Furthermore, the defendant's argument that period occurred well before he took up his the concept of extenuating circumstances is post in the library. unknown in the Commission's code of The defendant replies that, contrary to the practice for disciplinary proceedings is un applicant's allegations, acceptable as, in this instance, there is no — he received several warnings; question of circumstances defined by law, — the passage in question of the contested but merely of a circumstance of fact which decision does not refer in particular to the Disciplinary Board considered had to be the letter from Mr Funck of 24 June taken into account for the purposes of its opinion. 1965, but to all the various warnings addressed to Mr Van Eick both orally The defendant also states that from the mere fact that the Disciplinary Board only and in writing by his departmental and submits an opinion to the appointing administrative superiors. authority, this body is fully entitled to adopt The applicant replies that the opinion of the part of the reasons given for this opinion Disciplinary Board refers only to the letter

6. Erroneous nature of certain factual con Commission conflict with the statement siderations referred to in the statement made by Mr Eder, which was quoted by the of reasons for the contested decision Commission itself, and with the documents nos. EUR/C/1261 and 1262/67 attached to The applicant observes that the contested the Commission's report to the Disciplinary decision amends the first recital of the Board. opinion of the Disciplinary Board 'as This statement bears witness to the fact that regards the facts complained of by adding the applicant carried out routine work and that the Commission had 'reminded' Mr was involved in work other than that which Van Eick 'on several occasions .

VAN EICK v COMMISSION

tasks in question were in fact not of his level. B — As regards the claims for damages Nevertheless, he occasionally showed evi­ dence of good will and initiative but as he The applicant maintains that the annulment was sometimes criticized for these initiati­ of the contested measures must result in the ves he was obliged to display a certain payment to him, by way of damages, of: caution. — his salary and all the benefits attaching After observing that Mr Eder's statements are not connected with the facts referred to thereto, as from 1 August 1967; — the sums payable by way of the costs in­ in the foregoing recitals, the defendant curred in his defence in the disciplinary maintains that Mr Eder in no way stated proceedings, and as travelling exprenses that the applicant had taken part in work etc., 'other than that which he was expressly — compensation for the non-material requested to carry out' and that neither the damage which he suffered as a result of opinion of the Board nor the contested the considerable difficulties caused by his decision, nor the statement of defence ever dismissal. maintained that the applicant had carried out such work. The defendant maintains that, as the appli­ In addition, the argument that the level of cation for annulment was unfounded for the the work entrusted to the applicant at the reasons set out above, the pecuniary claims library did not correspond to his classifica­ which are submitted as a consequence of tion was formulated for the first time in the that application must also be dismissed. reply and thus constitutes a fresh issue It adds that, in any case, even if the Court within the meaning of Article 42(2) of the were to annul the contested measures in Rules of Procedure. For this reason it is whole or in part, the claim for compensation inadmissible. for the alleged non-material damage must It is, at all events, expressly denied that the be dismissed as such damage would be made post assigned to the applicant included the good by the mere fact of annulment (cf. duties of assistant librarian. Joined Cases 18 and 35/65).

JUDGMENT OF 11. 7. 1968 — CASE 35/67

Substance of the Case

A — Annulment of the opinion of the Disciplinary Board

The applicant maintains, first, that the procedure followed before the Board is contrary to the Staff Regulations of Officials, and in particular to Articles 4, 6 and 7 of Annex IX.

In support of this submission, the applicant argues that the Board infringed Article 4 by deciding to hear only some of the witnesses called by the applicant.

The second paragraph of Article 4 of Annex IX to the Staff Regulations acknow­ ledges that the official charged has the right to call witnesses before the Board. Although, within the context of the powers conferred upon it by Annex IX to the Staff Regulations, the Board is an advisory body of the appointing authority, it is, however, bound in the exercise of its powers to observe the fundamental principles of the law of procedure. In accordance with these principles it could not refuse to comply with an application for the examination of witnesses, once this request clearly indicates the facts on which there is reason to hear the witness or witnesses named and the reasons which are likely to justify their examination. It is, however, for the Board to assess both the relevance of the application in relation to the subject-matter of the dispute and the need to examine the witnesses named.

further information concerning the facts complained of or the circumstances in which they arose, it may order an inquiry 'in which each side can submit its case and reply to the case of the other side'. In the present case the minutes of the meeting of the Board of 28 April 1967 show that in this case the inquiry consisted in a consideration of the documents referred to in the Commission's report to the Board. It is not disputed all the documents submitted to the Board for this purpose were communicated immediately and in their entirety to the applicant, as were the minutes of all the meetings of the Board. The nature of an inquiry, in which each side can submit its case and reply to the case of the other side, did not demand that the official concerned should take part in the examination of these documents by the Rapporteur or in the report which the Rapporteur made to his colleagues in the course of the inquiry, but only that he be kept informed of the conduct of the inquiry and enabled, in good time, to submit his observations on the information obtained. The file shows that this requirement was satisfied by the communication of both the documents and the abovementioned minutes.

As regards the statement about the 'Bird' project, this was information given by a member of the Board to his colleagues which was intended to facilitate com­ prehension of the 'Bird' report which appeared among the documents forming the subject of the inquiry. Such a communication between the members of the Board falls within the sphere of internal discussion, which cannot be taken into account outside the meeting of the Board. The present submission must, therefore, be dismissed.

This evidence was referred to in the minutes of the fourth meeting of the Board and shows that in carrying out a study on the noise of reactors which had been entrusted to him in 1966 the applicant did not show the initiative necessary to ensure that the current work for which he was responsible was carried out. No contradiction can thus be shown to exist between this evidence and the above-

mentioned recital. The present submission must, therefore, be dismissed as un­ founded.

For all these reasons it must be concluded that the proceedings before the Board were conducted in accordance with the Staff Regulations and that the opinion drawn up by the Board at the close of these proceedings on 23 June 1967 must be regarded as regular.

B — Annulment of the decision to remove the applicant from his post

The applicant maintains that the task of hearing the official concerned which the Commission gave to Mr Buurman, a Director at the Directorate-General for Administration, is contrary to the third paragraph of Article 7 of Annex IX to the Staff Regulations. The result of this provision, when considered together with the first paragraph of Article 87 of the Staff Regulations, is to oblige the appointing authority to hear the official itself and to exclude any delegation of powers.

The third paragraph of Article 7 of Annex IX provides that the appointing author­ ity shall take its decision within one month, and 'it shall first hear the official concerned'. In interpreting this phrase it is not possible to refer either to the first or to the second paragraph of Article 87 of the Staff Regulations, as these pro­ visions refer to the hearing of an official in cases or at stages of the disciplinary proceedings which are different from those in this instance.

C — Payment of damages

The applicant claims that the Court should declare and adjudge that following the annulment of the contested decision, he has the right to receive his salary and all the benefits attaching to his position as an official, as from 1 August 1967.

The measure requested is entailed in the execution of the judgment of the Court ordering this decision to be annulled. In accordance with Article 149 of the EAEC Treaty the Commission is required to take the necessary measures to comply with the judgment of the Court of Justice. It is thus unnecessary for any decision to be made on this claim.

In addition, subject to his right to vary this sum in the course of the proceedings, the applicant claims the sum of BF 25 000 by way of damages in respect of the travelling expenses and the costs of his defence which he has incurred in the course of the disciplinary proceedings.

Under Article 10 of Annex IX to the Staff Regulations, costs incurred on the initia­ tive of an official in the course of disciplinary proceedings, in particular fees to a person chosen for his defence from outside the three European Communities, shall be borne by the official where the disciplinary proceedings result in any of the measures provided for under Article 86(2) (c) to (g) of the Staff Regulations. In the present case, as the contested decision to remove the applicant from his post has been annulled, the disciplinary proceedings concerning the applicant resulted in none of the disciplinary measures provided for in that Article. At the present stage of these proceedings, therefore, it is unnecessary for any decision to be made on this claim.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Atomic Energy Community, especially Articles 149 and 152; Having regard to the Staff Regulations of Officials of the European Atomic Energy Community, especially Articles 25, 87 and 91 and Annex IX; Having regard to the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69;

THE COURT (First Chamber)

hereby:

1. Annuls the decision taken by the Commission of the EAEC at its meeting of 4 July 1967 removing Mr August Van Eick from his post;

2. Dismisses the application as unfounded to the extent to which it is directed against the opinion of the Disciplinary Board;

3. Dismisses the claim for damages in respect of the non-material damage which he has suffered;