C-12/68

1. A mistake made by the applicant in prejudice the rights of the defence designating the relevant provision by imposing a disciplinary sanction cannot lead to the inadmissibility of in the absence of the official con­ the submission put forward. cerned, when that absence is attribut­ able exclusively to the behaviour of 2. The disciplinary authority does not the latter.

In Case 12/68

X, a former official of the Audit Board of the European Communities, resid­ ing at Brussels, represented in the written procedure by Marcel Slusny and, in the oral procedure by Henri Rolin, both advocates at the Cour d'Appel, Brussels, with an address for service at the Chambers of Ernest Arendt, avocat-avoue, Centre Louvigny, 34/B/IV rue Philippe-II,

applicant,

v

Audit BOARD of the European Communities , represented by Alex Bonn, advocate at the Cour Supérieure de Justice of the Grand Duchy of Luxem­ bourg, acting as Agent, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22 Côte-d'Eich,

JUDGMENT Issues of fact and of law I — Facts which it found unanimously: — that the theft from the display stand Mr X entered the service of the Audit was not disputed; Board of the European Communities as — that the contents of numerous con­ an auxiliary servant on 15 March 1962. versations held on his own initiative He was appointed as a probationary by Mr X with his immediate superiors official on 15 March 1963, and was and various notes which he had sent established in the post of assistant in to them was evidence of malicious Grade B 3, on 15 September 1963. conduct towards his colleagues which On 5 May 1967, the Audit Board de­ was inexcusable and utterly deplor­ cided to institute prehminary inquiries able; with a view to disciplinary proceedings — although there was no irrefutable against Mr X. He had a preliminary proof that Mr X was responsible for hearing on 12 June 1967 and the Board the theft of documents and was the on 26 September decided to set dis­ author of the anonymous note, his ciplinary proceedings in motion against presence among the staff of the him and to put the matter before the Audit Board constituted a factor caus­ Disciplinary Board. Mr X was informed ing mistrust and discord which was of this on 29 September. highly prejudicial to the proper func­ The report made by the Audit Board tioning of the service. was sent to the President of the Dis­ The Disciplinary Board, in consequence, ciplinary Board on 5 October and to Mr requested the application of Article X. This report sets out the actions of 86(2)(f) of the Staff Regulations, that which Mr X is accused and the circum­ is to say, the removal of Mr X from his stances in which he is said to have com­ post without reduction of entitlement to mitted them. These consisted essenti­ retirement pension. The reasoned opin­ ally in a theft from a display stand in ion of the Disciplinary Board was sent a store in November 1964, in the theft on 2 November 1967 to the President of numerous documents from various of the Audit Board and to Mr X. offices of the Audit Board in August The Board called upon Mr X to appear 1965 and in writing an anonymous note before it to be heard, successively on 25 in November 1965 containing malicious November 1967, 19 January, 27 Febru­ material concerning many members and ary and 26 March 1968. Mr X did not officials of the Board. appear following the three first sum­ The Disciplinary Board met on 25, 26 monses for various reasons (health reas­ and 30 October 1967. It heard Mr X ons, and through the inability of his and numerous witnesses. On 31 October counsel to attend); the Board therefore 1967 it delivered its reasoned opinion in decided that it was not possible to grant

the responsibility for the acts of which At the hearing on 25 February 1969 the Mr X was accused must properly be applicant put forward additional con­ attributed to him and that these acts clusions in which he asked that the which are very serious from a disciplin­ Court should: ary point of view are evidence of moral (a) take notice that he will give up his confusion and flagrant misconduct which employment within the Audit Board present an obstacle to the continuing at the date on which the decision to presence of this official in the service.' remove him from his post is annulled The Board therefore unanimously de­ by a judgment; cided to remove Mr X from his post (b) allow him to prove by all legal with effect from 1 April 1968 but that means, including witnesses, certain measure did not include either the re­ facts concerning his failure to appear duction of withdrawal of any right he in response to the two last sum­ might have to a retirement pension. Mr monses from the Audit Board. X disputed that decision by an applica­ The defendant contends that the Court tion made on 20 June 1968. should: (a) hold the application to be unfounded II — Procedure and dismiss it in its entirety; (b) make an appropriate order as to costs. The written procedure followed the nor­ mal course. By an Order of 24 October It asks the Court to reject the additional 1968, the Court (Second Chamber) gran­ conclusions of the applicant as inadmis­ sible. ted the applicant free legal aid. The Court (Second Chamber) upon reading the preliminary report of the IV — Submissions and argu­ Judge-Rapporteur and hearing the views ments of the parties of the Advocate-General, decided to open the oral procedure without any The submissions and arguments of the preparatory inquiry. parties may be summarized as follows: The oral submissions of the parties were A — The application for annulment presented at the hearing on 25.2.1969. The Advocate-General delivered his 1. The submission based on Article 87

ever, justified his absences whether they exact meaning of the submission and concerned the state of his health which has replied to it. Furthermore, there is prevented him from complying with the a direct link between Article 87 of the summons or the fact that his advocate, Staff Regulations and Annex IX. The who himself was prevented from attend submission is therefore admissible. ing, and asked for the adjournment of The defendant, in respect of the sub his hearing, or the fact that he was in stance of the case and arguing in the sufficiently informed of the exact inten alternative, considers that it must be tions of the Board. There had not been stated that although Mr X was not heard on his part any ill will or a fortiori any by the appointing authority after the wrongful omission. opinion of the Disciplinary Board and Furthermore, since the Audit Board had before the disciplinary decision, it is agreed that the applicant should be de because he twice refused to appear fended by an advocate—a step which whilst he was medically able to do so was necessary both because of the men and because his hearing had been re tal condition of Mr X and because of peatedly adjourned.

2. Submission based on Article 110 of out its obligation to hear him, the ap the Staff Regulations plicant states nevertheless that it did not comply with that essential procedural The applicant maintains that respect for requirement although many dates had the rights of the defence requires that been proposed to it which were close to an official who has been found guilty the one prescribed in its summons. without having been heard may appeal The defendant by way of introduction against a disciplinary measure thus taken mentions that the originating application in default. Although Article 110 pro wrongly relies on an alleged infringe vides that general provisions for giving ment of Article 87 of the Regulations, in effect to the regulations shall be adopted that the applicant was not heard before by each institution, the exercise of the the decision of the Disciplinary Board right to appeal against these is not

X v AUDIT BOARD

It recognized by the Convention for the cannot therefore, several years later, be Protection of Human Rights and Funda raised against the applicant. mental Freedoms to oppose a decision Lastly it is in no way established that given in default of appearance. On this the applicant was responsible for the point, the provisions of the regulations theft of documents and for the anony are not themselves sufficiently explicit. mous note. In this respect the accused The defendant complains that the appli must have the benefit of the doubt. cant appears not to know that it is not The Audit Board confuses the undesira possible by general provisions for giving bility of retaining Mr X in its service, effect to the Staff Regulations to intro because of relationships which he has duce appeals through channels which had with other members of the staff, have not been provided for by the with a disciplinary measure which it can regulations. impose upon him only in respect of matters for which it is proved that he

Its examin part. In the present case the failures of ation has to be confined to the com which he is accused may be attributed plaints of illegality, that is to say, any only to his state of ill health which ex failure to comply with the requirements cludes any wrongful act or omission in of the Staff Regulations, without its the disciplinary sense. being able to deal with the substance The actions complained of in respect of of the case. the applicant are clearly of a pathologi The competent authority decided, with

JUDGMENT OF 7. 5. 1969 — CASE 12/68

view. Article 86 was thus not infringed. fore the Audit Board take part in the As a subsidiary matter the defendant final phase of the proceedings com­ points out on the one hand that Mr X menced against him. did not himself put forward at his hear­ ing the excuse that he was not respons­ B — The claim for damages ible for his actions by reason of a nervous disorder, and on the other hand The applicant relies both on material that his work and dedication for many damage consisting of the non-payment of years, his medical history, the acts of his salary and ancillary benefits as well which he is accused and the care which as non-material damage. Both are said he took with regard to the details of to be due to the unlawful act or omis­ their performance disclose nothing to in­ sion for which the Audit Board has dicate such a lack of responsibility. It made itself liable. was only in November 1967, after the The defendant is of the opinion that procedure before the Disciplinary Board, the claim for damages is unfounded, the that Mr X was admitted to a clinic for Audit Board having only followed dis­ nervous illnesses. The doctor treating ciplinary procedure in the strictest ac­ him considered, furthermore, in Febru­ cordance with the forms laid down in ary 1968, that he could by appearing be- the Staff Regulations.

Grounds of judgment

1 The application is for the annulment of the decision taken on 26 March 1968 by the Audit Board to remove the applicant from his post following dis­ ciplinary proceedings.

X v AUDIT BOARD

6 The Audit Board has disputed the admissibility of this submission, which is based on Article 87 of the Staff Regulations, since the relevant provision is the last paragraph of Article 7 of Annex IX to the said Regulations. 7 A mistake made by the applicant in designating the relevant provision cannot however lead to the inadmissibility of the submission put forward. 8 It is not disputed that the disciplinary proceedings against the applicant were properly initiated and pursued as regards the stages prior to the meeting of 26 March 1968 during which the Audit Board took the decision which is the subject of the application. 9 The dispute is solely concerned with the fact that the Audit Board took a decision without having heard the person concerned as is required by Article 7 of Annex IX to the Regulations. 10 Before the meeting of 26 March 1968 the Audit Board three times adjourned the hearing of the applicant, twice in view of his state of health, and the third time, although the applicant had been found medically fit to answer this summons, because counsel whom he had asked to 'be allowed to accompany him was not available.

1 On being summoned for the fourth time to attend, on 26 March 1968, the applicant failed to appear before the Audit Board. 12 In view of these circumstances the reasons put forward in the last instance by the applicant to explain his absence cannot be regarded as amounting to a valid excuse.

13 After trying several times to secure the appearance of the applicant, the Audit Board was entitled to continue even in his absence.

3. Submission based on Article 86 of the Staff Regulations 25 The applicant complains that the Audit Board charged him with misconduct which he denies having committed, or for which at least, if he did so, he denies that he was responsible in law. 26 Furthermore he states that one of the matters considered by the Audit Board had already been the subject of previous disciplinary proceedings.

(a) Proof of the facts:

27 The dispute in respect of the proof of the facts concerns only the third piece of misconduct taken into account by the disciplinary authority—theft of docu­ ments and dissemination of an anonymous note. 28 Although it is true that certain doubts still existed during the preparatory stage of the disciplinary proceedings, the Audit Board, in the decision which adversely affects the applicant, states expressly that it had no hesitation in finding that the facts alleged against the applicant had been proved. 29 The applicant has not put before the Court anything which might raise doubts whether the finding of the Audit Board was in accordance with the truth of the matter.

X v AUDIT BOARD

(b) The earlier disciplinary proceedings: 30 The applicant points out that the first of the complaints accepted as proved by the Disciplinary Board—theft from the display stand—gave rise at the time to proceedings within the Audit Board which did not however end in a disciplinary measure.

31 Furthermore a judicial inquiry opened in respect of the same facts ended an order that the matter lie on the file.

37 These circumstances, although not raised by the applicant during the dis­ ciplinary proceedings, were known by the Disciplinary Board and the Audit Board.

38 At least the medical certificates put forward by the applicant in the final stage of that procedure would have justified an investigation into his mental state at the time of the conduct in question.

39 In the decision which is the subject of the application, the Audit Board held the acts complained of to be attributable to the person concerned and that he was responsible for them.

JUDGMENT OF 7. 5. 1969 —CASE 12/68

40 Nevertheless neither the terms of the decision nor the information provided by the defendant make it possible, as things stand, to evaluate the justifica­ tion of the contested decision in respect of the applicant's responsibility for the conduct in question.

41 There is therefore reason to call for an expert's report in order to establish whether at the time of the acts which gave rise to the disciplinary decision, the applicant was mentally disturbed to such an extent as to exclude respon­ sibility for his conduct.

C — Costs

46 It is appropriate to reserve the costs until the decision bringing the proceed­ ings to a close.

Upon reading the pleadings; Upon hearing the parties; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 86, 87 and 110, as well as Article 7 of Annex IX thereto; Having regard to the Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the European Economic Community and the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

X v AUDIT BOARD

THE COURT (Second Chamber)

hereby rules:

Mr President, Audit Board to take its decision '. . . Members of the Court, within one month; it shall first hear the official concerned'. In fact, for reasons Mr X who entered the service of the which I shall mention in a moment, be­ Audit Board of the European Commun­ cause they are the basis of the first sub­ ities on 15 March 1962 as an auxiliary, mission raised in support of the appli­ was established in a post of assistant in cation, that hearing was not held and, Grade B 3 as from 15 September by a decision of 26 March 1968, the 1963. Audit Board removed Mr X from his Following several incidents to which I post with effect from 1 April 1968, that must return, the institution to which he measure involving neither reduction nor belonged commenced disciplinary pro­ withdrawal of any right which he had ceedings against him in 1967 in the cir­ to a pension. cumstances provided for by Article 87 Mr X asks you to annul that decision of the Regulations. These proceedings and to order the opposite party to pay first followed their normal course and the him a sum of BF 200 000 by way of Disciplinary Board, after hearing Mr X material and non-material damages. and various witnesses, by a reasoned In the oral proceedings he put forward opinion of 31 October 1967 unanimously conclusions asking you to take note that proposed that he be removed from his should a judgment be delivered annulling post without reduction of his right to the decision he would give up his em­ retirement pension. It remained, accord­ ployment with the Board on the date of ing to the wording of the third para­ such judgment. Such conclusions appear graph of Article 7 of Annex IX, for the to me to be entirely irrelevant to the