C-13/69

JUDGMENT OF 4. 2. 1970 — CASE 13/69

In Case 13/69

August Joseph van Eick, a former official of the Commission of the European Communities, residing at Ispra, represented by Ernest Arendt, avocat-avoué, with an address for service in Luxembourg at the Centre Louvigny, 34b/IV rue Philippe- II,

applicant,

ν

Commission of the European Communities, represented by its Legal Adviser, Jürgen Utermann, acting as Agent, with an address for service in Luxembourg at the Chambers of Emile Reuter, Legal Adviser of the Commission, with an address for service in Luxembourg at 4 boulevard Royal, defendant,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure of the former Commission of the EAEC of 4 July 1967, by which the applicant was By a judgment of 11 July 1968 (Case 35/67), removed from his post following a dis­ the Court of Justice annulled the decision ciplinary procedure.

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upon my energy . . . In order to regularize tions'; he added: 'In view of the state of matters I desire at the same time to satisfy affairs, I shall consider, unless the Com by this letter, the obligations which derive mission expressly requires something else from the third paragraph of Article 12 of from me, that I have properly complied with the Staff Regulations, in respect of the its request'. above-mentioned activities, in so far as that The three members entrusted with the hear article is applicable in this connexion'. ing thus decided to refer the matter verbally The Commission replied to him by letter to the Commission by submitting proposals of 1 August 1968 in which after explaining as to the further course of the procedure. that the questions concerning his reinstate

ment'. II — Conclusions of the parties By letter of 20 September 1968 the Direc torate General of Personnel and Adminis The applicant claims that the Court should : tration summoned the applicant to attend (1) Annul the decision of 18 December a meeting 'in order to allow (his) adminis- 1968 for infringement of an essential

procedural requirement, as being ultra since the situation would be the same in case vires or for misuse of powers and on the of the annulment of the contested decision, ground of a mistake of fact; and hold this head of the conclusions must at the consequently that the applicant has a present stage of the proceedings be regarded right to the salary and all other allow as inadmissible. ances and payments attaching to the position of an official as from 1 January 1969; The substance of the case (2) Hold that the defendant is obliged to reimburse the applicant for the costs A — The application for annulment occasioned by the disciplinary pro

post, adopted on 18 December 1968, is out The defendant contends that the Court of time and void in view of the actual should: wording of the above-mentioned provision. (1) Reject the submissions and requests put It follows that the disciplinary procedure forward by the applicant ; and the opinion of the Disciplinary Board (2) Order him to pay the costs of the pro must be regarded as null and void, the ceedings to the extent provided for in nullity of these measures being only the Article 70 of the Rules of Procedure logical consequence of the failure to adhere of the Court. to the time-limit laid down by the third

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limit. Article 7 of Annex IX to the Regulations It is a matter of a provision which is based must to a great extent be attributed to on concern for good administrative man reasons beyond the control of the Com agement regarding which the laws of the mission, since the judgment of the Court was Member States in respect of criminal pro given just before the holidays and at the cedure include many examples. time when the new Commission had just Furthermore it is not possible to complain carried out the re-organization of its ad that the Commission delayed its final ministrative departments after the merger decision without good reason. of the executives. The procedure followed from the Court's In any case the third paragraph of Article 7 judgment of 15 July 1968 until the decision mentioned above does not lay down an of 18 December 1968 proves, on the exclusionary limitation period, which, how contrary, that the Commission was moti ever, clearly does not imply that the

such a contribution either before or after scribed by Articles 90 and 91 of the Staff the judgment of the Court. Regulations. In fact the disciplinary measure of removal The attitude of the representatives of the from post amounts in the present case to Commission since the interview of 3 disguised dismissal for incompetence with October 1968 is far from compatible with out the appropriate provisions and pro the 'duty to assist' which, the defendant cedure prescribed by the Staff Regulations claims, influences it in respect of him, since having been observed. on that occasion the Director General of The defendant replies that the contested Personnel and Administration informed decision was not to the slightest extent him of the intention of the Commission to motivated by considerations of expediency remove him from his post and advised him such as the applicant believes he finds in the

reasoning mentioned above, but that it is by the very terms of that letter the applicant intended only to state that, in view of the said he was ready to take up his duties serious shortcomings justifying disciplinary without awaiting the end of the disciplinary measures, the Commission has chosen, from procedure. It was in this sense that the amongst those laid down by the Staff relevant department of the Commission Regulations, the disciplinary measure which replied to him that it was considering the appeared to it to be the most appropriate; mode of his reinstatement, that is to say, a such a choice embodies within it a judgment return to his duties, while waiting for a of expediency. final decision to be arrived at. Although the Commission has refused to

competence. employment. Moreover, no misuse of powers would have been possible on this point, since the procedure applicable to dismissal for in 4. Wrong evaluation offacts (in the further competence is in any case the same. alternative) The applicant replies that the contested decision had clearly already been taken The applicant maintains that the evaluation before 18 December 1968, since its wording of his behaviour appearing in the contested is identical with that of the decision of 4 July decision, particularly in the third recital, is 1967 which was annulled by the Court. incorrect and in any case too severe. It was to avoid adopting it that the Director The Commission neglected to take into General of Personnel and Administration account that his employment in the library suggested to him at the meeting of 3 at Ispra was not a duty to which his pro October that he should resign voluntarily. fessional training was suited; and that, Thus the procedure set in train after the further, not only did he prove his spirit of judgment of 11 July 1968 was no more than initiative but moreover his day-to-day work a pure formality, since that judgment should gave rise to no criticism. at least have prompted the Commission 'to The Court is in the present case entitled by give a chance to the applicant' who had reason of the nature of the application to already put himself at its disposal by his substitute its own decision for that of the

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The defendant observes that the third recital rights are, as regards fact and law, sovereign of the decision in dispute, referred to by and unlimited. the applicant, repeats the opinion of the The defendant raises the objection that in Disciplinary Board of 23 June 1967. Since Case 35/67 the applicant not only criticized the Court in its judgment of 11 July 1968 the form of the opinion of the Disciplinary has annulled the contested decision to Board but, by means of the submission remove the applicant from his post but has made against the decision of the Commis­ left intact the procedure before the Disci­ sion, he also criticized that opinion as re­ plinary Board and the opinion expressed gards its substance to the extent to which by the latter, this submission must be re­ the contested decision repeated its recitals. garded as inadmissible, to the extent to It is, in addition, incorrect to state that the which it calls in question the said recital. present proceedings put property rights in The arguments of the applicant concerning question so that the Court, which has un­ the nature of the work carried out before limited jurisdiction, could impose a less his appointment to the library, the nature disciplinary measure than that which is of his employment in the library and his contested. spirit of initiative are without foundation. On the one hand, the main head of the Furthermore, in the operative part of his application concerns the annulment of a application the applicant has requested only decision of a disciplinary nature and is not the annulment of the contested measure, principally directed towards obtaining a without asking the Court itself to take a declaration that the Commission owes a decision on a disciplinary matter. sum of money and, on the other hand, it is This should not cause any surprise, since the the annulment of the contested disciplinary Court has never considered that it should measure rather than the imposition by the substitute its own decision for that of the Court of another less severe disciplinary institutions, and since it is not for the Court measure that the application seeks. to direct the institutions to take this or that measure.

1 The applicant maintains that the contested decision infringes the third paragraph of Article 7 of Annex IX to the Staff Regulations of Officials in that it was adopted after the expiry of the period laid down therein which was in the nature of a period of limitation.

2 Under the third paragraph of Article 7 of Annex IX to the Staff Regulations the appointing authority is to take its decision within one month.

3 Taking account of the special features inherent in the subject-matter governed by Annex IX to the Staff Regulations and having regard to the other provisions of that Annex applicable to disciplinary proceedings, the time-limit laid down by the above- mentioned article cannot be regarded as a mandatory period of limitation the failure to observe which entails the nullity of the measures adopted after its expiry.

4 By fixing this time-limit that article lays down a rule of good administration, the purpose of which is to avoid in the interests both of the administration and of officials unjustified delay on the part of the appointing authority in adopting the decision terminating the disciplinary proceedings.

5 However, to admit that it is of no effect would devest this provision of its legal content.

6 Prompted by the necessity to ensure the efficient and equitable working of dis­ ciplinary proceedings, that provision imposes on the institution the obligation to use its best endeavours to observe the time-limit fixed.

12 It is not disputed that during the meeting on 3 October 1968 the appropriate de­ partments of the Commission considered with the applicant all the consequences; including that of removal from post, which the opinion of the Disciplinary Board as well as the aforementioned judgment of the Court might have for him.

13 In the present case that examination would have been neither possible nor useful if the disciplinary file of the applicant had not been at that time sufficiently complete to enable the appointing authority to take its decision under the third paragraph of Article 7 of Annex IX to the Staff Regulations.

14 From this it may be inferred that at the time of that meeting the difficulties relat- to the re-structuirng of the departments on which the defendant relied had dis­ appeared.

15 On the other hand, on the same occasion the Commission discharged its duty of help towards the applicant by informing him of the consequences of a possible removal from his post and by suggesting to him measures which it considered capable of reconciling his personal interests with those of the institution.

16 It thus follows that the difficulties relied upon by the defendant, even if they might initially have delayed the application of the third paragraph of Article 7 of Annex IX to the Staff Regulations, are not of such a character as to justify the delay which in fact occurred in the adoption of the disputed decision.

17 The length of this delay cannot be explained solely by the sometimes inevitable slowness of the administrative machine.

22 The applicant deduces from these circumstances that the contested decision con­ stitutes a misuse of powers.

23 The reasons given for the disputed removal from post are the conclusions reached by the Disciplinary Board following an inquiry concerning the conduct of the applicant in the service.

24 The evaluation of the seriousness of the shortcomings of which the Disciplinary Board thus found the applicant to be guilty and the choice of the disciplinary measure which appears, in view of these shortcomings, as being the most appro­ priate lie within the discretionary power of the appointing authority.

25 In the present case the applicant has shown nothing of a factual or legal nature capable of demonstrating that this evaluation bore no relationship to the short­ comings established or that the disciplinary measure imposed was disproportionate to the facts found against him.

26 This submission must therefore be rejected as unfounded.

(c) Wrong evaluation offacts

32 According to Article 42 of the Protocol on the Statute of the Court of Justice of the EAEC, an application for revision of a judgment may be made only on discovery of a fact which is of such a nature as to be a decisive factor and which, before the judgment was given, was unknown to the Court and the party claiming the revision.

33 The matters of fact alleged in support of the present submission were not unknown to the applicant before the judgment of 11 July 1968.

34 Therefore this submission, which is in conflict with the effects of res judicata, must be rejected as inadmissible.

Β — The claim for reimbursement of costs occasioned by the dis­ ciplinary proceedings

35 The applicant claims under Article 10 of Annex IX to the Staff Regulations of Officials reimbursement of the costs which he incurred during the course of the disciplinary proceedings.

36 Under that provision costs incurred on the initiative of the official concerned during such proceedings, in particular fees due to a person chosen for his defence from outside the 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.

damages because it acted improperly when it adopted thé contested decision and because of this committed a wrongful act.

41 An action for damages must be founded on the one hand upon the existence of an unlawful act or omission on the part of the institution responsible and on the other on the existence of present damage resulting from that act or omission.

42 In the present case the applicant has indicated nothing capable of enabling the nature or existence of such damage to be established.

43 In these circumstances his claim must be rejected as unfounded.

Costs

44 The applicant has failed in his application.

1. Dismisses the application as unfounded;

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2. Orders the parties to bear their own costs.

Monaco Donner Mertens de Wilmars

Delivered in open court in Luxembourg on 4 February 1970.

A. Van Houtte R. Monaco

Mr President, by letter of 12 August 1968 in which he Members of the Court, stated again that he held himself at the disposal of the Commission with a view to The case upon which I have to give my taking up active service again, he was invited opinion today is connected with Case 35/67. by letter from the Directorate General of In respect of the main points I can therefore Personnel and Administration dated 20 refer to the facts of that case and have September 1968 to a meeting during which therefore only to mention briefly the the various aspects of his administrative following: situation were considered. The meeting was As you know, after conducting formal dis­ held on 3 October 1968. It remained how­ ciplinary proceedings the Euratom Com­ ever without result, since according to the mission decided on 4 July 1967 to remove undisputed statement of the applicant the the applicant from his post as from 1 only advice given to him, which he did not August 1967. That decision was annulled accept, was to resign voluntarily from the by the judgment of the Court of 11 July service. Later in accordance with the 1968 on the ground that the Commission judgment of the Court of 11 July 1968 the could not delegate one of its officials to hold Commission by a decision of 13 November the final hearing "of the applicant provided 1968 entrusted three of its members to for by the third paragraph of Article 7 of conduct the hearing required by Article 7 Annex IX to the Staff Regulations. It was of Annex IX to the Staff Regulations. The consequently clear that the applicant re­ hearing should have taken place on 10 mained in the service of the Communities. December 1968 in Brussels. Although he By letter of 20 July 1968, the applicant received in good time the letter of 20 stated that he was available to serve the new November 1968 calling upon him to attend, single Commission which had been formed the applicant did not comply with the in the meanwhile. However the applicant summons. He confined himself instead to was not actually reinstated. By letter of 1 stating in a letter of 6 December 1968 that August 1968 the Commission informed him because of circumstances he had nothing to first of all that the question of his reinstate­ say except to reserve his position. That ment was being examined and that he could situation led the Commission on 18 apply for leave on personal grounds or December 1968 to adopt a decision termi­ possibly take the annual leave to which he nating the disciplinary proceedings without was entitled. After the applicant had replied having heard the applicant. Taking account 1 — Translated from the German.