C-57/70

v

Commission of the European Communities , represented by its Legal Adviser, J. H. J. Bourgeois, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal, defendant,

Application for the annulment of the decision of 14 July 1970 by which the Commission refused a request by the applicant for 'the restoration to him of his right to be heard in accordance with the provisions of the third paragraph of Article 7 of Annex IX. to the Staff Regulations, for compensation for the decision of 18 December 1968 to remove him from his post and for redress for the material consequences of the said decision,

THE COURT (Second Chamber)

composed of: A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

I — Facts to him of his right to be heard in ac­ cordance with the third paragraph of On 4 July 1967 the Commission of the Article 7 of Annex IX to the Staff Regu­ EAEC decided, consequent upon dis­ lations, for the revocation of the decision ciplinary proceedings, to terminate as of 18 December to remove him from his from 1 August 1967 the service of Mr post and for compensation for the mater­ A. J. van Eick, a scientific officer at­ ial consequences of the said decision. tached to the Ispra Research Centre. On 14 July 1970 the Commission in­ By judgment of 11 July 1968 (Case formed Mr van Eick that in its view his 35/67, [1968] ECR 329) the Court (First case was settled once and for all by the Chamber) annulled this decision to re­ Court's judgment of 4 February 1970. move him from his post because the Commission, as the appointing authority, had not itself heard Mr van Eick as II — Procedure required by the third paragraph of Article 7 of Annex IX to the Staff Regu­ On 18 September 1970 Mr van Eick lations but had delegated this power to lodged the present application. one of its officials. The written procedure followed the nor­ On 20 November 1968 the Director- mal course. General of Personnel and Administration Upon hearing the report of the Judge- summoned Mr van Eick to attend a hear­ Rapporteur and the views of the Ad­ ing conducted by the members of the vocate-General, the Court (Second Commission on 10 December 1968. Chamber) decided to open the oral pro­ By letter of 6 December 1968 Mr van cedure without any preparatory inquiry. Eick informed the Commission that the The parties presented oral argument at reasons for the hearing had not been the hearing on 5 May 1971. made known to him, that 'in view of the The Advocate-General delivered his circumstances' he would have 'nothing opinion at the hearing on 9 June 1971. to say except to put forward (his) reser­ vations and that he would consider, un­ III — Conclusions of the less the Commission expressly required parties something else from him, that he had properly complied with its request. On 18 December 1968 the Commission The applicant claims that the Court decided to remove Mr van Eick from should: his post and to terminate his service as — declare to be well-founded his request from 1 January 1969. for the restoration to him of his right By judgment of 4 February 1970 (Case to be heard by the Commission in 13/69 (Rec. 1970, page 3)) the Court accordance with the third paragraph (First Chamber) dismissed the applica­ of Article 7 of Annex IX to the Staff tion whereby Mr van Eick sought in Regulations; particular the annulment of the Com­ — direct the Commission to re-open the mission's decision of 18 December 1968. disciplinary proceedings in his case; By letter of 12 May 1970 Mr van Eick, — alternatively, take such decisions as referring to the judgments of the Court shall appear to it to be just; of 11 July 1968 and 4 February 1970, — order the Commission to bear the asked the Commission for the restoration costs.

of Article 91 (1) of the Staff Regulations, (d) The Court 's findings in its judgment the fact that the competent authority did of 4 February 1970 as regards the delay not comply with this formal condition with which the decision of 18 December would not of itself have direct conse­ 1968 to remove the applicant from his quences on the legal position of the post was taken cannot constitute an im­ official in question. portant new factor in relation to the lack In the context of an appeal to the Court of a hearing. The appeal is therefore out the hearing of an official cannot be re­ of time. garded as an administrative decision (e) If one were to take the view that the which can be dissociated from a decision applicant is not seeking the annulment pronouncing disciplinary action. But an of an act adversely affecting him but is appeal can only be brought against de­ asking for a new hearing by way of cisions which have direct consequences compensation for damage in the context on the legal position of an official. For of an action founded on the liability of the it to be possible to contest a preparatory administration, it would have to be said measure by way of appeal the measure that an action which is in a sense one must, of itself and directly, have an ad­ for compensation and the subject-matter verse effect on the interests of the official of which is essentially the same as the and must do so from the point of view applicant's previous action is inadmis­ of the final decision. It must as it were sible. anticipate the final decision, for example (f) Furthermore, the appeal would not by laying down at that stage certain be admissible if it were accepted that conditions detrimental to the official. The the applicant is only contesting as a fact that there has been no hearing of procedural matter the alleged failure on the official in the context of disciplinary the part of the Commission to hear him proceedings has no significance in itself and that he is in fact bringing a new

appeal against the decision of 18 Decem make good the damage caused to the ber 1968 which provided for disciplinary applicant, as found toy the Court in its action. This is because the appeal must judgment of 4 February 1970, were fail in face of the force of res judicata not established and did not come to the and, what is more, it cannot be regarded applicant's knowledge until after that as a request for the revision of the judgment had been delivered.

at all. This state of affairs is due to the quence is the preparation of a decision to fact that the Commission's letter of 20 be taken concerning him. November 1968 contained no mention By not hearing an official at a time when of the reasons why it was necessary to it is preparing a disciplinary decision, hear him. the Commission is acting in a manner When an official fails to answer a sum which violates fundamental legal prin mons or does so inadequately it is the ciples.

By virtue of Articles 146 ent attitude in the present case, the and 148 of the EAEC Treaty, such an Commission has not measured up to its act gives rise to a right of action, since responsibilities as an employer. the Commission refused to comply with In the present case it was not without the reasoned request contained in the reason that the applicant failed to com applicant's letter of 12 May 1970. ply with the summons of 20 November (c) The Commission cannot hope to suc 1968 since it was lacking in clarity and ceed in its attempt to have the appeal gave inadequate notice. dismissed by relying on the principle of Owing to a wrongful act or omission on res judicata since the subject-matter of the part of the Commission, the appli the present appeal differs from that of cant was not in a position to ascertain the two previous ones. what was the exact significance of the The applicant's present claim is in the summons at the time when he received first place to be given the opportunity it. The purpose of hearing an official is of exercising a right to which he is not to inform him in the course of the entitled and which he has not exhausted: hearing of the reasons why he is being the right to be heard in the course of heard but to give him the opportunity an investigation concerning him. of submitting arguments in his defence. (d) The wrongful act or omission on the An official must therefore be summoned part of the Commission and its duty to in good time and in the appropriate

manner and the reasons for the hearing December 1968 the fact that the sum should be mentioned. mons was alleged to give inadequate The failure to comply with the time- notice could not, on any view, have limit laid down in the third paragraph placed the Commission under a duty to of Article 7 of Annex IX to the Staff summon him a second time. The appli Regulations had the effect of severing, cant himself did not ask for his hearing from the administrative point of view, to be adjourned. the connexion with the previous pro The applicant's reference to the judg ceedings before the Disciplinary Board. ment of 4 February 1970 cannot help The Commission was thus under a duty him: that judgment is only concerned to answer the applicant's letter of 6 with the failure to observe the time- December 1968 and to summon him limit by which the appointing authority to a hearing, giving him the reasons is bound to take its decision relating to why he should be heard. Its failure to do the application of a disciplinary measure, so entails the sanction which the Court, and decided that the failure to observe in its judgment of 4 February 1970, the said time-limit did not render the attached to the unjustified failure to decision taken by the defendant on 18 comply with the said time-limit, that December 1968 null and void. is to say, the obligation to restore to Moreover, the Commission's letter of the applicant his right to be heard. 20 November 1968 expressly stated that The direct consequence of the failure the hearing would take place in accord to answer the applicant's letter of 6 ance with the provisions of the third December 1968 was that he was not paragraph of Article 7 of Annex IX to heard before the decision of 18 Decem the Staff Regulations.

It The applicant was therefore adversely cannot be inferred from the applicant's affected by the failure to hear him. letter of 6 December 1968 that he wished The Commission 's reply to the applicant 's to be given particulars of the exact sub arguments runs essentially as follows: ject-matter of the summons. Finally, the It is odvious that it is possible to take applicant's request of 12 May 1970 a decision in a disciplinary matter with proves that he was in no doubt as to out having heard an official who, with what that subject-matter was. out good reason, fails to appear. In the circumstances the applicant's There is no provision which requires the relating to the failure to hear him before administration to remind an official of the disciplinary measure was issued on the import of the summons addressed 18 December 1968 rebound on him and

JUDGMENT OF 24. 6. 1971 — CASE 57/70

it were regarded as an action founded alleged by the applicant is due to his on the liability of the administration: in own conduct and it is doubtful whether the present case there is no illegal con­ it is of such a nature as to give rise to duct and no wrongful act or omission on an action founded on the liability of the the part of the Commission. The damage administration.

Grounds of judgment

1 The appeal is for the annulment of the decision of 14 July 1970 by which the Commission rejected the applicant's request of 12 May 1970 for the revocation of the decision of 18 December 1968 to remove him from his post and for the restoration to him of his right to be heard under the third paragraph of Article 7 of Annex IX to the Staff Regulations of Officials in the disciplinary proceedings initiated against him.

2 It should be recalled that a first decision issued on 4 July 1967 removing the applicant from his post was annulled by the judgment of the Court of 11 July 1968 for the sole reason that the Commission, as the appointing authority, had not itself, in accordance with the third paragraph of Article 7 of Annex IX to the Staff Regulations, heard the applicant, but had delegated this authority to one of its officials.

3 Following this judgment the applicant was summoned to appear at his hearing before three members of the Commission but failed to comply with the summons.

Costs

8-9 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. The applicant has failed in his submissions.

10 Although under Article 70 of the Rules of Procedure the costs incurred by the institutions in proceedings commenced by servants of the Communities shall be borne by the former, this provision makes an exception in the case of costs regarded as unreasonably or vexatiously occasioned within the mean­ ing of the second subparagraph of Article 69 (3).

11 In view of the applicant's conduct during the disciplinary proceedings which led up to the decision of 18 December 1968 to remove him from his post and of the clear inadmissibility of the present application, his action must be regarded as an abuse of the process of the Court.

12 The mitigating provisions of Article 70 of the Rules of Procedure cannot be extended to an action brought in these circumstances.

13 Accordingly the applicant must be ordered to bear the entire costs of the proceedings.

Trabucchi Pescatore Kutscher

Delivered in open court in Luxembourg on 24 June 1971.

A. Van Houtte A. Trabucchi Registrar President of the Second Chamber