C-46/72
ECLI:EU:C:1973:57
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JUDGMENT OF THE COURT (SECOND CHAMBER) 30 MAY 1973 1
Robert De Greef
v Commission of the European Communities
Case 46/72
1. Officials — Appointing Authority — Powers — Exercise — Formalities — Division of functions — Deviations therefrom — Sub-delegation of powers — Admissibility — Conditions (Decision of the Commission of 26 February, 1971, Article 5)
2. Officials — Disciplinary proceedings — Procedure — Documents — Signature by the Chairman of the Disciplinary Board — Admissibility (Staff Regulations, Annex IX, Articles 8 and 9)
3. Officials — Disciplinary proceedings — Disciplinary measures — Gravity of acts alleged — Disciplinary Authority — Power of assessment — Court of Justice — Powers of interfering — Extent (Staff Regulations, Article 87 and 91)
1. The sub-delegation of powers or procedure merely constitutes the deviation from standards laid down normal exercise of his prerogatives, by the Commission in its Decision of which include the power of certifying 26 February 1971, for the division of the regularity of the procedure and of functions within the service, cannot authenticating the Board's documents. render void an act done by the administration, unless it involves the 3. Once the truth of the fact alleged possibility of adversely affecting one against the official has been of the guarantees given to officials by established, the choice of disciplinary measure is a matter for the the Staff Regulations or the principles of good administration in staff disciplinary authority. It is not a matter for the Court to substitute its management. own judgment for that of the 2. The signature by the Chairman of the disciplinary authority, except in cases Disciplinary Board of various of obvious disproportion or abuse of documents relating to the disciplinary power.
In Case 46/72
ROBERT DE GREEF, a former official of the Commission of the European Com munities, residing at St. Josse-ten-Noode, Brussels, represented by Maître
1 — Language of the Case: French.
JUDGMENT OF 30. 5. 1973 — CASE 46/72
Philippe Nimal, advocate of the Brussels Court of Appeal, with an address for service at Luxembourg at the chambers of Maître Jacques Mersch, 11a boulevard Prince Henri,
applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Mr Louis de la Fontaine, its legal adviser, as agent, with an address for service in Luxembourg at the chambers of its legal adviser Mr Emile Reuter, 4 boulevard Royal, defendant,
Application for annulment of the decision of suspension of the applicant from his post, of the opinion of the Disciplinary Board in respect of him, of the decision of removal of the applicant from his post, and for damages.
THE COURT (Second Chamber)
composed of: P. Pescatore (Rapporteur), President of Chamber, M. Sørensen and A. J. Mackenzie Stuart, Judges,
Advocate-General: A. Trabucchi Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of facts De Greef resumed his functions of usher-receptionist with the Directorate Mr Robert De Greef, a Belgian national, of Property and Internal Services, entered the service of the Commission of (Conference Service) on 13 July 1964. the EEC on 25 September 1959, as an He was appointed to Grade D 2, step 1, usher. as from 21 January 1965. A decision to cancel his contract of On 9 December 1971 an official in the employment, dated 28 June 1963 having Personnel Division addressed a report to been annulled by judgment of the Court the Director of Personnel of the of Justice (Second Chamber) of 1 July Commission concerning the circum 1964 (Case 80/63, Rec. 1964, p. 767), Mr stances surrounding the entry into
DE GREEF v COMMISSION
service of a temporary member of the his lawyer), Mr Drescig and several staff. witnesses.
It appeared from this report that Mr De At its last meeting on 7 March 1972, the Greef had been an accomplice of another Disciplinary Board issued a reasoned official of the Commission, Mr. opinion in which it expressed the view Giuseppe Drescig, who had extorted a that the correct way of dealing with the sum of money from this person in order matter would be to apply to Mr De to enable her to enter the service of the Greef the penalty of removal from his Commission. post without reduction or withdrawal of On 20 December 1971, an official of the his entitlement to retirement pension. Security Department of the Commission This opinion was on 16 March 1972 prepared for the Directorate of that forwarded to the Director of Personnel. department a report on the enquiries which he had made in relation to the Mr De Greef was on 5 April 1972 heard activities of Mr De Greef and Mr by the Commission's Director-General of Personnel and Administration as
Drescig. provided for in the third paragraph of On 21 December 1971, the Director of Article 7, Annex IX, of the Staff the Security Department forwarded this Regulations. report to the Director-General of Personnel and Administration. By decision dated 14 April 1972, which In his accompanying memorandum he was communicated to the party underlined that in his opinion Mr De concerned on 15 April 1972, the Director-General of Personnel and Greef had been guilty of the offence of participation in fraud under aggravating Administration found in particular that Mr De Greef had made an offer to a circumstances, resulting from the fact that he was an official of the person outside the Commission to assist Commission. her in entering its services; that he had approached Mr Drescig to request his On 4 January 1972, the head of the
help in this undertaking; that after Individual Rights Division of the having reach an agreement with Mr Commission, in execution of an Drescig to this effect, he had authority conferred upon him on 22 communicated to the person concerned December 1971 by the Director of the conditions allegedly necessary to Personnel, proceeded to a hearing of Mr enter the services of the Commission, De Greef pursuant to Article 87 of the fixed by Mr Drescig as the payment of a Staff Regulations.
sum of BF 12 000; that for this purpose On 11 January 1972, the Director of he had arranged a meeting between Personnel in his capacity of appointing himself, Mr Drescig and the applicant; authority referred the case of Mr De that in the course of this meeting he had Greef to the Disciplinary Board pursuant lent to Mr Drescig, in the presence of the to Article 1, Annex IX of the Staff person concerned, the sum of BF 12 000,
Regulations. a repayment of BF 3 000 having By decision of the Director of Personnel subsequently taken place; that Mr De dated 11 January 1972 and communi Greef thus abused his status of an cated to him on the same date, Mr De official by making a person outside the Greef was suspended from his duties, Commission believe, that on payment of one half of his basic salary being with a sum of money she could be engaged by held from 12 January 1972 pursuant to the Commission; he thus caused great Article 88 of the Staff Regulations. damage to the good name of the The Disciplinary Board met on 28 and Commission; the argument that he had 29 February, and 6 and 7 March 1972. only intended to assist the person In the course of these meetings, it heard concerned to enter the employment of in particular Mr De Greef (assisted by the Commission was not of a kind to
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mitigate the gravity of the fact alleged — order the Commission to pay him the against him; that these constituted grave sum of BF 30 000 by way of damages breaches of the duty of an official as and interest; provided for by the Staff Regulations, in — order the Commission to pay the particular Articles 11 (1) and 12 (1). costs of the action. Consequently the Director-General of The Commission submitted that the Personnel and Administration decided to Court should dismiss Mr De Greef without reduction or loss of his entitlement to retirement — dismiss the application as unfound pension with effect from 1 May 1972. ed; — order the applicant to pay the costs.
II — Summary of the pro cedure IV — Pleas and arguments of the parties On 11 July 1972 Mr De Greef brought the present action for annulment and The pleas and arguments of the parties damages. may be summarized as follows: The written procedure followed the normal course.
By Order dated 27 October 1972 the A — As regards admissibility Court (Second Chamber) upon report of the Judge-Rapporteur and having heard The Commission does not in principle the Advocate-General, decided — dispute the admissibility of the appeal, applying Articles 43 and 95 of the Rules notwithstanding the fact that it was not of Procedure — to join for the purposes proceeded by a complaint, as required of the oral proceedings the present by Article 91 (2) of the new Staff action to that lodged under No 49/72 by Regulations that came into force on 1 Mr Drescig. July 1972. It is a fact that the Regulation The Court (Second Chamber), having of the Council No 1473/72 of 30 June heard the Advocate-General, decided to 1972, changing the Staff Regulations, open the oral procedure without any was apparently only published on 16 July preparatory enquiry. 1972, i.e. subsequent to the lodging of The oral observations of the parties were the appeal. made at the hearing of 22 March 1973. Nevertheless, it is right to underline that The Advocate-General delivered his the appeal is not directed solely against the opinion of the Disciplinary Board opinion at the hearing of 5 April 1973. and the decision of the dismissal, but equally against the decision to suspend of 11 January 1972. Now, this decision III — Submissions of the is not a simple preparatory act, but an parties autonomous decision capable of being the subject matter of a complaint; The applicant submitted that the Court accordingly it ought to have been the should subject of a complaint or of an appeal — annul the decision taken by the before 12 April 1972. Since this was not Director of Personnel on 11 January done, the appeal is inadmissible in so far 1972, the opinion of the Disciplinary as it is against the decision to suspend Board pronounced on 7 March 1972 the applicant. and the decision of 14 April 1972 The argument of inadmissibility is one dismissing him; of public interest and the failure by one
DE GREEF v COMMISSION
party to raise such a plea would not The applicant stresses that under the absolve the Court from examining it. provisions of the second paragraph of Besides, in the event, the annulment of Article 87 of the Staff Regulations, the decision of dismissal and the disciplinary proceedings shall be iniated reinstatement of the applicant would not by the appointing authority 'after have the consequence of a reimburse hearing the official concerned'. He ment of moneys withheld as a result of argues that the Commission's Decision the suspension. This decision, which can of 26 February 1971, relating to the no longer be the subject matter of a exercise of powers conferred by the Staff specific order of annulment by the Regulations upon the appointing Court, would remain in force. One authority, provides by its Article 5 that would not be faced with the case as regards officials in categories C and provided for in Article 88 of the D, the powers delegated upon the Regulations; it would have been decided appointing authority by the second upon within the period of four months paragraph of Article 87, second sentence, and the annulment of the decision of (prior hearing of the official concerned dismissal would start a new period and the initiation of the disciplinary running. proceedings) are exercised by the Director of Personnel.
However, the The applicant argues that in the event of Director of Personnel had authorized annulment of the decision to dismiss, the another official to conduct the prior Commission ought to reinstate him with hearing of the applicant. Such a all consequences in law following from this. This annulment would have the delegation of powers is illegal in that it result that no decision upon his status is clearly contrary to the express wording of the Commission's Decision would have occurred within a period of four months from the date when the itself, by which it is bound.
The decision to suspend had taken effect and, Decision on 26 February 1971 conferred upon an official of high rank the applying Article 88 (4) of the authority to proceed with the hearing Regulations, he would not only have to be paid again the full amount of his preceding the initiation of disciplinary remuneration but that he would also be proceedings, so as to avoid such an entitled to a reimbursement of the important action being taken by junior amounts deducted on account thereof. officials or of admissions or alleged admissions being obtained in doubtful The arguments raised by the Commission would in these circum circumstances. In this particular case the stances have no practical effect on the infringement of the Decision does not therefore constitute a mere formal effect outcome of the case. but a defect in procedure; in a Besides, the Court of Justice has found disciplinary matter this amounts to a (Case 16/67, Labeyrie v Commission, substantial defect, tainting the whole Judgment of 11 July 1968, Rec. 1968, p. procedure with illegality. 431) that in the case of provisional or The Commission maintains that from conservatory decisions, the official may appeal, either immediately or at the end the very terms used by the second of the case. paragraph of Article 87 of the Staff Regulations, as well as the relationship between the text of this provision with B — As regards the main issues that of the third paragraph of Article 7 Annex IX, it follows that the hearing
1. Infringement of Article 5 of the prior to the initiation of the disciplinary Commissions decision of 26 proceedings does not have to be February 1971 and of the second undertaken by the appointing authority paragraph of Article 87 of the Staff itself. But the Court has recognized this Regulations. principle in its Judgment of 11 July 1968
JUDGMENT OF 30. 5. 1973 — CASE 46/72
(Case 35/67, Van Eick v Commission, the Director of Personnel, only has the Rec. 1968, p. 481); this is likewise right to base himself upon matters admitted by the applicant. arising from a preliminary hearing As regards the Commission's Decision of before himself. In the present case, not 26 February 1971, this states in its first having heard the applicant and the latter Article that the object of subsequent not having been able to put his point of articles if to lay down the manner of view before the competent authority, the Director of Personnel in fact based exercising the powers conferred under the Staff Regulations upon the himself on hearings before officials not qualified in this respect.
The officials of appointing authority. Certain acts are the preserve of this authority and others the Security Department have no can originate with the administration. authority under the Staff Regulations to The prior hearing envisaged by the collect statements in a disciplinary matter and the declarations made to second paragraph of Article 87 is not the preserve of the appointing authority; them ought to be treated as Article 5 of the Decision of 26 February non-existing; as regards the official 1971 has no other purpose than to appointed by the Director of Personnel confer on the Director of Personnel the to proceed to the prior hearing of the power to decide whether or not there is applicant, he purely and simply adopted a case for proceeding to a prior hearing, the statements and reports of the but that this in no way imposes an hearings of the said officials of the obligation on him to conduct the hearing Security Department.
himself. Besides, this official used terms from criminal law in relation to the facts This interpretation is in conformity with the Judgment of the Court in Joined alleged against the applicant and which were contained in these reports; he thus Cased 27 and 30/60 (Fonzi v exceeded his authority and usurped the Commission, Judgment of 8 July 1965, power which only belongs to a judge in p. 616). criminal jurisdiction. These terms were In entrusting the prior hearing of the again used in the report directed to the applicant to a Head of Division, an Disciplinary Board by the Director of experienced official who for many years Personnel; constantly repeated, they has administered the Individual Rights were of a nature to have a decisive Division, whom by reason of his influence on both the Disciplinary Board seniority was called upon to replace him as well as on the official who took the in case he was not available, the Director decision of dismissal. of Personnel did not either disregard the Accordingly the detects in the wording or the spirit of the provision, preliminary hearing of the applicant by the infringement of which is wrongly the competent official and his hearing
alleged. before unqualified officials weighed In any event, the infringement of the heavily against him all through the second paragraph of Article 87 does not course of the disciplinary procedure. constitute a substantial defect, affecting The disciplinary procedure was the legality of either the opinion of the invalidated from the start. The opinion Disciplinary Board or the decision of of the Disciplinary Board of 7 March dismissal. 1972 and the Decision of the removal of the applicant from his post of 14 April
2. Infringement of the rights of the 1972 ought to be annulled; the Decision defence of suspension of 11 January 1972 ought to be annuled for the same reasons. The applicant states that the official having the function of deciding upon the The Commission maintains that the initiation of disciplinary proceedings, i.e. report of the security office was the
DE GREEF v COMMISSION
result of an administrative enquiry which It follows from these provisions read preceded any disciplinary proceedings; together, that the Regulation draws a that took place at the request of the distinction between the chairman and Directorate of Personnel; this report was the members of the Disciplinary Board added by the Director of Personnel to in that in particular the chairman is not his own report. These two reports a member of the Board and accordingly formed part of the file submitted at the ought not to sign the reasoned opinion. deliberations of the Disciplinary Board The chairman's non-participation in the and the appointing authority; they had decisions of the board is a logical one, to be communicated to the applicant, since the latter is composed equally of who all through the procedure had every two officials put forward by the possibility of putting forward his own appointing authority and of two officials views. put forward by the Staff Committee. As regards their qualifications, it is right In the present case, not only was the to stress in the first place that had the reasoned opinion of the Disciplinary applicant been called upon to deal with Board signed by its chairman but it the material issues of these facts, his emerges from the minutes of the statements would have been no deliberations of the Board on 6 and 7 different; the Director of Personnel March 1972, that the chairman took an therefore had no alternative but to put active part in the deliberations when in the matter before the Disciplinary Board. fact no situation existed in which the
Besides, all through the disciplinary Regulations exceptionally allow him to procedure the applicant had enjoyed take part. every latitude in presenting his defence. For this reason there was a violation of
Finally, the appraisal of the facts did not the parity element in the Board's exist in law and the terms criticized did proceedings, as well as of a specific not appear in either the opinion of the provision in the Regulations. Disciplinary Board or in the decision of The Commission states in reply that in removal of the applicant from his post; signing, the chairman of the Disciplinary these only dealt with the facts and Board did no more than authenticate the examined if those facts constituted a Disciplinary Board's advice; his signature breach of duty capable of resulting in a could obviously not constitute proof that disciplinary measure. he had participated in the decision itself. Articles 8 and 9 of Annex IX of the 3. Infringement of Articles 8 and 9 of Regulations in no way prevent the Annex IX of the Regulations chairman of the Disciplinary Board from The applicant points out that under the participating in the proceedings thereof provisions of Article 4 of Annex II of the since it is his function to preside at all its Regulations, the Disciplinary Board is meetings; he is only forbidden to take made up of a chairman and four part in the decision itself by voting for members; according to Article 8 of or against the proposal relating to the Annex IX the chairman shall not take substance of the matter, save in case of part in the decisions of the Board, save equality of votes. In the present case, on procedural questions or in case of since the members of the Disciplinary equality of votes; finally Article 9 of this Board were unanimous both in regard to Annex provides that the reasoned the proposed sanction and in regard to opinion which the Disciplinary Board is the reasoned opinion, the chairman called upon to deliver by a majority vote would not have had to vote and did not as regards the disciplinary measure in fact vote. which it considers appropriate to the The minutes of the Board's meetings facts complained of, shall be signed by establish that the chairman in no way all members of the Board. exceeded his powers. The arguments
JUDGMENT OF 30. J. 1973 — CASE 46/72
founded upon the alleged infringement applicant constituted a grave disciplinary of Article 8 of Annex IX of the offence. Regulations are devoid of all basis. 5. The gravity of the disciplinary measure 4. Erroneous description of the facts The applicant considers that the The applicant complains that in the disciplinary measure imposed upon him opinion of the Disciplinary Board and is disproportionate to the gravity of the the Decision to remove him from his acts alleged against him, particularly so post his actions were regarded as when one compares them with the acts criminal acts. Yet the evidence received alleged against Mr Drescig. from the Disciplinary Board showed that he had no other intention than to be The Commission considers this
helpful to a person desirous of entering argument to be unacceptable; it is not a matter for the Court in matters of the service of the Commission, without seriousness of the disciplinary measure any profit motive entering into it. Accordingly, the opinion of the to substitute its own judgment for that Disciplinary Board and the decision to of the appointing authority. The Court remove him from his post constituted an ought to restrict itself to the task of inaccurate description of the facts to the verifying whether the facts alleged are extent that they considered the applicant materially correct and whether in law had put forward the payment of a sum they constitute a disciplinary offence. An of money as a necessary condition obvious disproportionality between the precedent for entering the service of the disciplinary offence and the disciplinary Commission. measure imposed might doubtless amount to an abuse of power but such The Commission replies that in neither an abuse of power does not apply in the present case. the opinion of the Disciplinary Board nor the decision to dismiss the applicant In fact the appointing authority rightly from his post was the term 'criminal act' considered the facts alleged against the used; nevertheless at these two stages the applicant to have been of such gravity as facts alleged against the applicant were to justify the order of removal from his assessed as grave disciplinary offences. post without withdrawal of entitlement to retirement pension. It was established by his own statements, confirmed by those of the interested 6. Damages and interest parties and of Mr Drescig, that the applicant had in fact made the candidate The applicant considers himself entitled believe that in order to enter the services to claim against the Commission by way of the Commission, it was necessary to of damages and interest an amount of pay a sum of BF 12 000. Neither can it BF 30 000 in respect of fees due to the be contested that this amount was paid advocate who had assisted him in the by the applicant on behalf of the course of the disciplinary proceedings. interested party to Mr Drescig. It The Commission points out that under appears from the documents on the file, the provisions of Article 10 of Annex IX when taken together, that it was rightly of the Regulations, the costs incurred by decided that the amount of FB 3 000 was the interested party in the course of an advance by the applicant which was disciplinary proceedings, particularly the ultimately repaid to him. fees due to a defending counsel are not a Accordingly both the opinion of the matter for the Community and are his Disciplinary Board as well as the responsibility in a case where decision for his removal rightly stated disciplinary proceedings result in a that the fact found proved against the Decision of removal from his post.
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Only in cases of annulment of both the it a matter for the Court to assess the advice of the Disciplinary Board and of amount of damages and interest. the Decision of removal from his post is
Grounds of judgment
1 The action has as its object the annulment of the Decision of removal from his post given on 14 April 1972 by the Director-General of Personnel of the Commission, including the preliminary stages coming within the ambit of the disciplinary proceedings brought against the applicant arising out of his participation in the reprehensible activities of another official, Giuseppe Drescig (Judgment in Case 49/72 of even date) which amount to an abuse of official status, and a demand for payment from a person desiring to obtain employment with the Commission.
2 Without denying the facts leading to the disciplinary measures imposed, the applicant argued against the validity of the decision taken, by invoking arguments based upon irregularities in the disciplinary procedure, an erroneous statement of facts, and the excessive nature of the disciplinary measures imposed.
3 He furthermore applied to the Court for an order against the Commission to pay him the sum of BF 30 000 by way of damages and interest.
As regards the admissibility of the application for revocation of the preliminary Decision to suspend
4 The appeal aims not only at the revocation of the Decision of 14 April 1972 to remove him from his post, but also at all the preliminary stages, including the Decision to suspend the applicant as from 11 January 1972.
5 The Commission argues the non-admissibility of the appeal against this last mentioned measure by reason af delay.
6 In fact, according to the Commission, the suspension was not a simple preparatory stage but an independent decision which ought to have been the subject matter of an objection or of a legal appeal within the time limited.
7 This ground of appeal is only relevant in cases of revocation of the Decision to dismiss.
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8 It is accordingly necessary to examine in the first place the grounds of appeal directed against this Decision.
As regards the pleas based upon disregard of the rights of the defence and inparticular the violation of Article 87 of the Staff Regulations and of the Commission's Decision of 26 February 1971
9 The applicant argues that under the terms of Article 87 of the Staff Regulations the disciplinary procedure shall be initiated by the appointing authority after hearing the official concerned.
10 Under the terms of the Commission's Decision of 26 February 1971 concerning the exercise of the powers conferred by the Regulation upon the appointing authority, the hearing, as regards officials in his category, was a matter for the Director of Personnel.
11 In disregard of this provision, the applicant was never heard by this official.
12 In fact the Director of Personnel instructed the head of the Individual Rights Division, who in turn based himself upon an enquiry conducted by officials of the Security Department of the Commission, which has no legal basis under the Staff Regulations.
13 The lack of a proper hearing weighed heavily against the applicant all through the proceedings.
14 One cannot object to the correctness of the intervention in the course of the preliminary enquiries by the Security Department which was properly set up and authorized within the ambit of the power of setting up an organization conferred on the Commission by Article 16 of the Treaty establishing a single Council and a single Commission of the European Communities.
15 As regards the formal part of the disciplinary procedure, this is under the provisions of the second paragraph of Article 87, second sentence, of the Regulations initiated by the appointing authority 'after hearing the official concerned'.
16 The Regulations do not state more fully the matters and formalities applicable to this hearing.
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17 The Commission's Decision of 26 February 1971 — taken under the provisions of Article 2 of the Regulations under which each institution shall determine who within it shall exercise the powers conferred by the Regulations on the appointing authority — provides by its Article 5 that the Director of Personnel shall in regard to officials in categories C and D exercise the powers conferred on the appointing authority in regard to the preliminary hearing, provided for by the second paragraph of Article 87, second sentence, of the Regulations.
18 The general system created by this Decision, which contains a detailed enumeration of functions of very varied importance shows that one is dealing with a distribution of business within the Commission services, rather than with the conferment of rigid powers, the nonobservance of which could entail the nullity of acts done outside the limits laid down.
19 The fact that this is the nature of the Decision of 26 February 1971 is confirmed by the fact that it was published by the Commission not in the Official Journal, but in an information bulletin intended for the staff.
20 In these circumstances one cannot interpret this document as excluding in advance all possibility of sub-delegation by the officials appointed or of a deviation from the principles of division of functions laid down by the Commission.
21 A sub-delegation or deviation from these standards can only result in the nullity of an act done by the Administration if it is capable of affecting one of the guarantees given to officials by the Regulations or of affecting the principles of good administration in matters of staff administration.
22 In the event this was not the case, the Director-General of Personnel having entrusted the hearing to an official particularly qualified in this respect, i.e. the head of the Individual Rights Division under the Directorate General of Personnel.
23 Examination of the report prepared by this official shows that the applicant had the benefit of a thorough and impartial enquiry in the course of which the rights of the defence had been fully respected.
The official entrusted with the hearing did, together with the applicant, go through the details of the facts alleged in the course of the preliminary enquiries and that the applicant without reservation admitted that they were correct.
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25 In these circumstances the fair nature of both the hearing and the enquiry which preceded it cannot be disputed.
26 The objections ought therefore to be rejected.
On the arguments arising from erroneous description of the facts
27 The applicant also maintained that during the whole preliminary procedure the officials carrying out the investigation had in relation to the facts alleged against him continually used terms drawn from criminal law, that is to say 'extortion' and 'fraud'.
28 These terms ought not to have been used in disciplinary proceedings and in doing so, the officials had usurped a power which only belongs to a judge in criminal law.
29 Besides, the relationship between the applicant and the person whom he had introduced to Giuseppe Drescig with a view to her entering the services of the Commission upon payment of a sum of money, was described incorrectly, even maliciously, by the officials entrusted with the preliminary enquiry, when in fact the applicant's intention was no more than to assist the person in question.
30 Nothing prevents the disciplinary authorities from using approximations to the concepts of criminal law for the purpose of defining and possibly qualifying the facts submitted for their consideration.
31 In the light of the basic separation between the disciplinary system and the criminal procedure there therefore exists no risk of confusion to the prejudice of an official who is the subject of a disciplinary procedure.
32 Besides, one cannot in any way criticize the officials entrusted with the enquiry for having speculated upon the applicant's motives, such conjectures being an integral part of any method of investigation.
33 Neither can the applicant complain of terms, even if hardly of a flattering nature, which are, objectively speaking, justified in relation to the substance of the facts.
34 The appeal ought accordingly to be rejected.
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As regards the arguments based on the violation of Articles 8 and 9 of Annex IX of the Regulations
35 The applicant further cast doubt on the validity of the proceedings of the Disciplinary Board by reason of the fact that the reasoned opinion was not only signed by the chairman, but it also appeared from the minutes that the chairman had taken an active part in the proceedings, when in fact under the terms of Article 8 of Annex IX of the Regulations, the chairman of the Disciplinary Board does not take part in the decisions, save on procedural questions or in the case of equality of votes and Article 9 provides that the reasoned opinion only be signed by members of the Board.
36 Article 8 of Annex IX had as its object to permit the parity element which lies at the basis of the constitution of the Disciplinary Board to function to the fullest extent that it is possible on that basis for Boards to produce a majority.
37 Under this system the chairman is called upon to intervene with his vote only in case of equalitiy of votes and, apart from this, on procedural questions.
38 In other respects the chairman, by virtue of his office, enjoys all powers necessary for ensuring the normal function of the Disciplinary Board.
39 It appears from the minutes attached to the file that the chairman did not have reason to intervene in the decision upon the reasoned opinion since the members of the Board were able to reach unanimity on the subject.
40 The chairman's act in signing the various documents relating to the disciplinary procedure constitutes merely the normal exercise of his prerogatives, which include the power of certifying the regularity of the procedure and of authenticating the Board's documents.
41 The validity of these documents cannot therefore be affected by the fact that they bear the chairman's signature.
42 The appeal must therefore be rejected.
As regards the seriousness of the disciplinary measure
43 The applicant considers that the disciplinary measure imposed upon him — removal from his post without loss of his entitlement to retirement pension —
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is disproportionate to the gravity of the facts alleged against him, particularly so if one compares them with the facts alleged against his accomplice Giuseppe Drescig.
44 The Commission considers this ground of appeal to be inadmissible bearing in mind that it is not for the Court to substitute its opinion for that of the disciplinary authority.
45 The facts alleged against the applicant having been established, the choice of appropriate disciplinary measure is a matter for the disciplinary authority.
46 The subject matter not being of a pecuniary kind, the Court cannot substitute its own assessment for that of the authority in question, except in a case of a clearly excessive measure or of an abuse of power.
47 This is not so in the present case.
48 Accordingly the complaint based on the gravity of the sanction imposed must be rejected.
Damages and interest
49 Since all the applicant's grounds of appeal have been rejected the claim for damages and interest is devoid of any basis.
Costs
50 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party is ordered to pay the costs.
51 The applicant has failed in his action.
52 Nevertheless, under the terms of Article 70 of the Rules of Procedure, institutions shall bear their own costs in actions by officials of the Communities.
On these grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties;
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Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations, especially Article 87 and Articles 7, 8 and 9 of Annex IX; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70;
THE COURT (Second Chamber)
hereby: 1. Dismisses the action.
2. Orders each party to pay its own costs.
Pescatore Sørensen Mackenzie Stuart
Delivered in open court in Luxembourg on 30 May 1973.
A. Van Houtte P. Pescatore
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL TRABUCCHI
DELIVERED ON 5 APRIL 1973 1
Mr President, the Commission, does not have to Members of the Court, examine the details of an affair which still 'male olet'; in fact, the parties Two cases (Case 46/72 and Case 49/72) concerned are not contesting the facts. concerning illegal conduct of extreme And it even seems strange that in a seriousness are submitted for our disciplinary matter, where the facts are examination and your judgment. of pre-eminent importance, we find Fortunately the Court, in its control of ourselves dealing with two cases in the disciplinary measures imposed by which the material accuracy of the
1 — Translated from the Italian.