C-49/72
ECLI:EU:C:1973:58
- Súd
- Súdny dvor Európskej únie
- IČS
- 61972CJ0049
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF THE COURT (SECOND CHAMBER) 30 MAY 1973 1
Guiseppe Drescig v Commission of the European Communities
Case 49/72
1. Officials — Appointing Authority — Towers — 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 Chairman of the Disciplinary Board — Admissibility (Staff Regulations, Annex IX, Articles 8 and 9)
1. The sub-delegation of powers or of good administration in staff deviation from standards laid down management. by the Commission in the Decision of 2. The signature by the Chairman of the 26 February, 1971, for the division of Disciplinary Board of various, functions within the service, cannot documents relating to the disciplinary render void an act done by the procedure merely constitutes the administration, unless it involves the normal exercise of his prerogatives, possibility of adversely affecting one which include the power of certifying of the guarantees given to officials by the regularity of the procedure and of the Staff Regulations or the principles authenticating the Board's documents.
In Case 49/72
GIUSEPPE DRESCIG, a former official of the Commission of the European Communities, residing at Brussels, represented by Maître Marcel Slusny, 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,
1 — Language of the Case: French.
JUDGMENT OF 30. 5. 1973 — CASE 49/72
Application for annulment of the decision of removal of the applicant from his post and of the preliminary disciplinary procedure,
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 activities of Mr De Greef and Mr Drescig. Mr Giuseppe Drescig, an Italian On 21 December 1971 the Director of national, entered the service of the the Security Department forwarded this Commission, Directorate of Property report to the Director-General of and Internal Service, on 16 May 1967 as Personnel and Administration. an usher attached to the telex service. In his accompanying memorandum he He was assigned to the position of telex underlined that in his opinion Mr operator on 1 February 1971 and Drescig had been guilty of the offence of appointed to Grade C 3, step 2. fraud, forgery and the passing of forged On 9 December 1971 an official in the documents under aggravating circum Personnel Division addressed a report to stances, resulting from the fact that he the Director of Personnel of the was an official of the Commission. Commission concerning the circum On 4 January 1972 the head of the stances surrounding the entry into Individual Rights Division of the service of a temporary member of the Commission, in execution of an staff. authority conferred upon him on 22 It appeared from this report that Mr December 1971 by the Director of Drescig, with the complicity of Mr Personnel, proceeded to a hearing of Mr Robert De Greef, another official of the Drescig pursuant to Article 87 of the Commission, had extorted a sum of Staff Regulations. money from this person in order to On 11 January 1972 the Director of enable her to enter the service of the Personnel in his capacity of appointing Commission. authority referred the case of Mr Drescig On 20 December 1971 an official of the to the Disciplinary Board pursuant to Security Department of the Commission Article 1, Annex IX of the Staff prepared for the Director of that Regulations. department a report on the enquiry By decision of the Director of Personnel which he had made in relation to the dated 11 January 1972 and communi-
DRESCIG v COMMISSION
cated to him on the same day, Mr believe that he was taking effective steps Drescig was suspended from his duties, on her behalf to facilitate her one half of his basic salary being with engagement by the Commission; he thus held as from 12 January 1972, pursuant abused his status of an official by to Article 88 of the Regulations. making two persons outside the The Disciplinary Board met on 28 and Commission believe that on payment of 29 February and 6 and 7 March 1972. a sum of money, they could be engaged In the course of these meetings it by the Commission; he thus caused great harm to the good name of the particularly heard Mr Drescig, assisted Commission; the fact that Mr Drescig by his lawyer, Mr De Greef and several witnesses. had ultimately reimbursed the sums received and that his work in the service At its last meeting on 7 March 1972, the of the Commission had been considered Disciplinary Board issued a reasoned satisfactory by his superiors was not opinion in which it stated that the sufficient to mitigate the gravity of the correct way of dealing with the matter facts alleged against him; that taken would be to apply to Mr Drescig the together the facts found against him penalty of removal from his post with constituted grave breaches of the duties withdrawal of entitlement to retirement of an official, as provided for by the pension. Regulations, in particular Article 11 (1) This opinion was on 16 March 1972 and 12 (1). forwarded to the Director of Personnel. Consequently the Director-General of Mr Drescig was on 5 April 1972 heard Personnel and Administration decided to
by the Commission's Director-General of dismiss Drescig with loss of entitlement Personnel and Administration as to retirement pension, with effect from 1 provided for in the third paragraph of May 1972. Article 7, Annex IX of the Staff Regulations. II — Summary of procedure By decision dated 14 April 1972, which was communicated to the party On 14 July 1972 the applicant brought concerned on 15 April 1972, the the present action. Director-General of Personnel and Administration found in particular that The written procedure followed the normal course. Mr Drescig had in two instances demanded payment of a sum of BF 12 000 By Order dated 27 October 1972 the for the purpose of assisting a person Court (Second Chamber), upon report of outside the Commission to enter its the Judge-Rapporteur and having heard services; that he in fact received this the Advocate-General, decided — sum, on the first occasion through Mr applying Articles 43 and 95 of the Rules De Greef, on the second occasion of Procedure — to join for the purposes directly from the person concerned; in of the oral proceedings the present the first case Mr Drescig had action to that lodged under No 46/72 by endeavoured by diverse schemes (such as Mr De Greef. the sending of a letter of appointment The Court (Second Chamber), having for an imaginary competition, written on heard the Advocate-General, decided to the Commission's letter-heading and open the oral procedure without any bearing an outline of a signature, which preparatory inquiry. was capable of inducing the belief that it The oral observations of the parties were was signed by the competent authority; arranging an imaginary interview with made at the hearing of 22 March 1973. the director of one of the Commission's The Advocate-General delivered his services) to make the person concerned opinion at the hearing of 5 April 1973.
JUDGMENT OF 30. 5. 1973 — CASE 49/72
III — Submission of the Article 87 (prior hearing of the official parties concerned and initiation of the disciplinary procedure) shall be exercised The applicant submitted that the Court by the Director of Personnel. However, should: the Director of Personnel had authorized
— declare null and void the decision of another official to conduct the prior hearing of the applicant. Such a 14 April 1972 dismissing him, with delegation of powers is illegal in that it all its consequences in law, and in is clearly contrary to the express particular order the payment to the wording of the Commission's Decision applicant of his salary and other itself, by which it is bound. The Decision benefits as from 12 January 1972, the of 26 February 1971 conferred upon an date of his suspension; official of high rank the authority to — declare null and void the whole proceed to the hearing preceding the disciplinary procedure; initiation of disciplinary proceedings, so — order the opposing party to pay the as to avoid such an important action costs of the action. being taken by junior officials or of admissions or alleged admissions being The Commission submitted that the obtained in doubtful circumstances. In Court should: this particular case the infringement of this Decision does not therefore — dismiss the application as unfound constitute a mere formal defect but a ed; defect in procedure; in a disciplinary — order the applicant to pay the costs. matter this amounts to a substantial defect, tainting the whole procedure with illegality. The Commission maintains that from IV — Pleas and arguments of the parties the very terms used by the second paragraph of Article 87 of the Staff The pleas and arguments of the parties Regulations, as well as the relationship may be summarized as follows: between the text of this provision and that of the third paragraph of Article 7 1. Infringement of Article 5 of the of Annex IX, it follows that the hearing Commission's Decision of 26 prior to the initiation of the disciplinary February 1971 and of the second proceedings does not have to be paragraph of Article 87 of the Staff undertaken by the appointing authority Regulations itself. That the Court has recognized this principle in its judgment of 11 July 1968 The applicant stresses that under the (Case 35/67, Van Eick v Commission, provisions of the second paragraph of Rec. 1968, p. 481); this is likewise Article 87 of the Staff Regulations admitted by the applicant. disciplinary procedure shall be initiated by the appointing authority, 'after As regards the Commission's Decision of hearing the official concerned'. He 26 February, 1971, this states in its first argues that the Commission's Decision Article that the object of subsequent of 26 February 1971, relating to the Articles is to lay down the method of exercise of the powers conferred by the exercising the powers conferred under Staff Regulations upon the appointing the Staff Regulations upon the authority, provides by its Article 5 that appointing authority. Certain acts are as regards officials in categories C and the preserve of this authority and others D, the powers conferred upon the can originate with the administration. appointing authority by the second The prior hearing envisaged by the sentence of the second paragraph of second paragraph of Article 87 is not the
DRESCIG v COMMISSION
preserve of the appointing authority; Accordingly the opinion of the Article 5 of the Decision of 26 February Disciplinary Board of 7 March 1972 and 1971 has no other purpose than to the decision to dismiss of 14 April 1972 confer upon the Director of Personnel ought to be annulled, with all the power to decide whether or not there consequences that follow from this in is a case for proceeding to a prior law. hearing, but this in no way imposes an The Commission points out that the obligation upon him to conduct the authors of the criticized reports did not
hearing himself. intend to apply to the facts a criminal This interpretation is in conformity with connotation, since in everyday language the Judgment of the Court in Joined the terms have a different meaning. Cases 27 and 30/64 (Fonzi v Commission, Judgment of 8 July 1965, Besides, right through the disciplinary p. 616). procedure the applicant could have freely contested the exactness of the In entrusting the prior hearing of the legal terms. applicant to a Head of Division, an experienced official who for many years These terms do not appear either in the has administered the Individual Rights opinion of the Disciplinary Board nor in Division, who by reason of his seniority the decision to dismiss; they merely was called upon to replace him in case considered the facts and examined he was not available, the Director of whether those facts constituted a breach Personnel did not disregard either the of duty capable of resulting in a wording or the spirit of the provisions, disciplinary measure. the infringement of which is wrongly
alleged. 3. Infringement of Articles 8 and 9 of In any event, infringement of the second Annex IX of the Staff Regulations paragraph of Article 87 does not The applicant points out that under the constitute a substantial defect, affecting provisions of Article 4 of Annex II of the the legality of either the opinion of the Regulations, the Disciplinary Board is Disciplinary Board or the decision of made up of a chairman and four dismissal. members; according to Article 8 of
2. Description of the facts Annex IX, the chairman shall not take The applicant states that the official part in the Board's decisions, save on appointed — according to him procedural questions or in case of irregularly — to proceed to the prior equality of votes; finally, Article 9 of this hearing of him had used criminal law Annex provides that the reasoned terms in relation to the facts which had opinion which the Disciplinary Board is been alleged against him, terms that called upon to issue by a majority vote, were contained in the reports prepared as to the disciplinary measure which it by the officials of the Security considers appropriate to the facts
Department. He thus exceeded his complained of, shall be signed by all the authority and usurped a power which members of the Board. only belongs to a judge in a criminal It follows from these provisions as a case. These terms — which besides are whole that the Regulations draw a inaccurate — were again repeated in the distinction between the chairman and report addressed to the Disciplinary the members of the Disciplinary Board Board by the Director of Personnel; in that, in particular, the chairman is not constantly repeated, they were of a a member of the Board and consequently nature to have a decisive influence upon ought not to sign the reasoned opinion. both the Disciplinary Board and the The chairman's non-participation in the official who took the decision of decisions of the Board is a logical one, dismissal. since the Board is composed in equal
JUDGMENT OF 30. 5. 1973 — CASE 49/72
numbers of two officials nominated by proof that he had participated in the the appointing authority and two decision itself. officials appointed by the Staff Articles 8 and 9 of Annex IX of the Committee. Regulations in no way prevent the In the present case not only was the chairman of the Disciplinary Board from reasoned opinion of the Disciplinary participating in the proceedings thereof, Board signed by its chairman, but it since it is his function to preside at all its further emerged from the minutes of the meetings; he is only forbidden to take Board's deliberations of 6 and 7 March part in the decision itself by voting for 1972 that the chairman took an active or against a proposal relating to the part in these deliberations, when in fact substance of the matter, save in case of no situation existed in which the equality of votes. In the present case, Regulations exceptionally allow him to since the members of the Disciplinary take part. Board were unanimous both in regard to the proposed sanction and in regard to For this reason there was a violation the reasoned opinion, the chairman both of the parity element applying to would not have had to vote and did not the Board's proceedings as well as of a in fact vote. specific provision of the Regulations. The minutes of the Board's meetings The Commission states in reply that by establish that the chairman in no way signing, the chairman of the Disciplinary exceeded his powers. The arguments Board did no more than authenticate the founded upon an alleged infringement of Disciplinary Board's opinion; this Article 8 of Annex IX of the Regulations signature obviously could not constitute are devoid of all basis.
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, consequent upon a disciplinary procedure instituted in relation to the applicant, arising out of reprehensible activities involving an abuse of official status and a demand for payment from persons desiring to obtain employment with the Commission.
2 Without denying the facts leading to the disciplinary measure imposed, the applicant argues against the validity of the decision taken by invoking arguments based upon irregularities in the disciplinary procedure and an erroneous description of the facts.
As regards the pleas based upon infringement of Article 87 of the Regulations and of the Commision's Decision of 26 February 1971
3 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.
DRESCIG v COMMISSION
4 Under the terms of the Commission's Decision of 26 February 1971 concerning the exercise of the powers conferred by the Regulations upon the appointing authority, the hearing, as regards officials in his category, was a matter for the Director of Personnel.
5 On the other hand the Director of Personnel in this case appointed another official for this purpose.
6 The disregard of the provisions of the Decision of 26 February 1971 is said to have prejudiced the rights of the defence since the applicant was not able to enjoy all the safeguards to which he is entitled under the Regulations.
7 Under the provisions of the second sentence of the second paragraph of Article 87 of the Regulations, the disciplinary procedure shall be 'initiated by the appointing authority after hearing the official concerned'.
8 The Regulation does not set out more fully the methods and procedures by which this hearing is to take place.
9 The Commission's Decision of 26 February 1971 — made under Article 2 of the Regulations, under the terms of which each institution shall determine who within it shall exercise the powers conferred on the appointing authority — provides by Article 5 thereof that the Director of Personnel shall exercise in regard to officials of categories C and D the powers conferred upon the appointing authority insofar as relating to the prior hearing provided for by the second sentence of the second paragraph of Article 87 of the Regulations.
10 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's services, rather than with the conferment of rigid powers, the observance of which could entail the nullity of acts done outside the limits laid down.
11 The fact that this is the nature of the Decision of 26 February 1971 is confirmed by the fact it was published by the Commission not in the Official Journal but in an information bulletin intended for the staff.
12 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 in particular cases from the principles of division of functions determined by the Commission.
JUDGMENT OF 30. 5. 1973 — CASE 49/72
13 A sub-delegation or deviation from these standards can only involve the nullity of an act done by the administration if it involves the possibility of adversely affecting one of the guarantees given to officials by the Regulations or the principles of good administration in matters of staff administration.
it In the event this was not the case, the Director-General of Personnel having entrusted the hearing of the applicant to an official particularly qualified in this respect, i.e. the Head of the Individual Rights Division coming under the Directorate-General of Personnel.
is Examination of the report prepared by this official shows that the applicant has had the benefit of a detailed and impartial enquiry in the course of which the rights of the defence have been fully respected.
16 In these circumstances the fair nature of the hearing cannot be disputed.
17 The plea must therefore be rejected.
On the plea based on erroneous description of the facts
18 The applicant also maintained that during the whole preliminary procedure the officials carrying out the investigation had continually in relation to the facts alleged against him used terms drawn from criminal law, that is to say 'extortion' and 'fraud'.
19 Whilst it is true that these terms were not reproduced by the Disciplinary Board and the Director-General of Personnel in his decision of 14 April 1972, it is nonetheless a fact that the constant use of this terminology was of a kind adversely to influence the opinion both of that Board and of the official who made the decision of removal.
20 For this reason, this constituted a violation of the rights of the defence of such a nature as to render void both the opinion of the Disciplinary Board and the decision of removal itself.
21 Nothing prevents the disciplinary authorities from using approximations to the concepts of criminal law for the purpose of defining and possibly describing the facts submitted for their consideration.
DRESCIG v COMMISSION
22 In the light of the basic separation between the disciplinary system and criminal procedure, there therefore exists no risk of confusion which might prejudice the official who is the subject of disciplinary procedures.
23 This plea must accordingly be rejected.
As regards the pleas based on the infringement of Articles 8 and 9 of Annex IX of the Regulations
24 The applicant further casts doubt upon the validity of the proceedings of the Disciplinary Board by reason of the fact that not only was the reasoned opinion signed by the chairman but it also emerges from the minutes that the chairman took 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 shall not take a part in their decision, save on procedural questions or in case of equality of votes, and Article 9 requires the reasoned opinion to be signed only by the members of the Board.
25 Article 8 of Annex IX has as its object to enable the parity of representation which forms the basis of the constitution of Disciplinary Boards to function to the fullest extent that it is possible for Boards to produce a majority on that basis.
26 Under this system the chairman is called upon to intervene with his vote only in case of equality of votes and, apart from this, on procedural questions.
27 In other respects, the chairman by virtue of his office enjoys all powers necessary for ensuring the normal functioning of the Disciplinary Board.
28 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.
29 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.
30 The validity of these documents cannot therefore be affected by the fact that they bear the chairman's signature.
31 The plea must therefore be rejected.
JUDGMENT OF 30. 5. 1973 — CASE 49/72
Costs
32 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
33 The applicant has failed in his action.
34 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 those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; 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
(see Case 46/72, p. 557)