C-129/75

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 14 JULY 1976 <1>

Lydia Hirschberg v Commission of the European Communities

Case 129/75

Summary

Officials — Appeals — Subject-matter — Internal relationships within the service — Inadmissibility (Staff Regulations, Articles 90 and 91)

The purpose of the appeals provided for the Community under the Staff under Articles 90 and 91 of the Staff Regulations. An appeal is inadmissible if Regulations is to arrange for the review it concerns exclusively internal relation­ by the Court of acts and omissions by ships within the service and, more the 'appointing authority' liable to affect particularly, questions of administrative the position of officials and servants of and working organization.

framework of a competition procedure and the claims relating thereto in the action for annulment and compensation,

THE COURT (Second Chamber)

composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges,

Advocate-General: A. Trabucchi.

Registrar: A. Van Houtte

gives the following

HIRSCHBERG v COMMISSION

Luxembourg.' 'I am sorry to have to send you this After contacting the chairman of the warning, but I consider that your competition selection board, Mrs ambiguous and undisciplined conduct is Hirschberg went to Luxembourg on 23 neither consonant with the elementary April to take part in the meeting of the rules of our administration nor consistent selection board there. with the responsibilities which attach to your office.' On the same day, Mr Baillet sent a letter to Mrs Hirschberg in which, regarding On 9 June 1975, Mrs Hirschberg the competition selection board for a addressed to the Commission a data-processing officer in question, he complaint under Article 90 of the Staff asked her to state which branch had Regulations concerning the difficulties proposed her appointment, which encountered when she acted as a authority had taken the decision, which member of the selection board for branch of Directorate General VI had Competition COM/A/134. been consulted, the channels through which the notice summoning her to the Mrs Hirschberg stated therein that she meeting had reached her and the reasons objected to both the form and the for which she had taken part in the contents of Mr Baillet's note of 30 April selection board, although she was on sick 1975. As to form she pointed out that a leave and despite the fact that she had warning is a disciplinary measure been informed of the refusal of expressly provided for in Article 86 of Directorate General VI to sign her the Staff Regulations and that Article 87 application for a travel order. specifies the authority competent to issue it and the procedure to be followed; in On 25 April 1975, Mrs Hirschberg sent a her case none of these requirements was note to Mr Baillet, stating inter alia that fulfilled. As to the contents of Mr she had had to sit on the selection board Baillet's note, Mrs Hirschberg considers in question because of the unexpected that she acted as a responsible, withdrawal of a colleague, and that her disciplined official who was fully aware absence from the Luxembourg meeting of her duties and showed devotion to would have meant cancelling it and them; she cannot accept the accusations jeopardizing its work. of prevarication, indiscipline and irresponsibility made therein.

If that is

unjustly damage my personal dignity and Regulations; my position as an official.' (b) Principally, on the basis of Article 87 of the Staff Regulations, annul the On 22 October 1975, the Director note, referred to as a warning, signed General for Personnel and Adminis­ only by Claude Baillet, on the ground tration, in reply to Mrs Hirschberg's of his lack of authority ratione complaint, informed her inter alia that: personae to undertake disciplinary action; in the alternative, order that 'It is obvious that the difficulties which note to be withdrawn; you have encountered arise from a (c) On the basis of Article 24 of the Staff misunderstanding caused by the fact that Regulations, annul the refusal of the you considered that you were fit to. travel Commission to admit the applicant's to Luxembourg to take part in a meeting complaint, which, on the one hand, is of the selection board for Competition contributing to the deterioration in COM/A/134 ... whilst you were at that the applicant's working relationships time incapable of performing your duties and causing her serious injury and, at the Commission in Brussels. on the other, is contrary to the general principle of good adminis­ 'However, despite the existence of this tration; misunderstanding, you may be assured (d) Awarded her the symbolic sum of FB that this will have no influence on your 1 by way of compensation for the future career and that no correspondence injury suffered with regard to her concerning this matter will be filed in official reputation in view of the your personal file. Consequently, it is no insinuations and annoyances to longer appropriate to submit your which she is still being subjected at complaint to the Commission.' the present time in her daily work; (e) Principally, provide her with con­ firmation that all documents relating II — Written procedure to this matter will be withdrawn from the official's personal file; in the Mrs Hirschberg lodged this application alternative, order that no document on 22 December 1975. relating to this matter will be included in the personal file in the The written procedure followed the future; normal course. (f) Rule that her devotion to duty should After hearing the opinion of the be recognized inasmuch as, in spite Advocate-General, the Court (Second of her state of health, she agreed to Chamber) decided to open the oral take part in the selection board tests procedure without any preparatory for Competition COM/A/134; inquiry. (g) Rule that the opposite party, after acknowledging the baselessness of However it requested the parties to the accusations emanating from Mr answer certain questions, either in Baillet, must bring such acknowl­ writing, or during the oral procedure. edgement to the notice of all persons

IV — Submissions and arguments 'comment'. of the parties during the written procedure The claim for withdrawal of all documents relating to this matter from A — Admissibility the applicant's personal file

The application for annulment of the The Commission is of the opinion that note of 30 April 1975 the original conclusion was modified in the reply, which of itself constitutes a The Commission is of the opinion that sufficient ground for it to be ruled the use of word 'warning' in the note in inadmissible.

question cannot be decisive: the Court of Justice does not pay attention to the With regard to the actual substance of external form or appearance of a the application, it should be pointed out document for the purposes of deter­ that the conditions under which mining its true nature. The mere use of documents may be included in a the expression 'warning' in a personal file and the safeguards for the communication not from the disciplinary officials concerned, are specified by authority, but from a superior officer to Article 26 of the Staff Regulations. The one of his subordinaties does not imply application expressly refers to the future; the taking of a disciplinary measure however it must be presumed that an against the person concerned, particularly administrative authority will also observe

JUDGMENT OF 14. 7. 1976 — CASE 129/75

in the future the legal provisions concerned the persons listed in the governing the performance of its duties. application and, consequently, the Hence there is no need for the Court to applicant's reputation may be damaged. order an administration to observe, in the future, a legal provision concerning it, B — The substance of the case unless there are grounds for thinking that there is some probability that The legality of the refusal of the travel the administration will subsequently order

In fact, the claim is completely immediately informs the Directorate General of the branch to which the purposeless, as the documents in official concerned is attached of that fact; question were never included in the applicant's personal file. Therefore the that formality was complied with in this applicant cannot prove any interest on case and the applicant was entitled to which to found an action. assume that her immediate superior was informed of her appointment as a member of the selection board. The applicant states that she is aware that, at present, no document concerning As regards the notices summoning her the dispute is included in her file. Her to the particular meetings of the application must be construed as competition selection board, it should be meaning that, as to the future, no pointed out that because of a relapse in document should be slipped into the file. her state of health, the applicant was able to go to the office only on 22 April 1975 The claim to bring the acknowledgement to sign the mission application addressed of the baselessness of the accusations to Mr Baillet. Therefore there is no emanating from Mr Baillet to the notice question of negligence or of a stratagem of all persons concerned in the exchange on her part. of notes on this subject Mr Baillet's telegram of 22 April 1975 The Commission considers that this and his letter of 23 April give the application is exclusive of the application applicant's state of health as the reason for the annulment of the note of 30 for the refusal of the mission to April 1975, which in fact contains the Luxembourg. The applicant was in actual 'accusations' concerned. fact on sick leave from 7 to 30 April. However there is no incompatibility If the Court were to consider it necessary between the fact of being on sick leave to annul these 'accusations', there would and taking part in a selection board no longer be any reason to make any meeting, as the applicant's allergy was assessment of their 'baselnessness' or lack not permanent, but only brought on by of foundation. Therefore in so far as the certain outside factors, such as cigarette applicant continues concurrently to smoke. Since the applicant's requests in claim the annulment of the note of 30 this connexion were granted, her superior April 1975 and the acknowledgement of was therefore in no way responsible; for the lack of foundation of its contents, the that reason, after contacting the latter application must be considered as chairman of the selection board, the inadmissible. applicant decided to go to Luxembourg.

the necessary details. applicant was 'covered' by a medical certificate, which according to the second As far as sick leave is concerned, it paragraph of Article 59 (1) of the Staff implies absence from the place of work, Regulations, normally implies absence the normal and logical counterpart of the on sick leave. The applicant ascribes the principle that duties are performed at the attitude adopted by her superior to place of work. When a travel order for another cause. Since she does not one of his subordinates on sick leave is criticize the real reasons for the refusal to submitted to an official, he would be initial the travel order, the applicant has exposing himself to a risk if he did not no grounds for contesting the refusal of obtain certain assurances before the mission before the Court. There is no initialling it. In such circumstances, the need for the Court to give a decision on duty of an official requesting a travel this head of the application, which serves order to inform his superior officer fully no real purpose. of the exact situation is particularly important to ensure the proper working Moreover, it is not contested that the of the service. duties of a member of a selection board, which were undertaken by the applicant, In this case, even it Mr Baillet had were 'part of her normal service'; but known on 22 April 1975 that the such duties necessarily come under the applicant was a member of a competition provisions of the Staff Regulations selection board, it would none the less governing the conditions of service, have been for her to supply him with all including Article 59, according to which necessary details of the places and dates the fact of being on sick leave implies

support it; that fact is sufficient to clarify a situation which is detrimental to dismiss the submission. her; moreover the refusal is likely to cause serious deterioration in her The note of 30 April 1975 working relationships and is contrary to the principle of good administration. The applicant considers that, if the Furthermore, it follows from the case-law Court pays no attention to the outward of the Court that the principles of natural form of Mr Baillet's note of 30 April justice and good administration require 1975 and considers that the note does that when serious accusations are made not constitute a disciplinary measure by his superior concerning the official within the meaning of Article 87 of the reputation of an official in the Staff Regulations, it would have to find performance of his duties the that the expression 'warning' was used administration should take all measures improperly: a complaint emanating from necessary to establish whether there are a superior is justifiable only if there is a any grounds for the accusations. reason for making it, which there is not in this case, since the applicant merely The Commission points out that in so far obeyed one of the two conflicting orders as the applicant's claim embodies all addressed to her, choosing the one which the complaints put forward in the appeared to cause the least difficulty. application, it is valid only to the extent to which those grievances are upheld by the Court. The Commission is of the opinion that the right of the applicants superior officer to inform her in writing of his In so far as the applicant relies on Article dissatisfaction with her conduct in the 24 of the Staff Regulations, it should be service cannot be contested; such right noted that her complaint was expressed stems from the power of a superior in such general terms that it was officer, who has been given authority impossible for the Commission to admit over the officials who make up his unit, it.

accusations, and if there are none, to of the principal heads of claim or a ensure that the accusations are publicly means whereby they may be put into withdrawn. effect. The applicant has suffered serious injury, for which compensation is In this case, the Commission considers required. that is completely fulfilled its duty to clarify the applicant's grievances; The Commission considers that the moreover its attempt at a compromise applicant has not suffered the least injury failed. with regard to her official reputation. Moreover, the allegation concerning the Either the inquiry made by the period subsequent to the facts at issue is Commission was inadequate for the completely outside the scope of this purposes of Article 24, in which case a application. fresh inquiry should be ordered, or the inquiry was adequate, in which case the The Commission willingly recognizes applicant has no grounds to apply on the that the applicant's participation in the basis of Article 24 of the Staff work of the competition selection board Regulations for the annulment of the is attributable to her devotion to duty. rejection of her complaint, but should on There is therefore no need for the Court the contrary submit herself to the to give a decision on this question, since findings of the administration which there is no disagreement between the completely fulfilled its duty under that parties in that respect. provision.

The application for the award of the V — Oral procedure symbolic FB 1 and the application for recognition of the applicant's devotion to duty The parties presented oral argument at the hearing on 24 June 1976. The applicant stresses that these two applications are not to be considered as The Advocate-General delivered his ends in themselves, but as a consequence opinion at the hearing on 7 July 1976.

5 Following this note, the applicant addressed to the Secretariat General of the Commission a 'complaint under Article 90 of the Staff Regulations', which was lodged on 9 June 1975.

6 The Commission took no action with regard to that complaint except for a letter dated 22 October 1975 in which the Director General for Personnel

described the incident as the product of a 'misunderstanding' and assured the applicant that it would have no unfavourable consequences for her career, concluding that in his opinion the complaint addressed to the Commission no longer served any purpose in these circumstances.

7 After the application had been lodged on 22 December 1975, the administration of the Commission tried once more, through the Head of Directorate G of Directorate General VI, to settle amicably the difficulties which had arisen between the applicant and her superior.

8 On that occasion the applicant was informed that the latter was willing to recognize 'that at the time she had been in a difficult position and that she was faced with a conflict of duty' and that he was prepared to consider the incident as closed.

9 The applicant however refused to accept this proposal and continued with her action at law.

14 The admissibility of the application must be considered first with regard to that omission.

15 In her complaint, after referring to the various communications specified above, the applicant asks the Commission to acknowledge the blamelessness of her conduct, to withdraw the accusations in the communications of her superior and in future to 'protect (her) ... from acts which unjustly damage (her) personal dignity and (her) position as an official'.

16 It is necessary to examine whether the Commission was under any duty to take a decision of this nature concerning the applicant and whether, in

JUDGMENT OF 14. 7. 1976 — CASE 129/75

consequence, its failure to reply to the complaint of 9 June 1975 can be the subject-matter of an application under the Staff Regulations.

17 The purpose of the appeals provided for under Articles 90 and 91 of the Staff Regulations is to arrange for the review by the Court of acts and omissions by the 'appointing authority' liable to affect the position under the Staff Regulations of officials and servants of the Community.

23 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

24 The applicant has failed in her submissions.

25 However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Comunities, institutions shall bear their own costs.

HIRSCHBERG v COMMISSION

On those grounds,

THE COURT (Second Chamber)

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 7 JULY 1976 <1>

Mr President, The applicant, who lives and works in Members of the Court, Brussels, had been on sick leave for two weeks when, on 14 April 1975, some The present case, brought by an official days prior to the date fixed for the against the Commission, is basically the performance of tests in a competition result of lack of information on the part organized by the Commission in of the applicant's immediate superior, Luxembourg, the Central Staff which was partly due to unsatisfactory Committee asked her to replace a working of the liaison machinery member of the Selection Board who was between the internal departments of the unexpectedly prevented from attending. institution and partly to poor contact The illness which prevented the between the two officials concerned, both applicant from coming to the office of whom have given evidence of a certain consisted, apparently, of an allergy to inflexibility of attitude which, in my smoke but did not prevent her from view, was a contributory cause of the working and she was therefore expressly dispute. authorized to work at home on the tasks

1 — Translated from the Italian.