C-2/76
ECLI:EU:C:1976:187
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JUDGMENT OF THE COURT (SECOND CHAMBER) <apnote>1</apnote> OF 16 DECEMBER 1976
Maria Mascetti v Commission of the European Communities
Case 2/76
Summary
Institutions' Officials - Leave on personal grounds - Reasons for the request - power
of appraisal Criminal proceedings against an - official - Situation irrelevant to the position of leave on personal grounds
(Staff Regulations, Article 40)
The institutions enjoy a very extensive Although the practice of the institutions power of appraisal with regard to the indicates a wide range of reasons for
validity of the reasons advanced by the garanting leave on personal grounds, it official or servant wishing to take seems certain that such leave is not the
advantage of leave on personal grounds appropriate means of dealing with the
and to the compatibility of the grant of case of an official against whom criminal
leave with the interests of the service. proceedings have been instituted.
In Case 2/76
MARIA MASCETTI , an official of the Euratom Joint Nuclear Research Centre, Ispra, Varese, residing in Monvalle Turro, Varese, represented by Ettore
Maccapani, Advocate of the Varese Bar, with an address for service in
Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34 B/IV, rue Philippe II, applicant,
v
COMMISSION OF THE EUROPEAN COMMUNITIES , represented by Sergio Fabro, a
member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Bâtiment CFL, Place de la Gare,
defendant,
1 — Language of the Case: Italian.
JUDGMENT OF 16. 12. 1976 — CASE 2/76
Application for the annulment of the decision of the Commission of 11
August 1975 by which leave on personal grounds was refused,
THE COURT (Second Chamber)
composed of: P. Pescatore, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,
Advocate-General: F. Capotorti Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts giving rise to the case, the By a letter of 9 January 1975 the
procedure, the conclusions of the parties Administration of the Centre at Ispra and their submissions and arguments notified Miss Mascetti of a decision
may be summarized as follows: whereby, under Article 60 of the
Conditions of Employment of Other Servants of the Communities (Article 60 I — Facts of the Staff Regulations of Officials), payment of her salary was suspended
Miss Maria Mascetti, a servant of the since her unauthorized absence could no
Communities of Italian nationality longer be deducted from her annual
employed since 1 March 1961 as a leave, which had been used up. principal secretary at the Euratom Joint Nuclear Research Centre, Ispra, Varese, By a letter of 30 January 1975 Ettore did not come to work on 18 November Maccapani, an Advocate of the Varese 1974. Bar, sent to the Administration of the Joint Nuclear Research Centre, Ispra, a On 14 December 1974 an examining request, dated 22 December 1974, judge of the XVth Chamber of the whereby Miss Mascetti asked for unpaid
Ufficio d'Istruzione of the Tribunale di leave on personal grounds for a period of
Roma issued a warrant for the arrest of one year, under Article 91 of the
Miss Mascetti on the grounds of her Conditions of Employment of Other participation in a political conspiracy and Servants of the European Communities armed rebellion against the State. (Article 40 of the Staff Regulations of
MASCETTI v COMMISSION
Officials). The reason given for this III — Conclusions of the parties
request was one 'of force majeure, that is to say, court proceedings initiated against The applicant claims that the Court me on the grounds of an offence of a should annul the decision of the it nature'
political which made Commission of 11 August 1975 with all impossible for her to appear at work. the legal consequences thereof.
In his covering letter Mr Maccapani The Commission contends that the Court explained that 'a warrant for the arrest of should dismiss the application as
Miss Mascetti is currently in force in unfounded and order the applicant to
connexion with criminal proceedings (of bear the costs.
a political nature) initiated by the
examining judge of the Tribunal di Roma'. IV — Submissions and arguments
of the parties put forward By a letter of 20 February 1975 the in the course of the written
Director of the Centre at Ispra informed procedure
Miss Mascetti that he was unable to grant her request 'because the reasons The applicant emphasizes that Article 40 advanced provide no justification of the Staff Regulations of Officials whatever for granting leave on personal provides that unpaid leave may be grounds'. granted on personal grounds and in exceptional circumstances; it is difficult By a letter of 6 March 1975, recorded on to imagine a more personal ground and a 16 April, Miss Mascetti, through her more exceptional circumstance than a lawyer, submitted a complaint against decision his depriving an official of that decision under Article 90 (2) of the individual liberty. Staff Regulations.
It is true that Article 40 of the Staff By a registered letter of 1 October 1975 Regulations does'
not establish an actual the Commission notified Miss Mascetti right to the grant of leave, conferring of its decision of 11 August whereby it instead a discretionary power on the confirmed the previous decision of dis Administration. Nevertheless, that refusal of the Administration of the Joint cretionary power must embody a relevant Nuclear Research Centre at Ispra and and logical appraisal, giving the reasons declared that it concurred with the on which it is based, of the pertinence reasons stated by the latter. and both of the grounds validity advanced by the applicant and those
which prompted the decision itself. II — Written procedure
In this respect it is maintained that the
On 6 January 1976 Miss Mascetti lodged finding in the contested decision is quite this application. irrelevant and, on any view, inconsistent with a calm, objective and independent The written procedure followed the decision. Moreover, in so far as it is normal course. found in the decision that to have acceded to the request would have Upon hearing the views of the furthered the applicant's intention to
Advocate-General the Court (Second evade the warrant for her arrest, it tends
Chamber) decided to open the oral towards a line of argument which is quite procedure without any preparatory at variance with the criteria (of mere
inquiry. administrative expediency rather than the
JUDGMENT OF 16. 12. 1976 — CASE 2/76
'personal'
nature of the reasons) on the applicant's evasion of arrest, although
basis of which the decision required for such conduct is not even penalized by the implementation of the measure the criminal law to which the person
provided for by Article 40 of the Staff concerned is subject.
Regulations must be taken.
The discretionary power of the
administration amounts to a reasoned The present proceedings bear no relation and considered appraisal as to whether either to the applicant's absence from the grounds relied upon are essential and work after 18 November 1974 or to the well founded, within the framework of administrative decision taken as a the 'exigencies of the service of the precaution under Article 60 of the Staff administration'. This last factor could Regulations and notified to the applicant certainly not have occasioned the refusal by letter of 9 January 1975. The request to grant the leave requested. Moreover, for leave on personal grounds in no way the contested decision in no way relied constitutes a reply to that letter: there upon the fact that the exigencies of the can be no relation between the decision service might have been adversely taken under Article 60 and the request affected or disturbed by the grant of the submitted pursuant to Article 40 of the request. A peremptory and general Staff Regulations. The reference to 'the reference to a particular condition is quite unjustified absence; of the
applicant cannot constitute an adequate insufficient to justify a decision. statement of reasons for the decisions The Commission states that a measure adopted, in particular the contested taken under Article 40 of the Staff decision, since such a reason is quite
extraneous and irrelevant to the Regulations by its very nature implies a subject-matter of the dispute to which broadly discretionary appraisal, based on two classes of grounds: the personal the request for the grant of leave on grounds put forward by the official in personal grounds gave rise. support of his request and the exigencies
of the service of the Administration. The The discretionary power conferred upon official must set out the reasons why he the administration with regard to leave requests the benefit of the measure and on personal grounds does not amount to the appointing authority must consider an arbitrary power and does not justify a 'semblance' those reasons in full exercise of its of a statement of reasons. discretionary power of appraisal. Even if the grounds put forward appear valid the
The lack of a valid reason for rejecting Administration is entitled to refuse the
the applicant's request is confirmed by request on the basis of the criterion of
the fruitless endavours of the the exigencies of the service alone.
Commission to find arguments. For
example, on the Commission's view, In practice, leave on personal grounds is travel abroad must be regarded as a more granted, provided that the service can
valid reason for granting leave on dispense with the official, for study, travel personal grounds than the preservation of abroad for the purposes of training or for the physical and personal freedom of the other similar reasons. Grounds such as
individual in relation to charges of a those put forward by the applicant
wholly political nature (of which she has cannot justify the grant of such leave; not been found guilty) based upon this finding alone is sufficient to justify presumptive evidence. the contested decision.
The contested decision is made to appear If a person wishes to evade investigation all the more arbitrary by the attempt by the judical authorities of his country made to justify it by reference to the he does so at his own risk and cannot
MASCETTI v COMMISSION
claim the support and approval of a statement of reasons in the contested
Community institution. With regard to decision. In this respect both Italian
expediency, a measure adopted on such administrative law and the case-law of
grounds might even be considered as a the Court of Justice show that, whilst the veiled criticism of the judgment of the obligation to provide a statement of
criminal court, since the Community reasons is absolute with regard to a
authorities would be treating an irregular measure which may infringe a right of
situation as if it were regular, if only at the person concerned, that obligation is the level of internal administration. diminished when, as in the present case, the administrative measure amounts to
With regard to the alleged lawfulness of an exercise of the discretionary power of being a fugitive from justice, whilst it is the Administration in which the person
true that that state, as it is defined by the concerned has a mere interest. law of criminal procedure, does not
entail adverse consequences for the Furthermore, whilst the contested
suspect this by no means indicates that decision confirmed the decision of 20 such conduct is not regarded with February 1975 of the Director of the
disfavour within the Italian legal system. Centre at Ispra, it leaves no room for The law doubt Community authorities'
national by no means regards as to the
the situation of a fugitive from justice appraisal of the reasons which led it to
with 'indifference'. In any case, refuse the applicant's request. In imprisonment cannot constitute a valid particular, the decision shows clearly reason for obtaining leave on personal that, in refusing to grant a person against
grounds; it would at the least be odd if whom a warrant of arrest is in force leave the mere fact of evading a warrant for requested for the purpose of regularizing arrest could render the legal situation of her administrative position, the
the official more worthy of consideration. Commission refused to adopt an attitude
the sole effect of which would have been At the point when the applicant to confer upon the applicant an
submitted her request for leave on advantage unjustified either by the
personal grounds her administrative interests of the service or by a personal
status already entirely irregular since was interest of a kind which the
her unjustified absence dated from 18 Administration may protect and which is November 1974, that is to say, not only worthy of protection.
before the request but before the
existence very ground (the warrant of the In any case, although the decision of 20 for her arrest) upon which it was based. February 1975 itself no doubt contains a
Furthermore, the application of Article very brief statement of reasons, none the
60 of the Staff Regulations to the period less, taken in conjunction with the
up to 10 December, taking into account applicant's request of 22 December 1974, days of leave not used up, cannot it shows clearly that, whether or not one
regularize a posteriori her improper accepts the relevance of the argument
behaviour with regard to the regarding the political nature of the
Administration of her institution. Thus offence, the fact that the applicant is the applicant's unjustified absence, dating involved in legal proceedings cannot be from 18 November 1974, can in no way accepted either as an instance of force be vindicated on the grounds, which are majeure preventing her from coming to furthermore unacceptable, upon which work or as a reason for allowing her to she relies for the period after 14 take leave on personal grounds. The December. decision thus complies in addition with
such criteria for the justification of the
The application is essentially based on measure as may be considered necess
the complaint of the total lack of a ary.
JUDGMENT OF 16. 12. 1976 — CASE 2/76
A reference to the exigencies of the V — Oral procedure
service only have been necessary if would At the hearing on 27 October 1976 the the Administration had considered that parties presented oral argument and the grounds put forward by the applicant in support of her request were valid but replied to questions put to them by the Court. nevertheless decided that it must refuse
the request on grounds relating to the The Advocate-General delivered his
requirements of the service; this was not opinion at the hearing on 1 December so in the present case. 1976.
Law
1 The application is for the annulment of the decision of the Commission of
11 August 1975 refusing to grant the applicant leave on personal grounds.
2 It is common ground between the parties that the applicant, who is an Italian national employed as a principal secretary at the Joint Nuclear Research Centre at Ispra, Varese, did not carry out her duties as from 18 November 1974 and did not provide an explanation for this at the time.
By a letter of 9 January 1975 the Administration of the Centre at Ispra
notified her of a decision whereby, under Article 60 of the Conditions of
Employment of Other Servants of the Communities (Article 60 of the Staff Regulations of Officials) it had suspended payment of her salary since the
duration of her unjustified absence had exceeded the annual leave to which
she was entitled.
3 By a letter of 30 January 1975 Ettore Maccapani, an Advocate of the Varese Bar, forwarded to the Administration of the Centre at Ispra an application, dated 22 December 1974, whereby the applicant submitted a request under
Article 91 of the Conditions of Employment of Other Servants of the
Communities (Article 40 of the Staff Regulations of Officials) for unpaid leave
of one year on personal grounds.
This request was based on 'reasons of force majeure, that is court proceedings instituted against her in connexion with an offence 'of a political nature'
which made it impossible for her to come to work.
MASCETTI v COMMISSION
In this connexion it was explained in the course of the procedure that on 14
December 1974 the examining judge of the Tribunale di Roma had issued a
warrant for the arrest of the applicant because of her participation in a
political conspiracy and armed rebellion against the State.
4 By a letter of 20 February 1975 the Director of the Centre at Ispra notified
the applicant that he could not grant her request since the ground upon
which she relied provided no justification whatever for the grant of leave on
personal grounds.
By a letter of 6 March 1975 recorded on 16 April the applicant, through her
lawyer, lodged a complaint against this decision with the Commission, under Article 90 (2) of the Staff Regulations.
By a letter of 1 October 1975 the Commission notified the applicant of its
decision of 11 August whereby it confirmed the decision of refusal 1975
previously taken by the Administration of the Centre at Ispra and stated that
it agreed with the reasons stated in the latter decision.
That decision of refusal constitutes the subject-matter of the application.
5 Under Article 40 of the Staff Regulations, which applies to the applicant
under Article 91 of the Conditions of Employment of Other Servants of the
Communities, 'An official may, in exceptional circumstances and at his own
request, be granted unpaid leave on personal grounds'.
Although this power was created in the interest of the personal convenience
of officials and servants it is none the less true that the institutions enjoy a
very extensive power of appraisal with regard both to the validity of the
reasons advanced by the official or servant wishing to take advantage of that opportunity and to the compatibility of the grant of leave with the interests of the service.
6 Although the practice of the institutions indicates a wide range of reasons for
granting leave on personal grounds, such as family reasons, the pursuit of further education or training or the resumption of other occupations, it seems certain that leave on personal grounds is not the appropriate means of dealing with the case of an official against whom criminal proceedings have been instituted.
JUDGMENT OF 16. 12. 1976 — CASE 2/76
It thus appears that the Commission has correctly exercised in relation to the
applicant the power of appraisal reserved to it by Article 40 (1) of the Staff Regulations with regard to leave granted on personal grounds.
The application must therefore be dismissed.
Costs
7 Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to bear the costs.
The applicant has failed in her submissions.
Nevertheless, under Article 70 of the Rules of Procedure, in proceedings
commenced by an official or other servant, institutions shall bear their own costs.
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders each party to bear its own costs.
Pescatore Mackenzie Stuart Touffait
Delivered in open court in Luxembourg on 16 December 1976.
A. Van Houtte P. Pescatore
Registrar President of the Second Chamber