C-18/78

In Case 18/78

MRS V., an official of the Commission of the European Communities, residing at Avenue Hof ten Berg, 1200 Brussels, represented and assisted by Philippe Du Jardin, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of E. Arendt, 34 B IV, Rue Philippe II, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Principal Legal Adviser, Raymond Baeyens, acting as Agent, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Plateau de Kirchberg, defendant,

APPLICATION for:

— The annulment of the implied decision of the defendant rejecting the applicant's complaint;

1 — Language of the Case: French.

JUDGMENT

Facts and Issues

The facts of the case, the procedure, the was struck several times by Mr T., her conclusions and the submissions and superior officer. arguments of the parties may be summarized as follows: The incident gave rise to two written statements of the facts. The first was sent by Mr T. to Mr Pratley, Head of the I — Facts and written procedure Individual Rights and Privileges Division, on 8 July 1976 and the second On 7 July 1976 an altercation arose at was sent by the applicant to Mr the Commission's offices in the Avenue Baichère, Director-General for Personnel de Cortenbergh between the applicant and Administration, on 12 July 1976. and Mr T., both of whom are officials of the Commission placed at the disposal of In a registered letter sent to the the local Staff Committee, Brussels President of the Commission on 10 Section. The applicant claims that she March 1977 the applicant's lawyer:

MRS V. v COMMISSION

(a) Asked to be informed of the action On 20 July 1977 the applicant submitted to be taken following the inquiry to the appointing authority a complaint which he assumed had been carried under Article 90 (2) of the Staff Regu­ out by the administration, as well as lations which sought: of the outcome; — The assistance of the Commission as (b) Recalled that under the terms of provided for in Article 24 of the Staff Article 24 of the Staff Regulations of Regulations, so as to enable the Officials the Commission was applicant to succeed in her complaint obliged to assist the applicant against submitted through official channels the perpetrator of the attack; against Mr T. on 12 July 1976;

The applicant was assigned within the By letter of 21 April 1977 Mr Baichère context of the transfer of all of the staff informed the applicant's lawyer that an placed at the disposal of the secretariat "appropriate inquiry" had been carried of the Staff Committee to Directorate out, but had not made it possible "to IX.D, Translation, Documentation, draw any conclusion as to the exact Reproduction and Library, with effect responsibility for the events which took from 1 October 1977. place ..." and, moreover, that "the transfer to which you refer are part of a measure providing for changes of The administrative authority did not assignment for all the staff assigned to reply to the applicant's complaint within that sector, which has been planned for a the period of four months laid down by long time". the Staff Regulations. However, by letter of 23 January 1978 Mr Tugendhat, a Member of the Commission, informed Following a further letter from the applicant's lawyer dated 5 May 1977 the applicant that the results of the asking for information in confidence inquiry carried out by the administration "were ... not conclusive" and that, about the "appropriate inquiry", giving the administration particulars which having regard to "conflicting evidence" might be of interest in relation to that the "best forum for determining any inquiry and, in particular, referring to a possible culpability is ... a court of law". statement made by a witness, Mr Baichère replied by letter of 27 May The applicant lodged this application on 1977 to the effect that he adhered to the 17 February 1978. It was received at the terms of his letter of 21 April 1977. Court Registry on 20 February 1978.

The Commission replied to that request (4) Order the Commission to pay the on 19 October 1978. costs;

On 30 November 1978 the applicant Take note that the applicant offers, submitted her observations on the reply in the alternative, to prove by all given by the Commission. legal means, including the evidence of witnesses, the facts which form Upon hearing the views of the Advocate the basis of the present dispute. General the Court (Second Chamber) decided to open the oral procedure In its defence the Commission contends without any preparatory inquiry. that the Court should:

— Dismiss the application as II — Conclusions of the parties unfounded;

— Order the applicant to pay the costs. In her application initiating the proceedings the applicant claims that the Court should: In her reply the applicant adheres to the principal conclusions set out in her (1) Declare null and void the application and, in addition, asks the Commission's rejection — at first Court to take note that she offers, in the implied and then given expressly on alternative, to prove by all legal means, 23 January 1978 — of the complaint including the evidence of witnesses, that

MRS V. v COMMISSION

Mrs B. and Mrs T. were not called upon certain members of the local and central until 10 March 1978 to testify Staff Committees, including Mr T. It concerning the events of 7 July 1976. was hot adopted in the interests of the service and was "disguised" by a general transfer of the staff of the secretariat. In its rejoinder the Commission adheres to its conclusions that the application should be dismissed as unfounded and that the applicant be ordered to pay the costs. The material and non-material damage suffered by the applicant as a result, first, of the Commission's refusal to assist her and, secondly, of the. unjust measure adopted in her regard justify an III — Submissions and argu­ application for an order for the payment ments of the parties of damages by the Commission, the amount of which she leaves to the discretion of the Court.

JUDGMENT OF 14. 6. 1979 — CASE 18/78

dispute, are before the Court, which will Article 24 of the Staff Regulations is not determine whether the behaviour of Mr irreconcilable with the general interest. T., who displayed an irritation which On the contrary, the general interest cate­ was perhaps understandable although gorically requires that proceedings be uncontrolled, was so serious as taken against the perpetrators of necessarily to justify recourse by the "threats, insulting or defamatory acts or Commission to Article 24 of the Staff utterances, or any attack" without Regulations. regard to any considerations based on bias or trade union interests even if it must thereupon be established that they As regards the application for the are perperated by one official against annulment of the transfer measure, the another "during working hours". Commission states that that measure concerned all the officials allocated to the local Staff Committee and was justified by the existence of a state of As regards the annulment of the decision mind and, in particular, by an to transfer her, the applicant adheres to atmosphere of irritability, which made a the arguments set out in her application. general measure of that kind inevitable in the very interests of the proper functioning of the department con­ In its rejoinder the Commission states cerned. Moreover, the replacement of that the written statements made by the the entire staff was necessary for reasons witnesses had already been obtained which had nothing to do with the dispute orally in a discreet manner in July 1976 which arose on 7 July 1976 and, fur­ at the time the inquiry was carried out thermore, was carried out a long time by Mr Pratley and his colleagues. The after that incident occurred. written statements were only sought in order to provide the Court with exact, signed statements which would establish The claim for compensation for the the full significance of the facts damage suffered is dependent upon constituting the incident which forms the whether the action taken by the basis for the present action. administration was wrongful, which the Commission contests.

IV — Information provided at Mr Baichère and his assistant, Mr the request of the Court Delauche, discussed all the details of the incident at great length with the principal representatives of the trade unions and On 4 October 1978 the Court requested various solutions were proposed to the the Commission to provide before 21 problem posed by the situation in which October 1978 certain precise information the applicant was placed. concerning the "appropriate discreet inquiry" which it carried out following The Commission's reply makes no the incident between Mr T. and the mention of any request to Mrs B. or Mrs applicant on 7 July 1976 (including T. to provide either written or oral evidence. dates, names of officials taking part in the inquiry, names of officials heard and On 5 December 1978 the applicant whether their statements were written or lodged at the Court Registry her obser­ oral). vations, dated 30 November 1978, on the reply given by the Commission. She The Commission's reply dated 19 regards that reply as confirmation of her October 1978, received at the Court argument that no appropriate inquiry, Registry on 23 October 1978, shows that such as would have constituted assistance Mr Pratley received written statements within the meaning of Article 24 of the from Mr T. and the applicant which did Staff Regulations, was actually carried not enable him to establish precisely the out. exact share of responsibility of each of those officials. Mr Pratley immediately informed Mr Baichère, Director General V — Oral procedure for Personnel and Administration, of the fact and, on his instructions, had an The applicant, represented by Philippe interview with the applicant at which he Du Jardin, of the Brussels Bar, and the stated that it appeared preferable for her Commission, represented by its Principal to work in another department, where Legal Adviser, Raymond Baeyens, the atmosphere would not only be less tense but even more favourable to her presented oral argument at the hearing on 8 March 1979. career. The applicant was, at that interview, disposed to accept a change of The Advocate General delivered his assignment but appears subsequently to opinion at the hearing on 29 March have been given other advice. 1979.

5 That incident gave rise inter alia to two written statements of the facts. The first was sent by Mr T. to the Head of the Individual Rights and Privileges Division on 8 July 1976 and the second was sent by the applicant to the Director General for Personnel and Administration on 12 July 1976.

MRS V. v COMMISSION

6 The Commission states that the Security Office carried out an inquiry into the incident without, however drawing up its findings in writing. The incident was also "the subject of a series of discussions between the repre­ sentatives of the trade unions and the administration. Following those exchanges of views the Commission proposed a change of assignment to the applicant.

7 By letter of 10 March 1977 the applicant asked the Commission what action was to be taken following the inquiry which it was assumed had been carried out by the administration. In the same letter she stated that, in the circum­ stances, any measure transferring her would have to be regarded as a reprimand. In his reply dated 21 April 1977 the Director General for Personnel and Administration informed the applicant that an "appropriate inquiry" had been carried out, but had not made it possible "to draw any conclusion as to the exact responsibility for the events which took place ..." and that the applicant's transfer was part of a measure providing for changes of assignment for all the staff attached to the Staff Committee, which had been planned a long time before.

6 On 20 July 1977 the applicant submitted a complaint to the appointing authority under Article 90 (2) of the Staff Regulations of Officials which sought, in particular, to obtain, first, the assistance of the Commission, as provided for in Article 24 of the Staff Regulations, so as to enable her to succeed in the complaint through official channels submitted against Mr T. on 12 July 1976, and, secondly, the revocation of any measure transferring her to a new post.

13 It is necessary to consider whether those allegations are justified.

14 The first paragraph of Article 24 of the Staff Regulations states that the Communities "shall assist any official ..., in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person ... to which he ... is subjected by reason of his position or duties".

15 Although that provision is devised primarily to protect the officials of the Communities against attacks and maltreatment by third parties the duty to provide assistance laid down in Article 24 also exists in a case in which the perpetrator of the acts referred to by that provision is another official of the Communities. In this case the duty to provide protection was particularly compelling, since the incident, which took place during working hours on the Commission 's premises involved two officials placed at the disposal of the local Staff Committee, one of whom, the applicant, was in a subordinate position to the other within that administrative unit. In the light of that situation and faced with an incident which was incompatible with the good order and tranquillity of the service the Commission was required to intervene with all the necessary vigour so as to ascertain the facts and, having done so, to take the appropriate action in full knowledge of the matter.

MRS V. v COMMISSION

16 It is clear from the above findings that the responsible officers of the Commission did not respond with the rapidity and concern desirable to the special situation in which the applicant found herself as regards her superior officer, so much so that it now appears to be impossible to reconstruct with the necessary certainty the circumstances surrounding the incident which gave rise to the application. It must therefore be stated that the Commission failed in the obligations imposed upon it, in the particular circumstances of the case, by the duty to provide assistance which is incumbent upon Community authorities by virtue of Article 24 of the Staff Regulations.

JUDGMENT OF 14. 6. 1979 — CASE 18/78

Costs

20 Under the terms of Article 70 of the Rules of Procedure, in proceedings by servants of the Communities institutions shall bear their own costs. Article 69 (3) of the Rules of Procedure provides inter alia that where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part. As each of the parties has failed on at least one of the heads of claim, the Commission must be ordered to pay one half of the costs incurred by the applicant.

On those grounds,

THE COURT (Second Chamber)

hereby:

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber