C-101/79

JUDGMENT OF 21. 10. 1980 — CASE 101/79

Article 51 of the Staff Regulations are exercise the powers conferred on the met the appointing authority is appointing authority constitutes an entitled to dismiss or downgrade internal measure which is not referred officials in the manner contemplated to by Article 110 of the Staff Regu- by that provision even if the lations and consequently is not subject incompetence is accompanied by to the obligation to hold consultations attitudes which might lead to laid down by that provision. disciplinary proceedings being brought. The specific nature of Article 4. The Member of an institution which, 51, the application of which moreover as an appointing authority, has taken entails, pursuant to the last subpara- a decision adversely affecting an graph of paragraph (2) thereof, the official is not bound to abstain from same safeguards as are built into participating in the collective decision- disciplinary procedure, is in fact due making process on the complaint not only to the grounds justifying it brought by that official against the but also to the measures to which it decision in question. It is in fact leads and the nature and effects of apparent both from the nature of the which, unlike those in disciplinary complaint procedure and from the proceedings, are better fitted to the combined provisions of Article 90 (1) situation which has to be rectified in and (2) of the Staff Regulations that the interests of the service. that procedure is not a means of appeal but is intended to compel the 3. The determination by each institution authority having control over the pursuant to the first paragraph of official to reconsider its decision in Article 2 of the Staff Regulations of the light of any objections which that the authorities within it which shall official may make.

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges,

Advocate General: J.-P. Warner Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts and arguments advanced by decision of 30 November 1962 to a the parties during the course of the vacant post in the Directorate-General written procedure may be summarized as for Research, Science and Education follows: (Department of Thermonuclear Fusion) and assigned to the Nuclear Studies Centre at Saclay in the capacity of an I — Facts and written procedure official in the scientific service and as an engineer in the field of theoretical and experimental plasma physics with the The applicant, an electrical engineer task of participating in the work of the who has studied applied nuclear physics, Euratom/AEC Association group. was recruited into the service of Euratom [European Atomic Energy Community] from 16 November 1959 and was assigned to a post in Grade A 5 with the Safeguards Directorate. Since it became apparent after 1965 that the applicant was not adapting himself to As he wished to work in research he was research in the plasma field and was not transferred at his own request by a fitting in with the research programme

His case then came before the 2. Declare that the express rejection of Disciplinary Board on 9 June 1977 which his complaint, dated 16 March 1979, on 19 June 1978 gave an opinion in is null and void; favour of the applicant's dismissal for incompetence. 3. Order the opposite party to pay the costs; After Mr Vecchioli had been heard on 17 July 1978 the Member of the Commission responsible for staff matters In the alternative : adopted the decision on 27 July 1978 to dismiss him with effect from 1 November 4. Order the opposite party to produce 1978. all the documents relating to the dismissal as well as to the opposite The complaint brought by the applicant party's proceedings relating to the against that decision, registered at the applicant's complaint.

VECCHIOLIv COMMISSION

JUDGMENT OF 21. 10. 1980 — CASE 101/79

power to dismiss an official, pursuant to as it has not been proved that the Article 51 of the Staff Regulations, has decision to reject the applicant's not been conferred on the Member of complaint against his dismissal was taken the Commission responsible for staff collectively by the Commission or that matters. when it did so that the Member of the Commission responsible for staff matters abstained. Fourth submission Infringement of Article 110 of the Staff Eighth submission Regulations of Officials inasmuch as if the Decision of 5 October 1977 conferred the power of dismissal on the Deficiency of reasons inasmuch as the Member of the Commission responsible decision in issue, first, was founded on for staff matters that conferment of facts which were irrelevant, inaccurate or power was unlawful in the absence of inaccurately interpreted and, secondly, consultation with the Staff Regulations failed to take into account facts that Committee and the Staff Committee. should have been taken into account.

(a) The decision was based on an Fifth submission assessment of the applicant's attitude at Saclay whereas that period is not Infringement of Article 2 of the Staff relevant to the assessment of his Regulations inasmuch as the Decisions of ability to carry out the duties which 28 February 1974 and of 5 October 1977 were entrusted to him after 1974. on which the decision in issue rests are themselves unlawful because they designate two different appointing auth- (b) The decision did not take account orities — the Commission for the of the responsibility of the promotion of officials in Category A, administration itself for the attitude and only one of its Members for their of the applicant. dismissal — whereas there may be only one appointing authority for each (c) The decision to assign him to official. Luxembourg was itself irregular.

giving rise to disciplinary measures lies the. phrase "classification in a lower not so much in the deliberate or grade" only, and not to "dismissal". involuntary nature of the act or conduct complained of but the persistence or exceptional nature of such act or conduct. In this case the applicant's work What is more the applicant's argument had been unimportant, inadequate and encounters a fundamental objection. A lacking in cooperation with his superiors proposal to dismiss an official must be for more than three and a half years reasoned and therefore may only come which justifies the application of Article from the immediate superiors of the 51 of the Staff Regulations. official but this does not apply to the Member of the Commission responsible for staff matters. Even if his attitude should have been regarded as meriting disciplinary measures too, that is not sufficient to The argument advanced in the alterna- make recourse to Article 51 of the Staff tive by which the proposal to dismiss the Regulations unjustified and the applicant should in any event have come defendant adverts in this regard to auth- from the Director-General of Direc- orities from the French Conseil d'État torate-General XVII (Energy) to which and from the Appeals Board of the Euratom Safeguards is subordinate and OECD. at whose disposal the applicant had been placed, and not from the Director- General of Directorate-General XII Furthermore, considerations indicating (Research, Science and Education) to that disicplinary proceedings are "pref- which he was attached only for erable" to the procedure for dismissal for administrative purposes, cannot be incompetence lose their relevance as accepted. Owing to the fact that the soon as the conditions for applying applicant remained so attached to Direc- Article 51 of the Staff Regulations are torate-General XII alone it was the met. Director-General of that Directorate- General who was competent to set in motion an administrative procedure of the kind contemplated by Article 51 of Second submission the Staff Regulations. Furthermore, the proposal to dismiss the applicant was submitted to the Director of the Euratom Safeguards Directorate-General XVII A comparison of the text of Article 3 of for his countersignature. the said Decision of 5 October 1977, so far as it is intended to put into effect Article 51 of the Staff Regulations, with the corresponding texts of Articles 2 and As a wholly secondary and alternative 5 clearly shows that there is an error of argument the defendant considers that substance in the wording of Article 3 and the procedural requirements infringed, if that the text should actually be read any, did not constitute essential pro- as designating the Member of the cedural requirements since the reasoned Commission responsible for staff matters proposal to dismiss the applicant was in as the appointing authority to decide on any event submitted to the applicant in "dismissal for incompetence or on a order to enable him to prepare his proposal for classification in a lower defence. That notification, and not the grade". The word "proposal" refers to identity of the person who made the

As for the alleged misuse of powers the As a wholly secondary and alternative defendant contends that the applicant argument the Commission believes that, has not adduced any evidence thereof. even if the said Decision of 5 October 1977 were found to be null and void thereby establishing the lack of Third submission competence of the person who took the decision to dismiss the applicant, that could not lead to the annulment of the In reply to the third submission based on last-mentioned decision. In that regard it the lack of competence of the Member relies on the judgment of the Court of of the Commission responsible for staff 30 May 1973 in Case 36/72 Meganck v matters the Commission contends that Commission [1973] ECR 527 et seq. by the second paragraph of Article 51 (2) of virtue of which the proper subject-matter the Staff Regulations provides that "the of the action is not the decision adopted appointing authority shall take a by the authority lacking competence, but reasoned decision ...". As was argued the implied decision rejecting the when the second submission was official's complaint, which is deemed to considered, Article 3 of the Decision of come from the competent authority to 5 October 1977 should be read as which the complaint is referred by the meaning that the Member of the applicant himself. Commission responsible for staff matters has competence in regard to officials in Grades A 4/LA 4 to A 8/LA 8 in the case Fifth submission of "dismissal for incompetence or a proposal for classification in a lower Then going on to consider the plea of grade". That interpretation is in illegality directed against the Decision accordance with the basic scheme of the of 5 October 1977 the Commission decision in issue and with the levels of contends that contrary to what the responsibility which it lays down as the applicant states Article 2 of the Staff Commission has competence in regard to Regulations does not prohibit the same officials in Grades A 1, A 2 or A 3/LA 3 category of officials from having a and the Director of Personnel has different appointing authority depending competence in regard to officials in on the kind of decisions to be adopted. Category B. Sixth submission Fourth submission The Commission contends that the submission on the breach of the rights of As to the non-observance of the pro- the defence is without any foundation cedural requirements laid down in whatsoever. Article 110 of the Staff Regulations the Commission argues that the said The applicant's work was submitted Decision of 5 October 1977 is not a several times to different experts and in general provision for giving effect to the particular, at the request of the Staff Regulations within the meaning of Disciplinary Board, to three independent that article and that therefore it should experts nominated on the recommen- not be subject . to the consultation dation of the President of the Admin- procedure laid down in that provision. It istrative Council of the Free University does not constitute an interpretation of of Brussels with whom the applicant had

Seventh submission After alluding to some factors concerning the course of his career, The seventh submission is based on the notably the alleged unlawfulness of his fact that it is not proved that the decision being placed at the disposal of Euratom to reject the applicant's complaint was Safeguards in 1974 and the failure of the taken collectively by the Commission defendant to take his psychological and that the Member of the Commission problems into consideration, the responsible for staff matters was not a applicant deals with the questions of law. party to that decision. The Commission replies that the decision was adopted by the written procedure under Article 11 First submission of the Rules of Procedure of the Commission adopted on 9 January 1963 (Official Journal, English Special In the absence of any case-law of the Edition, September 1974, Second Series Court on Article 51 of the Staff Regu- VII, p. 9). lations he claims that the meaning of the word "incompetence" should be sought from its ordinary sense; furthermore, the The Commission therefore made its thinking of the institution in question is decision in a proper manner and the quite apparent. As officials are recruited question whether the Member on the basis of competitions there is no responsible for staff matters should or question of their being considered should not have been a party to the incompetent or incapable at the outset. If decision-making process does not arise. they become incompetent or incapable after illness the procedure for relieving them of their duties is that provided for in the case of invalidity; if invalidity is Eighth submission not in question then the procedure for dismissal should be applied but in neither case should the issue of misconduct be In regard to the eighth submission, brought in. The mitigating provision of according to which the decision to the second paragraph of Article 51 (1) is dismiss tne applicant was based on facts meaningful only if no misconduct can be which were irrelevant, inaccurate or attributed to an official. If incompetence inaccurately interpreted and that there is accompanied by negligent conduct that was a failure to take all the relevant conduct comes under the disciplinary

As for the documents relied on by the That argument finds support in the text defendant the applicant maintains that of Article 86 of the Staff Regulations they do not have any evidential value; which refers to "any failure by an official the only documents to have that value . . . to comply with his obligations . . . are the periodic staff reports because of whether intentionally or through the procedural arrangements under negligence", that is to say, any failure which they are drawn up. He believes which may be attributed to the that he cannot be considered to be misconduct of an official, the distinction incompetent; what the defendant calls between intentional misconduct and incompetence should be treated as negligence being long established in civil inefficiency which, he contends, is due to law. a complicated situation which should be specifically related to the fact that he was given work to do which was indeed The applicant contends that if worthwhile in itself but which was not incompetence as referred to by Article 51 the same as that for which he was of the Staff Regulations could be transferred in 1962. intentional the Community provisions on the termination of service, as contemplated by Article 47, might be Second submission looked upon as redundant as Article 51 would appear to be superfluous. He also doubts the relevance of the authorities The applicant claims that the relied on by the defendant. Commission's argument as to the error of substance in the drafting of Article 3 of its Decision of 5 October 1977 cited The applicant contends that in general above is astonishing. administrative bodies tend to regard the procedure for dismissal for incompetence as being less unwieldy for themselves Although it is possible to conceive that a and, what is more, less harmful to an legislative provision may contain an error official because he can be offered a post of substance such an error must in a lower grade and he does not lose his necessarily be revealed by reference to pension rights. However, if an official the natural order of things or there must believes that it is in his interests to be a contradiction with the basic text. undergo disciplinary proceedings rather That is not the case and what the than the procedure to dismiss him for defendant relies on constitutes an error incompetence he is entitled to be dealt of judgment which was committed when with by a proper and' legal procedure. it delegated the powers to take the Furthermore disciplinary proceedings decisions which should be taken by the may be reopened under Article 11 of appointing authority. Annex IX to the Staff Regulations. The applicant also rejects the defendant's expedient of arguing that the Director- The main point, however, is that the General himself is no more empowered procedure to dismiss him for than the Member of the Commission to incompetence . brings disgrace on the formulate a reasoned proposal. Neither

of them may do so until he has obtained irrelevant since if taken to the extreme it information, if necessary from the would enable a proposal to be made by immediate superiors of the official in an official in Category B, C or even D. question, on his conduct. The fact that the proposal for dismissal In those circumstances competence was made by the Director-General of should have been conferred either on the Directorate-General XII and not by the immediate superior of the official in Director of Directorate-General XVII, question or on the Head of Division who countersigned the proposal, furth- responsible for drawing up periodic ermore constitutes a misuse of powers or reports within the meaning of Article 43 a procedural irregularity because on of the Staff Regulations. various occasions the official from whom the proposal came showed his animosity The applicant then contends by way of towards the applicant, one of those alternative argument that, even if it must occasions being that on which be acknowledged that the Director- the applicant gave evidence to the General who has control over the official Disciplinary Board. to be dismissed has competence to make the proposal, that Director-General may be only the one who has actual control Third submission over the official and whose subordinates, who are superior to the official to be dismissed, have been able to report to The applicant refers to the observations him about the official concerned; in the which he submitted on the first limb of event that person was the Director- the second submission. General of Directorate-General XVII (Energy) at whose disposal he had been placed. There were no grounds for Fourth submission applying by analogy the rule, laid down in the Guide to Staff Reports, on officials who have been reassigned. The In regard to the fourth submission on the reason for that rule is the need to resolve infringement of Article 110 of the Staff in a simple way the problems which arise Regulations the applicant contends that from the reassignment of officials during the provisions referred to in that article the period covered by their periodic are indeed provisions for putting the report. Staff Regulations into effect. They are moreover general measures. The fact that the proposal for dismissal was submitted for the countersignature If consultation has taken place over the of a director of Directorate-General Guide to Staff Reports, as provided for XVII who should have drawn up the by Article 110, it is incomprehensible proposal — assuming of course that it why the decision on the exercise of does not necessarily have to originate powers within the Commission did not from a Member of the Commission — is have to be subject to such consultation not the same as the competent Director- as the delegation of powers is of General's fulfilling his obligations by fundamental concern to all staff and has taking the initiative and assuming a somewhat institutional and at any rate responsibility. a general character.

In regard to the five concurring experts' Fifth submission opinions which the Commission relies on the applicant contends that the argument The applicant remains of the opinion that these carry authority is now no that Article 2 of the Staff Regulations longer valid. may not be interpreted as meaning that officials in the same category or grade That question is not relevant anyway might have different appointing auth- since in proceedings arising from an orities depending on the measures to be official's misconduct it is necessary to taken. determine whether the official spent his time on personal pursuits or if, even That situation is inconsistent and is not, though mistaken as to the proper value maintains the applicant, in accordance and prospects of success of his research, with the logic of the Staff Regulations. he spent his time and efforts on work which, even though regarded as marginal or even futile, remained within the Sixth submission framework of what was contemplated by the vacancy notice for which he submitted his application. The applicant recalls that this submission concerns the breach of the rights of the defence, first before the Disciplinary Seventh submission Board and then, before the Member of the Commission and that it does not concern the earlier background to this The applicant maintains that, although case. the decision was taken by written procedure, that does not rule out deliberation, that is to say, that counting The applicant states that the fairness and of opinions, even in the absence of oral propriety of the persons in question are discussion; the proposal of the Member beyond criticism; rather it is a question of the Commission responsible for staff of disputing their view of the right of the matters and the fact that he was a party applicant to be able to challenge the to the final decision constitute a breach opinion of the experts whom the of the principle nemo index in re sua. The Disciplinary Board consulted. importance of that principle is measured by the fact that it is to be found in the He is critical of the designation of three legislation or the customs of all physicists or electronics specialists; he democratic nations and that the Court explains the reasons, concerning their has already recognized it in the scientific training, for which the opinion judgment of 1 July 1964 in Case 26/63 of those experts could only be unfavour- Pistoj [1964] ECR 341. able from the start.

He believes that he is not to be criticized The applicant adduces a report by a in respect of that period in which there psychiatric expert to explain why he did cannot in any event be any question of not make a complaint in 1974 and that incompetence, even as understood by the he adopted a kind of "silent protest" Commission. rather than taking official or semi- official steps, as a good number of his colleagues placed in a contentious As for the defendant's criticism that he situation would have done. did not respond to various proposals to assign him elsewhere or that he ignored summonses to meetings or even refused to attend certain meetings, in so far as he 4. Rejoinder does not deny those facts, the applicant says that the reason for that behaviour was the discouragement which he felt Having indicated various corrections of when he found out that an attempt was the facts as put forward by the applicant the defendant makes the following obser- being made to "shunt him into a siding" vations in regard to its submissions in or even to make him resign prematurely. law: In any event his shortcomings could have been dealt with by disciplinary proceedings but cannot be held to be relevant in proceedings to dismiss him First submission for incompetence.

his argument that only his periodic Fourth submission reports may be taken into account and not the "unilateral" memoranda According to the Commission a addressed to him by his superiors during "decision on the exercise of powers the period in question. conferred by the Staff Regulations on the appointing authority" is an internal rule the sole purpose of which is to put Second submission into effect the scheme for the delegation of powers contemplated in Article 2 of the Staff Regulations. It is not referred The defendant returns to its argument to by Article 110 of the Staff Regulations about the wording of Article 3 of the which covers the general provisions for decision on the distribution of powers giving effect to the Staff Regulations. conferred on the appointing authority. It That decision has no effect on the again stresses that the wording is the exercise of the rights which officials have result of an error of substance and under the Staff Regulations; it is observes that the applicant's reply is restricted to the determination of based on a purely literal construction of measures for administrative organization. the provision in question. The defendant also recalls the arguments which it deduced from the Meganck judgment, cited above. It reaffirms that the placing of the applicant at the disposal of Directorate- General XVII did not affect his Fifth submission attachment for administrative purposes to Directorate-General XII and accordingly the official in charge of The defendant repeats that it does not that Directorate-General did have see how it is inconsistent and illogical to competence. In any event an irregularity confer the power to take decisions in of that type cannot be regarded as a regard to the same category of officials breach of a procedural requirement in so on several administrative authorities far as the reasoned proposal to dismiss depending on the kind of decision to be him was submitted to the applicant taken. In support of its argument it thereby enabling him to prepare his describes the system of delegating power defence. It is that notification and not over officials in Category B, ranging the identity of the person who gave from the reply to a complaint (Article it which constitutes a procedural 90 (2) of the Staff Regulations) requirement. What is more, the Director- (Commission), to permission to spend General, who according to the sick leave elsewhere than at the place applicant's argument did have where an official is employed (second competence, signified his agreement with paragraph of Article 60 of the Staff the proposal to dismiss him. Regulations) (Head of Division).

In regard to the fact that the Disciplinary Generally speaking the principle that Board and the appointing authority took both sides should be heard and on equal account of the unsatisfactory nature of terms cannot be construed to mean that the applicant's performance during the when faced with various experts' reports period 1965-70, during which he worked unfavourable to his contentions a party at Saclay, the defendant claims that it has the right to request the designation has been proved that there are grounds of an unlimited number of experts until for that assessment and that it cannot be one of them agrees that his opinions are criticized for having tried to find a new well founded. posting for the applicant rather than dismiss him in 1970. Even if the decision in dispute does mention stages in the applicant's career prior to the period Seventh submission from 1974 to 1978 nevertheless it is quite plain from that decision that it is based on the assessment of the work performed The defendant states that the decision to by the applicant at Euratom Safeguards. reject the complaint was taken, as is always the case for that kind of decision, by the written procedure under Article The defendant rejects the complaint by 11 of the internal rules of the the applicant concerning his being placed Commission adopted on 9 January 1963 at the disposal of Euratom Safeguards in cited above. 1974; it denies that there was a deminutio capitis and points out that at the time the applicant brought no complaint against the decision in It is futile for the applicant to contend question for the letter of protest which that there has been a breach of the he wrote before he assumed his duties principle that "no one should be judge in cannot be regarded as a complaint within his own cause"; it is not applicable the meaning of Article 90 of the Staff to administrative proceedings. The Regulations. Moreover, the trenchant, Commission, having been entrusted with not to say defamatory, tone of that letter the task of ruling on complaints, does indicates that, contrary to what the not act as a "forum of appeal" but as an applicant now claims, he was in no sense

2 In 1959 the applicant was engaged in the service of Euratom and assigned to the Safeguards Directorate. In 1962 he was transferred at his own request to a post in the Thermonuclear Fusion department of the Directorate-General for Research and Education to carry out research work in the field of plasma physics and for that purpose he was placed at the disposal of the Nuclear Studies Centre at Saclay. In 1970 the Steering Committee for the Euratom/AEC Association Contract placed him once again at the disposal of Euratom believing that he was not adapting himself to the research programme of the Nuclear Studies Centre. In 1974, after futile and protracted attempts to obtain his agreement to take on fresh duties, the Commission, while maintaining his attachment for administrative purposes to Directorate-General XII (Research, Science and Education), placed him at the disposal of Directorate-General XVII (Energy), or more accurately, at the disposal of the Energy and Euratom Safeguards Directorate, where he resumed the tasks which he had performed before 1962 at the Safeguards Directorate.

VECCHIOLI v COMMISSION

3 His superiors found that the work accomplished by the applicant after he had thus resumed his duties was inadequate and on 17 December 1976 the Director-General of Directorate-General XII adopted a proposal to dismiss him under Article 51 of the Staff Regulations which, following a procedure certain aspects of which are criticized by the applicant, resulted in the decision which is now challenged.

4 In support of his application the applicant makes various submissions as to the infringement of various provisions of the Staff Regulations, in particular Article 51 thereof, and as to the infringement of the Commission's Decisions of 25 July 1974 and 5 October 1977 on the exercise of powers conferred by the Staff Regulations on the appointing authority (Informations administratives [Administrative Notices] No 10 of 4 November 1974; Staff Courier of 17 November 1977).

the appointing authority is entitled to dismiss or downgrade officials in that manner even if the incompetence is accompanied by attitudes which might lead to disciplinary proceedings being brought. The specific nature of Article 51, the application of which moreover entails, pursuant to the last subpara- graph of paragraph (2) thereof, the same safeguards as are built into disciplinary procedure, is in fact due hot only to the grounds justifying it but also to the measures to which it leads and the nature and effects of which, unlike those in disciplinary proceedings, are better fitted to the situation which has to be rectified in the interests of the service.

9 The submission must accordingly be rejected.

Second and third submissions

12 The Commission replies that Article 3 contains an error of substance in that respect and that the text should actually read. "Article 51 — Dismissal or proposal for classification in a lower grade" so that a decision to dismiss an official is a matter for the Member of the Commission.

13 Notwithstanding the faulty drafting of the text in dispute the Commission's interpretation must be accepted as it is the only one which is in keeping with the system of the distribution of the various powers conferred on the appointing authority as contemplated by the Decisions of 25 July 1974 and of 5 October 1977 and in particular by Article 3 thereof.

1 4 In that regard it should be observed that Article 2 of those decisions, which exhaustively lists the categories of officials with respect to whom the Commission is itself to exercise the powers of the appointing authority, does not mention, with regard to the application of Article 51, officials in Grade A 4/A 5. On the other hand it expressly designates the Commission to take decisions on "dismissal for incompetence or proposal for classification in a lower grade" of officials in Grade A 1, A 2 and A 3/LA 3 and in order to do so it uses the very same phrase which, according to the Commission, is to be found on a close reading of the corresponding text of Article 3.

15 Furthermore the context of Article 3 shows beyond all possible doubt that in the case of officials in Grades A 4/A 5 dismissal for incompetence falls within the competence of the Member of the Commission responsible for matters of personnel and administration. It appears in fact that Article 3 confers on that Member of the Commission the power to take decisions in a number of possible situations in which the consequences of the decision are just as, if not more, serious for the person concerned. It is in fact that Member of the Commission who in the case of officials in the same grade takes decisions as

19 According to Article 13 of the Decisions of 25 July 1974 and of 5 October 1977 a proposal to apply the measures mentioned in Article 51 of the Staff Regulations to Officials in Grade A 4/A 5 should come from the Member of the Commission responsible for the directorate-general or for the department to which the official in question belongs, a condition which is not fulfilled in this case. However that has not been pleaded by the applicant and the Court believes that since the final decision was itself taken by the competent authority the Court should not raise that issue of its own motion.

VECCHIOLI v COMMISSION

20 Furthermore the complaint alleging a misuse of powers is not supported by any assertion which is at all verifiable and what is more it is belied by the way in which the investigation of the applicant's case took place in accordance with the procedure provided for disciplinary action as required by the second subparagraph of Article 51 (2) of the Staff Regulations.

2i It follows from the foregoing considerations that the submissions to the effect that the proposal and the decision to dismiss the applicant came from authorities other than 'those competent to do so or that they were vitiated by misuse of powers must be rejected.

Fourth submission

22 The applicant then raises a plea of illegality against the aforementioned Decisions of 25 July 1974 and 5 October 1977 on the exercise of powers conferred on the appointing authority. According to him those decisions were adopted contrary to Article 110 of the Staff Regulations by which "the general provisions for giving effect to (these) Staff Regulations shall be adopted by each institution after consulting its Staff Committee and the Staff Regulations Committee". Since those decisions were adopted without the consultation referred to in Article 110 taking place they are unlawful with the result that in the absence of valid rules all the measures which those decisions allocated to various authorities should be taken by the Commission.

26 Consideration of the papers before the Court shows that this submission is plainly unfounded.

27 The applicant has maintained throughout the proceedings that he devoted himself to personal work of great importance in the field of plasma physics and that the work was proof of his professional ability. Although the Disciplinary Board was not bound to do so, since incompetence as referred to in Article 51 concerns the tasks which an institution wishes to be performed by its servants and not work of their own personal preference, it submitted that work to three scientists who confirmed the earlier opinion of other scientists that the work was of no interest.

28 Once objectively informed in that way the Disciplinary Board was not obliged to accede to the request for further expert evidence on the applicant's behalf which, moreover, he was entitled and able to furnish on his own initiative.

29 The submission must accordingly be rejected.

Seventh submission

30 The seventh submission alleges infringement of Articles 90 and 91 of the Staff Regulations on the ground that it is not established that the decision to reject the applicant's complaint against his dismissal was taken collectively by the Commission and that when the decision was adopted the Member of the Commission responsible for staff matters abstained.

35 That submission must accordingly be rejected as well.

JUDGMENT OF 21. 10. 1980 — CASE 101/79

36 As the applicant has failed in all his submissions his application should be dismissed.

Costs

37 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. As the applicant has failed in his submission he must be ordered to pay the costs.

However, under Article 70 of the Rules of Procedure costs incurred by the institutions in proceedings by servants of the Communities shall be borne by the institutions.

Delivered in open court in Luxembourg on 21 October 1980.

A. Van Houtte H. Kutscher Registrar President