C-115/80
ECLI:EU:C:1981:308
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JUDGMENT OF T H E COURT (FIRST CHAMBER) 17 DECEMBER 1981 1
René Démont v Commission of the European Communities
(Official — Disciplinary measure)
Case 115/80
Officials — Disciplinary measures — Disciplinary procedure not involving the Disciplinary Board — Right of the official to he assisted in his defence by a person of his own choice — Refusal of the administration to allow the official's counsel access to the disciplinary file — Infringement of the rights of the defence (Staff Regulations, Art. 87 and Annex IX)
Neither Article 87 of the Staff Regu- possibility that the official may be lations of Officials nor Annex IX assisted in his defence in all cases in thereto, nor those two provisions read in which the disciplinary proceedings conjunction, allow a distinction to be initiated against him are not those drawn between the different defences of governed by that Annex. which an official may avail himself in the course of disciplinary proceedings depending upon whether or not those Thus, the refusal of the administration to proceedings entail a reference to the allow the official's counsel access to the Disciplinary Board or according to the disciplinary file in the course of severity of the disciplinary measure proceedings in which the Disciplinary which might be imposed on the official. Board is not consulted constitutes a The second paragraph of Article 14 of breach of a fundamental legal principle Annex IX to the Staff Regulations which the Court is bound to uphold cannot be interpreted as precluding the within the Community legal order.
In Case 115/80
RENÉ DEMONT, an official of the Commission of the European Communities, residing at 113 Rue des Palmiers, Woluwé Saint-Pierre, Belgium, represented by Jacques Putzeys and Xavier Leurquin, both of the Brussels Bar, with an address for service in Luxembourg at the office of Mr Nickts, Huissier de Justice, 17 Boulevard Royal, applicant, 1 — Language of the Case: French
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v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Denise Sorasio, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob of the Brussels Bar, with an address for service at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,
APPLICATION for the annulment of the decision of 15 June 1979 by which the appointing authority decided to reprimand Mr Démont,
T H E COURT (First Chamber),
composed of: G. Bosco, President de Chambre, A. O'Keeffe and T. Koopmans, Judges,
Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
I — Facts and procedure of the European Communities to Latin America, located at that time in Santiago, Chile. Mr Démont, an official of the Com- mission of the European Communities, Following a memorandum dated 19 June was assigned, as from 1 August 1973, to 1978 sent by Mr L., the applicant's the Directorate-General for External immediate superior, to the Assistant to Relations, Delegation of the Commission the Director-General for External
DEMONT v COMMISSION
Relations, a commission of inquiry was The Commission contends that the Court set up by the Commission and sent to should: Santiago, Chile, in order to take evidence on allegations made against the applicant. On receipt of the report drawn — Dismiss the application as un- up by that body, the appointing authority founded; decided on 25 September 1978, to start disciplinary proceedings. — Order the applicant to pay the costs. In the course of those proceedings Mr Demont was heard on 28 September 1978 and on 19 January and 3 April 1979. III — S u b m i s s i o n s and argu- By a decision of 15 June 1979 the ments of the p a r t i e s appointing authority decided to reprimand Mr Demont. (a) Inadequate and contradictory On 10 August 1979 Mr Demont lodged statement of grounds for the contested a complaint through official channels decision against that decision which was expressly rejected by letter dated 4 February 1980 and notified to the applicant on 7 March The contested decision finds the 1980. following irregularities proven against Mr Demont: By application dated 30 April 1980, registered at the Court on 2 May 1980, Mr Demont brought this action. 1. The payment of an advance of 100 % against the cost of his annual journey On hearing the report of the Judge- in 1977 and 1978 instead of the Rapporteur and the views of the permitted 90 % ; Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory 2. Misuse of procedure by use of arti- inquiry. ficial invoicing by a firm belonging to an acquaintance of Mr Demont who signed the receipts when the sums mentioned therein had been paid by II — C o n c l u s i o n s of the p a r t i e s the delegation to a temporary worker with whom no contract had been concluded and failure to keep Mr Demont claims that the Court should: headquarters properly informed thus making impossible a check on the true 1. Annul the defendant's decision of 15 destination of Community funds; June 1979 to reprimand the applicant;
2. Annul the express rejection on 3. Irregularities concerning the amounts 7 March 1980 of the applicant's paid and methods of payment of complaint; female cleaners employed by the Santiago delegation in 1977 and 3. Order the defendant to pay the costs. 1978;
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4. Acceptance of fees requested by- the imprest accounts in Santiago were lawyers without checking whether administered by Mr L and that, in any their amount was justified and event, the real and immediate need to without prior authorization from take on staff which led him to take such headquarters. an initiative has never been disputed.
Mr Demont maintains first that those allegations are mistaken in fact and The Commission retorts first that Mr wrong in law. Demont had always performed de facto the duties of administrator of imprest accounts in Santiago as is borne out by a decision of the Director-General for the As to the first charge, Mr Demont Budget dated 12 August 1977 appointing essentially states that in 1978 he observed him administrator of imprest accounts the limit of 90 % and that in any case, in with retroactive effect to 1 December 1977 as well as 1978, the Commission 1973. It adds that the requirement for a did not grant advances but rather temporary member of staff in Santiago reimbursed the sums already paid out by was not acknowledged by the adminis the officials concerned and that the tration, which is confirmed by the fact practice of the Commission is contrary to that it had refused to sanction the the last subparagraph of Article 8 (2) of employment of a temporary member of Annex VII to the Staff Regulations, staff and that Mr Démont was only able which states, inter alia, that the costs of to overcome that refusal by diverting to travel by air are to be reimbursed simply that end funds which he had obtained by on production of the tickets. way of a proposal for commitment of expenditure for packaging costs which had in reality not been incurred.
The Commission maintains that it is clear from the documents in the file that Mr Demont granted himself an advance of 100 % on the cost of his annual journey Moreover, even if Mr Demonťs in 1977 and 1978 and that it was by argument could be upheld, the procedure way of advance and not by way of was still irregular since Mr Demont paid reimboursement. It adds that, with the temporary member of staff directly respect to officials whose place of origin and not, as logic would dictate, the or place of employment or both are employment agency, there being no legal outside Europe, the costs of the annual relationship between the temporary journey are reimbursed on production of member of staff and the employer when supporting vouchers and not simply on an employment agency is used. The production of the tickets. Supporting Commission concludes therefore that the vouchers, according to the Commission, applicant used an artificial form of should be understood to mean not the invoicing and misled the administration tickets purchased but the tickets used and thus made it impossible to check the which alone prove that the journey true destination of Community funds. actually took place.
As to the second charge, Mr Demont states As to the third charge, Mr Demont states that at the material time, namely in 1976, that he regularly paid the cleaners at the
DÉMONT v COMMISSION
Santiago office in cash and that he As regards the fourth charge, Mr Démont cannot be accused of any irregularity by maintains that he never agreed with the reason of the fact that, once the law firm Muñoz Rios & Cia in Santiago payments had been made, he set up a the amount of the fee note claimed by benevolent savings scheme in the sole them after they had acted on behalf of interests of the cleaners with the amounts an official of the delegation who had which they spontaneously entrusted him been interrogated by the police; he had with. He adds that the Commission quite simply registered the note, sub- cannot at this stage allege that the wages sequently sending all the correspondence of the cleaners as from 1977 were clearly on the matter to headquarters in Brussels higher than those normal in Santiago for which never replied to him. He states the same work since that allegation was that he could never in any way have not made in the disciplinary proceedings accepted the fee note since the decision or mentioned in the decision to as to payment must be taken by head reprimand him. office, which has still not paid it.
The Commission states on the contrary that it is clear from the report of the The Comtnission retorts that it is clear commission of inquiry that "Mr Démont beyond doubt from the statements of the acknowledges that he pays them (the lawyers involved as well as from two cleaners) only one-half of their wages letters addressed by them to Mr Démont and the difference after several months". appearing in the file that they agreed This point was also confirmed by with the applicant the amount of their statements by the cleaners themselves. fees.
As regards the allegation as to the Mr Démont states moreover that the amount of wages received by the grounds upon which the contested cleaners, the Commission points out that decision is based are contradictory it is not a new allegation since the inasmuch as, on the one hand, the decision of 15 June 1979 mentions the decision mentions the allegations set out irregularities concerning "the amounts of above and, on the other hand, it payments made to cleaners". recognizes that the other duties entrusted to the applicant by the administrative authority did not allow him sufficient It is the Commission's view that it was time to devote himself properly to the not for Mr Démont, on his own duties of administering the imprest initiative, to defer the payment of a part accounts, that the conditions at the of the wages of certain employees, whilst Santiago office were quite abnormal as a at the same time making out receipts result both of the political and social which did not correspond to the true situation and of the distance from position, or to grant to those employees headquarters and that finally the wages considerably higher than those applicant did not obtain any personal normal in Santiago. By acting in that gain from his irregular activities. way without informing headquarters, Mr Démont prevented a proper audit of the use of Community funds and infringed the principle of the proper management According to Mr Démont, those of public funds. circumstances, expressly accepted and
JUDGMENT OF 17. 12. 1981 — CASE 115/80
acknowledged by the Commission, are assistance and had, at the time of the exceptional and are of such a nature as disciplinary proceedings, inquired also to exempt him from responsibility. into the events leading up to the allegations, it could not have failed to see that they were defamatory. The Commission considers on the other hand that those circumstances, whilst they may be considered and were in fact The applicant states moreover that, in considered as mitigating circumstances, accordance with the general principle of still cannot expunge the applicant's good administration, as has been shortcomings. It points out that Mr recognized by the case-law of the Court, Demont never requested to be relieved the administrative authority must take of his duties as administrator of imprest into consideration all the factors which accounts and that the special situation are likely to guide it in its decision. In existing in Chile had no direct the present case, however, he alleges that connection with the irregular conduct of the Commission has not taken into Mr Demont in the administration of the account two essential factors, namely: funds which were entrusted to him and that the fact that Mr Demont did not derive any personal benefit from that — That the allegations were manifestly conduct does not mean that those irregu- made as a result of a dispute which larities did not harm the good adminis- had broken out between two tration of the European Communities. officials;
— That the allegations, as the (b) Breach of the duty of assistance under disciplinary authority itself has even Article 24 of the Staff Regulations of said, contained a great number of Officials and of the principles of good defamatory statements. administration and of legitimate trust
Mr Demont maintains finally that under In his second submission Mr Demont the principle of legitimate trust which the maintains that, by failing to investigate a Court has recognized as forming part violent exchange of correspondence of the Community legal order, the between the applicant and Mr L shortly Commission should have made an before the allegations were made against exhaustive investigation and have shown him, the Commission has failed to take an impartial attitude to all the factors to into account an essential feature of the be taken into consideration; it ought to circumstances in which the allegations have examined all the items in the file were made, which led to the imposition produced by the applicant in his defence. of the disciplinary measure. The Commission was thus in breach of its duty of assistance towards officials under The Commission states first, that the Article 24 of the Staff Regulations as invoking of the principle of "legitimate well as of the general principles of good trust" is not relevant to the present case. administration and of the trust which an Indeed that principle was established by official is legitimately entitled to place in the Court principally in relation to his institution. actions based on Article 215 of the EEC Treaty. Its exact scope in regard to legal proceedings involving officials thus Mr Demont considers that, if the remains indeterminate. The applicant has Commission had fulfilled its duty of not shown that this principle differs in
DEMONT v COMMISSION
scope, even slightly, from the principles (c) Infringement of the rights of the of good administration and the duty of defence assistance. The third submission made by Mr Demont relates to an infringement of The Commission points out, so far as Article 26 of the Staff Regulations and may be relevant, that the contested of the rights of the defence and a breach decision expressly refers to the of the general principles of the Staff memoranda and documents adduced by Regulations in disciplinary matters and Mr Demont and that it must therefore may be divided into four heads as follow that those documents were taken follows: into consideration. The Commission is, however, under no obligation to address itself in its decision to all the arguments — The shortness of the time allowed to that persons subject to proceedings the applicant in which to prepare his before it, particularly disciplinary defence at the first hearing after proceedings, might put forward in their notification of the allegations: the own defence. period allowed was limited to three days;
As regards the duty of assistance and the — The Commission's refusal to allow principle of good administration, the the applicant or his counsel to Commission maintains that in reality the examine the disciplinary file; decision to reprimand Mr Demont was not in any way based on the letter — The failure to supply to the applicant containing the allegations by Mr L. but statements made by a number of on the report of the commission of officials during the disciplinary inquiry sent to Santiago, on the proceedings; statements made by the applicant and numerous witnesses at the hearings and — The omission from the file of a also on numerous documents forwarded memorandum drawn up during the by them and in particular by the disciplinary proceedings by the applicant. official appointed to lead the inquiry.
The disciplinary measure which was As to the first head Mr Demont states that imposed on Mr Demont was the culmi- the Commission admits that it informed nation of meticulous disciplinary him only on 25 September 1978 that he proceedings in the context of which it was subject to disciplinary proceedings would have been completely superfluous and that his first hearing in the context to have regard to a commonplace of those proceedings had been fixed incident which arose between Mr L. and for 28 September 1978. Mr Demont Mr Demont and which bore no relation emphasizes that the requirement to give to the irregularities alleged against the persons subject to disciplinary proceed- latter. ings a reasonable period within which to prepare their defence is recognized by the Staff Regulations. Since the first By referring to the above-mentioned hearing, which is usually decisive in factors the Commission moreover charting the course of the rest of the rejected a number of allegations for disciplinary proceedings, is of prime which there was insufficient evidence importance, he considers that the period and thus fulfilled its duty of assistance of three days which was given him on and good administration. that occasion was clearly inadequate and
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that therefore there was a serious breach other than those very allegations and of the rights of the defence. documents.
The Commission retorts that the The Commission points out first that, applicant was heard on three occasions, pursuant to the sixth paragraph of namely on 28 September 1978 and 19 Article 26 of the Staff Regulations, Mr January and 3 April 1979, that he was Demont was entitled at any time to given the opportunity to call several consult his personal file (of which the witnesses and adduced in evidence a disciplinary file formed a part, although number of explanatory documents ac- physically it was contained in separate companied by very numerous appendices files owing to the large number of so that, regardless of the period of time documents involved) and that if he was allowed him before his first hearing, not able to consult it before the closure he was fully able to exercise his rights of the disciplinary proceedings that was to defend himself throughout the simply due to his not making a request proceedings, which continued for nearly to that effect sooner. nine months. As regards the refusal to allow the As to the second head Mr Demont states applicant's counsel to consult the file, the that the rights of the defence were also Commission maintains that counsel's infringed in this case by the refusal of position is not the same as that of the the Commission to allow the applicant or official concerned. Article 87 of the Staff his counsel to examine the disciplinary Regulations does not provide for an file. That refusal constitutes at the same official to be represented when the time an infringement of Article 26 of the disciplinary proceedings are likely only Staff Regulations which gives an official to result in a written warning or a the right at any time to consult his reprimand. Observance of the rights of personal file, of which the disciplinary the defence is therefore ensured since the file forms an integral part. official himself has access to the disciplinary file. According to Mr Demont, the conduct The Commission adds that it was only of the Commission is contradictory and by a letter dated 2 April 1979, which ambiguous. arrived at the relevant department on 6 April 1979, that Mr Demont's counsel Indeed, the Commission cannot be heard requested permission to consult the file to acknowledge that the rights of the and that at that time the work involved defence must at all times be respected in the disciplinary proceedings was and in the same breath to contend that a essentially terminated, the last hearing of provision of the Staff Regulations (in this the applicant having taken place on 3 case Article 87) exempts it from such April 1979. In those circumtances the observance. refusal to allow counsel to intervene cannot be considered as an infringement Moreover, if the Commission acknow- of the rights of the defence. ledges, as it does, that the allegations made against an official together with As to the third head Mr Demont the documents on which they are based, maintains that the rights of the defence must be brought to the notice of the were infringed inasmuch as the official it is difficult to understand why it Commission did not bring to the notice then refuses the applicant access to the of the applicant, before the outcome of disciplinary file which contains nothing the disciplinary proceedings, certain
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statements by witnesses which were that the omission to bring to his amongst the factors taken into account attention the aforementioned transcripts by the Commission in imposing the of the hearings prejudiced him in any disciplinary measure and which are way. expressly mentioned in the decision to reprimand the applicant. The absence of any prejudice is confirmed by the fact that in his Any administrative measure adopted in complaint dated 10 August 1979, that is, breach of the fundamental principle subsequent to the time when he had been according to which a judicial decision able to examine the whole of his file, Mr adopted on the basis of documents which Démont did not raise any special the parties have not been able to consult objections to those documents. is, according to the case-law of the court, absolutely void. An examination of the witnesses' Mr Démont contests the Commission's statements is moreover sufficient to argument to the effect that the omission confirm that they did not throw any new to bring to his notice the aforementioned light on the facts which were finally documents was not detrimental to him, regarded as proved by the disciplinary by stating that it is impossible to know authority. what might have been the decision of the appointing authority if the applicant had As to the fourth head Mr Démont states been able to make known his obser- that the disciplinary file does not contain vations and arguments in his defence a memorandum addressed by the official following the hearings which were kept appointed to lead the inquiry, Mr secret. In this case a rule of public policy Lannoy, to Mr Hay dated 7 May 1979 or an essential procedural requirement the contents of which were favourable to has been infringed, which must of the applicant. necessity entail the absolute nullity of the decision. The Commission replies that the The Commission, after stating that some memorandum is indeed to be found in of the reports of hearings, mentioned in the file. its decision, were brought to the notice of Mr Démont before the outcome of the disciplinary proceedings, argues that the omission to bring the other reports to his attention did not prejudice him in IV — O r a l p r o c e d u r e any way.
It states that it may be inferred from the Mr Démont, represented by Xavier well-settled case-law of the Court that Leurquin of the Brussels Bar, and the Commission of the European Communi- before proceedings in the course of ties, represented by Denise Sorasio, a which certain documents were not member of its Legal Department, acting brought to the attention of the party as Agent, assisted by Daniel Jacob of the concerned may be annulled, it must be Brussels Bar, presented oral argument at shown that the documents played a the hearing on 17 September 1981. decisive role in the process of reaching the decision arrived at in the proceedings. In the present case Mr The Advocate General delivered her Démont has not adduced, or attempted opinion at the hearing on 15 October to adduce, the slightest evidence to show 1981.
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Decision
1 By an application lodged at the Court Registry on 2 May 1980, René Démont, an official of the Commission of the European Communities, brought an action for the annulment of the Commission's decision of 15 June 1979 to reprimand him under Article 86 (2) (b) and the first paragraph of Article 87 of the Staff Regulations of Officials, and of the rejection by the Commission on 7 March 1980 of the complaint lodged against that disciplinary measure.
2 In support of his action the applicant maintains that the decision is ill- founded not only in fact but also in law. He states in particular that the Commission has in this case failed in its duty of assistance towards its officials imposed upon it by Article 24 of the Staff Regulations, and given a contradictory statement of the grounds upon which the contested decision was based, in breach of Article 25 of the Staff Regulations, and has committed a breach of the general principle of respect for the rights of the defence.
3 It is necessary first to test the last submission, in support of which the applicant claims, first, that the procedure followed in this case by the appointing authority in imposing upon him a disciplinary measure was irregular in the light of the aforementioned principle on the ground that he was not given sufficient time to prepare his defence. He states that the appointing authority arranged to hear him on 28 September 1978, namely only three days after deciding on 25 September 1978 to initiate a disciplinary procedure against him within the meaning of Article 87 of the Staff Regu- lations.
4 The facts relating to the progress of those proceedings as they appear from the file, which the applicant himself has not disputed, show however that that allegation is not well-founded.
5 It is in fact common ground that the hearing on 28 September 1978 was followed by two further hearings on 19 January and 13 April 1979, at which the applicant was not only heard again but was also able to submit in evidence explanatory statements and to have witnesses examined whom he
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had himself called. Despite the shortness of the period which was allowed him before his first hearing, the applicant was therefore put in a position, before the contested decision to reprimand him was adopted, to prepare his defence under conditions which were in conformity with the requirements of the aforementioned principle.
6 The applicant maintains furthermore that the Commission in this case committed an infringement of the rights of the defence in particular by refusing his counsel permission to examine the disciplinary file concerning him.
7 The Commission, whilst not disputing the truth of that allegation, contends that the interpretation of the second paragraph of Article 87, in conjunction with Annex IX to the Staff Regulations, makes it evident that assistance for the defence is only provided for by the Staff Regulations in a case in which the official is required to appear before the Disciplinary Board or where the disciplinary measure which may be imposed upon him is more serious than a written warning or a reprimand. The Commission considers that, in other cases such as the present case, the rights of the defence as regards the Staff Regulations have been observed, since the official himself had the oppor- tunity to examine his disciplinary file.
8 That line of argument fails to appreciate the letter and the spirit of the provisions of the Staff Regulations relating to disciplinary proceedings.
9 Neither Article 87 of the Staff Regulations nor Annex IX thereto nor those two provisions read in conjunction allow a distinction to be drawn between the different defences of which an official may avail himself in the course of disciplinary proceedings depending upon whether or not those proceedings entail a reference to the Disciplinary Board or according to the severity of the disciplinary measure which might be imposed on the official.
10 The second paragraph of Article 4 of Annex IX to the Staff Regulations, which provides that 'when the official appears before the Disciplinary Board he shall have the right to submit observations in writing or orally, to call witnesses and to be assisted in his defence by a person of his own choice', cannot be interpreted as precluding the possibility that the official may be assisted in his defence in all cases in which the disciplinary proceedings initiated against him are not those governed by Annex IX to the Staff Regu- lations. That interpretation which, under the terms of the aforementioned provision, would likewise apply to the right to submit observations in writing
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or orally and to call witnesses, would result in the unacceptable position that, in disciplinary proceedings other than those referred to in Annex IX to the Staff Regulations, the official could not avail himself of the essential pre- rogatives which form part of the right to defend oneself and would thus in practice be deprived of the right.
1 1 Appearing in the specific context of Annex IX to the Staff Regulations, that provision merely concerns the matters governed by that annex and is based on the fundamental requirement that respect for the rights of the defence, including the right of the official concerned to be assisted by counsel, is all the more important when the disciplinary proceedings to which he is subject are likely to result in the imposition of particularly severe disciplinary measures.
1 2 For those reasons it must be stated that the refusal of the Commission to allow the applicant's counsel access to the disciplinary file in the course of the proceedings which resulted in the contested disciplinary measure is without any legal foundation either in the letter or in the spirit of the provisions of the Staff Regulations relating to disciplinary matters, but rather constitutes a breach of a fundamental legal principle which the Court is bound to uphold within the Community legal order.
1 3 That refusal is sufficient to affect the legality of the disciplinary proceedings followed in the present case by the Commission, so that the decision to reprimand the applicant, adopted at the outcome of those proceedings, must be annulled and there is no need to examine the other submissions made in the application.
Costs
1 4 Pursuant to the first paragraph of Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.
15 The defendant having failed in its submissions must be ordered to pay the costs.
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On those grounds,
THE COURT (First Chamber)
hereby:
1. Annuls the decision of the Commission dated 15 June 1979 to reprimand the applicant;
2. Orders the defendant to pay the costs.
Bosco O'Keeffe Koopmans
Delivered in open court in Luxembourg on 17 December 1981.
A. Van Houtte G. Bosco Registrar President of the First Chamber
OPINION OF MRS ADVOCATE GENERAL ROZES
(see Case 791/79, p. 3119)