C-285/81

JUDGMENT OF THE COURT (THIRD CHAMBER) 6 JULY 1983 '

Jean-Jacques Geist v Commission of the European Communities

(Official — Application for a n n u l m e n t — O r d e r t o resume d u t y a n d suspension of p a y m e n t of salary — Article 60 of the Staff Regulations)

Case 285/81

Officials — Unauthorized absence — Annual leave used up — Forfeiture of remuneration — Finding that the absence is unauthorized — Decision to terminate payment of salary — Competent administrative body (Staff Regulations, Art. 60)

Although the second paragraph of Since the decision to terminate payment Article 60 of the Staff Regulations of salary is neither a disciplinary requires permission to be obtained from measure, which would require action on the appointing authority if an official the part of the Commission itself, nor an wishes to spend his sick leave elsewhere equivalent measure, it may be accepted than at the place where he is employed, that the authority empowered to the first paragraph of Article 60 does not establish unauthorized absence and to specify that it is the appointing authority order that payment of salary be which must decide that the salary of an terminated is the same as that referred to official absent without authorization in the second paragraph of Article 60. shall be forfeit if he has used up his annual leave.

APPLICATION for annulment of the Commission decision of 5 December 1980 ordering the applicant to resume duty at the establishment at Ispra and of the decision of 12 January 1981 to suspend payment of his salary as from 1 January 1981,

T H E C O U R T (Third Chamber)

composed of: U. Everling, President of Chamber, Y. Galmot and C. Kakouris, Judges,

Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Apart from health problems the transfer It appears that thereafter Mr Geist, to Ispra would have caused Mr Geist having no specific assignment in the both difficulties with his career, since the organization of the Joint Research post did not correspond to his interests, Centre, was provisionally attached to the experience and specialist training, and Directorate of the Centre and devoted domestic problems, since he had custody himself to research on molten-salt fuelled of three dependent children in the breeder reactors. Netherlands. Mr Geist therefore asked - the Commission several times to find him a post outside the Ispra Joint Research On 22 August 1975 the Council of Centre. Ministers confirmed that the development of reactor families was to be left to the exclusive initiative of the In September 1977 the Joint Research Member States (Official Journal, L 231 Centre referred the matter to the of 2. 9. 1975). Invalidity Committee under Article 59 (3) of the Staff Regulations and on 14 August 1978 the Committee gave an opinion to the effect that Mr Geist was Faced with the impossibility of capable of working. However, Doctor integrating Mr Geist into the new Semiller, the President of the Invalidity programme of research at Petten as Committee, stated that the Commission defined by the Council, the Director- should endeavour to resolve the problem General of the Joint Research Centre of a new post for Mr Geist. requested him to choose between two vacant posts at the Joint Research Centre at Ispra in Italy. In February 1979 a committee composed of officials comprising inter alia directors-general, the mediator, Mr De Since Mr Geist did not make his choice Groóte, and a representative of the known the Director-General of the Joint medical branch, Doctor Siddons, was Research Centre at Petten, by a decision instructed to find Mr Geist a post at the dated 10 December 1975 which took central office of the Commission in effect on 1 March 1976, transferred him Brussels.

Following a vacancy notice published by the Commission of the European Communities in the Staff Courier on 13 June 1980 Mr Geist made an application Various possible postings were then for the post of First Secretary responsible considered but they led to nothing for Scientific and Technical Matters in because in particular of the attitude of the Community delegation in Mr Geist, who either refused the posts Washington. By letter dated 14 July 1980 proposed or expressed such reservations Mr Geist was informed that his that the offer was withdrawn. application had been rejected. On 14 May 1981 he brought an action for the annulment of that decision and of all the measures adopted by the Commission to fill the vacancy. The action is the subject For instance at a meeting on 17 of the judgment of the Court (Third December 1979 with Mr Schuster, Chamber) of 6 July 1983 in Case 117/81. Director-General for Research, Science and Education (Directorate-General XII), Mr Geist declined a post with the On 6 November 1980 Mr Geist was Community Bureau of References. At a examined by Dr De Geyter, the medical second meeting on 18 January 1980 with expert who had already been consulted Mr Schuster and then, some days later, in 1978 at the request of the medical with his colleagues, Mr Geist was branch at Ispra. His opinion was that: offered a; post with the Reactors and "The absence of Mr Geist from his work Technologies and Scientific and is not due to medical reasons. It is Technical Committee, under Directorate therefore for the administration alone to XII-D Nuclear Research and determine the case". Development. That post was connected with the reprocessing of fuels from fast neutron breeder reactors. In a letter dated 5 December 1980 Mr Villani, Director of the Joint Research Centre at Ispra, stated that since there seemed to be no prospect of work in Brussels Mr Geist might wish to resume The reservations made by Mr Geist in duty at the Ispra establishment. letters sent on 14 February 1980 to Mr Schuster and on 9 March 1980 to the mediator, Mr De Groóte, concerning both the post itself and the research On 14 December 1980 Dr Willeboordse, programme to which it related, made it Mr Geist's own doctor in the impossible to take the view that the Netherlands, informed Dr Vigan, the applicant was formally accepting the post head of the medical branch of the Ispra

Because of the change in its composition In a letter dated 11 February 1981, the Court, by order dated 7 October registered by the Secretariat-General of 1982, decided to assign the case to the the Commission on 13 February, the Third Chamber. applicant made a complaint against first the implied rejection of his request of 11 July 1980 for a posting in a place other than the Ispra establishment and for the II — C o n c l u s i o n s of t h e p a r t i e s setting up of an Invalidity Committee responsible for deciding the circum- stances in which he might resume work, secondly the decision of 5 December The applicant claims that the Court 1980 ordering him to return to his post should: at Ispra and thirdly the decision of 12 January 1981 suspending the payment of 1. Declare null and void the decision his salary. In the same letter the notified to the applicant on 5 applicant asked for payment of his December 1980 summoning him to doctor's fees and expenses and the return to the Ispra establishment;

JUDGMENT OF 6. 7. 1983 — CASE 285/81

2. Declare null and void the decision Ill — Submissions and argu- notified to the applicant on 12 m e n t s of t h e p a r t i e s January 1981 informing him that his salary would no longer be paid after 1 January 1981; First submission

Dismiss the application as unfounded; The contested decision moreover Order the applicant to pay the costs; contains unfounded statements to the effect that the applicant lacked interest, Subject to all necessary reservations. good faith and realism whereas the

GEIST v COMMISSION

letters he sent to Mr Schuster and Mr applicant and that the fundamental De Groóte clearly manifested his interest objections which he raised to the in the proposed post in Directorate- research programme with which the post General XII. in Directorate-General XII was concerned did not allow it to be thought that Mr Geist was ready to accept the In the applicant's view the defendant has post. distorted the meaning of his letter of 14 February 1980 sent to Mr Schuster. In that letter the applicant confined himself to giving his observations on the research According to the Commission the letters programme with which the post in to which the applicant refers contain no question was concerned as Mr Schuster contradiction in its attitude but are a at their meeting in January 1980 had result of the applicant's own obser- asked him to do; in no event could it be vations. Thus Mr Schuster's letter of 21 claimed from what he said that he was February 1980 is based on the fact that not willing to accept the post in Direc- the applicant had shown that he intended torate-General XII. Moreover he clearly to devote himself solely to the field of expressed himself to that effect to the molten-salt reactors whereas that field, mediator, Mr De Groóte, by indicating contrary to what the applicant states, to him his acceptance in a letter dated was no longer part of the Commission's 9 March 1980. research programmes.

JUDGMENT OF 6. 7. 1983 — CASE 285/81

The second submission The Commission acknowledges that the The second submission is to the effect decision of the Director-General of the that the head of the Personnel and Joint Research Centre of 20 November Administration Division, Mr Hannaert, 1979 refers expressly only to the second who decided to suspend payment of the paragraph of Article 60. The applicant's salary under the first Commission nevertheless considers that paragraph of Article 60 of the Staff Article 60 of the Staff Regulations must Regulations, had no power to do so. be considered as a whole inasmuch as

GEIST v COMMISSION

The Commission states that if the The applicant states that the last report decision in question had been taken by from Dr De Geyter was made prior to the Director-General of the Joint the certificates given by Dr Willeboordse Research Centre it would no doubt have on 14 December 1980 and 27 February been the same since he had approved the 1981 and there is nothing to show that decision taken by Mr Hannaert. the applicant's health did not deteriorate between 6 November 1980 when the examination was made by Dr Geyter and Third submission 5 December 1980 when Mr Villani asked the applicant to resume duty at Ispra. The third submission is to the effect that the decision to suspend payment of the The applicant observes that Dr De applicant's salary was taken in breach of Geyter made his report without taking Article 59 (1) and (3) of the Staff Regu- account of the letter from Dr lations in so far as on the one hand no Willeboordse dated 13 November 1980 account was taken of the medical cer- which the applicant had mentioned to tificates provided by Dr Willeboordse, him whereas in 1978 Dr De Geyter had the applicant's doctor in the been anxious to take into account the Netherlands, whereas according to the opinion of the applicant's own doctor.

JUDGMENT OF 6. 7. 1983 — CASE 285/81

The applicant recognizes that the letters "The information obtained during the from Dr Willeboordse contain no precise course of this meeting of more than an diagnosis but observes that under the hour shows clearly that the reasons for rules laid down by the Royal Mr Geist's absence at the present time Netherlands Medical Society a patient's are not medical ones but rather the fact own doctor is bound to exercise a certain that it has not been possible, it seems, to discretion with regard to employers and find a solution to the conflict of some cannot give precise indications to a years' duration between him and the "Keurdoktor", a kind of expert acting as administration ... he says himself that he an agreed third party. is in good health and anxious to resume work".

In the applicant's view once the medical branch is in possession of a medical cer- tificate stating that the official is unable It was not possible to apply those to work, Article 60 (1) of the Staff Regu- provisions in this case since the applicant lations no longer applies; The position is did not produce a medical certificate. then governed by the provisions of Article 59 of the Staff Regulations and in view of the contradiction between the opinions of Dr De Geyter and Dr Willeboordse it was for the administration at Ispra to bring the The Commission considers that not matter before the Invalidity Committee every certificate from a doctor is pursuant to Article 59 (3). necessarily a medical certificate within the meaning of Article 59 of the Staff Regulations and refers to the opinion of Mr Advocate General Mayras in Joined Cases 42 and 62/74 Vellozzi v The Commission considers that there is Commission [1975] at p. 887 to the effect no contradiction between the report that for the absence to be considered made in 1978 and that made in 1980 by authorized and so avoid the application Dr De Geyter. The report of 1978 had of Article 60 the official must justify a concluded that Mr Geist was fit to work claim to be suffering from a complaint and that conclusion was reached also in which is such as to make him incapable 1980 in the following words: of performing his duties and his claim

GEIST v COMMISSION

must be verified by the' medical branch of resulting in an application to the the administration. "This requirement of Invalidity Committee pursuant to Article justifying absences is not satisfied merely 59 (3) of the Staff Regulations. In the by producing certificates from the absence of such diagnosis the official's own doctor stating that the Commission considers that there has official is unfit to work." been no breach of the provisions cited.

The Commission emphasizes also that Dr Vigan was anxious to obtain more The applicant considers that in so far as precise information and to allow the his state of health has not improved it applicant to receive his salary once again would be absurd to force him now to in the event of his incapacity for work move with his children to Italy when being established and requested further there is no post available to him at Ispra explanations from Dr Woerden by letters and the problem of his new assignment dated 27 October and 9 December 1981. has not been settled. Those letters had no result. The Commission observes that the By letter dated 19 April 1982 the permission given to the applicant under Director-General of Ispra, Mr J. A. the second paragraph of Article 60 of the Dinkespiler, informed the applicant that Staff Regulations before the decision in as appointing authority he had decided issue was taken was provisional. Since to refer his case to the Invalidity the applicant was no longer on sick leave Committee for an opinion pursuant to but absent without authorization the Article 59 (3) of the Staff Regulations. provision referred to no longer applied.

The Commission stresses however that Fifth submission there was no need for a request for further information or a fresh medical examination in December 1980 or The fifth submission is to the effect that January 1981 since Dr De Geyter had there has been disregard of the general examined the applicant a month earlier. principle laid down in the second Only a precise diagnosis from the paragraph of Article 59 (4) of the Staff applicant's own doctor was capable of Regulations according to which the

applicant is entitled to reimbursement of correspondence " internal to the fees incurred in remuneration of the administration which is not addressed to doctor chosen in connection with the the applicant and whose direct work of the Invalidity Committee in connection with this action has not been 1978 and the expenses which he himself shown. incurred. Finally the defendant considers that it is The applicant stresses that in spite of the not appropriate to call the 24 witnesses claim made to that effect in his sought by the applicant. The documents complaint of 11 February 1980 no submitted to the Court enable it to give reimbursement has been made. judgment with full knowledge of the facts in issue without its being necessary to call for the hearing of witnesses The Commission observes that it now certain of whom would certainly claim to has an account of the expenses incurred by the applicant in the invalidity be privileged on professional grounds not proceedings and that it has given the to give evidence whilst others would be necessary instructions for the sums due questioned on facts which have only an to be paid. It states that fees and indirect connection with the case. disbursements of the doctor nominated by the applicant will be reimbursed pursuant to Article 8 of Annex II to the Staff Regulations and the expenses IV — D o c u m e n t s and obser- incurred by the official himself will be vations lodged at the reimbursed pursuant to Article 11 of r e q u e s t of t h e C o u r t Annex VII to the regulations. 1. Documents lodged at the Court With regard to the calling of witnesses the Commission considers that the applicant's claims in his reply for the The applicant submitted the letter from production by the defendant of the Commission dated 21 January 1981 additional documents and for the giving refusing to allow him to stay in the of evidence by witnesses must be Netherlands and a memorandum of 14 rejected. December 1981 from him intended as an answer to the questions put by the Court in the interlocutory proceedings and as a In the defendant's view it is at the very statement of his financial position. Since, least surprising that the applicant is however, counsel for the applicant had claiming the production of all the not been able to obtain additional documents annexed to his own requests technical particulars from his ailing client and complaints. he had chosen not to submit that document to the Court. The applicant, The Commission states that it is not in a who would like to be heard by the position to produce the documents of a Court, is prepared, if so desired, to give medical nature in so far as certain of the any additional particulars on that subject. documents mentioned seem not to exist and the identification of other The Commission produced the letter of documents where the precise date is not 13 November 1980 sent by Dr specified has proved difficult. Willeboordse to Dr De Geyter and referred to in Annex 11 to the In any event the defendant considers that application. As regards the second letter it is not incumbent upon it to produce requested by the Court the Commission

The applicant states that since April 1975 In that letter Mr Dinkespiler, acting as and apart from the period from April to appointing authority, informed the October 1976 following a decision of 12 Invalidity Committee of the April 1976 by the Head of the Salaries consequences which the administration Division of the Commission, I X / A / 6 , his was about to draw from the opinion of salary has been paid in Italian lire 25 October 1982 failing a contrary although he has always been resident in opinion from the Invalidity Committee; the Netherlands.

JUDGMENT OF 6. 7. 1983 — CASE 285/81 ·

The applicant states further that payment October 1977 to 1 April 1978 the of his salary was suspended on 24 applicant did not produce a medical January 1978 and 7 November 1978 and certificate until 16 February 1978; the ceased definitively on 12 January 1981. administration therefore asked him to The resulting financial difficulties were provide a certificate from his doctor aggravated by the fact that the salary certifying that he had visited him and expressed in Belgian francs was paid in stating that he was unfit for work. That Italy in Italian lire at a rate of exchange certificate from Dr Risselada dated 24 which had been out of touch with reality April 1978 is included as Annex 5 to the since 1976. Commission's observations.

The applicant's absence between 1 April Hence Mr Geist, who says that he has and 31 August 1978 was covered by a lived mainly on his savings since 1975 medical certificate. would like to obtain arrears of salary in guilders or at least 6 0 % thereof as from July 1976 when he was officially on sick From September 1978 the applicant no leave at his home in the Netherlands or longer produced any documents from October 1976 when the transfer of regarded by the institution's medical salary to the Netherlands ceased. officer, Dr Vigan, as a medical cer- tificate.

speaking unfit to work, but there is October 1981 could not be regarded as a rather an incompatibility between Mr certificate justifying cessation of work. Geist and a particular place of work."

On 23 May 1982 Dr Willeboordse sent The Commission adds that on 7 Dr Vigan a personal and confidential February 1979 Dr Risselada wrote a letter which was not recognized as a letter to Dr Vigan saying that he had certificate justifying cessation of work advised Mr Geist against returning to for the reasons set out in a memorandum Ispra because of the "frustrating circum- from Dr Vigan to the administration stances" of his work at the Joint dated 11 June 1982 and in a letter to Dr Research Centre. Willeboordse of 14 July 1982 both included in Annex 13 to the Commission's observations. By letter dated 19 February 1979 Dr Vigan informed Dr Risselada and by memoranda of 14 and 21 February 1979 Dr Willeboordse did not take up the he informed the administration that the invitation from Dr Vigan to return to letter of 7 February 1979 could not be him duly completed and signed a medical regarded as sufficient to justify Mr certificate in the stereotyped form Geist's stopping work. enclosed with the letter of 14 June 1982. On the other hand, on 9 August he sent a fresh letter to Dr Vigan confirming On 15 November 1980 the applicant was what he had already stated (Annex 14 to examined by the medical branch which the Commission's observations). found him fit for work (defence page 7 and Annex 2 thereto; rejoinder p. 11 et seq. and Annex 6 thereto). On 25 October 1982 the Invalidity Committee, to which the matter had been referred in April 1982, composed of Dr C. Vigan, appointed by the On 27 February 1981 Mr Geist's doctor, Commission, Professor J. Wärter, Dr Willeboordse, wrote to Dr Vigan a appointed by Mr Geist, and Professor letter included in Annex 6 to the defence L. Cassiers, appointed by agreement and not regarded by Dr Vigan as a cer- between Dr Vigan and Professor Wärter, tificate justifying a cessation of work. gave the following opinion:

Decision

1 By application lodged at the C o u r t Registry on 3 N o v e m b e r 1981 M r Geist, a scientific officer assigned t o the J o i n t Research Centre at Ispra, b r o u g h t an action claiming:

1. T h e a n n u l m e n t of:

T h e decision notified to the applicant o n 5 D e c e m b e r 1980 s u m m o n i n g him to return t o the Ispra establishment;

T h e decision notified t o the applicant on 12 J a n u a r y 1981 informing him that his salary w o u l d be suspended after 1 J a n u a r y 1 9 8 1 ;

GEIST v COMMISSION

3 Mr Geist brought an action for the annulment of the decision to transfer him but the action was dismissed by judgment of the Court of 14 July 1977 (Case 61/76 [1977] ECR 1419).

4 The applicant in fact worked at the establishment at Ispra only for the period from 8 March to 22 June 1976, since his new posting represented in his eyes a progressive reduction in his responsibilities and occurred at a difficult

JUDGMENT OF 6. 7. 1983 — CASE 285/81

period in his personal life. He fell ill and produced medical certificates to the effect that his state of health did not allow him to work in Italy.

5 In September 1977, however, after Mr Geist had been absent for more than a year, the Joint Research Centre at Ispra referred the matter to the Invalidity Committee pursuant to Article 59 (3) of the Staff Regulations. According to the opinion given by that Committee on 26 July 1978 Mr Geist was fit to perform his duties. The Chairman of the Invalidity Committee stated, however, that the Commission should endeavour to find a solution to the problem of a fresh posting for the applicant.

6 Various possibilities of assignment, inter alia to the central office of the Commission in Brussels, were then considered but came to nothing.

10 By letter dated 11 February 1981 Mr Geist made a complaint, inter alia against the decision of 5 December 1980 requesting him to return to his post at Ispra and the decision of 12 January 1981 suspending payment of his salary. In the same letter the applicant asked for payment of his doctor's fees and expenses and reimbursement of his own expenses in the invalidity proceedings. That complaint was rejected by the Commission on 27 Tulv 1981. '

C o n c l u s i o n s d i r e c t e d a g a i n s t t h e d e c i s i o n of 5 D e c e m b e r 1980

1 1 In the applicant's view that decision, which states in the recitals in the preamble thereto that he had refused posts offered to him outside Ispra, is based on substantially incorrect facts. In disregarding the alleged undertaking to find him a post outside the Joint Research Centre at Ispra that decision moreover disregards the principle of care for the welfare of staff contained in Article 24 of the Staff Regulations and frustrates the legitimate expectation which must characterize relations between the administration and its officials.

12 It must be observed in the first place that, contrary to the applicant's statements, the grounds on which the contested decision is based do not include the fact that Mr Geist refused all posts offered to him. Although the Director-General of the Joint Research Centre pointed out that the applicant had refused a first post, he subsequently confined himself to observing that the .applicant's.reservations and his reticent attitude had led the director responsible to withdraw the offer of a second post made to him. Neither the documents in the file nor the arguments before the Court have shown those

i6 The conclusions directed against the decision of 5 December 1980 must therefore be dismissed.

i7 In consequence it is necessary also to dismiss the conclusions directed against, the rejection of the request of 22 December 1980 for permission to stay away from Ispra whilst he was sick.

GEIST v COMMISSION

C o n c l u s i o n s d i r e c t e d a g a i n s t t h e d e c i s i o n of 12 J a n u a r y 1981

18 In support of his claim the applicant maintains in the first place that the contested decision, which amounts to a penalty, could be taken only by the Commission or the Director-General of the Joint Research Centre and not by the Head of the Administration and Personnel Division of the Ispra establishment.

19 Article 60 of the Staff Regulations provides as follows:

JUDGMENT OF 6. 7. 1983 — CASE 285/81

absence and to order that payment of salary be terminated is the same as that : referred to in the second paragraph of Article 60, that is to say the appointing authority.

22 It appears from the file that by decision of 20 November 1979 the Director- General of the Joint Research Centre decided that the powers devolving upon the appointing authority by the second paragraph of Article 60 of the Staff Regulations should be exercised in respect of officials in Mr Geisťs category assigned to the Ispra establishment by the director of the establishment and empowered him to sub-delegate his powers to the Head of the Personnel and Administration Division. It follows that the contested decision by which the Head of the Personnel and Administration Division at Ispra, acting by delegation from the director, found that the applicant's absence was unauthorized and decided that payment of his salary should be terminated was taken by a competent authority. The first submission must therefore be dismissed.

23 In t h e second place the applicant maintains t h a t t h e administration could n o t lawfully find that his absence was u n a u t h o r i z e d so that payment of his salary might be terminated. H e alleges that he h a d p r o d u c e d medical certificates t o the effect that his state of health, did n o t allow him t o return to w o r k a n d that if the administration doubted their validity it should, before taking any unilateral decision, either have required him to undergo a medical exam­ ination pursuant to Article 59 (1) of the Staff Regulations or have referred the matter to the Invalidity Committee pursuant to Article 59 (3).

25 It is true that following that warning the applicant's own doctor wrote on 14 December 1980 to the head of the medical branch at the Ispra Centre a letter informing him that upon his advice Mr Geist would not be going to Ispra because he was not fit to work there. That letter was thus confined to giving an opinion of which Dr De Geyter was already aware; it contained no precise.medical diagnosis and did not mention any new factor affecting the applicant's health subsequent to the medical examination of the previous 15 November. The Head of the Administration and Personnel Division at Ispra therefore rightly took the view that the letter could not justify Mr Geist's absence nor could it necessitate a fresh medical examination or a reference to the Invalidity Committee. Although the applicant relies on the production of various additional medical certificates dating from October 1981, they are subsequent to the contested decision and in any event do not affect its validity.

26 In those circumstances the submissions and conclusions directed against the decision of 12 January 1981 terminating the payment of Mr Geist's salary must be dismissed.

27 In consequence the claim that the Commission be ordered to pay Mr Geist the remuneration which he has not received since 1 January 1981 must also be dismissed.

T h e c o n c l u s i o n s to t h e effect t h a t t h e C o m m i s s i o n be o r d e r e d to r e i m b u r s e to t h e a p p l i c a n t all t h e c o s t s i n c u r r e d in c o n n e c t i o n w i t h t h e p r o c e e d i n g s of t h e I n v a l i d i t y C o m m i t t e e in 1978

On those grounds,

T H E C O U R T (Third Chamber)

hereby

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Everling Galmot Kakouris