C-319/85

Mr President, ECR 223). As regards the second period of Members of the Court, absence, the charge against the applicant is that he failed to resume work despite the fact that, due to financial difficulties, he did not travel to the country, namely Greece, in which he was to attend a language course, for which he had been granted special leave. 1. By an application lodged at the Court Finally, according to Mr Misset, his absence Registry on 25 October 1985 Mr Rudolf on 17 September was due to an error in Misset, an official of the Council of the calculating his days of leave. European Communities, brought an action for the annulment of the following: (a) the decision of 9 January 1985 by which the Secretary-General of the Council repri- manded the applicant under Article 86 (2) On 25 September the applicant attended a (b) and the first paragraph of Article 87 of meeting with five superiors; Mr t'Kindt, the Staff Regulations, and (b) the same Head of the Dutch language Division of the authority's rejection dated 19 July 1985 of Translation Department, Mr Motte, Head the applicant's complaint against the of the Translation Department, Mr reprimand. Weinstock, Director-General, Mr Gueben, Director, and Mr Pisters, Principal Admin- istrator. By a memorandum of the same date forwarded by Mr Weinstock to Mr Gueben the former emphasized the seriousness of Mr Misset's conduct and stated that he T h e facts are as follows. During the summer would propose to the Secretary-General as of 1984 Mr Misset, a lawyer-linguist in the appointing authority the adoption of a Grade L/A 7, was absent from his office for disciplinary measure in respect of Mr a total of 32 days: more precisely from 18 Misset. It appears that Mr Misset did not July to 3 August, from 12 August to 7 attempt at that meeting to justify the periods September and on 17 September. As regards of absence. Several days later (9 October the first period of absence, although the 1984) Mr Gueben informed the applicant applicant claimed to be sick, he did not that he had suspended the applicant's produce the medical certificate required participation in vocational training 'pending under the second paragraph of Article 59 the steps which may be taken as a result of (1) of the Staff Regulations in due time (in his abuse of the leave granted to him for the connection with which I would add that Mr purpose of attending a language course in Misset brought an action in respect of the Greece. decision charging him with that failure and that the action was dismissed by the Court as inadmissible on the ground that it had been made out of time: judgment of 15 On 8 January 1985 the applicant was January 1987 in Case 152/85 Misset v summoned by telephone to appear a few Council of the European Communities [1987] hours later before the Secretary-General in

the presence of Mr Gueben, Mr Motte a party must be enabled to present his case and Mr t'Kindt. The Secretary-General fully are guaranteed not only in the context informed him of his intention to reprimand of proceedings before the Disciplinary him and asked him if he had any obser- Board which are governed by Annex IX to vations on the matter. Mr Misset took the the Staff Regulations but also in the context view that the Secretary-General had already of the specific procedure provided for by decided to impose the disciplinary measure the first paragraph of Article 87 of the Staff on him and that there was therefore no Regulations in the case of the issue of a

procedure. According to the Council the Démont judgment requires merely that the 2. In support of his application Mr Misset 'essential prerogatives of the right to a fair puts forward two submissions: (a) that his hearing' are safeguarded. Relying on the right to a fair hearing as guaranteed in Court's judgment of 11 July 1985 in Joined Article 87 of the Staff Regulations and in Cases 255 and 256/83 R. v Commission Annex IX thereto was not respected, and [1985] ECR 2473 paragraphs 17 and 18 of (b) that the statement of reasons was the decision, it claims that there is no inadequate and contradictory. The first provision imposing an obligation to give submission consists of five complaints, written notification of the institution of namely (a) that the applicant did not receive disciplinary proceedings. a written communication of the charges against him or of the proposal to adopt a disciplinary measure against him, (b) that he 3. In my opinion the Council's arguments had not been summoned to the meeting distort the letter and spirit of the provisions held on 8 January 1985 in good time, referred to, as interpreted by the Court in (c) that because of the failure to notify him the Démont judgment.

In paragraph 10 it goes All the applicant's arguments are based on on to state that the opposite interpretation the proposition — for which he cites as would 'result in an unacceptable position', authority the Court's judgment of 17 namely that 'in disciplinary proceedings December 1981 in Case 115/80 Démont v other than those referred to in Annex I X to Commission [1981] ECR 3147 — t h a t the the Staff Regulations, the official could not right to a fair hearing and the principle that avail himself of the essential prerogatives

4. Mr Misset's complaints must be examined in the light of those principles. It In my view it is clear from those words that will be recalled that the applicant maintains the Court considers all the guarantees in the first place that he did not receive forming part of the right to a fair hearing to prior written notice of the charges against be 'essential prerogatives' and that it is him and of the proposal to institute disci- arbitrary to attribute to the principle that a plinary proceedings on the basis of those party must be enabled to present his case charges. fully a narrower scope in the context of the simplified procedure. The sole difference between the two types of proceedings is that in proceedings before the Disciplinary Board, since they are capable of resulting in The complaint must be upheld. I have just the imposition of a more severe penalty, said that in the simplified procedure an respect for the rights of the defence official benefits from the guarantees laid 's'impose de manière d'autant plus down in Annex IX; that being the case, not rigoureuse' (I use the French expression only must he 'be heard before . . . action is contained in paragraph 11 of the judgment, taken', as is provided in the second sentence which is more to the point than the Italian of the first paragraph of Article 87 but he is expression; the emphasis is my own). also entitled under Article 1 of Annex IX However, in the end the essential point is to a written communication from the that respect for such rights is of even greater appointing authority 'stating clearly the importance; it cannot be otherwise, given facts complained of and, where appropriate, that, as is affirmed in paragraph 12 of the the circumstances in which they arose' judgment, the right to a fair hearing (analogous rules are, moreover, in force in constitutes a 'fundamental legal principle' numerous national legal systems: in the case and, as such, calls for comprehensive of Italy, see Virga, Diritto amministrativo, protection. Volume I, Principles, Milan, 1983, pp.148-150; in the case of France, see Salon and Savignac, La fonction publique, Paris, 1985, pp. 273-275).