C-403/85

In paragraph 37 of its judgment of 29 January 1985 the Court stated that the first 'As the Court has already held, inter alia in decision to remove the applicant from his its judgment of 30 May 1973 in Case 46/72 post restricted itself to stating 'that the De Greef v Commission [1973] ECR 543, applicant committed "a violent assault" on once the truth of the allegations against the Mr Morel "causing him injuries'". The official has been established, it is for the Court then stated that that brief statement appointing authority to choose the appro­ did not reveal whether the decision was priate penalty. The Court cannot substitute based solely on the explanation given by the its own judgment for that of the appointing applicant or whether, and if so to what authority except in the case of a manifest extent, the appointing authority had relied error or misuse of powers.' also on the depositions of Mr Morel and his assistant, which were to a large extent chal­ * Translated from the French. lenged by the applicant. 1 — [1985] ECR 275.

F. v COMMISSION

The new decision to remove him from his As there is no dispute over that finding, the post, adopted on 6 May 1985, contains six causal link between the applicant's actions recitals (Nos 6 to 11 inclusive) which and the injuries suffered by Mr Morel is describe the incident in detail and the thus established. injuries suffered by Mr Morel as a result.

(ii) grabbed hold of the front of his shirt, causing it to tear; In the second place, the applicant complains that the contested decision does not place the applicant's action in 'the context of the (iii) caused him to fall from the armchair in provocation and humiliation' to which he which he was sitting, resulting in a was subjected at the interview on 6 October superficial injury to his hand. 1982, and which, in his contention, resulted from factors such as the obstinate refusal by Those facts are not disputed. Mr Morel to pay attention to the applicant's repeated arguments, Mr Morel's desire to harm the applicant, his laughter and the Recital No 9 sets out the findings of two question of whether or not Mr Morel stated doctors as regards the grazing and bruising that he had received the agreement of the exhibited by Mr Morel. head of the private office of the French Minister for Cooperation to the termination of the applicant's secondment in Paris. Recital No 10 states that 'such grazing and bruises, the existence of which cannot be denied, are the direct or indirect result of the violence with which (the applicant) It is clear from the file that all those matters attacked Mr Morel'. were strenuously denied by Mr Morel and

OPINION OF MR MISCHO — CASE 403/85

by Mr Petit-Laurent, who was the only of 6 May 1985, after citing paragraph 8 of person present at the interview. the Court's judgment in Case 12/68, 2refers to the medical opinions submitted by Dr De Geyter and Dr Dumont on 27 October 1982 I therefore consider that those matters and concludes that when the applicant should be disregarded, in the same way as committed the acts 'he was fully aware of were the facts contested by the applicant. what he was doing'.

That claim is undoubtedly linked with the It remains to ascertain whether there are passages in the Court's judgment of 29 none the less mitigating circumstances January 1985 in which it stated that it was which should be taken into account in the 'indispensable that the preamble to the applicant's favour. decision should specify ... the consider­ ations which have led the appointing authority to impose the particular penált/ Unlike the decision of 7 April 1983, the (paragraph 35) and stated that the first decision of 6 May 1985 sets out to explain decision removing the applicant from his in detail why the Commission considers that post did not allow the Court 'to assess the the circumstances referred to by the Disci­ reasons for which the appointing authority plinary Board do not have the mitigating chose a penalty which was more severe than character which the Board attributes to that proposed by the Disciplinary Board' them. Nine recitals are devoted to that (paragraph 40). question.

In that regard a distinction must be drawn As regards the applicant's insecurity and between the question of the applicant's anxiety the Commission refers to a number responsibility for his action and the question of factors which do not seem to me to be of mitigating circumstances. open to question.

partly responsible for the applicant's state of vidual and another may explain differences insecurity. It is also undeniable that the in behaviour, they can never justify recourse interests of the service in the Commission to physical violence' and 'by resorting to the might have demanded that the applicant act of aggression in question he exceeded should in any case be recalled, to Brussels the bounds of acceptable conduct on the before the date on which his secondment to part of a responsible official in the Paris was to end, irrespective of his electoral performance of his duties'. mandate. It is agreed between the parties that all officials are deemed to have knowledge of the Staff Regulations and that By that the Commission undoubtedly means it follows from Article 15 of the Staff Regu­ that there is an entire range of possible lations that the appointing authority shall reactions between a polite and measured consider the case of an official elected to expression of disagreement and physical public office and, having regard to the aggression by which persons who are unable importance of the office and the duties it to contain frustration can express their entails for the holder, shall decide whether dissatisfaction, or even their outrage, such the official should continue in active as shouting, banging their fists on the table, employment or should apply for leave on etc. personal grounds for a period equal to the term for which he has been elected. Here again, it seems to me difficult to char­ acterize that reasoning as ; manifestly Lastly it is true that if one of those adminis­ erroneous. For the applicant had either trative measures had been adopted with entirely lost control of his actions, in which regard to the applicant, he would have had case he should not be penalized at all — but ample opportunities for appeal at various the psychiatrists say that that was not the levels. case in this instance — or was still to some extent capable of controlling himself, in which case the Commission is not wrong in Thus the outlook facing the official on 6 stating that he should not have resorted to October 1982 was not unforeseeable or an act of physical aggression against his exorbitant. superior.

It must be stated that under the criminal law assessment of the facts as the Disciplinary of the country in which the incident Board, namely that 'the gravity of such occurred, and whose courts would therefore conduct merits a particularly severe have had to decide the case if Mr Morel judgment, especially as it was the act of an had brought an action, premeditation does official of the rank of principal adminis­ indeed constitute an aggravating circum­ trator*. stance. In particular, Article 398 of the Belgian Criminal Code provides as follows: Having concluded that there are no miti­ 'Any person who intentionally injures or gating circumstances, the Commission strikes another person will be liable to concludes that 'any penalty of downgrading imprisonment for a period between eight would be inappropriate in view of the days and six months and to a fine ... misconduct which has been established, the seriousness of which could not be diminished by the circumstances referred to In the case of a premeditated act, the by the Disciplinary Board'. accused will be liable to imprisonment for a period between one month and one year and to a fine ... '. Consequently, the Commission imposes on the applicant the disciplinary penalty of I have been unable to ascertain the position removal from his post, without any under the criminal law of all the other reduction or withdrawal of entitlement to Member States, but I have established that retirement pension, as provided for in under German, English, French, Italian and Article 86 (2) (f) of the Staff Regulations. Luxembourg law premeditation is also regarded as an aggravating circumstance. Thus the decision sets out precisely the reasons for which the Commission chose a Thus in this connection once again the penalty which was more severe than that statement of reasons in the decision is not recommended by the Disciplinary Board. vitiated by manifest error.

removing the applicant from his post by way decision by which employment was of penalty for the facts set out in the terminated in only one case. That was Case statement of reasons for its decision. 18/63, which concerned the termination of a nurse's contract as a member of the auxiliary staff. A motor accident had The alleged breach of the principle of occurred in the immediate vicinity of the proportionality Commission's offices, and an official had ordered the applicant, who at that time was on duty, to make her way to the scene of the accident with her first-aid kit. He Unlike the Criminal Codes of the Member complained that the nurse had not followed States which set out a list of offences, on his instructions with the necessary diligence the one hand, and corresponding penalties and, in the presence of the crowd (providing for a minimum and a maximum) surrounding the accident, refused to on the other hand, the Staff Regulations of intervene; lasdy, he criticized her for not Officials does not contain any list of that having brought her first-aid kit with her. kind. After examining all the circumstances of the case, the Court arrived at the conclusion that the Commission's reaction had been In order to assess whether the penalty manifestly disproportionate and that the imposed by the Commission in this instance contested decision, being based on a reason is excessive, it is therefore necessary to have which was not valid in law, had to be recourse to other criteria. annulled.

In a series of other judgments the Court has First of all, it will be noted that the penalty rejected applications for the annulment of a imposed is not the most severe penalty decision to remove a person from his post. possible, since the applicant's pension rights are not affected. Those cases are as follows:

Reprehensible activities and participation in I must also point out that in order to the reprehensible activities of another evaluate the choice of penalty imposed by official, which amounted to an abuse of the Commission, it is necessary to refer to official status and a demand for payment the time at which the allegations against the from a person desiring to obtain applicant occurred. Therefore all the employment with the Commission; 6 considerations concerning the consequences suffered by the applicant after those events are extraneous to the assessment of the severity of the penalty in relation to the Refusal by an official to appear at her post, facts established. failure to comply with the duty of obedience (third paragraph of Article 21 of the Staff Regulations) and of the duty to be at all I have therefore reached the same times at the disposal of the institution (third conclusion as that of Mr Advocate General paragraph of Article 55 of the Staff Regu­ Mancini in the first case decided by the 7 9 lations). Court between the same parties.

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appointing authority concludes that "in with the criterion of sound disciplinary those circumstances the penalty recom- administration.' mended by the Disciplinary Board is inap- propriate in relation to the misconduct in Like Mr Mancini, I am therefore bound to question". There is nothing unreasonable or conclude that the complaint based on an arbitrary in that conclusion. On the alleged breach of the principle of propor- contrary, it is logical and in accordance tionality cannot be upheld.

Conclusion

Since I have found that the two submissions put forward by the applicant do not reveal any manifest error on the part of the Commission, I cannot but propose that the Court should dismiss the application. In accordance with Articles 69 (2) and 70 of the Rules of Procedure, the parties should be ordered to bear their own costs.