C-175/86

OPINION OF MR MANCINI—JOINED CASES 175 AND 209/86

O P I N I O N OF M R ADVOCATE GENERAL MANCINI delivered on 19 J a n u a r y 1988 *

Mr President, status of the municipality of Haarlem on 28 Members of the Court, April 1982; (b) a judgment delivered on 8 July 1982 whereby the same court entrusted the children to their mother; (c) the fact 1. This Opinion relates to two actions in that the Raad van Arbeid (Labour Council), which M r M., a former employee of the Haarlem, had paid family allowances to his Council of the European Communities, wife for both the dependent children until 1 contests the measure adopted by the October 1982 and for the younger daughter Secretary-General of that institution from 1 July 1984; and (d) various debts imposing upon him the disciplinary measure which Mr M. had contracted, and not of removal from his post. The applicant discharged, in Belgium and the Netherlands. seeks: (a) primarily, annulment of the Because of the latter fact: measure and discontinuance of the disci- plinary proceedings; (b) in the alternative, suspension of the measure until his defence (1) his immediate superior had sent a submissions have been considered; and written warning to him by memo- (c) in the further alternative, replacement of randum of 27 September 1983; the penalty by that suggested in the opinion of the Disciplinary Board.

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stances. The report was sent to Mr M. three and proposed that he should be demoted t o days later. On the same day — 4 Grade LA 8, Step 2. March — the membership of the Board was decided by the drawing of lots and on 11 After hearing Mr M. once more on 30 May March the procedure was repeated to 1986 and informing the chairman of the replace a member who was unable to act Board on 4 June of the reasons which and another to whom Mr M. objected. prompted him to depart from the opinion, on 13 June 1986 the Secretary-General of the Council issued Decision No 528/86

wished to call him. However, on 4 April Mr him and expressed no view on the Board's M. informed the chairman of the Board that opinion. On the contrary, adopting the on the 11th he would be on holiday on the same approach as at the meeting of 16 Côte d'Azur; nevertheless, he stated that he January, he stated that his right to a fair would return to Brussels if the protest hearing had been prejudiced and that in action taken by the Staff Committee, which addition to that breach of his rights there had decided to suspend the participation of were a number of irregularities, of which he its members on joint committees, were to be did not give specific details, in the conduct

OPINION OF MR MANCINI—JOINED CASES 175 AND 209/86

Moreover, by an application received on 5 August 1986 (Case In particular — the decision continued — the 209/86), the official brought a second repeated false declarations made by the action against the same decision, relating in official as to his civil status on recruitment particular to the memorandum of 4 June showed that he lacked the integrity required 1986 from the Secretary-General. by Article 27 of the Staff Regulations and was accordingly unfit to hold any post in the European Community public service. In By order of 5 September 1986 the President the light of that fact, of the aggravating of the Second Chamber of the Court circumstance that the duties referred to in dismissed the application for suspension of Article 67 (2) and the first paragraph of the operation of the contested measure. Article 23 were of a 'fundamental' nature, Similarly, the appointing authority, by and the fact that at no time during the decision of 8 September 1986, rejected the procedure did the official claim that there complaint of 14 June and a subsequent were mitigating circumstances of any kind, complaint lodged by Mr M. on 29 July. the possibility of his redeeming himself, referred to by the Disciplinary Board, seemed 'purely theoretical'. The appointing 2. In Case 175/86 the Council has raised an authority therefore considered that, having objection of inadmissibility regarding the regard to the importance of the facts, the claim made by Mr M. in the further alter- measure suggested in the opinion was not a native, by which he seeks amendment of the condign penalty and decided to remove Mr decision regarding the nature of the penalty. M. from his post. Referring to the judgment of 30 May 1973 in Case 46/72 De Greef v Commission [1973] ECR 543, and the Order of 5 It should also be pointed out that, in the September 1986, the Council states that in confidential memorandum sent on 4 June disciplinary matters the Court may annul 1986 by the Secretary-General of the the contested measure but it may not Council to the chairman of the Disciplinary substitute its own appraisal of the facts for Board, the reasons for which the appointing that of the appointing authority.

It is true place, to the fact that the Disciplinary Board that, around 25 years ago, the Court

attributed a pecuniary character to a dispute matter thereof, brought about by the regarding dismissal as a disciplinary measure submission of 'reasons' which were not put and accordingly adopted the approach forward initially; and no system of adminis- advocated by Mr M. (judgment of 4 July trative justice exists which does not regard 1963 in Case 32/62 Alvis v Council [1963] this as permissible in certain circumstances. ECR 49, at p. 55).

1985, Case 228/83 F. v Commission [1985] 3. The submissions contained in Mr M.'s ECR 275, paragraph 34). two applications are numerous and varied, but may in essence be reduced to the following: (a) infringement of his right to a In Case 209/86, on the other hand, the fair hearing; (b) inadequate statement of the Council contends that the whole application reasons on which the decision was based; is inadmissible, in so far as its subject-matter (c) manifest errors in the appraisal of the is identical to that of Case 175/86, except as facts. The first submission comprises three regards the request for production of the criticisms: (a) the appointing authority did memorandum of 4 June 1986 mentioned not respect the principle of impartiality; (b)

In the regarded as vexatious by Article 69 (3) of first place, Mr M. complains of those rules and gives rise to additional infringement of Article 6 of the Human expenses which it would be improper to Rights Convention of 4 November 1950 and impose upon the Council. In reply, Mr M. more particularly of paragraph (1) thereof states that an applicant is entitled to which provides that 'in the determination of supplement his application by putting his civil rights and obligations . . . everyone forward new arguments provided that he is entitled to a . . . hearing . . . by an inde- does so within the time-limit for bringing an pendent and impartial tribunal established action. by law'.

OPINION OF MR MANCINI—JOINED CASES 175 AND 209/86

4. In the second place, the applicant graphs 41 and 42). More specifically, complains of infringement of the first protection under that provision does not paragraph of Article 4 of Annex IX to the extend to disputes concerning recruitment Staff Regulations under which 'the official to and removal from posts in national o r charged shall have not less than 15 days international public service (see the from the date of receipt of the report decisions of the Commission of Human initiating disciplinary proceedings to prepare Rights, Strasbourg, N o 7274/76 of 8 March his defence'. Mr M. refers to an oral notifi- 1976, N o 8496/79 of 8 October 1980, and cation made to him on 7 March 1986 by N o 11056/84 of 15 May 1986). the chairman of the Disciplinary Board requesting him to produce written submissions, if he wished to do so, within a Quite apart from that, it is to be noted that,

The safeguards the basis of that right. That right documents before the Court show incon- must then be positively guaranteed during trovertibly that Mr M. was given a much the course of the procedure commenced longer period than that provided for by the subsequently. Staff Regulations in which to submit his observations, namely the two months and more from 7 March 1986 (the day on which That is not all. Let us suppose — without the report was communicated to him) to 16 saying that such was the case — that when May 1986 (the day on which the Disci- the Secretary-General of the Council plinary Board met to consider his case).

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Much light is sitions de l'article 4, deuxième alinéa de thrown on this matter by the judgments to l'annexe IX, qui prévoient que vous pouvez which I have referred several times (of 4 présenter des observations écrites ou February 1970 Van Eick, paragraphs 23-26, verbales'. of 30 May 1973 De Greef, paragraphs 5. In the third place, Mr M. claims that the 45-47, and 29 January 1985 F, paragraph time-limit laid down in Article 7 of Annex 34). Once the facts are established — the IX was not complied with. According to Court held — 'The evaluation of the that provision, 'After consideration of the seriousness of the shortcomings of documents submitted and . . . any statements which . . . the applicant [is found] to be made . . . by the official concerned . . . , the guilty and the choice of thé disciplinary Disciplinary Board s h a l l . . . deliver a measure which appears . . . most appropriate reasoned opinion . . . and transmit the lie within the discretionary power of the opinion to the appointing authority and to appointing authority'; and the Court cannot the official concerned within one month of 'substitute its own assessment for that of the the date on which the matter was referred authority in question, except in a case of a to the Board'. clearly excessive measure or of an abuse of power'.

As we have seen, in the supra, paragraphs 1 to 7; and 29 January first place the appointing authority 1985 P., supra, paragraph 30), may only emphasizes the intrinsic seriousness of the render the institution liable for any damage circumstances. There is no doubt what- which the persons concerned may have soever that the false statements made by M r suffered. And in this case, there is certainly M. regarding his civil status — conduct no damage. which the Disciplinary Board likewise

OPINION OF MR MANCINI—JOINED CASES 175 AND 209/86

He requested to attach part of his salary is had been prompted to think that reconcil- manifestly at variance with the official's iation might be possible by: (a) the obligation to conduct himself, even away application for permission to take special from the workplace, in a manner consonant leave in Belgium submitted by his wife on with the dignity of his office and in any 15 November 1982; (b) the guarantee which event in such a way as not to detract from she had provided on the same date for a the prestige of the administration (for a loan of over BFR 400 000 applied for by similar view, see the judgment of the him; (c) the fact that he and his wife had Administrative Court of the International become closer to each other at the end of Labour Organization of 6 October 1981 in 1982 and the beginning of 1983.

procedure. Those arguments too appear to had no notice of the divorce. From the me to be persuasive and in any event are records on the basis of which the Disci- properly explained; I do not therefore plinary Board and the appointing authority consider that the decision is open to concluded that he was guilty of an offence, criticism regarding the statement of the it is apparent that throughout the reasons on which it is based or could be proceedings he was represented by a lawyer, regarded as being disproportionate in and the latter would certainly not fail to relation to the charges. keep him informed as to the progress and outcome of the proceedings. Moreover, it is established that in those proceedings and in

through. Moreover, in divorce proceedings in the Netherlands the parties are not Mr M. also seeks to rely upon the absence required to be present and the decree does of bad faith with respect to his infringement not have to be served personally upon them of Article 67 (2). The Staff Regulations, he or at their addresses — the proceedings are argues, provide for the same benefits for a concluded merely by entering the decree in married employee as for a divorced the records of civil status. In the same way, employee with a dependent child.

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in Belgium with his younger daughter until asked the Council to pay them to her direct. July 1984 and it was only after that date The Council also has documentary evidence that his wife began to receive family of the fact that Mr M. received sums to allowances in the Netherlands — but, as she which he knew he was not entitled, such as herself acknowledged on 15 November a number of reimbursements for travel 1986, without the applicant's knowledge. It expenses incurred by his ex-wife. follows that, since the institution was obliged in any case to pay the allowances to The leitmotiv of lack of bad faith is again one spouse or the other, the statements invoked with respect to Mr M.'s private made by him were not, as far as he could debts in so far as Mr M. claims that he determine, such as to cause it any loss. waived his right to defend himself in the proceedings in which judgment was given What can be said of that argument? It seems against him. That argument is clearly to me to be weak because it overlooks the absurd: that waiver merely shows that, even fact that Mr M. knew in any case that he in his own eyes, Mr M.'s failure to pay his was making false statements and that the debts was wholly unjustified or, worse still, relationship of trust between him and the that Mr M. attaches no importance to his Council was damaged precisely by his good name. Finally, there is likewise no duplicity and not by the loss — of which he basis for his claim that the appointing may or may not have been aware, but authority, although aware of his debts since which, all in all, was not excessive (around 1983, decided not to take proceedings BFR 200 000) — which he caused the against him. The fact is that, by a memo- institution to suffer. It should be added that randum dated 17 September 1983, Mr M.'s to have acted in good faith, if he was really immediate superior proposed to apply to unaware of the Netherlands allowances him a minor disciplinary measure — but the received by his wife, Mr M. should have document was not forwarded to the sent her the allowances of the same kind appointing authority and for that reason the received from the Council or should have matter went no further.