T-80/91

CAMPOGRANDE v COMMISSION

J U D G M E N T O F T H E COURT O F FIRST INSTANCE (Third Chamber) 19 November 1992 *

In Case T- 80/91,

Anna Maria Campogrande, an official of the Commission of the European Com- munities, residing in Brussels, represented initially by Philippe Monnoyer de Gal- land and subsequently by Alain H. Pilette, both of the Brussels Bar, and by Hans G. Kemmler, of the Frankfurt-am-Main Bar, with an address for service in Luxem- bourg at the Chambers of Elvinger and Schänk, 31 Rue d'Eich,

applicant,

v

having regard to the written procedure and further to the hearing on 21 October 1992,

* Language of the case: French.

II - 2461

JUDGMENT OF 19. 11. 1992 — CASE T-80/91

gives the following

Judgment

CAMPOGRANDE v COMMISSION

— Article 16, applicable to the applicant by virtue of Regulation (EURATOM, ECSC, EEC) N o 549/69 of the Council of 25 March 1969 (OJ, English Special Edition 1969, p. 119), as last amended by Regulation N o 3520/85 of 12 Decem- ber 1985 (OJ 1985 L 335, p. 60), provides, in the second subparagraph, that the 'names, grades and addresses of officials and other servants ... shall be commu- nicated periodically to the Governments of the Member States';

— Article 18 provides that 'privileges, immunities and facilities shall be accorded to officials and other servants of the Communities solely in the interests of the Communities';

— finally, in the words of Article 19: 'The institutions of the Communities shall, for the purpose of applying this Protocol, cooperate with the responsible authorities of the Member States concerned'.

4 The relevant provisions of the Agreement are the following:

— Article 1 provides that 'the Institutions shall twice a year notify the Ministry of Foreign Affairs, Foreign Trade and Development Cooperation of the infor- mation specified below concerning their officials and other servants:

5. Principal residence (commune, street and number)

6. Civil status

7. Composition of household

8. Date of taking up duties in Belgium';

— Article 2 provides that 'any changes in points 1 to 7 of Article 1 shall be noti- fied monthly';

— Article 4 provides that 'the Ministry of Foreign Affairs, Foreign Trade and Development Cooperation shall inform the communes concerned of the offi- cials and other servants of the institutions established on their territory and also of the notifications referred to in Articles 2 and 3'.

7 On 6 September 1989 the applicant submitted a complaint in which she disputed the Commission's right to communicate that information to the Belgian authorities and asked the Commission to denounce the Agreement. The Commission contends that upon investigating that complaint it found that since 22 January 1979, the date on which she had moved to Ixelles, Mrs Campogrande had never informed the administration that her private address had changed. That assertion is disputed by the applicant. By a decision of 11 April 1990 the Commission expressly rejected the complaint on the ground that the Agreement had its legal basis in the Protocol. In particular, the Commission explained to the complainant that the Agreement simply established a system for the communication to the Belgian authorities of the information provided for in Article 16 of the Protocol and was intended to facili- tate the implementation of the Protocol. Finally, the applicant was reminded of her obligations under Article 55 of the Staff Regulations, in particular that of commu- nicating her private address to her administration. The applicant did not appeal against the express rejection of her complaint.

8 It is common ground that the Director of Personnel then asked the applicant on several occasions to communicate her private address to the administration, on pain of disciplinary proceedings. When she repeatedly refused to provide such infor- mation, disciplinary proceedings were brought against Mrs Campogrande, which ended, on 13 February 1991, in her being given a reprimand as provided for in Article 86(2)(b) of the Staff Regulations.

12 The applicant claims that the Court should:

— declare the application admissible inasmuch as it has been submitted in accord- ance with the Staff Regulations;

— annul the defendant's implied decision rejecting her complaint of 15 April 1991; and

— order the defendant to pay all the costs of the proceedings.

13 The Commission claims that the Court should:

— dismiss the application as unfounded;

The alleged error of fact

The parties' arguments

16 The applicant maintains that the allegation that she failed to inform the Commis- sion of her current private address is unfounded, since she provided that infor- mation on two occasions, in 1982 and in 1984. Quite apart from the fact that nei- ther Article 55 of the Staff Regulations, to which the disciplinary measure refers, nor any other provision in the Staff Regulations imposes a duty on officials to com- municate their private addresses to the institution to which they belong, the appli- cant maintains that in any event she duly communicated her private address to the Commission. The last occasion on which she did so was on 5 June 1984, the date on which she informed the Commission of the address where she has lived ever since. Accordingly, she cannot be accused of any failure to comply with Article 55 of the Staff Regulations. After that date, since her involvement in civil proceedings connected, as she claims, with the transmission of her private address to the Bel- gian authorities, the applicant maintains that she has been prepared to communi- cate her address to the institution on condition that it gives her an assurance that the information will not be passed on to the Belgian authorities.

II - 2467

JUDGMENT OF 19. 11. 1992 — CASE T-80/91

17 The Commission maintains that it never received the alleged letter of 5 June 1984, which appears in a partially deleted form in Annex 9 to the application, whereby the applicant claims to have communicated her current address to the institution. According to the defendant, the applicant's last private address was communicated to it in 1979 and does not correspond to her present address. The Commission fur- ther states that if, as the applicant claims, she had already provided the adminis- tration with her new address, there ought to have been nothing to prevent her doing so again during the disciplinary proceedings, which would not then have been pursued. On the other hand, if, as the Commission believes, that is not the case, that refusal by the applicant must constitute a disciplinary fault on her part.

II - 2468

CAMPOGRANDE v COMMISSION

The alleged absence of a legal basis for the disciplinary measure

The parties' arguments

20 The applicant claims that the sole legal basis that might justify the reprimand she received, namely Article 55 of the Staff Regulations, with the exception of the Pro- tocol and the Agreement, is lacking, since, on the one hand, none of its provisions requires officials to transmit their private addresses to the institutions and, on the other hand, the detailed rules referred to in the third paragraph of Article 55 have never been adopted. Finally, in accordance with the first paragraph of that article, the applicant was at all times at the disposal of the Commission.

21 In the alternative, the applicant maintains that the fact that she declined to com- plete the questionnaire annexed to the communication of 9 December 1987 sent by the Commission to officials, temporary staff and auxiliary staff employed in Bel- gium could not constitute failure to comply with the Staff Regulations either, since that communication did not impose any obligation whatsoever and was neither a provision of nor a measure for giving effect to the Staff Regulations.

25 The Court considers, and the parties accept, that the entry into force of the third paragraph of Article 55 of the Staff Regulations is conditional upon the adoption of the detailed rules it refers to, in so far as it lays down requirements which are not sufficiently clear and unconditional. O n the other hand, the same does not apply to the first paragraph of that article, whose entry into force is not conditional upon the adoption of detailed rules and which may be enforced against staff, vis- à-vis whom it creates a sufficiently precise obligation.

26 Consequently, the Court considers that, contrary to the claims of the applicant, the communication of 9 December 1987, sent by the defendant to the permanent staff, temporary agents and other auxiliary staff employed in Belgium, has adequate legal foundation in the first paragraph of Article 55 of the Regulations, which cannot be effectively implemented unless the administrative authorities have available to them information enabling them at any time to make contact with their employees at their private address. Moreover, the principles governing the relationship between employer and employee, taken as a whole, and plain common sense, require the

II - 2470

CAMPOGRANDE v COMMISSION

employee's address to be known to the employer. Accordingly, the Court consid- ers that by refusing to communicate her personal address, the applicant made it impossible for her to be at all times at the disposal of the institution and that con- duct constitutes a failure on her part to comply with the relevant obligations under the Staff Regulations.

II-2471

JUDGMENT OF 19. 11. 1992 — CASE T-80/91

and other servants of the Community institutions are henceforward to be the sub- ject of a 'note' in the population registers of the commune of their principal resi- dence and that that 'note' will have the same effects as registration and, on the other hand, by a circular of 13 March 1989, according to which officials of the institu- tions of the European Communities are to be the subject of a 'note' in the popu- lation registers of the commune of their principal residence, that 'note' being equiv- alent to entry in the population register. Following that interpretation of the Agreement, it was found that officials of the Communities were registered in the national register of natural persons by virtue of the Belgian legislative provisions relating to that register which provide that 'persons registered in the population register and the register of aliens held in the communes' are to be registered in the national register.

31 The applicant relies on the judgment in Case 85/85 Commission v Belgium [1986] ECR 1149, where the Court of Justice held that any measure having the effect of compelling officials and other servants of the Communities to apply for registra- tion in the population register was contrary to Article 12(b) of the Protocol. It must be even more clearly so where registration is effected automatically. Therefore the interpretation and application of the Agreement both by the Minister for the Inte- rior and the Civil Service and by the communes or the Commission itself is con- trary to Article 12 of the Protocol. Consequently, the applicant was justified, she maintains, in refusing to transmit the information requested to the defendant.

34 The Commission observes that the Agreement provides in Article 1 that certain information relating to staff is to be communicated twice a year to the Minister of Foreign Affairs and Development Cooperation and that Article 4 stipulates that the Minister, once in possession of that information, is to convey it to the communes concerned. Those communes make a 'note' of it in the population registers. From the point of view of its effects, that 'note' is equivalent to registration in the pop- ulation register under a special code entitled 'EEC Protocol'. The Commission infers from the analysis of those requirements that the Agreement, the recitals of which, moreover, expressly refer to Articles 16 and 19 of the Protocol, has simply set up a system for the communication of certain information to the Belgian authorities, as provided for in the second paragraph of Article 16 of the Protocol and in accordance with the case-law of the Court of Justice, which recognises the 'power of Member States to adopt measures enabling the national authorities to have an exact knowledge of population movements affecting their territory' (judg- ment of the Court of Justice in Case 118/75 Watson and Belmann [1976] 1185).

35 Furthermore, the fact that a 'note' in the communal registers produces the same effects as registration is no justification for describing it as a requirement of regis- tration in the population register, from which officials of the Communities are exempt under Article 12(b) of the Protocol. The sole purpose of the Agreement is to dispense Community officials from having to apply for registration in the pop- ulation registers, while making it possible for them to avoid the many inconve- niences of not being registered. The fact that some ministerial circulars specified that a 'note' under the Agreement produces the same effects as registration in the register does not alter the fact that the exemption for officials is genuine. The

37 In any event, even if it appeared that the Agreement was contrary to Article 12(b) of the Protocol — which is not the case — it was not for the applicant to refuse to comply with its terms, according to the Commission, since the privileges and immunities guaranteed by the Protocol are guaranteed purely in the interest of the Communities. In that specific context, officials have no interest of their own to defend and therefore have no interest in bringing proceedings. That is clear from the judgment in Commission v Belgium, cited above, where the Court of Justice held that an official may not waive privileges which he does not have. In that sense, the applicant failed in any event to comply with her obligations under the Staff Regulations. If she considered that the Agreement was contrary to the Protocol, she should have acted in accordance with Articles 21 and 23 of the Staff Regula- tions. By failing to comply with the procedure laid down in those two provisions, the applicant failed in any event to fulfil her obligations under the Staff Regulations. The reprimand was therefore justified.

38 With regard to the decision of the Advisory Committee for the Protection of Pri- vacy on which the applicant relies, the Commission observes that that authority stated in the grounds for its decision that it was not ruling on either 'the question whether the "note" of the complainant and the members of his family in the

II - 2474

CAMPOGRANDE v COMMISSION

population registers is lawful in itself, that is to say despite the consequences aris- ing therefrom with regard to the national register', or 'the question whether the competent authority, namely the legislature, could determine that officials of the European Communities fulfilled the conditions for registration in the population registers or the conditions for a "note" equivalent to registration, without infring- ing the Protocol on the Privileges and Immunities of the European Communities'. That decision therefore has no bearing on the outcome of the present dispute.

II - 2475

JUDGMENT OF 19. 11. 1992 — CASE T-80/91

41 The Court observes, first of all, that both Article 16, second paragraph, of the Pro- tocol and Article 1 of the Agreement provide, as shown in the terms of those pro- visions set out above, that the private addresses of officials and other servants of the European Communities are to be communicated to the Belgian authorities. There is therefore no inconsistency.

42 The Court observes, secondly, that solely in the interests of the Communities the Protocol grants certain privileges to their officials and that the privileges and immu- nities which it grants 'have a purely functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the Communities' (orders of the Court of Justice in Case 1/88 SA Générale de Banque v Commission [1989] ECR 857, paragraph 9, and Zwartveld and Others, cited above, paragraphs 19 and 20). It therefore has neither the purpose nor the effect of depriving the Member States of the opportunity they must have, as was expressly recognized in the Watson and Belmann case, cited above, of being in a position to know at all times the population movements affecting their territory. Consequently, the applicant is not justified in maintaining that the information obtained regarding her private address, the only factor in issue in this case, on the basis of the Proto- col, by the Belgian authorities, in application of the Agreement, could not be trans- mitted to other public authorities, in particular the communes in which officials reside, in the conditions laid down in Article 19 of the Protocol and for the sole purposes of enabling the public authorities of the Kingdom of Belgium to be in a position to know the population movements affecting their territory. It is for the Member States to determine what authorities are to be responsible for such a task in the public service. Therefore, by providing that the minister should transmit employees' addresses to the communes concerned Article 4 of the Agreement does not infringe the combined requirements of Articles 12(b), 16, 18 and 19 of the Pro- tocol.

legal basis in the Staff Regulations, and more particularly, as explained above, in Article 55, and ensure that the Commission, by requiring, for the purposes of both the Protocol and Article 55 of the Staff Regulations, communication of the appli- cant's private address in the conditions provided for in the Agreement, did not infringe either the Protocol or the Staff Regulations. Since it is established that the applicant refused on a number of occasions to communicate her private address unless the Commission undertook not to communicate that information to the Bel- gian authorities, and since the grounds for the disciplinary measure correctly state that the Commission is unable to give the applicant such a guarantee, which would be contrary to both Article 16 of the Protocol and Article 1 of the Agreement, the Commission's decision imposing a disciplinary measure on the applicant is not viti- ated by any error of law. As the Commission correctly maintains, the applicant's sole remedy, if she believed that there were grounds for doing so, was to initiate the procedure laid down in Article 23 of the Staff Regulations.

44 Therefore the third plea, based on the alleged inconsistency between the Protocol and the Agreement, must in any case be dismissed.

45 It follows from all of the foregoing that none of the three pleas put forward by the applicant is well founded and that, accordingly, the application must be dismissed.

Costs

46 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. However, Article 88 provides that in proceedings between the Commu- nities and their servants the institutions are to pay their own costs.

2. Orders the parties to pay their own costs.

Biancarelli Vesterdorf Garcia-Valdecasas

Delivered in open court in Luxembourg on 19 November 1992.

H. Jung J. Biancarelli

Registrar President

II - 2478