C-22/93

CAMPOGRANDE v COMMISSION

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 20 January 1994 *

Mr President, the European Communities established in Members of the Court, Belgium and the Belgian Government, on information concerning the employees of the Institutions (hereinafter referred to as 'the Agreement').

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OPINION OF MR TESAURO — CASE C-22/93 P

gration restrictions or to formalities for the second paragraph of Article 16 of the Proto­ registration of aliens. The second paragraph col and Article 1 of the Agreement. The of Article 16 prescribes, however, that 'the appellant refused to fill in the questionnaire. names, grades and addresses of officials and other servants (...) shall be communicated periodically to the Governments of the Member States'. To that may be added that, in accordance with Article 19, 'the institu­ tions of the Community shall, for the pur­ pose of applying this protocol, cooperate 3. Here we come to the facts giving rise to with the responsible authorities of the Mem­ the case. Mrs Campogrande ascertained — as ber States'. the result of a judgment in default given against her in a civil case — that her name and her husband's appeared in a register of the commune of Ixelles at an address which had not been theirs since 1981, this registra­ tion being due to the fact that the Commis­ sion had earlier forwarded her address to the For the purposes of this case, Article 1 of the Belgian authorities which informed the com­ Agreement must be borne in mind, accord­ mune in accordance with Article 4 of the ing to which the institutions are to notify the Agreement, and she submitted a complaint Ministers for Foreign Affairs, Foreign Trade under Article 90 of the Regulations in which and Cooperation in Development twice a she challenged the right of the Commission year of certain information concerning their to forward such information to the Belgian employees, including registration data and authorities and requested the repudiation of their place of residence. Article 4 of that the Agreement. Agreement provides that relevant communes are to be informed about the employees of the institutions established in their territory.

In spite of subsequent repeated requests by In the light of that argument, the Court of the Director of Staff, Mrs Campogrande First Instance began by pointing out that continued to refuse to supply her private Article 55, in requiring employees to be at all address, which gave rise to disciplinary pro­ times at the disposal of their institutions, ceedings being taken against her, which, as imposes on them a precise enough duty stated earlier, ended in the issue of a repri­ which it is not necessary to specify further mand. (paragraph 25); it therefore declared that 'contrary to the claims of the applicant, the communication of 9 December 1987, sent by the defendant to the permanent staff, tempor­ ary agents and other auxiliary staff 4. The disciplinary measure in question employed in Belgium, does find an adequate formed the subject of a complaint under legal foundation in the first paragraph of Article 90 of the Regulations and then of an Article 55 of the Regulations, the effective action. The Court of First Instance, before implementation of which supposes that the which the appellant claimed that the disci­ administrative authorities have available to plinary measure imposed on her was based them information enabling them at any time on a factual error, was without legal founda­ to make contact with their employees at tion and was contrary to the Protocol, dis­ their private address' (paragraph 26). missed the action in its judgment of 19 November 1992; the Court of Justice is requested to rule on the appeal against that judgment.

Such an interpretation is supported by the fact that the Court of First Instance, when ruling that Article 55 constituted a sufficient legal basis for the purposes of imposing a disciplinary measure, considered that With respect to those complaints, the Court 'the principles governing the relationship of First Instance pointed out that: (a) the between employer and employee, taken as a Protocol (second paragraph, Article 16) and whole, and plain common sense, require the the Agreement (Article 1) both envisage the employee's address to be known to the communication of employees' private employer', with the result that, 'by refusing addresses (paragraph 41); (b) it was neither to communicate her personal address, the the purpose nor the effect of the Protocol to applicant made it impossible for her to be at deprive Member States of the chance to be all times at the disposal of the institution and aware, at any time, of population movements that conduct constitutes a failure on her part concerning their territory, with the conse­ to comply with the obligations under the quence that the Agreement could not be Regulations in question' (paragraph 26). regarded as being incompatible with the Pro­ tocol on the ground that it provided for the competent ministers to pass on the informa­ tion in question to the communes concerned (paragraph 42); (c) it was not for the Court In short, it is apparent from the foregoing of First Instance to assess whether the inter­ that the Court of First Instance has clearly pretation of the conditions in the Agreement shown that the refusal to communicate her provided by the Belgian authorities was private address results in a failure to comply valid, but only to ascertain whether there with the obligation contained in Article 55 of was any foundation for the disciplinary mea­ the Regulations and that the said failure con­ sure imposed on the applicant in the Regula­ stitutes sufficient grounds, pursuant to Art­ tions, and more precisely in Article 55, and icle 86 of the Regulations, for the imposition whether, by requiring private addresses to be of a disciplinary measure. The submission in communicated, the defendant institution had question is therefore unfounded, there being breached the Regulations or the Protocol no discernible error of law in the interpreta­ (paragraph 43). tion given by the Court of First Instance.

here to point out that the Court of First 9. Taking account of the foregoing, I have to Instance has shown how, once it is estab­ wonder whether examination of the submis­ lished that 'refusal to communicate an sion based on the alleged incompatibility of address to the institution constitutes a breach the Agreement and the Protocol could be of the obligations under the Regulations laid dispensed with, if only for reasons of proce­ down by Article 55 of the same, which con­ dural economy. cern only the internal working of the Com­ mission and not problems relating to the Commission's communicating its employees' addresses to the national authorities of the Member States concerned (...), this plea in law, even if well founded, would not of itself In that connection, I believe that the ques­ be sufficient to require the annulment of the tion whether that submission has any foun­ disciplinary measure' (paragraph 39). dation cannot be considered to be irrelevant with respect to the annulment of the disci­ plinary measure of a reprimand: I would observe that the established breach of Art­ icle 55 of the Regulations, and therefore the challenged disciplinary measure, cannot be dissociated from the fact that the Commis­ sion maintained that it could not guarantee that the relevant registration details would not be forwarded to the Belgian authorities. The Court of First Instance considered it In other words, since the appellant refused to desirable, however, to examine the argu­ provide her private address on account of the ments advanced in support of that submis­ effects and consequences of doing so, if the sion, since the reasoning in the challenged Agreement were held to be unlawful that decision is based, at least in part, on the would — in my opinion — imply that the application of the Agreement to the appel­ established breach of Article 55 of the Regu­ lant's situation, and also took into account lations could not be regarded as being the fact that she declared herself willing to merely the result of the (unlawful) claim of make her address known to the administrat­ the Commission to have the right to supply ion provided that it was not recorded in the the address to the Belgian authorities. registers kept by the Kingdom of Belgium. In the statement of the reasons on which the decision regarding disciplinary measures was based, the Commission asserted that it could not give such a guarantee, since that would be contrary to both Article 16 of the Proto­ col and Article 1 of the Agreement. It added 10. That being stated, I note that in her that it was still open to the appellant, if she appeal Mrs Campogrande acknowledged that considered herself entitled to, to make use of the Agreement did not, strictly speaking, the procedure provided for by Article 23 of contain any provision contrary to the Proto­ the Regulations. 2 col. Nevertheless, she claims that the way in which the Commission interpreted and applied the Agreement was incompatible with Article 12 of the Protocol, as could be 2 — The regulation in question provides that, when privileges inferred from the fact that the institution and immunities arc in dispute, the official concerned shall immediately inform the appointing authority. stated that according to the Agreement offi-

The appellant thus claims that the Court of First Instance failed to establish whether the contested decision was lawful, inasmuch as it confined itself to a strictly literal interpreta­ Nor do I believe, unlike the appellant, that it tion of the Agreement, despite the interpre­ may be deduced from the statement of the tation of it provided by the Commission. In Court of Justice that the provision in ques­ the appellant's opinion, in short, the Court tion implied that 'servants of the Commu­ of First Instance was bound to assess nity are exempt from any requirement to whether the interpretation of the clauses in register in the population registers in the the Agreement given by the Belgian authori­ Member States in which the places of ties was valid since the issue was, in essence, employment of the Community institutions the interpretation provided or at least are situated' 3that, in addition to exempting endorsed by the Commission. officials from applying to be recorded in the population registers, it also prohibits any note in the said registers. On the other hand, the Court stated in the same judgment that it is because of the duty to communicate employees' personal addresses, as provided for by Article 16 of the Regulations, that 'the 11. The Commission maintained that the authorities of the Member States in which contested interpretation of the Agreement the places of employment of the institutions was in perfect accord with Article 12 of the are situated are informed of the addresses of Protocol, but stated that the provisions officials and other servants of the Communi­ 4 under which the said information would be ties', which would rather give rise to the noted in the population registers and the fact supposition that employees are exempt only that such an entry would amount to registra­ from the requirement to apply for entry in tion were laid down by the Belgian authori­ those registers. ties and not by the defendant (the respon­ dent in the present case), which manifestly had no competence to enact provisions of that sort. It confined itself instead to refer­ 3 — Judgment in Case C-85/85 Commission v Belgium [1986] ECR 1149, paragraph 21. ring to the substance of the Belgian circulars 4 — Ibid.

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