C-150/98

ESC V E

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 10 June 1999 *

1. The appeal before us has been brought tion" Directorate sent her a "draft staff by the Economic and Social Committee report". against the judgment of 17 February 1998 of the Court of First Instance in Case Ε ν Economic and Social Committee of the European Communities, 1 annulling a dis­ ciplinary measure of 18 January 1996 con­ sisting of a relegation by three steps, imposed on E, at that time an official in 5 By letter of 7 December 1994, the Grade C 3, Step 5, by a decision of the applicant raised objections to the draft Economic and Social Committee appoint­ staff report. By letter of 16 December ing authority ('the appointing authority'). 1994, she returned the staff report to the reporting officer with the following comments:

2. The contested judgment sets out as "I would like to do proper secretary's follows the facts which that decision sought work, which I have never been able to to penalise: do at the ESC, since I started work in 1986.

I believe that I am equipped to do that '4 On 30 November 1994, in the context job, since, in addition to my qualifica­ of the procedure for preparing her staff tions as a short-hand typist, I have two report for the period 1 September 1992 university qualifications as a primary to 31 August 1994, the applicant's Spanish teacher, which I enclose with former director in the "Communica­ this memorandum, which show that I speak that language. I have an excellent knowledge of French, which [the * Original language: French. reporting officer] is not in a position 1 — Case T-183/96 Ε ν ESC [1998] ECR I-A-67 and II-159. to judge, since his own knowledge of

On the rare occasions when he assigned me a task to perform, it was to make 6 On 9 January 1995, the applicant photocopies, send a fax or go to the acknowledged receipt of the definitive documentation section to ask for a staff report, adopted by the reporting document. Only very sporadically officer on 20 December 1994. A mem­ would he dictate to me a text to type orandum accompanied the report, in in French or Spanish. ... which the reporting officer deplored the views which the applicant expressed in her letter of 16 December 1994. The following notes appeared at the foot of that memorandum: "sent 21. 12. 1994: on leave; sent 4. 1. 1995: Given the above considerations, [the on leave; sent 5. 1. 1995: on leave; sent reporting officer] has no grounds to 6. 1. 1995: on leave". The applicant substantiate his assessment. How and replied to this memorandum by a according to what criteria can he judge memorandum of 10 January 1995 to work which he never gave me, which the reporting officer, with a copy for he himself is not familiar with and which does not exist at the Commu­ the appellate reporting officer, in which nication Directorate, since it is an she set out again her above-cited com­ artificial directorate, devoid of sub­ ments and, for the rest, stated as stance or role ? follows:

During the period when I was assigned to the Directorate I was the victim of "I would be grateful if you would insults on the part of [the reporting refrain from taking note of my leave, officer]; unbeknown to me he sent a since it does not concern you and is not defamatory note to Mr [X] on within your competence.

3. The judgment sets out the course of the 10 On 18 January 1996, the appointing disciplinary proceedings as follows: authority decided to impose on the applicant, for infringement of Arti- cles 12 and 21 of the Staff Regulations, the penalty of relegation in step, redu- cing her grade from Grade C 3, Step 5 '7 By a memorandum of 21 February to Grade C 3, Step 2, and to record this 1995, the applicant was informed that disciplinary measure on the applicant's disciplinary proceedings had been com- personal file. The decision also lists a menced against her, as the result of the series of instances of alleged behaviour contents of her memorandum of by the applicant in the course of 1991, 10 January 1995. The applicant was 1992 and 1994 which it regarded as heard on 6 March 1995. At the hear- lacking in respect, to illustrate the ing, she submitted a document in repeated nature of the conduct com- which she stated in reply that there plained of in the case before it.

I-8881

OPINION OF MR MISCHO — CASE C-150/98 Ρ

I - 8882

ESC V E

serious measure which is rarely Article 21 of the Staff Regulations imposed on officials and which, in applicable to officials and other ser- order to be proportionate, must corre- vants of the European Communities spond to facts much more serious than ('the Staff Regulations'); those of the present case.

— defects of reasoning in the contested 61 It follows from the foregoing that this judgment and misinterpretation of alternative plea is well founded.' Article 86 and Article 87 of the Staff Regulations;

6. The Court of First Instance therefore annulled the decision imposing a penalty — erroneous application of the principle and ordered the Economic and Social of proportionality and misinterpreta- Committee to pay the costs of the proceed- tion of Article 12 and Article 21 of the ings. Staff Regulations.

legal nature of the facts and must be subject ate a particular penalty with any particular to review by the Court of Justice ruling on conduct. What is significant in E's case is appeal. the fact that, in her relations with her immediate superior, she engaged in a cer- tain form of conduct, whose occurrence the Court of First Instance never questioned, whether that conduct is classified as a lack 11. I am able to agree with it on this point, of deference, a lack of courtesy or unseemly but cannot otherwise accept its ground of conduct. challenge since it appears that the Court of First Instance, also in paragraph 59, found that E used 'a tone and expressions which cannot be reconciled with the obligations relating to the dignity of the post and respect for the authorities of the institu­ tion'. 15. Nor can I share the view expressed by the Economic and Social Committee that the tone and expressions which E employed in the memorandum for which she is criticised and the context of the radical 12. Can one, moreover, seriously maintain deterioration in relations between E and that classifying E's conduct as unseemly her superiors are irreconcilable with a rather than lacking in deference was an classification as unseemly conduct. erroneous assessment of the legal nature of the facts, when consultation of the Le Petit Robert dictionary reveals that 'bienséance' ('seemly conduct') and 'respect' ('defer- ence') have a common synonym, 'politesse' ('courtesy')? 16. That context, admittedly, is not a matter of indifference, and must even be taken into account when it comes to choosing the disciplinary measure, but it 13. I could understand the ESC's insistence is not relevant in terms of classifying the on this point if the Staff Regulations infringement. The words and expressions attached a specific penalty to lack of used were unacceptable in themselves, deference or, at least, furnished guidelines regardless of whether E's behaviour in for assessing, and therefore penalising, relation to her superiors was already sus- conduct which indicates a lack of defer- ceptible to criticism before she sent the ence. memorandum in question.

The second and third pleas 20. By way of its third plea, the Economic and Social Committee alleges erroneous application, by the Court of First Instance, of the principle of proportionality, and 18. It seems to me appropriate to address misinterpretation of Article 12 and Arti- the two other pleas in law on which the cle 21 of the Staff Regulations. It argues Economic and Social Committee relies that applying the principle of proportion- together, since they are, in my view, linked ality in the exercise of disciplinary action in all respects. The ESC's second complaint requires the penalty chosen to be strictly alleges that the judgment gives an inade- necessary, in the sense that there must be a quate statement of reasons and misinter- close correlation between the penalty and prets Article 86 and Article 87 of the Staff the gravity of the infringement. The admin- Regulations. The Economic and Social istration responsible for imposing a disci- Committee complains that the Court of plinary measure must, therefore, choose First Instance erred in taking into consid- that measure which is least restrictive and eration only the specific conduct found which corresponds most closely to the against E, without stating its reasons for infringement committed. not taking account of all the circumstances of the case, including the aggravating circumstances set out in the appointing 21. According to the ESC, the Court of authority's decision, thus overlooking the First Instance's finding that the disciplinary fact that Articles 86 to 89 of the Staff measure imposed on E by the Economic Regulations require the disciplinary mea- and Social Committee was disproportion- sure to be determined by a comprehensive ate is erroneous and stems from, on the one appraisal of all the particular facts and hand, the fact that the Court of First circumstances peculiar to the case. Nor, in Instance classified E's conduct as so determining the appropriate penalty, 'unseemly' and, on the other, from the lack was the Court of First Instance entitled, in of reasons given as regards the grounds on the submission of the ESC, to substitute its which it was necessary to take into con- judgment for that of the appointing author- sideration all the circumstances of the case. ity.

'18 In its judgment of 29 January 1985, the 24. It should be noted, first of all, that this Court has already referred to its con­ is not an instance where no reasons at all sistent decisions to the effect that, once were given. Examination of paragraphs 58 the truth of the allegations against the to 61 of the judgment reveals that the official has been established, it is for Court of First Instance, having pointed out the appointing authority to choose the that it must confine its review to analysing appropriate penalty. The Court cannot whether the disciplinary measure was substitute its own judgment for that of manifestly disproportionate to the facts, the appointing authority except in the placed those facts once again in context, case of a manifest error or misuse of that is, the framework of the staff report powers. procedure, and found them on analysis to constitute an infringement of Article 12 and Article 21 of the Staff Regulations but not serious infringement of the obliga­ tions which those provisions impose on officials. It concluded from this that, since those facts were not serious, the Economic and Social Committee appointing authority did not have authority to impose on E the penalty of relegation by several steps, 'a serious measure which is rarely imposed on 26 In that regard, it must be stressed that officials and which, in order to be propor­ the provisions of the Staff Regulations tionate, must correspond to facts much on disciplinary measures (Articles 86 more serious than those of the present to 89) do not specify any fixed relation­ case'. The Court of First Instance therefore ship between the measures provided for founded the annulment of the disciplinary and the various sorts of failure by measure, which it stressed was a serious officials to comply with their obliga­ measure, on the fact that it was highly tions; nor do they state the extent to disproportionate in relation to its finding as which the existence of aggravating or to the severity of the infringement. mitigating circumstances should affect the choice of penalty. The determina­ tion of the penalty to be imposed in each individual case is therefore based on a comprehensive appraisal of all the

30. These detailed explanations are rehearsed in full in the notice of appeal. 27. In order to be able to determine Whether or not they accurately reflect the whether it did indeed do so, the reasoning true situation is one thing, and was a of the judgment must contain the grounds matter for the Court of First Instance to on which the Court of First Instance, which verify; to disregard them is another. That is, could not, without explanation, substitute none the less, what the Court of First its judgment for that of the appointing Instance seems to have done, since it authority, rejected as unfounded the rea- justifies its annulment of the measure solely soning of the contested disciplinary deci- by the finding that a serious measure was sion as regards whether the penalty was imposed in relation to an infringement appropriate to the infringement. The judg- which was, from its point of view at least, ment must also set out in what respect the not in itself serious. inappropriate nature of the penalty to the infringement was so manifest that, despite the discretion allowed to the appointing authority, the Court was bound to set aside the contested decision. 31. The judgment reveals no trace of any examination of the validity of the evalua- tions by the Economic and Social Commit- tee appointing authority as regards the choice of penalty, the Court of First 28. It seems to me, therefore, on these two Instance confining itself to the observation points, that the Court of First Instance's that the infringement was not serious. The reasoning is open to criticism. Court of First Instance may therefore be criticised for adopting a mistaken approach.

36. That judgment does, admittedly, give reasons, yet those reasons cannot but seem inadequate in the light of the principles expounded by the case-law on the exercise 33. It is not my intention here in any way of disciplinary power and its review by the to take a position on the question whether courts. the penalty fitted the infringement in the present case, or to signify my full agree­ ment with the ESC's argument intended to prove to this Court that the measure chosen, that is, relegation by three steps, was precisely the penalty which compliance 37. Given that it thus failed to show with that principle dictated. In order to clearly, through sufficiently argued reason­ adduce that proof, it relies in fact on an ing, in what respect the disciplinary mea­ interpretation of the principle of propor­ sure was, taking into consideration all the factors which may have influenced its tionality which is open to question, being choice, disproportionate to the infringe­ based apparently on a confusion between a ment, the Court of First Instance, evidently, requirement that the penalty be absolutely was equally unable to demonstrate in what fitting, leaving no room whatsoever for any respect this lack of proportionality was discretion, and a requirement merely that it manifest, which is, however, a precondition correspond sufficiently to the infringement. for an order to annul a decision pursuant to review by the courts.

34. All I would observe here is that the Court of First Instance did not, in the 38. I consider that, in those circumstances, present case, set out in what respect the fact the Court of Justice cannot but uphold this that the infringement was not serious, in plea and set aside the judgment of the itself, notwithstanding the case-law refer­ Court of First Instance. red to above and the grounds accompany­ ing the disciplinary decision, necessarily implied that the Economic and Social Committee had breached the principle of proportionality.

45. Re-examination of the case by the 41. The first is that, in order to dismiss E's Court of First Instance observing the audi action, one would have to be certain that alteram partem principle would indeed the disciplinary measure imposed on her shed some light and provide the opportu­ was not manifestly disproportionate. nity, perhaps, for certain rectifications. For example, the disciplinary decision chal­ lenged by E notes, amongst the aggravating circumstances, two previous reprimands. However, one of these was annulled by the judgment of the Court of First Instance in 42. However, one could only achieve this Case T-293/94. 3 certainty, in my view, after a meticulous examination of the context in which the infringement was committed.

43. As, moreover, the Court of First Instance stated, in succinct terms, in para­ graph 2 of its judgment, 'administrative 46. Further, without there being any ques­ and personal relationship problems built up tion here of excusing E's conduct, one can between the applicant and the defendant point out that, besides this case, E and the institution'. Economic and Social Committee have been adversaries in various other proceedings before the Court of First Instance. Although E has not, in general, obtained satisfaction, it should be noted, none the

44. The ESC, both in its decision imposing 3 — Case T-293/94 Vela Palacios ν ESC [1996] ECR I-A-305 the disciplinary measure and in its notice of and II-893.

I - 8889

OPINION OF MR MISCHO — CASE C-150/98 Ρ

less, that in Case T-25/92, costs were Furthermore, before the Court of First awarded in full against the ESC, even Instance, the Economic and Social Com­ though E's action was dismissed, since it mittee may be prompted to clarify its was only in the course of the proceedings position on a number of points where there that E was able to ascertain the full reasons is doubt, which is not possible in these for the decision which she was challenging. proceedings since they are taking place 5 In Case T-150/94, E was awarded without a hearing. damages of BEF 50 000 for late preparation of her staff report.

I - 8890

ESC V E

Conclusion

53. I propose, therefore, in conclusion, that

— the judgment of the Court of First Instance of 17 February 1998 in Case T-l 83/96 £ ν Economic and Social Committee of the European Communities be set aside, in so far as it found the disciplinary measure of relegation by three steps, imposed by the Economic and Social Committee on E, to be manifestly disproportionate;

— the case be referred back to the Court of First Instance for it to rule afresh on the fourth plea raised by E;