61969J0013

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1 . EAEC OFFICIALS - DISCIPLINARY PROVISIONS - OPINION OF THE DISCIPLINARY BOARD TRANSMITTED TO THE APPOINTING AUTHORITY - TIME-LIMIT FIXED FOR THE DECISION OF THE LATTER - OBJECT OF THE PROVISION RELATING THERETO - DUTIES OF THE ADMINISTRATION - FAILURE TO OBSERVE THE TIME-LIMIT - EFFECTS

( EAEC STAFF REGULATIONS OF OFFICIALS, ANNEX IX, ARTICLE 7 )

2 . EAEC OFFICIALS - DISCIPLINARY PROVISIONS - OPINION OF THE DISCIPLINARY BOARD ON THE SERIOUSNESS OF THE SHORTCOMINGS OF THE PERSON CONCERNED AND THE CHOICE OF DISCIPLINARY MEASURE - POWER OF DISCRETION OF THE APPOINTING AUTHORITY

( EAEC STAFF REGULATIONS OF OFFICIALS, ANNEX IX, ARTICLE 7 )

1 . BY FIXING A TIME-LIMIT FOR THE DECISION OF THE APPOINTING AUTHORITY, THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE EAEC STAFF REGULATIONS OF OFFICIALS LAYS DOWN A RULE OF GOOD ADMINISTRATION THE PURPOSE OF WHICH IS TO AVOID IN THE INTERESTS BOTH OF THE ADMINISTRATION AND OF OFFICIALS UNJUSTIFIED DELAY ON THE PART OF THE APPOINTING AUTHORITY IN ADOPTING THE DECISION TERMINATING THE DISCIPLINARY PROCEEDINGS . THE PROVISION IN QUESTION IMPOSES ON THE INSTITUTION THE OBLIGATION TO USE ITS BEST ENDEAVOURS TO OBSERVE THE TIME-LIMIT FIXED .

THE TIME-LIMIT LAID DOWN BY THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE EAEC STAFF REGULATIONS OF OFFICIALS CANNOT BE REGARDED AS A MANDATORY PERIOD OF LIMITATION THE FAILURE TO OBSERVE WHICH ENTAILS THE NULLITY OF MEASURES ADOPTED AFTER ITS EXPIRY . FAILURE TO OBSERVE THE TIME-LIMIT MAY, HOWEVER, AS REGARDS THE INSTITUTION, AMOUNT TO AN OMISSION CAPABLE OF RENDERING IT LIABLE FOR ANY DAMAGE CAUSED TO THOSE CONCERNED .

2 . THE EVALUATION OF THE SERIOUSNESS OF THE SHORTCOMINGS FOUND BY THE DISCIPLINARY BOARD IN RESPECT OF THE OFFICIAL AND THE CHOICE OF THE DISCIPLINARY MEASURE WHICH APPEARS, IN VIEW OF THOSE SHORTCOMINGS, AS BEING THE MOST APPROPRIATE, LIE WITHIN THE DISCRETIONARY POWER OF THE APPOINTING AUTHORITY . THE COURT CANNOT CRITICIZE THIS CHOICE, UNLESS THE MEASURE IMPOSED IS DISPROPORTIONATE TO THE FACTS FOUND AGAINST THE OFFICIAL .

IN CASE 13/69

AUGUST JOSEPH VAN EICK, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT ISPRA, REPRESENTED BY ERNEST ARENDT, AVOCAT-AVOUE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CENTRE LOUVIGNY, 34B/IV RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JUERGEN UTERMANN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER OF THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR :

- THE ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 18 DECEMBER 1968 REMOVING THE APPLICANT FROM HIS POST;

- THE PAYMENT OF DAMAGES .

A - THE APPLICATION FOR ANNULMENT

( A ) THE SUBMISSION OF INFRINGEMENT OF THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS

1 THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION INFRINGES THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS OF OFFICIALS IN THAT IT WAS ADOPTED AFTER THE EXPIRY OF THE PERIOD LAID DOWN THEREIN WHICH WAS IN THE NATURE OF A PERIOD OF LIMITATION .

2 UNDER THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS THE APPOINTING AUTHORITY IS TO TAKE ITS DECISION WITHIN ONE MONTH .

3 TAKING ACCOUNT OF THE SPECIAL FEATURES INHERENT IN THE SUBJECT-MATTER GOVERNED BY ANNEX IX TO THE STAFF REGULATIONS AND HAVING REGARD TO THE OTHER PROVISIONS OF THAT ANNEX APPLICABLE TO DISCIPLINARY PROCEEDINGS, THE TIME-LIMIT LAID DOWN BY THE ABOVE-MENTIONED ARTICLE CANNOT BE REGARDED AS A MANDATORY PERIOD OF LIMITATION THE FAILURE TO OBSERVE WHICH ENTAILS THE NULLITY OF THE MEASURES ADOPTED AFTER ITS EXPIRY .

4 BY FIXING THIS TIME-LIMIT THAT ARTICLE LAYS DOWN A RULE OF GOOD ADMINISTRATION, THE PURPOSE OF WHICH IS TO AVOID IN THE INTERESTS BOTH OF THE ADMINISTRATION AND OF OFFICIALS UNJUSTIFIED DELAY ON THE PART OF THE APPOINTING AUTHORITY IN ADOPTING THE DECISION TERMINATING THE DISCIPLINARY PROCEEDINGS .

5 HOWEVER, TO ADMIT THAT IT IS OF NO EFFECT WOULD DEVEST THIS PROVISION OF ITS LEGAL CONTENT .

6 PROMPTED BY THE NECESSITY TO ENSURE THE EFFICIENT AND EQUITABLE WORKING OF DISCIPLINARY PROCEEDINGS, THAT PROVISION IMPOSES ON THE INSTITUTION THE OBLIGATION TO USE ITS BEST ENDEAVOURS TO OBSERVE THE TIME-LIMIT FIXED .

7 ALTHOUGH FAILURE TO OBSERVE THE TIME-LIMIT DOES NOT ENTAIL THE NULLITY OF THE MEASURES TAKEN AFTER IT HAS BEEN EXCEEDED, SUCH FAILURE MAY AS REGARDS THE INSTITUTION AMOUNT TO AN OMISSION CAPABLE OF RENDERING IT LIABLE FOR ANY DAMAGE CAUSED TO THOSE CONCERNED .

8 UNDER THE FIRST AND THIRD PARAGRAPHS OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS, THE PERIOD OF ONE MONTH LAID DOWN THEREIN BEGINS TO RUN AS FROM THE DAY ON WHICH THE OPINION OF THE DISCIPLINARY BOARD WAS TRANSMITTED TO THE APPOINTING AUTHORITY .

9 IN THE PRESENT CASE THE JUDGMENT OF THE COURT OF 11 JULY 1968 ANNULLING THE DECISION OF 4 JULY 1967 TO REMOVE THE APPLICANT FROM HIS POST HAD THE EFFECT OF POSTPONING THE COMMENCEMENT OF THE PERIOD TO THE DATE OF ITS NOTIFICATION TO THE PARTIES .

10 IN THE PRESENT CASE IT SHOULD THEREFORE BE CONSIDERED WHETHER THE APPOINTING AUTHORITY HAS JUSTIFIED ITS DELAY IN ADOPTING THE DECISION OF 18 DECEMBER 1968 IMPOSING THE DISCIPLINARY MEASURE OF REMOVAL FROM POST .

11 THE DEFENDANT ALLEGES THAT THIS DELAY WAS DUE, ON THE ONE HAND, TO THE DIFFICULTIES CREATED BY THE RE-STRUCTURING OF THE DEPARTMENTS REQUIRED BY THE MERGER OF THE EXECUTIVES AND, ON THE OTHER HAND, BY ITS OBLIGATION TO CARRY OUT ITS DUTY TO ASSIST THE APPLICANT .

12 IT IS NOT DISPUTED THAT DURING THE MEETING ON 3 OCTOBER 1968 THE APPROPRIATE DEPARTMENTS OF THE COMMISSION CONSIDERED WITH THE APPLICANT ALL THE CONSEQUENCES, INCLUDING THAT OF REMOVAL FROM POST, WHICH THE OPINION OF THE DISCIPLINARY BOARD AS WELL AS THE AFOREMENTIONED JUDGMENT OF THE COURT MIGHT HAVE FOR HIM .

13 IN THE PRESENT CASE THAT EXAMINATION WOULD HAVE BEEN NEITHER POSSIBLE NOR USEFUL IF THE DISCIPLINARY FILE OF THE APPLICANT HAD NOT BEEN AT THAT TIME SUFFICIENTLY COMPLETE TO ENABLE THE APPOINTING AUTHORITY TO TAKE ITS DECISION UNDER THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS .

14 FROM THIS IT MAY BE INFERRED THAT AT THE TIME OF THAT MEETING THE DIFFICULTIES RELATING TO THE RE-STRUCTURING OF THE DEPARTMENTS ON WHICH THE DEFENDANT RELIED HAD DISAPPEARED .

15 ON THE OTHER HAND, ON THE SAME OCCASION THE COMMISSION DISCHARGED ITS DUTY OF HELP TOWARDS THE APPLICANT BY INFORMING HIM OF THE CONSEQUENCES OF A POSSIBLE REMOVAL FROM HIS POST AND BY SUGGESTING TO HIM MEASURES WHICH IT CONSIDERED CAPABLE OF RECONCILING HIS PERSONAL INTERESTS WITH THOSE OF THE INSTITUTION .

16 IT THUS FOLLOWS THAT THE DIFFICULTIES RELIED UPON BY THE DEFENDANT, EVEN IF THEY MIGHT INITIALLY HAVE DELAYED THE APPLICATION OF THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS, ARE NOT OF SUCH A CHARACTER AS TO JUSTIFY THE DELAY WHICH IN FACT OCCURRED IN THE ADOPTION OF THE DISPUTED DECISION .

17 THE LENGTH OF THIS DELAY CANNOT BE EXPLAINED SOLELY BY THE SOMETIMES INEVITABLE SLOWNESS OF THE ADMINISTRATIVE MACHINE .

18 IT HAS THEREFORE TO BE CONCLUDED THAT IN THE PRESENT CASE THE DEFENDANT HAS NOT JUSTIFIED THE DELAY WHICH OCCURRED .

( B ) THE SUBMISSION OF MISUSE OF POWERS

19 THE APPLICANT MAINTAINS THAT, CONTRARY TO THE WISH EXPRESSED BY THE DISCIPLINARY BOARD, THE COMMISSION DELIBERATELY DEPRIVED HIM OF ANY OPPORTUNITY OF MAKING A WORTHWHILE CONTRIBUTION TO ITS WORK .

20 THE REASONS OF " EXPEDIENCY " RELIED UPON IN SUPPORT OF THE DISPUTED DECISION ARE ACCORDING TO THE APPLICANT ONLY A PRETEXT FOR NOT ALLOWING HIM SUCH AN OPPORTUNITY .

21 HE SAYS THAT THE REAL REASONS FOR THE CONTESTED DECISION ARE TO BE FOUND IN THE GENERAL POLICY OF THE COMMISSION WHICH WAS TRYING TO REDUCE CONSIDERABLY THE NUMBER OF SCIENTIFIC OFFICIALS EMPLOYED AT THE NUCLEAR RESEARCH CENTRES .

22 THE APPLICANT DEDUCES FROM THESE CIRCUMSTANCES THAT THE CONTESTED DECISION CONSTITUTES A MISUSE OF POWERS .

23 THE REASONS GIVEN FOR THE DISPUTED REMOVAL FROM POST ARE THE CONCLUSIONS REACHED BY THE DISCIPLINARY BOARD FOLLOWING AN INQUIRY CONCERNING THE CONDUCT OF THE APPLICANT IN THE SERVICE .

24 THE EVALUATION OF THE SERIOUSNESS OF THE SHORTCOMINGS OF WHICH THE DISCIPLINARY BOARD THUS FOUND THE APPLICANT TO BE GUILTY AND THE CHOICE OF THE DISCIPLINARY MEASURE WHICH APPEARS, IN VIEW OF THESE SHORTCOMINGS, AS BEING THE MOST APPROPRIATE LIE WITHIN THE DISCRETIONARY POWER OF THE APPOINTING AUTHORITY .

25 IN THE PRESENT CASE THE APPLICANT HAS SHOWN NOTHING OF A FACTUAL OR LEGAL NATURE CAPABLE OF DEMONSTRATING THAT THIS EVALUATION BORE NO RELATIONSHIP TO THE SHORTCOMINGS ESTABLISHED OR THAT THE DISCIPLINARY MEASURE IMPOSED WAS DISPROPORTIONATE TO THE FACTS FOUND AGAINST HIM .

26 THIS SUBMISSION MUST THEREFORE BE REJECTED AS UNFOUNDED .

( C ) WRONG EVALUATION OF FACTS

27 THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION IS ILLEGAL IN THAT IT WRONGLY EVALUATES HIS CONDUCT .

28 HE POINTS OUT IN THIS RESPECT A SERIES OF FACTORS WHICH THE COMMISSION DID NOT TAKE INTO ACCOUNT FOR THE PURPOSE OF THAT EVALUATION .

29 THE EVALUATION OF THE APPLICANT' S CONDUCT CONTAINED IN THE SECOND AND THIRD RECITALS OF THE CONTESTED DECISION IS BASED ON THE CONCLUSIONS ARRIVED AT BY THE DISCIPLINARY BOARD IN ITS OPINION OF 23 JUNE 1967 .

30 BY MEANS OF THIS SUBMISSION, THE APPLICANT AGAIN CALLS IN ISSUE WHETHER THESE CONCLUSIONS AND, CONSEQUENTLY, THE SAID OPINION WERE WELL FOUNDED .

31 IN ITS JUDGMENT OF 11 JULY 1968 IN CASE 35/67 THE COURT FOUND THAT THE PROCEEDINGS BEFORE THE DISCIPLINARY BOARD AS WELL AS THE OPINION EXPRESSED BY THE LATTER MUST BE REGARDED AS LAWFUL .

32 ACCORDING TO ARTICLE 42 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EAEC, AN APPLICATION FOR REVISION OF A JUDGMENT MAY BE MADE ONLY ON DISCOVERY OF A FACT WHICH IS OF SUCH A NATURE AS TO BE A DECISIVE FACTOR AND WHICH, BEFORE THE JUDGMENT WAS GIVEN, WAS UNKNOWN TO THE COURT AND THE PARTY CLAIMING THE REVISION .

33 THE MATTERS OF FACT ALLEGED IN SUPPORT OF THE PRESENT SUBMISSION WERE NOT UNKNOWN TO THE APPLICANT BEFORE THE JUDGMENT OF 11 JULY 1968 .

34 THEREFORE THIS SUBMISSION, WHICH IS IN CONFLICT WITH THE EFFECTS OF RES JUDICATA, MUST BE REJECTED AS INADMISSIBLE .

B - THE CLAIM FOR REIMBURSEMENT OF COSTS OCCASIONED BY THE DISCIPLINARY PROCEEDINGS

35 THE APPLICANT CLAIMS UNDER ARTICLE 10 OF ANNEX IX TO THE STAFF REGULATIONS OF OFFICIALS REIMBURSEMENT OF THE COSTS WHICH HE INCURRED DURING THE COURSE OF THE DISCIPLINARY PROCEEDINGS .

36 UNDER THAT PROVISION COSTS INCURRED ON THE INITIATIVE OF THE OFFICIAL CONCERNED DURING SUCH PROCEEDINGS, IN PARTICULAR FEES DUE TO A PERSON CHOSEN FOR HIS DEFENCE FROM OUTSIDE THE EUROPEAN COMMUNITIES, SHALL BE BORNE BY THE OFFICIAL WHERE THE DISCIPLINARY PROCEEDINGS RESULT IN ANY OF THE MEASURES PROVIDED FOR UNDER ARTICLE 86 ( 2 ) ( C ) TO ( G ) OF THE STAFF REGULATIONS .

37 IN THE PRESENT CASE THE DISCIPLINARY PROCEEDINGS RESULTED IN ONE OF THE MEASURES MENTIONED ABOVE .

38 THE APPLICANT HAS NOT ALLEGED THAT THE COSTS OF WHICH HE IS CLAIMING REIMBURSEMENT WERE NOT IN WHOLE OR IN PART INCURRED ON HIS INITIATIVE .

39 HIS CLAIM FOR REIMBURSEMENT MUST THEREFORE BE REJECTED AS UNFOUNDED .

C - THE CLAIM FOR DAMAGES

40 THE APPLICANT SUBMITS LASTLY THAT THE COMMISSION SHOULD BE ORDERED TO PAY HIM DAMAGES BECAUSE IT ACTED IMPROPERLY WHEN IT ADOPTED THE CONTESTED DECISION AND BECAUSE OF THIS COMMITTED A WRONGFUL ACT .

41 AN ACTION FOR DAMAGES MUST BE FOUNDED ON THE ONE HAND UPON THE EXISTENCE OF AN UNLAWFUL ACT OR OMISSION ON THE PART OF THE INSTITUTION RESPONSIBLE AND ON THE OTHER ON THE EXISTENCE OF PRESENT DAMAGE RESULTING FROM THAT ACT OR OMISSION .

42 IN THE PRESENT CASE THE APPLICANT HAS INDICATED NOTHING CAPABLE OF ENABLING THE NATURE OR EXISTENCE OF SUCH DAMAGE TO BE ESTABLISHED .

43 IN THESE CIRCUMSTANCES HIS CLAIM MUST BE REJECTED AS UNFOUNDED .

44 THE APPLICANT HAS FAILED IN HIS APPLICATION .

45 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

46 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES, THE COSTS INCURRED BY INSTITUTIONS IN PROCEEDINGS COMMENCED BY OFFICIALS OF THE COMMUNITIES SHALL BE BORNE BY THE FORMER .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .