61985J0319

++++

OFFICIALS - DISCIPLINARY MEASURES - PROCEDURE BEFORE THE DISCIPLINARY BOARD AND BEFORE THE APPOINTING AUTHORITY - OBSERVANCE OF THE RIGHT TO A FAIR HEARING AND THE RIGHT OF EACH SIDE TO SUBMIT ITS CASE AND TO REPLY TO THE CASE OF THE OTHER SIDE

( STAFF REGULATIONS OF OFFICIALS, ART . 87 AND ANNEX IX )

THE RIGHT TO A FAIR HEARING MUST BE OBSERVED NOT ONLY IN THE COURSE OF PROCEEDINGS BEFORE THE DISCIPLINARY BOARD PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 87 OF AND ANNEX IX TO THE STAFF REGULATIONS BUT ALSO IN THE COURSE OF PROCEEDINGS BEFORE THE APPOINTING AUTHORITY PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 87 . THE RIGHT TO BE HEARD REFERRED TO IN THAT PARAGRAPH PRESUPPOSES THAT THE APPOINTING AUTHORITY HAS PREVIOUSLY INFORMED THE OFFICIAL CONCERNED OF THE COMPLAINTS AGAINST HIM AND THAT HE HAS HAD A REASONABLE TIME TO PREPARE HIS DEFENCE .

IN CASE 319/85

RUDOLF MISSET, AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, REPRESENTED AND ASSISTED BY J . PUTZEYS AND X . LEURQUIN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR NICKTS, HUISSIER EN JUSTICE, 87 AVENUE GUILLAUME,

APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY G . PEETERS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY B . ANCIAUX, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . KAESER, MANAGER OF THE LEGAL DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD ADENAUER,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF 9 JANUARY 1985 WHEREBY THE SECRETARY-GENERAL OF THE COUNCIL IMPOSED ON THE APPLICANT A DISCIPLINARY MEASURE IN THE FORM OF A REPRIMAND AND ALSO THE EXPRESS DECISION REJECTING THE APPLICANT' S COMPLAINT AND CONTAINED IN A LETTER FROM THE DEFENDANT DATED 19 JULY 1985,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T.F . O' HIGGINS, JUDGES,

ADVOCATE GENERAL : G.F . MANCINI

REGISTRAR : H.A . ROEHL, PRINCIPAL ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 24 SEPTEMBER 1987, AT WHICH MR MISSET WAS REPRESENTED BY E . CLAES, OF THE BRUSSELS BAR, AND THE COUNCIL OF THE EUROPEAN COMMUNITIES BY ITS AGENT, G . PEETERS, ASSISTED BY B . ANCIAUX,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 19 JANUARY 1988,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 OCTOBER 1985, MR MISSET ( HEREINAFTER REFERRED TO AS "THE APPLICANT "), AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 9 JANUARY 1985 WHEREBY THE SECRETARY-GENERAL OF THE COUNCIL, IN HIS CAPACITY AS APPOINTING AUTHORITY, REPRIMANDED HIM UNDER ARTICLE 86 ( 2 ) ( B ) AND THE FIRST PARAGRAPH OF ARTICLE 87 OF THE STAFF REGULATIONS OF OFFICIALS .

2 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT THE APPLICANT WAS ABSENT FROM HIS PLACE OF WORK FOR THREE PERIODS DURING 1984, NAMELY FROM 18 JULY TO 3 AUGUST, FROM 12 AUGUST TO 7 SEPTEMBER AND ON 17 SEPTEMBER . AS REGARDS THE FIRST PERIOD, THE APPLICANT WAS NOT PERMITTED TO PRODUCE A MEDICAL CERTIFICATE TO JUSTIFY HIS ABSENCE ON THE GROUND THAT IT WAS PRODUCED OUT OF TIME AND HIS APPEAL AGAINST THAT DECISION WAS DISMISSED BY THE COURT' S JUDGMENT OF 15 JANUARY 1987 IN CASE 152/85 ( MISSET V COUNCIL (( 1985 )) ECR 223 ), AGAIN ON THE GROUND THAT IT WAS LODGED OUT OF TIME . THE SECOND PERIOD CONSISTED OF SPECIAL LEAVE GRANTED TO THE APPLICANT TO ATTEND A LANGUAGE COURSE IN GREECE . HE DID NOT, HOWEVER, ATTEND THE COURSE AND FAILED TO INFORM THE COUNCIL THEREOF . FINALLY, AS REGARDS 17 SEPTEMBER, THE APPLICANT MADE AN ERROR IN THE CALCULATION OF HIS DAYS OF LEAVE .

3 FOLLOWING A MEETING BETWEEN THE APPLICANT AND HIS IMMEDIATE SUPERIORS ON 25 SEPTEMBER 1984, THE LATTER SENT A MEMORANDUM TO THE APPOINTING AUTHORITY IN WHICH THEY PROPOSED TO ADOPT A DISCIPLINARY MEASURE IN RESPECT OF THE APPLICANT . ON 8 JANUARY 1985 THE APPLICANT WAS SUMMONED BY TELEPHONE TO A MEETING THAT SAME DAY WITH THE SECRETARY-GENERAL . AT THAT MEETING THE SECRETARY-GENERAL INFORMED HIM OF HIS INTENTION, IN HIS CAPACITY AS THE APPOINTING AUTHORITY, TO IMPOSE A DISCIPLINARY MEASURE IN THE FORM OF A REPRIMAND . THAT DECISION WAS NOTIFIED IN WRITING TO THE APPLICANT ON 9 JANUARY 1985 .

4 THE APPLICANT RAISES TWO SUBMISSIONS AGAINST THAT DECISION; THE FIRST RELATES TO THE PROCEDURE ADOPTED AND IS THAT HIS RIGHT TO A FAIR HEARING UNDER ARTICLE 87 OF AND ANNEX IX TO THE STAFF REGULATIONS WAS NOT RESPECTED, AND THE SECOND RELATES TO THE STATEMENT OF REASONS ON WHICH THE DECISION WAS BASED AND ALLEGES THAT THE REASONS WERE INSUFFICIENT AND CONTRADICTORY .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 AS REGARDS THE PROCEDURE, THE APPLICANT COMPLAINS, IN PARTICULAR, THAT THE COUNCIL DID NOT INFORM HIM IN WRITING OF THE FACTS COMPLAINED OF AND THAT HE WAS SUMMONED TO THE MEETING WITH THE APPOINTING AUTHORITY ON 8 JANUARY 1985 AT THE LAST MINUTE .

7 THIS COMPLAINT IS JUSTIFIED . AS THE COURT HAS HELD, IN PARTICULAR IN ITS JUDGMENT OF 17 DECEMBER 1981 IN CASE 115/80 ( DEMONT V COMMISSION (( 1981 )) ECR 3147 ), THE RIGHT TO A FAIR HEARING IN DISCIPLINARY PROCEEDINGS MUST BE OBSERVED NOT ONLY IN THE COURSE OF PROCEEDINGS BEFORE THE DISCIPLINARY BOARD PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 87 OF AND ANNEX IX TO THE STAFF REGULATIONS BUT ALSO IN THE COURSE OF DISCIPLINARY PROCEEDINGS BEFORE THE APPOINTING AUTHORITY GOVERNED BY THE FIRST PARAGRAPH OF ARTICLE 87 . THE RIGHT TO BE HEARD REFERRED TO IN THAT PARAGRAPH PRESUPPOSES THAT THE APPOINTING AUTHORITY HAS PREVIOUSLY INFORMED THE OFFICIAL CONCERNED OF THE COMPLAINTS AGAINST HIM AND THAT HE HAS HAD A REASONABLE TIME TO PREPARE HIS DEFENCE .

8 IN THIS CASE THE APPOINTING AUTHORITY HAS NOT SATISFIED THOSE CONDITIONS . THE APPOINTING AUTHORITY DID NOT INFORM THE APPLICANT OF THE COMPLAINTS AGAINST HIM BEFOREHAND, NOT EVEN BY NOTIFYING HIM OF THE MEMORANDUM SENT BY THE APPOINTING AUTHORITY TO HIS IMMEDIATE SUPERIORS AND THE TELEPHONE CALL WHICH SUMMONED THE APPLICANT TO A MEETING WITH THE APPOINTING AUTHORITY THAT SAME DAY DID NOT GIVE HIM A REASONABLE TIME TO PREPARE HIS DEFENCE .

9 IN THOSE CIRCUMSTANCES AND WITHOUT THERE BEING ANY NEED TO EXAMINE THE OTHER OBJECTIONS TO THE DISCIPLINARY PROCEEDINGS OR THE SUBMISSION THAT THE DECISION WAS BASED ON INSUFFICIENT REASONS, THE APPOINTING AUTHORITY' S DECISION OF 9 JANUARY 1985 MUST BE ANNULLED .

COSTS

10 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) ANNULS THE DECISION OF 9 JANUARY 1985 WHEREBY THE SECRETARY-GENERAL OF THE COUNCIL IMPOSED ON THE APPLICANT A DISCIPLINARY MEASURE IN THE FORM OF A REPRIMAND;

( 2 ) ORDERS THE COUNCIL TO PAY THE COSTS .