61972J0058

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1 . PROCEEDINGS - ADMISSIBILITY - OBJECTION OF " LIS PENDENS " - EXAMINATION BY THE COURT OF ITS OWN MOTION

( RULES OF PROCEDURE, ART . 92 )

2 . OFFICIALS - INCAPACITY FOR WORK - DISPUTE - INVALIDITY COMMITTEE - REFERENCE FOR OPINION - RESTRICTION TO CASES OF SICK LEAVE

( STAFF REGULATIONS, ART . 59 )

3 . OFFICIALS - EMPLOYMENT - STATE OF HEALTH - INCOMPATIBILITY - OBLIGATIONS

( STAFF REGULATIONS, ART . 36 )

1 . THE COURT MUST RAISE THE OBJECTION OF " LIS PENDENS " OF ITS OWN MOTION .

2 . ONLY DISPUTES RELATING TO SICK LEAVE MAY BE REFERRED TO THE INVALIDITY COMMITTEE .

3 . WHEN AN OFFICIAL CONSIDERS THAT THE EMPLOYMENT TO WHICH HE HAS BEEN ASSIGNED IS NOT SUITABLE IN VIEW OF HIS STATE OF HEALTH, HE MAY REQUEST ANOTHER ASSIGNMENT, BUT WHILE AWAITING SUCH A TRANSFER HE IS OBLIGED TO PRESENT HIMSELF AT HIS EMPLOYMENT AND CARRY OUT THE DUTIES PERTAINING THERETO .

IN JOINED CASES 58 AND 75/72,

LETIZIA PERINCIOLO, AN OFFICIAL IN THE SECRETARIAT GENERAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING AT 11, RUE MAJOR PETILLON, BRUSSELS, REPRESENTED BY MAITRE EMILE DRAPPIER, ADVOCATE OF THE BRUSSELS COURT OF APPEAL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE ERNEST ARENDT, 34B IV RUE PHILIPPE-II, APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MAITRE GONZAGUE LESORT, LEGAL ADVISER IN THE SECRETARIAT GENERAL OF THE COUNCIL IN BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE EMILE REUTER, LEGAL ADVISER OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION

- FOR ANNULMENT OF THE DECISION OF ASSIGNMENT OF THE APPLICANT DATED 24 MAY 1972, AND

- FOR ANNULMENT OF THE DECISION OF 20 JUNE 1972 APPLYING ARTICLE 60 OF THE STAFF REGULATIONS TO THE APPLICANT AND OF THE DECISION OF 20 JULY 1972 CONFIRMING THE APPLICATION OF THE SAID ARTICLE, AS WELL AS OF THE LETTER OF 28 AUGUST 1972 CONFIRMING THE APPLICATION OF THE AFOREMENTIONED DECISIONS,

1 BY APPLICATION OF 10 AUGUST 1972 THE APPLICANT BROUGHT BEFORE THE COURT AN ACTION FOR ANNULMENT FIRSTLY OF THE DECISION OF THE ADMINISTRATION OF THE SECRETARIAT GENERAL OF THE COUNCIL DATED 24 MAY 1972, PLACING THE APPLICANT AT THE DISPOSAL OF THE ITALIAN SECTION OF THE TYPING POOL, DIRECTORATE GENERAL A, AS A SECRETARY/SHORTHAND TYPIST, SECONDLY OF THE DECISION OF THE SAID ADMINISTRATION DATED 20 JUNE 1972, APPLYING ARTICLE 60 OF THE STAFF REGULATIONS TO HER AND THIRDLY OF THE LETTER OF 20 JULY 1972 FROM THE SECRETARY GENERAL CONFIRMING THAT LATTER DECISION .

2 BY AN APPLICATION TO THE COURT DATED 17 OCTOBER 1972 THE APPLICANT BROUGHT A SECOND ACTION FOR THE ANNULMENT NOT ONLY OF THE DECISION OF 20 JUNE 1972 AND THE LETTER OF 20 JULY ABOVEMENTIONED BUT ALSO OF THE NOTIFICATION OF 28 AUGUST 1972 FROM THE SAID ADMINISTRATION CONFIRMING THAT THE SUSPENSION OF THE PAYMENT OF THE APPLICANT' S REMUNERATION WOULD CONTINUE TO TAKE EFFECT IN ACCORDANCE WITH THE LETTER OF 20 JULY 1972 .

AS TO THE ADMISSIBILITY OF THE ACTIONS

3 THE DEFENDANT ADMITS THAT THE ACTION IN CASE 58/72 IS ADMISSIBLE BUT CONTESTS THE ADMISSIBILITY OF THE ACTION IN CASE 75/72 ON SEVERAL GROUNDS .

4 IN REGARD TO THE APPLICATION FOR ANNULMENT OF THE NOTIFICATION OF 28 AUGUST 1972, THAT ACT IS MERELY A CONSEQUENCE AND A CONFIRMATION OF THE DECISION OF 20 JUNE 1972 AND THE LETTER OF 20 JULY 1972 FROM THE SECRETARY GENERAL, WHICH ACTS ARE ALREADY THE SUBJECT OF THE ACTION IN CASE 58/72 .

5 MOREOVER, INSOFAR AS THE ACTION IN CASE 75/72 IS DIRECTED AGAINST THOSE LATTER ACTS BY REITERATING THE SUBMISSIONS IN THE ACTION IN CASE 58/72, ITS ADMISSIBILITY RUNS COUNTER TO THE OBJECTION OF " LIS PENDENS " WHICH THE COURT MUST RAISE OF ITS OWN MOTION .

6 IT FOLLOWS THEREFORE THAT THE ACTION IN CASE 75/72 IS INADMISSIBLE .

AS TO THE MERITS OF THE ACTION IN CASE 58/72

7 THE APPLICANT CLAIMS THAT, HAVING REGARD TO THE MEDICAL CERTIFICATES PRODUCED BY HER, THE ADMINISTRATION WAS NOT WITHIN ITS RIGHTS IN REQUIRING HER TO COMPLY WITH HER ASSIGNMENT TO THE TYPING POOL .

8 ON THE OTHER HAND, THE DIFFERENCE BETWEEN THE OPINIONS OF THE ADMINISTRATION' S MEDICAL ADVISER AND OF THE SPECIALIST WHICH IT CONSULTED AND THOSE DELIVERED IN THE CERTIFICATES PRODUCED BY THE APPLICANT SHOULD HAVE CAUSED THE ADMINISTRATION TO REFER TO THE INVALIDITY COMMITTEE UNDER ARTICLE 59 ( 3 ) OF THE STAFF REGULATIONS .

9 HAVING FAILED TO DO SO, THE ADMINISTRATION COULD NOT PERSIST IN IMPLEMENTING ITS DECISION OF 24 MAY 1972 AND, THEREFORE, WAS NOT WITHIN ITS RIGHTS IN REGARDING THE REFUSAL OF THE APPLICANT TO CONFORM WITH THAT DECISION AS UNAUTHORIZED ABSENCE WITHIN THE MEANING OF ARTICLE 60 OF THE STAFF REGULATIONS .

10 ARTICLE 59 OF THE STAFF REGULATIONS DEALS, ON THE ONE HAND, WITH SICK LEAVE FOR AN OFFICIAL PREVENTED FROM PERFORMING HIS DUTIES BECAUSE OF SICKNESS OR ACCIDENT AND, ON THE OTHER HAND, WITH AUTOMATIC LEAVE ON THE DECISION OF THE INSTITUTION .

11 THEREFORE, AS THE THIRD PARAGRAPH OF THAT ARTICLE PROVIDES THAT CASES OF DISPUTE SHALL BE REFERRED TO THE INVALIDITY COMMITTEE, IT CAN ONLY REFER TO CASES OF SICK LEAVE, WITHOUT PREJUDICE TO THE QUESTION OF WHETHER IT REFERS ONLY TO THE CASE LAID DOWN IN PARAGRAPH 2 OF THE ARTICLE OR ALSO TO THAT REFERRED TO IN PARAGRAPH 1 .

12 IT IS SUFFICIENT FOR THE PURPOSES OF THE PRESENT CASE TO STATE THAT IT DOES NOT CONCERN SICK LEAVE OF THE APPLICANT BUT THE SITUATION CREATED BY THE OBJECTIONS SHE RAISED, BECAUSE OF HER STATE OF HEALTH, TO HER ASSIGNMENT TO THE TYPING POOL .

13 IN ANY CASE ARTICLE 59, AND ESPECIALLY PARAGRAPH 3 THEREOF, DOES NOT REFER TO SUCH A SITUATION AND CANNOT THEREFORE BE INVOKED IN THE PRESENT CASE .

14 SUBJECT TO THE APPLICATION OF SECTIONS 2 TO 5 OF CHAPTER 2 OF TITLE III OF THE STAFF REGULATIONS, THE NORMAL STATUS OF AN OFFICIAL IS ACTIVE STATUS, DEFINED IN ARTICLE 36 AS THE STATUS OF AN OFFICIAL WHO IS PERFORMING THE DUTIES PERTAINING TO THE POST TO WHICH HE HAS BEEN APPOINTED AS PROVIDED IN TITLE IV .

15 WHEN AN OFFICIAL CONSIDERS THAT THE POST TO WHICH HE HAS BEEN APPOINTED IS NOT SUITABLE FOR HIM DUE TO HIS STATE OF HEALTH, HE IS OBVIOUSLY ENTITLED TO REQUEST ANOTHER ASSIGNMENT BUT WHILE AWAITING SUCH A TRANSFER HE IS STILL OBLIGED TO PRESENT HIMSELF AT HIS POST AND PERFORM THE DUTIES PERTAINING THERETO .

16 IN ANY EVENT, IT CANNOT BE ADMITTED THAT IN SUCH CIRCUMSTANCES THE OFFICIAL MAY TAKE THE LAW INTO HIS OWN HANDS BY CONSIDERING THAT THE SUBMISSION OF MEDICAL CERTIFICATES DISPENSES HIM FROM APPEARING AT HIS EMPLOYMENT AND ALLOWS HIM TO ABSENT HIMSELF WHILE AWAITING THE OFFER OF A POST WHICH HE CONSIDERS SUITABLE .

17 THEREFORE BOTH THE ACTION BROUGHT AGAINST THE ASSIGNMENT OF THE APPLICANT TO THE TYPING POOL AND THE ACTION BROUGHT AGAINST THE APPLICATION OF ARTICLE 60 OF THE STAFF REGULATIONS MUST BE DISMISSED AS BEING UNFOUNDED .

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

19 THE APPLICANT HAS FAILED IN HER PLEAS .

20 BUT UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITIES SHALL BE BORNE BY SUCH INSTITUTIONS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION IN CASE 75/72 AS INADMISSIBLE;

2 . DISMISSES THE ACTION IN CASE 58/72 AS UNFOUNDED;

3 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .