JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

14 May 1996

Case T-82/95

Carmen Gómez de Enterria y Sanchez

v

European Parliament

‛Officials — Retirement in the interests of the service — Article 50 of the Staff Regulations — Defence of the interests of the official concerned’

Full text in French   II-599

Application for:

annulment of the decision, adopted on the basis of Article 50 of the Staff Regulations of officials of the European Communities, retiring the applicant.

Decision:

Annulment.

Abstract of the Judgment

The applicant is Director General (Grade A 1) of Translation and General Services of the European Parliament.

On 30 November 1994 the Bureau of the Parliament (‘the Bureau’) decided, under Article 50 of the Staff Regulations, to retire four officials (including the applicant) whose names were put forward by the Secretary-General, on a date to be decided by the President of the Parliament on a proposal from the Secretary-General, after hearing the views of the officials concerned. On the same day, the President informed those officials of the decision and invited them to contact the Secretary-General in order to submit their observations. By letter of 1 December 1994, the applicant requested a meeting with the Secretary-General, which duly took place on 7 December 1994. On 12 December 1994 the applicant submitted her written observations on the application of Article 50 in her regard.

By letter of 19 December, the President of the Parliament confirmed the decision retiring the applicant with effect from 31 March 1995.

On 21 February 1995 the applicant submitted a complaint under Article 90(2) of the Staff Regulations against that decision.

On 13 March 1995 the applicant brought the present proceedings and, by separate application, sought suspension of the operation of the decision retiring her. On 11 April 1995 the President of the Court of First Instance made an order dismissing that application (T-82/95 R Gómez de Enterria v Parliament [1995] ECRSC ii-297).

By letter of 13 July 1995 from the President of the Parliament, the applicant's complaint was expressly rejected.

Admissibility

Since the conditions for admissibility are a matter of public policy, it should be pointed out that, according to established case-law, the institutions are required under Article 176 of the EC Treaty to ensure full compliance with a judgment annulling an act, and the Court of First Instance has no jurisdiction to issue directions to the institutions to that effect. In so far as the applicant asks the Court to rule that she must be reinstated in the post from which she has been retired, or in another, similar, post and that she must be paid any arrears of salary due to her, together with rate prescribed in judicial proceedings, her claim must therefore be declared inadmissible (paragraph 16).

See: T-588/93 G v Commission [1994] ECRSC II-875, para. 26

Substance

The first plea in law: infringement of the applicant's right to a fair hearing in that she had no opportunity to defend her interests effectively

The Court notes in limine that, according to the Bureau's decisions, the powers conferred on the appointing authority by the Staff Regulations for the puiposes of applying Article 50 thereof are exercised by the Bureau (paragraph 26).

It is settled case-law that the institutions enjoy wide discretionary powers as regards decisions retiring officials in Grades A 1 or A 2 from their posts. The exercise of discretionary powers which are so widely defined requires that the official concerning whom such a measure is contemplated should first have had an opportunity of effectively defending his interests (paragraph 27).

See: 19/70 Almini v Commission [1971] ECR 623, paras 8 to 11; 34/77 Oslizlok v Commission [1978] ECR 1099, paras 16 and 17

The Court considers it appropriate to determine whether the observations submitted by the applicant were taken into account by the appointing authority before adoption of the contested decision, as is required by the above case-law (paragraph 28).

In the Court's view, the minutes of the Bureau's meeting should be understood as meaning that, at the time of adopting its decision of 30 November 1994, the Bureau considered that the definitive decisions retiring the officials in question could not be taken without giving the persons concerned an opportunity to assert their interests effectively. According to the letter of the President of the Parliament of the same day, the Bureau had decided to retire the applicant. However, the President invited the applicant to contact the Secretary-General of the Parliament in order to explore the possibility of reassignment in accordance with the third paragraph of Article 50 of the Staff Regulations, and told her that she would on that occasion have an opportunity to assert her interests. Lastly, the President asked the applicant to convey to him any observations she wished to make. In accordance with those invitations, the applicant sought a meeting with the Secretary-General of the Parliament, which took place on 7 December 1994. On 12 December 1994 she lodged written observations. The President's letter of 19 December 1994, confirming the Bureau's decision of 30 November 1994 and fixing the date on which it was to take effect, makes it clear that the President had taken cognizance of the applicant's written observations and that he had also been apprised of the discussions at the meeting on 7 December 1994 (paragraphs 29 to 31).

In those circumstances, and having regard to the fact that the appointing authority's responsibilities in connection with decisions under Article 50 of the Staff Regulations are discharged by the Bureau, the Court considers that the applicant may be considered to have had an opportunity to defend her interests effectively only if the appointing authority, namely the Bureau, was apprised of her oral and/or written observations before the decision retiring her became definitive. According to the documents before the Court, the Bureau convened on 12 and 13 December 1994. However, there is nothing in the minutes of that meeting to show, or even to suggest, that the applicant's written and/or oral observations had ever been placed before the Bureau or that the applicant's reactions to the decision taken by the Bureau at its meeting on 30 November 1994 had at least been discussed. At the hearing, the Parliament expressly confirmed that it was unable to indicate evidence showing that the Bureau had been informed before 19 December 1994 of the applicant's observations (paragraph 32).

See: Oslizlok v Commission, cited above, para. 26

It is thus clear that the applicant did not have an opportunity to defend her interests effectively, since that presupposes precisely that the appointing authority was informed of the observations submitted by the official concerned before the adoption of the definitive decision applying Article 50 of the Staff Regulations to that person. That finding is not affected by the fact that, at a meeting on 2 February 1995, the Bureau had been informed — according to the Parliament's statement at the hearing — of the steps taken in the procedure applying Article 50 of the Staff Regulations. Any details given to the Bureau more than a month after the decision retiring the official was confirmed by letter of the President of the Parliament of 19 December 1994 cannot be regarded as having been communicated in good time. Furthermore, there is nothing in the minutes of the Bureau's meeting of 2 February 1995 to support the Parliament's contention that the Bureau was informed at that meeting of the steps taken in the procedure (paragraph 33).

Nor has the Parliament argued that the applicant had an opportunity to defend her interests effectively before the adoption of the Bureau's decision of 30 November 1994. Moreover, even on the assumption that the applicant had an opportunity to make observations at her two meetings with the Secretary-General of the Parliament before 30 November 1994 and that, for an official to assert his interests effectively, it is sufficient that he be given the opportunity to submit his observations orally, the fact remains that the minutes of the Bureau's meeting of 30 November 1994 contain nothing to show that the Bureau had been informed of any observations made by the applicant. Furthermore, both those minutes and the President's letter of 30 November 1994 assume, as noted above, that the applicant was to be given an opportunity to assert her interests, which confirms that she had not previously been given such an opportunity (paragraph 34).

Consequently, the Court can only conclude that the applicant was not given a timely opportunity to assert her interests effectively with regard to the measure retiring her. The decision retiring the applicant must therefore be annulled, without there being any need to take a decision on the other pleas in law (paragraphs 35 and 36).

Operative part:

The action is dismissed as inadmissible in so far as it claims that directions should be issued to the European Parliament.

The decision retiring the applicant, notified to the applicant by letters from the President of the Parliament of 30 November 1994 and 19 December 1994, is annulled.