JUDGMENT OF 8. 7. 1965 — JOINED CASES 27 AND 30/64 FONZI v COMMISSION
In Joined Cases 27 and 30/64
THE COURT (First Chamber) composed of: R. Lecourt, President of Chamber, L. Delvaux (Rapporteur), and A. Trabucchi, Judges, Advocate-General: K. Roemer Registrar: H. J. Eversen (Assistant Registrar)
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Conclusions of the parties
A — The Applicant claims that the Court should:
(1) In Case 27/64:
(2) In Case 30/64:
(3) In his reply :
— In Case 27/64
— In Case 30/64
B — The defendant contends that the Court should:
(1) In its statement of defence concerning the application in Case 27/64:
(2) In its statement of defence in Case 30/64:
(3) In its rejoinder :
III — Summary of the Submissions and Arguments of the Parties
A — Admissibility
B — On the substance of the case
IV — Procedure
Grounds of judgment
I — Admissibility
1. The admissibility of the application in Case 27/64
2. The admissibility of the application in Case 30/64
II — On the substance of the cases
1. The request for annulment of the decision regarding promotion
2. The request for annulment of the decision to issue a reprimand
3. The request for annulment of the decisions to reject the complaint requesting the intervention of the EAEC Commission against conduct regarded as prejudicial by the applicant
4. Concerning the application for damages
5. The conclusions of the applicant seeking an order for measures of inquiry
III — Costs
I —. Facts
A —. Mr Fulvio Fonzi, a scientific official (Grade A5, Step 4) at the Ispra Joint Research Centre, posted to the European Centre for the Processing of Scientific Information (CETIS), on 12 February 1964 lodged with the EAEC Commission a complaint through official channels against the decisions regarding promotion taken in 1963 in favour of a certain number of his colleagues and from which he himself did not benefit.
B —. On 21 February 1964, Mr Fonzi lodged with the Commission of the EAEC a complaint through official channels, asking for its intervention in respect of certain conduct which he described as irregular and detrimental to his professional dignity and bis honour and which had occurred during the preceding months at the Ispra Joint Research Centre (Schedules 3 and 4 to the application in Case 30/64).
C —. On the same day, Mr Fonzi lodged an application for a suspension of the operation of the abovementioned decision of 24 June 1964 requiring him to go to Brussels (Case 30/64 R).
II —. Conclusions of the parties
A —. The Applicant claims that the Court should:
(1). In Case 27/64:
A —. Principally:
B —. Further:
(2). In Case 30/64:
1. Declare the present application admissible and well-founded and in consequence:
2. Annul the implied decision rejecting the complaint through official channels submitted by the applicant to the defendant on 21 February 1964;
3. Annul the defendant's decision to reprimand the applicant taken on 26 March 1964 and notified to him on 24 April following;
4. Annul the defendant's decision to transfer (or second) the applicant, apparently taken on 24 June 1964, and brought to his knowledge by the Director of the Centre at Ispra on 25 June following;
5. Order the defendant, should the Court not grant the suspension of the operation of the decision mentioned under head 4, to redress the damage suffered and which may be suffered by the applicant as a result of the operation of that decision, to the extent which the applicant reserves the right to specify during the course of the proceedings;
6. Order the defendant to bear all the costs of the proceedings;
7. Place it on record that the applicant reserves the right to give details during the course of the proceedings of the reasons and arguments set out above and to introduce new ones, where appropriate, if that is shown to be necessary following the statement of defence and the production of documents by the Commission;
8. Order the defendant to produce the following documents:
9. Order the hearing of the following witnesses:
10. Take notice that the applicant reserves the right to request if necessary and also if the opposite party relies on new reasons or arguments of fact or of law, the hearing of other witnesses and other methods of inquiry directed towards the verification of facts which may be disputed or insufficiently established; he also reserves the right to produce other documents.
(3). In his reply :
—. In Case 27/64
7A. Order the hearing of the following witnesses on the points indicated against the name of each of them, in order to prove the circumstances the importance of which follows from disputes and statements by the opposite party, according to what has already been explained in the reply:
—. In Case 30/64
2. Annul the decision of 24 June 1964 rejecting the complaint lodged by the applicant with the Commission through official channels on 21 February 1964; or, secondarily, annul the implied decision of rejection of the said application;
5. Order the defendant to pay 1 (one) Belgian franc damages, as restitution for the damage suffered by the applicant following the operation of the illegal decision mentioned under head 4;
6. Order the defendant to pay all the costs and expenses of the present proceedings including the expenses and fees of the proceedings in Case 30/64 R.;
(f). Mr Baccarini, in his capacity as Administrative Director of the Luigi Bocconi Commercial University, Milan, on the question whether, if Mr Adriano Gazzano and Miss Giuliana Pozzi had or had not the right to call themselves assistants and lecturers at the operational research centre of the Bocconi University, Milan.
B —. The defendant contends that the Court should:
(1). In its statement of defence concerning the application in Case 27/64:
(2). In its statement of defence in Case 30/64:
1. Declare the application inadmissible as being out of time, in so far as it concerns the rejection of the complaint lodged by the applicant on 21 February 1964;
2. Alternatively declare it unfounded and dismiss it;
3. Declare it unfounded also in so far as it is directed against the decision of 26 March 1964 reprimanding the applicant, and against the decision of 24 June 1964 ordering him to Brussels;
4. Place it on record that the defendant, relying on the abovementioned statements, leaves to the discretion of the Court the question of the expediency of the various measures of inquiry sought by the applicant;
5. Order the applicant to bear the whole of the costs.
(3). In its rejoinder :
1. Accept the conclusions in its statements of defence in Cases 27/64 and 30/64;
2. Hold inadmissible as being out of time, and in any case unfounded, the additional request for annulment of the decision of 24 June 1964 rejecting the unlawful application dated 21 February 1964;
3. Dismiss as unfounded the request for payment of 1 Belgian franc appearing under the amended head 5 of the conclusions of the application;
4. Order the applicant to bear the costs and fees of the present proceedings, including those in Case 30/64 R as provided for in Article 70 of the Rules of Procedure of the Court;
5. Make such ruling as it sees fit upon the additional requests for measures of inquiry submitted by the applicant in his application having had regard to the observations set out above.
III —. Summary of the Submissions and Arguments of the Parties
A —. Admissibility
1. On the first point the defendant alleges that the display of the decision dates from 9 January 1964 and that the time-limit for appeal of three months provided for in Article 91, increased by ten days because of the distance, expired on 20 April 1964. The appeal made on 29 June 1964 is therefore out of time and inadmissible. It is true that a complaint was made through official channels on 12 February 1964, but since Articles 90 and 91 of the Staff Regulations make no provision with regard to such a matter, this complaint cannot stop time from running in respect of the appeal to the Court.
2. In respect of the second objection of inadmissibility, the defendant alleges that the appeal through official channels having been lodged on 21 February 1964, the implied decision of rejection must be dated 22 April 1964 and that the legal time-limit for contesting this implied decision thus expired, taking into account the extension on account of distance of ten days, on 3 July 1964. The appeal lodged on 13 July 1964 is thus inadmissible as out of time in respect of head 2 of the conclusions in Case 30/64.
B —. On the substance of the case
1. On the decision regarding promotion posted at Ispra on 9 January 1964 and on the decision notified on 7 April 1964, rejecting the complaint of the applicant against the above-mentioned decision regarding promotion (application in Case 27/64)
2. Concerning the request to compel the defendant to give further consideration to the comparative merits of the candidates for promotion in 1963 Case 27/64)
3. Concerning the implied decision to reject the appeal through official channels of 21 February 1964, requesting the intervention of the Commission against actions prejudicial to the honour and the professional dignity of the applicant, and on the express decision of rejection taken on 24 June 1964 (Case 30/64)
4. Concerning the decision to administer a reprimand notified on 24 April 1964 (Case 30/64)
5. Concerning the decision to transfer the applicant, notified on 25 June 1964 (Case 30/64)
IV —. Procedure
I —. Admissibility
1. The admissibility of the application in Case 27/64
(a). The defendant alleges that the request for annulment of the decision regarding promotion posted at Ispra on 9 January 1964 is inadmissible as being out of time since in fact the application in Case 27/64 was not lodged until 29 June 1964 whilst the time limit of 3 months provided for in Article 91 of the Staff Regulations, extended by 10 days on account of distance, had expired on 20 April 1964. According to the defendant, the appeal through official channels lodged on 12 February 1964 could not, in the absence of express provisions, suspend the running of the time available for the appeal to the Court.
(b). The applicant claims that the express decision of rejection notified to him on 7 April 1964 should be annulled.
2. The admissibility of the application in Case 30/64
(a). The defendant alleges that the request for annulment of the implied decision of rejection of the appeal made through official channels on 21 February 1964 by the applicant with the object of obtaining the intervention of the defendant against the conduct which he describes as prejudicial to bis honour and his professional dignity is inadmissible as being out of time. In fact, according to the defendant, the application in Case 30/64 was not lodged until 13 July 1964, whereas since the implied decision of rejection of the appeal through official channels was dated 22 April 1964, the time-limit for an appeal to the Court to contest this implied decision, extended by 10 days on account of distance, had expired on 3 July 1964.
(b). The applicant claims in his reply that the express decision of rejection of 24 June 1964 mentioned above should be annulled. This request is admissible for the same reasons as the request for the annulment of the implied decision of rejection of 22 April 1964.
(c). The applicant claims the annulment of a decision to transfer or second him, taken in respect of him by the defendant on 24 June 1964. Under Article 91 of the Staff Regulations, the Court of Justice has jurisdiction to review the legality of measures with regard to officials only if they are adversely affected by such measures. There is reason, consequently, for the Court to consider of its own motion the admissibility of the abovementioned request.
II —. On the substance of the cases
1. The request for annulment of the decision regarding promotion
(a). The applicant alleges that, by its general instruction contained in Circular 11/63 of 23 April 1963, the defendant adopted provisions for giving effect to Article 45 of the Staff Regulations, without conforming to the procedural requirements contained in Article 110.
(b). In addition the applicant raises the illegality of the contested decision on the ground he was not included in the consideration of the comparative merits, although having completed the requisite period in his grade under Article 45.
(c). The applicant alleges that the promotion committee at Ispra did not have his personal file available at the time when the promotion lists were drawn up and that in addition he was not able to make observations on his report for the year 1963.
(d). The applicant alleges that his merits were at least equal to those of certain candidates actually promoted. The Court has no jurisdiction to substitute its own value judgment for the assessments made by the institutions itself. The complaint must therefore be dismissed.
(e). The applicant alleges, lastly, that the promotion committee at Ispra did not give the reasons for his exclusion from the list of those proposed for promotion.
(f). It follows from the foregoing that the request for annulment of the decision regarding promotion posted at Ispra on 9 January 1964 must be dismissed as unfounded. The dismissal of this request necessarily carries with it the dismissal both of the request concerning the decision upon the complaint of the applicant through official channels and of the request that the Court should hold that the defendant must undertake a fresh consideration of the comparative merits of the officials eligible for promotion, including the applicant.
2. The request for annulment of the decision to issue a reprimand
(a). The applicant alleges the infringement of Article 87 of the Regulations, on the ground that his case was not referred by the EAEC Commission to the Disciplinary Board.
(b). In addition the applicant relies on the infringement of Article 87 on the ground that he was not heard by the appointing authority but by an assistant director of the Ispra Joint Research Centre.
(c). The applicant alleges that there is a contradiction in the reasons given for the contested decision since, on the one hand this decision accuses the applicant of a serious infringement of his professional duties and that on the other hand it took only mild disciplinary action.
(d). The applicant disputes the actual basis of the disciplinary decision and the correctness of the facts upon which it is founded.
(e). It follows from the foregoing that the request for annulment of the decision to issue a reprimand, notified to the applicant on 24 April 1964, must be dismissed as unfounded.
3. The request for annulment of the decisions to reject the complaint requesting the intervention of the EAEC Commission against conduct regarded as prejudicial by the applicant
4. Concerning the application for damages
5. The conclusions of the applicant seeking an order for measures of inquiry
III —. Costs
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 152 of the Treaty establishing the European Atomic Energy Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to the Staff Regulations of officials of the European Atomic Energy Community, especially Articles 21, 24, 25, 26, 43, 45, 86, 87, 90, 91 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:
I Dismisses the applications in Cases 27/64 and 30/64;
2 Orders the defendant to bear the costs incurred by it both in respect of the main proceedings and of the application for the adoption of an interim measure and in addition one-quarter of the costs incurred by the applicant;
3 Three-quarters of the costs incurred by the applicant, both in the main proceedings and in the application for the adoption of an interim measure shall be borne by him.