JUDGMENT OF 5. 5. 1966 — JOINED CASES 18 AND 35/65 GUTMANN v COMMISSION
In Joined Cases 18 and 35/65
THE COURT (First Chamber) composed of: L. Delvaux, President, A. Trabucchi and R. Lecourt (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Conclusions of the parties
A— In Case 18/65
B — In Case 36/65
III — Summary of the arguments and submissions of the parties
1. The suspension
1. The suspension
(a) Complaint of infringement of Article 25 of the Staff Regulations
(b) Complaint of infringement of Article 88 of the Staff Regulations
(c) Complaint of infringement of Article 86(3) of the Staff Regulations
2. The decision of transfer
B — The prejudicial character of the suspension and transfer decisions
C — The legality of Vacancy Notice V/IS/40/65
D — Legality of the Commission's decision of 20 and 21 January 1965 and 13 May 1965 concerning the disciplinary action with regard to the applicant
(a) Complaint of violation of the rule non bis in idem
(b) Complaint of infringement of the third paragraph of Article 88 of the Staff Regulations
(c) Complaint of infringement of Article 25 of the Staff Regulations
(d) Misuse of powers
E — The prejudicial nature of the decisions of 20 and 21 January 1965 and 13 May 1965
IV — Procedure
Grounds of judgment
The application for annulment of the decision of the Commission of the EAEC of 5 February 1965, notified on 18 February 1965, rejecting the applicant's complaint concerning two previous decisions to suspend and to transfer him
The claim concerning Vacancy Notice No V/IS/40/65
The complaint concerning the decision of the Commission of the EAEC of 20 and 21 January 1965, and the decision of the Commission of the EAEC of 13 May 1965
The request for damages
The subsidiary conclusions
Costs
I —. Facts
(1). Complaints about Mr Gutmann's running of the department and in particular his conduct as Head of Division in relation to his staff;
(2). Allegations that Mr Gutmann was misusing the staff and facilities of Euratom for private purposes, such as the purchase of a camera and films at the institution's expense.
1. Acting on the instructions of the Commission and in accordance with the requirements of Article 87 of the Regulations, I interviewed Mr Gutmann on 22 December 1964 assisted by Mr Prelle of the Legal Department and Mr Bourgeois of the Directorate of Personnel and, at the request of Mr Gutmann, in the presence of Mr Caprioglio. I informed Mr Gutmann of the facts giving rise to the interview.
2. In any event the Commission, acting in the interests of the service, has already settled Mr Gutmann's official position by deciding to transfer him to the Directorate for Information Services in Brussels. This occasioned a complaint to the Commission by Mr Gutmann under Article 90 of the Regulations seeking cancellation of his transfer to Brussels and claiming that the transfer was a punitive measure directly connected with the decision to suspend him. It should be noted that the institution's medical adviser has told me that Mrs Gutmann's doctor has informed him of the possible effects which the date of Mr Gutmann's assumption of duty may have on his wife's health.
II —. Conclusions of the parties
A—. In Case 18/65
I —. Declare the application admissible;
II —. On the substance declare it well-founded ;
III —. Declare that the defendant is bound to make good the non-material and material damage suffered by the applicant owing to the illegality of the contested decision and order the defendant to pay such damages and interest as the Court sees fit;
IV —. Order the defendant to produce:
V —. Place on record the fact that theapplicant reserves the right to offer any appropriate evidence to establish the facts alleged should the defendant contest them;
VI —. Order the defendant to pay the costs of the application.
I —. Order that document No 123 (file VIII) be withdrawn from his personal file on the ground that it lacks the applicant's signature required by Article 26 of the Regulations;
II —. Preliminary requests:
III —. The substance:
IV —. As to costs:
V —. Application for cases to be joined:
B —. In Case 36/65
1. Join this application to that lodged on 30 March 1965 and entered in the Register as Case No 18/65, on the ground of similarity of subject-matter;
2. Declare this application admissible;
3. On the substance, declare it well-founded;
4. Order the defendant to pay all the costs of the application.
III —. Summary of the arguments and submissions of the parties
A —. The legality of the Commission's decision of 5 February 1965, notified on 18 February 1965, rejecting the appeal made by Mr Gutmann on 5 January 1965 against his suspension and transfer
1. The suspension
(a). Complaint of infringement of Article 25 of the Staff Regulations
(b). Complaint of infringement of Article 88 of the Staff Regulations
(c). Complaint of infringement of Article 86(3) of the Staff Regulations
2. The decision of transfer
(a). Complaint of infringement of Article 86(3) of the Staff Regulations
(b). Complaint of infringement of Article 88 of the Staff Regulations
(c). Complaint as to statement of reasons
(d). Complaint of infringement of Articles 4 and 29 of the Staff Regulations
(e). Complaint of infringement of Article 110 of the Staff Regulations and of the provisions concerning vacancy notices
(f). Complaint of infringement of Article 25 of the Staff Regulations
(g). Complaint of misuse of powers
(h). Complaint of infringement of Article 45(2) of the Staff Regulations
B —. The prejudicial character of the suspension and transfer decisions
C —. The legality of Vacancy Notice V/IS/40/65
D —. Legality of the Commission's decision of 20 and 21 January 1965 and 13 May 1965 concerning the disciplinary action with regard to the applicant
(a). Complaint of violation of the rule non bis in idem
(b). Complaint of infringement of the third paragraph of Article 88 of the Staff Regulations
(c). Complaint of infringement of Article 25 of the Staff Regulations
(d). Misuse of powers
E —. The prejudicial nature of the decisions of 20 and 21 January 1965 and 13 May 1965
IV —. Procedure
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 the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the EAEC; Having regard to Articles 4, 24, 25, 29, 45, 86, 87, 88 and 110 of the Staff Regulations of Officials of the EAEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:
1 Annuls the decision of the Commission of the EAEC of 5 February 1965 rejecting Mr Gutmann's complaint against two previous decisions suspending and transferring him;
2 Annuls Vacancy Notice V/IS/40/65;
3 Orders the Commission of the EAEC to withdraw document No 123/8 from the applicant's personal file;
4 Suspends judgment on the application for the annulment of the decisions of 20 and 21 January 1965 and 13 May 1965 by the Commission of the EAEC regarding the continuance and the suspension of fresh disciplinary proceedings; orders the Commission to produce within three months all the items missing from the file, in particular all the documents and minutes referred to in the Ritter memorandum of 17 June 1964 (especially the documents establishing the nature of the inconclusive investigations) and the complaint lodged by a Head of Division referred to by the Commission in its decision of 30 September 1964 ordering an inquiry;
5 Refers the case back to the Commission for execution of this judgment;
6 Rejects the claim for compensation and the remainder of Mr Gutmann's subsidiary pleas;
7 Orders the Commission of the EAEC to pay all the costs so far incurred in the proceedings, including those in the application for the adoption of an interim measure; and reserves judgment on the remaining costs.