JUDGMENT OF 14. 12. 1966 — CASE 3/66 ALFIERI v PARLIAMENT

In Case 3/66

THE COURT (Second Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner and W. Strauß (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

A — In general

B — Course of the invalidity procedure commenced by the defendant

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Admissibility

2. The substance of the case

IV — Procedure

Grounds of judgment

I — Admissibility

II — The substance of the case

1. Question to be raised by the Court of its own motion

2. The applicant's first complaint

3. The applicant's second complaint

4. The applicant's third complaint

5. The applicant's fourth complaint

III — Costs

I —. Facts

A —. In general

B —. Course of the invalidity procedure commenced by the defendant

1. By letter of 12 October 1964, the Secretary-General of the European Parliament (hereinafter referred to as the Secretary-General) :

2. On 16 October 1964, the Secretary-General repeated his request, pointing out to the applicant that his refusal inevitably made the formation and functioning of the Invalidity Committee impossible.

3. By letter of 21 January 1965, the Parliament requested the President of the Court of Justice either to appoint, instead and on behalf of the applicant, a doctor to defend the latter's interests, or to state the most appropriate procedure to follow.

4. By letter of 5 February 1965, the Secretary-General wrote to the applicant to this effect, prescribing a period of grace of two weeks.

5. In the meantime, by letter of 9 March 1965, the applicant's lawyer, Mr Elvinger, had in particular:

6. By letter of 19 March 1965, the Parliament

7. By letter of 26 March 1965, the Secretary-General informed the applicant of this composition of the Invalidity Committee, together with the fact that Dr Stein had agreed to sit on it and that the two abovementioned doctors would appoint the third doctor. By letter of 6 April 1965, addressed to the Secretary-General, the applicant's lawyer:

8. By letter of 14 April 1965, addressed to the applicant, the Secretary-General:

9. On 10 June 1965, Dr Stein wrote to the applicant in the following terms: I … can assure you that, in accordance with your wishes, I shall resign from the Committee entrusted with examining on behalf of the administration the state of your health. You need therefore have no worries in this respect …

10. Dr Éloi Welter and Dr Pierre Stein appointed Dr Roger Welter as third doctor, and Dr Éloi Welter by letter of 17 September 1965 in his capacity as Chairman of the said Committee invited the applicant, who was then in the sanitorium in Vianden (Grand Duchy of Luxembourg), to appear before the Committee in Luxembourg on 24 September 1965.

11. By letter of 4 October 1965 addressed to the Secretary-General, the applicant's lawyer referring to the abovementioned letter of 17 September 1965:

12. By letter of 5 November 1965, Dr Éloi Welter wrote to the Secretary-General in the following terms:

13. By decision of the President of the Parliament of 13 November 1965, referring in particular to the letter of 5 November 1965 set out above, the applicant was granted the invalidity pension provided for in Article 78 of the Staff Regulations from 1 December 1965.

14. On 16 February 1966, the applicant commenced the present application.

II —. Conclusions of the parties

—. declare that the present application is admissible with regard to form;

—. rule that it is well founded;

—. declare that the appointments to and the composition of the Invalidity Committee are irregular on the ground of infringement of the second paragraph of Article 7 and the first paragraph of Article 9 of Annex II; rule that the mode of procedure of the Invalidity Committee is irregular, particularly for failure to observe the provisions of the second and third paragraphs of Article 9 of Annex II and Article 13 of Annex VIII;

—. consequently annual the subsequent procedure and in particular the report drawn up by the Invalidity Committee dated 5 November 1965 and the decision of 13 November 1965 to retire the applicant;

—. consequently reinstate the applicant in his duties with all the rights pertaining thereto, and in particular the salary and benefits attaching thereto;

—. order the European Parliament to pay the arrears of salary owed and the incidental benefits pertaining thereto;

—. order the payment to the applicant of damages in compensation for the injury suffered by him, which is estimated at 100000 francs for non-material damage and at 20000 francs, subject to increase, for loss of interest and injury resulting from the temporary unavailability of funds and the delay in payment of salary due;

—. order the defendant institution to bear the costs and expenses of the proceedings.

—. take note that the defendant relies on the wisdom of the Court with regard to the admissibility of the application and declare the application unfounded;

—. dismiss the application;

—. give a ruling on the costs in accordance with the appropriate rules.

III —. Submissions and arguments of the parties

1. Admissibility

(a). With regard to the complaints relating to the steps prior to the decision to retire the applicant, he could have brought the matter before the Court earlier. In fact:

(b). The applicant cannot rely on Article 91 of the Staff Regulations, since the use which he has made of the methods of recourse therein provided is improper.

2. The substance of the case

IV —. Procedure

I —. Admissibility

1. Although the defendant declares that it relies on the wisdom of the Court with regard to the admissibility of the application or of certain of its heads, it considers that it is inadmissible on two grounds.

2. The applicant requests the Court to order the defendant to pay him 100000 francs for non-material damage and 20000 francs, subject to increase, for loss of interest and injury resulting from the temporary unavailability of funds and the delay in payment of salary due.

II —. The substance of the case

1. Question to be raised by the Court of its own motion

2. The applicant's first complaint

3. The applicant's second complaint

4. The applicant's third complaint

(a). The applicant sees another irregularity in the fact that there was no deliberation or decision by the Invalidity Committee, since Dr Pierre Stein and Dr Roger Welter refused from a specific point in time to participate in the proceedings of this Committee and did not sign the final report submitted to the defendant institution.

(b). Under the same complaint, the applicant further claims that the Invalidity Committee failed to examine him.

5. The applicant's fourth complaint

III —. Costs

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the evidence of the witnesses; Upon hearing the opinion of the Advocate-General; Having regard to the respective Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; Having regard to the Staff Regulations of Officials of the ECSC, together with the Staff Regulations of Officials of the EEC and EAEC, especially Articles 53, 78 and 91, Articles 7 to 9 of Annex II and Article 13 of Annex VIII; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 38 (1) (c), 69 and 70; THE COURT (Second Chamber) hereby:

1 Dismisses Application 3/66 as unfounded, with the exception of the conclusions for the award of compensation which are dismissed as inadmissible.

2 The applicant is ordered to pay the costs of the proceedings, with the exception of those incurred by the defendant.