JUDGMENT OF 11. 7. 1968 — CASE 35/67 VAN EICK v COMMISSION

In Case 35/67

THE COURT (First Chamber) composed of: A. M. Dormer, President of Chamber, R. Monaco (Rapporteur) and J. Mertens de Wilmars, 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

III — Submissions and arguments of the parties

Admissibility

Substance

A — The application for annulment

1. Infringement of the second paragraph of Article 4 of Annex IX to the Staff Regulations of Officials

2. Infringement of Article 6 of Annex IX to the Staff Regulations

3. Infringement of the rights of the defence

4. Infringement of the third paragraph of Article 7 of Annex IX to the Staff Regulations

5. The allegation that the statement of reasons for the contested decision was incomplete or based on erroneous considerations

(a) The failure to return the periodic report

(b) The failure to consider extenuating circumstances

6. Erroneous nature of certain factual considerations referred to in the statement of reasons for the contested decision

7. Erroneous or incomplete nature of the opinion of the Disciplinary Board and of the contested decision

B — As regards the claims for damages

Grounds of judgment

Admissibility

Substance of the Case

A — Annulment of the opinion of the Disciplinary Board

B — Annulment of the decision to remove the applicant from his post

C — Payment of damages

Costs

I —. Facts

(a). As regards the performance of his duties in the library:

(b). Unjustified absences and lack of punctuality:

(c). Failure to return the periodic reports:

(d). As regards the facts complained of, taken as a whole:

II —. Conclusions of the parties

1. Declare void and of no effect:

2. Declare and adjudge that, following the annulment of the decision of the Commission, the applicant has the right to receive his salary and all the benefits attaching to his position as an official, as from 1 August 1967;

3. To the extent necessary, order the defendant to pay the sums owing under this head, that is, BF 100000, subject to the applicant's right to vary the said amount in the course of the proceedings;

4. Order the defendant to pay the sum of BF 25000 to the applicant by way of damages in respect of the material damage suffered, subject to the applicant's right to vary this sum in the course of the proceedings;

5. Order the defendant to pay the sum of BF 100000 to the applicant by way of damages in respect of non-material damage suffered, subject to the applicant's right to vary this sum in the course of the proceedings.

—. declare that the application is admissible but unfounded:

—. dismiss the requests made by Mr Van Eick;

—. order him to pay the costs to the extent provided for in Article 70 of the Rules of Procedure of the Court.

III —. Submissions and arguments of the parties

A —. The application for annulment

1. Infringement of the second paragraph of Article 4 of Annex IX to the Staff Regulations of Officials

(a). the disciplinary proceedings provided for in the provisions of the Staff Regulations are of an administrative or even investigatory nature, as the Disciplinary Board is its elf merely an advisory body of the appointing authority;

(b). in any case, a witness cannot be called before the Board if the facts on which the evidence of each witness is sought are not set out in such a way as to enable the Board to assess whether it would serve any useful purpose to hear him.

(a). that the second paragraph of Article 4 and Article 5 of Annex IX to the Staff Regulations clearly show the great desire felt by the authors of this text to ensure respect for the applicant's rights to defend himself, the adversary nature of the hearings and the impartiality of the procedure, by reason of the hybrid nature of the Disciplinary Board at once judicial and investigatory. When one reads, in Article 6 of this Annex, that the Board may order an inquiry in which each side may submit its case and reply to the case of the other side and that no other form of inquiry is provided for, it becomes clear that the procedure followed by this body is in no way inquisitorial:

(b). that the letter of 1 June 1967 had set out the facts on which he requested the witnesses to be examined: references to these facts are to be found next to the names of these witnesses. Moreover, it is difficult to see why the Board was anxious to hear three of these witnesses, although they had all been named in the same manner. Finally, even the brevity of the period within which the Board is required to transmit its opinion to the appointing authority could not justify the decision, for which no reasons were given, to hear only three of the eight witnesses called.

2. Infringement of Article 6 of Annex IX to the Staff Regulations

3. Infringement of the rights of the defence

4. Infringement of the third paragraph of Article 7 of Annex IX to the Staff Regulations

5. The allegation that the statement of reasons for the contested decision was incomplete or based on erroneous considerations

(a). The failure to return the periodic report

(b). The failure to consider extenuating circumstances

6. Erroneous nature of certain factual considerations referred to in the statement of reasons for the contested decision

7. Erroneous or incomplete nature of the opinion of the Disciplinary Board and of the contested decision

B —. As regards the claims for damages

A —. Annulment of the opinion of the Disciplinary Board

B —. Annulment of the decision to remove the applicant from his post

C —. Payment of damages

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 Treaty establishing the European Atomic Energy Community, especially Articles 149 and 152; Having regard to the Staff Regulations of Officials of the European Atomic Energy Community, especially Articles 25, 87 and 91 and Annex IX; Having regard to the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69; THE COURT (First Chamber) hereby:

1 Annuls the decision taken by the Commission of the EAEC at its meeting of 4 July 1967 removing Mr August Van Eick from his post;

2 Dismisses the application as unfounded to the extent to which it is directed against the opinion of the Disciplinary Board;

3 Dismisses the claim for damages in respect of the non-material damage which he has suffered;

4 Declares that it is unnecessary to adjudicate on the other claims;

5 Orders the Commission of the European Communities to pay the costs of the proceedings.