OPINION OF MR ROEMER — CASE 13/69 VAN EICK v COMMISSION

Mr President,

Members of the Court,

The case upon which I have to give my opinion today is connected with Case 35/67. In respect of the main points I can therefore refer to the facts of that case and have therefore only to mention briefly the following:

As you know, after conducting formal disciplinary proceedings the Euratom Commission decided on 4 July 1967 to remove the applicant from his post as from 1 August 1967. That decision was annulled by the judgment of the Court of 11 July 1968 on the ground that the Commission could not delegate one of its officials to hold the final hearing of the applicant provided for by the third paragraph of Article 7 of Annex IX to the Staff Regulations. It was consequently clear that the applicant remained in the service of the Communities. By letter of 20 July 1968, the applicant stated that he was available to serve the new single Commission which had been formed in the meanwhile. However the applicant was not actually reinstated. By letter of 1 August 1968 the Commission informed him first of all that the question of his reinstatement was being examined and that he could apply for leave on personal grounds or possibly take the annual leave to which he was entitled. After the applicant had replied by letter of 12 August 1968 in which he stated again that he held himself at the disposal of the Commission with a view to taking up active service again, he was invited by letter from the Directorate General of Personnel and Administration dated 20 September 1968 to a meeting during which the various aspects of his administrative situation were considered. The meeting was held on 3 October 1968. It remained however without result, since according to the undisputed statement of the applicant the only advice given to him, which he did not accept, was to resign voluntarily from the service. Later in accordance with the judgment of the Court of 11 July 1968 the Commission by a decision of 13 November 1968 entrusted three of its members to conduct the hearing required by Article 7 of Annex IX to the Staff Regulations. The hearing should have taken place on 10 December 1968 in Brussels. Although he received in good time the letter of 20 November 1968 calling upon him to attend, the applicant did not comply with the summons. He confined himself instead to stating in a letter of 6 December 1968 that because of circumstances he had nothing to say except to reserve his position. That situation led the Commission on 18 December 1968 to adopt a decision terminating the disciplinary proceedings without having heard the applicant. Taking account of the opinion of the Disciplinary Board of 23 June 1967, it decided again to remove the applicant from his post, that decision to become effective as from 1 January 1969. According to the applicant, the decision was notified to him on 24 December 1968.

He therefore made a new application to the Court on 10 March 1969, and commenced the present proceedings.

In his application the applicant claims that the Court should:

The Commission considers, for its part, that the conclusions of the applicant are unfounded and that they must consequently be dismissed.

When we now consider what conclusions to reach on these submissions it seems appropriate to divide our examination into sections and to consider first the main burden of the applicant's argument, namely whether the decision to remove him from his post is legal.

I — On removal of the applicant from his post

The applicant considers for various reasons that the disciplinary measure which was taken on 18 December 1968 in respect of him is illegal.

II — The applicant's claims for damages

Having considered so far the legality of the decision to remove the applicant from his post, it now remains to say a word on the applicant's claims for the payment of certain sums of money. Here also I can be brief.

III — Summary

My opinion is thus as follows.

The application of the applicant is admissible and well founded to the extent to which it seeks the annulment of the Commission's decision removing him from his post as from 1 January 1969. It is for the Commission to draw the administrative consequences following upon the decision of the Court. The judgment does not require any particular findings on this subject. The Court need not decide upon the application for reimbursement of the costs occasioned by the disciplinary proceedings. The claim for damages must be rejected as unfounded.

As the applicant has succeeded in the essential part of his application, the whole of the costs of the proceedings must be borne by the Commission.

1 Translated from the German.