JUDGMENT OF 17. 5. 1973 — JOINED CASES 58 AND 75/72 PERINCIOLO v COUNCIL

In Joined Cases 58 and 75/72,

THE COURT (First Chamber), composed of: R. Monaco (President of Chamber), A. M. Donner (Rapporteur) and C. Ó Dálaigh, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

II — Submissions of the parties

III — Pleas and arguments of the parties

Grounds of judgment

As to the admissibility of the actions

As to the merits of the action in Case 58/72

Costs

I —. Summary of facts and procedure

II —. Submissions of the parties

1. Declare null and void the decision contained in the note from the Director of Administration of the Secretariat General of the Council dated 24 May 1972 placing the applicant at the disposal of the Italian section of the typing pool, Directorate General A, as a secretary/shorthand typist.

2. Declare null and void the decision contained in the note from the Director of Administration dated 20 June 1972 whereby Article 60 of the Staff Regulations was applied to the applicant.

3. Declare null and void the decision contained in the letter from the Secretary-General of the Council dated 20 July 1972 confirming the application of Article 60 of the Staff Regulations to the applicant.

4. Order the opposing party to pay the costs of the action.

III —. Pleas and arguments of the parties

1. By application of 10 August 1972 the applicant brought before the Court an action for annulment firstly of the decision of the Administration of the Secretariat General of the Council dated 24 May 1972, placing the applicant at the disposal of the Italian section of the typing pool, Directorate General A, as a secretary/shorthand typist, secondly of the decision of the said Administration dated 20 June 1972, applying Article 60 of the Staff Regulations to her and thirdly of the letter of 20 July 1972 from the Secretary General confirming that latter decision.

2. By an application to the Court dated 17 October 1972 the applicant brought a second action for the annulment not only of the decision of 20 June 1972 and the letter of 20 July abovementioned but also of the notification of 28 August 1972 from the said Administration confirming that the suspension of the payment of the applicant's remuneration would continue to take effect in accordance with the letter of 20 July 1972.

3. The defendant admits that the action in Case 58/72 is admissible but contests the admissibility of the action in Case 75/72 on several grounds.

4. In regard to the application for annulment of the notification of 28 August 1972, that act is merely a consequence and a confirmation of the decision of 20 June 1972 and the letter of 20 July 1972 from the Secretary General, which acts are already the subject of the action in Case 58/72.

5. Moreover, insofar as the action in Case 75/72 is directed against those latter acts by reiterating the submissions in the action in Case 58/72, its admissibility runs counter to the objection of lis pendens which the Court must raise of its own motion.

6. It follows therefore that the action in Case 75/72 is inadmissible.

7. The applicant claims that, having regard to the medical certificates produced by her, the Administration was not within its rights in requiring her to comply with her assignment to the typing pool.

8. On the other hand, the difference between the opinions of the Administration's medical adviser and of the specialist which it consulted and those delivered in the certificates produced by the applicant should have caused the Administration to refer to the Invalidity Committee under Article 59 (3) of the Staff Regulations.

9. Having failed to do so, the Administration could not persist in implementing its decision of 24 May 1972 and, therefore, was not within its rights in regarding the refusal of the applicant to conform with that decision as unauthorized absence within the meaning of Article 60 of the Staff Regulations.

10. Article 59 of the Staff Regulations deals, on the one hand, with sick leave for an official prevented from performing his duties because of sickness or accident and, on the other hand, with automatic leave on the decision of the institution.

11. Therefore, as the third paragraph of that Article provides that cases of dispute shall be referred to the Invalidity Committee, it can only refer to cases of sick leave, without prejudice to the question of whether it refers only to the case laid down in paragraph 2 of the Article or also to that referred to in paragraph 1.

12. It is sufficient for the purposes of the present case to state that it does not concern sick leave of the applicant but the situation created by the objections she raised, because of her state of health, to her assignment to the typing pool.

13. In any case Article 59, and especially paragraph 3 thereof, does not refer to such a situation and cannot therefore be invoked in the present case.

14. Subject to the application of Sections 2 to 5 of Chapter 2 of Title III of the Staff Regulations, the normal status of an official is active status, defined in Article 36 as the status of an official who is performing the duties pertaining to the post to which he has been appointed as provided in Title IV.

15. When an official considers that the post to which he has been appointed is not suitable for him due to his state of health, he is obviously entitled to request another assignment but while awaiting such a transfer he is still obliged to present himself at his post and perform the duties pertaining thereto.

16. In any event, it cannot be admitted that in such circumstances the official may take the law into his own hands by considering that the submission of medical certificates dispenses him from appearing at his employment and allows him to absent himself while awaiting the offer of a post which he considers suitable.

17. Therefore both the action brought against the assignment of the applicant to the typing pool and the action brought against the application of Article 60 of the Staff Regulations must be dismissed as being unfounded.

18. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

19. The applicant has failed in her pleas.

20. But under the terms of Article 70 of the Rules of Procedure, the costs incurred by institutions in actions brought by employees of the Communities shall be borne by such institutions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 36, 59, 60, 90 and 91; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses the action in Case 75/72 as inadmissible;

2 Dismisses the action in Case 58/72 as unfounded;

3 Orders each party to bear its own costs.