OPINION OF MR REISCHL - CASE 124/75 PERINCIOLO v COUNCIL

Mr President,

Members of the Court,

The case on which I am giving my opinion today is concerned with the dismissal of the applicant from the service of the Council of the European Communities as a result of disciplinary proceedings against her.

The facts are in part known from previous proceedings brought by the applicant against the Council (Cases 58 and 75/72). I need to remind you only of the following:

The applicant entered the service of the Communities in January 1964 and was established as an official with the Council in Grade C 4 on 16 July 1964. At first she was employed as a secretary. In November 1965 she suffered a riding accident. As a result she was for a time completely and then partially incapable of working. In October 1968 the applicant was assessed as 15 % permanently disabled under the insurance system provided by the Staff Regulations for accidents outside work.

She had already previously, namely as from 13 July 1967, been employed in the Registry of the Council as a typist and administrative secretary. From January 1971 to January 1972 she was employed as bookkeeper. Since, as the Council says, for reasons of organization, it was not possible to continue this work, it was suggested that the applicant should be transferred to the typing pool. She objected to this on the ground that for health reasons it was not possible for her to do typing. Thereupon she was examined by the Council's doctor who also brought in a specialist. The conclusion of the doctors was that the applicant was able to undertake typing and this view was maintained even after the applicant produced a medical certificate to the contrary effect. Accordingly, as recorded in a note dated 24 May 1972, the applicant was transferred to the typing pool. The applicant did not comply with this order but continued to remain in her previous office in the Council's Secretariat.

In view of this on 20 June 1972 a decision was taken ordering the forfeiture of remuneration in accordance with Article 60 of the Staff Regulations on the grounds of the applicant s unauthorized absence. The applicant brought Cases 58 and 75/72 against the two decisions of 24 May and 20 June 1972 respectively, but she was unsuccessful. Both applications were dismissed as unfounded by judgment of 17 May 1973 ([1973] ECR 511).

While the Court action was pending the Council resolved on 16 October 1972 to bring disciplinary proceedings against the applicant for not complying with the last sentence of the third paragraph of Article 21 and the first paragraph of Article 55 of the Staff Regulations. On 6 November 1972 the Disciplinary Board was appointed and this held several meetings. On 4 July 1973 four members of the Disciplinary Board — for health reasons a fifth member had no longer taken part in the proceedings after 5 December 1972 — gave the opinion required of them. It put forward two solutions: should the applicant make it known that she intended to take up her place again in the Secretariat within the period of one month from notification of the opinion, and also if within this period the applicant should apply to resign, there should be only a reprimand; should the applicant continue to refuse to comply with the order of transfer or if she should show by making use of other procedural means that she was not aware of her duties as an official she should be dismissed without however forfeiting either in part or in whole her claims to the retirement pension. The Disciplinary Board recommended in addition that before this step was taken the applicant should be medically examined.

The appointing authority followed this recommendation. On 25 July 1973 the doctor who was asked to make the examination came once again to the conclusion that the applicant was in a position to do typing. Since the applicant however produced certificates from several specialists containing differing conclusions the Secretary-General of the Council ordered a further examination on behalf of both parties. In addition, in view of the unsettled question of her state of health, the applicant was requested in a letter dated 26 July 1973 to work temporarily in the Secretariat of the Staff Committee where there was filing work to be done. This offer was however subsequently withdrawn since the applicant did not present herself for the said work.

For the purpose of the said medical examination and in application of the provisions applying to the Invalidity Committee a three-man board was appointed composed of a medical officer of the Council appointed on 6 August 1973, a doctor appointed by the applicant on 9 August 1973 and a third doctor jointly appointed by these two doctors. This committee made a report on 21 November 1974 to the effect that the applicant was in a position to do typing. The report however was not signed by the doctor appointed by the applicant. Since the applicant continued to refuse to comply with the order of transfer on 29 January 1975 the final hearing by the Secretary-General took place as provided for in the disciplinary procedure. The applicant produced two further medical reports on her state of health. After these had been submitted to the two doctors who had signed the said report and after they nevertheless adhered to their findings, the decision was taken on 24 February 1975 to dismiss the applicant with effect from 1 March 1975.

A complaint lodged by the applicant against this on 20 May 1975 remained unanswered. Accordingly on 17 December 1975 the applicant brought the matter before the Court. She submitted the following claims:

My opinion on these claims is as follows:

It is not necessary to inquire whether the observation on the hearing in the extract of the minutes put before us is correct and that the applicant's counsel was present and had the opportunity to speak or whether, as the applicant says, this was not so. The criterion must be that according to the clear wording of Article 4 of Annex IV to the Staff Regulations provision is made for representation only in the proceedings before the Disciplinary Board and not in respect of the final hearing of the person concerned. Furthermore it has not been shown that there is a general legal principle that a representative must be allowed to speak at the final hearing. Since however in the present case use was in fact made of the opportunities expressly provided for and the applicant could see to it that her interests were sufficiently protected, there is certainly no cause to declare the disciplinary proceedings defective, on the grounds of diminution of the rights of the defence, even if the applicant's counsel was not allowed to speak at the hearing.

6. Accordingly, all that remains for me to do is to propose that the application should be dismissed in toto as unfounded and that a ruling on costs should be made in accordance with Article 70 of the Rules of Procedure.

1 Translated from the German.