JUDGMENT OF 17. 12. 1981 — CASE 115/80 DEMONT v COMMISSIE

In Case 115/80

THE COURT (First Chamber), composed of: G. Bosco, President de Chambre, A. O'Keeffe and T. Koopmans, Judges, Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

(a) Inadequate and contradictory statement of grounds for the contested decision

(b) Breach of the duty of assistance under Article 24 of the Staff Regulations of Officials and of the principles of good administration and of legitimate trust

(c) Infringement of the rights of the defence

IV — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Conclusions of the parties

1. Annul the defendant's decision of 15 June 1979 to reprimand the applicant;

2. Annul the express rejection on 7 March 1980 of the applicant's complaint;

3. Order the defendant to pay the costs.

III —. Submissions and arguments of the parties

(a). Inadequate and contradictory statement of grounds for the contested decision

1. The payment of an advance of 100 % against the cost of his annual journey in 1977 and 1978 instead of the permitted 90 % ;

2. Misuse of procedure by use of artificial invoicing by a firm belonging to an acquaintance of Mr Demont who signed the receipts when the sums mentioned therein had been paid by the delegation to a temporary worker with whom no contract had been concluded and failure to keep headquarters properly informed thus making impossible a check on the true destination of Community funds;

3. Irregularities concerning the amounts paid and methods of payment of female cleaners employed by the Santiago delegation in 1977 and 1978;

4. Acceptance of fees requested bylawyers without checking whether their amount was justified and without prior authorization from headquarters.

(b). Breach of the duty of assistance under Article 24 of the Staff Regulations of Officials and of the principles of good administration and of legitimate trust

(c). Infringement of the rights of the defence

IV —. Oral procedure

1. By an application lodged at the Court Registry on 2 May 1980, René Démont, an official of the Commission of the European Communities, brought an action for the annulment of the Commission's decision of 15 June 1979 to reprimand him under Article 86 (2) (b) and the first paragraph of Article 87 of the Staff Regulations of Officials, and of the rejection by the Commission on 7 March 1980 of the complaint lodged against that disciplinary measure.

2. In support of his action the applicant maintains that the decision is illfounded not only in fact but also in law. He states in particular that the Commission has in this case failed in its duty of assistance towards its officials imposed upon it by Article 24 of the Staff Regulations, and given a contradictory statement of the grounds upon which the contested decision was based, in breach of Article 25 of the Staff Regulations, and has committed a breach of the general principle of respect for the rights of the defence.

3. It is necessary first to test the last submission, in support of which the applicant claims, first, that the procedure followed in this case by the appointing authority in imposing upon him a disciplinary measure was irregular in the light of the aforementioned principle on the ground that he was not given sufficient time to prepare his defence. He states that the appointing authority arranged to hear him on 28 September 1978, namely only three days after deciding on 25 September 1978 to initiate a disciplinary procedure against him within the meaning of Article 87 of the Staff Regulations.

4. The facts relating to the progress of those proceedings as they appear from the file, which the applicant himself has not disputed, show however that that allegation is not well-founded.

5. It is in fact common ground that the hearing on 28 September 1978 was followed by two further hearings on 19 January and 13 April 1979, at which the applicant was not only heard again but was also able to submit in evidence explanatory statements and to have witnesses examined whom he had himself called. Despite the shortness of the period which was allowed him before his first hearing, the applicant was therefore put in a position, before the contested decision to reprimand him was adopted, to prepare his defence under conditions which were in conformity with the requirements of the aforementioned principle.

6. The applicant maintains furthermore that the Commission in this case committed an infringement of the rights of the defence in particular by refusing his counsel permission to examine the disciplinary file concerning him.

7. The Commission, whilst not disputing the truth of that allegation, contends that the interpretation of the second paragraph of Article 87, in conjunction with Annex IX to the Staff Regulations, makes it evident that assistance for the defence is only provided for by the Staff Regulations in a case in which the official is required to appear before the Disciplinary Board or where the disciplinary measure which may be imposed upon him is more serious than a written warning or a reprimand. The Commission considers that, in other cases such as the present case, the rights of the defence as regards the Staff Regulations have been observed, since the official himself had the opportunity to examine his disciplinary file.

8. That line of argument fails to appreciate the letter and the spirit of the provisions of the Staff Regulations relating to disciplinary proceedings.

9. Neither Article 87 of the Staff Regulations nor Annex IX thereto nor those two provisions read in conjunction allow a distinction to be drawn between the different defences of which an official may avail himself in the course of disciplinary proceedings depending upon whether or not those proceedings entail a reference to the Disciplinary Board or according to the severity of the disciplinary measure which might be imposed on the official.

10. The second paragraph of Article 4 of Annex IX to the Staff Regulations, which provides that when the official appears before the Disciplinary Board he shall have the right to submit observations in writing or orally, to call witnesses and to be assisted in his defence by a person of his own choice, cannot be interpreted as precluding the possibility that the official may be assisted in his defence in all cases in which the disciplinary proceedings initiated against him are not those governed by Annex IX to the Staff Regulations. That interpretation which, under the terms of the aforementioned provision, would likewise apply to the right to submit observations in writing or orally and to call witnesses, would result in the unacceptable position that, in disciplinary proceedings other than those referred to in Annex IX to the Staff Regulations, the official could not avail himself of the essential prerogatives which form part of the right to defend oneself and would thus in practice be deprived of the right.

11. Appearing in the specific context of Annex IX to the Staff Regulations, that provision merely concerns the matters governed by that annex and is based on the fundamental requirement that respect for the rights of the defence, including the right of the official concerned to be assisted by counsel, is all the more important when the disciplinary proceedings to which he is subject are likely to result in the imposition of particularly severe disciplinary measures.

12. For those reasons it must be stated that the refusal of the Commission to allow the applicant's counsel access to the disciplinary file in the course of the proceedings which resulted in the contested disciplinary measure is without any legal foundation either in the letter or in the spirit of the provisions of the Staff Regulations relating to disciplinary matters, but rather constitutes a breach of a fundamental legal principle which the Court is bound to uphold within the Community legal order.

13. That refusal is sufficient to affect the legality of the disciplinary proceedings followed in the present case by the Commission, so that the decision to reprimand the applicant, adopted at the outcome of those proceedings, must be annulled and there is no need to examine the other submissions made in the application.

14. Pursuant to the first paragraph of Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

15. The defendant having failed in its submissions must be ordered to pay the costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Annuls the decision of the Commission dated 15 June 1979 to reprimand the applicant;

2 Orders the defendant to pay the costs.