Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. I think there has never been a case before the Court which has combined more fully the two meanings of the Italian word lite than the case today, namely: the legal meaning as a lawsuit and the ordinary meaning as a brawl or scuffle. The Court is asked to assess the lawfulness of an administrative decision taken on 7 April 1983 by Richard Burke, the Member of the Commission responsible for staff matters, whereby Mr F., a principal administrator at the Commission and the present applicant, was dismissed for having — and I cite the words of the decision — committed... a violent act of aggression against the Director General for Personnel and Administration, causing him injuries.

2. Mr F., who entered the service of the Commission in 1975, was engaged initially as a member of the temporary staff and later became an established official; on 1 July 1982 he was seconded for two years to the French Ministry of Cooperation and Development. That decision was part of a policy of exchange of officials between the Commission and the administrations of the Member States which the Commission had pursued since 1976.

3. Summarized in that way the matter seems straightforward and its solution not difficult. Unfortunately it is not so. The first paragraph of Article 1 of Annex IX to the Staff Regulations provides that. A report shall be submitted to the Disciplinary Board by the appointing authority, stating clearly the facts complained of and, where appropriate, the circumstances in which they arose. We must therefore look at the facts and circumstances. Although I have already mentioned the former, I have not yet spoken of the latter, and it is there that lies the kernel of the question of the legality of the contested measure.

4. In the present action Mr F. claims primarily that the Commission's decision of 11 July 1983 rejecting his complaint for annulment of the decision of 7 April 1983 (removal from his post) should be annulled, together with, if necessary, the Disciplinary Board's opinion. In the alternative, he claims the payment of damages equivalent to three years' remuneration and such further compensation as will repair the damage suffered by him as an official.

5. In support of its objection of inadmissibility the Commission states that, although the Court by implication has held to the contrary (judgment of 11 July 1968 in Case 35/67, Van Eick v Commission [1968] ECR 239), the opinion of the Disciplinary Board is solely a preparatory measure and in no way binding. It cannot therefore be the subject of an application for annulment. That does not mean that if the Board has given it in breach of the Staff Regulations the official concerned has no protection. On the contrary, there is nothing to prevent him from challenging the decision itself and citing in support of his action any irregularities affecting the opinion and the disciplinary proceedings.

6. In his application the applicant makes five submissions, namely:

7. In his third and fourth submissions Mr F. challenges the decision taken in relation to him on the ground that it disclosed a manifest error in the appraisal of various facts and an error of law. In his view, the appointing authority failed to take into account many of the circumstances which the Disciplinary Board described in its opinion and, by not following the Board's view that those circumstances were of a mitigating nature, it imposed a penalty on him disproportionate to the seriousness of the facts with which he was charged.

8. Of the three defects to which the applicant refers in his last submission, namely incorrect, incomplete and inadequate statement of grounds, I shall deal only with the last.

9. Finally, I think the applicant's alternative claim for damages is obviously unfounded. His misconduct is fully proven and admitted by him and the defect which I have found in the contested decision does not make it less appropriate or indeed less just. It therefore seems clear that such a defect involves no liability on the part of the administration. As Mr Advocate General Trabucchi said in Case 46/72, the law must not be a purely formal remedy destroying the substance of retributive justice.

10. For all the reasons which I have set out, I propose that the Court should grant in part the application brought on 6 October 1983 by Mr F. against the Commission and annul the decision of 7 April 1983 on the ground that in determining the penalty it did not state the reasons why the appointing authority rejected the Disciplinary Board's view that the circumstances specified in its reasoned opinion were of a mitigating nature. The applicant's other claims must be dismissed.

1 Translated from the Italian.

2 (Translator's Note) The Italian text is as follows: circostanze in cui i fatti addebitati sono stetti commessi.

3 (Translator's Note) Italian text: si sono prodotti.