Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By an application lodged at the Court Registry on 25 October 1985 Mr Rudolf Misset, an official of the Council of the European Communities, brought an action for the annulment of the following: (a) the decision of 9 January 1985 by which the Secretary-General of the Council reprimanded the applicant under Article 86 (2) (b) and the first paragraph of Article 87 of the Staff Regulations, and (b) the same authority's rejection dated 19 July 1985 of the applicant's complaint against the reprimand.

2. In support of his application Mr Misset puts forward two submissions: (a) that his right to a fair hearing as guaranteed in Article 87 of the Staff Regulations and in Annex IX thereto was not respected, and (b) that the statement of reasons was inadequate and contradictory. The first submission consists of five complaints, namely (a) that the applicant did not receive a written communication of the charges against him or of the proposal to adopt a disciplinary measure against him, (b) that he had not been summoned to the meeting held on 8 January 1985 in good time, (c) that because of the failure to notify him of the reasons for the summons to the meeting and because the notice of the meeting was too short he had had no opportunity to prepare his defence properly or to seek the assistance of a lawyer, (d) that he had not been given an opportunity to be heard as is required by Article 87 of the Staff Regulations, and (e) that he did not receive the minutes of his meeting with the Secretary-General.

3. In my opinion the Council's arguments distort the letter and spirit of the provisions referred to, as interpreted by the Court in the Démont judgment. In paragraph 9 of the judgment in that case the Court states as follows: 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. In paragraph 10 it goes on to state that the opposite interpretation would result in an unacceptable position, namely 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 pan of the right to defend oneself and would thus in practice be deprived of the right (emphasis added).

4. Mr Misset's complaints must be examined in the light of those principles. It will be recalled that the applicant maintains in the first place that he did not receive prior written notice of the charges against him and of the proposal to institute disciplinary proceedings on the basis of those charges.

5. In view of all the foregoing considerations I propose to the Court that the application lodged by Mr Rudolf Misset should be granted and that, consequently, the decision of 9 January 1985 by which the Secretary-General of the Council imposed a disciplinary measure on the applicant in form of a reprimand should be annulled.

1 Translated from the Italian.