Report for the Hearing delivered in Case 319/85

I — Facts and procedure

1. The applicant, Mr R. Misset, a translator in Grade LA 7 in the Council's Translation Department in Brussels, was absent from his place of work between 18 July and 3 August 1984. On 25 September 1984 the Director for Administration and Personnel of the Council's Secretariat-General, Mr Gueben, informed the applicant that he was not entitled, on grounds of delay, to submit a medical certificate to justify his absence. The applicant's complaint dated 19 December 1984 was rejected by the Secretary-General of the Council, Mr Ersbøll, by a memorandum dated 18 February 1985. On 21 May 1985 the applicant's application in respect of those two decisions was dismissed as inadmissible by the Court in its judgment of 15 January 1987 Case 152/85 Misset v Council of the European Communities [1987] ECR 223 on the ground that it had been made out of time.

2. The applicant was granted special leave to attend a language course in Greece from 12 August to 7 September 1984 as part of his further training and instruction. The applicant was absent during that period without, however, attending the language course in Greece.

3. Finally, on 17 September 1984 the applicant was absent from work without justification.

4. On 25 September 1984 the applicant attended a meeting with Mr Weinstock, Director-General, Mr Gueben, Director, Mr Motte, Head of the Translation Department, Mr t'Kindt, Head of the Dutch language Division of the Translation Department and Mr Pisters, Principal Administrator, concerning the aforementioned allegations against him. By an administrative memorandum of the same date Mr Weinstock forwarded to Mr Gueben a memorandum dated 18 September 1984 drawn up by the Head of the Dutch language Division in which he proposed to adopt a disciplinary measure in respect of the applicant. In his memorandum forwarding the latter, Mr Weinstock stated that during the meeting with the applicant I emphasized the serious consequences which might arise from his conduct and I pointed out to him that we would propose to the Secretary-General the adoption of a disciplinary measure in respect of him.

5. On 9 October 1984 Mr Gueben informed the applicant that his participation in any form of vocational training was suspended pending the steps which may be taken as a result of his abuse of the special leave granted to him for the purpose of attending the aforementioned language course in Greece.

6. On 8 January 1985 the applicant was summoned by telephone to appear that same day before the appointing authority, namely the Secretary-General, Mr Ersbøll, in the presence of Mr Gueben, Mr Motte and Mr t'Kindt. During the meeting the Secretary-General informed the applicant of his intention to impose a disciplinary measure on him in the form of a reprimand.

7. On 9 January 1985 the Secretary-General notified the applicant in writing of his decision to impose a disciplinary measure on him in the form of a reprimand. The reasons upon which that decision was based were as follows:

8. On 4 April 1985 the applicant lodged a complaint, in the first place against the form of the decision and in the second place against its substance, and explained that he was unable to travel to Greece in order to participate in the language course because he had no money and that on 17 September he was absent from work because he had wrongly thought that work resumed the following day.

9. By a memorandum dated 19 July 1985 the Secretary-General rejected the applicant's complaint.

10. By application lodged at the Court Registry on 25 October 1985 the applicant brought this action. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure without any preparatory enquiry.

II — Conclusions of the parties

1. The applicant claims that the Court should :

2. The Council contends that the Court should:

III — Submissions of the parties

1. The applicant emphasizes that the irregularity of his absence from work from 18 July to 3 August 1984 was the subject of Case 152/85. He does not dispute the irregularity of his absences from 12 August to 7 September and on 17 September 1984. His submissions relate to the following matters:

(a) The procedure

2. The parties are in agreement that the applicant was summoned by telephone on the morning of 8 January 1985 to a meeting with the appointing authority to be held during the afternoon of the same day; that he did not receive, before that step was taken, a written communication from the administration setting out the facts complained of or referring to the possibility of the adoption of a disciplinary measure; and that there are no minutes of the meeting of 8 January 1985.

3. The applicant maintains on the basis of the Court's judgments of 17 December 1981 Case 115/80 Démont v Commission [1981] ECR 3147 and of 20 June 1985 (Case 141/84 de Compte v European Parliament [1985] ECR 1951) that the right to a fair hearing and the adversarial nature of the disciplinary procedure must be respected not only in relation to the procedure before the Disciplinary Board under Annex IX to the Staff Regulations of Officials but also in relation to the disciplinary procedure before the appointing authority under the first paragraph of Article 87 of those regulations, regardless of the fact that the sanctions which may be imposed as a result of the latter procedure are of a less serious nature.

4. For that reason the applicant takes the view that the Staff Regulations were infringed by the appointing authority's failure to communicate to the applicant the decision to initiate the disciplinary procedure, by the failure to communicate in writing the facts complained of and the evidence in support thereof, by the failure to summon the applicant to the meeting held on 8 January 1985 in good time and by the failure to keep minutes of that meeting. In view of the failure to notify the applicant of the reasons for the summons to the meeting and of the fact that he was summoned only a few hours before the meeting, the applicant had no opportunity to seek the assistance of a lawyer or to prepare his defence properly in accordance with Article 4 of Annex IX. As the applicant was given notice of the appointing authority's decision at the start of the meeting held on 8 January 1985 he did not have a preliminary opportunity to be heard as is provided for by Article 87. These infringements of the Staff Regulations show, in his view, that the relevant powers were exceeded.

5. The Council interprets the aforementioned judgments in a different manner and contends that the guarantee of the essential prerogatives which form part of the right to defend oneself does not necessarily mean that all the formal provisions of Annex IX must also be complied with in the less serious disciplinary procedure provided for in the first paragraph of Article 87. More particularly, in view of paragraphs 17 and 18 of the the Court's judgment of 11 July 1985 (Joined Cases 255 and 256/83 R. v Commission [1985] ECR 2473) there is no requirement of written notification of the initiation of the disciplinary procedure. The Council also takes ithe view that the right to a fair hearing extends neither to the drawing up of minutes of the hearing nor to the presence of a lawyer. On that point the Council refers to the Court's judgments of 16 December 1976 (Case 124/75 Perinciolo v Council [1976] ECR 1953) and of 4 July 1963 (Case 32/62 Alvis v Council [1963] ECR 49) and contends that the Court's judgment of 29 January 1985 (Case 228/83 F. v Commission [1985] ECR 275) must be given a restrictive interpretation.

6. With regard to the period required for the preparation of the applicant's defence, the Council maintains, by reference to the aforementioned memorandum of Mr Weinstock, that the applicant was informed at the end of the meeting held on 25 September 1984, that is to say three months before the meeting held on 8 January 1985, of the fact that the adoption of a disciplinary measure was to be proposed to the Secretary-General. In addition, the Council states that the applicant was not notified of the intention to deliver a reprimand until the end of the latter meeting and that he was completely free after that meeting to submit his explanations.

(b) The statement of reasons

7. The applicant states that prior to 1984 complaints were made regarding absences from work of a similar nature. Consequently, the statement of reasons on which the decision was based, which, in the first place, refers to the fact that the applicant was absent from work without justification for the third time since he took up his duties and, in the second place, mentions only the periods of absence in 1984, is incomplete and contradictory. That fact constitutes an infringement of Article 25 of the Staff Regulations and therefore means the relevant powers were exceeded.

8. The Council maintains that the decision refers only to the three periods of absence during 1984 and makes absolutely no mention of prior periods of absence, which did not give rise to disciplinary measures. Sufficient reasons were given for the choice of a reprimand as the disciplinary measure to be imposed, in particular in view of the fact that it was being imposed in respect of an unjustified absence from work of two months.

1 Language of the Case: Dutch.