Opinion of Advocate General Lenz delivered on 10 November 1993
1 Original language: German.
2 [1991] ECR II-781.
3 De Compte v European Parliament [1985] ECR 1951.
4 In this connection the Court of First Instance refers to the judgment of the Court of Justice in Case 41/69 ACF Chemiefarma NV v Commission [1970] ECR 661.
5 De Compte v Parliament [1984] ECR 2575. By that Order the operation of the first disciplinary measure — of 24 May 1984 —was suspended until judgment in the main action.
6 With regard to their nature, see paragraph 88 of the contested judgment and paragraph 53 below.
7 See paragraph 60 of the contested judgment.
8 Paragraph 69 of the grounds of the contested judgment.
9 Treaty of 8 April 1965 establishing a Single Council and a Single Commission of the European Communities.
10 See paragraph 30 below and footnote 15.
11 See paragraph 33 below and footnote 20.
12 Judgments in Case 403/85 F. v Commission [1987] ECR 645 at paragraph 2; and in Case 13/69 Van Eick v Commission [1970] ECR 3, at paragraphs 8, 9 and 10; as regards the procedural error at issue at that rime, cf. the judgment in Case 35/67 Van Eick v Commission [1968] ECR 329 at p. 342 et seq.
13 That is the way in which the appointing authority proceeded in this case in cancelling on 14 January 1983 the proceedings which had been initiated on 30 September 1982.
14 See Article 168a of the E(E)C Treaty and Article 51 of the Statute on the Court of Justice of the E(E)C, as well as the parallel provisions relating to the other two Communities.
15 Judgment in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339 at paragraph 12.
16 OJ 1984 C 127, p. 43.
17 That was a letter from the President of the Parliament asking the Chairman of the Committee on Budgetary Control, with reference to the complaints made in the disciplinary proceedings, to defer the decision on the final discharge of the accounting officer for 1981: see Recital G. in the preamble to the decision of 10 April 1984 and paragraph 13 of the contested judgment.
18 See the second and third indents of paragraph 4 above.
19 Paragraph 73 of the contested judgment.
20 OJ 1983 C 161, p. 98.
21 OJ 1986 C 227, p. 154.
22 In that opinion, provided at the request of the President of the Parliament, the Court of Auditors found that the accounting officer and the administrator of advance funds were liable for the deficit established for the 1982 financial year; see paragraphs 19 and 20 of the contested judgment.
23 With regard to this paragraph, see paragraphs 79, 80 and 81 of the contested judgment.
24 On that date a report about the contested complaints against the applicant was referred to the disciplinary board following the cancellation of the proceedings instituted in September 1982: see paragraph 2 above and paragraph 8 of the contested judgment.
25 Paragraph 33 above.
26 Paragraph 30 above.
27 See the second and third indents to paragraph 4 above.
28 See paragraph 33 above.
29 Paragraph 20 above.
30 See paragraph 2 above.
31 See the judgment in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339 at paragraph 29.
32 Neither the Financial Regulation (footnote 53) nor Regulation No 75/375 (footnote 54) directly clarifies these questions.
33 Paragraph 30 above.
34 Cf. paragraph 185 et seq. of the contested judgment; see also paragraph 189.
35 See paragraph 78 of the contested judgment.
36 Paragraph 39 above.
37 See the judgment in Case C-18/91 P V. Parliament [1992] ECR I-3997 at paragraph 21.
38 Paragraph 89 of the contested judgment.
39 See previous footnote.
40 See paragraph 2 above.
41 Paragraph 88 of the contested judgment.
42 See in this connection the unambiguous judgment in Case 13/69 Van Eick (footnote 11 above).
43 Paragraph 88 of the contested judgment.
44 Judgment in Van Eick (footnote 11) at paragraph 7; judgment in Case 228/83 F. v Commission [1985] ECR 275, paragraph 30.
45 That apparently refers to the letter of 30 September 1982 at the beginning of the first disciplinary proceedings, as the disciplinary board mentions in the same connection the conclusion of the successive disciplinary proceedings.
46 The defendant also reacted in this sense: see paragraph 112 of the contested judgment.
47 Paragraph 46 of the appeal.
48 This plea was at first instance part of a (more comprehensive) complaint by which the applicant claimed infringement of the rights of the defence: see the title to paragraph 116 of the contested judgment.
49 End of paragraph 124 of the contested judgment.
50 Paragraph 76 above.
51 Cf. paragraph 197 of the contested judgment and paragraphs 144 to 148 below.
52 Paragraph 73 et seq. above.
53 In accordance with the content of the application, as I have been able to check.
54 Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1).
55 Commission Regulation No 75/375 of 30 June 1975 on measures of implementation of certain provisions of the Financial Regulation of 25 April 1973 (OJ 1975 L 170, p. 1).
56 Paragraph 167 of the contested judgment.
57 Paragraph 153 of the contested judgment and paragraph 56 of the appeal.
58 See p. 34 (top) of the appeal.
59 See paragraphs 99 and 100 above.
60 It may be noticed incidentally that in the Offermann proceedings the appointing authority rejected the view that the administrator of advance funds was not to be held responsible. It refrained from imposing a disciplinary measure solely because it did not regard such a measure as appropriate: see Annex 18 to the application and paragraph 8 of the judgment in Case T-129/89 Offermann v Parliament [1991] ECR II-855.
61 See the judgment in Case C-313/90 CIRFS v Commission [1993] ECR I-1125 at paragraph 45.
62 Cf. the judgment in Joined Cases 260/85 and 106/86 TEC y Council [1988] ECR 5855 at paragraph 18.
63 Paragraph 99 above, first indent.
64 Op. cit., third and fourth indents.
65 See paragraphs 173 to 178 below.
66 Paragraph 171 of the contested judgment.
67 See the previous footnote.
68 Paragraph 152 of the contested judgment.
69 Paragraph 168 of the contested judgment and paragraph 95 above.
70 See paragraph 70 of the appeal.
71 My emphasis.
72 First subparagraph of paragraph 72 of the appeal.
73 See paragraph 13 of the contested judgment; OJ 1982 C 202, p. 1.
74 Paragraph 153 et seq. and in particular paragraphs 167, 168 and 169 of the contested judgment.
75 Paragraph 183 of the contested judgment.
76 Paragraph 93 above.
77 Paragraphs 94, 95 and 96 above.
78 Cf. last indent of paragraph 4 above.
79 Paragraph 195 of the contested judgment.
80 Memorandum of 29 October 1981; special report of 6 July 1982; opinion of 7 November 1985.
81 Paragraph 201 of the contested judgment.
82 Paragraph 202 of the contested judgment.
83 For what follows see paragraph 76 of the appeal.
84 Page 45, first subparagraph.
85 My emphasis.
86 The appointing authority's conclusion according to paragraph 200 of the contested judgment.
87 See subparagraph (c) of paragraph 37 of the contested judgment.
88 Paragraph 77 of the appeal.
89 With regard to the principle of the duty to provide a statement of the reasons on which decisions are based, see the judgment in Case C-283/90 P Vidrányi v Commission [1991] I-4339, at paragraph 29 (already referred to in footnote 9).
90 Footnote 20 above.
91 My emphasis.
92 Paragraphs 73, 74 and 75 above.
93 Paragraph 224 et seq. of the contested judgment.
94 Paragraph 202 et seq. below.
95 Paragraph 195 of the contested judgment.
96 For a comparable case with regard to a drafting error in a regulation, see the judgment in Case C-27/90 SITPA [1991] ECR I-133 at paragraph 13.
97 See paragraph 193 of the contested judgment.
98 See paragraph 95 above.
99 See paragraph 182 of the contested judgment and paragraph 131 above.
100 Paragraphs 167 to 170, 183 and 203 and 204.
101 Paragraphs 171 and 172 of the contested judgment.
102 OJ 1982 C 202, p. 1.
103 See paragraph 102 et seq. above.
104 See paragraph 193 of the contested judgment.
105 Paragraph 214 of the contested judgment.
106 Paragraph 228 of the contested judgment.