Avis juridique important

Judgment of the Court (First Chamber) of 4 July 1963. - M. Maurice Alvis v Council of the European Economic Community. - Case 32-62. European Court reports French edition Page 00101 Dutch edition Page 00105 German edition Page 00109 Italian edition Page 00099 English special edition Page 00049 Danish special edition Page 00405 Greek special edition Page 00907 Portuguese special edition Page 00247

Summary Parties Subject of the case Grounds Decision on costs Operative part

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2 . APPEALS BY OFFICIALS - DISMISSAL ON DISCIPLINARY GROUNDS - ABSENCE OF PRELIMINARY NOTIFICATION - APPORTIONMENT OF COSTS - EXCEPTIONAL CIRCUMSTANCES

( RULES OF PROCEDURE, ARTICLES 69 ( 3 ), FIRST SUBPARAGRAPH, AND 70 )

1 . ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE OF LAW IN FORCE IN THE MEMBER STATES OF THE EEC, COMMUNITY INSTITUTIONS MUST ALLOW THEIR SERVANTS THE OPPORTUNITY OF REPLYING TO ALLEGATIONS BEFORE ANY DISCIPLINARY MEASURE IS TAKEN CONCERNING THEM .

2 . A FAILURE OF THE ADMINISTRATION TO NOTIFY THE APPLICANT FORMALLY OF THE FACTS LEADING TO DISMISSAL WHICH, ALTHOUGH ACCOMPANIED BY NOTICE, IS BASED ON DISCIPLINARY GROUNDS, CONSTITUTES EXCEPTIONAL CIRCUMSTANCES IN WHICH COSTS MAY BE AWARDED ACCORDING TO ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE .

IN CASE 32/62

MAURICE ALVIS, REPRESENTED BY PAUL MARCHAL, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN WELTER, ADVOCATE OF LUXEMBOURG, APPLICANT,

V

COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, RAFFAELLO FORNASIER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JACQUES LECLERC AT THE SECRETARIAT OF THE COUNCIL, 3 RUE AUGUSTE-LUMIERE, DEFENDANT,

APPLICATION FOR ANNULMENT OF A NOTICE OF DISMISSAL COMMUNICATED TO THE APPLICANT ON 8 AUGUST 1962;

THE APPLICATION WAS MADE IN THE REQUIRED FORM AND WITHIN THE REQUIRED TIME-LIMIT .

THE DEFENDANT HAS RAISED NO PRELIMINARY OBJECTION OF INADMISSIBILITY .

1 . ON THE IMPROPER AND PREJUDICIAL NATURE OF THE DISMISSAL PROCEDURE

A - THE APPLICANT CLAIMS THAT THE DEFENDANT DISMISSED HIM WITHOUT FIRST GIVING HIM ANY OPPORTUNITY OF SUBMITTING HIS DEFENCE, BY INFORMING HIM OF THE INCIDENTS ON WHICH HIS DISMISSAL WAS BASED .

THE DEFENDANT DOES NOT DISPUTE THIS CLAIM .

ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE OF ADMINISTRATIVE LAW IN FORCE IN THE MEMBER STATES OF THE EUROPEAN ECONOMIC COMMUNITY, THE ADMINISTRATIONS OF THESE STATES MUST ALLOW THEIR SERVANTS THE OPPORTUNITY OF REPLYING TO ALLEGATIONS BEFORE ANY DISCIPLINARY DECISION IS TAKEN CONCERNING THEM .

THIS RULE, WHICH MEETS THE REQUIREMENTS OF SOUND JUSTICE AND GOOD ADMINISTRATION, MUST BE FOLLOWED BY COMMUNITY INSTITUTIONS .

THE OBSERVANCE OF THIS PRINCIPLE IS EVEN MORE IMPORTANT WHEN, AS IN THIS CASE, THE ALLEGATIONS ARE CAPABLE OF RESULTING IN THE DISMISSAL OF THE SERVANT CONCERNED . INDEED, IT APPEARS FROM THE TEXT OF THE LETTER OF DISMISSAL THAT IT WAS A DISCIPLINARY MEASURE, EVEN THOUGH THE NOTICE STIPULATED IN THE CONTRACT OF EMPLOYMENT WAS GIVEN .

THUS, THE DEFENDANT DISREGARDED ITS OBLIGATION TO ALLOW THE APPLICANT TO SUBMIT HIS DEFENCE BEFORE BEING DISMISSED .

NEVERTHELESS THE COURT, IN EXERCISE OF ITS UNLIMITED JURISDICTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY, CONSIDERS THAT, IN THIS CASE, THE FAILURE OF THE DEFENDANT TO OBSERVE THIS OBLIGATION IS NOT SUFFICIENT TO ANNUL THE DECISION OF DISMISSAL . THIS FAILURE DOES NOT JUSTIFY THE AWARD OF DAMAGES TO THE APPLICANT, BUT SHOULD NEVERTHELESS AFFECT THE APPORTIONMENT OF COSTS BETWEEN THE PARTIES .

IN FACT, IN THE ABSENCE OF A PROCEDURE ALLOWING HIM TO BE HEARD, THE APPLICANT HAD NO OTHER MEANS OF PRESENTING HIS DEFENCE THAN BY MAKING AN APPLICATION FOR ANNULMENT OF THE DECISION OF DISMISSAL .

B - THE APPLICANT COMPLAINS OF THE PUBLICITY GIVEN BY THE DEFENDANT TO THE COMMUNICATION OF THE DECISION OF DISMISSAL, NAMELY IN FRONT OF TWO RESPONSIBLE HEADS OF DEPARTMENT .

THIS PROCEDURE CANNOT BE DESCRIBED AS DAMAGING; IT IS REASONABLE THAT, CONSIDERING THE REASONS WHICH LED THE COUNCIL TO TAKE THE DECISION IN QUESTION, THE COMMUNICATION OF THIS DECISION TO THE APPLICANT SHOULD HAVE BEEN MADE BEFORE THE TWO RESPONSIBLE HEADS OF DEPARTMENT, WHOSE PRESENCE WAS ALSO JUSTIFIED BY REASON OF ANY OBSERVATIONS WHICH THE APPLICANT MIGHT HAVE MADE, AS HE WAS EXPRESSLY INVITED TO DO .

THE APPLICANT MIGHT CLAIM TO HAVE SUFFERED FROM THE PUBLICITY GIVEN TO THE DECISION OF DISMISSAL ONLY IF THE ALLEGATIONS MADE AGAINST HIM BY THE DEFENDANT PROVED TO BE UNFOUNDED .

2 . ON THE REASONS FOR THE DISMISSAL

THE LETTER OF DISMISSAL ALLEGES THAT THE APPLICANT WAS INVOLVED IN THREE SEPARATE INCIDENTS .

IT IS APPROPRIATE TO CONSIDER IN THE FIRST PLACE THE THIRD AND MOST SERIOUS INCIDENT, THE THROWING OF GLASSES FROM THE NINTH FLOOR INTO THE STREET ON 3 AUGUST 1962, WHICH HAD A DECISIVE BEARING ON THE DISMISSAL OF THE APPLICANT .

THE WITNESSES HOGARD, GALICHON AND VAN AUDENHOVEN HAVE ESTABLISHED THAT AT THE TIME WHEN THE GLASSES WERE THROWN, BETWEEN 8.30 AND 8.55 P.M ., THE APPLICANT WAS IN AN OBVIOUS STATE OF INTOXICATION ON THE BALCONY OF THE NINTH FLOOR OF THE BLOCK IN WHICH HIS OFFICE WAS SITUATED, AND THAT GLASSES WERE THROWN FROM THIS BALCONY INTO THE RUE DES QUATRE-BRAS OR IN FRONT OF THE MAIN ENTRANCE OF THE OFFICE BLOCK .

ALTHOUGH IT IS NOT CERTAIN THAT THE APPLICANT HIMSELF THREW THESE GLASSES, IT IS AT LEAST CLEAR THAT HE WAS AT THAT MOMENT ON THE BALCONY AND THAT HE HAS DONE NOTHING TO SHOW THAT HE WAS NOT RESPONSIBLE FOR THESE INCIDENTS .

IN ALL THE CIRCUMSTANCES THEREFORE, THE APPLICANT CAN REASONABLY BE REGARDED AS IN PART RESPONSIBLE FOR THIS ACT WHICH WAS CAPABLE BOTH OF INJURING THIRD PARTIES AND OF BRINGING DISCREDIT UPON THE EUROPEAN INSTITUTIONS .

THIS VIEW IS CONFIRMED BY THE FACT THAT THE APPLICANT HAS FAILED TO PROVIDE, EITHER TO HIS IMMEDIATE SUPERIORS OR TO THE COURT, THE LEAST INDICATION OR INFORMATION AS TO WHAT HE WAS DOING AND WHERE HE WAS ON THE EVENING OF 3 AUGUST 1962, BETWEEN 8.30 AND 8.55 P.M .

MOREOVER, THIS GLASS-THROWING INCIDENT MUST BE CONSIDERED IN THE LIGHT OF THE PREVIOUS CONDUCT OF THE APPLICANT .

AS REGARDS THE SECOND INCIDENT, THAT OF 11 JULY 1962, - BEING IN A STATE OF INTOXICATION WHILST ON DUTY - IT APPEARS FROM THE STATEMENTS OF THE WITNESSES POTZ AND BATTIN THAT THE APPLICANT, BY HIS CONDUCT, AT LEAST CAUSED A DISTURBANCE TO THE WORK OF THE DEPARTMENT .

THERE IS NO DISPUTE OVER THE SUBSTANCE OF THE FIRST INCIDENT, THE LETTER ADDRESSED ON 19 FEBRUARY 1962 BY THE APPLICANT TO MR NEWING .

THERE IS NO DOUBT THAT, IN THE CIRCUMSTANCES, THE TONE OF THIS LETTER IS NOT IN ACCORDANCE WITH THE RULES TO BE FOLLOWED BY A SERVANT OF A EUROPEAN INSTITUTION .

EVEN THOUGH THE ADMINISTRATION AT THAT TIME SAW FIT TO OVERLOOK THIS INCIDENT, ITS GRAVITY WAS NEVERTHELESS POINTED OUT TO THE APPLICANT .

IT APPEARS FROM THE FOREGOING THAT THE TRUTH OF THE FACTS ON WHICH THE CONTESTED DECISION IS BASED HAS BEEN SUFFICIENTLY ESTABLISHED IN LAW, AND THAT THEY REVEAL AN ATTITUDE AND CONDUCT INCOMPATIBLE WITH THE FUNCTIONING OF THE EUROPEAN INSTITUTIONS .

THE APPLICATION MUST THEREFORE BE DISMISSED .

THE APPLICANT HAS FAILED IN HIS APPLICATION .

UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

UNDER THE TERMS OF ARTICLE 69 ( 3 ) OF THE ABOVE RULES, WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

IN THIS CASE, AS STATED ABOVE, THE FAILURE OF THE DEFENDANT TO ALLOW THE APPLICANT TO SUBMIT HIS DEFENCE BEFORE HIS DISMISSAL HAS UNDOUBTEDLY ENCOURAGED THE APPLICANT TO MAKE AN APPLICATION TO THE COURT . IT IS THEREFORE REASONABLE TO ORDER THE DEFENDANT TO PAY FOUR-FIFTHS OF THE BALANCE OF THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 36/62 AS UNFOUNDED;

2 . ORDERS THE COSTS INCURRED BY THE DEFENDANT TO BE PAID BY THAT PARTY . THE BALANCE OF THE COSTS SHALL BE APPORTIONED, AND SHALL BE BORNE AS TO FOUR-FIFTHS BY THE DEFENDANT AND AS ONE-FIFTH BY THE APPLICANT .