Avis juridique important

Order of the President of the Fourth Chamber of 13 April 1987. - C. W. v Court of Auditors of the European Communities. - Application for interim measures - Officials: suspension from duty and with-holding of part of the official's base salary. - Case 90/87 R. European Court reports 1987 Page 01801

Parties Grounds Decision on costs Operative part

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APPLICATION FOR INTERIM MEASURES - SUSPENSION OF THE OPERATION OF A MEASURE - CONDITIONS FOR GRANT OF SUCH RELIEF - PRIMA-FACIE CASE - SERIOUS AND IRREPARABLE HARM

( EEC TREATY, ART . 185; STAFF REGULATIONS OF OFFICIALS, ART . 83*(2 )*)

IN CASE 90/87*R

C.*W ., AN OFFICIAL OF THE COURT OF AUDITORS, RESIDING AT BRIDEL, REPRESENTED BY V . BIEL AND A . MAY, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BIEL, 18A RUE DES GLACIS,

APPLICANT,

V

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY M . BECKER AND M . EKELMANS, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SEAT OF THE COURT OF AUDITORS, 29 RUE ALDRINGEN,

DEFENDANT,

APPLICATION FOR THE SUSPENSION, AS AN INTERIM MEASURE, OF THE OPERATION OF THE DECISION OF 16 FEBRUARY 1987 OF THE PRESIDENT OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES SUSPENDING C.*W . FROM HIS DUTIES WITH EFFECT FROM 17 FEBRUARY 1987 AND WITHHOLDING 50% OF HIS BASIC SALARY FOR THE DURATION OF HIS SUSPENSION .

THE PRESIDENT OF THE COURT OF JUSTICE, BEING UNABLE TO HEAR THE APPLICATION FOR INTERIM MEASURES, HAS REFERRED IT TO THE PRESIDENT OF THE FOURTH CHAMBER .

ORDER

FACTS

1 . ON 16 FEBRUARY 1987 THE PRESIDENT OF THE COURT OF AUDITORS ADOPTED A DECISION SUSPENDING C.*W ., AN OFFICIAL AT THE COURT OF AUDITORS, FROM HIS DUTIES AND WITHHOLDING 50% OF HIS BASIC SALARY, WITH EFFECT FROM 17 FEBRUARY 1987 .

2 . ACCORDING TO THE STATEMENT OF THE REASONS FOR THAT DECISION, C.*W . WROTE AND DISTRIBUTED OR CAUSED TO BE DISTRIBUTED ON 3 AND 12 FEBRUARY 1984 TWO STATEMENTS ATTACKING CERTAIN MEMBERS OF THE COURT OF AUDITORS AND CONTAINING HIS CRITICISMS OF A SERIES OF ADMINISTRATIVE DECISIONS ADOPTED BY THE COURT OF AUDITORS; HE ALSO SENT A COPY OF THE FIRST STATEMENT TO THE PRIME MINISTER OF A MEMBER STATE AND A FURTHER COPY TO A DAILY NEWSPAPER IN LUXEMBOURG . WHEN HE APPEARED BEFORE THE APPOINTING AUTHORITY FOLLOWING THE DISTRIBUTION OF THE FIRST STATEMENT, C.*W . MAINTAINED THE ASSERTIONS WHICH IT CONTAINED; INDEED, HE HAD SUBSEQUENTLY WRITTEN AND DISTRIBUTED THE SECOND STATEMENT .

3 . ACCORDING TO THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS, C.*W .' S CONDUCT WAS PROMPTED BY THE CLEAR INTENTION TO CAUSE SERIOUS AND IRREPARABLE DAMAGE TO THE REPUTATION OF SEVERAL MEMBERS OF THE COURT OF AUDITORS AND A FIRM DESIRE TO TARNISH THE REPUTATION AND CREDIBILITY OF THE INSTITUTION . IN SO ACTING, C.*W . COMMITTED A SERIOUS BREACH OF THE DUTIES SET OUT IN ARTICLE 11 OF THE STAFF REGULATIONS, WHICH PROVIDES THAT AN OFFICIAL SHALL CARRY OUT HIS DUTIES AND CONDUCT HIMSELF SOLELY WITH THE INTERESTS OF THE COMMUNITIES IN MIND, AND FLAGRANTLY DISREGARDED ARTICLE 12 OF THE STAFF REGULATIONS, WHICH PROVIDES THAT AN OFFICIAL MUST ABSTAIN FROM ANY ACTION AND, IN PARTICULAR, ANY PUBLIC EXPRESSION OF OPINION WHICH MAY REFLECT ON HIS POSITION . FINALLY, C.*W .' S ACTIONS SERIOUSLY AND IRREMEDIABLY COMPROMISED THE RELATIONS OF TRUST AND MUTUAL RESPECT ON WHICH ANY COOPERATION BETWEEN EMPLOYEES AND MEMBERS OF AN INSTITUTION MUST BE BASED .

4 . IT WAS ON THE BASIS OF THOSE CONSIDERATIONS THAT, HAVING REGARD TO THE SERIOUSNESS OF C.*W .' S ALLEGED MISCONDUCT, THE PRESIDENT OF THE COURT OF AUDITORS SUSPENDED HIM IMMEDIATELY FROM HIS DUTIES, IN THE INTERESTS OF THE SERVICE, AND, TAKING THE VIEW THAT THE ALLEGED MISCONDUCT WAS OF SUCH A NATURE AS TO MAKE HIM LIABLE TO ONE OF THE PENALTIES SET OUT IN SUBPARAGRAPHS ( E ), ( F ) OR ( G ) OF ARTICLE 86*(2 ) OF THE STAFF REGULATIONS, DECIDED TO WITHHOLD 50% OF C.*W .' S BASIC SALARY, THE HIGHEST PROPORTION WHICH COULD BE WITHHELD .

5 . ON 28 FEBRUARY 1987 C.*W . SUBMITTED A COMPLAINT AGAINST THAT DECISION PURSUANT TO ARTICLE 90*(2 ) OF THE STAFF REGULATIONS, AND ON 24 MARCH 1987 HE BROUGHT AN ACTION FOR ITS ANNULMENT TOGETHER WITH AN APPLICATION FOR INTERIM MEASURES SEEKING THE SUSPENSION OF THE DECISION' S OPERATION .

6 . IN ACCORDANCE WITH THE SECOND SENTENCE OF ARTICLE 91*(4 ) OF THE STAFF REGULATIONS THE PROCEEDINGS IN THE PRINCIPAL ACTION WERE SUSPENDED UNTIL SUCH TIME AS AN EXPRESS OR IMPLIED DECISION REJECTING THE APPLICANT' S COMPLAINT SHOULD BE TAKEN . ON 1 APRIL 1987, HOWEVER, THE COURT WAS INFORMED OF A DECISION OF 18 MARCH 1987 BY WHICH THE APPLICANT' S COMPLAINT HAD ALREADY BEEN REJECTED BEFORE THE PROCEEDINGS WERE BROUGHT . BY A DECISION OF 1 APRIL 1987 THE PROCEEDINGS IN THE PRINCIPAL ACTION THEREFORE CONTINUED .

7 . BY A DECISION OF THE PRESIDENT OF THE FOURTH CHAMBER, THE COURT OF AUDITORS WAS INVITED TO SUBMIT ITS OBSERVATIONS ON THE APPLICATION FOR INTERIM MEASURES BEFORE NOON ON 6 APRIL 1987 . ITS OBSERVATIONS WERE SUBMITTED ON 1 APRIL 1987 .

DECISION

1 UNDER ARTICLE 185 OF THE EEC TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE HAVE NO SUSPENSORY EFFECT . THE COURT MAY, HOWEVER, IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED . IT MAY ALSO PRESCRIBE ANY NECESSARY INTERIM MEASURES .

2 UNDER ARTICLE 83*(2 ) OF THE RULES OF PROCEDURE OF THE COURT THE SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION AND OTHER INTERIM MEASURES CAN BE ORDERED ONLY WHERE THERE ARE CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA-FACIE CASE FOR SUCH MEASURES .

3 SUCH MEASURES ARE INTERIM IN NATURE; THAT IS TO SAY, THEY ARE WITHOUT PREJUDICE TO THE DECISION ON THE SUBSTANCE OF THE CASE AND DO NOT DECIDE CONTESTED POINTS OF LAW OR OF FACT AT THAT STAGE OR NEUTRALIZE IN ADVANCE THE EFFECTS OF THE DECISION SUBSEQUENTLY TO BE GIVEN ON THE SUBSTANCE OF THE CASE .

4 AS THE COURT HAS CONSISTENTLY HELD, MEASURES OF THIS KIND MAY BE GRANTED BY THE JUDGE HEARING THE APPLICATION FOR INTERIM RELIEF WHERE THERE ARE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA-FACIE CASE FOR THEIR ADOPTION AND THEY ARE URGENT IN THE SENSE THAT IT IS NECESSARY FOR THEM TO BE ADOPTED AND TAKE EFFECT BEFORE THE DECISION OF THE COURT ON THE APPLICATION FOR ANNULMENT IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE .

5 IT MUST BE DETERMINED WHETHER THE TWO CONDITIONS SET OUT ABOVE ARE FULFILLED IN THIS CASE .

6 THE DECISION WHOSE OPERATION THE APPLICANT SEEKS TO HAVE SUSPENDED COMPRISES PRIMARILY A MEASURE SUSPENDING HIM FROM HIS DUTIES AND SECONDARILY A MEASURE WITHHOLDING 50% OF HIS BASIC SALARY .

7 THE APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION IS DIRECTED AT BOTH THOSE ASPECTS .

8 HOWEVER, IN SO FAR AS THE PRIMARY ASPECT IS CONCERNED, THAT IS TO SAY THE MEASURE SUSPENDING THE APPLICANT FROM HIS DUTIES, HE HAS PUT FORWARD NO GROUNDS OF URGENCY . CONSEQUENTLY, THE APPLICATION MUST BE DISMISSED IN SO FAR AS THAT MEASURE IS CONCERNED .

9 WITH REGARD TO THE SECONDARY MEASURE WITHHOLDING 50% OF THE APPLICANT' S BASIC SALARY, IT MUST BE DETERMINED WHETHER THE CONDITIONS FOR THE SUSPENSION OF ITS OPERATION ARE MET .

10 WITH REGARD TO THE CONDITION OF A PRIMA-FACIE CASE, THE APPLICANT SUBMITS INTER ALIA THAT THE WITHHOLDING OF 50% OF HIS BASIC SALARY, THAT IS TO SAY THE GREATEST PORTION WHICH MAY BE WITHHELD UNDER ARTICLE 88 OF THE STAFF REGULATIONS, IS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY IF DUE ACCOUNT IS TAKEN FIRST OF ALL OF HIS ALLEGED MISCONDUCT AND SECONDLY OF THE EFFECTS WHICH THE WITHHOLDING OF THAT PORTION OF HIS BASIC SALARY MAY HAVE FOR HIS FAMILY SITUATION . THE APPLICANT POINTS OUT IN THAT REGARD THAT ( A ) HIS SON IS STUDYING IN THE UNITED STATES AND THE LOSS OF HALF OF HIS BASIC SALARY MIGHT RESULT IN THE INTERRUPTION OF THE NECESSARY FINANCES; ( B ) HIS WIFE' S HEALTH REQUIRES COSTLY MEDICAL TREATMENT FOR WHICH SHE PLANS TO TRAVEL TO THE UNITED STATES, AND THE WITHHOLDING OF 50% OF HIS BASIC SALARY MIGHT PREVENT HER FROM DOING SO; ( C ) HE HIMSELF IS IN BAD HEALTH, SO THAT WHEN HE WROTE AND DISTRIBUTED THE TWO STATEMENTS HIS RESPONSIBILITY WAS CONSIDERABLY DIMINISHED OR EVEN NON-EXISTENT . IN THAT REGARD HE ASKS THE COURT TO ORDER THAT HE BE EXAMINED BY A MEDICAL EXPERT .

11 IN THE LIGHT OF THOSE ALLEGATIONS AND OF THE REQUEST FOR A MEDICAL EXAMINATION OF THE APPLICANT IT MAY BE CONCLUDED, WITHOUT PREJUDICE TO THE DECISION IN THE MAIN PROCEEDINGS AND WITHOUT GOING INTO THE SUBSTANCE OF THE PROCEEDINGS, THAT IT IS IMPOSSIBLE TO PREDICT THE OUTCOME OF THIS GROUND OF ANNULMENT AND THUS EXCLUDE THE POSSIBILITY THAT THIS SUBMISSION MAY BE UPHELD BY THE COURT WHEN IT HEARS THE ACTION FOR ANNULMENT . CONSEQUENTLY, THE CONDITION OF A PRIMA-FACIE CASE MUST BE CONSIDERED TO HAVE BEEN FULFILLED .

12 WITH REGARD TO THE CONDITION OF URGENCY, CONCERNING THE SERIOUSNESS OF THE HARM AND ITS IRREPARABLE NATURE, THE APPLICANT SUBMITS THAT THE WITHDRAWAL OF 50% OF HIS BASIC SALARY WOULD COMPROMISE HIS FAMILY' S FINANCIAL STABILITY, IN THE LIGHT OF THE CIRCUMSTANCES MENTIONED ABOVE CONCERNING THE NEED FOR MEDICAL TREATMENT FOR HIMSELF AND HIS WIFE AND THE EXPENSES ATTENDANT UPON HIS SON' S STUDIES .

13 THE COURT OF AUDITORS SUBMITS THAT THE APPLICANT HAS PUT FORWARD NO EVIDENCE THAT HE WOULD SUFFER IRREPARABLE HARM AS A RESULT OF THE WITHHOLDING OF HALF OF HIS BASIC SALARY . IT ARGUES THAT HE WOULD CONTINUE TO RECEIVE THE OTHER HALF OF HIS SALARY PLUS FAMILY AND EXPATRIATION ALLOWANCES AND TO BE ENTITLED TO THE REIMBURSEMENT OF MEDICAL EXPENSES . THE COURT OF AUDITORS ALSO EMPHASIZES THE PROVISIONAL NATURE OF THE MEASURE WITHHOLDING PART OF HIS SALARY, INASMUCH AS AN OFFICIAL AGAINST WHOM SUCH A MEASURE IS TAKEN MAY BE REPAID THE ENTIRE SUM WITHHELD AND AGAIN RECEIVE HIS FULL SALARY, IN ACCORDANCE WITH ARTICLE 88 OF THE STAFF REGULATIONS, IF AFTER FOUR MONTHS NO SERIOUS DISCIPLINARY ACTION HAS BEEN TAKEN IN RESPECT OF HIM .

14 IT MUST BE POINTED OUT THAT OFFICIALS' SALARIES ARE INTENDED TO PROVIDE THEM WITH A DECENT STANDARD OF LIVING, HAVING REGARD TO THE CARRYING OUT OF THEIR DUTIES, AND THAT THE WITHHOLDING OF A SIGNIFICANT PORTION OF THEIR SALARY MAY THEREFORE HAVE SERIOUS CONSEQUENCES FOR THEM . IN THIS CASE THESE CONSEQUENCES MAY INDEED BE SERIOUS IN NATURE INASMUCH AS, NOT BEING LIMITED TO THE PURELY ECONOMIC DIMENSION, THEY MAY HAVE REPERCUSSIONS ON THE HEALTH OF THE APPLICANT, WHICH HE HIMSELF DESCRIBES AS "NEURO-PSYCHIATRIC", AND ON HIS WIFE' S HEALTH AND HIS SON' S CONTINUED PURSUIT OF HIS STUDIES . CONSEQUENCES OF SUCH A NATURE MIGHT WELL BE IRREPARABLE SHOULD THE CONTESTED DECISIONS SUBSEQUENTLY BE ANNULLED .

15 IN THE LIGHT OF THOSE FACTORS, THE OPERATION OF THE CONTESTED DECISION SHOULD BE PARTLY SUSPENDED IN SO FAR AS IT PROVIDES FOR THE WITHHOLDING OF 50% OF THE APPLICANT' S BASIC SALARY . THIS PARTIAL SUSPENSION OF THE SECONDARY MEASURE IMPOSED BY THE CONTESTED DECISION CANNOT INTERFERE WITH THE FUNCTIONING OF THE DEPARTMENT TO WHICH THE APPLICANT IS ASSIGNED, SINCE THE REMAINDER OF THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 16 FEBRUARY 1987 REMAINS APPLICABLE, ESPECIALLY IN SO FAR AS THE PRINCIPAL MEASURE SUSPENDING THE APPLICANT FROM HIS DUTIES IS CONCERNED .

COSTS

16 COSTS MUST BE RESERVED AT THIS STAGE .

ON THOSE GROUNDS,

HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT, IN PARTICULAR ARTICLE 83,

HAVING HEARD THE VIEWS OF THE ADVOCATE GENERAL,

THE PRESIDENT OF THE FOURTH CHAMBER,

ACTING ON BEHALF OF THE PRESIDENT OF THE COURT,

BY WAY OF INTERIM DECISION,

HEREBY ORDERS :

( 1 ) PENDING DELIVERY OF JUDGMENT ON THE SUBSTANCE OF THE CASE THE OPERATION OF THE CONTESTED DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 16 FEBRUARY 1987 IS PARTLY SUSPENDED IN SO FAR AS THE MEASURE PROVIDING FOR THE WITHHOLDING OF 50% OF THE APPLICANT' S BASIC SALARY IS CONCERNED, WHICH SHALL APPLY ONLY TO THE EXTENT OF 25% OF HIS BASIC SALARY .

( 2 ) COSTS ARE RESERVED .

LUXEMBOURG, 13 APRIL 1987 .