Avis juridique important

61976J0002

European Court reports 1976 Page 01975 Greek special edition Page 00745 Portuguese special edition Page 00809

Summary

THE INSTITUTIONS ENJOY A VERY EXTENSIVE POWER OF APPRAISAL WITH REGARD TO THE VALIDITY OF THE REASONS ADVANCED BY THE OFFICIAL OR SERVANT WISHING TO TAKE ADVANTAGE OF LEAVE ON PERSONAL GROUNDS AND TO THE COMPATIBILITY OF THE GRANT OF LEAVE WITH THE INTERESTS OF THE SERVICE . ALTHOUGH THE PRACTICE OF THE INSTITUTIONS INDICATES A WIDE RANGE OF REASONS FOR GARANTING LEAVE ON PERSONAL GROUNDS , IT SEEMS CERTAIN THAT SUCH LEAVE IS NOT THE APPROPRIATE MEANS OF DEALING WITH THE CASE OF AN OFFICIAL AGAINST WHOM CRIMINAL PROCEEDINGS HAVE BEEN INSTITUTED .

Parties

IN CASE 2/76 MARIA MASCETTI , AN OFFICIAL OF THE EURATOM JOINT NUCLEAR RESEARCH CENTRE , ISPRA , VARESE , RESIDING IN MONVALLE TURRO , VARESE , REPRESENTED BY ETTORE MACCAPANI , ADVOCATE OF THE VARESE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34 B/IV , RUE PHILIPPE II , APPLICANT , V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY SERGIO FABRO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , BATIMENT CFL , PLACE DE LA GARE , DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 11 AUGUST 1975 BY WHICH LEAVE ON PERSONAL GROUNDS WAS REFUSED ,

Grounds

1 THE APPLICATION IS FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 11 AUGUST 1975 REFUSING TO GRANT THE APPLICANT LEAVE ON PERSONAL GROUNDS .

2 IT IS COMMON GROUND BETWEEN THE PARTIES THAT THE APPLICANT , WHO IS AN ITALIAN NATIONAL EMPLOYED AS A PRINCIPAL SECRETARY AT THE JOINT NUCLEAR RESEARCH CENTRE AT ISPRA , VARESE , DID NOT CARRY OUT HER DUTIES AS FROM 18 NOVEMBER 1974 AND DID NOT PROVIDE AN EXPLANATION FOR THIS AT THE TIME .

BY A LETTER OF 9 JANUARY 1975 THE ADMINISTRATION OF THE CENTRE AT ISPRA NOTIFIED HER OF A DECISION WHEREBY , UNDER ARTICLE 60 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES ( ARTICLE 60 OF THE STAFF REGULATIONS OF OFFICIALS ) IT HAD SUSPENDED PAYMENT OF HER SALARY SINCE THE DURATION OF HER UNJUSTIFIED ABSENCE HAD EXCEEDED THE ANNUAL LEAVE TO WHICH SHE WAS ENTITLED .

3 BY A LETTER OF 30 JANUARY 1975 ETTORE MACCAPANI , AN ADVOCATE OF THE VARESE BAR , FORWARDED TO THE ADMINISTRATION OF THE CENTRE AT ISPRA AN APPLICATION , DATED 22 DECEMBER 1974 , WHEREBY THE APPLICANT SUBMITTED A REQUEST UNDER ARTICLE 91 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES ( ARTICLE 40 OF THE STAFF REGULATIONS OF OFFICIALS ) FOR UNPAID LEAVE OF ONE YEAR ON PERSONAL GROUNDS .

THIS REQUEST WAS BASED ON ' REASONS OF FORCE MAJEURE , THAT IS COURT PROCEEDINGS INSTITUTED AGAINST HER IN CONNEXION WITH AN OFFENCE ' OF A POLITICAL NATURE ' WHICH MADE IT IMPOSSIBLE FOR HER TO COME TO WORK .

IN THIS CONNEXION IT WAS EXPLAINED IN THE COURSE OF THE PROCEDURE THAT ON 14 DECEMBER 1974 THE EXAMINING JUDGE OF THE TRIBUNALE DI ROMA HAD ISSUED A WARRANT FOR THE ARREST OF THE APPLICANT BECAUSE OF HER PARTICIPATION IN A POLITICAL CONSPIRACY AND ARMED REBELLION AGAINST THE STATE .

4 BY A LETTER OF 20 FEBRUARY 1975 THE DIRECTOR OF THE CENTRE AT ISPRA NOTIFIED THE APPLICANT THAT HE COULD NOT GRANT HER REQUEST SINCE THE GROUND UPON WHICH SHE RELIED PROVIDED NO JUSTIFICATION WHATEVER FOR THE GRANT OF LEAVE ON PERSONAL GROUNDS .

BY A LETTER OF 6 MARCH 1975 RECORDED ON 16 APRIL THE APPLICANT , THROUGH HER LAWYER , LODGED A COMPLAINT AGAINST THIS DECISION WITH THE COMMISSION , UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .

BY A LETTER OF 1 OCTOBER 1975 THE COMMISSION NOTIFIED THE APPLICANT OF ITS DECISION OF 11 AUGUST 1975 WHEREBY IT CONFIRMED THE DECISION OF REFUSAL PREVIOUSLY TAKEN BY THE ADMINISTRATION OF THE CENTRE AT ISPRA AND STATED THAT IT AGREED WITH THE REASONS STATED IN THE LATTER DECISION .

THAT DECISION OF REFUSAL CONSTITUTES THE SUBJECT-MATTER OF THE APPLICATION .

5 UNDER ARTICLE 40 OF THE STAFF REGULATIONS , WHICH APPLIES TO THE APPLICANT UNDER ARTICLE 91 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES , ' AN OFFICIAL MAY , IN EXCEPTIONAL CIRCUMSTANCES AND AT HIS OWN REQUEST , BE GRANTED UNPAID LEAVE ON PERSONAL GROUNDS ' .

ALTHOUGH THIS POWER WAS CREATED IN THE INTEREST OF THE PERSONAL CONVENIENCE OF OFFICIALS AND SERVANTS IT IS NONE THE LESS TRUE THAT THE INSTITUTIONS ENJOY A VERY EXTENSIVE POWER OF APPRAISAL WITH REGARD BOTH TO THE VALIDITY OF THE REASONS ADVANCED BY THE OFFICIAL OR SERVANT WISHING TO TAKE ADVANTAGE OF THAT OPPORTUNITY AND TO THE COMPATIBILITY OF THE GRANT OF LEAVE WITH THE INTERESTS OF THE SERVICE .

6 ALTHOUGH THE PRACTICE OF THE INSTITUTIONS INDICATES A WIDE RANGE OF REASONS FOR GRANTING LEAVE ON PERSONAL GROUNDS , SUCH AS FAMILY REASONS , THE PURSUIT OF FURTHER EDUCATION OR TRAINING OR THE RESUMPTION OF OTHER OCCUPATIONS , IT SEEMS CERTAIN THAT LEAVE ON PERSONAL GROUNDS IS NOT THE APPROPRIATE MEANS OF DEALING WITH THE CASE OF AN OFFICIAL AGAINST WHOM CRIMINAL PROCEEDINGS HAVE BEEN INSTITUTED .

IT THUS APPEARS THAT THE COMMISSION HAS CORRECTLY EXERCISED IN RELATION TO THE APPLICANT THE POWER OF APPRAISAL RESERVED TO IT BY ARTICLE 40 ( 1 ) OF THE STAFF REGULATIONS WITH REGARD TO LEAVE GRANTED ON PERSONAL GROUNDS .

THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

COSTS

7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO BEAR THE COSTS .

THE APPLICANT HAS FAILED IN HER SUBMISSIONS .

NEVERTHELESS , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS COMMENCED BY AN OFFICIAL OR OTHER SERVANT , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ) HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .