Important legal notice

61986C0175

European Court reports 1988 Page 01891

Opinion of the Advocate-General

Mr President, Members of the Court, 1 . This Opinion relates to two actions in which Mr M ., a former employee of the Council of the European Communities, contests the measure adopted by the Secretary-General of that institution imposing upon him the disciplinary measure of removal from his post . The applicant seeks : ( a ) primarily, annulment of the measure and discontinuance of the disciplinary proceedings; ( b ) in the alternative, suspension of the measure until his defence submissions have been considered; and ( c ) in the further alternative, replacement of the penalty by that suggested in the opinion of the Disciplinary Board .

The facts are as follows . Mr M . was engaged by the Council on 1 July 1982 as a lawyer-linguist in Grade L/A 7 . At that time he filled in forms and produced documents which showed : ( a ) that he was married; ( b ) that he had two dependent children; and ( c ) that his wife did not receive family allowances from her employer . The annual information sheets which Mr M . completed for 1983 and 1984 gave the same details . It was therefore on the basis of those documents that the administration calculated and paid to the applicant the various allowances envisaged for married officials with dependent children .

In June and July 1985, however, there came to the Council' s notice : ( a ) a divorce decree between Mr M . and his wife delivered on 14 November 1981 by the Haarlem court, which was entered in the records of civil status of the municipality of Haarlem on 28 April 1982; ( b ) a judgment delivered on 8 July 1982 whereby the same court entrusted the children to their mother; ( c ) the fact that the Raad van Arbeid ( Labour Council ), Haarlem, had paid family allowances to his wife for both the dependent children until 1 October 1982 and for the younger daughter from 1 July 1984; and ( d ) various debts which Mr M . had contracted, and not discharged, in Belgium and the Netherlands . Because of the latter fact :

( 1 ) his immediate superior had sent a written warning to him by memorandum of 27 September 1983;

( 2 ) he had been the subject of several judgments by default;

( 3 ) his creditors had submitted requests to the Council for attachment of his salary in order to secure the payment of more than BFR 1 350 000 .

Having regard to those circumstances, the Secretary-General of the Council, as appointing authority, sent a memorandum to Mr M . on 28 October 1985 containing a number of charges against him and indicating the intention to grant him a hearing on 10 January 1986 . The hearing was postponed until 16 January at Mr M .' s request, on the ground that he wished to be represented by a lawyer; but he attended the meeting alone and refused to give any explanation regarding the matters of which he was accused . On the contrary, he complained that the terms used in the note of 20 October and, in particular, the opening passage "J' ai été informé que depuis votre entrée en fonctions ... vous avez gravement et volontairement manqué aux obligations auxquelles vous êtes tenu en vertu du Statut", were prejudicial to his right to a fair hearing in so far as they anticipated the result of the disciplinary proceedings .

At that stage ( on 4 March 1986 ), the appointing authority referred the matter to the Disciplinary Board, forwarding to it a report which described the alleged misconduct and the surrounding circumstances . The report was sent to Mr M . three days later . On the same day - 4 March - the membership of the Board was decided by the drawing of lots and on 11 March the procedure was repeated to replace a member who was unable to act and another to whom Mr M . objected .

The Board held two meetings . During the first ( 25 March 1986 ) the preliminary formalities were completed and the rapporteur was chosen . The sitting at which the merits of the case were to be considered was fixed for 11 April and Mr M . was requested, by memorandum of 26 March, to remain in his office in case the Board wished to call him . However, on 4 April Mr M . informed the chairman of the Board that on the 11th he would be on holiday on the Côte d' Azur; nevertheless, he stated that he would return to Brussels if the protest action taken by the Staff Committee, which had decided to suspend the participation of its members on joint committees, were to be called off . The chairman then postponed the meeting until 16 May; but, notwithstanding his being requested to do so on numerous occasions, the official - who inter alia had not given any written response to the charges against him - refused to attend that meeting, on the ground that the period of one month, within which, under the first paragraph of Article 7 of Annex IX to the Staff Regulations, the Board is obliged to forward its opinion to the appointing authority, had expired .

In the opinion which was submitted on 16 May, the Board, after noting that the official had "deliberately deceived" the administration as to his family status by submitting "a number of false declarations seeking to obtain benefits to which he was not entitled", stated that such "repeated actions constitute a failure to comply with the duty of moral integrity imposed on all officials ". However, notwithstanding the seriousness of the infringement, the Board considered that it was appropriate to offer Mr M . an opportunity to redeem himself and proposed that he should be demoted to Grade L/A 8, Step 2 .

After hearing Mr M . once more on 30 May 1986 and informing the chairman of the Board on 4 June of the reasons which prompted him to depart from the opinion, on 13 June 1986 the Secretary General of the Council issued Decision No 528/86 imposing upon the official the disciplinary measure of removal from his post with effect from 16 September 1986 .

The decision makes reference to the second meeting between Mr M . and the appointing authority . It states that the official gave no explanation regarding the charges against him and expressed no view on the Board' s opinion . On the contrary, adopting the same approach as at the meeting of 16 January, he stated that his right to a fair hearing had been prejudiced and that in addition to that breach of his rights there were a number of irregularities, of which he did not give specific details, in the conduct of the Disciplinary Board .

As regards the substance, it had, according to the decision, been clearly and undeniably established that Mr M .: ( a ) had made false declarations concerning his civil status; ( b ) had concealed from the administration the receipt of family allowances from another source, thus failing to fulfil the obligation laid down in Article 67 ( 2 ) of the Staff Regulations; and ( c ) had on numerous occasions, contrary to the second sentence of the first paragraph of Article 23 of the Staff Regulations, failed to fulfil his private obligations . In addition to being in breach of those provisions, such conduct constituted a serious and deliberate breach of the duty to abstain from any action which might reflect on his position as an official ( Articles 11 and 12 of the Staff Regulations ).

In particular - the decision continued - the repeated false declarations made by the official as to his civil status on recruitment showed that he lacked the integrity required by Article 27 of the Staff Regulations and was accordingly unfit to hold any post in the European Community public service . In the light of that fact, of the aggravating circumstance that the duties referred to in Article 67 ( 2 ) and the first paragraph of Article 23 were of a "fundamental" nature, and the fact that at no time during the procedure did the official claim that there were mitigating circumstances of any kind, the possibility of his redeeming himself, referred to by the Disciplinary Board, seemed "purely theoretical ". The appointing authority therefore considered that, having regard to the importance of the facts, the measure suggested in the opinion was not a condign penalty and decided to remove Mr M . from his post .

It should also be pointed out that, in the confidential memorandum sent on 4 June 1986 by the Secretary-General of the Council to the chairman of the Disciplinary Board, the reasons for which the appointing authority considered it impossible to comply with the opinion become even clearer . They relate above all to the seriousness of Mr M .' s transgressions and to the fact that, rather than explaining his conduct, he sought to protect himself by recourse to procedural quibbles and, in the second place, to the fact that the Disciplinary Board had not called attention to any mitigating circumstances or any cause for hoping that the official might redeem himself .

On 14 June 1986, Mr M . reacted to the measure ( a ) by submitting a complaint through official channels; ( b ) by lodging an application to the Court which was received at the Registry on 16 June ( Case 175/86 ); and ( c ) by a separate document, seeking suspension of the measure . Moreover, by an application received on 5 August 1986 ( Case 209/86 ), the official brought a second action against the same decision, relating in particular to the memorandum of 4 June 1986 .

By order of 5 September 1986 the President of the Second Chamber of the Court dismissed the application for suspension of the operation of the contested measure . Similarly, the appointing authority, by decision of 8 September 1986, rejected the complaint of 14 June and a subsequent complaint lodged by Mr M . on 29 July .

In Case 175/86 the Council has raised an objection of inadmissibility regarding the claim made by Mr M . in the further alternative, by which he seeks amendment of the decision regarding the nature of the penalty . Referring to the judgment of 30 May 1973 in Case 46/72, De Greef v Commission (( 1973 )) ECR 543, and the Order of 5 September 1986, the Council states that in disciplinary matters the Court may annul the contested measure but it may not substitute its own appraisal of the facts for that of the appointing authority . In response, the applicant states that the case is of a pecuniary nature because it relates to his means of subsistence and the Court therefore has full jurisdiction .

The objection is well founded . It is true that, around 25 years ago, the Court attributed a pecuniary character to a dispute regarding dismissal as a disciplinary measure and accordingly adopted the approach advocated by Mr M . ( judgment of 4 July 1963 in Case 32/62 Alvis v Council (( 1963 )) ECR 97, at p . 55 ). However, the subsequent decisions are all consistent in stating that, once the facts alleged by the appointing authority regarding the official' s conduct are established, the Court must limit itself to considering whether the decision is vitiated by manifest error, by acts ultra vires or by misuse of power ( judgments of 4 February 1970 in Case 13/69 Van Eick v Commission (( 1970 )) ECR 3, paragraphs 23 to 26; of 30 May 1973 De Greef, supra, paragraphs 45 to 47; and of 29 January 1985, Case 228/83 F . v Commission (( 1985 )) ECR 275, paragraph 34 ).

In Case 209/86, on the other hand, the Council contends that the whole application is inadmissible, in so far as its subject-matter is identical to that of Case 175/86, except as regards the request for production of the memorandum of 4 June 1986 mentioned earlier . The fact remains, however, according to the Council, that that request is merely a claim incidental to a measure of inquiry, provided for expressly by Article 45 of the Rules of Procedure and is not separable from the first action; by bringing a new action to pursue that claim, Mr M . is conducting his case in a manner which is regarded as vexatious by Article 69 ( 3 ) of those rules and gives rise to additional expenses which it would be improper to impose upon the Council . In reply, Mr M . states that an applicant is entitled to supplement his application by putting forward new arguments provided that he does so within the time-limit for bringing an action .

Unlike the previous one, this objection cannot be upheld . What the Council is objecting to constitutes a mutatio in amplius of the proceedings or, rather, of the subject-matter thereof, brought about by the submission of "reasons" which were not put forward initially; and no system of administrative justice exists which does not regard this as permissible in certain circumstances . In other words, the applicant may add to his first application by making additional submissions or may even lodge a second application, if the period for challenging the measure against which the action was brought has not yet expired ( see Sandulli, Il giudizio davanti al Consiglio di Stato, Naples, 1964, pp . 354-355; Chapus, Droit du contentieux administratif, Paris, 1982, pp.247-248 ).

The submissions contained in Mr M .' s two applications are numerous and varied, but may in essence be reduced to the following : ( a ) infringement of his right to a fair hearing; ( b ) inadequate statement of the reasons on which the decision was based; ( c ) manifest errors in the appraisal of the facts . The first submission comprises three criticisms : ( a ) the appointing authority did not respect the principle of impartiality; ( b ) the applicant had only 15 days in which to lodge written submissions in his defence; ( c ) the Disciplinary Board did not comply with the time-limit of one month for issuing its opinion .

Let us consider them in that order . In the first place, Mr M . complains of infringement of Article 6 of the Human Rights Convention of 4 November 1950 and more particularly of paragraph ( 1 ) thereof which provides that "in the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law ". The fact that Mr M . did not have an impartial judge is, he claims, proved by the position - which may be inferred from the opening passage of the memorandum of 28 October 1985 - adopted with respect to him by the Secretary-General of the Council at the commencement of the procedure .

That criticism must be rejected . It is appropriate to point out in the first place that Article 6 of the Convention does not apply to disciplinary proceedings which do not give rise to the loss of a civil right, such as the right to exercise a liberal profession ( as held by the Court of Human Rights : Eur . Court HR Engel judgment of 8 June 1976, Series A No 22, pp . 33 to 35, paragraphs 80 to 83; Le Compte and Others, judgment of 23 June 1981, Series A, No 43, p . 19, paragraphs 41 and 42 ). More specifically, protection under that provision does not extend to disputes concerning recruitment to and removal from posts in national or international public service ( see the decisions of the Commission of Human Rights, Strasbourg, No 7274/76 of 8 March 1976, No 8496/79 of 8 October 1980, and No 11056/84 of 15 May 1986 .

Quite apart from that, it is to be noted that, under Article 87 of the Staff Regulations and Annex IX thereto, the appointing authority cannot commence disciplinary proceedings without first hearing the official concerned and that, to enable the official to justify his conduct, the appointing authority is obliged to inform him of the charges against him . Action taken in compliance with those rules ( and in this case it is beyond doubt that they were complied with ) is therefore consonant with principles of sound administration and, far from being prejudicial to the right to a fair hearing, safeguards the basis of that right . That right must then be positively guaranteed during the course of the procedure commenced subsequently .

That is not all . Let us suppose - without saying that such was the case - that when the Secretary-General of the Council informed the official of the charges against him he misapprehended the facts or used rash expressions . Irregularities of that kind could not in any event detract from the validity of a final decision which was shown to be based on factors reflecting the real situation and on correct assessments . Indeed, as was emphasized by Mr Advocate General Trabucchi in his Opinion in Case 46/72 De Greef supra at p . 562, "one of the functions of the disciplinary procedure is to ascertain the relevance and evaluate correctly the facts on which the competent authority has decided to commence proceedings ".

4 . In the second place, the applicant complains of infringement of the first paragraph of Article 4 of Annex IX to the Staff Regulations under which "the official charged shall have not less than 15 days from the date of receipt of the report initiating disciplinary proceedings to prepare his defence ". Mr M . refers to an oral notification made to him on 7 March 1986 by the chairman of the Disciplinary Board requesting him to produce written submissions, if he wished to do so, within a maximum of 15 days . By interpreting that provision of the Staff Regulations as if it said "produce" instead of "prepare", "written defence" rather than "defence" and "a maximum of 15 days" instead of "at least 15 days", the chairman thus purported to require Mr M . to defend himself in writing even before the expiry of the period laid down in the Staff Regulations and prevented him from doing so once that period had elapsed .

This criticism is also unfounded . The documents before the Court show incontrovertibly that Mr M . was given a much longer period than that provided for by the Staff Regulations in which to submit his observations, namely the two months and more from 7 March 1986 ( the day on which the report was communicated to him ) to 16 May 1986 ( the day on which the Disciplinary Board met to consider his case ). The official denies this, stating that on 5 March the chairman of the Board wrote to him saying "vous disposerez, à compter du jour de la réception du rapport, de 15 jours pour préparer votre défense" and that in the minutes of the meeting of the Board held on 25 March paragraph 3 records the expiry of the "delai d' au moins quinze jours ". However, those statements, which are perhaps ill-considered or imprecise, are contradicted and, in any event, are superseded by a letter of 26 March in which the chairman reminded Mr M . of "les dispositions de l' article 4, deuxième alinéa de l' annexe IX, qui prévoient que vous pouvez présenter des observations écrites ou verbales ".

5 . In the third place, Mr M . claims that the time-limit laid down in Article 7 of Annex IX was not complied with . According to that provision, "After consideration of the documents submitted and ... any statements made ... by the official concerned ..., the Disciplinary Board shall ... deliver a reasoned opinion ... and transmit the opinion to the appointing authority and to the official concerned within one month of the date on which the matter was referred to the Board ".

This criticism is no more acceptable than the others . As correctly pointed out by the Council, the Court has on several occasions held that that time-limit is not mandatory . It is merely a rule of good administration and failure to comply with it, rather than attracting a measure of annulment ( judgments of 4 February 1970 Van Eick, supra, paragraphs 1 to 7; and 29 January 1985 F ., supra, paragraph 30 ), may only render the institution liable for any damage which the persons concerned may have suffered . And in this case, there is certainly no damage .

This criticism is without foundation . As I pointed out in paragraph 2 of this Opinion, the administrative authority' s discretion in disciplinary matters is very broad and the extent to which the Court verifies the lawfulness of action taken in that respect is correspondingly limited . Much light is thrown on this matter by the judgments to which I have referred several times, of 4 February 1970 Van Eick, paragraphs 23-26, of 30 May 1973 De Greef, paragraphs 45-47, and 29 January 1985 F, paragraph 34 . Once the facts are established - the Court held - "The evaluation of the seriousness of the shortcomings of which ... the applicant (( is found )) to be guilty and the choice of the disciplinary measure which appears ... most appropriate lie within the discretionary power of the appointing authority"; and the Court cannot "substitute its own assessment for that of the authority in question, except in a case of a clearly excessive measure or of an abuse of power ".

Mr M . does not allege such transgressions; on the contrary, as I have said, he asks the Court to consider the statement of the reasons on which the measure was based . But the results of such an inquiry certainly cannot help his case . As we have seen, in the first place the appointing authority emphasizes the intrinsic seriousness of the circumstances . There is no doubt whatsoever that the false statements made by Mr M . regarding his civil status - conduct which the Disciplinary Board likewise severely condemned - detract from the trust which characterizes the relationship between the administration and its officials; it is therefore reasonable to conclude from such conduct that the official is not fit to hold a post in the Community public service .

In the second place, the decision sets out a number of considerations regarding Mr M .' s failure to fulfil his private obligations, a matter which the Disciplinary Board glossed over even though it appears in the report submitted to it by the appointing authority . In that connection I would point out that, for a Community official, the fact of not paying his debts in due time, of being the subject of judgments by default and creating a situation where his employers were requested to attach part of his salary is manifestly at variance with the official' s obligation to conduct himself, even away from the workplace, in a manner consonant with the dignity of his office and in any event in such a way as not to detract from the prestige of the administration ( for a similar view, see the judgment of the Administrative Court of the International Labour Organization of 6 October 1981 in the case of Wakley, paragraph 7 ).

Finally, the appointing authority explains its refusal to adopt the proposal of the Disciplinary Board by referring to the absence of any mitigating circumstances to be inferred from the official' s personal file or claimed by the official himself in the course of the procedure . Those arguments too appear to me to be persuasive and in any event are properly explained; I do not therefore consider that the decision is open to criticism regarding the statement of the reasons on which it is based or could be regarded as being disproportionate in relation to the charges .

7 . In his third submission, the applicant claims that the contested decision is vitiated by manifest errors . The incorrect statements and omissions attributed to him are, in his contention, ascribable not to bad faith but rather to ignorance . His wife, he says, did not inform him that the divorce had come through . Moreover, in divorce proceedings in the Netherlands the parties are not required to be present and the decree does not have to be served personally upon them or at their addresses - the proceedings are concluded merely by entering the decree in the records of civil status . In the same way, he never knew that he had been summoned to appear before the Haarlem court for proceedings concerning custody of his children . Moreover, Mr M . goes on to say, he always intended to settle his differences with his wife, so much so that, with that aim in view, he had rented a large house . He had been prompted to think that reconciliation might be possible by : ( a ) the application for permission to take special leave in Belgium submitted by his wife on 15 November 1982; ( b ) the guarantee which she had provided on the same date for a loan of over BFR 400 000 applied for by him; ( c ) the fact that he and his wife had become closer to each other at the end of 1982 and the beginning of 1983 . At that time, in fact, the family lived together in Brussels, at least during holidays and at weekends .

This criticism also lacks substance . The Council rightly points out that civil status is an objective fact and that feelings or hopes of reconciliation do not serve to change it . Moreover, it cannot be accepted that Mr M . had no notice of the divorce . From the records on the basis of which the Disciplinary Board and the appointing authority concluded that he was guilty of an offence, it is apparent that throughout the proceedings he was represented by a lawyer, and the latter would certainly not fail to keep him informed as to the progress and outcome of the proceedings . Moreover, it is established that in those proceedings and in the proceedings concerning custody of the children, Mr M . appeared personally before the Court . His failure to inform the institution employing him of his change of status until 8 August 1985 is therefore inexcusable .

Mr M . also seeks to rely upon the absence of bad faith with respect to his infringement of Article 67 ( 2 ). The Staff Regulations, he argues, provide for the same benefits for a married employee as for a divorced employee with a dependent child . He lived in Belgium with his younger daughter until July 1984 and it was only after that date that his wife began to receive family allowances in the Netherlands - but, as she herself acknowledged on 15 November 1986, without the applicant' s knowledge . It follows that, since the institution was obliged in any case to pay the allowances to one spouse or the other, the statements made by him were not, as far as he could determine, such as to cause it any loss .

What can be said of that argument? It seems to me to be weak because it overlooks the fact that Mr M . knew in any case that he was making false statements and that the relationship of trust between him and the Council was damaged precisely by his duplicity and not by the loss - of which he may or may not have been aware, but which, all in all, was not excessive ( around BFR 200 000 ) - which he caused the institution to suffer . It should be added that to have acted in good faith, if he was really unaware of the Netherlands allowances received by his wife, Mr M . should have sent her the allowances of the same kind received from the Council or should have asked the Council to pay them to her direct . The Council also has documentary evidence of the fact that Mr M . received sums to which he knew he was not entitled, such as a number of reimbursements for travel expenses incurred by his ex-wife .

The leitmotiv of lack of bad faith is again invoked with respect to Mr M .' s private debts in so far as Mr M . claims that he waived his right to defend himself in the proceedings in which judgment was given against him . That argument is clearly absurd : that waiver merely shows that, even in his own eyes, Mr M .' s failure to pay his debts was wholly unjustified or, worse still, that Mr M . attaches no importance to his good name . Finally, there is likewise no basis for his claim that the appointing authority, although aware of his debts since 1983, decided not to take proceedings against him . The fact is that, by a memorandum dated 27 September 1983, Mr M .' s immediate superior proposed to apply to him a minor disciplinary measure - but the document was not forwarded to the appointing authority and for that reason the matter went no further .

8 . In the light of the foregoing considerations I suggest that the Court should dismiss the actions brought on 16 July and 5 August 1986 by Mr M . against the Council of the European Communities and, in accordance with Article 70 of the Rules of Procedure, should order the parties to bear their own costs .

(*) Translated from the Italian .