Avis juridique important

61970J0057

European Court reports 1971 Page 00613 Greek special edition Page 00879

Parties

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IN CASE 57/70 AUGUST JOSEF VAN EICK, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT AMSTERDAM, REPRESENTED BY B . HAMBURGER, ADVOCATE OF THE ROTTERDAM BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE KINGDOM OF THE NETHERLANDS, 5 RUE C-M . SPOO, APPLICANT, V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . H . J . BOURGEOIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF 14 JULY 1970 BY WHICH THE COMMISSION REFUSED A REQUEST BY THE APPLICANT FOR " THE RESTORATION TO HIM OF HIS RIGHT TO BE HEARD IN ACCORDANCE WITH THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS, FOR COMPENSATION FOR THE DECISION OF 18 DECEMBER 1968 TO REMOVE HIM FROM HIS POST AND FOR REDRESS FOR THE MATERIAL CONSEQUENCES OF THE SAID DECISION,

Grounds

1 THE APPEAL IS FOR THE ANNULMENT OF THE DECISION OF 14 JULY 1970 BY WHICH THE COMMISSION REJECTED THE APPLICANT' S REQUEST OF 12 MAY 1970 FOR THE REVOCATION OF THE DECISION OF 18 DECEMBER 1968 TO REMOVE HIM FROM HIS POST AND FOR THE RESTORATION TO HIM OF HIS RIGHT TO BE HEARD UNDER THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS OF OFFICIALS IN THE DISCIPLINARY PROCEEDINGS INITIATED AGAINST HIM .

2 IT SHOULD BE RECALLED THAT A FIRST DECISION ISSUED ON 4 JULY 1967 REMOVING THE APPLICANT FROM HIS POST WAS ANNULLED BY THE JUDGMENT OF THE COURT OF 11 JULY 1968 FOR THE SOLE REASON THAT THE COMMISSION, AS THE APPOINTING AUTHORITY, HAD NOT ITSELF, IN ACCORDANCE WITH THE THIRD PARAGRAPH OF ARTICLE 7 OF ANNEX IX TO THE STAFF REGULATIONS, HEARD THE APPLICANT, BUT HAD DELEGATED THIS AUTHORITY TO ONE OF ITS OFFICIALS .

3 FOLLOWING THIS JUDGMENT THE APPLICANT WAS SUMMONED TO APPEAR AT HIS HEARING BEFORE THREE MEMBERS OF THE COMMISSION BUT FAILED TO COMPLY WITH THE SUMMONS .

4 HE WAS REMOVED FROM HIS POST BY DECISION OF 18 DECEMBER 1968 .

5 AN APPLICATION FOR THE ANNULMENT OF THE SAID DECISION TO REMOVE HIM FROM HIS POST WAS DISMISSED BY THE COURT' S JUDGMENT OF 4 FEBRUARY 1970 .

ADMISSIBILITY

6 BY REASON OF THE FORCE OF RES JUDICATA IT IS NOT POSSIBLE TO CALL IN ISSUE AGAIN A PART OF THE DISCIPLINARY PROCEEDINGS WHICH LED TO THE DECISION OF 18 DECEMBER TO REMOVE HIM FROM HIS POST, WHICH DECISION WAS CONFIRMED BY THE JUDGMENT OF 4 FEBRUARY 1970 .

7 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

Decision on costs

8-9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

10 ALTHOUGH UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE FORMER, THIS PROVISION MAKES AN EXCEPTION IN THE CASE OF COSTS REGARDED AS UNREASONABLY OR VEXATIOUSLY OCCASIONED WITHIN THE MEANING OF THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ).

11 IN VIEW OF THE APPLICANT' S CONDUCT DURING THE DISCIPLINARY PROCEEDINGS WHICH LED UP TO THE DECISION OF 18 DECEMBER 1968 TO REMOVE HIM FROM HIS POST AND OF THE CLEAR INADMISSIBILITY OF THE PRESENT APPLICATION, HIS ACTION MUST BE REGARDED AS AN ABUSE OF THE PROCESS OF THE COURT .

12 THE MITIGATING PROVISIONS OF ARTICLE 70 OF THE RULES OF PROCEDURE CANNOT BE EXTENDED TO AN ACTION BROUGHT IN THESE CIRCUMSTANCES .

13 ACCORDINGLY THE APPLICANT MUST BE ORDERED TO BEAR THE ENTIRE COSTS OF THE PROCEEDINGS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY : 1 . DISMISSES THE APPLICATION AS INADMISSIBLE; 2 . ORDERS THE APPLICANT TO BEAR THE ENTIRE COSTS OF THE PROCEEDINGS .