Avis juridique important

61983O0122

European Court reports 1983 Page 02151

Parties

IN CASE 122/83 R

HENRI DE COMPTE , FORMER HEAD OF THE TREASURY AND ACCOUNTS DIVISION AND AN ACCOUNTING OFFICER AT THE EUROPEAN PARLIAMENT , REPRESENTED BY GASTON VOGEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 5 RUE C.-M.-SPOO ,

APPLICANT ,

EUROPEAN PARLIAMENT , REPRESENTED BY M . PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION TO SUSPEND DISCIPLINARY PROCEEDINGS BROUGHT AGAINST THE APPLICANT ,

Grounds

ADMISSIBILITY

THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES CALLS FOR CERTAIN PRELIMINARY OBSERVATIONS REGARDING ITS ADMISSIBILITY . IT SEEMS UNLIKELY THAT THE MEMORANDUM OF 7 JUNE 1983 , BY WHICH THE PRESIDENT OF THE PARLIAMENT DISMISSED THE APPLICANT ' S CLAIM FOR SUSPENSION OF THE DISCIPLINARY PROCEEDINGS , MAY BE REGARDED AS A MEASURE WHICH MAY BE CONTESTED IN ACCORDANCE WITH ARTICLE 91 OF THE STAFF REGULATIONS . THAT MEMORANDUM FORMS PART OF DISCIPLINARY PROCEEDINGS BROUGHT BY THE PARLIAMENT AND IT IS DOUBTFUL WHETHER THE COURT MAY INTERVENE IN THE CONDUCT OF THOSE PROCEEDINGS BEFORE A DEFINITIVE DECISION IS REACHED ON THE SUBSTANCE OF THE CASE . IN THAT REGARD , IT IS APPROPRIATE TO REFER TO THE ORDER OF THE PRESIDENT OF THE COURT OF 7 JULY 1981 AND TO THE JUDGMENT OF THE COURT OF 11 NOVEMBER 1981 IN JOINED CASES 60 AND 190/81 IBM V COMMISSION (( 1981 ) ECR 1857 AND 2639 ) WHICH PRESENT CERTAIN SIMILARITIES WITH THE PRESENT CASE FROM THE PROCEDURAL POINT OF VIEW , NOTWITHSTANDING THE FACT THAT THE SUBJECT-MATTER WAS DIFFERENT .

HOWEVER , IN VIEW OF THE FACT THAT THE SOLUTION TO THIS PROBLEM IS BOUND UP WITH THE ASSESSMENT OF THE ADMISSIBILITY OF THE MAIN ACTION AND THAT THE PRESENT CASE CAN BE DEALT WITH ON THE BASIS OF OTHER CONSIDERATIONS , IT DOES NOT APPEAR NECESSARY TO DEAL WITH THE QUESTION OF ADMISSIBILITY IN ADVANCE .

THE REQUESTED SUSPENSION

UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , IT IS INCUMBENT ON THE APPLICANT TO STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

IN THE CIRCUMSTANCES THE URGENCY CANNOT BE DENIED SINCE THE APPLICANT HAS BEEN CALLED UPON TO APPEAR BEFORE THE DISCIPLINARY BOARD SHORTLY AND IT IS IN HIS INTEREST TO CLARIFY HIS LEGAL POSITION BEFORE THAT DATE .

IT IS THEREFORE NECESSARY TO EXAMINE WHETHER , PRIMA FACIE , THE APPLICATION FOR SUSPENSION OF THE DISCIPLINARY PROCEEDINGS APPEARS TO BE JUSTIFIED .

THE APPLICANT STATES , ON THE ONE HAND , THAT THE RIGHTS OF THE DEFENCE HAVE BEEN UNLAWFULLY OBSTRUCTED IN SO FAR AS THE PARLIAMENT HAS FORBIDDEN HIM ACCESS TO THE ACCOUNTS DIVISION AND HAS INITIATED DISCIPLINARY PROCEEDINGS BEFORE THE RESULTS OF THE ADMINISTRATIVE INQUIRY ARE KNOWN AND , ON THE OTHER HAND , THAT THE DISCIPLINARY PROCEEDINGS HAVE NO LEGAL BASIS SINCE THEY ARE BASED ON A REGULATION WHICH , HAVING BEEN REPEALED , IS NON-EXISTENT .

IN THAT REGARD IT IS TO BE NOTED THAT THE APPLICANT WILL BE ABLE TO PUT HIS DEFENCE TO THE DISCIPLINARY BOARD AND THAT , AT THIS STAGE , IT IS FOR THE BOARD TO CONSIDER WHETHER IT IS RELEVANT AND WELL FOUNDED . MOREOVER , AN APPEAL AGAINST ANY DECISION WHICH MAY BE ADOPTED ON COMPLETION OF THE DISCIPLINARY PROCEEDINGS MAY BE MADE TO THIS COURT IN ACCORDANCE WITH THE PROVISIONS OF THE STAFF REGULATIONS .

IT THEREFORE APPEARS THAT THE RIGHTS OF THE DEFENCE ARE SAFEGUARDED BECAUSE THE APPLICANT ENJOYS SUFFICIENT LEGAL PROTECTION WITHIN THE FRAMEWORK OF THE DISCIPLINARY PROCEDURE PROVIDED FOR BY THE STAFF REGULATIONS AND THAT THERE IS THEREFORE NO JUSTIFICATION FOR THE INTERIM MEASURE FOR WHICH HE HAS APPLIED .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT OF THE SECOND CHAMBER , ACTING AS PRESIDENT OF THE COURT PURSUANT TO ARTICLE 96 ( 1 ), THE SECOND PARAGRAPH OF ARTICLE 85 AND THE SECOND PARAGRAPH OF ARTICLE 11 OF THE RULES OF PROCEDURE ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION FOR SUSPENSION OF THE DISCIPLINARY PROCEEDINGS INITIATED BY THE EUROPEAN PARLIAMENT AGAINST THE APPLICANT IS DISMISSED ;