Avis juridique important

61966J0003

European Court reports French edition Page 00633 Dutch edition Page 00632 German edition Page 00654 Italian edition Page 00596 English special edition Page 00437 Danish special edition Page 00317 Greek special edition Page 00463 Portuguese special edition Page 00515

Summary

1 . SINCE THE VARIOUS STEPS COMPRISING THE PROCEDURE FOR RETIRING AN OFFICIAL FORM A SINGLE ENTITY, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING THE RETIREMENT DECISION, THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO IT . A SUBMISSION OF INADMISSIBILITY ON THE GROUND THAT AN APPEAL AGAINST THESE STEPS WAS OUT OF TIME IS THEREFORE INADMISSIBLE .

2 . A DECISION TO RETIRE AN OFFICIAL MUST BE MADE IN WRITING .

3 . THE GUARANTEES CONFERRED BY THE STAFF REGULATIONS WITH REGARD TO RETIRING AN OFFICIAL MUST NOT BE INTERPRETED AS MEANING THAT IT IS POSSIBLE FOR THE PERSON CONCERNED TO OBJECT TO THE FORMATION OF AN INVALIDITY COMMITTEE, PARTICULARLY BY REFUSING TO APPOINT A DOCTOR OF HIS OWN CHOICE . IT FOLLOWS FROM THE FUNDAMENTAL DUTY OF LOYALTY AND CO-OPERATION WHICH ALL OFFICIALS OWE TO THE AUTHORITY TO WHICH THEY BELONG THAT THE POWER TO APPOINT A DOCTOR AT THE SAME TIME CONSTITUTES A DUTY . THE ADMINISTRATION HAS THE POWER, IF NECESSARY, TO REMEDY THE FAILURE OF THE PERSON CONCERNED TO APPOINT A DOCTOR IN ORDER TO ENSURE THE SETTING UP AND FUNCTIONING OF AN INVALIDITY COMMITTEE, PROVIDED THAT ANY ELEMENT OF AN ARBITRARY NATURE IS AVOIDED AND THAT THE OFFICIAL'S INTERESTS ARE NOT UNNECESSARILY HARMED .

Parties

IN CASE 3/66 CESARE ALFIERI, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT 81 RUE D' ANVERS, LUXEMBOURG, ASSISTED BY ANDRE ELVINGER, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ANDRE ELVINGER, 84 GRAND RUE, APPLICANT, V EUROPEAN PARLIAMENT, 19 RUE BEAUMONT, LUXEMBOURG, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN, 22 COTE D' EICH, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT IN PARTICULAR OF THE DECISION OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT OF 13 NOVEMBER 1965, RETIRING THE APPLICANT,

Grounds

I - ADMISSIBILITY 1 . ALTHOUGH THE DEFENDANT DECLARES THAT IT RELIES ON THE WISDOM OF THE COURT WITH REGARD TO THE ADMISSIBILITY OF THE APPLICATION OR OF CERTAIN OF ITS HEADS, IT CONSIDERS THAT IT IS INADMISSIBLE ON TWO GROUNDS . ( A ) WITH REGARD TO THE COMPLAINTS AGAINST THE STEPS PRIOR TO THE RETIREMENT DECISION, THE APPLICATION WAS FILED AFTER THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 91 OF BOTH THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC AND THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC ( HEREINAFTER REFERRED TO AS ' THE STAFF REGULATIONS '). SINCE THE RETIREMENT PROCEDURE CONSISTS OF SEVERAL INTERDEPENDENT STEPS, THIS ARGUMENT WOULD BE TANTAMOUNT TO REQUIRING THE PERSONS CONCERNED TO BRING AS MANY ACTIONS AS THE NUMBER OF ACTS CAPABLE OF ADVERSELY AFFECTING THEM CONTAINED IN THE SAID PROCEDURE . HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE DIFFERENT STEPS COMPRISING THIS PROCEDURE, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING THE RETIREMENT DECISION THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO IT . IT FOLLOWS THAT THE COMPLAINTS MADE BY THE APPLICANT AGAINST THE APPOINTMENT OF THE MEMBERS OF THE INVALIDITY COMMITTEE TOGETHER WITH ITS COMPOSITION AND CONDUCT MAY BE TAKEN INTO CONSIDERATION IN DECIDING WHETHER THE RETIREMENT WAS VALID, THIS BEING THE MAIN ISSUE INVOLVED IN THE APPLICATION . ( B ) ACCORDING TO THE DEFENDANT, THE APPLICATION IS ' CONTRARY TO THE PRINCIPLE PROHIBITING THE IMPROPER EXERCISE OF RIGHTS '. IN FACT, SINCE THE APPLICANT REFUSED TO APPOINT A DOCTOR, IN ACCORDANCE WITH ARTICLE 7 OF ANNEX II TO THE STAFF REGULATIONS, THE DEFENDANT ALLEGES THAT IT IS ' INADMISSIBLE TO OBJECT TO THE PROCEDURE ADOPTED BY THE AUTHORITY TO ARRIVE, NOTWITHSTANDING HIS OBSTRUCTION, AT THE FINDING OF HIS INVALIDITY BY THE INVALIDITY COMMITTEE '.

II - THE SUBSTANCE OF THE CASE 1 . QUESTION TO BE RAISED BY THE COURT OF ITS OWN MOTION THE CONTESTED DECISION IS LIMITED TO PROVIDING THAT THE APPLICANT ' SHALL BE ENTITLED TO THE INVALIDITY PENSION ' WITHOUT EXPRESSLY RETIRING HIM . LOGICALLY, RETIREMENT PRECEDES THE GRANT OF AN INVALIDITY PENSION AND IS PROVIDED FOR IN ARTICLE 53 OF THE STAFF REGULATIONS . FURTHERMORE, IT ALTERS THE POSITION OF THE PERSON CONCERNED SO SERIOUSLY THAT THE VIEW MUST BE TAKEN, DESPITE THE SILENCE OF THE REGULATIONS, THAT IT IS REQUIRED TO BE MADE IN WRITING . CONSEQUENTLY, THE CONTESTED DECISION IS IRREGULAR IN THIS RESPECT . HOWEVER, SINCE THE DEFENDANT'S INTENTIONS ARE CLEAR IN THIS CASE, THIS IRREGULARITY IS NOT OF SUCH A NATURE AS TO ENTAIL THE ANNULMENT OF THE SAID DECISION .

2 . THE APPLICANT'S FIRST COMPLAINT THE APPLICANT CLAIMS THAT THERE IS NO PROVISION CONFERRING ON THE PRESIDENT OF THE MEDICAL COUNCIL THE POWER TO APPOINT A DOCTOR, IN THIS INSTANCE DR STEIN, AS A MEMBER OF THE INVALIDITY COMMITTEE, AND THAT SUCH AN APPOINTMENT CAN BE NO SUBSTITUTE FOR AN APPOINTMENT BY THE OFFICIAL CONCERNED . CONSEQUENTLY, BOTH THE APPOINTMENT OF DR PIERRE STEIN AND THAT OF DR ROGER WELTER, IN WHICH DR STEIN PARTICIPATED, ARE IRREGULAR . MOREOVER, THE STEPS IN QUESTION ARE ALSO CLAIMED TO BE IRREGULAR BECAUSE THESE TWO PERSONS WERE APPOINTED AGAINST THE APPLICANT'S WISHES . THEY WERE HIS FORMER PRIVATE DOCTORS AND CONSEQUENTLY THEIR PARTICIPATION IN THE PROCEEDINGS OF THE COMMITTEE COULD ONLY CONSTITUTE A BREACH OF PROFESSIONAL SECRECY . IT FOLLOWS FROM THE COMBINED PROVISIONS OF ARTICLES 53 AND 78 OF THE STAFF REGULATIONS THAT RETIREMENT CAN ONLY TAKE PLACE WHEN THE INVALIDITY COMMITTEE FINDS THAT THE PERSON CONCERNED SUFFERS FROM TOTAL PERMANENT INVALIDITY . UNDER THE TERMS OF ARTICLE 7 OF ANNEX II TO THE STAFF REGULATIONS, THE INVALIDITY COMMITTEE SHALL CONSIST OF THREE DOCTORS, THE FIRST AND SECOND OF THESE BEING APPOINTED BY THE PRESIDENT OF THE COURT OF JUSTICE AND BY THE PERSON CONCERNED RESPECTIVELY, WHILE THE THIRD SHALL BE CHOSEN BY AGREEMENT BETWEEN THE FIRST TWO DOCTORS .

Decision on costs

THE APPLICANT HAS FAILED IN HIS APPLICATION . UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . UNDER ARTICLE 70 OF THE SAID RULES, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY : 1 . DISMISSES APPLICATION 3/66 AS UNFOUNDED, WITH THE EXCEPTION OF THE CONCLUSIONS FOR THE AWARD OF COMPENSATION WHICH ARE DISMISSED AS INADMISSIBLE . 2 . THE APPLICANT IS ORDERED TO PAY THE COSTS OF THE PROCEEDINGS, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .