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THE APPLICATION FOR ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EAEC OF 5 FEBRUARY 1965, NOTIFIED ON 18 FEBRUARY 1965, REJECTING THE APPLICANT'S COMPLAINT CONCERNING TWO PREVIOUS DECISIONS TO SUSPEND AND TO TRANSFER HIM
A DISTINCTION MUST BE DRAWN WITH REGARD TO THE DECISION OF 5 FEBRUARY BETWEEN THE FACTORS RELATING TO SUSPENSION AND THOSE RELATING TO TRANSFER . IN SO FAR AS THIS DECISION CONCERNS THE DECISION OF 25 SEPTEMBER 1964 TO SUSPEND THE APPLICANT IT MUST BE DEEMED TO INCORPORATE THE STATEMENT OF REASONS GIVEN IN THE LATTER . SINCE A DECISION TO SUSPEND AN OFFICIAL IS AN ACT ADVERSELY AFFECTING HIM IT MUST, IN ACCORDANCE WITH ARTICLE 25, STATE THE REASONS ON WHICH IT IS BASED .
THIS STATEMENT OF REASONS MUST COMPLY WITH THE REQUIREMENTS OF THE FIRST PARAGRAPH OF ARTICLE 88 OF THE STAFF REGULATIONS WHICH DO NOT PERMIT THE APPOINTING AUTHORITY TO SUSPEND AN OFFICIAL UNLESS SERIOUS MISCONDUCT IS ALLEGED, WHETHER THIS AMOUNTS TO FAILURE TO CARRY OUT HIS OFFICIAL DUTIES OR TO A BREACH OF LAW .
THE DECISION OF 25 SEPTEMBER 1964 IS LIMITED TO A STATEMENT THAT ' THE INQUIRY CARRIED OUT HAS REVEALED IN MR GUTMANN'S RELATIONSHIPS WITH HIS STAFF AND IN THE GENERAL MANAGEMENT OF HIS DEPARTMENT, CONDUCT INCONSISTENT WITH HIS DUTIES AS HEAD OF A DIVISION ', AND THAT ' HE MUST BE SUSPENDED FROM HIS DUTIES IN ORDER TO ALLOW THESE FACTS TO BE ELUCIDATED '.
THIS BRIEF AND VAGUE STATEMENT OF REASONS CONTAINS NO PRECISE INDICATION CAPABLE OF AMOUNTING TO AN ALLEGATION OF SERIOUS MISCONDUCT . NOTHING THEREIN MAKES IT POSSIBLE TO DEDUCE THE NATURE AND GRAVITY OF THE ' CONDUCT ' DESCRIBED . THE COMPLAINTS CONCERNING ' MR GUTMANN'S RELATIONSHIPS WITH HIS STAFF ' ARE NOT EXPLAINED EVEN BRIEFLY IN SUCH A WAY AS TO ENABLE THE COURT TO CARRY OUT ITS REVIEW, IN PARTICULAR AS REGARDS THE DEGREE OF SERIOUSNESS OF THE MISCONDUCT .
EVEN IF THE APPLICANT WAS INFORMED ORALLY OF THE COMPLAINTS ALLEGED AGAINST HIM THIS CANNOT BE DEEMED TO SUPPLEMENT THE STATEMENT OF REASONS, SINCE THE COURT CANNOT TAKE IT INTO ACCOUNT IN ASSESSING THE CONSIDERATIONS BY WHICH THE ADMINISTRATION WAS GUIDED IN ITS ACTION .
ANY CONCERN ON THE PART OF THE ADMINISTRATION TO SAFEGUARD THE APPLICANT'S REPUTATION CANNOT JUSTIFY THE BREVITY OF THE DECISION, SINCE THE LATTER HAD IN ANY CASE TO BE TREATED AS CONFIDENTIAL .
IT IS THEREFORE APPROPRIATE TO ANNUL THE DECISION OF 5 FEBRUARY 1965 REJECTING THE APPLICANT'S COMPLAINT IN SO FAR AS IT CONFIRMS THE DECISION OF 25 SEPTEMBER 1964 SUSPENDING HIM, AND THERE IS NO NECESSITY TO EXAMINE THE OTHER GROUNDS PUT FORWARD BY THE APPLICANT .
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THE DECISION OF 5 FEBRUARY 1965 REJECTING HIS COMPLAINT HAS ALSO TO BE EXAMINED IN SO FAR AS IT CONFIRMS THE DECISION OF 9 DECEMBER 1964 TO TRANSFER HIM, OF WHICH HE WAS NOTIFIED ON 22 DECEMBER 1964 .
AS THE TRANSFER DECISION OF 9 DECEMBER 1964 WAS BASED ON THE INTERESTS OF THE SERVICE THERE WAS NO NEED TO STATE THE REASONS THEREFOR . IF SUCH A DECISION IS INDEED TAKEN ON THAT BASIS, IT CANNOT CONSTITUTE AN ACT ADVERSELY AFFECTING AN OFFICIAL AND FALLS WITHIN THE DISCRETIONARY POWERS OF THE ADMINISTRATION, WHICH MAY ARRANGE ITS DEPARTMENTS AND MOVE ITS STAFF AS REQUIRED FOR THE PERFORMANCE OF THE TASKS ASSIGNED TO IT .
ON THE OTHER HAND, SUCH A DECISION MAY AMOUNT TO A MISUSE OF POWERS IF IT APPEARS, ON THE BASIS OF OBJECTIVE, RELEVANT AND CONSISTENT FACTS, TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE STATED .
THE DOCUMENTS PRODUCED SHOW THAT AFTER VARIOUS IRREGULARITIES HAD BEEN FOUND IN THE APPLICANT'S CONDUCT HE WAS REPRIMANDED ON 3 JULY 1964 .
BY A DECISION OF THE DIRECTOR-GENERAL OF THE JNRC DATED 25 SEPTEMBER 1964 THE APPLICANT WAS SUSPENDED FROM DUTY, BANNED FROM THE CENTRE AND HIS OFFICE WAS SEALED OFF, ON THE GROUND THAT A FRESH INQUIRY HAD ' BROUGHT TO LIGHT ' IN MR GUTMANN'S RELATIONSHIP WITH HIS SUBORDINATES AND IN THE MANAGEMENT OF HIS DEPARTMENT CONDUCT INCONSISTENT WITH HIS DUTIES . APPROVING THIS STEP ON 30 SEPTEMBER 1964, THE COMMISSION ORDERED AN INQUIRY BASED ON CERTAIN IRREGULARITIES ' WHICH HAVE BEEN ESTABLISHED ' AND A ' COMPLAINT LODGED BY A HEAD OF DIVISION '.
AS A CONSEQUENCE OF THESE SERIOUS CHARGES, WHICH WERE STATED TO HAVE BEEN ' ESTABLISHED ', AND OF THE SPECIAL MEASURES, THE COMMISSION DECIDED ON 9 DECEMBER 1964 TO TRANSFER MR GUTMANN FROM ISPRA TO BRUSSELS ' IN THE INTERESTS OF THE SERVICE ' AND PUBLISHED ON THE SAME DAY THE VACANCY NOTICE FOR A POST OF PRINCIPAL ADMINISTRATOR IN THE LIBRARY .
HOWEVER, DESPITE THE STATEMENT ON 3 JULY 1964 TO THE EFFECT THAT THE POSSIBILITY OF A TRANSFER WOULD DEPEND ON ' FRESH LAPSES ' BEING ' FOUND TO HAVE OCCURRED ' ( LETTER FROM THE DEPUTY - DIRECTOR OF THE JNRC TO THE DIRECTOR-GENERAL, MR FUNCK ) AND THE STATEMENT OF 30 SEPTEMBER 1964 TO THE EFFECT THAT ' CERTAIN IRREGULARITIES ' HAD BEEN ' ESTABLISHED ', THIS COMPLAINT WAS NO LONGER QUOTED IN SUPPORT OF THE TRANSFER WHEN MR FUNCK SENT THE APPLICANT THE LETTER OF 5 FEBRUARY 1965 INFORMING HIM OF THE GROUNDS FOR THE COMMISSION'S REJECTION OF HIS COMPLAINTS AGAINST THE DECISION TO TRANSFER HIM .
THE APPLICANT WAS IN FACT TOLD THAT HIS COMPLAINT HAD BEEN REJECTED ON THE GROUND THAT, FIRST, SINCE JULY 1964 THE COMMISSION ' HAD BEEN CONSIDERING THE POSSIBILITY OF A TRANSFER ', AND SECONDLY, THAT THE DECISION REPRIMANDING HIM ' HAD CONTRIBUTED TO UNDERMINING YOUR REPUTATION ' AS HEAD OF DIVISION, AND FINALLY THAT ' THE NATURE OF ( YOUR ) RELATIONSHIP WITH ( YOUR ) STAFF WAS MAKING THE ATMOSPHERE IN ( YOUR ) DEPARTMENT INTOLERABLE '. SO, HAVING FIRST DECIDED TO TREAT THE TRANSFER AS NOT ARISING OUT OF THE REPRIMAND, THE COMMISSION THEN PROCEEDED TO ADOPT THE MEASURE IN CONNEXION WITH THE REPRIMAND .
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WHILST MAKING THE ADOPTION OF THIS MEASURE SUBJECT TO A FINDING OF FRESH MISCONDUCT, IT SEEMS LATER TO HAVE SET THIS CONDITION ASIDE . INSTEAD IT RELIED ON A COMPLAINT WITH REGARD TO THE APPLICANT'S DIFFICULT RELATIONSHIPS WITH HIS STAFF . WHILST THESE RELATIONSHIPS CAN ONLY HAVE BEEN UNFAVOURABLY INFLUENCED BY THE EFFECTS OF DISCIPLINARY ACTION AGAINST A HEAD OF DIVISION FOR HIGHLY REPREHENSIBLE CONDUCT, THOSE EFFECTS WERE NEVERTHELESS DISCERNABLE WHEN, ON 3 JULY 1964, THE DEPUTY-DIRECTOR OF THE JNRC TOOK THE VIEW THAT THEY WERE NOT SUFFICIENT TO JUSTIFY A TRANSFER .
THE PUBLICITY WHICH WAS IN FACT - THOUGH DOUBTLESS UNINTENTIONALLY - GIVEN TO THE APPLICANT'S REPRIMAND, TO THE SEALING OFF OF HIS OFFICE AND TO THE OTHER SPECIAL PRECAUTIONS TAKEN BY THE COMMISSION, WHICH BECAME COMMON KNOWLEDGE, COULD NOT BUT WORSEN THE RELATIONSHIP BETWEEN THE APPLICANT AND HIS STAFF .
REPORTS ON THE APPLICANT DESCRIBED HIM, SOME MONTHS BEFORE THE EVENTS IN QUESTION, AS FULFILLING HIS DUTIES WITH ' PERFECT TACT ' AND MAINTAINING ' GOOD ' RELATIONSHIPS WITH HIS STAFF . THE IMMEDIATE CONTRADICTION BETWEEN THE GROUNDS GIVEN IN THE LETTER OF 19 FEBRUARY 1965 AND HIS REPORTS IS OBVIOUS .
THE COURT HAS NOT BEEN ABLE TO ASSESS THE VALUE OF THE EVIDENCE PRODUCED BECAUSE THE CONDITIONS UNDER WHICH THE STATEMENTS WERE TAKEN BY THE COMMISSION'S SECURITY SERVICE WHILE THE CASE WAS IN PROGRESS DO NOT ENABLE THE COURT TO EXERCISE ITS POWERS OF REVIEW .
THE VARIATIONS AND DISCREPANCIES DESCRIBED ABOVE, TOGETHER WITH CIRCUMSTANCES SUCH AS THE TIMING OF THE PUBLICATION OF THE VACANCY NOTICE SIMULTANEOUSLY WITH THE TRANSFER OF THE APPLICANT TO THE VACANT POST, THE LONG PERIOD OF INACTIVITY, NOT SERIOUSLY CONTESTED, FORCED ON THE APPLICANT AFTER TAKING UP HIS NEW POST AND THE GENERAL CIRCUMSTANCES OF THE CASE, TOGETHER AMOUNT TO A SERIES OF OBJECTIVE FACTS LEADING TO THE CONCLUSION THAT IN TRANSFERRING MR GUTMANN THE ADMINISTRATION WAS NOT EXERCISING ITS POWERS FOR THE PURPOSE PRESCRIBED FOR SUCH A MEASURE BY THE STAFF REGULATIONS .
ACCORDINGLY THE DECISION OF 5 FEBRUARY 1965 REJECTING THE APPLICANT'S COMPLAINT MUST BE ANNULLED ON THE GROUND OF MISUSE OF POWERS IN SO FAR AS IT CONFIRMS THE DECISION OF 9 DECEMBER 1964 TO TRANSFER HIM .
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THE CLAIM CONCERNING VACANCY NOTICE NO V/IS/40/65
THE VACANCY OF POST NO V/IS/40/65 COULD NOT HAVE BEEN DECLARED UNTIL AFTER THE UNLAWFUL TRANSFER OF THE APPLICANT, WHO OCCUPIED THE POST .
SINCE THE VACANCY NOTICE WAS NOT DESIGNED TO FILL A POST WHICH HAD PROPERLY FALLEN VACANT, IT MUST BE DECLARED NULL AND VOID .
THE COMPLAINT CONCERNING THE DECISION OF THE COMMISSION OF THE EAEC OF 20 AND 21 JANUARY 1965, AND THE DECISION OF THE COMMISSION OF THE EAEC OF 13 MAY 1965
THE APPLICANT ALLEGES THAT THE RULE NON BIS IN IDEM WAS VIOLATED BY THE DECISION OF 20 AND 21 JANUARY 1965 .
THIS RULE PROHIBITS NOT ONLY THE IMPOSITION OF TWO DISCIPLINARY MEASURES FOR A SINGLE OFFENSE, BUT ALSO THE HOLDING OF DISCIPLINARY PROCEEDINGS MORE THAN ONCE WITH REGARD TO A SINGLE SET OF FACTS .
IT MUST THEREFORE BE ASCERTAINED FROM THE FILE OF THE CASE AS IT STANDS WHETHER THE FRESH DISCIPLINARY PROCEEDINGS WERE BASED ON FACTS OTHER THAN THOSE WHICH GAVE RISE TO THE REPRIMAND OF 3 JULY 1964, AGAINST WHICH NO COMPLAINT OR APPEAL WAS MADE BY THE APPLICANT .
THE FILE SHOWS THAT THE ADMINISTRATION'S MAIN COMPLAINTS WERE, IN BOTH CASES, THE APPLICANT'S BEHAVIOUR TOWARDS HIS COLLEAGUES AND ALLEGED MISUSE OF THE FACILITIES PROVIDED BY THE DEPARTMENT . IN SPITE OF THE COURT'S REQUEST THE DEFENDANT HAS FAILED TO PRODUCE ALL THE INFORMATION REQUIRED FOR AN EXAMINATION OF THE FILE OF THE DISCIPLINARY PROCEEDINGS RELATING TO THE REPRIMAND . IN PARTICULAR IT HAS NOT EXPLAINED THE ' INCONCLUSIVE...INVESTIGATIONS ' MADE WITH REGARD TO THE MISUSE OF THE DEPARTMENT'S FACILITIES ( MEMORANDUM FROM RITTER TO GUTMANN OF 17 JUNE 1964 ). IN ADDITION IT HAS GIVEN THE COURT NO PRECISE INFORMATION CONCERNING THE ' COMPLAINT LODGED BY A HEAD OF DIVISION ' REFERRED TO IN THE COMMISSION'S DECISION OF 30 SEPTEMBER 1964 ( 258TH MEETING ) ORDERING AN INQUIRY TO BE HELD . THE COURT MUST THEREFORE CONFINE ITS CONSIDERATION TO THE ACTUAL CONTENTS OF THE FILE .
IT MUST BE SAID THEN THAT THE SOMEWHAT VAGUE LIST OF COMPLAINTS GIVEN IN THE LATER DISCIPLINARY INQUIRY MAKES IT DIFFICULT TO DISTINGUISH THESE COMPLAINTS FROM THOSE RAISED EARLIER AT THE TIME OF THE INQUIRY WHICH PRECEDED THE REPRIMAND .
IN AN APPLICATION AGAINST A DECISION ORDERING THE OPENING OF AN INQUIRY INTO ALLEGATIONS WHICH MAY PROVE SERIOUS, THOUGH HOW SERIOUS NO ONE CAN YET SAY, IT IS DESIRABLE, BEFORE THE COURT RULES ON THE APPLICATION, TO ALLOW THE COMMISSION AN OPPORTUNITY TO EXPLAIN WHY THE FACTS WERE NOT COVERED BY THE EARLIER DISCIPLINARY MEASURE . JUDGMENT ON THIS HEAD OF THE APPLICATION MUST THEREFORE BE SUSPENDED UNTIL THE DOCUMENTS MISSING FROM THE FILE HAVE BEEN PRODUCED, IN PARTICULAR ALL THE DOCUMENTS AND MINUTES REFERRED TO IN THE RITTER MEMORANDUM OF 17 JUNE 1964 ( ESPECIALLY THE DOCUMENTS WHICH SHOW THE NATURE OF THE ' INCONCLUSIVE ' INVESTIGATIONS ) AND THE ' COMPLAINT LODGED BY A HEAD OF DIVISION ' REFERRED TO BY THE COMMISSION IN ITS DECISION OF 30 SEPTEMBER 1964 ( 258TH MEETING ) ORDERING AN INQUIRY .
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THREE MONTHS IS SUFFICIENT TO ENABLE THE COMMISSION TO PRODUCE THOSE DOCUMENTS .
THE DECISION OF 13 MAY 1965 BY THE COMMISSION OF THE EAEC POSTPONING A DECISION IN THE DISCIPLINARY PROCEEDINGS PENDING THE JUDGMENT OF THE COURT ON THE FIRST APPLICATION FOR ANNULMENT IS BASED ON THE DECISION OF 20 AND 21 JANUARY 1965, JUDGMENT ON WHICH HAS JUST BEEN SUSPENDED .
JUDGMENT MUST BE POSTPONED ON THE APPLICATION FOR ANNULMENT OF THE DECISION OF 13 MAY 1965 UNTIL THE PERIOD OF THREE MONTHS ALLOWED TO THE COMMISSION FOR THE PRODUCTION OF THE ABOVEMENTIONED DOCUMENTS HAS ELAPSED .
THE REQUEST FOR DAMAGES
THE APPLICANT SEEKS COMPENSATION FOR THE MATERIAL AND NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED AS A RESULT OF THE DISPUTED DECISIONS .
THE NON-MATERIAL DAMAGE IS, IN THE LIGHT OF THE PRESENT PROCEEDINGS AND THE REPRIMAND GIVEN ON 3 JULY 1964 WITHOUT BEING DISPUTED, MADE GOOD BY THE ANNULMENT OF THE SAID DECISIONS .
MATERIAL DAMAGE HAS NOT BEEN PROVED; IN PARTICULAR THE APPLICANT HAS RECEIVED HIS SALARY DURING THE PERIOD OF HIS SUSPENSION AND HIS REMOVAL EXPENSES ON TRANSFER .
THE REQUEST FOR DAMAGES MUST THEREFORE BE REJECTED .
THE SUBSIDIARY CONCLUSIONS
THERE IS NOW NO NEED TO GIVE SEPARATE JUDGMENT ON THE REQUEST FOR AN INQUIRY AND FOR THE PRODUCTION OF DOCUMENTS, SINCE THE CONTENTS OF THE FILE AND THE OMISSIONS FROM IT HAVE EITHER PROVIDED A BASIS FOR THE COURT TO EXERCISE ITS POWER OF REVIEW OR HAVE NECESSITATED SUSPENSION OF JUDGMENT PENDING THE PRODUCTION OF CERTAIN DOCUMENTS .
THE APPLICANT REQUESTS THAT DOCUMENT NO 123/8, WHICH DOES NOT BEAR HIS SIGNATURE BE WITHDRAWN FROM HIS PERSONAL FILE .
THE WORDING OF THE SECOND PARAGRAPH OF ARTICLE 26 OF THE STAFF REGULATIONS IS EXPLICIT AND MUST BE COMPLIED WITH PARTICULARLY WHEN A DOCUMENT CONTAINED IN AN OFFICIAL'S FILE IS UNFAVOURABLE TO HIM .
ACCORDINGLY IT IS APPROPRIATE TO ORDER THAT DOCUMENT NO 123/8 BE WITHDRAWN FROM THE APPLICANT'S PERSONAL FILE .
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S PLEADING . THE DEFENDANT HAS BEEN UNSUCCESSFUL IN ITS MAIN PLEADINGS .
UNDER ARTICLE 69(3 ) THE COURT MAY ORDER ONE PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY CAUSED THE OPPOSITE PARTY TO INCUR .
JUDGMENT HAS BEEN PARTIALLY SUSPENDED PENDING PRODUCTION OF CERTAIN DOCUMENTS IN THE DEFENDANT'S POSSESSION, AND NOT PRODUCED DURING THE PROCEEDINGS .
THE COSTS OF THE APPLICATION FOR THE INTERIM MEASURE, RESERVED BY AN ORDER OF 8 APRIL 1965, MUST BE BORNE BY THE COMMISSION, SINCE THE APPLICATION FOR THE SUSPENSION OF OPERATION MADE IN CASE 18/65 WAS DIRECTED AGAINST THE VACANCY NOTICE ANNULLED IN THE PRESENT CASE .
THE DEFENDANT MUST ACCORDINGLY PAY THE ENTIRE COSTS OF THE ACTION .
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION OF THE COMMISSION OF THE EAEC OF 5 FEBRUARY 1965 REJECTING MR GUTMANN'S COMPLAINT AGAINST TWO PREVIOUS DECISIONS SUSPENDING AND TRANSFERRING HIM;
2 . ANNULS VACANCY NOTICE V/IS/40/65;
3 . ORDERS THE COMMISSION OF THE EAEC TO WITHDRAW DOCUMENT NO 123/8 FROM THE APPLICANT'S PERSONAL FILE;
4 . SUSPENDS JUDGMENT ON THE APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF 20 AND 21 JANUARY 1965 AND 13 MAY 1965 BY THE COMMISSION OF THE EAEC REGARDING THE CONTINUANCE AND THE SUSPENSION OF FRESH DISCIPLINARY PROCEEDINGS; ORDERS THE COMMISSION TO PRODUCE WITHIN THREE MONTHS ALL THE ITEMS MISSING FROM THE FILE, IN PARTICULAR ALL THE DOCUMENTS AND MINUTES REFERRED TO IN THE RITTER MEMORANDUM OF 17 JUNE 1964 ( ESPECIALLY THE DOCUMENTS ESTABLISHING THE NATURE OF THE ' INCONCLUSIVE ' INVESTIGATION ) AND THE ' COMPLAINT LODGED BY A HEAD OF DIVISION ' REFERRED TO BY THE COMMISSION IN ITS DECISION OF 30 SEPTEMBER 1964 ORDERING AN INQUIRY;
5 . REFERS THE CASE BACK TO THE COMMISSION FOR EXECUTION OF THIS JUDGMENT .
6 . REJECTS THE CLAIM FOR COMPENSATION AND THE REMAINDER OF MR GUTMANN'S SUBSIDIARY PLEAS;
7 . ORDERS THE COMMISSION OF THE EAEC TO PAY ALL THE COSTS SO FAR INCURRED IN THE PROCEEDINGS, INCLUDING THOSE IN THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE; AND RESERVES JUDGMENT ON THE REMAINING COSTS .
