1 THE ACTION HAS AS ITS OBJECT THE ANNULMENT OF THE DECISION OF REMOVAL FROM HIS POST GIVEN ON 14 APRIL 1972 BY THE DIRECTOR-GENERAL OF PERSONNEL OF THE COMMISSION, INCLUDING THE PRELIMINARY STAGES COMING WITHIN THE AMBIT OF THE DISCIPLINARY PROCEEDINGS BROUGHT AGAINST THE APPLICANT ARISING OUT OF HIS PARTICIPATION IN THE REPREHENSIBLE ACTIVITIES OF ANOTHER OFFICIAL, GIUSEPPE DRESCIG ( JUDGMENT IN CASE 49/72 OF EVEN DATE ) WHICH AMOUNT TO AN ABUSE OF OFFICIAL STATUS, AND A DEMAND FOR PAYMENT FROM A PERSON DESIRING TO OBTAIN EMPLOYMENT WITH THE COMMISSION .
2 WITHOUT DENYING THE FACTS LEADING TO THE DISCIPLINARY MEASURES IMPOSED, THE APPLICANT ARGUED AGAINST THE VALIDITY OF THE DECISION TAKEN, BY INVOKING ARGUMENTS BASED UPON IRREGULARITIES IN THE DISCIPLINARY PROCEDURE, AN ERRONEOUS STATEMENT OF FACTS, AND THE EXCESSIVE NATURE OF THE DISCIPLINARY MEASURES IMPOSED .
3 HE FURTHERMORE APPLIED TO THE COURT FOR AN ORDER AGAINST THE COMMISSION TO PAY HIM THE SUM OF BF 30 000 BY WAY OF DAMAGES AND INTEREST .
AS REGARDS THE ADMISSIBILITY OF THE APPLICATION FOR REVOCATION OF THE PRELIMINARY DECISION TO SUSPEND
4 THE APPEAL AIMS NOT ONLY AT THE REVOCATION OF THE DECISION OF 14 APRIL 1972 TO REMOVE HIM FROM HIS POST, BUT ALSO AT ALL THE PRELIMINARY STAGES, INCLUDING THE DECISION TO SUSPEND THE APPLICANT AS FROM 11 JANUARY 1972 .
5 THE COMMISSION ARGUES THE NON-ADMISSIBILITY OF THE APPEAL AGAINST THIS LAST MENTIONED MEASURE BY REASON OF DELAY .
6 IN FACT, ACCORDING TO THE COMMISSION, THE SUSPENSION WAS NOT A SIMPLE PREPARATORY STAGE BUT AN INDEPENDENT DECISION WHICH OUGHT TO HAVE BEEN THE SUBJECT MATTER OF AN OBJECTION OR OF A LEGAL APPEAL WITHIN THE TIME LIMITED .
7 THIS GROUND OF APPEAL IS ONLY RELEVANT IN CASES OF REVOCATION OF THE DECISION TO DISMISS .
8 IT IS ACCORDINGLY NECESSARY TO EXAMINE IN THE FIRST PLACE THE GROUNDS OF APPEAL DIRECTED AGAINST THIS DECISION .
AS REGARDS THE PLEAS BASED UPON DISREGARD OF THE RIGHTS OF THE DEFENCE AND IN PARTICULAR THE VIOLATION OF ARTICLE 87 OF THE STAFF REGULATIONS AND OF THE COMMISSION' S DECISION OF 26 FEBRUARY 1971
9 THE APPLICANT ARGUES THAT UNDER THE TERMS OF ARTICLE 87 OF THE STAFF REGULATIONS THE DISCIPLINARY PROCEDURE SHALL BE INITIATED BY THE APPOINTING AUTHORITY AFTER HEARING THE OFFICIAL CONCERNED .
10 UNDER THE TERMS OF THE COMMISSION' S DECISION OF 26 FEBRUARY 1971 CONCERNING THE EXERCISE OF THE POWERS CONFERRED BY THE REGULATION UPON THE APPOINTING AUTHORITY, THE HEARING, AS REGARDS OFFICIALS IN HIS CATEGORY, WAS A MATTER FOR THE DIRECTOR OF PERSONNEL .
11 IN DISREGARD OF THIS PROVISION, THE APPLICANT WAS NEVER HEARD BY THIS OFFICIAL .
12 IN FACT THE DIRECTOR OF PERSONNEL INSTRUCTED THE HEAD OF THE INDIVIDUAL RIGHTS DIVISION, WHO IN TURN BASED HIMSELF UPON AN ENQUIRY CONDUCTED BY OFFICIALS OF THE SECURITY DEPARTMENT OF THE COMMISSION, WHICH HAS NO LEGAL BASIS UNDER THE STAFF REGULATIONS .
13 THE LACK OF A PROPER HEARING WEIGHED HEAVILY AGAINST THE APPLICANT ALL THROUGH THE PROCEEDINGS .
14 ONE CANNOT OBJECT TO THE CORRECTNESS OF THE INTERVENTION IN THE COURSE OF THE PRELIMINARY ENQUIRIES BY THE SECURITY DEPARTMENT WHICH WAS PROPERLY SET UP AND AUTHORIZED WITHIN THE AMBIT OF THE POWER OF SETTING UP AN ORGANIZATION CONFERRED ON THE COMMISSION BY ARTICLE 16 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES .
15 AS REGARDS THE FORMAL PART OF THE DISCIPLINARY PROCEDURE, THIS IS UNDER THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 87, SECOND SENTENCE, OF THE REGULATIONS INITIATED BY THE APPOINTING AUTHORITY " AFTER HEARING THE OFFICIAL CONCERNED ".
16 THE REGULATIONS DO NOT STATE MORE FULLY THE MATTERS AND FORMALITIES APPLICABLE TO THIS HEARING .
17 THE COMMISSION' S DECISION OF 26 FEBRUARY 1971 - TAKEN UNDER THE PROVISIONS OF ARTICLE 2 OF THE REGULATIONS UNDER WHICH EACH INSTITUTION SHALL DETERMINE WHO WITHIN IT SHALL EXERCISE THE POWERS CONFERRED BY THE REGULATIONS ON THE APPOINTING AUTHORITY - PROVIDES BY ITS ARTICLE 5 THAT THE DIRECTOR OF PERSONNEL SHALL IN REGARD TO OFFICIALS IN CATEGORIES C AND D EXERCISE THE POWERS CONFERRED ON THE APPOINTING AUTHORITY IN REGARD TO THE PRELIMINARY HEARING, PROVIDED FOR BY THE SECOND PARAGRAPH OF ARTICLE 87, SECOND SENTENCE, OF THE REGULATIONS .
18 THE GENERAL SYSTEM CREATED BY THIS DECISION, WHICH CONTAINS A DETAILED ENUMERATION OF FUNCTIONS OF VERY VARIED IMPORTANCE SHOWS THAT ONE IS DEALING WITH A DISTRIBUTION OF BUSINESS WITHIN THE COMMISSION SERVICES, RATHER THAN WITH THE CONFERMENT OF RIGID POWERS, THE NONOBSERVANCE OF WHICH COULD ENTAIL THE NULLITY OF ACTS DONE OUTSIDE THE LIMITS LAID DOWN .
19 THE FACT THAT THIS IS THE NATURE OF THE DECISION OF 26 FEBRUARY 1971 IS CONFIRMED BY THE FACT THAT IT WAS PUBLISHED BY THE COMMISSION NOT IN THE OFFICIAL JOURNAL, BUT IN AN INFORMATION BULLETIN INTENDED FOR THE STAFF .
20 IN THESE CIRCUMSTANCES ONE CANNOT INTERPRET THIS DOCUMENT AS EXCLUDING IN ADVANCE ALL POSSIBILITY OF SUB-DELEGATION BY THE OFFICIALS APPOINTED OR OF A DEVIATION FROM THE PRINCIPLES OF DIVISION OF FUNCTIONS LAID DOWN BY THE COMMISSION .
21 A SUB-DELEGATION OR DEVIATION FROM THESE STANDARDS CAN ONLY RESULT IN THE NULLITY OF AN ACT DONE BY THE ADMINISTRATION IF IT IS CAPABLE OF AFFECTING ONE OF THE GUARANTEES GIVEN TO OFFICIALS BY THE REGULATIONS OR OF AFFECTING THE PRINCIPLES OF GOOD ADMINISTRATION IN MATTERS OF STAFF ADMINISTRATION .
22 IN THE EVENT THIS WAS NOT THE CASE, THE DIRECTOR-GENERAL OF PERSONNEL HAVING ENTRUSTED THE HEARING TO AN OFFICIAL PARTICULARLY QUALIFIED IN THIS RESPECT, I . E . THE HEAD OF THE INDIVIDUAL RIGHTS DIVISION UNDER THE DIRECTORATE GENERAL OF PERSONNEL .
23 EXAMINATION OF THE REPORT PREPARED BY THIS OFFICIAL SHOWS THAT THE APPLICANT HAD THE BENEFIT OF A THOROUGH AND IMPARTIAL ENQUIRY IN THE COURSE OF WHICH THE RIGHTS OF THE DEFENCE HAD BEEN FULLY RESPECTED .
24 THE OFFICIAL ENTRUSTED WITH THE HEARING DID, TOGETHER WITH THE APPLICANT, GO THROUGH THE DETAILS OF THE FACTS ALLEGED IN THE COURSE OF THE PRELIMINARY ENQUIRIES AND THAT THE APPLICANT WITHOUT RESERVATION ADMITTED THAT THEY WERE CORRECT .
25 IN THESE CIRCUMSTANCES THE FAIR NATURE OF BOTH THE HEARING AND THE ENQUIRY WHICH PRECEDED IT CANNOT BE DISPUTED .
26 THE OBJECTIONS OUGHT THEREFORE TO BE REJECTED .
ON THE ARGUMENTS ARISING FROM ERRONEOUS DESCRIPTION OF THE FACTS
27 THE APPLICANT ALSO MAINTAINED THAT DURING THE WHOLE PRELIMINARY PROCEDURE THE OFFICIALS CARRYING OUT THE INVESTIGATION HAD IN RELATION TO THE FACTS ALLEGED AGAINST HIM CONTINUALLY USED TERMS DRAWN FROM CRIMINAL LAW, THAT IS TO SAY " EXTORTION " AND " FRAUD ".
28 THESE TERMS OUGHT NOT TO HAVE BEEN USED IN DISCIPLINARY PROCEEDINGS AND IN DOING SO, THE OFFICIALS HAD USURPED A POWER WHICH ONLY BELONGS TO A JUDGE IN CRIMINAL LAW .
29 BESIDES, THE RELATIONSHIP BETWEEN THE APPLICANT AND THE PERSON WHOM HE HAD INTRODUCED TO GIUSEPPE DRESCIG WITH A VIEW TO HER ENTERING THE SERVICES OF THE COMMISSION UPON PAYMENT OF A SUM OF MONEY, WAS DESCRIBED INCORRECTLY, EVEN MALICIOUSLY, BY THE OFFICIALS ENTRUSTED WITH THE PRELIMINARY ENQUIRY, WHEN IN FACT THE APPLICANT' S INTENTION WAS NO MORE THAN TO ASSIST THE PERSON IN QUESTION .
30 NOTHING PREVENTS THE DISCIPLINARY AUTHORITIES FROM USING APPROXIMATIONS TO THE CONCEPTS OF CRIMINAL LAW FOR THE PURPOSE OF DEFINING AND POSSIBLY QUALIFYING THE FACTS SUBMITTED FOR THEIR CONSIDERATION .
31 IN THE LIGHT OF THE BASIC SEPARATION BETWEEN THE DISCIPLINARY SYSTEM AND THE CRIMINAL PROCEDURE THERE THEREFORE EXISTS NO RISK OF CONFUSION TO THE PREJUDICE OF AN OFFICIAL WHO IS THE SUBJECT OF A DISCIPLINARY PROCEDURE .
32 BESIDES, ONE CANNOT IN ANY WAY CRITICIZE THE OFFICIALS ENTRUSTED WITH THE ENQUIRY FOR HAVING SPECULATED UPON THE APPLICANT' S MOTIVES, SUCH CONJECTURES BEING AN INTEGRAL PART OF ANY METHOD OF INVESTIGATION .
33 NEITHER CAN THE APPLICANT COMPLAIN OF TERMS, EVEN IF HARDLY OF A FLATTERING NATURE, WHICH ARE, OBJECTIVELY SPEAKING, JUSTIFIED IN RELATION TO THE SUBSTANCE OF THE FACTS .
34 THE APPEAL OUGHT ACCORDINGLY TO BE REJECTED .
AS REGARDS THE ARGUMENTS BASED ON THE VIOLATION OF ARTICLES 8 AND 9 OF ANNEX IX OF THE REGULATIONS
35 THE APPLICANT FURTHER CAST DOUBT ON THE VALIDITY OF THE PROCEEDINGS OF THE DISCIPLINARY BOARD BY REASON OF THE FACT THAT THE REASONED OPINION WAS NOT ONLY SIGNED BY THE CHAIRMAN, BUT IT ALSO APPEARED FROM THE MINUTES THAT THE CHAIRMAN HAD TAKEN AN ACTIVE PART IN THE PROCEEDINGS, WHEN IN FACT UNDER THE TERMS OF ARTICLE 8 OF ANNEX IX OF THE REGULATIONS, THE CHAIRMAN OF THE DISCIPLINARY BOARD DOES NOT TAKE PART IN THE DECISIONS, SAVE ON PROCEDURAL QUESTIONS OR IN THE CASE OF EQUALITY OF VOTES AND ARTICLE 9 PROVIDES THAT THE REASONED OPINION ONLY BE SIGNED BY MEMBERS OF THE BOARD .
36 ARTICLE 8 OF ANNEX IX HAD AS ITS OBJECT TO PERMIT THE PARITY ELEMENT WHICH LIES AT THE BASIS OF THE CONSTITUTION OF THE DISCIPLINARY BOARD TO FUNCTION TO THE FULLEST EXTENT THAT IT IS POSSIBLE ON THAT BASIS FOR BOARDS TO PRODUCE A MAJORITY .
37 UNDER THIS SYSTEM THE CHAIRMAN IS CALLED UPON TO INTERVENE WITH HIS VOTE ONLY IN CASE OF EQUALITY OF VOTES AND, APART FROM THIS, ON PROCEDURAL QUESTIONS .
38 IN OTHER RESPECTS THE CHAIRMAN, BY VIRTUE OF HIS OFFICE, ENJOYS ALL POWERS NECESSARY FOR ENSURING THE NORMAL FUNCTION OF THE DISCIPLINARY BOARD .
39 IT APPEARS FROM THE MINUTES ATTACHED TO THE FILE THAT THE CHAIRMAN DID NOT HAVE REASON TO INTERVENE IN THE DECISION UPON THE REASONED OPINION SINCE THE MEMBERS OF THE BOARD WERE ABLE TO REACH UNANIMITY ON THE SUBJECT .
40 THE CHAIRMAN' S ACT IN SIGNING THE VARIOUS DOCUMENTS RELATING TO THE DISCIPLINARY PROCEDURE CONSTITUTES MERELY THE NORMAL EXERCISE OF HIS PREROGATIVES, WHICH INCLUDE THE POWER OF CERTIFYING THE REGULARITY OF THE PROCEDURE AND OF AUTHENTICATING THE BOARD' S DOCUMENTS .
41 THE VALIDITY OF THESE DOCUMENTS CANNOT THEREFORE BE AFFECTED BY THE FACT THAT THEY BEAR THE CHAIRMAN' S SIGNATURE .
42 THE APPEAL MUST THEREFORE BE REJECTED .
AS REGARDS THE SERIOUSNESS OF THE DISCIPLINARY MEASURE
43 THE APPLICANT CONSIDERS THAT THE DISCIPLINARY MEASURE IMPOSED UPON HIM - REMOVAL FROM HIS POST WITHOUT LOSS OF HIS ENTITLEMENT TO RETIREMENT PENSION - IS DISPROPORTIONATE TO THE GRAVITY OF THE FACTS ALLEGED AGAINST HIM, PARTICULARLY SO IF ONE COMPARES THEM WITH THE FACTS ALLEGED AGAINST HIS ACCOMPLICE GIUSEPPE DRESCIG .
44 THE COMMISSION CONSIDERS THIS GROUND OF APPEAL TO BE INADMISSIBLE BEARING IN MIND THAT IT IS NOT FOR THE COURT TO SUBSTITUTE ITS OPINION FOR THAT OF THE DISCIPLINARY AUTHORITY .
45 THE FACTS ALLEGED AGAINST THE APPLICANT HAVING BEEN ESTABLISHED, THE CHOICE OF APPROPRIATE DISCIPLINARY MEASURE IS A MATTER FOR THE DISCIPLINARY AUTHORITY .
46 THE SUBJECT MATTER NOT BEING OF A PECUNIARY KIND, 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 .
47 THIS IS NOT SO IN THE PRESENT CASE .
48 ACCORDINGLY THE COMPLAINT BASED ON THE GRAVITY OF THE SANCTION IMPOSED MUST BE REJECTED .
DAMAGES AND INTEREST
49 SINCE ALL THE APPLICANT' S GROUNDS OF APPEAL HAVE BEEN REJECTED THE CLAIM FOR DAMAGES AND INTEREST IS DEVOID OF ANY BASIS .
50 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS ORDERED TO PAY THE COSTS .
51 THE APPLICANT HAS FAILED IN HIS ACTION .
52 NEVERTHELESS, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS BY OFFICIALS OF THE COMMUNITIES .
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE ACTION .
2 . ORDERS EACH PARTY TO PAY ITS OWN COSTS .
