JUDGMENT OF 14. 7. 1976 — CASE 129/75 HIRSCHBERG v COMMISSION
In Case 129/75
THE COURT (Second Chamber) composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges, Advocate-General: A. Trabucchi. Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts, procedure, conclusions and submissions and arguments of the parties may be summarized as follows:
I — Statement of the facts
Mrs Lydia Hirschberg (née Nemirovsky) performs the duties of administrator in Directorate General VI (Agriculture), Directorate G (Agricultural Economics), Division 3 (Analysis of the Situation of Agricultural Holdings) at the Commission. More. particularly, she is responsible for the analysis and programming and the organization of processing of data from the EEC farm accountancy network and for the development and management of a decentralized unit of analysis and programming (DUAP), at present in its initial stage.
Mrs Hirschberg was affected by an allergy and had to stop work at the office from 7 to 30 April 1975, although she was authorized by a medical certificate to work at home during that period.
On account of the sudden unavailability of the regular member, the Central Staff Committe on 14 April 1975 appointed Mrs Hirschberg as an alternate member of the selection board for Competition COM/A/134 (data-processing). The Directorate General for Personnel and Administration of the Commission informed the Directorate General for Agriculture of this on the same day.
On 18 April 1975, Mrs Hirschberg applied for a travel order from the Missions Section in order to go to Luxembourg on 23 April 1975 to take part in a meeting of the selection board.
On the evening of 22 April 1975, Mrs Hirschberg's superior, Claude Baillet, Head of Division, found on his desk the travel order for Luxembourg concerning Mrs Hirschberg. At 7.15 p.m. he sent a telegram to Mrs Hirschberg which stated inter alia:
‘Surprised to find application mission Luxembourg data-processing competition selection board — not informed of notice of meeting — in view of your absence from the office on account of illness since first April and in the absence of information on immediate resumption of work, travel order not initialled — kindly do not go to Luxembourg.’
After contacting the chairman of the competition selection board, Mrs Hirschberg went to Luxembourg on 23 April to take part in the meeting of the selection board there.
On the same day, Mr Baillet sent a letter to Mrs Hirschberg in which, regarding the competition selection board for a data-processing officer in question, he asked her to state which branch had proposed her appointment, which authority had taken the decision, which branch of Directorate General VI had been consulted, the channels through which the notice summoning her to the meeting had reached her and the reasons for which she had taken part in the selection board, although she was on sick leave and despite the fact that she had been informed of the refusal of Directorate General VI to sign her application for a travel order.
On 25 April 1975, Mrs Hirschberg sent a note to Mr Baillet, stating inter alia that she had had to sit on the selection board in question because of the unexpected withdrawal of a colleague, and that her absence from the Luxembourg meeting would have meant cancelling it and jeopardizing its work.
By a note of 30 April 1975, Mr Baillet informed Mrs Hirschberg that her reply was'incomplete and tendentious'. Moreover, whilst asserting that in principle he had no objection to officials from his division taking part in competition selection boards for the recruitment of data-processing officers, he pointed out:
‘In fact the question concerns your own conduct, which has consisted in taking part on three separate occasions in meetings of competition selection boards, the last of these in Luxembourg, while you have been on sick leave.’
Concluding his note, Mr Baillet told Mrs Hirschberg:
‘I am sorry to have to send you this warning, but I consider that your ambiguous and undisciplined conduct is neither consonant with the elementary rules of our administration nor consistent with the responsibilities which attach to your office.’
On 9 June 1975, Mrs Hirschberg addressed to the Commission a complaint under Article 90 of the Staff Regulations concerning the difficulties encountered when she acted as a member of the selection board for Competition COM/A/134.
Mrs Hirschberg stated therein that she objected to both the form and the contents of Mr Baillet's note of 30 April 1975. As to form she pointed out that a warning is a disciplinary measure expressly provided for in Article 86 of the Staff Regulations and that Article 87 specifies the authority competent to issue it and the procedure to be followed; in her case none of these requirements was fulfilled. As to the contents of Mr Baillet's note, Mrs Hirschberg considers that she acted as a responsible, disciplined official who was fully aware of her duties and showed devotion to them; she cannot accept the accusations of prevarication, indiscipline and irresponsibility made therein. After setting out the circumstances of her participation in the meeting of the selection board on 23 April 1975 and analysing the facts, Mrs Hirschberg stated in the conclusion of her complaint:
‘These considerations ought, I hope, to convince the Commission of the blamelessness of my conduct. If that is the case, I should like acknowledgement thereof in writing, and should like the accusations in the documents enclosed herewith (Mr Baillet's telegram of 22 April, letter of 23 April and note of 30 April 1975) to be withdrawn. Furthermore I should like the Commission to take such measures as are necessary to protect me in future from acts which unjustly damage my personal dignity and my position as an official.’
On 22 October 1975, the Director General for Personnel and Administration, in reply to Mrs Hirschberg's complaint, informed her inter alia that:
‘It is obvious that the difficulties which you have encountered arise from a misunderstanding caused by the fact that you considered that you were fit to. travel to Luxembourg to take part in a meeting of the selection board for Competition COM/A/134 … whilst you were at that time incapable of performing your duties at the Commission in Brussels. “However, despite the existence of this misunderstanding, you may be assured that this will have no influence on your future career and that no correspondence concerning this matter will be filed in your personal file. Consequently, it is no longer appropriate to submit your complaint to the Commission.”
II — Written procedure
Mrs Hirschberg lodged this application on 22 December 1975.
The written procedure followed the normal course.
After hearing the opinion of the Advocate-General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry.
However it requested the parties to answer certain questions, either in writing, or during the oral procedure.
III — Conclusions of the parties
1. The applicant claims that the Court should: (a) Rule that the refusal of a mission to Luxembourg contained in the telegram of 22 April 1975 contravenes the last paragraph of Article 1 of Annex II to the Staff Regulations; (b) Principally, on the basis of Article 87 of the Staff Regulations, annul the note, referred to as a warning, signed only by Claude Baillet, on the ground of his lack of authority ratione personae to undertake disciplinary action; in the alternative, order that note to be withdrawn; (c) On the basis of Article 24 of the Staff Regulations, annul the refusal of the Commission to admit the applicant's complaint, which, on the one hand, is contributing to the deterioration in the applicant's working relationships and causing her serious injury and, on the other, is contrary to the general principle of good administration; (d) Awarded her the symbolic sum of FB 1 by way of compensation for the injury suffered with regard to her official reputation in view of the insinuations and annoyances to which she is still being subjected at the present time in her daily work; (e) Principally, provide her with confirmation that all documents relating to this matter will be withdrawn from the official's personal file; in the alternative, order that no document relating to this matter will be included in the personal file in the future; (f) Rule that her devotion to duty should be recognized inasmuch as, in spite of her state of health, she agreed to take part in the selection board tests for Competition COM/A/134; (g) Rule that the opposite party, after acknowledging the baselessness of the accusations emanating from Mr Baillet, must bring such acknowledgement to the notice of all persons concerned in this matter (a list of whose names is provided); (h) Order the opposite party to pay the costs of the action. The Commission contends that the Court should: (a) Declare that the application is inadmissible as regards its claims for the annulment of Mr Baillet's note dated 30 April 1975; an order prohibiliting the inclusion of any document concerning this matter in the applicant's personal file in the future; the acknowledgement of the baselessness of the statements made in the note of 30 April 1975 and the communication of such acknowledgement to the persons listed by the applicant; (b) At all events, dismiss the said claims as unfounded; (c) For the rest, dismiss the other conclusions contained in the application in their entirety unfounded; (d) Order the applicant to pay the costs of the action.
IV — Submissions and arguments of the parties during the written procedure
A — Admissibility
The application for annulment of the note of 30 April 1975
The Commission is of the opinion that the use of word “warning” in the note in question cannot be decisive: the Court of Justice does not pay attention to the external form or appearance of a document for the purposes of determining its true nature. The mere use of the expression “warning” in a communication not from the disciplinary authority, but from a superior officer to one of his subordinaties does not imply the taking of a disciplinary measure against the person concerned, particularly if, as in this case, all the circumstances surrounding the communication reveal the opposite. Moreover, the applicant herself alleges that the author of the note used the expression'warning’ improperly; therefore she does not consider Mr Baillet's note as a true warning. In fact, the note is not in the nature of an administrative decision; legally it can produce no enforceable effects, and hence is not capable of forming the subject-matter of an application for annulment.
The applicant points out that under Article 87 of the Staff Regulations, a warning is a disciplinary measure issued by the appointing authority and the official concerned is heard before such action is taken. Because these conditions have not been fulfilled in this case, the applicant was justified in submitting a complaint on this point to the Commission.
Moreover, after an attempt at explaining matters failed, the applicant was justified in accepting that the note in question constituted an official document, the terms of which give the impression that it constitutes more than a mere ‘comment’.
The claim for withdrawal of all documents relating to this matter from the applicant's personal file
The Commission is of the opinion that the original conclusion was modified in the reply, which of itself constitutes a sufficient ground for it to be ruled inadmissible.
With regard to the actual substance of the application, it should be pointed out that the conditions under which documents may be included in a personal file and the safeguards for the officials concerned, are specified by Article 26 of the Staff Regulations. The application expressly refers to the future; however it must be presumed that an administrative authority will also observe in the future the legal provisions governing the performance of its duties. Hence there is no need for the Court to order an administration to observe, in the future, a legal provision concerning it, unless there are grounds for thinking that there is some probability that the administration will subsequently contravene such provision. As this condition is not fulfilled in this case, there are no grounds for granting the application.
In fact, the claim is completely purposeless, as the documents in question were never included in the applicant's personal file. Therefore the applicant cannot prove any interest on which to found an action.
The applicant states that she is aware that, at present, no document concerning the dispute is included in her file. Her application must be construed as meaning that, as to the future, no document should be slipped into the file.
The claim to bring the acknowledgement of the baselessness of the accusations emanating from Mr Baillet to the notice of all persons concerned in the exchange of notes on this subject
The Commission considers that this application is exclusive of the application for the annulment of the note of 30 April 1975, which in fact contains the ‘accusations’ concerned.
If the Court were to consider it necessary to annul these ‘accusations’, there would no longer be any reason to make any assessment of their ‘baselnessness’ or lack of foundation. Therefore in so far as the applicant continues concurrently to claim the annulment of the note of 30 April 1975 and the acknowledgement of the lack of foundation of its contents, the latter application must be considered as inadmissible.
The applicant formally contests the Commission's arguments: the notes concerned the persons listed in the application and, consequently, the applicant's reputation may be damaged.
B — The substance of the case
The legality of the refusal of the travel order
The applicant stresses that when an official is appointed as a member of a selection board, the Directorate General for Personnel and Administration immediately informs the Directorate General of the branch to which the official concerned is attached of that fact; that formality was complied with in this case and the applicant was entitled to assume that her immediate superior was informed of her appointment as a member of the selection board.
As regards the notices summoning her to the particular meetings of the competition selection board, it should be pointed out that because of a relapse in her state of health, the applicant was able to go to the office only on 22 April 1975 to sign the mission application addressed to Mr Baillet. Therefore there is no question of negligence or of a stratagem on her part.
Mr Baillet's telegram of 22 April 1975 and his letter of 23 April give the applicant's state of health as the reason for the refusal of the mission to Luxembourg. The applicant was in actual fact on sick leave from 7 to 30 April. However there is no incompatibility between the fact of being on sick leave and taking part in a selection board meeting, as the applicant's allergy was not permanent, but only brought on by certain outside factors, such as cigarette smoke. Since the applicant's requests in this connexion were granted, her superior was therefore in no way responsible; for that reason, after contacting the chairman of the selection board, the applicant decided to go to Luxembourg.
In these circumstances, the refusal of the travel order was arbitrary. It also contravenes the last paragraph of Article 1 of Annex II to the Staff Regulations: the obstacle to the performance of her duties as a member of the selection board in the capacity of staff representative was prejudicial to the applicant.
The Commission confirms that the superior officer of the official concerned is normally notified, in good time, of the appointment of an official as a member of a selection board. This was not done in this case, owing to a lack of coordination between the various branches.
However — and this is the only relevant point — it is for a subordinate appointed to a selection board to supply his superior officer with full details of the number, length and dates of his absences for the purpose of actually participating in the work of the selection board. The official is under a duty to the head of the administrative unit to which he is assigned, to keep the latter informed of his expected absences from duty for work on the selection board, as soon as he has the necessary details.
As far as sick leave is concerned, it implies absence from the place of work, the normal and logical counterpart of the principle that duties are performed at the place of work. When a travel order for one of his subordinates on sick leave is submitted to an official, he would be exposing himself to a risk if he did not obtain certain assurances before initialling it. In such circumstances, the duty of an official requesting a travel order to inform his superior officer fully of the exact situation is particularly important to ensure the proper working of the service.
In this case, even it Mr Baillet had known on 22 April 1975 that the applicant was a member of a competition selection board, it would none the less have been for her to supply him with all necessary details of the places and dates of the meetings which she would have to attend. Knowing that the applicant was on sick leave, he was confronted, on the evening of 22 April, with an application for a travel order for a meeting in Luxembourg on the following day. Although his reaction may seem harsh, the question he raised by refusing to initial the order is still relevant.
The applicant did not think fit, at that time, to offer the least word of explanation with regard to the incompatibility between the fact of being on sick leave and taking part in a selection board meeting. The explanations supplied by the applicant only in the course of the proceedings obviously could not have been known to Mr Baillet when he reacted as he did.
In these circumstances, the refusal by her immediate superior of the applicant's application to carry out a mission in Luxembourg is in no way based on an infringement by him of the last paragraph of Article 1 of Annex II to the Staff Regulations. On the contrary this refusal was based on the fact the applicant was ‘covered’ by a medical certificate, which according to the second paragraph of Article 59 (1) of the Staff Regulations, normally implies absence on sick leave. The applicant ascribes the attitude adopted by her superior to another cause. Since she does not criticize the real reasons for the refusal to initial the travel order, the applicant has no grounds for contesting the refusal of the mission before the Court. There is no need for the Court to give a decision on this head of the application, which serves no real purpose.
Moreover, it is not contested that the duties of a member of a selection board, which were undertaken by the applicant, were ‘part of her normal service’; but such duties necessarily come under the provisions of the Staff Regulations governing the conditions of service, including Article 59, according to which the fact of being on sick leave implies absence. The applicant's submission based on the last paragraph of Article 1 of Annex II to the Staff Regulations is therefore in contradiction with the arguments upon which she relies to support it; that fact is sufficient to dismiss the submission.
The note of 30 April 1975
The applicant considers that, if the Court pays no attention to the outward form of Mr Baillet's note of 30 April 1975 and considers that the note does not constitute a disciplinary measure within the meaning of Article 87 of the Staff Regulations, it would have to find that the expression ‘warning’ was used improperly: a complaint emanating from a superior is justifiable only if there is a reason for making it, which there is not in this case, since the applicant merely obeyed one of the two conflicting orders addressed to her, choosing the one which appeared to cause the least difficulty.
The Commission is of the opinion that the right of the applicant's superior officer to inform her in writing of his dissatisfaction with her conduct in the service cannot be contested; such right stems from the power of a superior officer, who has been given authority over the officials who make up his unit, and may be exercised irrespective of the disciplinary procedure provided for in Article 87 of the Staff Regulations. A superior who considers it necessary to lodge a complaint against a subordinate may either address such observations as he considers appropriate directly to the official concerned (and nobody else), or propose the opening of disciplinary proceedings; of course in this case Mr Baillet took the first option. Therefore he did not overstep the limits of his authority in circumstances such as to justify the withdrawl or the annulment of his action for lack of authority or abuse of power.
The Commission's refusal to admit the applicant's complaint
The applicant considers that the Commission's refusal to admit her complaint of 9 June 1975 may be interpreted as intimidation intended to silence an official who is resolved to clarify a situation which is detrimental to her; moreover the refusal is likely to cause serious deterioration in her working relationships and is contrary to the principle of good administration. Furthermore, it follows from the case-law of the Court that the principles of natural justice and good administration require that when serious accusations are made by his superior concerning the official reputation of an official in the performance of his duties the administration should take all measures necessary to establish whether there are any grounds for the accusations.
The Commission points out that in so far as the applicant's claim embodies all the complaints put forward in the application, it is valid only to the extent to which those grievances are upheld by the Court.
In so far as the applicant relies on Article 24 of the Staff Regulations, it should be noted that her complaint was expressed in such general terms that it was impossible for the Commission to admit it.
Article 24 of the Staff Regulations involves a duty of ‘assistance’, not of ‘substitution’ in relation to the official, who must therefore take the initiative in defending himself against the actions referred to, by way of examples, in that provision. The duty of the administration, when serious accusations are made by an official's superior officer concerning the official reputation of the official, to take all measures necessary to establish whether there are any grounds for the accusations, must no doubt be equated with the duty of assistance laid down in Article 24 of the Staff Regulations; it implies the duty to take all steps to rectify the situation, to clarify whether there are any grounds for the accusations, and if there are none, to ensure that the accusations are publicly withdrawn.
In this case, the Commission considers that is completely fulfilled its duty to clarify the applicant's grievances; moreover its attempt at a compromise failed.
Either the inquiry made by the Commission was inadequate for the purposes of Article 24, in which case a fresh inquiry should be ordered, or the inquiry was adequate, in which case the applicant has no grounds to apply on the basis of Article 24 of the Staff Regulations for the annulment of the rejection of her complaint, but should on the contrary submit herself to the findings of the administration which completely fulfilled its duty under that provision.
The application for the award of the symbolic FB 1 and the application for recognition of the applicant's devotion to duty
The applicant stresses that these two applications are not to be considered as ends in themselves, but as a consequence of the principal heads of claim or a means whereby they may be put into effect. The applicant has suffered serious injury, for which compensation is required.
The Commission considers that the applicant has not suffered the least injury with regard to her official reputation. Moreover, the allegation concerning the period subsequent to the facts at issue is completely outside the scope of this application.
The Commission willingly recognizes that the applicant's participation in the work of the competition selection board is attributable to her devotion to duty. There is therefore no need for the Court to give a decision on this question, since there is no disagreement between the parties in that respect.
V — Oral procedure
The parties presented oral argument at the hearing on 24 June 1976.
The Advocate-General delivered his opinion at the hearing on 7 July 1976.
Law
1. In substance the application is for the withdrawal of a memorandum addressed to the applicant, an administrator in Directorate General VI, Directorate G, Division 3, by her immediate superior, as a result of a mission carried out by the official concerned away from her place of employment without a travel order for that purpose.
2. The applicant had been appointed by the Central Staff Committee to take part, as an alternate member of the selection board, in a recruitment competition organized in Luxembourg, at a time when she was on sick leave although continuing her work at home.
3. In these circumstances, the Head of Division, the direct superior of the applicant, refused to issue a travel order and, by a telegram of 22 April 1975, expressly asked the official concerned to abandon the projected trip; the applicant however went to Luxembourg on 23 April 1975, after consulting the chairman of the selection board.
4. By a letter of 23 April 1975 the Head of Division asked for explanations. Then on 30 April 1975 he addressed a memorandum described as a ‘warning’ to the applicant, in which he criticizes both the circumstances under which the application for a travel order had been submitted to him and the fact that the mission had been carried out despite his formal opposition and during a period when, as far as her ordinary duties were concerned, the applicant was on sick leave.
5. Following this note, the applicant addressed to the Secretariat General of the Commission a ‘complaint under Article 90 of the Staff Regulations’, which was lodged on 9 June 1975.
6. The Commission took no action with regard to that complaint except for a letter dated 22 October 1975 in which the Director General for Personnel described the incident as the product of a ‘misunderstanding’ and assured the applicant that it would have no unfavourable consequences for her career, concluding that in his opinion the complaint addressed to the Commission no longer served any purpose in these circumstances.
7. After the application had been lodged on 22 December 1975, the administration of the Commission tried once more, through the Head of Directorate G of Directorate General VI, to settle amicably the difficulties which had arisen between the applicant and her superior.
8. On that occasion the applicant was informed that the latter was willing to recognize ‘that at the time she had been in a difficult position and that she was faced with a conflict of duty’ and that he was prepared to consider the incident as closed.
9. The applicant however refused to accept this proposal and continued with her action at law.
10. The conclusions in her application are for the annulment by the Court of the memorandum of 30 April 1975, the annulment of the refusal of the Commission to admit the complaint of 9 June 1975 and for a series of declarations and orders for the purpose of establishing that the travel order sought was wrongfully refused, acknowledging the applicant's ‘devotion to duty’, declaring ‘the baselessness of the accusations’ made against her and bringing these declarations to the notice of all persons concerned in this matter.
11. Further, the applicant seeks the award of the symbolic sum of FB 1 by way of compensation for the injury suffered with regard to her official reputation, having regard to the ‘insinuations and annoyances’ to which she is still being subjected at the present time in her daily work.
Admissibility
12. As the Commission has challenged the admissibility of certain heads of the application, the Court requested the applicant to specify the way in which, in her opinion, the conclusions in her application come within the framework of the jurisdiction of the Court as defined by Article 91 (1) of the Staff Regulations.
13. It follows from the replies given by the applicant that the basic subject-matter of the application, having regard to the requirements laid down by Articles 90 and 91 of the Staff Regulations, consists in the failure of the Commission to act upon the complaint submitted on 9 June 1975.
14. The admissibility of the application must be considered first with regard to that omission.
15. In her complaint, after referring to the various communications specified above, the applicant asks the Commission to acknowledge the blamelessness of her conduct, to withdraw the accusations in the communications of her superior and in future to ‘protect (her) … from acts which unjustly damage (her) personal dignity and (her) position as an official’.
16. It is necessary to examine whether the Commission was under any duty to take a decision of this nature concerning the applicant and whether, in consequence, its failure to reply to the complaint of 9 June 1975 can be the subject-matter of an application under the Staff Regulations.
17. The purpose of the appeals provided for under Articles 90 and 91 of the Staff Regulations is to arrange for the review by the Court of acts and omissions by the ‘appointing authority’ liable to affect the position under the Staff Regulations of officials and servants of the Community.
18. The grievances expressed in the complaint and in this application do not concern the position of the applicant under the Staff Regulations, but exclusively internal relationships within the service and, more particularly, questions of administrative and working organization in the offices of the Commission.
19. Therefore the successive attitudes adopted by the applicant's superior regarding the travel order in question were not in the nature of acts subject to annulment within the meaning of Article 91 of the Staff Regulations.
20. When a complaint concerning this matter was submitted to the commission it was under no obligation to grant the applicant's requests, since her position under the Staff Regulations was in no way affected by the incident which gave rise to the complaint.
21. Accordingly this head of the application must be dismissed as inadmissible.
22. That inadmissibility entails the inadmissibility of all the other requests made in the application, including the claim for compensation, since, without exception they concern the same subject-matter as the principal application.
Costs
23. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
24. The applicant has failed in her submissions.
25. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Comunities, institutions shall bear their own costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the application as inadmissible;
2 Orders the parties to bear their own costs.