JUDGMENT OF 21. 10. 1980 — CASE 101/79 VECCHIOLI v COMMISSION

In Case 101/79

THE COURT (Third Chamber) composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges, Advocate General: J.-P. Warner Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts and arguments advanced by the parties during the course of the written procedure may be summarized as follows:

I — Facts and written procedure

The applicant, an electrical engineer who has studied applied nuclear physics, was recruited into the service of Euratom [European Atomic Energy Community] from 16 November 1959 and was assigned to a post in Grade A 5 with the Safeguards Directorate.

As he wished to work in research he was transferred at his own request by a decision of 30 November 1962 to a vacant post in the Directorate-General for Research, Science and Education (Department of Thermonuclear Fusion) and assigned to the Nuclear Studies Centre at Saclay in the capacity of an official in the scientific service and as an engineer in the field of theoretical and experimental plasma physics with the task of participating in the work of the Euratom/AEC Association group.

Since it became apparent after 1965 that the applicant was not adapting himself to research in the plasma field and was not fitting in with the research programme but undertaking his own personal theoretical work, on 2 November 1970 the Steering Committee for the Euratom/AEC Association Contract endorsed a decision to retransfer him as soon as possible to Euratom which, after futile and protracted attempts to obtain his agreement to take on fresh duties, was done by decision of the Commission of 25 July 1974 with effect from 1 August 1974. By that decision, the applicant, whilst remaining under Directorate-General XII (Research, Science and Education) for administrative purposes was transferred to Luxembourg and placed at the disposal of the Energy and Euratom Safeguards Directorate of Directorate-General XVII (Energy) in order to undertake duties similar to those which he had performed between 1959 and 1962. The work performed, by the applicant in that new post did not satisfy his superiors and, after having been repeatedly warned about the inadequacy of his work, the Director-General of Directorate-General XII (Research, Science and Education) on 17 December 1976 adopted a proposal to dismiss him in pursuance of Article 51 of the Staff Regulations. After being invited on 9 February 1977 by the Member of the Commission responsible for staff matters to submit his observations, the applicant refrained from doing so despite a reminder on 5 May 1977.

His case then came before the Disciplinary Board on 9 June 1977 which on 19 June 1978 gave an opinion in favour of the applicant's dismissal for incompetence.

After Mr Vecchioli had been heard on 17 July 1978 the Member of the Commission responsible for staff matters adopted the decision on 27 July 1978 to dismiss him with effect from 1 November 1978.

The complaint brought by the applicant against that decision, registered at the General Secretariat of the Commission on 3 November 1978, was expressly rejected by a decision of 16 March 1979; according to the evidence of the applicant he was notified of that decision on 26 March 1979. By an application entered in the register of the Court on 25 June 1979 the applicant brought this application to annul the decision to dismiss him and the express decision rejecting his complaint referred to above.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should :

1) Declare that the decision of 27 July 1978 to dismiss him is null and void, with all the consequences in law, and that the applicant is in all respects in the same position as before;

2) Declare that the express rejection of his complaint, dated 16 March 1979, is null and void;

3) Order the opposite party to pay the costs; In the alternative :

4) Order the opposite party to produce all the documents relating to the dismissal as well as to the opposite party's proceedings relating to the applicant's complaint.

The defendant claims that the Court should:

1) Dismiss the applicant as unfounded;

2) Order the applicant to pay the costs.

III — Submissions and arguments of the parties

1. Application

In support of his application for annulment the applicant makes eight submissions.

First submission

Infringement of Article 51 of the Staff Regulations of Officials inasmuch as the defendant followed the procedure for dismissal for incompetence whereas the conduct for which the applicant was criticized constitutes breaches of discipline. He argues that he should have been disciplined rather than certified incompetent and dismissed.

Disciplinary proceedings would have been less dishonourable than dismissal on grounds of incompetence and not so damaging to his chances of being regraded.

Disciplinary proceedings have the advantage of comprising a range of sanctions of increasing severity and may consequently constitute a serious warning.

Finally, unlike disciplinary proceedings, proceedings for dismissal on the grounds of incompetence make no provision for any review.

Second submission

Infringement of Article 51 of the Staff Regulations of Officials and of Article 3 of the Commission Decision of 5 October 1977 on the exercise of the powers conferred by the Staff Regulations of Officials on the appointing authority and misuse of powers inasmuch as the proposal to dismiss the applicant was adopted by the Director-General of Directorate-General XII whereas it should have come from the Member of the Commission responsible for staff matters or at any rate from the Director-General of Directorate-General XVII at whose disposal the applicant had been placed.

What is more it was a director of Directorate-General XVII who was the person competent to draw up his periodic report. The fact that the initiative for the proposal came from the Director-General of Directorate-General XII is attributable to a misuse of powers inasmuch as it enabled alleged incompetence in the period before 1970 to be taken into account against the applicant.

Third submission

Infringement of Articles 2 and 51 of the Staff Regulations of Officials and of Article 3 of the Decision of 5 October 1977 inasmuch as the decision to dismiss the applicant should have been taken by the Commission as. the appointing authority and not by the Member of the Commission responsible for staff matters who, according to Article 3 of that decision, has only a power to make a “proposal”.

To the extent to which the Commission was empowered to sub-delegate the powers conferred on it by the Staff Regulations the fact remains that the power to dismiss an official, pursuant to Article 51 of the Staff Regulations, has not been conferred on the Member of the Commission responsible for staff matters.

Fourth submission

Infringement of Article 110 of the Staff Regulations of Officials inasmuch as if the Decision of 5 October 1977 conferred the power of dismissal on the Member of the Commission responsible for staff matters that conferment of power was unlawful in the absence of consultation with the Staff Regulations Committee and the Staff Committee.

Fifth submission

Infringement of Article 2 of the Staff Regulations inasmuch as the Decisions of 28 February 1974 and of 5 October 1977 on which the decision in issue rests are themselves unlawful because they designate two different appointing authorities — the Commission for the promotion of officials in Category A, and only one of its Members for their dismissal — whereas there may be only one appointing authority for each official.

Sixth submission

Breach of the “rights of the defence” during the course of the inquiry conducted by the Disciplinary Board inasmuch as the Board sought the opinion of three experts to assess the performance of the applicant but refused to take any further expert evidence. The same submission is directed against the Member of the Commission who took the decision in issue.

Seventh submission

Infringement of Articles 90 and 91 of the Staff Regulations of Officials inasmuch as it has not been proved that the decision to reject the applicant's complaint against his dismissal was taken collectively by the Commission or that when it did so that the Member of the Commission responsible for staff matters abstained.

Eighth submission

Deficiency of reasons inasmuch as the decision in issue, first, was founded on facts which were irrelevant, inaccurate or inaccurately interpreted and, secondly, failed to take into account facts that should have been taken into account.

a) The decision was based on an assessment of the applicant's attitude at Saclay whereas that period is not relevant to the assessment of his ability to carry out the duties which were entrusted to him after 1974.

b) The decision did not take account of the responsibility of the administration itself for the attitude of the applicant.

c) The decision to assign him to Luxembourg was itself irregular.

2. Defence

In its defence the Commission raises the following arguments against the submissions of the applicant.

First submission

The applicant's argument by which he mistakenly compares proceedings to establish incompetence and disciplinary proceedings must be rejected. Contrary to his contention the effect of Article 86 (1) of the Staff Regulations is that the criterion for distinguishing incompetence from a failure to carry out one's duties giving rise to disciplinary measures lies not so much in the deliberate or involuntary nature of the act or conduct complained of but the persistence or exceptional nature of such act or conduct. In this case the applicant's work had been unimportant, inadequate and lacking in cooperation with his superiors for more than three and a half years which justifies the application of Article 51 of the Staff Regulations.

Even if his attitude should have been regarded as meriting disciplinary measures too, that is not sufficient to make recourse to Article 51 of the Staff Regulations unjustified and the defendant adverts in this regard to authorities from the French Conseil d'État and from the Appeals Board of the OECD.

Furthermore, considerations indicating that disicplinary proceedings are “preferable” to the procedure for dismissal for incompetence lose their relevance as soon as the conditions for applying Article 51 of the Staff Regulations are met.

Second submission

A comparison of the text of Article 3 of the said Decision of 5 October 1977, so far as it is intended to put into effect Article 51 of the Staff Regulations, with the corresponding texts of Articles 2 and 5 clearly shows that there is an error of substance in the wording of Article 3 and that the text should actually be read as designating the Member of the Commission responsible for staff matters as the appointing authority to decide on “dismissal for incompetence or on a proposal for classification in a lower grade”. The word “proposal” refers to the. phrase “classification in a lower grade” only, and not to “dismissal”.

What is more the applicant's argument encounters a fundamental objection. A proposal to dismiss an official must be reasoned and therefore may only come from the immediate superiors of the official but this does not apply to the Member of the Commission responsible for staff matters.

The argument advanced in the alternative by which the proposal to dismiss the applicant should in any event have come from the Director-General of Directorate-General XVII (Energy) to which Euratom Safeguards is subordinate and at whose disposal the applicant had been placed, and not from the Director-General of Directorate-General XII (Research, Science and Education) to which he was attached only for administrative purposes, cannot be accepted. Owing to the fact that the applicant remained so attached to Directorate-General XII alone it was the Director-General of that Directorate-General who was competent to set in motion an administrative procedure of the kind contemplated by Article 51 of the Staff Regulations. Furthermore, the proposal to dismiss the applicant was submitted to the Director of the Euratom Safeguards Directorate-General XVII for his countersignature.

As a wholly secondary and alternative argument the defendant considers that the procedural requirements infringed, if any, did not constitute essential procedural requirements since the reasoned proposal to dismiss the applicant was in any event submitted to the applicant in order to enable him to prepare his defence. That notification, and not the identity of the person who made the proposal to dismiss him, constitutes an essential procedural requirement.

As for the alleged misuse of powers the defendant contends that the applicant has not adduced any evidence thereof.

Third submission

In reply to the third submission based on the lack of competence of the Member of the Commission responsible for staff matters the Commission contends that the second paragraph of Article 51 (2) of the Staff Regulations provides that “the appointing authority shall take a reasoned decision ...”. As was argued when the second submission was considered, Article 3 of the Decision of 5 October 1977 should be read as meaning that the Member of the Commission responsible for staff matters has competence in regard to officials in Grades A 4/LA 4 to A 8/LA 8 in the case of “dismissal for incompetence or a proposal for classification in a lower grade”. That interpretation is in accordance with the basic scheme of the decision in issue and with the levels of responsibility which it lays down as the Commission has competence in regard to officials in Grades A 1, A 2 or A 3/LA 3 and the Director of Personnel has competence in regard to officials in Category B.

Fourth submission

As to the non-observance of the procedural requirements laid down in Article 110 of the Staff Regulations the Commission argues that the said Decision of 5 October 1977 is not a general provision for giving effect to the Staff Regulations within the meaning of that article and that therefore it should not be subject to the consultation procedure laid down in that provision. It does not constitute an interpretation of rules in the Staff Regulations but is a set of purely internal rules.

As a wholly secondary and alternative argument the Commission believes that, even if the said Decision of 5 October 1977 were found to be null and void thereby establishing the lack of competence of the person who took the decision to dismiss the applicant, that could not lead to the annulment of the last-mentioned decision. In that regard it relies on the judgment of the Court of 30 May 1973 in Case 36/72 Meganck v Commission [1973] ECR 527 et seq. by virtue of which the proper subject-matter of the action is not the decision adopted by the authority lacking competence, but the implied decision rejecting the official's complaint, which is deemed to come from the competent authority to which the complaint is referred by the applicant himself.

Fifth submission

Then going on to consider the plea of illegality directed against the Decision of 5 October 1977 the Commission contends that contrary to what the applicant states Article 2 of the Staff Regulations does not prohibit the same category of officials from having a different appointing authority depending on the kind of decisions to be adopted.

Sixth submission

The Commission contends that the submission on the breach of the rights of the defence is without any foundation whatsoever.

The applicant's work was submitted several times to different experts and in particular, at the request of the Disciplinary Board, to three independent experts nominated on the recommendation of the President of the Administrative Council of the Free University of Brussels with whom the applicant had the opportunity to talk and to whom he was able to submit written observations.

All those experts gave an unfavourable opinion on the value of the applicant's work and in those circumstances neither the Disciplinary Board nor the Member of the Commission responsible for staff matters was obliged to accede to the applicant's request for the designation of a new expert.

Seventh submission

The seventh submission is based on the fact that it is not proved that the decision to reject the applicant's complaint was taken collectively by the Commission and that the Member of the Commission responsible for staff matters was not a party to that decision. The Commission replies that the decision was adopted by the written procedure under Article 11 of the Rules of Procedure of the Commission adopted on 9 January 1963 (Official Journal, English Special Edition, September 1974, Second Series VII, p. 9).

The Commission therefore made its decision in a proper manner and the question whether the Member responsible for staff matters should or should not have been a party to the decision-making process does not arise.

Eighth submission

In regard to the eighth submission, according to which the decision to dismiss tne applicant was based on facts which were irrelevant, inaccurate or inaccurately interpreted and that there was a failure to take all the relevant factors into account, the Commission contends that those criticisms are not justified and furthermore that they have been made too late. It claims that proof is provided, particularly, by the applicant's staff reports, that his performance was manifestly inadequate, that he was not a victim of a deminutio capitis in 1974 and that it was not dogmatic in its dealings with him.

3. Reply

After alluding to some factors concerning the course of his career, notably the alleged unlawfulness of his being placed at the disposal of Euratom Safeguards in 1974 and the failure of the defendant to take his psychological problems into consideration, the applicant deals with the questions of law.

First submission

In the absence of any case-law of the Court on Article 51 of the Staff Regulations he claims that the meaning of the word “incompetence” should be sought from its ordinary sense; furthermore, the thinking of the institution in question is quite apparent. As officials are recruited on the basis of competitions there is no question of their being considered incompetent or incapable at the outset. If they become incompetent or incapable after illness the procedure for relieving them of their duties is that provided for in the case of invalidity; if invalidity is not in question then the procedure for dismissal should be applied but in neither case should the issue of misconduct be brought in. The mitigating provision of the second paragraph of Article 51 (1) is meaningful only if no misconduct can be attributed to an official. If incompetence is accompanied by negligent conduct that conduct comes under the disciplinary procedure into which the procedure to establish incompetence then merges.

That argument finds support in the text of Article 86 of the Staff Regulations which refers to “any failure by an official ... to comply with his obligations ... whether intentionally or through negligence”, that is to say, any failure which may be attributed to the misconduct of an official, the distinction between intentional misconduct and negligence being long established in civil law.

The applicant contends that if incompetence as referred to by Article 51 of the Staff Regulations could be intentional the Community provisions on the termination of service, as contemplated by Article 47, might be looked upon as redundant as Article 51 would appear to be superfluous. He also doubts the relevance of the authorities relied on by the defendant.

The applicant contends that in general administrative bodies tend to regard the procedure for dismissal for incompetence as being less unwieldy for themselves and, what is more, less harmful to an official because he can be offered a post in a lower grade and he does not lose his pension rights. However, if an official believes that it is in his interests to undergo disciplinary proceedings rather than the procedure to dismiss him for incompetence he is entitled to be dealt with by a proper and legal procedure. Furthermore disciplinary proceedings may be reopened under Article 11 of Annex IX to the Staff Regulations.

The main point, however, is that the procedure to dismiss him for incompetence brings disgrace on the applicant as it records lack of ability on his part.

As for the documents relied on by the defendant the applicant maintains that they do not have any evidential value; the only documents to have that value are the periodic staff reports because of the procedural arrangements under which they are drawn up. He believes that he cannot be considered to be incompetent; what the defendant calls incompetence should be treated as inefficiency which, he contends, is due to a complicated situation which should be specifically related to the fact that he was given work to do which was indeed worthwhile in itself but which was not the same as that for which he was transferred in 1962.

Second submission

The applicant claims that the Commission's argument as to the error of substance in the drafting of Article 3 of its Decision of 5 October 1977 cited above is astonishing.

Although it is possible to conceive that a legislative provision may contain an error of substance such an error must necessarily be revealed by reference to the natural order of things or there must be a contradiction with the basic text. That is not the case and what the defendant relies on constitutes an error of judgment which was committed when it delegated the powers to take the decisions which should be taken by the appointing authority.

The applicant also rejects the defendant's expedient of arguing that the Director-General himself is no more empowered than the Member of the Commission to formulate a reasoned proposal. Neither of them may do so until he has obtained information, if necessary from the immediate superiors of the official in question, on his conduct.

In those circumstances competence should have been conferred either on the immediate superior of the official in question or on the Head of Division responsible for drawing up periodic reports within the meaning of Article 43 of the Staff Regulations.

The applicant then contends by way of alternative argument that, even if it must be acknowledged that the Director-General who has control over the official to be dismissed has competence to make the proposal, that Director-General may be only the one who has actual control over the official and whose subordinates, who are superior to the official to be dismissed, have been able to report to him about the official concerned; in the event that person was the Director-General of Directorate-General XVII (Energy) at whose disposal he had been placed. There were no grounds for applying by analogy the rule, laid down in the Guide to Staff Reports, on officials who have been reassigned. The reason for that rule is the need to resolve in a simple way the problems which arise from the reassignment of officials during the period covered by their periodic report.

The fact that the proposal for dismissal was submitted for the countersignature of a director of Directorate-General XVII who should have drawn up the proposal — assuming of course that it does not necessarily have to originate from a Member of the Commission — is not the same as the competent Director-General's fulfilling his obligations by taking the initiative and assuming responsibility.

The argument that the applicant was able to exercise his right of defence is also irrelevant since if taken to the extreme it would enable a proposal to be made by an official in Category B, C or even D.

The fact that the proposal for dismissal was made by the Director-General of Directorate-General XII and not by the Director of Directorate-General XVII, who countersigned the proposal, furthermore constitutes a misuse of powers or a procedural irregularity because on various occasions the official from whom the proposal came showed his animosity towards the applicant, one of those occasions being that on which the applicant gave evidence to the Disciplinary Board.

Third submission

The applicant refers to the observations which he submitted on the first limb of the second submission.

Fourth submission

In regard to the fourth submission on the infringement of Article 110 of the Staff Regulations the applicant contends that the provisions referred to in that article are indeed provisions for putting the Staff Regulations into effect. They are moreover general measures.

If consultation has taken place over the Guide to Staff Reports, as provided for by Article 110, it is incomprehensible why the decision on the exercise of powers within the Commission did not have to be subject to such consultation as the delegation of powers is of fundamental concern to all staff and has a somewhat institutional and at any rate a general character.

The reference to the Meganck judgment, cited above, is not relevant since in the present case the applicant is seeking the annulment of an express decision to reject his complaint.

Fifth submission

The applicant remains of the opinion that Article 2 of the Staff Regulations may not be interpreted as meaning that officials in the same category or grade might have different appointing authorities depending on the measures to be taken.

That situation is inconsistent and is not, maintains the applicant, in accordance with the logic of the Staff Regulations.

Sixth submission

The applicant recalls that this submission concerns the breach of the rights of the defence, first before the Disciplinary Board and then, before the Member of the Commission and that it does not concern the earlier background to this case.

The applicant states that the fairness and propriety of the persons in question are beyond criticism; rather it is a question of disputing their view of the right of the applicant to be able to challenge the opinion of the experts whom the Disciplinary Board consulted.

He is critical of the designation of three physicists or electronics specialists; he explains the reasons, concerning their scientific training, for which the opinion of those experts could only be unfavourable from the start.

He also deplores the fact that he was not able to submit further expert evidence because of the shortness of the period accorded to him. He claims that the principle that both parties should be heard and that advocates should be able to plead their client's case on equal terms have not been observed.

In regard to the five concurring experts' opinions which the Commission relies on the applicant contends that the argument that these carry authority is now no longer valid.

That question is not relevant anyway since in proceedings arising from an official's misconduct it is necessary to determine whether the official spent his time on personal pursuits or if, even though mistaken as to the proper value and prospects of success of his research, he spent his time and efforts on work which, even though regarded as marginal or even futile, remained within the framework of what was contemplated by the vacancy notice for which he submitted his application.

Seventh submission

The applicant maintains that, although the decision was taken by written procedure, that does not rule out deliberation, that is to say, that counting of opinions, even in the absence of oral discussion; the proposal of the Member of the Commission responsible for staff matters and the fact that he was a party to the final decision constitute a breach of the principle nemo index in re sua. The importance of that principle is measured by the fact that it is to be found in the legislation or the customs of all democratic nations and that the Court has already recognized it in the judgment of 1 July 1964 in Case 26/63 Pistoj [1964] ECR 341.

Eighth submission

The applicant recalls that he criticizes the fact that both the Disciplinary Board and the person who took the decision in issue took into account his alleged incompetence during the period prior to his reassignment to the Euratom Safeguards Directorate in Luxembourg.

He believes that he is not to be criticized in respect of that period in which there cannot in any event be any question of incompetence, even as understood by the Commission.

As for the defendant's criticism that he did not respond to various proposals to assign him elsewhere or that he ignored summonses to meetings or even refused to attend certain meetings, in so far as he does not deny those facts, the applicant says that the reason for that behaviour was the discouragement which he felt when he found out that an attempt was being made to “shunt him into a siding” or even to make him resign prematurely. In any event his shortcomings could have been dealt with by disciplinary proceedings but cannot be held to be relevant in proceedings to dismiss him for incompetence.

The applicant reaffirms that his new assignment from 25 July 1974 constituted a deminutio capitis inasmuch as it no longer entailed research work but purely administrative tasks which, although worthwhile, were not the same as those for which he was appointed in 1962 and which remained unchanged from then on.

Although he had not availed himself of the procedure under Article 90 of the Staff Regulations to challenge the decision of 1974 none the less he never ceased to show his disagreement with it and the defendant is utterly wrong to accuse him of incompetence when the tasks at which he was supposed to be incompetent could not be imposed upon him.

Secondly, and in any event, that fact influenced the behaviour of the applicant and the decision should have taken that into account.

The applicant adduces a report by a psychiatric expert to explain why he did not make a complaint in 1974 and that he adopted a kind of “silent protest” rather than taking official or semiofficial steps, as a good number of his colleagues placed in a contentious situation would have done.

4. Rejoinder

Having indicated various corrections of the facts as put forward by the applicant the defendant makes the following observations in regard to its submissions in law:

First submission

The defendant contests the applicant's argument about the criteria for distinguishing between the procedure to dismiss an official for incompetence and disciplinary proceedings based on whether the official's conduct was intentional or not and repeats that it is necessary to take into consideration the exceptional, or on the other hand the persistent, nature of any particular conduct. Apart from being absent without leave from 10 March to 13 April 1976, which did in fact make the official liable to disciplinary proceedings, it was mainly the inadequacy of his work both qualitatively and quantitively which characterized him.

In regard to the documents establishing the applicant's incompetence during the period 1974-77 the defendant contests his argument that only his periodic reports may be taken into account and not the “unilateral” memoranda addressed to him by his superiors during the period in question.

Second submission

The defendant returns to its argument about the wording of Article 3 of the decision on the distribution of powers conferred on the appointing authority. It again stresses that the wording is the result of an error of substance and observes that the applicant's reply is based on a purely literal construction of the provision in question.

It reaffirms that the placing of the applicant at the disposal of Directorate-General XVII did not affect his attachment for administrative purposes to Directorate-General XII and accordingly the official in charge of that Directorate-General did have competence. In any event an irregularity of that type cannot be regarded as a breach of a procedural requirement in so far as the reasoned proposal to dismiss him was submitted to the applicant thereby enabling him to prepare his defence. It is that notification and not the identity of the person who gave it which constitutes a procedural requirement. What is more, the Director-General, who according to the applicant's argument did have competence, signified his agreement with the proposal to dismiss him.

Moreover, a misuse of powers has not been proved or even seriously alleged.

Third submission.

The defendant refers to its defence.

Fourth submission

According to the Commission a “decision on the exercise of powers conferred by the Staff Regulations on the appointing authority” is an internal rule the sole purpose of which is to put into effect the scheme for the delegation of powers contemplated in Article 2 of the Staff Regulations. It is not referred to by Article 110 of the Staff Regulations which covers the general provisions for giving effect to the Staff Regulations. That decision has no effect on the exercise of the rights which officials have under the Staff Regulations; it is restricted to the determination of measures for administrative organization. The defendant also recalls the arguments which it deduced from the Meganck judgment, cited above.

Fifth submission

The defendant repeats that it does not see how it is inconsistent and illogical to confer the power to take decisions in regard to the same category of officials on several administrative authorities depending on the kind of decision to be taken. In support of its argument it describes the system of delegating power over officials in Category B, ranging from the reply to a complaint (Article 90 (2) of the Staff Regulations) (Commission), to permission to spend sick leave elsewhere than at the place where an official is employed (second paragraph of Article 60 of the Staff Regulations) (Head of Division).

Sixth submission

The defendant recalls that over a period of eight years the applicant's work has been submitted for examination by five different experts, independent of the Commission, who have all given an unfavourable opinion about that work.

Despite those circumstances, the Disciplinary Board, anxious to observe fully the rights of the defence, decided to consult three new independent experts whose opinion bore out that of the previous experts.

Even if it is true that in scientific matters the opinion of the majority is not necessarily the correct one nevertheless the opinion of independent experts was a better guide for the Disciplinary Board than the applicant's assessment of his own work.

Generally speaking the principle that both sides should be heard and on equal terms cannot be construed to mean that when faced with various experts' reports unfavourable to his contentions a party has the right to request the designation of an unlimited number of experts until one of them agrees that his opinions are well founded.

Seventh submission

The defendant states that the decision to reject the complaint was taken, as is always the case for that kind of decision, by the written procedure under Article 11 of the internal rules of the Commission adopted on 9 January 1963 cited above.

It is futile for the applicant to contend that there has been a breach of the principle that “no one should be judge in his own cause”; it is not applicable to administrative proceedings. The Commission, having been entrusted with the task of ruling on complaints, does not act as a “forum of appeal” but as an official authority seised of administrative proceedings brought against a person responsible for an administrative act.

If the principle in question applied, the official affected by a decision taken by the Commission itself would be deprived of the right to bring a complaint about that decision since the power to give a reply to a complaint lies in the Commission's area of competence.

Eighth submission

In regard to the fact that the Disciplinary Board and the appointing authority took account of the unsatisfactory nature of the applicant's performance during the period 1965-70, during which he worked at Saclay, the defendant claims that it has been proved that there are grounds for that assessment and that it cannot be criticized for having tried to find a new posting for the applicant rather than dismiss him in 1970. Even if the decision in dispute does mention stages in the applicant's career prior to the period from 1974 to 1978 nevertheless it is quite plain from that decision that it is based on the assessment of the work performed by the applicant at Euratom Safeguards.

The defendant rejects the complaint by the applicant concerning his being placed at the disposal of Euratom Safeguards in 1974; it denies that there was a deminutio capitis and points out that at the time the applicant brought no complaint against the decision in question for the letter of protest which he wrote before he assumed his duties cannot be regarded as a complaint within the meaning of Article 90 of the Staff Regulations. Moreover, the trenchant, not to say defamatory, tone of that letter indicates that, contrary to what the applicant now claims, he was in no sense inhibited psychologically from bringing a complaint against that decision.

III — Oral procedure

The applicant, represented by Mr Slusny, of the Brussels Bar, and the Commission of the European Communities, represented by D. Jacob, also of the Brussels Bar, presented oral argument at the hearing on 3 July 1980. The applicant abandoned his fifth submission.

The Advocate General delivered his opinion on 18 September 1980.

Decision

1. The application lodged at the Court Registry on 25 June 1979 seeks first the annulment of the Decision of 27 July 1978 of the appointing authority of the Commission of the European Communities dismissing the applicant for incompetence with effect from 1 November 1978 pursuant to Article 51 of the Staff Regulations of Officials and secondly the annulment of the Decision of 16 March 1979 rejecting the applicant's complaint.

2. In 1959 the applicant was engaged in the service of Euratom and assigned to the Safeguards Directorate. In 1962 he was transferred at his own request to a post in the Thermonuclear Fusion department of the Directorate-General for Research and Education to carry out research work in the field of plasma physics and for that purpose he was placed at the disposal of the Nuclear Studies Centre at Saclay. In 1970 the Steering Committee for the Euratom/AEC Association Contract placed him once again at the disposal of Euratom believing that he was not adapting himself to the research programme of the Nuclear Studies Centre. In 1974, after futile and protracted attempts to obtain his agreement to take on fresh duties, the Commission, while maintaining his attachment for administrative purposes to Directorate-General XII (Research, Science and Education), placed him at the disposal of Directorate-General XVII (Energy), or more accurately, at the disposal of the Energy and Euratom Safeguards Directorate, where he resumed the tasks which he had performed before 1962 at the Safeguards Directorate.

3. His superiors found that the work accomplished by the applicant after he had thus resumed his duties was inadequate and on 17 December 1976 the Director-General of Directorate-General XII adopted a proposal to dismiss him under Article 51 of the Staff Regulations which, following a procedure certain aspects of which are criticized by the applicant, resulted in the decision which is now challenged.

4. In support of his application the applicant makes various submissions as to the infringement of various provisions of the Staff Regulations, in particular Article 51 thereof, and as to the infringement of the Commission's Decisions of 25 July 1974 and 5 October 1977 on the exercise of powers conferred by the Staff Regulations on the appointing authority (Informations administratives [Administrative Notices] No 10 of 4 November 1974; Staff Courier of 17 November 1977).

First submission

5. The applicant first asserts that the decision in issue infringed Article 51 of the Staff Regulations of Officials in so far as the conduct for which he was criticized constituted breaches of discipline within the meaning of Article 86 of the Staff Regulations so that if there were grounds for taking certain action against him it should have been in the context of disciplinary proceedings. He states that it is in his interests to be disciplined rather than dismissed for incompetence.

6. By Article 51 of the Staff Regulations an official who proves incompetent in the performance of his duties may be dismissed. The appointing authority may, however, offer to classify the official in a lower grade.

7. The incompetence of an official within the meaning of Article 51 of the Staff Regulations must be evaluated with particular regard to his ability, efficiency and conduct in the service, that is to say, to the factors referred to in Article 43 of the Staff Regulations concerning periodic reports.

8. If consideration of the conduct of an official in the light of those factors leads to the conclusions that the conditions for applying Article 51 are met the appointing authority is entitled to dismiss or downgrade officials in that manner even if the incompetence is accompanied by attitudes which might lead to disciplinary proceedings being brought. The specific nature of Article 51, the application of which moreover entails, pursuant to the last subparagraph of paragraph (2) thereof, the same safeguards as are built into disciplinary procedure, is in fact due hot only to the grounds justifying it but also to the measures to which it leads and the nature and effects of which, unlike those in disciplinary proceedings, are better fitted to the situation which has to be rectified in the interests of the service.

9. The submission must accordingly be rejected.

Second and third submissions

10. The applicant then submits in reliance of Article 51 of the Staff Regulations and Article 3 of the Commission Decisions of 25 July 1974 and of 5 October 1977 on the exercise of powers conferred by the Staff Regulations of Officials on the appointing authority that the proposal to dismiss him and the decision to do so were not adopted by the authorities competent in the matter and that that circumstance points to a misuse of powers. The proposal should have come not from the Director-General of Directorate-General XII (Research, Science and Education), to whom he was no longer subject except for administrative purposes, but from the Member of the Commission responsible for matters of personnel and administration or at any rate from the Director-General of Directorate-General XVII (Energy) at whose disposal he had been placed. As for the decision to dismiss him, that should have been taken by the Commission itself, and not only by the Member of the institution responsible for staff matters.

11. The applicant here refers to Article 3 of the said Decisions of 25 July 1974 and of 5 October 1977 by which the Member of the Commission responsible for matters of personnel and administration “shall exercise the powers conferred on the appointing authority; in respect of officials in Grades A4/LA 4-8, by Articles ... 51: Proposal for dismissal for incompetence or for classification in a lower grade”. It is apparent from that text that the proposal must come from the Member of the Commission, and the decision on dismissal from the Commission itself, whereas in the present case the proposal came from the Director-General of Directorate-General XII and the decision was taken by only the Member of the Commission responsible for staff matters.12 The Commission replies that Article 3 contains an error of substance in that respect and that the text should actually read. “Article 51 — Dismissal or proposal for classification in a lower grade” so that a decision to dismiss an official is a matter for the Member of the Commission.

13. Notwithstanding the faulty drafting of the text in dispute the Commission's interpretation must be accepted as it is the only one which is in keeping with the system of the distribution of the various powers conferred on the appointing authority as contemplated by the Decisions of 25 July 1974 and of 5 October 1977 and in particular by Article 3 thereof.

14. In that regard it should be observed that Article 2 of those decisions, which exhaustively lists the categories of officials with respect to whom the Commission is itself to exercise the powers of the appointing authority, does not mention, with regard to the application of Article 51, officials in Grade A 4/A 5. On the other hand it expressly designates the Commission to take decisions on “dismissal for incompetence or proposal for classification in a lower grade” of officials in Grade A 1, A 2 and A 3/LA 3 and in order to do so it uses the very same phrase which, according to the Commission, is to be found on a close reading of the corresponding text of Article 3.

15. Furthermore the context of Article 3 shows beyond all possible doubt that in the case of officials in Grades A 4/A 5 dismissal for incompetence falls within the competence of the Member of the Commission responsible for matters of personnel and administration. It appears in fact that Article 3 confers on that Member of the Commission the power to take decisions in a number of possible situations in which the consequences of the decision are just as, if not more, serious for the person concerned. It is in fact that Member of the Commission who in the case of officials in the same grade takes decisions as to, amongst other things, their compulsory resignation (Article 49 of the Staff Regulations), retirement for invalidity (Article 53 of the Staff Regulations), and the imposition of disciplinary measures after consultation with the Disciplinary Board (second paragraph of Article 87). There is no plausible reason why in those circumstances the same Member of the Commission may not take a decision in the case in which Article 51 is applied and why he should be restricted to making a proposal to the Commission acting as a body, which then takes a collective decision.

16. In the result the decision in question to dismiss the official is within the competence of the Member of the Commission responsible for matters of personnel and administration.

17. The submission that the decision in issue was taken by an authority with no competence to dó so must therefore be rejected.

18. The applicant then submits that the proposal to put Article 51 into effect should have come not from the Director-General of Directorate-General XII (Research, Science and Education) but from the Director-General of Directorate-General XVII (Energy) under which comes the Euratom Safeguards department at whose disposal he had been placed. He adds that the fact that the proposal came from the Director-General of Directorate-General XII (Research, Science and Education) is indicative of a misuse of powers because that Director-General had been hostile towards him and because coming from him the proposal to dismiss the applicant could take account of considerations bearing on the period prior to his being placed at the disposal of Directorate-General XVII in 1974, which is unlawful.

19. According to Article 13 of the Decisions of 25 July 1974 and of 5 October 1977 a proposal to apply the measures mentioned in Article 51 of the Staff Regulations to Officials in Grade A 4/A 5 should come from the Member of the Commission responsible for the directorate-general or for the department to which the official in question belongs, a condition which is not fulfilled in this case. However that has not been pleaded by the applicant and the Court believes that since the final decision was itself taken by the competent authority the Court should not raise that issue of its own motion.

20. Furthermore the complaint alleging a misuse of powers is not supported by any assertion which is at all verifiable and what is more it is belied by the way in which the investigation of the applicant's case took place in accordance with the procedure provided for disciplinary action as required by the second subparagraph of Article 51 (2) of the Staff Regulations.

21. It follows from the foregoing considerations that the submissions to the effect that the proposal and the decision to dismiss the applicant came from authorities other than those competent to do so or that they were vitiated by misuse of powers must be rejected.

Fourth submission

22. The applicant then raises a plea of illegality against the aforementioned Decisions of 25 July 1974 and 5 October 1977 on the exercise of powers conferred on the appointing authority. According to him those decisions were adopted contrary to Article 110 of the Staff Regulations by which “the general provisions for giving effect to (these) Staff Regulations shall be adopted by each institution after consulting its Staff Committee and the Staff Regulations Committee”. Since those decisions were adopted without the consultation referred to in Article 110 taking place they are unlawful with the result that in the absence of valid rules all the measures which those decisions allocated to various authorities should be taken by the Commission.

23. As is plainly apparent from the wording of Article 110 the obligation to hold consultations referred to therein concerns the general provisions which the institutions are obliged to adopt to implement certain provisions of the Staff Regulations. The determination by each institution pursuant to the first paragraph of Article 2 of the Staff Regulations of the authorities within it which shall exercise the powers conferred on the appointing authority constitutes however an internal measure which is not referred to by Article 110 so that the submission must be rejected.

Fifth submission

24. Since the applicant has abandoned this submission there is no need to consider it.

Sixth submission

25. The sixth submission is based on the breach of the rights of the defence during the inquiry stage before the Disciplinary Board on the ground that the board sought the opinion of three experts to assess the applicant's work but refused to order further expert evidence as requested by the applicant. That contention is also raised against the refusal of the Member of the Commission to obtain that expert evidence before adopting the decision in issue.

26. Consideration of the papers before the Court shows that this submission is plainly unfounded.

27. The applicant has maintained throughout the proceedings that he devoted himself to personal work of great importance in the field of plasma physics and that the work was proof of his professional ability. Although the Disciplinary Board was not bound to do so, since incompetence as referred to in Article 51 concerns the tasks which an institution wishes to be performed by its servants and not work of their own personal preference, it submitted that work to three scientists who confirmed the earlier opinion of other scientists that the work was of no interest.

28. Once objectively informed in that way the Disciplinary Board was not obliged to accede to the request for further expert evidence on the applicant's behalf which, moreover, he was entitled and able to furnish on his own initiative.

29. The submission must accordingly be rejected.

Seventh submission

30. The seventh submission alleges infringement of Articles 90 and 91 of the Staff Regulations on the ground that it is not established that the decision to reject the applicant's complaint against his dismissal was taken collectively by the Commission and that when the decision was adopted the Member of the Commission responsible for staff matters abstained.

31. It is apparent from the papers before the Court that the rejection of the applicant's complaint notified to him on 26 March 1976 by a letter bearing the signature of Mr Tugendhat, the Member of the Commission responsible for matters of personnel and administration, followed a decision of the Commission of 16 March 1979 adopted on the proposal of that Member of the Commission. The assertion that the said Member of the Commission should not have taken part in the collective decision-making process must be rejected. It is in fact apparent both from the nature of the procedure in question and from the combined provisions of Article 90 (1) and (2) of the Staff Regulations that the complaint procedure is not a means of appeal but is intended to compel the authority having control over the official to reconsider its decision in the light of any objections which that official may make.

32. The submission must consequently be rejected.

Eighth submission

33. Finally the applicant claims that the decision in issue is based on facts which are irrelevant, inaccurate or inaccurately interpreted or which, in the other hand, do not take account of certain decisive factors. He contends in particular that the decision in issue takes into consideration factors relating to the period prior to 1974, that is to say, during his secondment at Saclay, whereas only his attitude after the time when he resumed his duties in the service of the Commission, notably with Euratom Safeguards, can be taken into account.

34. In a procedure to dismiss an official for incompetence the authority empowered to do so must be able to take into consideration the official's career as a whole. Moreover the decision in issue takes express account of the crucial fact that the applicant gave no satisfaction in the post which he last held and takes proper cognizance of the fact that the applicant himself did not deny that the quality of his work during that period was not that which might be expected of a principal administrator.

35. That submission must accordingly be rejected as well.

36. As the applicant has failed in all his submissions his application should be dismissed.

Costs

37. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. As the applicant has failed in his submission he must be ordered to pay the costs. However, under Article 70 of the Rules of Procedure costs incurred by the institutions in proceedings by servants of the Communities shall be borne by the institutions.

On those grounds, THE COURT (Third Chamber) hereby:

1 Dismisses the application.

2 Orders the parties to pay their own costs.

1 The parties arc referring to the Commission Decision of 25 July 1974 on the exercise of the powers conferred by the Staff Regulations of Officials on the appointing authority and the authority responsible for concluding contracts of employment in respect of other servants (Informations Administratives [Administrative Notices] No 10 of 4 November 1974) as well as to the Decision of 5 October 1977 on the same subject (Staff Courier of 17 November 1977). The text of the provisions in dispute in this case is however identical in both decisions.