Opinion of Mr Advocate-General Trabucchi

Mr President,

Members of the Court,

1. Once again the Court is being asked to rule in a dispute which, as it concerns an official in the scientific branch of the service, involves the delicate relationship between the status of a research worker, the freedom he is entitled to enjoy in his work and the obligations which fall upon him as a member of an organization which has to be administered. Freedom of inquiry, the need for supervision and the problem of appraisal involving responsibility for management: all these considerations have a bearing on the decision in law which it is your duty to take. Clearly, in the present case, another immediate comment is justified: your task is to pronounce only on some aspects of a state of affairs which, at the present stage of the action, consists wholly, with varying overtones, in conflicting statements from officials involved, so it is not always easy to keep clearly and firmly in mind the real subject-matter of an appraisal which is concerned only with some legal implications of a situation which, at least up to now, remains confused.

2. The immediate cause of the present dispute was the memorandum headed Falsification of Experiment Results addressed on 4 May 1971 by the Head of Division, Mr Malvicini, under whom the applicant worked, to Dr. Caprioglio, Director-General of the Euratom Joint Research Centre at Ispra. In this document, the applicant, a scientific officer at the Centre, was accused of having, with the object of making it appear that a particular result had been obtained, falsified the experimental data concerning research on isotope separation on which he was engaged in conjunction with the Euratom Biology Department. The same accusation was repeated in a memorandum addressed by Mr Malvicini on 6 July 1971 to Director-General Caprioglio, in which he castigated Mr Guillot for having contrived to alter the values of experimental results so as to make it appear that a certain effect had been obtained.

3. Following receipt of the memorandum of 4 May 1971 the Director, Mr Caprioglio, in a note of 17 May 1971, expressed the view that the incidents criticized by Mr Malvicini appeared to him to be sufficiently serious to justify disciplinary proceedings, and requested his staff to investigate. In reply to a subsequent memorandum from the applicant asking for information, the Director, Mr Caprioglio, informed him that he was still awaiting a report from his staff before deciding whether disciplinary proceedings were called for.

4. Although, in his statement initiating proceedings, the applicant sought annulment of the rejection by the defendant of the request set out under No 1 of the applicant's appeal through administrative channels on 5 January 1972, he has since explained in his reply that this claim is solely concerned with the absence of any acknowledgement that the accusations made against him by Mr Malvicini are without foundation, and that this could not, by implication, constitute a request for a decision on the merits of his conclusions and of his scientific theories.

5. Can the applicant legitimately claim that the institution to which he belongs should intervene when one of his superiors makes accusations regarding his work in the department and, if the institution cannot demonstrate that there is any truth in the accusations, absolve him from blame? In other words, can the applicant claim that the competent authorities of the institution should do all in their power to investigate the truth of the accusations and that, if they cannot be shown to have any substance, that they should be publicly retracted?

6. The Commission has, before the Court, expressly offered to obtain an expert's report if the Court does not accept its basic contention that the case concerns a disagreement between two officials on a scientific matter and that the Commission has a right not to become involved. Although he has expressed reservations on the question whether, at this distance in time, it is possible to reconstruct every circumstance with accuracy, the applicant, too, has accepted the idea of measures of inquiry designed to investigate the truth of the facts underlying Mr Malvicini's accusations.

7. The defendant contends for the inadmissibility of the applicant's claim, in his appeal, for the annulment of the refusal to authorize him to continue his experiments in conjunction with the Biology Department. In view of the fact that by note of 9 July 1971 his Head of Division prohibited him from continuing those experiments, on the date when the applicant had asked the Director-General, Mr Caprioglio, to annul that decision (8 November 1971), he would (the Commission argues) have already been out of time to lodge a complaint pursuant to Article 90 of the Staff Regulations. Therefore, again according to the defendant, the subsequent complaint, that of 3 January 1972, addressed to the Commission, could not revive a period of grace which had already expired. Moreover, the subsequent explicit decision, adopted by the Commission and which is impugned in the present action, represented nothing more than confirmation of the decision of 9 July.

8. Finally we come to the claim for compensation. The applicant submits that the defendant should be ordered to pay him the sum of BF 100000 as compensation for the material and non-material damage caused by its refusal to compel Mr Malvicini to withdraw his accusations and to recognize the validity of the results of the experiments concerned.

I therefore recommend annulment of the disputed decision and an order for costs against the defendant.

1 Translated from the Italian.