JUDGMENT OF 11. 7. 1974 — CASE 53/72 GUILLOT v COMMISSION
In Case 53/72
THE COURT (Second Chamber) composed of: M. Sørensen, President of Chamber, H. Kutscher, A. J. Mackenzie Stuart (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties
1. On the first and second heads of claim in the application (withdrawal of Mr Malvicini's accusations and recognition of the authenticity of the experiments carried out by the applicant)
2. On the third head of claim in the application (continuation of his experiments by the applicant)
3. On the fourth and fifth heads of the applicant's claim (damages)
4. On the supplementary claims submitted in the reply (withdrawal of certain documents from the applicant's administrative file; the Court's exclusion of them from its consideration)
IV — Oral procedure
Law
On the first and second heads of claim
On the third head of claim
On the fourth head of claim
On the fifth head of claim
Costs
I —. Facts and procedure
1. The applicant entered the service of the European Atomic Energy Community on 17 April 1961 and was posted to the Joint Research Centre at Ispra, hereinafter called the JRC. On 1 January 1962, he was established at Grade A 6. Since 1965 he has worked in the Protection Department at the Centre under Mr Malvicini and has been given responsibility for observing the internal contamination of the staff by radiation and for calculating the quantities of radiation absorbed.
2. In 1968, as a result of an accident which occurred in the working of the Ispra I reactor, one of its operators was contaminated after inhaling radio-active gases. It was then decided to assign the applicant to the task of carrying out certain experiments with a view to obtaining the retention curves of xenon in the human body, a subject on which scientific literature contained little information.
3. In 1970, the applicant applied for permission to take part in the Brighton Congress on protection against radiation (May 1970) and also in the Evian Congress on radiobiology (June to July 1970), in order that he could report the results obtained in the course of the research mentioned above. The first request was refused, but the second was eventually granted.
4. On 3 and 4 May 1971 Mr Malvicini addressed two memoranda to Mr Caprioglio, Director-General of the Joint Research Centre.
5. On 8 November 1971, after the rejection of his request to be authorized to publish the results obtained during the course of his experiments, the applicant brought an action before the Court (Case 91/71).
6. In May 1971, Mr Malvicini instructed the applicant, by word of mouth, not to continue his research and in a memorandum of 8 July 1971 the applicant asked for this order to be put in writing or withdrawn. In a note of 9 July 1971 Mr Malvicini informed the applicant that, in his view, it was necessary that conclusions should be drawn from the results of research completed to date on separation effects, before work in hand is continued and fresh experiments embarked upon.
7. In a note of 8 November 1971, the applicant made the following statement, among others, to Mr Caprioglio:
8. On 25 July 1972 the applicant brought the present appeal.
9. The written procedure was duly completed. After hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General the Court (Second Chamber) decided to open the oral procedure without a preparatory inquiry.
II —. Conclusions of the parties
1. declare null and void the express rejection by the other party by letter of 14 April 1972 of the applicant's request under 1. of his administrative complaint of 3 January 1972;
2. rule that the other party, after having acknowledged the baselessness of the accusations made by Mr Malvicini against the applicant, is under an obligation to bring such acknowledgement to the notice of all who were aware of the contents of the notes exchanged in connexion with this case, namely: Messrs Appleyard, Benco, Bertolini, Blaes, Bourdeau, Caprioglio, Finzi, Gerbaulet, Herrinck, Kley, Lafuma, Marchetti, Schleicher and Scotti, and the presidents of the unions CLP (Comitato locale personale, local staff committee), USEI (Union syndicale des Employes d'Ispra, Trade Union of Ispra Employees), SILARN (Sindacato italiano lavoratori ricerca nucleare, Italian Union of Nuclear Research Workers) and FFPE (Federation de la fonction publique européenne, European Public Service Union);
3. declare null and void the express rejection by the other party, by letter of 14 April 1972, of the applicant's request to be allowed to recommence work and experiments on the dissolution of radioactive xenon in water;
4. order the other party to pay the applicant, as compensation for material and non-material damage caused by the facts referred to under 1. of the administrative complaint, the sum of FB 100000 subject to final assessment in the course of the proceedings;
5. order the other party to pay the applicant, as compensation for material and non-material damage caused by the facts referred to under 2. of the administrative complaint, the sum of FB 100000, subject to final assessment in the course of the proceedings;
6. order the other party to pay the costs of the action;
7. as a subsidiary matter, direct that witnesses be called upon to testify to the truth of certain allegations in the application, those to be called upon being named by the applicant without prejudice to his freedom to extend the list of witnesses.
III —. Submissions and arguments of the parties
1. On the first and second heads of claim in the application (withdrawal of Mr Malvicini's accusations and recognition of the authenticity of the experiments carried out by the applicant)
2. On the third head of claim in the application (continuation of his experiments by the applicant)
(i). The note of 9 July 1971 did not constitute a ban but a decision to suspend the work on a purely temporary basis. It is doubtful whether a measure of this kind can form the subject of a complaint or of an appeal. However, a complaint or an appeal is always admissible once a definite decision has been taken.
(ii). Mr Malvicini's decision could only refer to the year 1971; in fact, the resources (staff, budgetary provision, etc.) shown on the job-sheet covering the work in dispute (a copy of which was attached to the reply) was, for budgetary reasons, allocated only for a year, whereas the present appeal is basically concerned with the future.
(iii). The decision of 14 April 1972 did not merely confirm Mr Malvicini's decision. In order to justify refusal to authorize the applicant to continue his work, the decision of 14 April pointed out that the work was not included in the official programmes of work of the JRC, whereas Mr Malvicini relied on different reasons.
(iv). As Mr Malvicini's decision was vitiated as being outside his competence and a misuse of his powers, the question whether the applicant may claim to be allowed to continue his work is relevant on the merits of the claim but not on its admissibility.
(v). A scientific officer can expect not to be tied down to purely routine work but to be allowed to carry out research which permits him to broaden his knowledge and experience; otherwise, an official would be hopelessly frustrated in his career. Moreover, Article 24 of the Staff Regulations of officials, as revised with effect from 1 July 1972, imposes the obligation on the Communities to encourage an official's. advanced vocational training.
3. On the fourth and fifth heads of the applicant's claim (damages)
4. On the supplementary claims submitted in the reply (withdrawal of certain documents from the applicant's administrative file; the Court's exclusion of them from its consideration)
IV —. Oral procedure
1. By appeal submitted on 25 July 1972, the applicant sought annulment of the decision of 14 April 1972 rejecting his complaint of 3 January 1972 in which he requested (i) withdrawal of certain accusations made against him by his superior (ii) annulment of the decision not to authorize him to continue his experiments and (iii) grant of damages in respect of the accusations made against him and of the ban on his going on with his work.
2. The applicant relies on the general principle which requires the employer to look after the interests of his employees, and on the first paragraph of Article 24 of the Staff Regulations, which imposes on the Community a duty to assist an official who becomes a victim of certain misdeeds.
3. Apart from the duties which fall on the Administration under Article 24 of the Staff Regulations, the principles of justice as well as those of good management demand that if serious accusations, reflecting on the professional integrity of an official in carrying out his duties, are made by a superior, the Administration should take all necessary steps to establish whether the accusations are justified.
4. If, after this has been done, it appears that the accusations cannot be justified, it is incumbent on the Administration to refute them and to do everything possible to restore the good name of the official concerned.
5. In any case, it is incumbent upon it not to give the accusations any publicity beyond what is strictly necessary.
6. It is accepted, in this case, that a serious accusation has been made against the applicant by his superior.
7. After having asked the applicant for information about the experiments in dispute in order to establish whether disciplinary proceedings should be instituted against him, the Commission, in the person of the Director-General of the Joint Research Centre at Ispra, in the end decided not to institute disciplinary proceedings against the applicant.
8. This decision was communicated to him only in the Commission's reply of 14 April 1972 rejecting his complaint through administrative channels.
9. In his complaint of 3 January 1972 the applicant applied to the Commission for written withdrawal, with apologies, of [the] accusations, and recognition of the validity of the results I have obtained from the experiments…
10. Though this request could be more happily phrased, nevertheless, in view of the applicant's note of 8 November 1971 according to which he wished to know the outcome of the inquiry which has been going on since May … and to know what decision you have taken, it can only be taken as a request addressed to the Commission to conduct an investigation and, in the event of the accusations of bad faith proving to be without foundation, to ensure that they be withdrawn.
11. For its failure to give an express reply on the substance of the request in its letter of 14 April 1972 the Commission must be regarded as having taken a decision to refuse an inquiry.
12. In neglecting to take all steps necessary to investigate the truth of the accusations made by the applicant's superior and, more specifically, to conduct a conclusive investigation, the Commission failed in its duty to the applicant.
13. This was aggravated by the Commission's failure to take the requisite steps to ensure that there was no publication of the accusations beyond what was strictly necessary.
14. In view of this the Commission's refusal to undertake an inquiry should be annulled.
15. In the application initiating proceedings, the applicant asked the Court to direct that witnesses, a list of whom he provided, should be called upon to verify the facts.
16. In its defence, the Commission expressed the view that the applicant's requests were devoid of foundation and therefore unjustified.
17. In its rejoinder, the Commission contended that the Court should direct that the necessary arrangements be made for the facts relating to the experiments of 28, 29 and 30 April 1971 to be investigated by an expert responsible for analysing all the papers of the applicant and of his superior which are of a purely scientific character.
18. After the hearing, the Commission renewed its offer to refer the scientific issues to an expert.
19. Thus, throughout the whole proceedings, the Commission has wilfully failed to appreciate the applicant's claims.
20. The applicant's complaint, explained afresh at the hearing, is that the Commission did nothing and thus created a problem which, with the passage of time, became increasingly serious.
21. It is thus necessary to make it clear that the purpose of the inquiry which the Commission ought to have undertaken was to seek evidence as to the truth of the accusations reflecting on the applicant's integrity.
22. Now that the Commission's refusal has been annulled, it must carry out this obligation with the minimum delay.
23. The applicant claims that the decision prohibiting him from continuing his experiments was vitiated as being a misuse of powers in that it was intended indirectly to punish him.
24. The Commission objects that his head of claim is inadmissible as being out of time.
25. As his superior's decision of 9 July 1971 forbade the applicant to continue his work and as he had not submitted a complaint through administrative channels within three months of that date, the Commission's reply to the administrative complaint was mere confirmation of the previous decision.
26. The time-limits laid down in the Regulations commence to run only from the moment the competent administrative authority adopts a definite attitude.
27. On 8 November 1971, the applicant asked the Director-General to take a definite decision.
28. On 3 January 1972, having received no reply from the Director-General, the applicant applied to the Commission for a definite decision within the prescribed time limit.
29. The objection on grounds of inadmissibility must therefore be dismissed.
30. The original decision, taken by the applicant's superior, temporarily withdrawing some of his responsibilities cannot reasonably be separated from the accusations of dishonesty made during the same period against him.
31. Though there was good reason at that time for a decision of this kind while the inquiry begun by the Director-General was going on, this is to some extent invalidated by the fact that the inquiry was not completed.
32. The fact that, without specifically basing its decision upon the accusations of dishonesty, the Commission confirmed the decision to prohibit the applicant from continuing his research, is not enough to remove the impression that, because it was maintained, the decision was a disciplinary measure rather than a temporary suspension pending the outcome of the inquiry.
33. The argument advanced by the Commission to justify prohibiting the applicant from continuing his work, viz. that the work was not covered by the programme of the Joint Research Centre, does not explain why, in that case, the annual job-sheet referring to the applicant's work provided for him to do this work during the whole of 1971, as he had done during the previous year.
34. In view of these considerations, the Commission's decision on this point must be annulled.
35. The applicant asks that the defendant be ordered to pay him the sum of FB 100000 as compensation for material and non-material damage resulting from the refusal to ensure withdrawal in writing of the accusations made by his superior and from the refusal to recognize the validity of the results he had obtained from his experiments
36. Pending the outcome of the action which must be taken by the Commission, the Court cannot at this time take a decision on this head of claim
37. In addition, the applicant is asking for FB 100000 for material and non-material damage resulting from the Commission's express rejection of the applicant's request to be allowed to recommence his work and experiments.
38. It is clear that the applicant has not suffered any material damage as a result of refusal of authority to recommence his work and experiments.
39. Annulment of this refusal is sufficient compensation for all non-material damage he has sustained.
40. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay costs.
41. The Commission has failed as regards the substance of its pleas and must accordingly be ordered to pay the costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Annuls the rejection by the Commission of the applicant's request of 3 January 1972 that the Commission should institute an inquiry into the accusations of dishonesty made against him by his superior;
2 Annuls the express rejection by the Commission of the applicant's request of 3 January 1972 to be allowed to recommence his work and experiments pursuant to job-sheet III-4-01/1971;
3 Dismisses, in so far as the present proceedings are concerned, the fourth head of claim;
4 Dismisses the fifth head of claim;
5 Orders the defendant to pay the costs.