Judgment of the Court (second chamber) 7 July 1977 Pierre Guillot v Commission of the European Communities

In Case 43/74

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

The substance of the case

IV — Oral procedure and measures of inquiry

Decision

Admissibility

The Substance of the Case

Costs

I —. Facts and procedure

1. At the time of the facts in dispute, the applicant was working, at the EAEC Joint Research Centre at Ispra (hereinafter referred to as the Centre), in the Protection Branch under Mr Malvicini, and he had been given responsibility for observing the internal contamination of the staff by radiation and for calculating the quantities of radio-active substances 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 by inhaling radio-active gases. It was then decided to assign to the applicant the task of carrying out certain experiments with a view to obtaining curves for the retention of xenon gas in the human body.

3. From the first stages of these experiments, the applicant thought he detected a completely unexpected tendency as regards the way in which retention was affected by the quantity of xenon inhaled, namely an isotope separation effect. Mr Malvicini did not share this view and maintained that the results obtained were due to errors. The applicant continued the experiments in question; members of the Biology Branch had become interested in his work and had obtained finance and equipment for him.

4. In April 1971, following various requests by the applicant for authorization to publish his results, Mr Malvicini decided to repeat the retention experiments, but this time dissolving mixtures of radio-active gases in water. The statements of the facts diverge on this point.

5. According to Mr Malvicini, the experiment was carried out on 26 and 27 April 1971, without revealing any isotope separation effect, and it was repeated by the applicant on 28 and 29 and the morning of 30 April.

6. According to the applicant, on 26 and 27 April Mr Malvicini and Mr Dominici set up the measuring apparatus (the equipment used for the experiment having been borrowed from the Environment Section), while the applicant was preparing the bottles containing the mixtures of radio-isotopes.

7. Be that as it may, a first or second series of experiments was thus carried out on 28, 29 and 30 April. It was in two stages: the partial dissolution of the gaseous mixture of radio-isotopes in water on 28 April and the study of the decay in radio-activity on the following night, that is the night of 28 to 29 April, then a further dissolution of the gaseous mixture in water on 29 April and the recording of the decay in radio-activity from 29 to 30 April.

8. The applicant gave Mr Malvicini the results of these experiments, or what he describes as such, and at least some of the spectrometer readings, which seemed to confirm the presence of the phenomenon alleged by the applicant.

9. By a memorandum of 3 May, Mr Malvicini informed the Director General of the Centre of the conclusion of the experiment in the following terms:

10. Next day, Mr Malvicini sent the Director-General a note headed Falsification of Experimental Results, which was in the following terms:

11. In a memorandum of 7 May 1971, Mr Guillot gave his version of the facts and explained that, for scientific reasons, he had corrected the measurements in all the appropriate ways, and that for the last six measurements, he had had to make a particular correction, made necessary by an accidental tilting of a bottle forming part of the experimental apparatus. In conclusion, he asked that one or more impartial persons competent to judge should be given all the records held by Mr Malvicini, should examine and check all the figures enclosed, together with his mathematical analysis, so as to ascertain whether his interpretation of the results was correct and dispose of the slanderous accusations made by Mr Malvicini. A technical appendix was attached to that memorandum.

12. On 6 July, in a memorandum to Mr Caprioglio, the Director-General of the Centre, Mr Malvicini commented on Mr Guillot's version of the facts. In brief, he persisted in his point of view, but added that, for all the measurements carried out on 29 April after 11.25 a.m., Mr Guillot had simply given him the results, and not the spectrometer recordings themselves, and that he did not see any need to alter the last six test measurements, since those results fitted in well with the previous measurements. That memorandum was not sent to Mr Guillot.

13. At Mr Caprioglio's request, Mr Guillot stated, in a note of 9 July 1971, that he did not remember exactly at what time he had informed Mr Malvicini of the corrections made, but that at all events it had happened on Friday 30 April 1971, that Mr Malvicini had made the accusation of falsifiction against him on Monday 3 May, and that on the afternoon of the same day, he had tried to explain again to Mr Malvicini everything that he had done.

14. On 21 October 1971, Mr Malvicini drew up for the Commission a document headed Short description and details of the facts which led Mr Guillot to submit a complaint within the meaning of Article 90 of the Staff Regulations, which contained the following paragraphs:

15. This document was drawn up at the request of the Director-General of the Centre in order to be informed of the different factors and the exact circumstances in which Mr Guillot's work was carried out and consequently with a view to being able to assess Mr Guillot's observations and remarks (memorandum of the Director-General of 25 January 1972).

16. Mr Guillot did not receive a copy of that note. At some point, the note was put into his personal file without his knowledge.

17. The exchanges between Mr Guillot and his superior continued. At the request of his superior, made on 22 February 1972, Mr Guillot gave to Mr Benco 193 spectra relating to previous experiments. Moreover, in a note of 25 February 1972, he stated, among other things, that the really important results were the first 20, relating to the solutions made on 28 April 1971, and the other 10 on the day of 29 April.

18. By a memorandum of 26 November 1973, Mr Guillot submitted to the Commission a complaint within the meaning of Article 90 of the Staff Regulations containing inter alia the following passages:

20. Since there was no reply to this complaint, Mr Guillot brought this action against its implied rejection, by an application lodged at the Court on 25 June 1974.

21. By a separate document, lodged at the Court Registry on 13 February 1975, the Commission raised an objection of inadmissibility to all the conclusions in the application.

22. The applicant replied to this objection by a written statement lodged at the Court Registry on 15 March 1975.

23. By an order of 24 September 1975, the Court (Second Chamber) decided to reserve for the final hearing its decision on the objection and to reserve the costs.

24. In view of the judgment of the Court of 11 July 1974 in Case 53/72 [1974] ECR 791, the Commission decided to instruct the Centre d'Études (Study Centre) at Mol, a Belgian organization, to carry out an inquiry into Mr Guillot's experiments. By a letter of 13 December 1974, the Agent of the Commission informed the applicant's lawyer that the Belgian organization wished certain conditions to be observed, namely:

25. By a letter of 25 January 1975, the applicant protested against these conditions.

26. On 18 September 1975, by reason of the delay in the conclusion of the external inquiry, the Commission decided to open a parallel internal administrative inquiry and to set up a committee for that purpose which should be empowered to collect any information, evidence or proof, to have access to any file or document relevant to the facts relating to Case 53/72, and in particular to question the officials directly concerned.

27. The report of the inquiry carried out at Mol is dated 19 September 1975. The authors of the report state as follows:

28. In their comments on these alterations, the authors of the report further state that the alterations to the last 6 measurements have no effect on the phenomenon sought, but that on the contrary the alterations to the last 5 measurements (Nos 37 to 41) of the day of 29 April and the omission of the 3 previous measurements (Nos 34 to 36) are decisive, for without them the phenomenon sought no longer exists.

29. The report ends with the following general conclusions;

30. The internal committee of inquiry drew up its report on 28 October 1975. This report also finds that the 5 measurements (Nos 37 to 41) carried out on 29 April 1971 between 12.25 p.m. and 4.05 p.m. are the ones which are crucial for proving the phenomenon alleged by Mr Guillot, and it further mentions an interview between the committee of inquiry and Mr Malvicini on 20 October 1975, during which Mr Malvicini is said to have put at the disposal of the members of the committee a record strip from an Olivetti computer.

31. Point 9 of the report dealing with the examination of Mr Guillot is worded as follows:

32. The conclusion of the report is as follows:

33. On 3 November 1975, Mr Guillot sent to the chairman of the committee of inquiry a criticism of the procedure which has been followed, particularly in relation to the fact that he had been denied an opportunity to examine the tapes in question, in order to check them.

34. The Commission also added to the file on the case a report from the Mol Study Centre, dated 29 December 1975. That report deals with experiments performed at Mol, similar to those carried out by Mr Guillot and Mr Malvicini in April 1971, and it reaches the conclusion that if there is an isotopic effect when the radio-xenons are dissolved, it is very small, much less than the results given by Mr Guillot. This report, which solely concerns scientific mistakes which Mr Guillot and Mr Malvicini may have made, brought from Mr Guillot a reply which also concerns the scientific aspect.

35. The Commission also lodged a report from the Mol Study Centre, dated 26 April 1976, which is a supplement to the two previous reports by that organization.

36. That report expresses the opinion that the authenticity of the strips in question cannot be doubted. It gives three reasons for this, which it sets forth as follows:

37. Attached to this supplementary report as an appendix is a photocopy of the handwritten report drawn up by Mr Guillot during the experiments carried out from 28 to 30 April, which he then sent to Mr Malvicini and on which there appear various typewritten annotations by Mr Malvicini.

38. The Court (Second Chamber) requested the applicant to submit his written observations on this supplementary report, which the applicant did by a written statement of 9 September 1976. The Court also asked the Commission to produce the originals of all the strips and recordings in its possession, relating to the experiments carried out from 28 to 30 April 1971. Furthermore, it asked that the original of Mr Guillot's handwritten report mentioned above should be lodged with it.

II —. Conclusions of the parties

1. Declare null and void the implied rejection of his complaint of 26 November 1973:

2. Rule that the Commission is to withdraw Mr Malvicini's note of 21 October 1971 from the applicant's personal file;

3. Order the Commission to pay the applicant one million Belgian francs by way of damages, subject to amendment in the course of the proceedings;

4. Order Mr Malvicini to return to the applicant the recordings of his experiments of dissolving xenon in water;

5. Order the Commission to pay the costs.

1. Dismiss all, or at least some, of the submissions in support of this application as inadmissible;

2. In so far as all or part of the submissions in support of the application are not declared inadmissible or in any event and in particular for reasons of the proper administration of justice, stay the proceedings until the Commission has lodged the report of the inquiry which has been begun;

3. Consequently, reserve the right or the parties to submit within a period to be fixed by the Court their observations on the application in the main action;

4. Order the applicant to pay the costs.

1. Dismiss the objection of inadmissibility as unfounded;

2. Alternatively, reserve its decision for the final judgment;

3. Reserve the costs.

1. Dismiss the application as unfounded;

2. Order applicant to pay the costs.

1. Join Cases 53/72 and 43/74 as being related, at least for the purpose of the oral procedure;

2. Therefore authorize the parties to lodge supplementary pleadings in consequence of the lodging of three new reports by the Commission in Case 53/72;

3. In the alternative, take formal note that the applicant persists in the conclusions contained in the application.

III —. Submissions and arguments of the parties

IV —. Oral procedure and measures of inquiry

1. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

2. At that hearing, it became clear that if the strips from the printer of the TMC multichannel analyser relating to the results taken at 12.25 to 1.20 p.m., 2.15 to 3.10 p.m. and 4.05 p.m. were authentic, as Mr Malvicini, and later the experts from Mol, maintain, the Commission would have been justified in dismissing Mr Guillot's claims.

3. The main argument in favour of the authenticity of the strips, apart from Mr Malvicini's statements, was based upon the fact that, for one of the gases, the Xe133 the results in Mr Guillot's report corresponded either exactly or within a few figures to the totals of the figures on the printer strip after deducting the background noise of the equipment.

4. In order to cast doubt upon this coincidence, counsel for the applicant drew the Court's attention to the fact that, on all the printer strips (those which are acknowledged as genuine as well as those alleged to be false), there is in fact a mechanical defect in the units column, so that sometimes it prints nothing and sometimes it only prints the figure partially. By putting either zero or a nine in the place of the illegible figure, divergent results could be obtained. The applicant argues that the results given in Mr Guillot's reports do not fall within the bracket which results from the addition of the figures printed on the strip which is alleged to be false. In order to explain this point of view, counsel for the applicant submitted to the Court during the hearing a graph from which it emerged that the totals of the figures for the measurements taken from 12.25 to 4.05 p.m. for the Xe133 gas in no way corresponded to the results given in Mr Guillot's two reports.

5. Mr Slusny was authorized by the Court to submit a short written version of his oral arguments which were to give details of the disagreement between the results given in the report of the experts at Mol and those contained in Mr Guillot's reports and the President of Chamber adjourned the proceedings for a period to allow the Commission to submit its observations in writing on this new fact.

6. In his answer, the Commission's Agent pointed out that in the graph which Mr Slusny had submitted to the Court, the applicant had neglected to deduct the background noise of the equipment, a constant which had to be deducted from the total of the results, as Mr Guillot had done, moreover, for all the preceding measurements which were not alleged to be false. If the background noise is deducted, it emerges that there is perfect agreement between the results given in Mr Guillot's reports and the values on the printer strip from the TMC analyser.

7. At Mr Slusny's request, Mr Guillot was authorized to submit a reply, from which it emerges that the values given by Mr Guillot in his technical appendix were not corrected for background noise.

8. In view of this discrepancy in the statement of the facts and of other discrepancies which became apparent in the course of the written procedure, the Court decided, pursuant to Article 60 of the Rules of Procedure, to order a measure of inquiry to be taken. It decided to hear Mr Guillot as a party and, as witnesses, Mr Benco, Mr Dominici, Mr Collard, one of the experts at Mol, and Mr Malvicini.

9. The applicant and the witnesses gave their evidence at the hearing on 3 March 1977.

10. After hearing the witnesses, the Court adjourned proceedings to allow the applicant to submit any observations on the measures of inquiry. Written observations were lodged on behalf of the applicant on 12 April 1977.

11. The Advocate General delivered his opinion at the hearing on 12 May 1977.

1. Like the dispute in Case 53/72, which was brought by the same applicant against the Commission and which was decided by the judgment of 11 July 1974 ([1974] ECR 791), the dispute in the present case originated in a series of experiments carried out from 28 to 30 April 1971 by the applicant, a scientific official at the EAEC Joint Research Centre at Ispra (hereinafter referred to as the Centre).

2. By those experiments, in which a mixture of radioactive xenon gases and stable xenon gas were dissolved in water, the applicant had been seeking to prove that a theory held by him since 1968 concerning an isotope separation effect was well founded.

3. The applicant informed his immediate superior, Mr Malvicini, of the result and on 4 May 1971 the latter sent the Director-General of the Centre a note headed Falsification of Experimental Results, in which he accused the applicant of having altered the results of the last six measurements of the experiments in question in order to produce evidence of a separation effect.

4. By a decision of 14 April 1972, the Commission rejected a complaint submitted by the applicant on 3 January 1972 seeking inter alia the withdrawal of the accusations made against him by his immediate superior.

5. The applicant sought annulment of that decision in his application in Case 53/72.

6. In its judgment of 11 July 1974, the Court found that, for its failure to give an express reply on the substance of the applicant's request in its decision of 14 April 1972, the Commission must be regarded as having refused to carry out an inquiry into the truth of the accusations made against the applicant and therefore as having failed in its duty to him.

7. Accordingly, the Court annulled the Commission's decision rejecting the applicant's complaint.

8. In his personal file, which had been lodged at the Court Registry by the defendant in Case 53/72, the applicant discovered a note dated 21 October 1971, which had been drawn up at the request of the Director-General of the Centre, signed by Mr Malvicini and put into his personal file without his knowledge.

9. Headed Short description and details of the facts which led Mr Guillot to submit a complaint within the meaning of Article 90 of the Staff Regulations, that document enlarged the scope of the accusation made by Mr Malvicini in the note of 4 May 1971, by stating that the details relating to the last eleven measurements had been altered and by accusing the applicant of having suppressed the results of three other preceding measurements.

10. By a complaint submitted on 26 November 1973 under Article 90 of the Staff Regulations of Officials, the applicant requested the withdrawal of the document from his personal file, the withdrawal of the fresh accusations, compensation for the damage which he alleged that he had suffered and the return of the recordings of his experiments of dissolving xenon in water, which were being held by Mr Malvicini.

11. Since the Commission did not react to that complaint, the applicant brought this action, by an application lodged at the Court on 25 June 1974, in which he claimed:

12. The Commission raised a series of objections to the effect that all, or at least some, of the submissions in support of this application should be dismissed as inadmissible.

13. The grounds of these objections may be summarized as follows:

14. All those objections go to the substance of the case and cannot therefore be examined in relation to admissibility.

15. By putting Mr Malvicini's note of 21 October 1971 into the applicant's personal file without the latter's knowledge, the Commission failed to comply with Article 26 of the Staff Regulations.

16. However, since the said note has been withdrawn from the file in the meantime, the applicant's claim to obtain precisely that result has lost its purpose.

17. The claim for the return of the recordings relating to the scientific experiments carried out by the applicant must be dismissed.

18. In fact, since they concern experiments carried out in the course of the applicant's work as an official in the service of the Centre, those documents are the property of the Commission.

19. The essential problem to be solved concerns the alleged infringement by the Commission of Article 24 of the Staff Regulations, according to which each Community shall assist any official in its service, in particular in proceedings against any person perpetrating… defamatory acts or utterances … by reason of his position or duties.

20. In the judgment of 11 July 1974, the Court held that if serious accusations reflecting on the integrity of an official in carrying out his duties are made by a superior, apart from the duties which fall on the Administration under Article 24 of the Staff Regulations, the principles of justice and of good management place a duty on the Commission to take all necessary steps to establish whether the accusations are justified.

21. After finding that the Commission had not fulfilled that duty with regard to the applicant and accordingly annulling the Commission's refusal to undertake the inquiry which it should have carried out, the Court made it clear that the defendant must fulfil that obligation with the minimum delay by undertaking an inquiry to seek evidence as to the truth of the accusations reflecting on the applicant's integrity.

22. The Commission has added to the case-file reports relating to four inquiries for which it has been responsible in accordance with the judgment in Case 53/72:

23. Thus the point at issue in this case is whether, in the light of the inquiry which the Commission caused to be carried out, the accusations made against the applicant were false, because if they were to prove justified the applicant would not be entitled to seek the assistance of the Commission within the meaning of Article 24 of the Staff Regulations.

24. However, before the results of the inquiries are assessed, mention should be made of the main points upon which Mr Malvicini based his accusations as these points emerge from the case-file, and of the applicant's reaction to those accusations.

25. According to Mr Malvicini's note of 4 May 1971, the applicant falsified the experimental data relating to the last six measurements carried out during the experiment — Nos 42 to 47 according to the numbering applied later — and forwarded to Mr Malvicini, concerning those measurements, not the strips from the automatic printer of the TMC multichannel analyser, but only the data worked out by the applicant himself.

26. In a memorandum of 7 May 1971, supplemented by a technical report and sent to the Director-General of the Centre at Ispra, the applicant set out his version of the facts in dispute.

27. In a memorandum dated 6 July 1971, sent to the Director-General of the Centre, Mr Malvicini commented upon the version of the facts given by the applicant and confirmed his previous statements, then added that, for all the measurements carried out after 11.25 a.m. on 29 April (that is, from measurement No 34), the applicant had simply given him the results, and not the original recordings of the analyser spectrometer.

28. In the note of 21 October 1971, Mr Malvicini specifically stated that the applicant had given him the results of the measurements carried out from the beginning of the experiment (at 9.45 a.m. on 28 April) to 11.25 a.m. on 29 April with the recordings from the analyser printer, and only the results of eleven of the fourteen measurements carried out from 11.35 a.m. on 29 April to 7.10 a.m. on 30 April (measurements Nos 34 to 47).

29. According to the same note, on 1 May, the day after the end of the experiments in question on 30 April, Mr Malvicini found in a waste-paper basket a piece of the roll from an Olivetti computer on which there were recorded the values of the spectra of the last six measurements, which did not correspond to the values which the applicant had given him.

30. The note further stated that on the morning of Monday 3 May the applicant assured Mr Malvicini that the data which he had given him were those of the analyser without any correction, but when Mr Malvicini showed him the strip from the computer, the applicant was unable to give any explanation.

31. The note continued that in the afternoon of the same day, the applicant admitted the fact that he had applied to the results of the last six measurements corrections made necessary by the accidental tilting of a bottle containing the radioactive mixture.

32. In support of his argument the applicant had written a note, accompanied by a technical appendix.

33. Mr Malvicini ends the said note by stating that after retrieving all the pieces of the recordings of the analyser printer and of the Olivetti computer, and after reconstructing piece by piece the strip recorded by the printer, he had found that the data obtained on 29 April from 11.35 a.m. (namely measurements Nos 34 to 47) had been corrected in a similarly appropriate manner.

34. The applicant admits that he altered the results of his experiments, but only as regards the last six measurements.

35. As regards the experiments carried out by the applicant from 28 to 30 April 1971, the authors of the Boulenger report found that the results of measurements Nos 1 to 33 did not give rise to any dispute.

36. However, the results of measurements Nos 34 to 36, carried out between 11.35 a.m. and 12.05 p.m. on 29 April, did not appear in the documents of the applicant, who — the report states — seemed to have set them aside because they did not go in the desired direction.

37. According to the report the results of the next five measurements (Nos 37 to 41) as well as those of the last six measurements had been altered.

38. In their comments upon these alterations, the authors of the report state that the alterations to the last six measurements have only limited importance in the context of the experiment.

39. On the other hand the authors of the report state that the three measurements (Nos 34 to 36) which the applicant did not mention, and the five following measurements (Nos 37 to 41) — the alteration to which the applicant did not explain — are decisive, for without that omission and that alteration the phenomenon sought no longer exists.

40. The report states that the agreement between the first and the second series of measurements, upon which the applicant relies and which appears necessary in order to prove the existence of the phenomenon in question, could not have existed without the alteration of the results of measurements Nos 37 to 41 and the disappearance of the results of measurements Nos 34 to 36.

41. Furthermore — according to the report — the alleged tilting of a bottle in no way justifies the alterations to the measurements taken on the second day or the use of very variable correction factors, instead of a single factor applied to all the measurements.

42. The authors of the report are of the opinion that, from the scientific point of view, the use of such corrected results so as to produce the desired effect amounts to actual falsification.

43. The report of the internal administrative committee also states that measurements Nos 37 to 41 are crucial for proving the phenomenon alleged by the applicant.

44. According to the report, when examined by that committee, the applicant denied that the calculations printed on the record strip from the Olivetti computer had been carried out by him.

45. Furthermore the applicant stated, according to the report, that it was very easy for anybody to reproduce such recordings.

46. However, the committee of inquiry states that it found that the values given in the analyser record strips relating to the measurements in dispute, which were submitted by Mr Malvicini, and the values appearing on an Olivetti computer record strip which the latter had put at the disposal of the committee, were in complete agreement.

47. According to the committee, there was no possibility, bearing in mind the technical resources available at Ispra in 1971, of making up such a record strip artificially.

48. Consequently, the committee felt compelled to acknowledge the Olivetti computer record strip submitted by Mr Malvicini as genuine.

49. It concluded that the alterations to the experimental values and their communication in the form of a report by the applicant were unacceptable from the scientific and professional point of view, so that the members of the committee consider the severe criticismus addressed to the applicant to be justified.

50. The supplementary report of 29 December 1975 deals with experiments performed at Mol, similar to those carried out by the applicant and Mr Malvicini in April 1971.

51. Since that report, as well as the reply which it provoked from the applicant, concern purely scientific matters, they are irrelevant for the purpose of reaching a decision in this case.

52. In fact, it is not a matter of examining the scientific validity of the disputed experiments, but only of ascertaining whether the accusations of falsification or dishonest conduct are justified.

53. The report by the Study Centre at Mol, dated 26 April 1976, constitutes a supplement to the two previous reports by that organization.

54. Attached to this supplementary report as an appendix is a photocopy of the handwritten report drawn up by the applicant during the experiments carried out from 28 to 30 April 1971 and then sent by him to Mr Malvicini.

55. The authors of the report confirm their opinion that the authenticity of the strips in question as relating to the experiments carried out by the applicant from 28 to 30 April 1971 cannot be doubted.

56. Although the Commission may be criticized for its excessive dilatoriness in carrying out its duty to carry out the inquiry prescribed by the Court in its judgment of 11 July 1974, the applicant has not suffered any damage by reason of that delay, since the outcome of the inquiry is distinctly unfavourable to him.

57. However, the applicant objected inter alia that neither the internal administrative committee nor the authors of the Boulenger report respected the rights of the defence.

58. He objected that they proceeded unilaterally without giving him any opportunity to examine, identify and if necessary to take copies of the documents to which their inquiries related and without allowing him to state his case.

59. In particular he stated that they based their views essentially upon one of the strips from the multichannel analyser, the authenticity of which had been challenged by the applicant.

60. In the course of the difficult inquiry which it was responsible for carrying out, it was incumbent upon the defendant to provide the applicant with adequate safeguards.

61. It emerges from a letter dated 15 January 1975 from the Agent of the Commission to the applicant's lawyer that the Commission was prepared to allow the applicant to take part, as appropriate, in the work of the experts.

62. Since the applicant did not avail himself of that opportunity, the fact that in the course of the investigations only one party was heard was due to the applicant himself, and consequently it cannot prevent the Court from assessing the technical reports in the context of all the evidence upon which its final decision must be based.

63. The applicant stated that he altered the last six results of the experiments by introducing correction factors intended to allow for the accidental displacement of a part of the apparatus for the experiment.

64. It is not disputed that he neglected to inform his immediate superior of that alteration of the experimental data when he submitted the result of his experiments, or that the introduction of the correction factors was revealed to Mr Malvicini only following the doubts which Mr Malvicini had expressed with regard to the results submitted by the applicant.

65. This conduct may give rise to doubts from the point of view of scientific method — which would probably have required experiments whose normal course had been disturbed to be repeated — and the applicant's behaviour is certainly open to criticism with regard to the duty of frankness owed by a scientific research worker to his immediate superior.

66. In fact, the applicant was under a duty at once to give his immediate superior complete details of the progress of his experiments, without hiding any factors capable of raising doubts as to the results obtained.

67. That behaviour on the part of the applicant is enough on its own to justify Mr Malvicini's suspicions, which were expressed in the first evaluation given in the note of 4 May 1971 and reiterated subsequently.

68. Furthermore, it became increasingly clear during the Court proceedings that the essential part of the applicant's defence consists in denying the authenticity of the strips from the analyser printer relating to measurements Nos 37 to 41 which Mr Malvicini states that he found in the wastepaper baskets of the Centre at Ispra.

69. If the abovementioned strips were authentic, the results contained in the handwritten note submitted by the applicant to Mr Malvicini must have been falsified, so that the accusations made by the latter against the applicant would be justified.

70. Consequently, the Court should first of all turn its attention to those factors which affect this question, which is fundamental for the outcome of the action.

71. The Commission has emphasized the fact, which is moreover confirmed in the abovementioned reports, that for the xenon-133, one of the two gases analysed in the course of the applicant's experiment, after deduction of the background noise of the apparatus used for the experiment the values recorded on the strips in question correspond within a few figures to the results submitted by the applicant in his report to the Director of the Centre at Ispra.

72. On the other hand it is pointed out that there is no such correspondence for the other gas, the xenon-131.

73. The applicant first alleged that those values related to an experiment other than his own or that they were fakes.

74. According to the Commission and the experts of the Study Centre at Mol, there is only a minute chance of managing with the printer to reproduce for the xenon-133 a result corresponding to that obtained in the course of the applicant's experiment.

75. Moreover on several points the applicant has challenged the statement that the values recorded for the xenon-133 on the strips correspond to the results set out in his report.

76. He has cast doubt upon a figure appearing on the strips in the hundreds column, pointing out that that figure could be read either as a zero or as a nine.

77. However, when those strips are compared with the normal trend of the curve representing the dissolution phenomenon in question, it emerges that the figure adopted by the authors of the Boulenger report is correct and that furthermore it corresponds to the figure indicated first of all by the applicant himself.

78. The applicant accuses the experts consulted by the Commission of having taken advantage of the fact that the difficulty in reading certain figures in the units column, owing to a mechanical defect in the printer, presented them with a number of alternatives in order to give the impression of a divergence between the results on the strip and those given in the applicant's report.

79. However, the experts consistently adopted the mean value 5, in the case of illegible figures.

80. The Commission has shown that if either 1 or 9 (the extreme values) is taken for every illegible figure, so as to obtain extreme results, the data given in the applicant's report of 7 May 1971 still remain within those two limits.

81. The applicant submitted different figures on the basis of this bracket method, but the Commission pointed out that the difference was due to the applicant's having neglected to deduct the constant factor to take account of the background noise of the equipment, a deduction which he had made in his analysis of the data of the experiments.

82. Although, in his observations appended to his lawyer's letter of 6 December 1976, the applicant stated that he had not deducted that factor in his technical appendix of 7 May 1971, this is in open contradiction with the applicant's statements on page 2 of the technical appendix.

83. Finally, in support of the authenticity of the strips, the Commission pointed out certain handwritten annotations on the strips which it alleges were made mostly by the applicant himself.

84. It also drew attention to the fact that the various pieces of strips belonged to the same roll, since the respective margins of those pieces corresponded to one another.

85. Both in the written procedure and in the oral procedure, the applicant denied that he had made the handwritten annotations.

86. In view of the disagreements between the parties over points of fact, the Court decided under Article 60 of the Rules of Procedure to request the applicant to appear in person and to hear four witnesses: Mr Malvicini, Mr Benco, Mr Dominici and Mr Collard.

87. The applicant availed himself of the opportunity of submitting written observations on the hearing of those witnesses.

88. In his testimony, Mr Malvicini gave an entirely satisfactory explanation of the reasons why a period of six months had elapsed between the discovery of the strips and the further accusations of falsification contained in his note of 21 October 1971.

89. The applicant's written observations provided no cause whatever for doubting those reasons, which relate essentially to the difficulties presented by the applicant's absence from his work owing to a stay in hospital and then to periods of holiday.

90. It emerges from the testimony of the witnesses Benco, Dominici and Malvicini that, contrary to the applicant's statement to the effect that no experiment had been performed on 26 and 27 April 1971, such experiments had been carried out by Mr Malvicini and that the applicant had been aware of them.

91. The applicant admitted that he was aware of the tests carried out by Mr Malvicini.

92. In the course of the oral inquiry the applicant asserted that he had prepared the xenon-131 gas and had then mixed it with the xenon-133 from the Study Centre at Mol.

93. On the other hand, in his aforementioned technical appendix he had stated that the previously prepared mixture had been supplied to him by the Study Centre at Mol.

94. That statement is confirmed by the testimony of the witnesses Collard and Dominici.

95. The applicant stated orally that during the morning of Thursday 29 April he had bubbled the gases through the water for approximately one hour, whereas in his written report he had stated that that operation had lasted from 10 to 15 minutes.

96. When asked about this point, he explained that the latter statement was only approximate and was immaterial.

97. However, that explanation is unacceptable, since it had to be known exactly how long that operation had lasted in order to be able to calculate the value of the background noise.

98. In his handwritten report to Mr Malvicini, the applicant stated that, in order to compensate for the disturbing effect of the accidental displacement of a bottle, he had applied a correction factor to the results for the xenon-131, but not to those for the xenon-133.

99. However, in his subsequent report to the Director-General of the Centre at Ispra, he wrote that he had applied the correction factor to both gases, which, as the applicant had to admit in the course of his testimony, would have made the operation in question meaningless.

100. As regards the measurements which he took, the applicant stated that in order to obviate the mechanical defects of the printer relating to the units column he had, in calculating the results of the experiments, replaced the illegible figure sometimes with a 1 and at other times with a 9, but he did not explain why he chose sometimes one method and sometimes the other.

101. However, it emerges from an examination of the undisputed strips and from the figures used by the applicant in his report that he consistently replaced the missing figure with the mean value 5.

102. Finally, during his testimony, the applicant admitted for the first time that certain handwritten annotations on the strips relating to measurements between Nos 37 and 41 might have been written by him.

103. That admission both strengthens the inferences to be drawn from the physical resemblance of the undisputed strips to the disputed ones and weakens the applicant's statement to the effect that the disputed strips related to a different experiment or had even been faked.

104. It follows from these considerations as a whole that the inaccuracies and contradictions which progressively emerged in the applicant's arguments in the course of the proceedings only strengthen Mr Malvicini's essentially consistent version of the facts in dispute, and add weight to the reports submitted by the Commission, and in particular those drawn up by the experts of the Study Centre at Mol and by the administrative committee of inquiry.

105. Thus the Commission has proved to the extent required by law that the applicant's behaviour justified the accusations made against him by his immediate superior both in the note of 4 May 1971 and in that of 21 October 1971.

106. Accordingly, since the Commission has not infringed Article 24 of the Staff Regulations to the detriment of the applicant, his claim for the annulment of the Commission's implied rejection of his complaint of 26 November 1973 must be dismissed as unfounded.

107. Consequently, the applicant's claim for damages for the accusations made against him must be dismissed.

108. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

109. Nevertheless, under Article 70 of the Rules of Procedure, in actions by staff of the Communities, the institutions shall bear their own costs.

110. Moreover, since the hearing of the witnesses was made necessary by virtue of the disagreements between the parties over certain points of fact, and since the applicant has failed in his submissions, he must pay the costs of hearing the witnesses.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs;

3 Orders the applicant to bear the costs of hearing the witnesses.

1 Language of the Case: French.