Opinion of Mr Advocate General
Mr President,
Members of the Court,
Joined Cases 255 and 256/83, which I am to consider today, concern the legality of a disciplinary measure taken by the Commission of the European Communities against one of its officials.
In a letter of 10 September 1981 the Commission informed the applicant, a principal administrator in Grade A 5, that it had been informed that he had committed serious breaches of his obligations as an official under Articles 12 and 17 of the Staff Regulations of Officials of the European Communities. The Commission referred to two matters:
In the same letter the Commission summoned the applicant, pursuant to Article 87 of the Staff Regulations, to a hearing before one of its Directors General on 7 October 1981. The letter also contained a four-page annex setting out in detail the case against the applicant. It stated that the Commission had copies of the correspondence exchanged between the applicant and his buyer, which showed that the applicant had described the documents as confidential and difficult to obtain. The Commission regarded as aggravating circumstances the fact that the applicant could not have received the documents in the course of his official duties but must first have obtained them, the fact that he did so over a period of seven years (from September 1972 to April 1979) and the fact that he received payment.
The second allegation related to the applicant's engagement in an unauthorized activity. The applicant had on 1 September 1972 requested permission to engage in an outside activity involving an activité juridico-administrative, notamment traduction ou révision en franßais de textes législatifs, rapports du conseil et de l'assemblée etc. for a Gruppo Saccarifero Veneto, for a monthly salary of BFR 12000. He received further authorization for the same activity for the period between 25 September 1972 and 31 December 1976.
In relation to his subsequent activity he neither requested nor received authorization.
According to the Commission such an outside activity was unlawful because the applicant in fact had received payment which was considerably higher, and the activity had been fulltime, causing damage to the Commission.
At the hearing on 7 October 1981 the applicant stated that the documents were disseminated by an organization named Meconsult, founded by a group of Italian journalists. At first it was the applicant's brother in particular who passed on the documents; after his brother's transfer to Tunisia, the applicant himself passed documents as an intermediary. No secret or confidential documents were handed over. He explained that the documents were described as secret or confidential owing to journalistic practice, in which an unusual choice of words was often used.
The applicant denied the accusation that he had engaged in an outside activity on a fulltime basis. He stated that his superiors had been aware of his activities outside working hours. He could only be blamed for not having applied for formal authorization in respect of a certain period.
The applicant further stated that the evidence in the Commission's possession had been collected arbitrarily by his former wife. Therefore the Commission did not have a complete set of documents. Moreover, only three documents had been submitted to him, and they were not conclusive. He could not comment on documents which the administration had in its possession but had not communicated to him. The administration was bound to submit to him any other proof, because he could only adopt a position on it once he had seen it.
On 23 November 1981 the applicant signed the draft minutes of the hearing of 7 October 1981. From 30 November 1981 to 31 January 1982, and again from 1 March 1982, he was on sick-leave. By letter of 20 January 1982 the defendant sent to him the final version of the minutes and requested him to return them signed. However, the applicant never received that letter, as he no longer lived at the address given to the defendant. He was personally handed a copy of the letter dated 20 January 1982 on 4 March 1982. The minutes were never signed.
On 11 June 1982 the defendant referred the matter to the Disciplinary Board and submitted to it the report which had been drawn up on 17 May 1982, in accordance with Article 1 of Annex IX to the Staff Regulations. In that report, the applicant was accused of the following breaches of his obligations as an official:
Those breaches of obligation were stated to be infringements of Articles 12 and 17 of the Staff Regulations. The report makes no mention of the accusation that the applicant had engaged in fulltime outside activities.
On 8 July 1982 the Chairman of the Disciplinary Board forwarded to the applicant's legal representative the report and all the evidence against the applicant.
On 12 October 1982 the applicant was heard by the Disciplinary Board in the presence of his legal representative. On 3 December 1982 the Disciplinary Board delivered the reasoned opinion provided for in Article 7 of Annex IX to the Staff Regulations. In that opinion, the Disciplinary Board came to the following conclusions:
The accusation that the applicant had sold confidential Commission documents was not proved, as the documents contained in the file had been approved by the Commission and published.
The applicant had, however, been paid over a period of seven years to supply documents of the Commission and the OECD, the appearance of which was sometimes deliberately altered in order to raise their price.
The outside activities actually engaged in by the applicant were much wider than those authorized by the Commission.
In respect of that period, the applicant neither requested nor received authorization to engage in an outside activity.
In conclusion, the Disciplinary Board also took the following considerations into account:
In view of all the circumstances, the Disciplinary Board proposed that the disciplinary measure provided for in Article 86 (2) (e) should be taken against the applicant: he should be downgraded from Grade A 5 to Grade A 6.
On 3 January 1983, after the applicant had again been heard on 20 December 1982, the appointing authority took its decision. In that decision it followed the opinion of the Disciplinary Board both in relation to the assessment of the facts and in relation to the appropriate disciplinary measure. With effect from 4 January 1983, the applicant was downgraded to Grade A 6, Step 4, with seniority in step from 1 January 1983.
On 29 March 1983 the applicant submitted a complaint against the decision, which was rejected by the appointing authority by decision of 18 August 1983 (notified to the applicant on 23 August 1983).
On 18 November 1983 the applicant brought two actions before the Court. In the first action (Case 255/83) he claims that the Court should:
In the second action (Case 256/83), which the applicant describes as being relevant only if the first action is dismissed, the applicant claims that the Court should:
The Commission claims that the Court should dismiss both actions and take a decision on costs in accordance with the law.
I. Annulment of the disciplinary measure
My view on the individual claims and submissions is as follows:
I. Annulment of the disciplinary measure
1. In his first submission the applicant alleges that there has been a breach of the general principle of regard for the rights of the defence inasmuch as the Commission did not communicate to him the entire file in its possession until nine months after the disciplinary proceedings had been commenced and did not inform him before the hearing on 7 October 1981 whether or not the adoption of the disciplinary measure envisaged required that the case be referred to the Disciplinary Board.
2. In his second submission, the applicant alleges that the appointing authority adopted its decision on the basis of an incomplete file and failed to hear, or even confront the applicant with, its informant, the applicant's former wife.
3. In his third submission, the applicant alleges that the appointing authority did not properly carry out its duty to assist officials as required by Article 24 of the Staff Regulations. That duty to assist officials required the appointing authority to verify immediately whether the documents supplied to it had in fact been confidential and whether the applicant had fulfilled his obligations as an official towards the Commission. Moreover, the appointing authority ought to have protected the applicant against the defamatory allegations made by its informant.
4. In his fourth submission the applicant claims that there was a breach of the general principle that the accused must be given the benefit of the doubt; at the same time, he considers that there are certain contradictions in the statement of the reasons on which the decision to downgrade him is based. No account is taken of the fact that it has not been proved that the applicant obtained personal advantage from supplying the documents; nevertheless, it was assumed that the applicant's role was more important than that of a mere intermediary.
5. In his fifth submission the applicant also alleges that a series of errors was committed by the appointing authority with regard to the legal consequences to be attached to the facts actually proved and to the statement of the reasons on which the disciplinary measure was based. He alleges that he was wrongly accused of altering the content and description of the documents, in order to increase the price of them. He did not write the words confidential on the documents; moreover, the prices of documents were not changed.
6. In his sixth submission the applicant alleges that there was a breach of the principle of proportionality. The disciplinary measure adopted, by which he was downgraded to a lower grade and lower step, is out of reasonable proportion to the facts established against him, namely that from 1977 he failed to obtain authorization to engage in an outside activity.
7. In his seventh submission, the applicant claims that the defendant infringed Articles 12, 86 and 87 of the Staff Regulations and the principles of general disciplinary law and the rights of the defence. He relies upon the fact that, on the basis of the established facts, the breach of duty of which he was guilty was to be regarded as an infringement not of Article 17 of the Staff Regulations but only of Article 12. He considers that the disciplinary proceedings ought to have been freshly instituted on the basis of the lesser charge.
II. On the claims for damages in Cases 255/83 and 256/83 I can be quite brief.
1. As the applicant himself sets out, the claim in Case 255/83 is for compensation for the material and nonmaterial damage which the plaintiff suffered as a result of the unlawful decision to downgrade him. Thus the claim is linked to the alleged illegality of the disciplinary measure adopted. As I have been unable to accept that that decision was unlawful, I regard the claim made in Case 255/83 as unfounded.
2. The claim for damages in Case 256/83
In view of the foregoing, I propose that the Court of Justice should dismiss both claims raised in Joined Cases 255 and 256/83 as unfounded and order the parties to pay their own costs in accordance with Article 70 of the Rules of Procedure.
1 Translated from the German.
2 Judgment of 17 December 1981 in Case 115/80, René Demoliti Commission, [1981] ECR 3147.
3 Judgment of 4 February 1970 in Case 13/69, August Joseph van Eicki Commission, [1970] ECR 3
4 Judgment of 30 May 1973 in Case 46/72, Robert de Greefv Commission, [1973] ECR 543.
5 Judgment of 29 January 1985 in Case 228/83, F. v Commission, [1985] ECR 290, at paragraph 34.