CELEX: 62008FJ0080
Public service
Officials

By application lodged at the Registry of the Tribunal on 13 October 2008 by e-mail (the original having been received on the
same date), Mr Wenig sought annulment of the decision of 18 September 2008 whereby the Commission of the European Communities,
in application of Articles 23 and 24 of Annex IX to the Staff Regulations of Officials of the European Communities (‘the Staff
Regulations’), suspended him for an indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary
for a maximum period of six months.

Legal context
According to Article 86 of the Staff Regulations:
‘Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally
or through negligence on his part, shall make him liable to disciplinary action.
…
3.      Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down
in Annex IX.’
Article 23 of Annex IX to the Staff Regulations is worded as follows:
‘1.      If the appointing authority accuses an official of serious misconduct, whether through a failure to honour his professional
obligations or through an infringement of the law, it may immediately suspend the person accused of that misconduct for a
specified or indefinite period.
2.      The appointing authority shall take this decision after hearing the official concerned, save in exceptional circumstances.’
Article 24(1) and (2) of Annex IX to the Staff Regulations are worded as follows:
‘1.      The decision suspending an official shall state whether the official is to continue to receive his full remuneration during
the period of suspension or what part thereof is to be withheld. The amount paid to the official shall not under any circumstances
be less than the minimum subsistence figure laid down in Article 6 of Annex VIII to these Staff Regulations, with the addition
of any family allowances payable.
2.      The situation of a suspended official must be definitively settled within six months of the date on which the suspension takes
effect. If no such decision is taken within six months, the official concerned shall be entitled to again receive full remuneration,
subject to paragraph 3.’
On 30 November 2007, the Commission adopted Decision C (2007) 5730 on the exercise of powers conferred by the Staff Regulations
on the appointing authority and by the Conditions of Employment of other servants (‘the Conditions of Employment’) on the
authority responsible for concluding contracts of employment (‘the contracting authority’). The first paragraph of Article
1 of that decision, which was published in
Administrative Notices
No 57-2007 of 6 December 2007, was worded as follows:
‘The powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the [contracting
authority] in respect of staff paid from the administrative appropriations and staff paid from the research and technological
development budget other than those serving in the Joint Research Centre shall be exercised as appropriate and save as provided
for hereinafter by the Commission, by the Member of the Commission responsible for personnel, the Member of the Commission
responsible for the Unified External Service, the Director-General for Personnel, other Directors-General including heads
of department and the Directors of [the Office for the Administration and Payment of Individual Entitlements], the [Office
for Infrastructure and Logistics Brussels] and the [Office for Infrastructure and Logistics Luxembourg] in accordance with
Annex I.’
According to paragraph 14, in Section VI ‘Discipline …’ of the ‘[t]able of appointing authorities for Commission staff paid
out of the operating budget and the research budget (other than those serving in the [Joint Research Centre]’, to which Annex
I to Decision C (2007) 5730 refers, it was envisaged that the powers conferred on the appointing authority to suspend an official
in application of Articles 23 and 24 of Annex IX to the Staff Regulations were to be exercised, in the case of officials in
grades AD 16 and AD 15 and officials in grade AD 14 of the senior positions (directors or equivalent), by the Commission and,
in the case of other officials, by the Director-General for Personnel.
By a communication of 9 September 2008, a draft Decision C (2008) 5085 amending Decision C (2007) 5730 was placed on the agenda
of the 1842nd meeting of the College of Commissioners of 10 September 2008. That draft decision envisaged that the power to
suspend officials in grades AD 16 and AD 15 and officials in grade AD 14 in the senior positions (directors or equivalent)
would be transferred to the Member of the Commission responsible for personnel. At the meeting of 10 September 2008, the College
of Commissioners decided to ‘amend Decision C (2007) 5730 … as set out in Document C (2008) 5085’ and stated that that decision
‘[would] take effect immediately’ (the ‘decision of 10 September 2008’). That decision was not published in
Administrative Notices
.
On 29 April 2009, the Commission adopted Decision C (2009) 3074 ‘amending Decision C (2007) 5730’, in which it was envisaged
that the powers conferred on the appointing authority to suspend an official would henceforth be exercised, in the case of
officials in grades AD 16 and AD 15 and officials in grade AD 14 in the senior positions (directors or equivalent), by the
Member of the Commission responsible for personnel. That decision was published in
Administrative Notices
No 33-2009 of 8 May 2009.

Facts
At the material time the applicant was an official of the Commission in grade AD 15 and was Director of Directorate G ‘Market
Access and Industry’, which came under the Directorate-General (DG) for Trade of the Commission and was responsible, in particular,
for implementing the anti-dumping policy.
On 7 September 2008, the United Kingdom weekly newspaper
The Sunday Times
published in its printed version and on its website an article entitled ‘Revealed: how Eurocrat leaked trade secrets over
lavish dinners’. The article described three dinners which the applicant attended between March and September 2008 in restaurants
in Brussels (Belgium) with reporters from
The Sunday Times
who had introduced themselves to him as the correspondents of a Chinese exporter with an interest in certain anti-dumping
procedures conducted by the Commission. Still according to the article, the applicant provided the persons in question, in
the course of those dinners and in telephone conversations, with information relating to proceedings pending before the Commission
which he was not authorised to disclose. It was also proposed to the applicant that, in exchange for the information, he should
collaborate in the activities of the alleged Chinese exporter for an annual remuneration of EUR 600 000, but, according to
the article, the applicant envisaged doing so only after he had retired. Last, in response to the proposal which had been
made to him during the second dinner to pay him a sum of EUR 100 000, the applicant was alleged to have stated that such a
sum could be placed in a frozen account to which he would have access once he had retired, but none the less said that that
payment should be made only in the light of the results obtained by the alleged Chinese exporter on the basis of the information
received.
In the context of an administrative investigation initiated by the Commission, the applicant was heard on 10 September 2008
by two officials from the Commission’s Investigation and Disciplinary Office (IDOC). During that hearing, the applicant, who
was legally represented, admitted having been invited to, and having attended, the three dinners described in the article
in
The Sunday Times
without informing his superiors. He also acknowledged having communicated to his hosts various information concerning, in
particular, the names of two Chinese candle-producing companies which were likely to obtain ‘market economy treatment’ (MET)
status following an anti-dumping proceeding then in progress. However, the applicant emphasised that the information was semi-public
and, in any event, of no commercial value. Last, while the applicant informed the IDOC officials that at the second dinner
his hosts had proposed that, in exchange for the information communicated to them, they should pay the applicant a sum of
money in a bank account in a country with a preferential tax regime, he denied having accepted that offer and emphasised that
during those contacts he had only envisaged the possibility of collaborating in the activities of the Chinese exporter after
he had retired.
By letter of 11 September 2008, the Member of the Commission responsible for personnel, relying on his capacity as appointing
authority, informed the applicant that he proposed to suspend him and to withhold a part of his remuneration, pursuant to
Articles 23 and 24 of Annex IX to the Staff Regulations, and ordered him to attend a hearing to be held on 12 September 2008.
By letter of 12 September 2008, counsel for the applicant requested the Commission to postpone the hearing and added that
the applicant intended to ‘use the French language throughout the proceedings against him’.
Also on 12 September 2008, the Member of the Commission responsible for personnel informed the applicant that the hearing
would take place on 16 September 2008 and stated that the applicant would be able to use the French language at that hearing.
On 16 September 2008, the applicant was heard by the Member of the Commission responsible for personnel. During that hearing,
a record of which was drawn up in English, the applicant repeated in substance the statements which he had made before the
IDOC officials.
Also on 16 September 2008, the applicant lodged a complaint with the prosecuting authorities, together with a claim for civil
damages, against, in particular, the authors of the article in
The Sunday Times
.
By decision of 18 September 2008, the citations in which referred to Commission Decision C (2007) 5730 of 30 November 2007
on the exercise of powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment
on the contracting authority and ‘as last modified by [the] decision of 10 September 2008’, the Member of the Commission responsible
for personnel, acting pursuant to Articles 23 and 24 of Annex IX to the Staff Regulations, suspended the applicant for an
indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months
(‘the contested decision’).
By way of justification of the contested decision, the Member of the Commission responsible for personnel relied on the fact,
disclosed by the information ‘in various press articles published, in particular [the article] in
The Sunday Times
’, and at the hearings of the applicant before the IDOC officials and before himself, that the applicant had failed to comply
with Articles 11, 12 and 17(1) of the Staff Regulations. According to the contested decision, the applicant had transmitted
confidential information to persons to whom it was not to be communicated, had displayed a willingness to be recruited by
those persons at a later date for a substantial salary in exchange for collaboration which had begun even before he retired
and did not inform his superiors that he had been approached by such persons or sought the authorisation of his superiors
to engage in those repeated contacts. Last, the contested decision emphasised that such conduct, should it be established,
would constitute ‘serious misconduct on [the applicant’s] part’, in view, in particular, of the ‘major reputational damage
to the … Commission’ which it would have caused and the applicant’s ‘high-ranking’ position within the Commission.
On 24 September 2008, the applicant submitted a request for assistance under Article 24 of the Staff Regulations, dated 23
September 2008 and requesting the Commission to do all that was necessary to reinstate his professional reputation and, in
particular, to institute legal proceedings in order to establish the illegality of the conduct of the authors of the article
in
The Sunday Times
.
On 3 October 2008, the applicant lodged a complaint within the meaning of Article 90(2) of the Staff Regulations, seeking
annulment of the contested decision.
By memorandum of 22 January 2009, the Commission replied to the applicant’s request for assistance of 24 September 2008 and
stated that the investigation opened by the European Anti-Fraud Office (OLAF) took the place of the inquiry which the appointing
authority would have been able to carry out under Article 24 of the Staff Regulations. The Commission added that that memorandum
did not constitute a rejection of the request for assistance.
On 29 January 2009, OLAF closed the investigation; it sent its findings to the Belgian judicial authorities on 12 February
2009.
By decision of 3 February 2009, the appointing authority rejected the complaint lodged against the contested decision.
By decision of 18 February 2009, the applicant, at his request, was granted permission to retire with effect from 1 May 2009.

Forms of order sought by the parties and procedure
By application received at the Registry of the Tribunal on 13 October 2008 by e-mail, the applicant brought the present action.
On the same date, an application for a stay of enforcement of the contested decision was also received at the Tribunal.
By letters from the Registry of 14 October 2008, the parties were informed that the main proceedings had been stayed pending
an express or implied decision rejecting the complaint lodged by the applicant on 3 October 2008.
By order of 17 December 2008, the President of the Tribunal dismissed the application for a stay of enforcement of the contested
decision.
Following the decision rejecting the complaint, the parties were informed by letters from the Registry dated 25 February 2009
that the proceedings had been resumed before the Tribunal.
The applicant claims that the Tribunal should:
–        annul the contested decision;
–        order the Commission to pay the costs.
The Commission contends that the Tribunal should:
–        dismiss the action;
–        order the applicant to bear his own costs and to pay the Commission’s costs.
By means of a measure of organisation of procedure, the Tribunal invited the Commission to confirm that the decision of 10
September 2008 referred to in the citations in the contested decision had been adopted and, if so, to produce a copy of that
decision and state whether it had been published. In response to that measure, the Commission, by letter of 3 June 2009, produced
a copy of the communication of 9 September 2008 of the Vice-President of the Commission containing the draft decision which
became the decision of 10 September 2008 and the minutes of the meeting of the College of Commissioners of 10 September 2008
at which the draft decision had been adopted. Furthermore, while acknowledging that the decision of 10 September 2008 had
not been published in
Administrative Notices
, the Commission emphasised that the communication of 9 September 2008 had none the less been made available on the Commission’s
intranet and provided the relevant electronic link.
In the preliminary report, the Tribunal invited the parties to concentrate their pleadings on the question whether the Member
of the Commission responsible for personnel was competent to adopt the contested decision.

Law

Admissibility
Pointing to the fact that the contested decision had suspended the applicant for an indefinite period and ordered that the
sum of EUR 1 000 per month be withheld from his remuneration for a maximum period of six months, the Commission submits that
the applicant, who retired on 1 May 2009, no longer has an interest in seeking annulment of the contested decision, at least
in so far as that decision suspended him from his duties.
In that regard, it is true that, in so far as it ordered the applicant’s suspension for an indefinite period, the contested
decision was implicitly but necessarily repealed when, on 1 May 2009, the applicant retired, since a measure of suspension
can apply only to officials in active service. Furthermore, even before the present action was brought, the contested decision
had lapsed in so far as it ordered that part of the applicant’s remuneration be withheld, since, in accordance with Article 24(2)
of Annex IX to the Staff Regulations, the withholding of his remuneration had been limited to a period of six months.
However, the circumstances referred to above have not rendered the present action devoid of purpose or removed the applicant’s
interest in seeking annulment of the contested decision in its entirety, since it produced effects not only on his financial
situation, but also on his reputation (see, by analogy, concerning the interest of an official retired on the ground of total
invalidity in seeking annulment of his staff report, Case C‑198/07 P
Gordon
v
Commission
[2008] ECR I‑10701, paragraphs 44 and 45).
It follows that the plea of inadmissibility must be rejected.

Merits
In his application, the applicant puts forward seven pleas in law, alleging:
–        breach of the second paragraph of Article 25 of the Staff Regulations, consisting in failure to state reasons;
–        breach of the rights of the defence;
–        breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome
on 4 November 1950 (‘the ECHR’);
–        the existence of manifest errors of assessment with respect to the alleged facts;
–        breach of Article 23 of Annex IX to the Staff Regulations with respect to the alleged serious misconduct;
–        breach of the principle of proportionality;
–        failure to comply with the duty to have regard for the interests of officials.
Furthermore, at the hearing the applicant put forward an eighth plea, alleging that the contested decision was adopted by
an incompetent authority.
First plea: breach of the second paragraph of Article 25 of the Staff Regulations, consisting in failure to state reasons
–       Arguments of the parties
The applicant maintains that the contested decision does not contain a sufficient or a valid statement of reasons in so far
as it does not set out in detail the reasons why the facts alleged against him constitute misconduct and, moreover, serious
misconduct.
In its defence, the Commission contends that the plea should be rejected and claims that the contested decision contains a
sufficient statement of reasons.
–       Findings of the Tribunal
According to established case-law, the purpose of the obligation to state the grounds on which a decision adversely affecting
an official is based is to enable the Community judicature to review the legality of the decision and to provide the official
concerned with sufficient information to assess whether the decision is well founded or subject to a defect enabling its legality
to be challenged. That obligation is satisfied when the measure against which an action may be brought has been adopted in
circumstances known to the official concerned, which enable him to apprehend the scope of the measure taken against him (Case
T‑80/92
Turner
v
Commission
[1993] ECR II‑1465, paragraph 62, and Case T‑20/96
Pascall
v
Commission
[1997] ECR-SC I-A-361 and II‑977, paragraph 44).
In the present case, it is apparent from the documents in the case‑file that the Commission, in the contested decision, the
substance of which is set out at paragraph 18 of the present judgment, described in detail the nature of the allegations of
serious misconduct made against the applicant. The Commission also stated that those allegations had as their origin information
disclosed by ‘various press articles published, in particular [the article in]
The Sunday Times
’, and emphasised that such conduct, should it be established, would constitute ‘serious misconduct on the part of the applicant’,
in view, in particular, of the ‘major reputational damage to the … Commission’ which it would have caused and the applicant’s
‘high-ranking’ position within the Commission.
It follows that the applicant cannot validly claim that the contested decision does not contain a sufficient statement of
reasons.
In those circumstances, the first plea must be rejected.
Second plea: breach of the rights of the defence
–       Arguments of the parties
The applicant claims that, in order to adopt the contested decision, the Commission relied on information ‘in various press
articles published, in particular [the article] in
The Sunday Times
dated 7 September 2008’. In the applicant’s submission, only the article published in
The Sunday Times
was communicated to him, and not the other press articles. There was thus a breach of the rights of the defence.
In reply, the Commission contends that it observed the principle of respect for the rights of the defence by hearing the applicant
before adopting the contested decision.
The Commission adds that, in any event, if any criminal or disciplinary proceedings should subsequently be brought, the applicant
would again be given the opportunity to express his views.
–       Findings of the Tribunal
According to established case-law, respect for the rights of the defence in all proceedings which are brought against a person
and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which
must be guaranteed, even in the absence of any express provision to that effect in the rules relating to the proceedings in
question (see Case T‑169/95
Quijano
v
Commission
[1997] ECR-SC I‑A‑91 and II‑273, paragraph 44, and Case T‑36/96
Gaspari
v
Parliament
[1997] ECR-SC I‑A‑201 and II‑595, paragraph 32).
That principle, which derives from the requirements of sound administration, requires that any person who may be adversely
affected by the adoption of a decision should be placed in a position in which he may effectively make known his views on
the evidence against him which has been taken as the basis for that decision (Case T‑450/93
Lisrestal and Others
v
Commission
[1994] ECR II‑1177, paragraph 42, upheld on appeal by the Court of Justice in Case C‑32/95 P
Commission
v
Lisrestal and Others
[1996] ECR I‑5373, paragraph 21).
It is also important to bear in mind that Article 23(2) of Annex IX to the Staff Regulations, the purpose of which is to guarantee
respect for the rights of the defence in proceedings concerning the suspension of officials, provides that the appointing
authority may take a decision to suspend an official only after hearing the official concerned, save in exceptional circumstances.
In the present case, it is apparent from the documents in the case‑file that, in application of the abovementioned provisions
of Article 23(2) of Annex IX to the Staff Regulations, the applicant was heard on 16 September 2008, that is to say, before
the contested decision was adopted, by the Member of the Commission responsible for personnel, who informed him of the allegations
of serious misconduct against him and gave him the opportunity to make known his views on those allegations.
Furthermore, although the applicant claims that the Commission communicated to him, before the hearing held on 16 September
2008, only the article published in
The Sunday Times
, whereas it had itself stated, in the contested decision, that it had relied on ‘various press articles published, in particular
[the article in]
The Sunday Times
’, it is apparent from the documents in the case‑file that the press articles which appeared in the wake of the publication
of the article in
The Sunday Times
were in fact confined, as the applicant acknowledged at the hearing, to reiterating the tenor of the information revealed
by
The
Sunday Times
reporters.
The applicant cannot therefore validly maintain that the Commission failed to observe the principle of respect for the rights
of the defence.
It follows that the second plea must be rejected.
Third plea: breach of Article 6 of the ECHR
–       Arguments of the parties
The applicant claims that the contested decision was adopted in breach of the principle of procedural fairness guaranteed
by Article 6 of the ECHR, since the information on which the appointing authority relied in order to suspend him was obtained
without his knowledge, on the occasion of a trap set by
The
Sunday Times
reporters.
In its defence, the Commission emphasises that the Community case-law, according to which Article 6 of the ECHR does not apply
to disciplinary proceedings, applies a fortiori in a case involving suspension.
–       Findings of the Tribunal
According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of
which the Community judicature ensures. For that purpose, the Community judicature draws inspiration from the constitutional
traditions common to the Member States and from the guidelines supplied by international instruments for the protection of
human rights on which the Member States have cooperated or to which they are signatories. The ECHR has special significance
in that respect (Case C‑112/00
Schmidberger
[2003] ECR I‑5659, paragraph 71; Case C‑540/03
Parliament
v
Council
[2006] ECR I‑5679, paragraph 35; and Case C‑229/05 P
PKK and KNK
v
Council
[2007] ECR I‑439, paragraph 76).
According to Article 6(1) of the ECHR, in the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.
However, it must be borne in mind that proceedings involving suspension and the withholding of remuneration are not judicial
but administrative in nature, such that the Commission cannot be characterised as a ‘tribunal’ within the meaning of Article
6 of the ECHR (see, by analogy, order of the Court of Justice in Case C‑252/97 P
N
v
Commission
[1998] ECR I‑4871, paragraph 52; Case T‑26/89
de Compte
v
Parliament
[1991] ECR II‑781, paragraph 94; and Case T‑23/00
A
v
Commission
[2000] ECR-SC I‑A‑263 and II‑1211, paragraph 24). Accordingly, compliance with the obligations which that Article imposes
on a ‘tribunal’ cannot be required of the Commission when it suspends an official and orders that sums be withheld from his
remuneration.
It follows that the applicant cannot validly rely on a breach by the Commission of Article 6(1) of the ECHR.
The third plea cannot therefore be upheld.
Fourth and fifth pleas: the existence of manifest errors of assessment with respect to the alleged facts and breach of Article
23 of Annex IX to the Staff Regulations with respect to the alleged serious misconduct
–       Arguments of the parties
The applicant claims that the allegations of serious misconduct made against him by the Commission, relating in particular
to the fact that he breached the second paragraph of Article 11 and Article 17(1) of the Staff Regulations, are manifestly
unfounded, since they have their source in false information reported in the article published in
The Sunday Times
.
In that regard, the applicant claims that he supplied only ‘semi-public’ information having no commercial impact, relating
to anti-dumping procedures and concerning, in particular, the foreseeable duration of those procedures, the criteria for obtaining
MET status or the need to seek advice from a lawyer or a consultant on such matters.
Furthermore, although the applicant admits having accepted three invitations to dinner with reporters from
The Sunday Times
claiming to be correspondents of a Chinese exporter, he emphasises that his attendance at those dinners, which was common
practice at the Commission, cannot be regarded as contrary to the professional obligations of officials and did not require
prior authorisation as provided for in the second paragraph of Article 11 of the Staff Regulations.
Last, the applicant claims that he never received any sum of money and never made the supply of information conditional on
obtaining a post in the service of the Chinese exporter in question after he retired.
In its defence, the Commission observes first of all that the question as to whether the applicant was in fact guilty of the
serious misconduct of which he is accused can be examined only in any disciplinary proceedings that might be instituted. In
any event, the allegations made against the applicant are not manifestly unfounded, since the article in
The Sunday Times
, which served as the basis for those allegations, is very detailed and the applicant has admitted that it is accurate in
part.
–       Findings of the Tribunal
It must be emphasised at the outset that judicial review of the merits of a measure ordering suspension can only be very limited,
given the provisional nature of such a measure. The Tribunal must therefore confine itself to examining whether the allegations
of serious misconduct are sufficiently probable and whether they are manifestly unfounded (see, by analogy, for a case involving
an order dismissing an application for interim measures against a suspension measure, order of the President of the Court
of First Instance in Case T‑211/98 R
Willeme
v
Commission
[1999] ECR-SC I‑A‑15 and II‑57, paragraph 30).
In the present case, in the first place, it must be observed that the article published in
The Sunday Times
, the information in which, together with the statements made by the applicant at his hearings, is at the origin of the contested
decision, is very detailed and on numerous occasions reports, and in quotation marks, the applicant’s replies to the questions
put to him by the reporters.
In the second place, it is apparent from the documents in the case-file that at the hearings before the IDOC officials and
before the Member of the Commission responsible for personnel, at which he was legally represented, the applicant admitted
some of the facts reported in the article in
The Sunday Times
. He thus acknowledged having communicated to those reporters, in the course of the dinners to which he had been invited or
during telephone conversations, certain information, in particular the names of two Chinese companies involved in the manufacture
of candles which, following an anti-dumping procedure then in progress, were likely to obtain MET status. In that regard,
the applicant cannot seriously dispute the confidential nature of that information or maintain that it was ‘semi-public’,
since it was capable of conferring a distinct advantage on a trader wishing to enter into contracts with those companies before
the anti-dumping procedures had been concluded. For the remainder, it should be observed that the two companies in question
did in fact obtain MET status and that no anti-dumping duty was imposed on them by Commission Regulation (EC) No 1130/2008
of 14 November 2008 imposing a provisional anti-dumping duty on imports of certain candles, tapers and the like originating
in the People’s Republic of China (OJ 2008 L 306, p. 22).
In the third place, although the applicant told the IDOC officials that during the second dinner it had been proposed that
a sum of money be deposited in an account opened in his name in a country with a preferential tax regime in exchange for the
provision of information, it is common ground that the applicant neither informed his superiors of such facts nor broke off
contacts with the reporters, but even accepted a further invitation to dinner from them.
In the fourth place, while it is true that the information in the article published in
The Sunday Times
was obtained by means of a ‘trap’ designed to encourage the applicant to commit misconduct, it must none the less be emphasised
that that trap was laid not by the Commission but by third parties, namely
The
Sunday Times
reporters, whose conduct has not been shown or even been alleged to have been instigated by the administration. Consequently,
the applicant cannot take issue with the Commission for having relied on the information reported in the article in
The Sunday Times
.
It should be added, moreover, that the contested decision did not merely reproduce the information set out in
The Sunday Times
, but also made express reference to the statements which the applicant made at the hearings before the IDOC officials and
the Member of the Commission responsible for personnel.
Thus, with reference solely to the considerations set out above, the applicant cannot validly maintain that the Commission’s
allegations of serious misconduct are manifestly unfounded.
In those circumstances, the fourth and fifth pleas must be rejected.
Sixth and seventh pleas: breach of the principle of proportionality and of the duty to have regard for the interests of officials
–       Arguments of the parties
The applicant claims that, as he had been on leave at the time of his hearing before the Member of the Commission responsible
for personnel, he had proposed that his leave should be extended for eight weeks. Instead of adopting that solution, however,
which would have made it possible to avoid being publicly implicated while giving the administration sufficient time to investigate
the matter, the Commission preferred to adopt the contested decision. The Commission thereby failed to observe both the principle
of proportionality and the duty to have regard for the interests of its officials.
The applicant further claims that the Commission also breached the duty to have regard for the interests of its officials
by communicating with him in English and drawing up the contested decision in that language, in spite of his repeated requests
that French be used in the proceedings, in order to enable, in particular, his lawyers to have a ‘perfect understanding’ of
the proceedings.
In its defence, the Commission denies having failed to observe the principle of proportionality or the duty to have regard
for the interests of its officials, observing that entitlement to leave is quite distinct from the appointing authority’s
power to suspend an official in application of Article 23 of Annex IX to the Staff Regulations. The applicant’s interests
were taken into account, moreover, since the amount withheld from his remuneration was limited to EUR 1 000 per month.
–       Findings of the Tribunal
In view, first, of the gravity of the allegations against the applicant, a senior official in the Trade DG and responsible
for Directorate G ‘Market Access and Industry’; second, of the damage to the Commission’s reputation as a result of the publicity
given to the affair; and, third, of the need for the Commission to have OLAF conduct an administrative investigation without
disruption, the appointing authority cannot be held to have failed to observe either the principle of proportionality or the
duty to have regard for the interests of officials by adopting, on the basis of an overall and provisional assessment specific
to the present case, the contested decision. In that connection, the fact that the applicant lodged a complaint with the prosecuting
authorities, together with a claim for civil damages, against the authors of the article published in
The Sunday Times
cannot invalidate that finding, since that has nothing to do with the reality or the gravity of the misconduct alleged against
the applicant.
As for the argument that there was a breach of the duty to have regard for the interests of officials in that the Commission
communicated with the applicant in English and drafted the contested decision in that language, it cannot be upheld. Although
the applicant, by letter from his lawyer dated 12 September 2008, had requested to be able to ‘use the French language throughout
the proceedings against him’, it is common ground that he was able to express himself in French at the hearing on 16 September
2008. Furthermore, while it is true that the record of that hearing and the contested decision were drafted in English, the
applicant has not established or even alleged that he or his lawyers were unable to understand those documents. The documents
in the case-file, moreover, show that the applicant had a thorough command of the English language (see, to that effect, Case
T‑197/98
Rudolph
v
Commission
[2000] ECR-SC I‑A‑55 and II‑241, paragraph 46, and Case T‑95/04
Lavagnoli
v
Commission
[2006] ECR-SC I‑A‑2‑121 and II‑A‑2‑569, paragraph 48).
It follows that the sixth and seventh pleas must be rejected.
Eighth plea: lack of competence of the author of the act
–       Arguments of the parties
The applicant claims that the contested decision was adopted by an authority lacking competence. He maintains that, pursuant
to Commission Decision C (2007) 5730 of 30 November 2007, the contested decision ought to have been adopted by the College
of Commissioners and not, as happened in the present case, by the Member of the Commission responsible for personnel. The
applicant further maintains that, while it is true that on 10 September 2008 the Commission adopted a decision transferring
to the Member of the Commission responsible for personnel the power to order the suspension of officials in grade AD 15, that
decision is not enforceable against him as it was not published or made available before the contested decision was adopted.
In its defence, the Commission contends that the plea should be rejected. It observes that the publication of the decision
of 10 September 2008 was not mandatory and that the failure to publish it did not preclude its entry into force and thus its
enforceability. In any event, that decision was accessible in the database on the Commission’s intranet, which contains the
communications to the College of Commissioners and the minutes of the meetings of that body.
–       Findings of the Tribunal
It must be borne in mind at the outset that the plea alleging that the author of a measure adversely affecting the applicant
was not competent to adopt that measure is a plea concerning a matter of public interest which the Tribunal is bound in any
event to examine of its own motion (Case C‑210/98 P
Salzgitter
v
Commission
[2000] ECR I‑5843, paragraph 56; Case T‑165/04
Vounakis
v
Commission
[2006] ECR-SC I‑A‑2‑155 and II‑A‑2‑735, paragraph 30; Case F‑17/05
de Brito Sequeira Carvalho
v
Commission
[2006] ECR-SC I‑A‑1‑149 and II‑A‑1‑577, paragraph 51; and Case F‑10/07
Botos
v
Commission
[2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paragraph 78).
In the present case, given that the contested decision referred to a decision of 10 September 2008 which amended ‘Decision
on the exercise of powers conferred by the Staff Regulations on the [a]ppointing [a]uthority and by the Conditions of Employment
… on [the contracting authority] of 30 November 2007’ and that that decision of 10 September 2008 was not in the case‑file,
it fell to the Tribunal, in accordance with the case-law cited above, to request, by means of a measure of organisation of
procedure, production of a copy of that decision and also the communication of any information relating to the publicity given
to it.
As stated at paragraph 31 of the present judgment, the Commission, in response to that measure of organisation of procedure,
produced, first, a copy of the communication of 9 September 2008 of the Vice-President of the Commission containing the draft
decision which became the decision of 10 September 2008 and, second, the minutes of the meeting of the College of Commissioners
of 10 September 2008 at which that draft decision was adopted.
The applicant contends, however, that because the decision of 10 September 2008 was not published before the contested decision
was adopted it is not enforceable against him. He infers that, pursuant to Commission Decision C (2007) 5730 of 30 November
2007, the contested decision ought to have been adopted by the College of Commissioners and not, as happened in the present
case, by the Member of the Commission responsible for personnel.
The Tribunal considers that the applicant’s argument, even though it was raised only at the hearing, is admissible, which
the Commission has not disputed. First, the issue whether the Member of the Commission responsible for personnel was duly
authorised to adopt the contested decision presupposes that the issue of the enforceability of the decision of 10 September
2008 be settled. The latter issue cannot be dissociated from the preceding issue and therefore, like that issue, constitutes
a matter of public interest which is for the Tribunal to examine of its own motion, at any stage of the proceedings (see,
to that effect, Joined Cases 73/63 and 74/63
Rotterdam and Putterskoek
[1964] ECR 1, at p. 14). Second, even on the assumption that the issue of the enforceability of the decision of 10 September
2008 were distinct from the issue of competence, the latter being the only issue that the Tribunal would be able to raise
of its own motion, the applicant’s argument should be analysed as a plea based on matters of law and of fact which came to
light in the course of the proceedings, within the meaning of Article 43(1) of the Rules of Procedure, on the occasion of
the examination by the Tribunal, of its own motion, of the issue of the competence of the person who adopted the contested
decision. Furthermore, the Tribunal would point out that the Commission was informed before the hearing, by the measure of
organisation of procedure decided upon by the Tribunal, that the publication of the decision of 10 September 2008 would be
at issue. The Commission was thus put on notice to prepare its defence on that point, as, moreover, was revealed both in its
written answer to the measure of organisation of procedure and in the observations submitted by its representative at the
hearing.
The applicant’s argument alleging that the decision of 10 September 2008 is not enforceable against him on the ground that
it was not published is also well founded.
In that regard, it must be borne in mind that decisions determining the distribution of the powers conferred on the appointing
authority are rules on the internal organisation of the institution (Case 46/72
De Greef
v
Commission
[1973] ECR 543, paragraph 18) and that, as the Court of First Instance observed in Case T‑76/98
Hamptaux
v
Commission
[1999] ECR-SC I‑A‑59 and II‑303, paragraph 23, neither the provisions of the EC Treaty nor those of the Staff Regulations,
in particular Article 2, provide that the publication of such decisions is a condition of their entry into force and, accordingly,
of their enforceability.
However, in the first place, observance of the principle of legal certainty, whereby an act adopted by the public authorities
cannot be enforced against individuals before they have had the opportunity to make themselves acquainted with it (Case 98/78
Racke
[1979] ECR 69, paragraph 15; Case 99/78
Weingut Decker
[1979] ECR 101, paragraph 3; and Case C‑161/06
Skoma-Lux
[2007] ECR I‑10841, paragraph 37), requires that, even in the absence of any express written provision to that effect, decisions
relating to the exercise of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions
of Employment on the contracting authority be given adequate publicity according to the rules and forms which it is for the
administration to determine.
In the second place, it is relevant that the Commission itself endeavours, in principle, to ensure that publicity is given
to decisions concerning the exercise of the powers conferred by the Staff Regulations on the appointing authority and by the
Conditions of Employment on the contracting authority, since they are usually published in
Administrative Notices
. In particular, Decision C (2007) 5730, which was amended by the decision of 10 September 2008, was published in
Administrative Notices
No 57-2007 of 6 December 2007. In addition, it should be noted that Article 5 of Decision C (2007) 5730, which authorises
directors‑general to delegate their powers to subordinate authorities, such as deputy directors-general, directors, heads
of unit and heads of sector, provides even that those delegations ‘shall be published in suitable form and brought to the
attention of the staff’.
In the third place, the Court of Justice has previously referred to the need to ensure that specific publicity is given to
decisions relating to the determination of the authorities responsible for the administration of the staff. Thus, in a case
in which an applicant challenged the decision whereby the European Parliament, following an internal competition, had appointed
an official to a post as head of division and, in order to support his assertion that the Secretary-General of the Parliament
had unlawfully appointed the members of the selection board, claimed that the delegation of power conferred for that purpose
on the Secretary-General by the Bureau of the institution had not been brought to the knowledge of the staff, the Court held
that that delegation of power was ‘legally effective’, since, apart from the fact that it contained a generally recognised
division of powers within the institution, it had been notified to the directors-general of the institution, to the chairmen
of groups, to the secretariat and to the control bureau, and also to the Staff Committee established under Article 9 of the
Staff Regulations, whose duties under that provision are, inter alia, to represent the interest of the staff vis-à-vis their
institution and to maintain continuous contact between the institution and the staff (Case 123/75
Küster
v
Parliament
[1976] ECR 1701, paragraphs 6 to 8).
More generally, and even though that case-law has not been applied in cases involving decisions relating to the exercise
of powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting
authority, the Court of Justice has also held that the principle of legal certainty requires that Community rules enable those
concerned to know precisely the extent of the obligations which are imposed on them, since individuals must be able to ascertain
unequivocally what their rights and obligations are (Case C‑158/06
ROM-projecten
[2007] ECR I‑5103, paragraph 25, and
Skoma-Lux
, paragraph 38). In
Skoma-Lux
, paragraphs 33, 34, 36 and 38, the Court held that the requirement for the proper publication of a Community regulation in
the official language of the person to whom it is addressed not only had its basis in written provisions, such as Article
254(2) EC or Articles 4, 5 and 8 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European
Economic Community (OJ, English Special Edition 1952‑1958 (I), p. 59), but also followed from the principle of legal certainty
(see also Case C‑345/06
Heinrich
[2009] ECR I‑1659, paragraph 44).
In the fourth place, the need to ensure that adequate publicity is given to decisions determining the allocation of the powers
conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority
also follows from the rules of sound administration in the management of the staff, as the Tribunal expressly observed in
Case F‑89/07
Kuchta
v
ECB
[2008] ECR I‑A‑1‑0000 and II‑A‑1‑0000, paragraph 62.
In the present case, it is common ground, first, that the decision of 10 September 2008 was not published in
Administrative Notices
and, second, that on the date on which the contested decision was adopted it had not been brought to the attention of the
staff. Although the Commission maintained, in its answer to the measure of organisation of procedure ordered by the Tribunal,
that the communication of 9 September 2008 containing the draft decision amending Decision C (2007) 5730 was made available
on the institution’s intranet, it provides no information about the date on which it was placed on the intranet. Nor, in any
event, does the Commission establish that the minutes of the meeting of 10 September 2008, at which that draft decision was
adopted, had been placed on the intranet before the contested decision was adopted. Thus, on the date on which the contested
decision was adopted and notified to the applicant, he was not in a position to have effective knowledge of the content of
the decision of 10 September 2008.
It should be added, for the sake of completeness, that the obligation incumbent on the Commission to ensure adequate publicity
for the decision of 10 September 2008 was imperative in the present case. Although the power to suspend an official was vested,
under Decision C (2007) 5730, in the highest authority of the Commission, namely the College of Commissioners, it is common
ground that the decision of 10 September 2008 transferred that power to a single person, that is, the Member of the Commission
responsible for personnel. A measure adopted by a single person offers the official to whom it is addressed a lower degree
of protection than is guaranteed by a measure issued by a collegiate authority, since, by virtue of the deliberations of its
members, a collegiate authority is able to take a greater amount of relevant information into consideration. Consequently,
since the decision of 10 September 2008 had the effect of reducing the level of protection afforded to officials and thus
of affecting their rights, there were even more pressing reasons why it ought to have been given adequate publicity.
Last, it would appear that the failure to publish the decision of 10 September 2008 also prevented the administration itself
from being able to acquire an adequate knowledge of its own decision. As is apparent from the discussion at the hearing, the
Commission adopted on 29 April 2009 a new decision concerning the exercise of the powers conferred on the appointing authority
by the Staff Regulations and by the Conditions of Employment on the contracting authority, namely Decision C (2009) 3074 ‘amending
Decision C (2007) 5730’. In that decision, which was published in
Administrative Notices
of 8 May 2009, the Commission, acting as though the decision of 10 September 2008 had never been adopted, decided that the
powers conferred on the appointing authority to suspend an official would henceforth be exercised, in the case of officials
in grades AD 16 and AD 15 and officials in grade AD 14 in senior positions (directors or equivalent), by the Member of the
Commission responsible for personnel and no longer by the College of Commissioners.
As the decision of 10 September 2008 is not enforceable against the applicant, he is therefore correct in his submission that
the Member of the Commission responsible for personnel lacked competence to adopt the contested decision, which ought to have
been taken by the authority designated by Decision C (2007) 5730, in this instance the College of Commissioners.
As the plea alleging that the Member of the Commission responsible for personnel was not competent to adopt the contested
decision is well founded, the contested decision must be annulled.

Costs
Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those
rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the
costs or even that he is not to be ordered to pay any.
It follows from the grounds set out above that the Commission is the unsuccessful party. Furthermore, the applicant expressly
claimed in his pleadings that the Commission should be ordered to pay the costs. As the circumstances of the present case
do not warrant the application of Article 87(2) of the Rules of Procedure, the Commission must therefore be ordered to pay
the costs of the main proceedings.
As regards the costs of the interim measures proceedings, it is common ground that the applicant was unsuccessful in those
proceedings. However, given that the Commission did not apply for costs in those proceedings, each party must bear the costs
which it incurred in that connection.
On those grounds,
THE TRIBUNAL (First Chamber)
hereby:
1.
Annuls the decision of 18 September 2008 whereby the Commission of the European Communities, in application of Articles 23
and 24 of Annex IX to the Staff Regulations of Officials of the European Communities, suspended Mr Wenig for an indefinite
period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months;
2.
Orders the Commission of the European Communities to pay the costs of the main proceedings;
3.
Orders the parties to bear their own costs in the interim measures proceedings.
Gervasoni
Kreppel
Tagaras
Delivered in open court in Luxembourg on 30 November 2009.
W. Hakenberg

S. Gervasoni
Registrar

President
The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published
in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu
*
Language of the case: French.