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61988CJ0297

Massam Dzodzi v Belgian State.

1990-10-18

65 The directive does not specify how the competent authority referred to in Article 9 is appointed . It does not require that authority to be a court or to be composed of members of the judiciary . Nor does it require the members of the competent authority to be appointed for a specific period . The essential requirement is, first, that it should be clearly established that the authority is to perform its duties in absolute independence and is not to be directly or indirectly subject, in the exercise of its duties, to any control by the authority empowered to take the measures provided for in the directive ( judgment in Adoui and Cornuaille, cited above, paragraph 16 ) and, secondly, that the authority should follow a procedure enabling the person concerned, on the terms laid down by the directive, to put forward his arguments in defence .

61981CJ0115

Rezguia Adoui v Belgian State and City of Liège; Dominique Cornuaille v Belgian State.

16 THE DIRECTIVE DOES NOT SPECIFY HOW THE COMPETENT AUTHORITY REFERRED TO IN ARTICLE 9 IS APPOINTED . IT DOES NOT REQUIRE THAT AUTHORITY TO BE A COURT OR TO BE COMPOSED OF MEMBERS OF THE JUDICIARY . NOR DOES IT REQUIRE THE MEMBERS OF THE COMPETENT AUTHORITY TO BE APPOINTED FOR A SPECIFIC PERIOD . THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT , IN THE EXERCISE OF ITS DUTIES , TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE . PROVIDED THAT THAT REQUIREMENT IS SATISFIED , IT IS NOT CONTRARY TO THE PROVISIONS OF THE DIRECTIVE , OR TO ITS PUPOSE , FOR THE REMUNERATION OF THE MEMBERS OF THE AUTHORITY TO BE CHARGED TO THE BUDGET OF THE DEPARTMENT OF THE ADMINISTRATION OF WHICH THE AUTHORITY EMPOWERED TO TAKE THE DECISION IN QUESTION FORMS PART OR FOR AN OFFICIAL BELONGING TO THAT ADMINISTRATION TO SERVE AS SECRETARY TO THE COMPETENT AUTHORITY .

1982-05-18

61988CJ0297

Massam Dzodzi v Belgian State.

1990-10-18

66 Although there is no provision empowering the authority in question to take interim protective decisions in connection with the right of residence, it must none the less be observed that, under Article 9 of the directive as interpreted by the Court ( judgment in Pecastaing v Belgium, cited above, paragraph 18 ), once the matter has been brought before that authority, an expulsion order covered by Article 9 may not be executed, save in cases of urgency, before the opinion of that consultative body has been obtained and notified to the person concerned . It must further be noted that the order may not be enforced in breach of the right of that person to stay in the territory for the time necessary to avail himself of the remedies accorded to him under Article 8 of the directive ( judgment in Pecastaing v Belgium, cited above, paragraph 12 ).

61979CJ0098

Josette Pecastaing v Belgian State.

18 IT FOLLOWS FROM ARTICLE 9 THEREFORE THAT AS SOON AS THE OPINION IN QUESTION HAS BEEN OBTAINED AND NOTIFIED TO THE PERSON CONCERNED AN EXPULSION ORDER MAY BE EXECUTED IMMEDIATELY , SUBJECT ALWAYS TO THE RIGHT OF THAT PERSON TO STAY ON THE TERRITORY FOR THE TIME NECESSARY TO AVAIL HIMSELF OF THE REMEDIES ACCORDED TO HIM UNDER ARTICLE 8 OF THE DIRECTIVE .

1980-03-05

61988CJ0297

Massam Dzodzi v Belgian State.

1990-10-18

66 Although there is no provision empowering the authority in question to take interim protective decisions in connection with the right of residence, it must none the less be observed that, under Article 9 of the directive as interpreted by the Court ( judgment in Pecastaing v Belgium, cited above, paragraph 18 ), once the matter has been brought before that authority, an expulsion order covered by Article 9 may not be executed, save in cases of urgency, before the opinion of that consultative body has been obtained and notified to the person concerned . It must further be noted that the order may not be enforced in breach of the right of that person to stay in the territory for the time necessary to avail himself of the remedies accorded to him under Article 8 of the directive ( judgment in Pecastaing v Belgium, cited above, paragraph 12 ).

61979CJ0098

Josette Pecastaing v Belgian State.

12 ON THE OTHER HAND ARTICLE 8 CONTAINS NO SPECIFIC OBLIGATION CONCERNING ANY SUSPENSORY EFFECT OF APPLICATIONS AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE . IF THAT PROVISION REQUIRES THAT THE PERSON CONCERNED SHOULD BE ABLE TO APPEAL AGAINST THE MEASURE AFFECTING HIM IT MUST BE INFERRED , AS THE COURT STATED IN ITS JUDGMENT IN THE ROYER CASE ( PARAGRAPH 60 OF THE DECISION ), THAT THE DECISION ORDERING EXPLUSION MAY NOT BE EXECUTED - SAVE IN CASES OF URGENCY - BEFORE THE PARTY CONCERNED IS ABLE TO COMPLETE THE FORMALITIES NECESSARY TO AVAIL HIMSELF OF THE REMEDY . HOWEVER , IT CANNOT BE INFERRED FROM THAT PROVISION THAT THE PERSON CONCERNED IS ENTITLED TO REMAIN ON THE TERRITORY OF THE STATE CONCERNED THROUGHOUT THE PROCEEDINGS INITIATED BY HIM . SUCH AN INTERPRETATION , WHICH WOULD ENABLE THE PERSON CONCERNED UNILATERALLY , BY LODGING AN APPLICATION , TO SUSPEND THE MEASURE AFFECTING HIM , IS INCOMPATIBLE WITH THE OBJECTIVE OF THE DIRECTIVE WHICH IS TO RECONCILE THE REQUIREMENTS OF PUBLIC POLICY , PUBLIC SECURITY AND PUBLIC HEALTH WITH THE GUARANTEES WHICH MUST BE PROVIDED FOR THE PERSONS AFFECTED BY SUCH MEASURES .

1980-03-05

61999CJ0196

Siderúrgica Aristrain Madrid SL v Commission of the European Communities.

2003-10-02

41. However, the Court may examine whether the Court of First Instance has responded to the parties' pleas and given proper grounds for its judgment (see, to that effect, Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraphs 119 to 122).

61999CJ0274

Bernard Connolly v Commission of the European Communities.

122 In those circumstances, the eleventh ground of appeal must be rejected. The twelfth ground of appeal

2001-03-06

61999CJ0197

Kingdom of Belgium v Commission of the European Communities.

2003-09-11

121. Although it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24), a plea alleging distortion of the clear sense of that evidence is admissible in an appeal (Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).

61992CJ0053

Hilti AG v Commission of the European Communities.

42 It should be pointed out that the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice.

1994-03-02

61999CJ0198

Empresa Nacional Siderúrgica SA (Ensidesa) v Commission of the European Communities.

2003-10-02

31. First, measures of inquiry would necessarily lead to the Court ruling on questions of fact (see, to that effect, Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 91).

61992CJ0199

Hüls AG v Commission of the European Communities.

91 On the one hand, measures of inquiry would necessarily lead to the Court ruling on questions of fact and would change the subject-matter of the proceedings commenced before the Court of First Instance, in breach of Article 113(2) of the Rules of Procedure of the Court of Justice.

1999-07-08

61988CJ0303

Italian Republic v Commission of the European Communities.

1991-03-21

21 As the Court held in its judgment of Case 234/84 (Belgium v Commission [1986] ECR 2263, at paragraph 15), a private shareholder may reasonably subscribe the capital necessary to secure the survival of an undertaking which is experiencing temporary difficulties but is capable of becoming profitable again, possibly after a reorganization. It must therefore be accepted that a parent company may also, for a limited period, bear the losses of one of its subsidiaries in order to enable the latter to close down its operations under the best possible conditions. Such decisions may be motivated not solely by the likelihood of an indirect material profit but also by other considerations, such as a desire to protect the group' s image or to redirect its activities.

61984CJ0234

Kingdom of Belgium v Commission of the European Communities.

15 AS THE BELGIAN GOVERNMENT HAS OBSERVED , A PRIVATE SHAREHOLDER MAY REASONABLY SUBSCRIBE THE CAPITAL NECESSARY TO SECURE THE SURVIVAL OF AN UNDERTAKING WHICH IS EXPERIENCING TEMPORARY DIFFICULTIES BUT IS CAPABLE OF BECOMING PROFITABLE AGAIN , POSSIBLY AFTER A REORGANIZATION . HOWEVER , IN THIS CASE , AT THE TIME WHEN THE CAPITAL WAS SUBSCRIBED THE UNDERTAKING IN QUESTION HAD FOR SEVERAL YEARS BEEN MAKING VERY SUBSTANTIAL LOSSES RELATIVE TO ITS TURNOVER , ITS SURVIVAL HAD ALREADY NECESSITATED THE RECONSTITUTION OF ITS CAPITAL BY THE PUBLIC AUTHORITIES ON SEVERAL OCCASIONS AFTER IT HAD BEEN COMPLETELY EXHAUSTED , AND ITS PRODUCTS HAD TO BE SOLD ON A MARKET IN WHICH THERE WAS EXCESS CAPACITY .

1986-07-10

61988CJ0303

Italian Republic v Commission of the European Communities.

1991-03-21

27 It must be observed right away that as the Court held in its judgment in Case 102/87 (France v Commission [1988] ECR 4067, at paragraph 19), aid may be such as to affect trade between the Member States and distort competition where the recipient undertaking competes with producers in other Member States, even if it does not itself export its products. Where a Member State grants aid to an undertaking, domestic production may thereby be maintained or increased with the result that undertakings established in other Member States have significantly less chance of exporting their products to the market in that Member State. Furthermore, even aid of a relatively small amount is liable to affect trade between Member States where there is strong competition in the sector in question (judgment in Case 259/85 France v Commission [1987] ECR 4393, at paragraph 24).

61985CJ0259

French Republic v Commission of the European Communities.

19 IN EXAMINING THE DETAILED ARRANGEMENTS FOR IMPLEMENTING THE PROPOSED AID, THE COMMISSION OBSERVES THAT IT IS TO BE GRANTED TO FACILITATE INVESTMENT WHICH REDUCES THE COSTS NORMALLY ALLOWED FOR IN THE BUDGETS OF THE UNDERTAKINGS IN QUESTION . THE SPECIFIC INTENSITY OF THE AID ( 5.5 %) IS APPRECIABLE IN THE LIGHT OF THE TOTAL INVESTMENT COSTS OF A COMPANY, AND IT WOULD ENABLE UNDERTAKINGS BENEFITING UNDER THE SYSTEM TO REDUCE THEIR INVESTMENT COSTS SIGNIFICANTLY AND THUS TO MODIFY THEIR PRICES .

1987-11-11

61988CJ0303

Italian Republic v Commission of the European Communities.

1991-03-21

27 It must be observed right away that as the Court held in its judgment in Case 102/87 (France v Commission [1988] ECR 4067, at paragraph 19), aid may be such as to affect trade between the Member States and distort competition where the recipient undertaking competes with producers in other Member States, even if it does not itself export its products. Where a Member State grants aid to an undertaking, domestic production may thereby be maintained or increased with the result that undertakings established in other Member States have significantly less chance of exporting their products to the market in that Member State. Furthermore, even aid of a relatively small amount is liable to affect trade between Member States where there is strong competition in the sector in question (judgment in Case 259/85 France v Commission [1987] ECR 4393, at paragraph 24).

61985CJ0259

French Republic v Commission of the European Communities.

24 AS THE COMMISSION STRESSED IN ITS DECISION, THE PROPOSED AID WOULD ENABLE THE UNDERTAKINGS BENEFITING FROM IT TO REDUCE THEIR INVESTMENT COSTS, THEREBY STRENGTHENING THEIR POSITION AS AGAINST THAT OF OTHER UNDERTAKINGS COMPETING WITH THEM IN THE COMMUNITY . IN VIEW OF THE INFORMATION CONTAINED IN THE DECISION CONCERNING THE SITUATION OF THE INDUSTRIES IN QUESTION IN THE COMMUNITY IN GENERAL AND FRANCE IN PARTICULAR, AND CONCERNING INTRA-COMMUNITY TRADE, AND BY VIRTUE OF THE FACT - EMPHASIZED BY THE COMMISSION IN THE PROCEEDINGS BEFORE THE COURT - THAT THE PROFIT MARGINS IN THAT SECTOR ARE ALWAYS VERY NARROW, THE COMMISSION DID NOT EXCEED THE LIMITS OF ITS DISCRETION IN TAKING THE VIEW THAT EVEN RELATIVELY LITTLE AID WOULD ADVERSELY AFFECT TRADING CONDITIONS TO AN EXTENT CONTRARY TO THE COMMON INTEREST .

1987-11-11

61999CJ0206

SONAE - Tecnologia de Informação SA v Direcção-Geral dos Registos e Notariado.

2001-06-21

24 It follows that the charges at issue in the main proceedings, payable pursuant to a rule of law laid down by the State, are paid by a private individual to the State for the financing of its official business (see Modelo, paragraph 21).

61998CJ0056

Modelo SGPS SA v Director-Geral dos Registos e Notariado.

21 Thus, a proportion of the charges at issue in the main proceedings, payable pursuant to a rule of law laid down by the State, is paid by a private individual to the State for the financing of its official business.

1999-09-29

61999CJ0220

Commission of the European Communities v French Republic.

2001-09-11

20 That rule, however, does not prevent the Commission from setting out its initial complaints in greater detail in its application, on condition that it does not alter the subject-matter of the dispute (see, along these lines, Case C-256/98 Commission v France [2000] ECR I-2487, paragraphs 30 and 31).

61998CJ0256

Commission of the European Communities v French Republic.

30 It should be noted, however, that the amendment goes beyond a mere restatement, albeit in greater detail, of the initial complaints, thereby raising submissions before the Court which were not put forward during the pre-litigation procedure or in the application initiating the proceedings.

2000-04-06

61999CJ0223

Agorà Srl and Excelsior Snc di Pedrotti Bruna & C. v Ente Autonomo Fiera Internazionale di Milano and Ciftat Soc. coop. arl.

2001-05-10

26 In that regard, it should be noted that the three conditions set out in that provision are cumulative (Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 21).

61996CJ0044

Mannesmann Anlagenbau Austria AG and Others v Strohal Rotationsdruck GesmbH.

21 It is clear from that provision that the three conditions set out therein are cumulative.

1998-01-15

61999CJ0237

Commission of the European Communities v French Republic.

2001-02-01

43 It is in the light of those objectives that contracting authority, including a body governed by public law, must be interpreted in functional terms (see, to that effect, most recently, Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 36).

61996CJ0353

Commission of the European Communities v Ireland.

36 In order to give full effect to the principle of free movement, the term `contracting authority' must be interpreted in functional terms (see, to that effect, the judgment of 10 November 1998 in Case C-360/96 Gemeente Arnhem and Gemeente Rheden v BFI Holding [1998] ECR I-6821, paragraph 62).

1998-12-17

61988CJ0303

Italian Republic v Commission of the European Communities.

1991-03-21

34 It must be pointed out first of all that as regards the application of Article 92(3) of the Treaty the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context (judgment in Case C-301/87 France v Commission [1990] ECR I-307, at paragraph 49).

61987CJ0301

French Republic v Commission of the European Communities.

49 The arguments put forward by the applicant cannot be accepted . It should be borne in mind that the Commission enjoys a wide discretion under Article 92(3 ) of the Treaty and that the exercise of that discretion involves assessments of an economic and social nature which must be made within a Community context .

1990-02-14

61988CJ0303

Italian Republic v Commission of the European Communities.

1991-03-21

52 As the Court has consistently held, the statement of the reasons in which a decision is based must enable the Court to review the legality of the decision and provide the party concerned with details sufficient to allow that party to ascertain whether or not the decision is well founded. The requirement of a statement of reasons must be viewed in the context of the circumstances of the case, and in particular the content of the measure in question, the nature of the reasons relied on and the interest which the addressee may have in obtaining explanations (see in particular the judgment in Case 41/83 Italy v Commission [1985] ECR 873, at paragraph 46).

61983CJ0041

Italian Republic v Commission of the European Communities.

46 FIRST , IT SHOULD BE BORNE IN MIND THAT , ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , THE STATEMENT OF THE REASONS ON WHICH A DECISION HAVING ADVERSE EFFECT IS BASED MUST ENABLE THE COURT TO REVIEW THE LEGALITY OF THE DECISION AND TO PROVIDE THE PARTY CONCERNED WITH DETAILS SUFFICIENT TO ALLOW THAT PARTY TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL-FOUNDED . THE REQUIREMENT OF A STATEMENT OF REASONS MUST BE VIEWED IN THE CONTEXT OF THE CIRCUMSTANCES OF THE CASE , AND IN PARTICULAR THE CONTENT OF THE MEASURE IN QUESTION , THE NATURE OF THE REASONS RELIED ON AND THE INTEREST WHICH ADDRESSEES , OR OTHER PERSONS TO WHOM THE MEASURE IS OF DIRECT AND INDIVIDUAL CONCERN , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , MAY HAVE IN OBTAINING EXPLANATIONS .

1985-03-20

61988CJ0303

Italian Republic v Commission of the European Communities.

1991-03-21

58 If the Italian Government had serious doubts in that regard it could, like any Member State which encounters unforeseen difficulties in implementing an order for recovery, have submitted those problems for consideration by the Commission. In such a case the Commission and the Member State concerned must, in accordance with the duty of genuine cooperation stated in particular in Article 5 of the Treaty, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions, in particular the provisions on aid (see the judgment in Case 94/87 Commission v Germany [1989] ECR 175, at paragraph 9).

61987CJ0094

Commission of the European Communities v Federal Republic of Germany.

9 It must be borne in mind that in the judgment in Case 52/84, cited above, the Court emphasized that the fact that the only defence which a Member State to which a decision has been addressed can raise in legal proceedings such as these is that implementation of the decision is absolutely impossible does not prevent that State - if, in giving effect to the decision, it encounters unforeseen and unforeseeable difficulties or perceives consequences overlooked by the Commission - from submitting those problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question . In such a case the Commission and the Member State concerned must respect the principle underlying Article 5 of the Treaty, which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on aid .

1989-02-02

61988CJ0323

SA Sermes v Directeur des services des douanes de Strasbourg.

1990-07-11

23 The aim of that provision is to prevent account from being taken of prices and costs in non-market-economy countries which are not normally the result of market forces ( judgment in Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077, paragraph 29 ).

61986CJ0294

Technointorg v Commission and Council of the European Communities.

29 It should be stated in the first place that Article 2 ( 5 ) of Regulation No 2176/84 provides that, in the case of imports from non-market economy countries, the normal value is to be determined in an appropriate and not unreasonable manner on the basis of : ( a ) the price at which the like product of a market economy third country is actually sold, ( b ) the constructed value of the like product in a market economy third country or ( c ) if neither of those criteria provides an adequate basis, the price actually paid or payable in the Community for the like product, duly adjusted, if necessary, to include a reasonable profit margin . The aim of that provision is to prevent account from being taken of prices and costs in non-market economy countries which are not normally the result of market forces .

1988-10-05

61999CJ0261

Commission of the European Communities v French Republic.

2001-03-22

19 The position could be different only if the measure in question contained particularly serious and manifest defects such that it could be deemed non-existent (Commission v Portugal, cited above, paragraph 35).

61997CJ0404

Commission of the European Communities v Portuguese Republic.

35 The position could be different only if the measure in question contained particularly serious and manifest defects such that it could be deemed non-existent (Case 226/87 Commission v Greece, cited above, paragraph 16, and Case C-74/91 Commission v Germany, cited above, paragraph 11).

2000-06-27

61999CJ0261

Commission of the European Communities v French Republic.

2001-03-22

20 That also applies to an action for failure to fulfil obligations based on the second subparagraph of Article 88(2) EC (Commission v Portugal, cited above, paragraph 36).

61997CJ0404

Commission of the European Communities v Portuguese Republic.

36 That also applies to an action for failure to fulfil obligations based on the second subparagraph of Article 93(2) of the Treaty.

2000-06-27

61999CJ0261

Commission of the European Communities v French Republic.

2001-03-22

22 It must next be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 16, and Commission v Portugal, cited above, paragraph 38).

61997CJ0404

Commission of the European Communities v Portuguese Republic.

38 It must next be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of the finding that it is unlawful and that that consequence cannot depend on the form in which the aid was granted (see in particular Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 16).

2000-06-27

61988CJ0323

SA Sermes v Directeur des services des douanes de Strasbourg.

1990-07-11

24 However, as the Court held in its judgment in Joined Cases C-305/86 and C-160/87 Neotype v Commission and Council [1990] ECR I-2945, paragraphs 26 and 27, Yugoslavia cannot be regarded as a country which does not have a market economy . During the period under consideration, there was no general system for the fixing of prices in Yugoslavia, and in any event there was no such system in the electric motors sector .

61986CJ0305

Neotype Techmashexport GmbH v Commission and Council of the European Communities.

26 The aim of that provision is to prevent account from being taken of prices and costs in non-market-economy countries which are not the normal result of market forces ( see the Technointorg judgment, cited above, paragraph 29 ).

1990-07-11

61988CJ0323

SA Sermes v Directeur des services des douanes de Strasbourg.

1990-07-11

24 However, as the Court held in its judgment in Joined Cases C-305/86 and C-160/87 Neotype v Commission and Council [1990] ECR I-2945, paragraphs 26 and 27, Yugoslavia cannot be regarded as a country which does not have a market economy . During the period under consideration, there was no general system for the fixing of prices in Yugoslavia, and in any event there was no such system in the electric motors sector .

61986CJ0305

Neotype Techmashexport GmbH v Commission and Council of the European Communities.

27 Article 2(5 ) defines as countries not having a market economy in particular those countries to which Regulation ( EEC ) No 1765/82 of 30 June 1982 on common rules for imports from State-trading countries ( Official Journal 1982 L 195, p . 1 ) applies; Yugoslavia is not amongst those countries .

1990-07-11

61988CJ0323

SA Sermes v Directeur des services des douanes de Strasbourg.

1990-07-11

38 As the Court has consistently held ( see in particular the judgments in Case 255/84 Nashi Fujikoshi v Council [1987] ECR 1861, paragraph 39 and in Case C-156/87 Gestetner v Commission [1990] ECR I-781, paragraph 67 ), the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its supervisory jurisdiction .

61984CJ0255

Nachi Fujikoshi Corporation v Council of the European Communities.

39 NEXT, IT SHOULD BE RECALLED, AS REGARDS THE COMPLAINT THAT THE STATEMENT OF REASONS WAS INADEQUATE, THAT THE COURT HAS CONSISTENTLY HELD, IN PARTICULAR IN ITS JUDGMENT OF 26 JUNE 1986 IN CASE 203/85 NICOLET INSTRUMENT V HAUPTZOLLAMT FRANKFURT-AM-MAIN (( 1986 )) ECR 2049, THAT THE STATEMENT OF REASONS REQUIRED BY ARTICLE 190 OF THE TREATY MUST DISCLOSE IN A CLEAR AND UNEQUIVOCAL FASHION THE REASONING FOLLOWED BY THE COMMUNITY AUTHORITY WHICH ADOPTED THE MEASURE IN QUESTION IN SUCH A WAY AS TO MAKE THE PERSONS CONCERNED AWARE OF THE REASONS FOR THE MEASURE AND THUS ENABLE THEM TO DEFEND THEIR RIGHTS, AND TO ENABLE THE COURT TO EXERCISE ITS SUPERVISORY JURISDICTION .

1987-05-07

61988CJ0323

SA Sermes v Directeur des services des douanes de Strasbourg.

1990-07-11

38 As the Court has consistently held ( see in particular the judgments in Case 255/84 Nashi Fujikoshi v Council [1987] ECR 1861, paragraph 39 and in Case C-156/87 Gestetner v Commission [1990] ECR I-781, paragraph 67 ), the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its supervisory jurisdiction .

61987CJ0156

Gestetner Holdings plc v Council and Commission of the European Communities.

67 The submission alleging incorrect assessment of the interests of the Community must therefore be rejected . Inadequate statement of the reasons for the rejection of the undertaking offered by Gestetner

1990-03-14

61988CJ0323

SA Sermes v Directeur des services des douanes de Strasbourg.

1990-07-11

46 As the Court has already held ( see judgment in Case 12/88 Schaefer Shop v Minister van Economische Zaken [1989] ECR 2937, paragraph 14 ) it is pursuant to the "Protocol on German internal trade and connected problems" of 25 March 1957, annexed to the EEC Treaty, that the Federal Republic of Germany is exonerated from applying the rules of Community law to German internal trade and that the German Democratic Republic, while not a member of the Community, is not a non-member country vis-à-vis the Federal Republic of Germany .

61988CJ0012

Schäfer Shop BV v Minister van Economische Zaken.

14 As the Court has already held ( judgments of 1 October 1974 in Case 14/74 Norddeutsches Vieh - und Fleischkontor v Hauptzollamt Hamburg-Jonas (( 1974 )) ECR 899, and of 27 September 1979 in Case 23/79 Gefluegelschlachterei Freystadt GmbH v Hauptzollamt Hamburg-Jonas (( 1979 )) ECR 2789 ), the Protocol accords a special status to the German Democratic Republic, as a result of which the Federal Republic of Germany is exonerated from applying the normal rules of Community law to German internal trade and, consequently, the German Democratic Republic, while not a Member State of the Community, is not a non-member country vis-à-vis the Federal Republic of Germany .

1989-09-21

61999CJ0261

Commission of the European Communities v French Republic.

2001-03-22

22 It must next be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 16, and Commission v Portugal, cited above, paragraph 38).

61991CJ0183

Commission of the European Communities v Hellenic Republic.

16 It follows from the Court' s case-law that recovery of unlawful aid is the logical consequence of the finding that it is unlawful (see in particular Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 66). That consequence cannot depend on the form in which the aid was granted.

1993-06-10

61999CJ0261

Commission of the European Communities v French Republic.

2001-03-22

26 Finally, it must be borne in mind that the decision at issue is presumed to be lawful and that, despite the existence of the action for annulment, it remains binding in all respects on the French Republic (Commission v Portugal, cited above, paragraph 57).

61997CJ0404

Commission of the European Communities v Portuguese Republic.

57 It must moreover be borne in mind in that respect that the decision at issue is presumed to be lawful and that, despite the existence of the action for annulment, it remains binding in all respects on the Portuguese Republic.

2000-06-27

61999CJ0266

Commission of the European Communities v French Republic.

2001-03-08

30 It should also be emphasised that, by contrast, incomplete practical measures and fragmentary legislation cannot discharge the obligation of a Member State to draw up a comprehensive programme with a view to attaining certain objectives (see, to that effect, Case C-298/97 Commission v Spain [1998] ECR I-3301, paragraph 16).

61997CJ0298

Commission of the European Communities v Kingdom of Spain.

16 In that regard, incomplete practical measures and fragmentary legislation cannot discharge the obligation of a Member State to draw up a comprehensive programme with a view to attaining certain objectives, as required by Article 6 of the Directive.

1998-05-28

61988CJ0326

Anklagemyndigheden v Hansen & Soen I/S.

1990-07-10

9 In the first place, it argues that, by introducing strict criminal liability, the Danish Government sought to extend the scope of Regulation No 543/69 and imposed on employers an obligation which is not provided for therein . In support of that assertion it refers to the Court' s judgment in Case 69/74 Auditeur de travail v Cagnon and Taquet [1975] ECR 171, paragraph 10, in which the Court stated that the obligation imposed on the employer by Article 11 of that regulation was limited to taking the necessary measures to permit his employees to have the daily rest period laid down .

61974CJ0069

Auditeur du travail v Jean-Pierre Cagnon and Jean-Paul Taquet.

10 AS A RESULT THE PHRASE 'SHALL HAVE HAD ... A ... REST PERIOD' IN THE FIRST PARAGRAPH OF ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 543/69 OF 25 MARCH 1969 MUST BE INTERPRETED AS MEANING THAT THE PROVISIONS ON DAILY REST MUST BE OBSERVED BOTH BY CREW MEMBERS THEMSELVES, WHO ARE REQUIRED TO STOP ALL ACTIVITIES REFERRED TO IN ARTICLE 14 OF THE REGULATION FOR THE MINIMUM PERIOD LAID DOWN, AND BY THE EMPLOYER RUNNING A ROAD TRANSPORT UNDERTAKING, WHO IS REQUIRED TO TAKE THE NECESSARY MEASURES TO PERMIT THE CREW MEMBERS TO HAVE THE DAILY REST PERIOD LAID DOWN .

1975-02-18

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

14 However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty . Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue ( see in particular the judgment in Case 265/87 Schraeder [1989] ECR 2237, paragraphs 21 and 22 ).

61987CJ0265

Hermann Schräder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau.

21 The Court has consistently held that the principle of proportionality is one of the general principles of Community law . By virtue of that principle, measures imposing financial charges on economic operators are lawful provided that the measures are appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question . Of course, when there is a choice between several appropriate measures, the least onerous measure must be used and the charges imposed must not be disproportionate to the aims pursued .

1989-07-11

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

14 However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty . Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue ( see in particular the judgment in Case 265/87 Schraeder [1989] ECR 2237, paragraphs 21 and 22 ).

61987CJ0265

Hermann Schräder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau.

22 However, with regard to judicial review of compliance with the abovementioned conditions, it must be stated that, in matters concerning the common agricultural policy, the Community legislator has a discretionary power which corresponds to the political responsibilities imposed by Articles 40 and 43 . Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution intends to pursue ( see in particular the judgment in Case 179/84 Bozzetti v Invernizzi (( 1985 )) ECR 2301 ).

1989-07-11

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

23 As the Court has already held ( see judgment in United Kingdom v Council, cited above, paragraphs 21 and 22 ) with regard to Council Directive 85/649, mentioned above, which was identical to the directive at issue in these proceedings, in regulating conditions for the production and marketing of meat with a view to improving its quality, the directive comes into the category of measures provided for by the common organizations of the markets in meat and thus contributes to the achievement of the objectives of the common agricultural policy set out in Article 39 of the Treaty, and the Council therefore had the power to adopt it on the basis of Article 43 of the Treaty alone .

61986CJ0068

United Kingdom of Great Britain and Northern Ireland v Council of the European Communities.

21 IN VIEW OF THE CONTENT AND OBJECTIVES OF THE DIRECTIVE, IT MUST BE FOUND THAT, IN REGULATING CONDITIONS FOR THE PRODUCTION AND MARKETING OF MEAT WITH A VIEW TO IMPROVING ITS QUALITY, IT COMES INTO THE CATEGORY OF MEASURES PROVIDED FOR BY THE AFOREMENTIONED COMMON ORGANIZATIONS OF THE MARKETS IN MEAT AND THUS CONTRIBUTES TO THE ACHIEVEMENT OF THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY WHICH ARE SET OUT IN ARTICLE 39 OF THE TREATY .

1988-02-23

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61989CJ0260

Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others.

41 With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case C-5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.

1991-06-18

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61995CJ0362

Blackspur DIY Ltd, Steven Kellar, J.M.A. Glancy and Ronald Cohen v Council of the European Union and Commission of the European Communities.

29 In any event, as the Court of Justice has repeatedly held, it is for the Court of First Instance alone to assess the value which should be attached to the items of evidence adduced before it (judgment in Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66; order in San Marco v Commission, cited above, paragraph 40). That appraisal does not, therefore, save where the sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (judgment in Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).

1997-09-16

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61972CJ0046

Robert de Greef v Commission of the European Communities.

45 THE FACTS ALLEGED AGAINST THE APPLICANT HAVING BEEN ESTABLISHED, THE CHOICE OF APPROPRIATE DISCIPLINARY MEASURE IS A MATTER FOR THE DISCIPLINARY AUTHORITY .

1973-05-30

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61995CJ0007

John Deere Ltd v Commission of the European Communities.

22 The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see, in particular, the order in San Marco v Commission, cited above, paragraph 40). The appraisal by the Court of First Instance of the evidence put before it does not constitute, save where the evidence has been fundamentally misconstrued, a point of law which is subject, as such, to review by the Court of Justice (judgment in Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42). The first ground of appeal

1998-05-28

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61988CJ0100

Augustin Oyowe and Amadou Traore v Commission of the European Communities.

16 Finally, it must be borne in mind that in any event the duty of allegiance to the Communities imposed on officials in the Staff Regulations cannot be interpreted in such a way as to conflict with freedom of expression, a fundamental right which the Court must ensure is respected in Community law, which is particularly important in cases, such as the present, concerning journalists whose primary duty is to write in complete independence of the views of either the ACP States or the Communities .

1989-12-13

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61998CJ0352

Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the European Communities.

35 That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.

2000-07-04

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61992CJ0404

X v Commission of the European Communities.

18 However, the Court of Justice has held that restrictions may be imposed on fundamental rights provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected (see Commission v Germany, cited above, paragraph 23).

1994-10-05

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded. 169 Consequently, the plea must be rejected. The seventh plea in law: misuse of powers 22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers. 23 In rejecting this plea, the Court of First Instance gave the following grounds: 171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88). 172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings. 173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas. 174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers. 175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected. 24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages. 25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs. The appeal 26 Mr Connolly claims that the Court of Justice should: set aside the contested judgment; annul so far as necessary the opinion of the Disciplinary Board; annul the contested decision; annul the decision of 12 July 1996 rejecting his administrative complaint; order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage; order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings. 27 The Commission contends that the Court of Justice should: dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded; dismiss the claim for damages as inadmissible and unfounded; order Mr Connolly to pay the costs in their entirety. 28 In his appeal the appellant puts forward 13 grounds of appeal. The first ground of appeal 29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights). 30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review. 31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission. 32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC. 33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected. The admissibility of the ground of appeal 34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression. 35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression. 36 The first ground of appeal must therefore be held to be admissible. Substance 37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52). 40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). 42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49). 43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution. 44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. 45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124). 46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively. 47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th

61985CJ0403

F v Commission of the European Communities.

26 IN THAT REGARD, IT MUST BE STRESSED THAT THE PROVISIONS OF THE STAFF REGULATIONS ON DISCIPLINARY MEASURES ( ARTICLES 86 TO 89 ) DO NOT SPECIFY ANY FIXED RELATIONSHIP BETWEEN THE MEASURES PROVIDED FOR AND THE VARIOUS SORTS OF FAILURE BY OFFICIALS TO COMPLY WITH THEIR OBLIGATIONS; NOR DO THEY STATE THE EXTENT TO WHICH THE EXISTENCE OF AGGRAVATING OR MITIGATING CIRCUMSTANCES SHOULD AFFECT THE CHOICE OF PENALTY . THE DETERMINATION OF THE PENALTY TO BE IMPOSED IN EACH INDIVIDUAL CASE IS THEREFORE BASED ON A COMPREHENSIVE APPRAISAL OF ALL THE PARTICULAR FACTS AND CIRCUMSTANCES PECULIAR TO THE CASE .

1987-02-05

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61989CJ0260

Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others.

41 With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case C-5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.

1991-06-18

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61972CJ0046

Robert de Greef v Commission of the European Communities.

45 THE FACTS ALLEGED AGAINST THE APPLICANT HAVING BEEN ESTABLISHED, THE CHOICE OF APPROPRIATE DISCIPLINARY MEASURE IS A MATTER FOR THE DISCIPLINARY AUTHORITY .

1973-05-30

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61988CJ0100

Augustin Oyowe and Amadou Traore v Commission of the European Communities.

16 Finally, it must be borne in mind that in any event the duty of allegiance to the Communities imposed on officials in the Staff Regulations cannot be interpreted in such a way as to conflict with freedom of expression, a fundamental right which the Court must ensure is respected in Community law, which is particularly important in cases, such as the present, concerning journalists whose primary duty is to write in complete independence of the views of either the ACP States or the Communities .

1989-12-13

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61996CJ0188

Commission of the European Communities v V.

26 On the question of the obligation to state reasons, it should be recalled that, in accordance with settled case-law, the statement of the reasons for a decision adversely affecting the person concerned must enable the Community judicature to exercise its review of legality and to provide that person with the information which he needs in order to know whether the decision is well founded (see in particular Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22, and Commission v Daffix, cited above, paragraph 23).

1997-11-20

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61995CJ0166

Commission of the European Communities v Frédéric Daffix.

23 In this regard, it should be observed that, according to the case-law, the statement of the reasons on which a decision adversely affecting a person is based must allow the Court to exercise its power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Michel v Parliament, cited above, paragraph 22).

1997-02-20

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

23 As the Court has already held ( see judgment in United Kingdom v Council, cited above, paragraphs 21 and 22 ) with regard to Council Directive 85/649, mentioned above, which was identical to the directive at issue in these proceedings, in regulating conditions for the production and marketing of meat with a view to improving its quality, the directive comes into the category of measures provided for by the common organizations of the markets in meat and thus contributes to the achievement of the objectives of the common agricultural policy set out in Article 39 of the Treaty, and the Council therefore had the power to adopt it on the basis of Article 43 of the Treaty alone .

61986CJ0068

United Kingdom of Great Britain and Northern Ireland v Council of the European Communities.

22 IT FOLLOWS FROM THE FOREGOING THAT THE DIRECTIVE AT ISSUE FALLS WITHIN THE SPHERE OF THE COMMON AGRICULTURAL POLICY AND THAT THE COUNCIL HAD THE POWER TO ADOPT IT ON THE BASIS OF ARTICLE 43 ALONE .

1988-02-23

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

24 Furthermore, the Court has consistently held ( see in particular judgments in Joined Cases 140, 146, 221 and 226/82 Walzstahl-Vereinigung and Thyssen v Commission [1984] ECR 951, paragraph 27, and Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 30 ) that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case .

61982CJ0140

Walzstahl-Vereinigung and Thyssen Aktiengesellschaft v Commission of the European Communities.

27 IN ORDER TO RESOLVE THIS ISSUE IT IS USEFUL TO RECALL THAT IN ITS JUDGMENT OF 21 JUNE 1958 IN CASE 8/57 ( GROUPEMENT DES HAUTS FOURNEAUX ET ACIERIES BELGES V HIGH AUTHORITY ( 1958 ) ECR 245 ) THE COURT HELD THAT THE POWERS CONFERRED ON THE COMMISSION BY THE ECSC TREATY ARE LIMITED BY THE SPECIFIC PROVISIONS SET OUT IN TITLE III OF THE TREATY AND THAT , IN PARTICULAR , SUCH POWERS WOULD BE DIVERTED FROM THEIR LAWFUL PURPOSE IF IT APPEARED THAT THE COMMISSION HAD MADE USE OF THEM WITH THE EXCLUSIVE , OR AT ANY RATE THE MAIN , PURPOSE OF EVADING A PROCEDURE SPECIFICALLY PRESCRIBED BY THE TREATY FOR DEALING WITH THE CIRCUMSTANCES WITH WHICH IT IS REQUIRED TO COPE .

1984-02-21

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

24 Furthermore, the Court has consistently held ( see in particular judgments in Joined Cases 140, 146, 221 and 226/82 Walzstahl-Vereinigung and Thyssen v Commission [1984] ECR 951, paragraph 27, and Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 30 ) that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case .

61983CJ0069

Charles Lux v Court of Auditors of the European Communities.

30 AS THE COURT HAS REPEATEDLY HELD ( SEE , IN PARTICULAR , ITS JUDGMENT OF 5 MAY 1966 IN JOINED CASES 18 AND 35/65 , GUTMANN , ( 1966 ) ECR 103 ), A DECISION MAY AMOUNT TO A MISUSE OF POWERS ONLY IF IT APPEARS , ON THE BASIS OF OBJECTIVE , RELEVANT AND CONSISTENT , TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE STATED .

1984-06-21

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

26 Furthermore, it should be stated that the agricultural policy objectives laid down in Article 39 of the Treaty include in particular the stabilization of markets . Moreover, Article 39(2)(b ) and ( c ) provides that in working out the common agricultural policy account must be taken of the need to effect the appropriate adjustments by degrees and of the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole . It follows that, as the Court held at paragraph 10 of its judgment in United Kingdom v Council, agricultural policy objectives must be conceived in such a manner as to enable the Community institutions to carry out their duties in the light of developments in agriculture and in the economy as a whole .

61986CJ0068

United Kingdom of Great Britain and Northern Ireland v Council of the European Communities.

10 THE AGRICULTURAL POLICY OBJECTIVES SET OUT IN ARTICLE 39 OF THE TREATY INCLUDE IN PARTICULAR THE INCREASING OF PRODUCTIVITY BY PROMOTING TECHNICAL PROGRESS AND BY ENSURING THE RATIONAL DEVELOPMENT OF AGRICULTURAL PRODUCTION AND THE OPTIMUM UTILIZATION OF THE FACTORS OF PRODUCTION . MOREOVER, ARTICLE 39 ( 2 ) ( B ) AND ( C ) PROVIDES THAT IN WORKING OUT THE COMMON AGRICULTURAL POLICY ACCOUNT MUST BE TAKEN OF THE NEED TO EFFECT THE APPROPRIATE ADJUSTMENTS BY DEGREES AND THE FACT THAT IN THE MEMBER STATES AGRICULTURE CONSTITUTES A SECTOR CLOSELY LINKED WITH THE ECONOMY AS A WHOLE . IT FOLLOWS THAT AGRICULTURAL POLICY OBJECTIVES MUST BE CONCEIVED IN SUCH A MANNER AS TO ENABLE THE COMMUNITY INSTITUTIONS TO CARRY OUT THEIR DUTIES IN THE LIGHT OF DEVELOPMENTS IN AGRICULTURE AND IN THE ECONOMY AS A WHOLE .

1988-02-23

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61998CJ0352

Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the European Communities.

35 That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.

2000-07-04

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61992CJ0404

X v Commission of the European Communities.

18 However, the Court of Justice has held that restrictions may be imposed on fundamental rights provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected (see Commission v Germany, cited above, paragraph 23).

1994-10-05

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61985CJ0403

F v Commission of the European Communities.

26 IN THAT REGARD, IT MUST BE STRESSED THAT THE PROVISIONS OF THE STAFF REGULATIONS ON DISCIPLINARY MEASURES ( ARTICLES 86 TO 89 ) DO NOT SPECIFY ANY FIXED RELATIONSHIP BETWEEN THE MEASURES PROVIDED FOR AND THE VARIOUS SORTS OF FAILURE BY OFFICIALS TO COMPLY WITH THEIR OBLIGATIONS; NOR DO THEY STATE THE EXTENT TO WHICH THE EXISTENCE OF AGGRAVATING OR MITIGATING CIRCUMSTANCES SHOULD AFFECT THE CHOICE OF PENALTY . THE DETERMINATION OF THE PENALTY TO BE IMPOSED IN EACH INDIVIDUAL CASE IS THEREFORE BASED ON A COMPREHENSIVE APPRAISAL OF ALL THE PARTICULAR FACTS AND CIRCUMSTANCES PECULIAR TO THE CASE .

1987-02-05

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61996CJ0144

Office national des pensions (ONP) v Maria Cirotti.

21 It is sufficient to note in that regard that, according to paragraph 20 of the Cassamali judgment, cited above, Article 51(1) applies even where the benefit to be reduced due to index-linked increases in another benefit has been calculated in accordance with national provisions and not according to Article 46.

1997-10-02

61999CJ0274

Bernard Connolly v Commission of the European Communities.

2001-03-06

76 Consequently, the third part of the plea must be rejected. The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings 10 In particular, the Court of First Instance held as follows: 82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations. 83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions. 84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected. 85 Therefore, the fourth part of the plea cannot be accepted. 11 The Court of First Instance therefore rejected the first plea in law. The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration 12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings. 13 The Court of First Instance held, in particular, as follows: 92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of. 93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22). 94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons. 95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant. ... 97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book). 98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing). 99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard. ... 101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing. 102 It follows that the plea must be rejected. The third plea in law: infringement of Article 11 of the Staff Regulations 14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission. 15 The Court of First Instance held as follows: 108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case. 109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR"). 110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book. 111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs. ... 113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations. 114 Accordingly, the plea must be rejected. The fourth plea in law: infringement of Article 12 of the Staff Regulations 16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis. 17 So far as this plea in law is concerned, the Court of First Instance held as follows: 124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66). 125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position. 126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book. 127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations. 128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty. 129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41). 130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47). 131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials. 132 It follows that the plea must be rejected. The fifth plea in law: infringement of Article 17 of the Staff Regulations 18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II. 19 The Court of First Instance rejected this plea for the following reasons: 147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression. 148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73). 149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials. 150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions. 151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. 152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned. 153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties. 154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation. 155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression. 156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected. 157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication. 158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations. ... 160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations. 161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument. 162 Consequently, the plea must be rejected. The sixth plea in law: manifest error of assessment and breach of the principle of proportionality 20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances. 21 The Court of First Instance held as follows: 165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34). 166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established. 167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed. 1

61987CJ0265

Hermann Schräder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau.

15 The Court has recognized in particular, notably in the judgment in Case 44/79, cited above, that both the right to property and the freedom to pursue a trade or profession form part of the general principles of Community law . However, those principles do not constitute an unfettered prerogative, but must be viewed in the light of the social function of the activities protected thereunder . Consequently, the right to property and the freedom to pursue a trade or profession may be restricted, particularly in the context of a common organization of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed . The question whether the co-responsibility levy scheme is compatible with the protection of fundamental rights must be considered in the light of those criteria .

1989-07-11

61999CJ0280

Moccia Irme SpA, Ferriera Lamifer SpA and Ferriera Acciaieria Casilina SpA v Commission of the European Communities.

2001-06-21

103 That finding, which is in no way challenged by Lamifer, cannot in any event form the subject-matter of an appeal, if there has been no distortion by the Court of First Instance of the clear sense of the evidence (see the judgment in Hilti v Commission, cited above, at paragraph 42).

61992CJ0053

Hilti AG v Commission of the European Communities.

42 It should be pointed out that the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice.

1994-03-02

61999CJ0280

Moccia Irme SpA, Ferriera Lamifer SpA and Ferriera Acciaieria Casilina SpA v Commission of the European Communities.

2001-06-21

67 The Court has also consistently held that, under Articles 113(2) and 116(1) of the Rules of Procedure of the Court of Justice, fresh submissions, not contained in the original application, cannot be raised in an appeal (see, inter alia, Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph 18).

61996CJ0153

Jan Robert de Rijk v Commission of the European Communities.

18 The Court has also consistently held that under Articles 113(2) and 116(1) of the Rules of Procedure of the Court of Justice fresh submissions not contained in the original application cannot be raised in an appeal (V v Parliament, paragraph 21).

1997-05-29

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

29 As regards the alleged inadequacy of the statement of reasons, the Court has already held at paragraphs 28 and 36 of its judgment in United Kingdom v Council that the reasons for the directive are sufficiently stated since its preamble gives a sufficiently clear statement of the objectives pursued .

61986CJ0068

United Kingdom of Great Britain and Northern Ireland v Council of the European Communities.

28 IT SHOULD BE POINTED OUT, FIRST, THAT IT IS CLEAR FROM THE CONSIDERATIONS SET OUT ABOVE AS REGARDS THE LEGAL BASIS THAT THE RECITALS IN THE PREAMBLE TO THE DIRECTIVE GIVE A SUFFICIENTLY CLEAR STATEMENT OF THE OBJECTIVES PURSUED AND, SECONDLY, THAT HUMAN HEALTH AND THE PROTECTION OF CONSUMERS' INTERESTS ARE EXPRESSLY MENTIONED IN THE FIRST AND SECOND RECITALS RESPECTIVELY . THAT COMPLAINT MUST THEREFORE BE REJECTED .

1988-02-23

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

42 As regards the first aspect, it should first be pointed out that the Court has held ( see in particular the judgment in Case 63/83 Regina v Kirk [1984] ECR 2689, paragraph 22 ) that the principle that penal provisions may not have retroactive effect is one which is common to all the legal orders of the Member States and is enshrined in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a fundamental right which takes its place among the general principles of law whose observance is ensured by the Court of Justice .

61983CJ0063

Regina v Kent Kirk.

22 THE PRINCIPLE THAT PENAL PROVISIONS MAY NOT HAVE RETROACTIVE EFFECT IS ONE WHICH IS COMMON TO ALL THE LEGAL ORDERS OF THE MEMBER STATES AND IS ENSHRINED IN ARTICLE 7 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AS A FUNDAMENTAL RIGHT ; IT TAKES ITS PLACE AMONG THE GENERAL PRINCIPLES OF LAW WHOSE OBSERVANCE IS ENSURED BY THE COURT OF JUSTICE .

1984-07-10

61988CJ0331

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

1990-11-13

45 As regards the retroactive effect of the directive at issue outside the criminal sphere, it should be recalled that, as the Court has already held on several occasions ( see in particular the judgment in Case C-337/88 Società agricola fattoria alimentare [1990] ECR I-1, paragraph 13 ), although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected . In order to reply to the question raised, it is therefore necessary to determine whether those criteria were satisfied in the present case .

61988CJ0337

Società agricola fattoria alimentare SpA (SAFA) v Amministrazione delle finanze dello Stato.

13 As the Court has already held, in particular in the aforementioned judgments, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected . In order to reply to the questions raised, it is therefore necessary to examine whether those criteria were satisfied in the present case . Regulation No 57/81

1990-01-09

61988CJ0347

Commission of the European Communities v Hellenic Republic.

1990-12-13

16 In that regard it must be borne in mind first of all that, as the Court has consistently held ( see, in particular, the judgment in Case C-217/88 Commission v Germany [1990] ECR I-2879, paragraph 10 ) an application brought under Article 169 of the EEC Treaty can be based only on the arguments and submissions already set forth in the reasoned opinion .

61988CJ0217

Commission of the European Communities v Federal Republic of Germany.

10 According to the established case-law of the Court ( see, in particular, the judgment in Case 298/86 Commission v Belgium [1988] ECR 4343, paragraph 10 ), an application brought under Article 169 of the EEC Treaty can be based only on the arguments and submissions already set forth in the reasoned opinion .

1990-07-10

61988CJ0347

Commission of the European Communities v Hellenic Republic.

1990-12-13

24 Furthermore, the Commission' s argument to the effect that the complaints relating to the "market trend" and "storage cost" factors merely develop an argument put forward during the pre-litigation procedure cannot be accepted . As the Court has held on several occasions ( see, in particular, the judgment in Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 21 ), the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty . Accordingly, even if the Commission intended to contest the system of maximum consumer prices in general, it was under an obligation to state, in its reasoned opinion, the actual reasons why it considered that system to be contrary to the provisions of the Treaty .

61983CJ0274

Commission of the European Communities v Italian Republic.

21 ALTHOUGH IT FOLLOWS THAT THE REASONED OPINION PROVIDED FOR IN ARTICLE 169 OF THE EEC TREATY MUST CONTAIN A COHERENT AND DETAILED STATEMENT OF THE REASONS WHICH LED THE COMMISSION TO CONCLUDE THAT THE STATE IN QUESTION HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY , THE COURT CANNOT IMPOSE SUCH STRICT REQUIREMENTS AS REGARDS THE INITIAL LETTER , WHICH OF NECESSITY WILL CONTAIN ONLY AN INITIAL BRIEF SUMMARY OF THE COMPLAINTS . AS THE COURT STATED IN ITS JUDGMENT OF 31 JANUARY 1984 ( CASE 74/82 COMMISSION V IRELAND ( 1984 ) ECR 317 ) THERE IS NOTHING THEREFORE TO PREVENT THE COMMISSION FROM SETTING OUT IN DETAIL IN THE REASONED OPINION THE COMPLAINTS WHICH IT HAS ALREADY MADE MORE GENERALLY IN ITS INITIAL LETTER .

1985-03-28

61999CJ0297

Criminal proceedings against Skills Motor Coaches Ltd, B.J. Farmer, C.J. Burley and B. Denman.

2001-01-18

19 Those provisions seek to ensure that driving times and rest periods alternate, so that drivers do not remain at the wheel of their vehicles for periods of such length as to cause tiredness and jeopardise road safety (Van Swieten, cited above, paragraph 23).

61992CJ0313

Criminal proceedings against Van Swieten BV.

23 With that in mind, Article 8(1) of Regulation No 3820/85 seeks, by providing that each period of 24 hours must include a minimum number of hours of rest per day, to ensure that driving times and rest periods alternate, so that drivers do not remain at the wheel of their vehicles for periods of such length as to cause tiredness and jeopardize road safety.

1994-06-02

61999CJ0310

Italian Republic v Commission of the European Communities.

2002-03-07

86 The relatively small amount of aid, or the relatively small size of the undertaking which receives it, does not as such exclude the possibility that intra-Community trade might be affected (Spain v Commission, cited above, paragraph 42).

61992CJ0278

Kingdom of Spain v Commission of the European Communities.

42 It should be added that the relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that intra-Community trade might be affected (judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 43).

1994-09-14

61988CJ0347

Commission of the European Communities v Hellenic Republic.

1990-12-13

33 Furthermore, Article 30 provides that quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States . As the Court has consistently held ( see, primarily, the judgment in Case 8/74 Procurer du Roi v Dassonville [1974] ECR 837, paragraph 5 ), that provision applies to all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade .

61974CJ0008

Procureur du Roi v Benoît and Gustave Dassonville.

5 ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ARE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS .

1974-07-11

61988CJ0347

Commission of the European Communities v Hellenic Republic.

1990-12-13

42 Furthermore, as the Court has held(in particular, in the judgment in Case 78/82 Commission v Italy [1983] ECR 1955, paragraph 11 ), it is clear not only from the wording of Article 37 but also from its position in the general scheme of the Treaty that the article is designed to ensure compliance with the fundamental rule of the free movement of goods throughout the common market, in particular by the abolition of quantitative restrictions and measures having equivalent effect in trade between Member States, and thereby to maintain normal conditions of competition between the Member States should a given product, in one or other of those States, be subject to a national monopoly of a commercial character .

61982CJ0078

Commission of the European Communities v Italian Republic.

11 IN THE FIRST PLACE IT SHOULD BE RECALLED , AS THE COURT HAS HELD , IN PARTICULAR , IN ITS JUDGMENTS OF 3 FEBRUARY 1976 ( CASE 59/75 PUBBLICO MINISTERO V MANGHERA ( 1976 ) ECR 91 ) AND OF 13 MARCH 1979 ( CASE 91/78 HANSEN V HAUPTZOLLAMT FLENSBURG ( 1979 ) ECR 935 ), THAT ARTICLE 37 OF THE TREATY DOES NOT DEMAND THE TOTAL ABOLITION OF NATIONAL MONOPOLIES HAVING A COMMERCIAL CHARACTER BUT REQUIRES THEM TO BE ADJUSTED IN SUCH A WAY AS TO ENSURE THAT NO DISCRIMINATION REGARDING THE CONDITIONS UNDER WHICH GOODS ARE PROCURED AND MARKETED EXISTS BETWEEN NATIONALS OF MEMBER STATES . IT IS CLEAR NOT ONLY FROM THE WORDING OF ARTICLE 37 BUT ALSO FROM ITS POSITION IN THE GENERAL SCHEME OF THE TREATY THAT THE ARTICLE IS DESIGNED TO ENSURE COMPLIANCE WITH THE FUNDAMENTAL RULE OF THE FREE MOVEMENT OF GOODS THROUGHOUT THE COMMON MARKET , IN PARTICULAR BY THE ABOLITION OF QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT IN TRADE BETWEEN MEMBER STATES , AND THEREBY TO MAINTAIN NORMAL CONDITIONS OF COMPETITION BETWEEN THE ECONOMIES OF MEMBER STATES SHOULD A GIVEN PRODUCT , IN ONE OR OTHER OF THOSE STATES , BE SUBJECT TO A NATIONAL MONOPOLY OF A COMMERCIAL CHARACTER .

1983-06-07

61988CJ0347

Commission of the European Communities v Hellenic Republic.

1990-12-13

48 Admittedly, in its judgment in Case 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727, paragraph 51, the Court stated that a Member State which is totally or almost totally dependant on imports for its supplies of petroleum products may rely on grounds of public security within the meaning of Article 36 of the Treaty for the purpose of requiring importers to cover a certain proportion of their needs by purchases from a refinery situated in its territory at prices fixed by the competent ministry on the basis of the costs incurred in the operation of that refinery, if the production of the refinery cannot be freely disposed of at competitive prices on the market concerned .

61983CJ0072

Campus Oil Limited and others v Minister for Industry and Energy and others.

51 THE ANSWER TO THE SECOND QUESTION SHOULD THEREFORE BE THAT A MEMBER STATE WHICH IS TOTALLY OR ALMOST TOTALLY DEPENDENT ON IMPORTS FOR ITS SUPPLIES OF PETROLEUM PRODUCTS MAY RELY ON GROUNDS OF PUBLIC SECURITY WITHIN THE MEANING OF ARTICLE 36 OF THE TREATY FOR THE PURPOSE OF REQUIRING IMPORTERS TO COVER A CERTAIN PROPORTION OF THEIR NEEDS BY PURCHASES FROM A REFINERY SITUATED IN ITS TERRITORY AT PRICES FIXED BY THE COMPETENT MINISTER ON THE BASIS OF THE COSTS INCURRED IN THE OPERATION OF THAT REFINERY , IF THE PRODUCTION OF THE REFINERY CANNOT BE FREELY DISPOSED OF AT COMPETITIVE PRICES ON THE MARKET CONCERNED . THE QUANTITIES OF PETROLEUM PRODUCTS COVERED BY SUCH A SYSTEM MUST NOT EXCEED THE MINIMUM SUPPLY REQUIREMENT WITHOUT WHICH THE PUBLIC SECURITY OF THE STATE CONCERNED WOULD BE AFFECTED OR THE LEVEL OF PRODUCTION NECESSARY TO KEEP THE REFINERY ' S PRODUCTION CAPACITY AVAILABLE IN THE EVENT OF A CRISIS AND TO ENABLE IT TO CONTINUE TO REFINE AT ALL TIMES THE CRUDE OIL FOR THE SUPPLY OF WHICH THE STATE CONCERNED HAS ENTERED INTO LONG-TERM CONTRACTS .

1984-07-10

61999CJ0310

Italian Republic v Commission of the European Communities.

2002-03-07

98 In that regard, it must be borne in mind that the abolition, by means of recovery, of State aid which has been unlawfully granted is the logical consequence of a finding that it is unlawful (Case C-142/87 Belgium v Commission (Tubemeuse) [1990] ECR I-959, paragraph 66) and that the aim of obliging the State concerned to abolish aid found by the Commission to be incompatible with the common market is to restore the previous situation (Case C-350/93 Commission v Italy [1995] ECR I-699, paragraph 21, and Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraph 64).

61987CJ0142

Kingdom of Belgium v Commission of the European Communities.

64 Consequently, the submission must be rejected .

1990-03-21

61999CJ0326

Stichting "Goed Wonen" v Staatssecretaris van Financiën.

2001-10-04

45 As is clear from the actual wording of Article 13B(b) and C of the Sixth Directive, the latter has left the Member States wide discretion as to whether the transactions concerned are to be exempt or taxed (see Case C-12/98 Amengual Far [2000] ECR I-527, paragraph 13).

61998CJ0012

Miguel Amengual Far v Juan Amengual Far.

13 Furthermore, it is clear from the actual words of Article 13B(b) and C of the Sixth Directive that the latter has left the Members States wide discretion as to whether the transactions concerned are to be exempt or taxed.

2000-02-03

61999CJ0328

Italian Republic and SIM 2 Multimedia SpA v Commission of the European Communities.

2003-05-08

53. In that respect, it must be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular, Tubemeuse , cited above, paragraph 66, and Case C-261/99 Commission v France [2001] ECR I-2537, paragraph 22).

61999CJ0261

Commission of the European Communities v French Republic.

22 It must next be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 16, and Commission v Portugal, cited above, paragraph 38).

2001-03-22

61999CJ0333

Commission of the European Communities v French Republic.

2001-02-01

39 The Court has already held, in its judgment in Case C-52/95 Commission v France [1995] ECR I-4443, paragraphs 29 and 30, that Article 11(2) of Regulation No 2241/87 requires Member States to adopt binding measures to prohibit on a provisional basis all fishing activity even before quotas are exhausted.

61995CJ0052

Commission of the European Communities v French Republic.

30 Article 11(2) of Regulation No 2241/87 imposes the same requirement on the Member States.

1995-12-07

61988CJ0347

Commission of the European Communities v Hellenic Republic.

1990-12-13

58 In that regard it must first be borne in mind that, as the Court stated in its judgment Campus Oil Ltd, cited above ( paragraph 35 ), the aim of ensuring a minimum supply of petroleum products at all times is capable of constituting an objective covered by the concept of public security within the meaning of Article 36 of the EEC Treaty . However, measures adopted on the basis of Article 36 cannot be justified unless they are necessary for the attainment of the objective pursued by that article and that objective is not capable of being achieved by measures which are less restrictive of intra-Community trade ( see the judgment in Case C-196/89 Nespoli and Crippa [1990] ECR I-3647, paragraph 15 ).

61989CJ0196

Criminal proceedings against Enzo Nespoli and Giuseppe Crippa.

15 Furthermore, in order to be permissible, such rules must be necessary for the attainment of the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade .

1990-10-11

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

16 It is not necessary, however, for details of all relevant factual and legal aspects to be given . The Court has consistently held that the question whether the statement of the grounds for a decision meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question ( see paragraph 38 of the judgment in University of Groningen; paragraphs 36 and 37 of the judgment of 23 February 1978 in Case 92/77 An Bord Bainne v Minister for Agriculture (( 1978 )) ECR 497; and paragraphs 18 to 22 of the judgment of 25 October 1978 in Case 125/77 Koninklijke Scholten-Honig v Hoofdproduktschap voor Akkerbouwprodukten (( 1978 )) ECR 1991 ). Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision ( see the judgment of 1 December 1965 in Case 16/65 Firma C . Schwarze v Einfuhr - und Vorratsstelle fuer Getreide und Futtermittel (( 1965 )) ECR 877 ).

61977CJ0092

An Bord Bainne Co-Operative v Minister for Agriculture.

36THE REASONS ON WHICH A PIECE OF LEGISLATION IS BASED MAY APPEAR NOT ONLY FROM ITS OWN WORDING , BUT ALSO FROM THE WHOLE BODY OF THE LEGAL RULES GOVERNING THE FIELD UNDER CONSIDERATION .

1978-02-23

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

16 It is not necessary, however, for details of all relevant factual and legal aspects to be given . The Court has consistently held that the question whether the statement of the grounds for a decision meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question ( see paragraph 38 of the judgment in University of Groningen; paragraphs 36 and 37 of the judgment of 23 February 1978 in Case 92/77 An Bord Bainne v Minister for Agriculture (( 1978 )) ECR 497; and paragraphs 18 to 22 of the judgment of 25 October 1978 in Case 125/77 Koninklijke Scholten-Honig v Hoofdproduktschap voor Akkerbouwprodukten (( 1978 )) ECR 1991 ). Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision ( see the judgment of 1 December 1965 in Case 16/65 Firma C . Schwarze v Einfuhr - und Vorratsstelle fuer Getreide und Futtermittel (( 1965 )) ECR 877 ).

61977CJ0092

An Bord Bainne Co-Operative v Minister for Agriculture.

37SITUATED IN THE CONTEXT OF THE RULES GOVERNING INTERVENTION ARRANGEMENTS LAID DOWN BY REGULATIONS NO 804/68 AND NO 985/68 OF THE COUNCIL , AND MORE PARTICULARLY IN THAT OF PRIVATE STORAGE AID , REGULATION NO 2517/74 MAKES IT POSSIBLE TO DISCERN THE REASONS JUSTIFYING THE ADDITION OF THE LAST SUBPARAGRAPH TO ARTICLE 29 OF REGULATION NO 685/69 .

1978-02-23

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

33 The Court has consistently held that whilst the principle of the protection of legitimate expectations is one of the fundamental principles of the Community, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained ( see paragraph 27 of the judgment of 15 July 1982 in Case 245/81 Edeka Zentrale AG v Germany (( 1982 )) ECR 2745, paragraph 27 of the judgment of 28 October 1982 in Case 52/81 Offene Handelsgesellschaft in Firma Werner Faust v Commission (( 1982 )) ECR 3745, and paragraph 33 of the judgment of 17 June 1987 in Joined Cases 424 and 425/85 Cooeperative Melkproducentenbedrijven Noord-Nederland BA ( Frico ) and Others v Voedselvoorzienings In - en Verkoopbureau (( 1987 )) ECR 2755 ). This is particularly true in an area such as the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation ( see paragraph 22 of the judgment of 16 May 1979 in Case 84/78 Angelo Tomadini v Amministrazione delle finanze dello Stato (( 1979 )) ECR 1801, paragraph 48 of the judgment of 5 May 1981 in Case 112/80 Firma Anton Duerbeck v Hauptzollamt Frankfurt am Main/Flughafen (( 1981 )) ECR 1095, and paragraph 33 of the judgment in Frico, cited above ).

61981CJ0052

Offene Handelsgesellschaft in Firma Werner Faust v Commission of the European Communities.

27 THAT COMPLAINT MUST ALSO BE REJECTED . SINCE COMMUNITY INSTITUTIONS ENJOY A MARGIN OF DISCRETION IN THE CHOICE OF THE MEANS NEEDED TO ACHIEVE THEIR POLICIES , TRADERS ARE UNABLE TO CLAIM THAT THEY HAVE A LEGITIMATE EXPECTATION THAT AN EXISTING SITUATION WHICH IS CAPABLE OF BEING ALTERED BY DECISIONS TAKEN BY THOSE INSTITUTIONS WITHIN THE LIMITS OF THEIR DISCRETIONARY POWER WILL BE MAINTAINED . IN THE PRESENT CASE , THERE CAN BE NO QUESTION OF A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , PARTICULARLY SINCE THE COMMERCIAL AGREEMENT ENTERED INTO ON 3 APRIL 1978 BETWEEN THE COMMUNITY AND THE PEOPLE ' S REPUBLIC OF CHINA , PUBLISHED IN THE OFFICIAL JOURNAL OF 11 MAY 1978 ( OFFICIAL JOURNAL 1978 , L 123 , P . 2 ) WAS OF SUCH A NATURE AS TO ALERT TRADERS TO AN IMMINENT CHANGE OF DIRECTION IN THE COMMUNITY ' S COMMERCIAL POLICY AND , IN THE ABSENCE OF ANY OBLIGATION ON THE PART OF THE COMMUNITY TO ACCORD EQUAL TREATMENT TO NON-MEMBER COUNTRIES , NO INFORMED TRADER WAS ENTITLED TO EXPECT THAT PATTERS OF TRADE EXISTING WHEN THE PROTECTIVE MEASURES WERE ADOPTED WOULD BE RESPECTED .

1982-10-28

61999CJ0334

Federal Republic of Germany v Commission of the European Communities.

2003-01-28

116. After the reunification of Germany that provision was not repealed either by the Treaty on European Union or by the Treaty of Amsterdam (Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 47).

61998CJ0156

Federal Republic of Germany v Commission of the European Communities.

47 After the reunification of Germany that provision was not repealed either by the Treaty on European Union or by the Treaty of Amsterdam.

2000-09-19

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

33 The Court has consistently held that whilst the principle of the protection of legitimate expectations is one of the fundamental principles of the Community, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained ( see paragraph 27 of the judgment of 15 July 1982 in Case 245/81 Edeka Zentrale AG v Germany (( 1982 )) ECR 2745, paragraph 27 of the judgment of 28 October 1982 in Case 52/81 Offene Handelsgesellschaft in Firma Werner Faust v Commission (( 1982 )) ECR 3745, and paragraph 33 of the judgment of 17 June 1987 in Joined Cases 424 and 425/85 Cooeperative Melkproducentenbedrijven Noord-Nederland BA ( Frico ) and Others v Voedselvoorzienings In - en Verkoopbureau (( 1987 )) ECR 2755 ). This is particularly true in an area such as the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation ( see paragraph 22 of the judgment of 16 May 1979 in Case 84/78 Angelo Tomadini v Amministrazione delle finanze dello Stato (( 1979 )) ECR 1801, paragraph 48 of the judgment of 5 May 1981 in Case 112/80 Firma Anton Duerbeck v Hauptzollamt Frankfurt am Main/Flughafen (( 1981 )) ECR 1095, and paragraph 33 of the judgment in Frico, cited above ).

61981CJ0245

Edeka Zentrale AG v Federal Republic of Germany.

27 THAT ARGUMENT MUST ALSO BE REJECTED . SINCE COMMUNITY INSTITUTIONS ENJOY A MARGIN OF DISCRETION IN THE CHOICE OF THE MEANS NEEDED TO ACHIEVE THEIR POLICIES , TRADERS ARE UNABLE TO CLAIM THAT THEY HAVE A LEGITIMATE EXPECTATION THAT AN EXISTING SITUATION WHICH IS CAPABLE OF BEING ALTERED BY DECISIONS TAKEN BY THOSE INSTITUTIONS WITHIN THE LIMITS OF THEIR DISCRETIONARY POWER WILL BE MAINTAINED . IN THE PRESENT CASE , THERE CAN BE NO QUESTION OF A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , PARTICULARLY SINCE THE COMMERCIAL AGREEMENT ENTERED INTO ON 3 APRIL 1978 BETWEEN THE COMMUNITY AND THE PEOPLE ' S REPUBLIC OF CHINA , PUBLISHED IN THE OFFICIAL JOURNAL OF 11 MAY 1978 ( OFFICIAL JOURNAL 1978 , L 123 , P . 2 ), WAS OF SUCH A NATURE AS TO ALERT TRADERS TO AN IMMINENT CHANGE OF DIRECTION IN THE COMMUNITY ' S COMMERCIAL POLICY .

1982-07-15

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

33 The Court has consistently held that whilst the principle of the protection of legitimate expectations is one of the fundamental principles of the Community, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained ( see paragraph 27 of the judgment of 15 July 1982 in Case 245/81 Edeka Zentrale AG v Germany (( 1982 )) ECR 2745, paragraph 27 of the judgment of 28 October 1982 in Case 52/81 Offene Handelsgesellschaft in Firma Werner Faust v Commission (( 1982 )) ECR 3745, and paragraph 33 of the judgment of 17 June 1987 in Joined Cases 424 and 425/85 Cooeperative Melkproducentenbedrijven Noord-Nederland BA ( Frico ) and Others v Voedselvoorzienings In - en Verkoopbureau (( 1987 )) ECR 2755 ). This is particularly true in an area such as the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation ( see paragraph 22 of the judgment of 16 May 1979 in Case 84/78 Angelo Tomadini v Amministrazione delle finanze dello Stato (( 1979 )) ECR 1801, paragraph 48 of the judgment of 5 May 1981 in Case 112/80 Firma Anton Duerbeck v Hauptzollamt Frankfurt am Main/Flughafen (( 1981 )) ECR 1095, and paragraph 33 of the judgment in Frico, cited above ).

61980CJ0112

Firma Anton Dürbeck v Hauptzollamt Frankfurt am Main-Flughafen.

33 EVEN IF IT ASSUMED THAT THE QUALITY OF IMPORTED APPLES WAS SUPERIOR TO THAT OF DOMESTIC APPLES IN THAT PERIOD , THE FACT STILL REMAINS THAT THE QUALITY OF DOMESTIC APPLES WAS NOT SO INFERIOR THAT THE TWO CATEGORIES OF APPLES WERE NOT LARGELY INTERCHANGEABLE .

1981-05-05

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

34 It follows that traders cannot claim a vested right to the maintenance of an advantage which they derive from the establishment of the common organization of the markets and which they enjoyed at a given time ( see paragraph 22 of the judgment of 27 September 1979 in Case 230/78 Eridiana-Zuccherifici Nazionali and Another v Minister for Agriculture and Forestry and Others (( 1979 )) ECR 2749, and paragraph 18 of the judgment of 21 May 1987 in Joined Cases 133 to 136/85 Walter Rau Lebensmittelwerke v Bundesanstalt fuer landwirtschaftliche Marktordnung (( 1987 )) ECR 2289 ).

61978CJ0230

SpA Eridania-Zuccherifici nazionali and SpA Società Italiana per l'Industria degli Zuccheri v Minister of Agriculture and Forestry, Minister for Industry, Trade and Craft Trades, and SpA Zuccherifici Meridionali.

22 IT FOLLOWS THAT AN UNDERTAKING CANNOT CLAIM A VESTED RIGHT TO THE MAINTENANCE OF AN ADVANTAGE WHICH IT OBTAINED FROM THE ESTABLISHMENT OF THE COMMON ORGANIZATION OF THE MARKET AND WHICH IT ENJOYED AT A GIVEN TIME . IN THOSE CIRCUMSTANCES A REDUCTION IN SUCH AN ADVANTAGE CANNOT BE CONSIDERED AS CONSTITUTING AN INFRINGEMENT OF A FUNDAMENTAL RIGHT .

1979-09-27

61999CJ0334

Federal Republic of Germany v Commission of the European Communities.

2003-01-28

94. Accordingly, where aid which a Member State wishes to authorise under a code is not notified during the period laid down by the code for such notification, the Commission can no longer give a decision on the compatibility of that aid under that code (Case 214/83 Germany v Commission [1985] ECR 3053, paragraphs 40 to 47, and Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraphs 49 to 55).

61983CJ0214

Federal Republic of Germany v Commission of the European Communities.

47 CONSEQUENTLY THE COMMISSION WAS NOT ENTITLED TO AUTHORIZE AID IF THE PLANS TO GRANT OR ALTER THE AID HAD NOT BEEN NOTIFIED TO IT BY 30 SEPTEMBER 1982 .

1985-10-03

61999CJ0340

TNT Traco SpA v Poste Italiane SpA and Others.

2001-05-17

46 As the Court has already held, an undertaking abuses its dominant position where it charges for its services fees which are unfair or disproportionate to the economic value of the service provided (see, inter alia, Case C-323/93 Centre d'Insémination de la Crespelle [1994] ECR I-5077, paragraph 25; and GT-Link, cited above, paragraph 39).

61995CJ0242

GT-Link A/S v De Danske Statsbaner (DSB).

39 The Court has ruled that `unfair prices', for the purposes of Article 86(a), means prices which are excessive because they have no reasonable relation to the economic value of the service supplied (see, to that effect, United Brands, paragraph 250).

1997-07-17

61999CJ0340

TNT Traco SpA v Poste Italiane SpA and Others.

2001-05-17

56 It must, however, be observed that, since Article 90(2) is a provision which permits, in certain circumstances, derogation from the rules of the Treaty, it must be restrictively interpreted (see, to that effect, GT-Link, cited above, paragraph 50).

61995CJ0242

GT-Link A/S v De Danske Statsbaner (DSB).

50 Since Article 90(2) is a provision which permits, in certain circumstances, derogation from the rules of the Treaty, there must be a strict definition of those undertakings which can take advantage of it (Case 127/73 BRT v SABAM and NV Fonior [1974] ECR 313, paragraph 19).

1997-07-17

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

1990-02-14

37 Secondly, in view of the downward trend in stock levels which began in late 1986 and accelerated considerably during 1988, the applicants, as prudent and well-informed traders, should have foreseen the progressive increase in the selling price of butter and the concomitant reduction of the amount of aid, which are the inevitable consequences of a fall in stock levels . They are not therefore entitled to claim that they had a legitimate expectation that the amount of the aid would be maintained ( see paragraph 6 of the judgment of 1 February 1978 in Case 78/77 Firma Johann Luehrs v Hauptzollamt Hamburg-Jonas (( 1978 )) ECR 169, and paragraph 13 of the judgment in Amylum, cited above ).

61977CJ0078

Johann Lührs v Hauptzollamt Hamburg-Jonas.

6IT FOLLOWS FROM THE STATED CIRCUMSTANCES THAT REGULATION NO 348/76 WAS ADOPTED PURSUANT TO AN OVERRIDING PUBLIC INTEREST , WHICH REQUIRED THAT THE RULES ADOPTED SHOULD ENTER INTO FORCE IMMEDIATELY . INDEED , THE PROPER FUNCTIONING OF THE COMMON MARKET REQUIRED A MEASURE TO RESTRAIN A DEVELOPMENT WHEREBY RISING PRICES AND ABNORMAL EXPORTS TO NON-MEMBER COUNTRIES WERE STIMULATING EACH OTHER . MOREOVER THAT MEASURE COULD NOT SURPRISE TRADE CIRCLES WHICH , EVEN IF THEY HAD NOT YET BEEN AWARE OF THE ABNORMAL SITUATION , HAD AT ALL EVENTS BEEN WARNED BY EARLIER COMMUNITY MEASURES ( SUSPENSION OF CUSTOMS DUTIES ON IMPORTS ) AND BY MEASURES ALREADY ADOPTED BY THE MEMBER STATES WHICH WERE TRADITIONAL EXPORTERS OF POTATOES . CONSEQUENTLY THE ADOPTION OF STRICTER MEASURES WAS TO BE FORESEEN BY PRUDENT AND DISCRIMINATING TRADERS SO THAT IN THE PRESENT CASE THEY CANNOT PLEAD LEGITIMATE EXPECTATION .

1978-02-01

61988CJ0357

Oberhausener Kraftfutterwerk Wilhelm Hopermann GmbH v Bundesanstalt für landwirtschaftliche Marktordnung.

1990-05-02

14 On that point, the Court has consistently held that, in order to determine whether a provision of Community law is consonant with the principle of proportionality, it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement ( see, in particular, the judgment of 22 January 1986 in Case 266/84 Denkavit France v Forma (( 1986 )) ECR 149, paragraph 17 ).

61984CJ0266

Denkavit France SARL v Fonds d'orientation et de régularisation des marchés agricoles (FORMA).

17 ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , IN ORDER TO DETERMINE WHETHER A PROVISION OF COMMUNITY LAW IS CONSONANT WITH THE PRINCIPLE OF PROPORTIONALITY IT IS NECESSARY TO ESTABLISH , IN THE FIRST PLACE , WHETHER THE MEANS IT EMPLOYS TO ACHIEVE ITS AIM CORRESPOND TO THE IMPORTANCE OF THE AIM AND , IN THE SECOND PLACE , WHETHER THEY ARE NECESSARY FOR ITS ACHIEVEMENT .

1986-01-22

61988CJ0358

Oberhausener Kraftfutterwerk Wilhelm Hopermann GmbH v Bundesanstalt für landwirtschaftliche Marktordnung.

1990-05-02

13 On that point, the Court has consistently held that, in order to determine whether a provision of Community law is consonant with the principle of proportionality, it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement ( see, in particular, the judgment of 22 January 1986 in Case 266/84 Denkavit France v Forma (( 1986 )) ECR 149, paragraph 17 ).

61984CJ0266

Denkavit France SARL v Fonds d'orientation et de régularisation des marchés agricoles (FORMA).

17 ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , IN ORDER TO DETERMINE WHETHER A PROVISION OF COMMUNITY LAW IS CONSONANT WITH THE PRINCIPLE OF PROPORTIONALITY IT IS NECESSARY TO ESTABLISH , IN THE FIRST PLACE , WHETHER THE MEANS IT EMPLOYS TO ACHIEVE ITS AIM CORRESPOND TO THE IMPORTANCE OF THE AIM AND , IN THE SECOND PLACE , WHETHER THEY ARE NECESSARY FOR ITS ACHIEVEMENT .

1986-01-22

61988CJ0361

Commission of the European Communities v Federal Republic of Germany.

1991-05-30

24 It must first be pointed out that the fact that a practice is in conformity with the requirements of a directive in the matter of protection may not constitute a reason for not transposing that directive into national law by provisions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain their rights and obligations. As the Court held in its judgment in Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 25, in order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.

61987CJ0339

Commission of the European Communities v Kingdom of the Netherlands.

25 The Netherlands Government' s argument cannot be upheld . In fact, it is common ground that the seeking, the collection and the possession of eggs of the wood pigeon, the carrion crow, the jackdaw, the jay and the magpie, which are authorized under the national legislation, are contrary to Article 5(c ) of the directive . As has been emphasized above, the fact that a number of activities incompatible with the prohibitions contained in the directive are unknown in a particular Member State cannot justify the absence of appropriate legal provisions . In order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question . The third complaint must therefore be regarded as well founded . Fourth complaint : derogations concerning the prevention of damage

1990-03-15

61999CJ0363

Koninklijke KPN Nederland NV v Benelux-Merkenbureau.

2004-02-12

68. Furthermore, according to the Court ' s case-law, the various grounds for refusing registration set out in Article 3 of the Directive must be interpreted in the light of the public interest underlying each of them (see in particular Case C-299/99 Philips [2002] ECR I-5475, paragraph 77, Linde , paragraph 71, and Libertel , paragraph 51).

62001CJ0104

Libertel Groep BV v Benelux-Merkenbureau.

51. The various grounds for refusing registration in Article 3 of the Directive must therefore be interpreted in the light of the public interest underlying each of them (Case C-299/99 Philips [2002] ECR I-5475, paragraph 77).

2003-05-06

61999CJ0363

Koninklijke KPN Nederland NV v Benelux-Merkenbureau.

2004-02-12

68. Furthermore, according to the Court ' s case-law, the various grounds for refusing registration set out in Article 3 of the Directive must be interpreted in the light of the public interest underlying each of them (see in particular Case C-299/99 Philips [2002] ECR I-5475, paragraph 77, Linde , paragraph 71, and Libertel , paragraph 51).

61999CJ0299

Koninklijke Philips Electronics NV v Remington Consumer Products Ltd.

77 The various grounds for refusal of registration listed in Article 3 of the Directive must be interpreted in the light of the public interest underlying each of them (see, to that effect, Windsurfing Chiemsee, paragraphs 25 to 27).

2002-06-18

61999CJ0366

Joseph Griesmar v Ministre de l'Economie, des Finances et de l'Industrie and Ministre de la Fonction publique, de la Réforme de l'Etat et de la Décentralisation.

2001-11-29

75 It is also settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effect of the ruling (Grzelczyk, paragraph 52).

61999CJ0184

Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve.

52 It is also settled in case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effect of the ruling (see, in particular, Buchner and Others, paragraph 41).

2001-09-20

61988CJ0366

French Republic v Commission of the European Communities.

1990-10-09

9 It must also be observed that in principle internal instructions have effects only within the administration itself and give rise to no rights or obligations on the part of third parties . They do not therefore constitute acts adversely affecting any person, against which, as such, an action for annulment can be brought under Article 173 of the Treaty ( see judgment in Case 190/84 "Les Verts" v European Parliament [1988] ECR 1017, paragraph 8 ).

61984CJ0190

Parti écologiste "Les Verts" v European Parliament.

8 DE TELS ACTES NE PRODUISANT D' EFFETS JURIDIQUES QUE DANS LA SPHERE INTERNE DE L' ADMINISTRATION, ILS NE CREENT PAS DE DROITS OU D' OBLIGATIONS DANS LE CHEF DE TIERS . ILS NE CONSTITUENT DONC PAS DES DECISIONS FAISANT GRIEF . LE RECOURS DOIT EN CONSEQUENCE ETRE REJETE COMME IRRECEVABLE .

1988-02-25

61988CJ0367

Commission of the European Communities v Ireland.

1990-12-06

7 It should be pointed out that, as the Court has consistently held ( see, most recently, the judgment of 12 June 1990 in Case C-158/88 Commission v Ireland [1990] ECR I-2367, paragraph 7 ), in the area in question Member States are left only with the restricted power given to them by the actual provisions of the directives in question . No provision is made in those directives for laying down quantitative limits for goods not expressly referred to in Article 4(1 ) of Directive 69/169 .

61988CJ0158

Commission of the European Communities v Ireland.

7 This argument cannot be accepted . It is clear from the Court' s case-law ( see in particular the judgment of 14 February 1984 in Case 278/82 Rewe II (( 1984 )) ECR 721, paragraph 31 ) that in the area in question Member States are left with only the restricted power given to them by the actual provisions of the directives in question . No provision is made in those directives for any derogation relating to the duration of journeys .

1990-06-12

61988CJ0369

Criminal proceedings against Jean-Marie Delattre.

1991-03-21

16 It should be added that those two definitions cannot be regarded as strictly distinct from each other. As is stated in paragraph 22 of the judgment in Case 227/82 Van Bennekom [1983] ECR 3883, a substance which is endowed with "properties for treating or preventing disease in human beings or animals" within the meaning of the first Community definition but is not "presented" as such falls within the scope of the second Community definition of a medicinal product.

61982CJ0227

Criminal proceedings against Leendert van Bennekom.

22 IT IS APPARENT IN THIS CONNECTION THAT A SUBSTANCE WHICH IS ENDOWED WITH PROPERTIES ' ' FOR TREATING OR PREVENTING DISEASE IN HUMAN BEINGS OR ANIMALS ' ' WITHIN THE MEANING OF THE FIRST PART OF THE COMMUNITY DEFINITION , BUT WHICH IS NOT ' ' PRESENTED ' ' AS SUCH , FALLS IN PRINCIPLE WITHIN THE SCOPE OF THE SECOND PART OF THE COMMUNITY DEFINITION OF A MEDICINAL PRODUCT .

1983-11-30

61988CJ0369

Criminal proceedings against Jean-Marie Delattre.

1991-03-21

52 However, a monopoly for pharmacists may be justified by one of the general interests mentioned in Article 36 of the Treaty, which include the protection of health and life of humans. Moreover, since in principle it applies without distinction to domestic and imported products, that monopoly may also be justified on grounds of consumer protection, which, as the Court has held, is one of the imperative requirements which may justify a measure liable to hinder intra-Community trade (judgment in Case 25/88 Wurmser [1989] ECR 1105, paragraph 10).

61988CJ0025

Criminal proceedings against Esther Renée Bouchara, née Wurmser, and Norlaine SA.

10 In that regard, it should first be noted that among the general interests expressly protected by the national provision at issue in the main proceedings, only the protection of the health and safety of persons is covered by Article 36 . On the other hand, fair trading and consumer protection are among the imperative requirements which, in accordance with a line of decisions of the Court ( see, initially, the judgment of 20 February 1979 in Case 120/78 Rewe v Bundesmonopolverwaltung fuer Branntwein (( 1979 )) ECR 649 (" Cassis de Dijon ") ), may justify a measure liable to hinder intra-Community trade, on condition that that measure is applied without distinction to domestic and imported products .

1989-05-11

61988CJ0370

Procurator Fiscal v Andrew Marshall.

1990-11-13

22 As far as Article 40(3 ) of the Treaty is concerned, it follows from the judgment in Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 23, that the Member States must comply with the principle of equality when they are adopting measures, concerning only their own nationals, pursuant to a Community regulation relating to the organization of the agricultural markets .

61986CJ0207

Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v Commission of the European Communities.

23 IT FOLLOWS THAT THE SPANISH AUTHORITIES MUST CARRY OUT THEIR SELECTION IN ACCORDANCE WITH RULES OF NATIONAL LAW . IN THAT SELECTION THEY MUST ALSO, HOWEVER, COMPLY WITH THE PRINCIPLE OF EQUALITY ENUNCIATED IN ARTICLE 40 ( 3 ) OF THE TREATY WHICH, AS THE COURT HELD IN ITS JUDGMENT OF 25 NOVEMBER 1986 IN JOINED CASES 201 AND 202/85 KLENSCH AND OTHERS V SECRETARY OF STATE FOR AGRICULTURE AND VITICULTURE (( 1986 )) ECR 3477, IS BINDING ON MEMBER STATES WHEN THEY ARE ADOPTING MEASURES RELATING TO THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS PURSUANT TO A COMMUNITY REGULATION . IT IS FOR THE COMMISSION TO CHECK WHETHER THE NATIONAL RULES APPLICABLE TO THE MATTER ARE IN CONFORMITY WITH THE PRINCIPLE OF EQUALITY AND, IF THEY ARE NOT, TO INITIATE IF NECESSARY THE PROCEDURE PROVIDED FOR IN ARTICLE 169 OF THE TREATY .

1988-04-26

61999CJ0374

Kingdom of Spain v Commission of the European Communities.

2001-09-13

14 It must be observed at the outset that only intervention undertaken in accordance with the Community rules in the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-247/98 Greece v Commission [2001] ECR I-1, paragraph 7, and Case C-278/98 Netherlands v Commission [2001] ECR I-1501, paragraph 38).

61998CJ0278

Kingdom of the Netherlands v Commission of the European Communities.

38 It must be observed at the outset that only intervention undertaken in accordance with the Community rules in the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-253/97 Italy v Commission [1999] ECR I-7529, paragraph 6).

2001-03-06

61999CJ0375

Kingdom of Spain v Commission of the European Communities.

2001-09-13

13 It must be observed at the outset that only intervention undertaken in accordance with the Community rules in the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-247/98 Greece v Commission [2001] ECR I-1, paragraph 7, and Case C-278/98 Netherlands v Commission [2001] ECR I-1501, paragraph 38).

61998CJ0278

Kingdom of the Netherlands v Commission of the European Communities.

38 It must be observed at the outset that only intervention undertaken in accordance with the Community rules in the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-253/97 Italy v Commission [1999] ECR I-7529, paragraph 6).

2001-03-06

61988CJ0370

Procurator Fiscal v Andrew Marshall.

1990-11-13

27 Lastly, as regards the question of any interference with the right to exercise a professional activity, it must be borne in mind that, as the Court held in its judgment in Case 234/85 Keller [1986] ECR 2897, paragraph 8, limitations may be placed on the exercise of that right if they are justified by the objectives of general interest pursued by the Community, on condition that the substance of the right is left untouched .

61985CJ0234

Staatsanwaltschaft Freiburg v Franz Keller.

8 HOWEVER , AS THE COURT HAS HELD , THE FREEDOM TO PURSUE ONE ' S TRADE OR PROFESSION IS PART OF THE GENERAL PRINCIPLES OF LAW , THE OBSERVANCE OF WHICH IT ENSURES . JUST AS , IN THE PUBLIC INTEREST , LIMITATIONS ARE LAID DOWN ON THE EXERCISE OF THAT RIGHT BY THE MEMBER STATES , IT IS PROTECTED WITHIN THE COMMUNITY LEGAL ORDER ONLY SUBJECT TO THE LIMITS JUSTIFIED BY THE GENERAL OBJECTIVES PURSUED BY THE COMMUNITY , ON CONDITION THAT THE SUBSTANCE OF THE RIGHT IS LEFT UNTOUCHED ( SEE THE COURT ' S JUDGMENT OF 14 MAY 1974 IN CASE 4/73 J . NOLD V COMMISSION ( 1974 ) ECR 491 AT PP . 507 AND 508 ).

1986-10-08

61989CJ0001

Ingrid Raab v Hauptzollamt Berlin-Packhof.

1989-12-13

12 It should be observed at the outset that, although an exemption from customs duty was provided for goods covered by Chapter 99 of the Common Customs Tariff in order to promote artistic production ( see judgment of 14 December 1988 in Case 291/87 Huber v Hauptzollamt Frankfurt am Main Flughafen (( 1988 )) ECR 6449, paragraph 16 ), that does not mean that all objects that may be recognized as being of an artistic nature are to be classified under that chapter . According to General Rule 1 for the interpretation of the nomenclature of the Common Customs Tariff, the titles of sections, chapters and sub-chapters are provided for ease of reference only, and classification is to be determined according to the terms of the headings and any relevant section or chapter Notes .

61987CJ0291

Volker Huber v Hauptzollamt Frankfurt am Main-Flughafen.

16 Heading 99.02 of the Common Customs Tariff provides for an exemption from customs duties for the goods referred to therein with the evident intention of giving favourable treatment to artistic production .

1988-12-14

61989CJ0001

Ingrid Raab v Hauptzollamt Berlin-Packhof.

1989-12-13

14 In this regard the Court has already held ( see judgment in Case 291/87, Huber, cited above, paragraphs 17 and 18 ) that works covered by Heading No 99.02 of the Common Customs Tariff are always a reproduction of an original design executed by hand by the artist, without any mechanical or photomechanical process being used to make the original plate from which the impressions are produced .

61987CJ0291

Volker Huber v Hauptzollamt Frankfurt am Main-Flughafen.

17 Since a lithograph is always a reproduction of an original design executed by hand by the artist, its artistic nature can only be assessed in relation to the original . Once the design has been made by the artist on the stone or the plate without the assistance of a mechanical or photomechanical process it is irrelevant whether the technique used to transfer the design onto the surface to be printed is manual or mechanical since it has no influence on the artistic nature of the work .

1988-12-14

61989CJ0001

Ingrid Raab v Hauptzollamt Berlin-Packhof.

1989-12-13

14 In this regard the Court has already held ( see judgment in Case 291/87, Huber, cited above, paragraphs 17 and 18 ) that works covered by Heading No 99.02 of the Common Customs Tariff are always a reproduction of an original design executed by hand by the artist, without any mechanical or photomechanical process being used to make the original plate from which the impressions are produced .

61987CJ0291

Volker Huber v Hauptzollamt Frankfurt am Main-Flughafen.

18 If Note 2 of Chapter 99 of the Common Customs Tariff is interpreted by reference to the objective of tariff Heading 99.02, the exclusion of mechanical or photomechanical processes can only relate to the making of the original plate from which the impressions are produced .

1988-12-14

61989CJ0001

Ingrid Raab v Hauptzollamt Berlin-Packhof.

1989-12-13

23 Photographs are expressly referred to in subheading 49.11 B of the Common Customs Tariff . This subheading does not draw any distinction according to whether or not the photographs are of an artistic nature, and the Court has held ( in its judgment in Case 23/77 Westfaelischer Kunstverein, cited above, paragraph 5 ) that it is a residual heading which covers all artistic printed matter not listed or referred to in any other heading of the Common Customs Tariff .

61977CJ0023

Westfälischer Kunstverein v Hauptzollamt Münster.

5 BOTH THE WORDING AND THE GENERAL SCHEME OF CHAPTER 49 OF THE COMMON CUSTOMS TARIFF SHOW THAT SUBHEADING 49.11 B IS A RESIDUAL HEADING WHICH COVERS ALL ARTISTIC PRINTED MATTER NOT LISTED OR REFERRED TO ELSEWHERE . THAT FINDING IS CONFIRMED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE IN THE GENERAL EXPLANATORY NOTE TO CHAPTER 49 , WHICH STATES THAT : ' FOR THE PURPOSE OF THIS CHAPTER , THE TERM ' PRINTED ' INCLUDES NOT ONLY REPRODUCTION BY THE SEVERAL METHODS OF ORDINARY HAND AND MECHANICAL PRINTING ( LITHOGRAPHY , OFF-SET PRINTING , HELIOGRAPHY , PHOTOGRAVURE , ETC .), BUT ALSO BY ENGRAVING , REPRODUCTION BY DUPLICATING MACHINES , EMBOSSING , PHOTOGRAPHY , ETC ., IRRESPECTIVE OF THE FORM OF THE CHARACTERS IN WHICH THE PRINTING IS EXECUTED ( E . G ., LETTERS OF ANY ALPHABET , FIGURES , SHORTHAND SIGNS , MORSE OR OTHER CODE SYMBOLS , BRAILLE CHARACTERS , MUSICAL NOTATIONS , PICTURES AND DIAGRAMS ) ' . AS ARTISTIC SCREEN PRINTS ARE PRODUCED BY A PRINTING PROCESS IT MUST BE POSSIBLE FOR THEM TO FALL WITHIN SUBHEADING 49.11 B . FOR THAT REASON IT IS NOT POSSIBLE TO APPLY GENERAL RULE NO 4 FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF , ACCORDING TO WHICH GOODS NOT FALLING WITHIN ANY HEADING OF THE TARIFF SHALL BE CLASSIFIED UNDER THE HEADING APPROPRIATE TO THE GOODS TO WHICH THEY ARE MOST ASKIN .

1977-10-27