Judgment — ECLI:EU:T:2003:9
Date: 2003-01-16
Language of the case: Italian
Court formation: Fourth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Form of disciplinary measure;General;Plea alleging misuse of powers;Non-engagement in an unauthorised outside activity
Procedure: Staff cases - unfounded;Action for damages - unfounded

SUMMARY - CASE T-75/00 
Summary 
1. Officials - Rights and obligations - Outside activity - Obligation for the 
official to seek prior authorisation from the appointing authority 
(Staff Regulations, Art. 12, third para.) 
2. Officials - Disciplinary rules - Penalty - Discretion of the appointing authority 
- Judicial review - Scope - Limits 
(Staff Regulations, Arts 86 to 89) 
3. Officials - Disciplinary rules - Penalty - Discretion of the appointing authority 
- Assessment of the seriousness of the disciplinary offence in terms of its 
consequences - Compliance with the framework established at the preliminary 
hearing — Limits 
(Staff Regulations, Arts 86 to 89) 
4. Officials - Actions - Grounds - Misuse of power - Definition 
5. Officials - Decision adversely affecting officials - Requirement to state reasons 
- Scope 
(Staff Regulations, Art. 25, second para.) 
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FICHTNER v COMMISSION 
1. According to the third paragraph of Article 12 of the Staff Regulations the 
obligation to seek permission from the appointing authority arises as soon as the 
official wishes to engage in an outside activity, whether gainful or not, or to carry 
out any assignment outside the Communities. That obligation applies without 
exception and makes no distinction according to the nature or importance of the 
activities or assignment concerned. It is therefore solely for the appointing authority, 
pursuant to the second sentence of the third paragraph of Article 12 of the Staff 
Regulations, to evaluate the characteristics of the activity or assignment when 
considering the request for permission. Without valid permission the official 
concerned must not engage in the outside activity contemplated. 
(see paras 31-32) 
See: T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129 and II-343. para. 66 
2. Once the facts alleged against an official have been shown to be true, it is for the 
appointing authority to choose the appropriate measure and the Court of First 
Instance cannot substitute its assessment for that of the appointing authority unless 
there has been manifest error or a misuse of powers. Since Articles 86 to 89 of the 
Staff Regulations do not provide for fixed relationships between the disciplinary 
measures set out therein and the different types of breach of obligations and do not 
specify the extent to which aggravating or mitigating circumstances come into play 
in choosing the measure, the determination of the measure to be imposed must be 
based on an overall assessment by the appointing authority of all the facts and 
circumstances specific to each individual case. 
(see paras 52-53) 
See: 228/83 F. v Commission [19851 ECR 275. para. 34; 403/85 F. v Commission (19871 
ECR 645. paras 18 and 26: T-26/89 de Compte v Parliament (19911 ECR II-781. paras 
220 and 221 ; T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103 and II-329. 
paras 107 and 108: T-197/00 Onidi v Commission [2002] ECR-SC I-A-69 and II-325. 
paras 141 and 142 
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SUMMARY - CASE T-75/00 
3. It is possible that, in order to determine the seriousness of the breaches of 
obligations alleged against an official, the appointing authority may find it necessary 
to assess their effect on his performance, particularly where the alleged conduct 
consists of engagement in unauthorised external activities. However, where the 
official has, on several occasions during the hearing provided for in Article 87 of 
the Staff Regulations, been informed that the disciplinary procedure related solely 
to his alleged unauthorised outside activities and not to his conduct in the service 
or his performance, any assessment of the performance of the official concerned, 
including the evaluation of the impact of his outside activities on the performance 
of his duties in the service of the institution, necessarily falls outside the scope of 
the disciplinary procedure in question. 
(see paras 72-74) 
See: 403/85 F. v Commission, cited above; Williams v Court of Auditors, cited above; 
Onidi v Commission, cited above 
4. There is no misuse of power unless it is proved that in adopting the contested 
measure the appointing authority pursued an aim other than that laid down in the 
rules in question or if it is apparent, on the basis of objective, relevant and 
consistent evidence, that the contested measure was adopted for purposes other than 
those stated. 
(see para. 79) 
See: C-107790 P Hochbaum v Commission [1992] ECR I-157, para. 14; T-173/99 Elkaïm 
and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, para. 120; T-111/99 
Samper v Commission [2000] ECR-SC I-A-135 and II-611, para. 64 
5. The purpose of the duty to state reasons is to enable the Community judicature 
to review the legality of the decision and to provide the person concerned with 
details sufficient to allow him to ascertain whether the decision is well founded or 
whether it is vitiated by an error which will allow its legality to be contested. That 
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FICHTNER v COMMISSION 
requirement is satisfied when the measure appealed against was adopted in 
circumstances known to the official concerned and enabled him to understand the 
scope of the measure taken concerning him. 
(see para. 85) 
See: T-80/92 Turner v Commission [19931 ECR II-1465. para. 62; T-20/96 Pascall v 
Commission [1997] ECR-SC I-A-361 and II-977, para. 44 
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