Opinion of the Advocate General — ECLI:EU:C:1999:127
Date: 1999-03-09
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases

Summary of the Judgment 
1. Officials — Disciplinary measures — Disciplinary proceedings — Submission that 
disciplinary proceedings are concurrent with criminal proceedings — Onus on the 
official to produce proof— Evidence to be appraised by the Court of First Instance — 
Findings of fact — Whether these may be reviewed in the course of an appeal — Not 
possible 
(Staff Regulations, Art. 88, fifth para.) 
2. Officials — Disciplinary measures — Disciplinary proceedings — Rights of the 
defence must be observed — Where the official has had no opportunity to comment 
on certain documents — Undisclosed documents inadmissible as evidence — Limits 
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SUMMARY — CASE C-191/98 P 
1. In the context of disciplinary proceed­
ings against an official who maintains 
that, for the purposes of the fifth 
paragraph of Article 88 of the Staff 
Regulations, criminal proceedings have 
been initiated against him in respect of 
the same acts, it is for that official to 
provide the appointing authority and, 
where appropriate, the Court of First 
Instance with sufficient evidence to 
support the conclusion that he was 
subject at one and the same time to 
disciplinary proceedings and to crim­
inal proceedings relating to the same 
matters. 
A finding by the Court of First Instance 
that the official had not provided the 
necessary evidence in that regard con­
stitutes a finding of fact which comes 
within the exclusive jurisdiction of the 
Court of First Instance and cannot be 
called into question in the context of an 
appeal. 
2. According to the principle that the 
rights of the defence must be observed, 
an official must have the opportunity, 
in the context of disciplinary proceed­
ings, to comment on every document 
which the institution intends to use 
against him. Where an official is not 
given such an opportunity, the undi­
sclosed documents must not be taken 
into consideration as evidence. How­
ever, the fact that certain documents 
used by the institution concerned are 
inadmissible as evidence is of no sig­
nificance except to the extent to which 
the institution's case can be proved 
only by reference to those documents. 
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