Opinion of the Advocate General — ECLI:EU:C:2000:578
Date: 2000-10-19
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Appeal - inadmissible;Staff cases

summary, 
the following: 
— The appellant was a grade A 4 official 
and Head of Unit 3, 'EMS: National 
and Community Monetary Policies' in 
Directorate D, which dealt with mone­
tary affairs in the Directorate-General 
for Economic and Financial Affairs. 
— On 24 April 1995 he applied, under 
Article 40 of the Staff Regulations, 3 
for three months unpaid leave on 
personal grounds commencing on 
3 July 1995. The Commission granted 
him leave by decision of 2 June 1995 
and, by a further decision of 27 Sep­
tember 1995, agreed that he should be 
reinstated in his post on 4 October 
1995. 
— Whilst on leave, Mr Connolly pub­
lished a book entitled The Rotten 
Heart of Europe — The Dirty War 
for Europe's Money without requesting 
prior permission as required by the 
second paragraph of Article 17 of the 
Staff Regulations. Early in September 
1995, specifically on 4 and 10 Septem-
1 — Original language: Spanish. 
2 — Case T-203/95 Connolly v Commission [1999] ECR-SCI-A-
83 and II-443. 
3 —Regulation (EEC, Euratom, ECSC) No 259/68 of the 
Council of 29 February 1968 laying down the Staff 
Regulations of Officials and the Conditions of Employment 
of Other Servants of the European Communities and 
instituting special measures temporarily applicable to offi­
cials of the Commission (OJ, English Special Edition 1968, 
Series I, p. 30). That regulation, which made numerous 
substantial amendments to Council Regulation No 31 
(EEC), 11 (EAEC) of 18 December 1961 (OJ, English 
Special Edition 1959-1962, p. 135), has itself been amended 
on numerous occasions (as at March 1999, no fewer than 
80 amendments). 
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CONNOLLY V COMMISSION 
ber, a series of articles concerning the 
book was published in the British press. 
— The Director-General for Personnel 
and Administration, acting in his capa­
city as appointing authority, sent a 
letter to the appellant on 6 September 
1995, informing him of his decision to 
commence disciplinary proceedings for 
infringements of Articles 11, 12 and 17 
of the Staff Regulations and, in accor­
dance with Article 87 of those regula­
tions, summoned him to a hearing. 
— The appellant was heard for the first 
time on 12 September 1995. At that 
hearing he submitted a written state­
ment indicating that he would not 
answer any questions as he had not 
been informed in advance of the spe­
cific infringements he was alleged to 
have committed. On the following day 
he was invited to a further hearing and 
was informed that the conduct of 
which he was accused consisted in 
publishing his book, allowing extracts 
from it to appear in The Times news­
paper and making statements in an 
interview published by that newspaper, 
without having requested prior permis­
sion to do so. 
— At the subsequent hearing on 26 Sep­
tember 1995 he refused to answer any 
of the questions put to him and filed a 
written statement in which he submit­
ted that it was legitimate for him to 
have published his work without 
requesting prior permission because, 
when he did so, he was on unpaid 
leave. He added that the publication of 
extracts from his book in the press had 
been decided on by his publisher and 
that some of the statements contained 
in the interview had been wrongly 
attributed to him. 
— On 27 September 1995 the appointing 
authority decided, in accordance with 
Article 88 of the Staff Regulations, to 
suspend Mr Connolly from his duties 
with effect from 3 October 1995 and 
to withhold one half of his basic salary 
for the duration of his suspension. On 
4 October 1995, it decided to refer the 
matter to the Disciplinary Board under 
Article 1 of Annex IX to the Staff 
Regulations. 
— On 27 October 1995 Mr Connolly 
submitted a complaint in accordance 
with Article 90(2) of the Staff Regula­
tions, seeking annulment of the deci­
sions by which the Commission had 
decided (a) to open disciplinary pro­
ceedings and refer the matter to the 
Disciplinary Board, and (b) to suspend 
him from his duties. 
— On 27 February 1996 the Commission 
informed Mr Connolly that his com-
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OPINION OF MR RUIZ-JARABO — CASE C-273/99 P 
plaint had been dismissed by implied 
decision. However, he had already 
made an application to the Court of 
First Instance, which gave rise to Case 
T-203/95. 
3. By his application Mr Connolly sought 
not only an order that the Commission 
should pay the costs but also: 
— annulment of the decision of 6 Septem­
ber to bring disciplinary proceedings 
against him, the decision of 27 Sep­
tember to suspend him from his duties, 
and the decision of 4 October to refer 
the matter to the Disciplinary Board; 
— an order that the Commission should 
pay him BEF 750 000 by way of 
compensation for the material and 
non-material damage sustained by 
him as a result of the press campaign 
and the defamatory statements made 
about him; 
— an order that the operative part of the 
judgment should be published, at the 
Commission's expense, in The Times, 
The Daily Telegraph and The Financial 
Times. 
4. At the hearing before the Court of First 
Instance, Mr Connolly stated that follow­
ing the adoption of the decision removing 
him from his post, which would be dealt 
with in Case T-163/96, 4 the only outstand­
ing issue in Case T-203/95 was the decision 
suspending him from duty. The Court of 
First Instance took formal notice that the 
appellant was discontinuing the proceed­
ings in so far as they concerned (i) annul­
ment of the appointing authority's decision 
to bring disciplinary proceedings against 
him and to refer the matter to the Dis­
ciplinary Board and (ii) his application for 
damages and for an order that the judg­
ment should be published. 
II. Basis of the judgment at first instance 
5. As a result of the partial discontinuance 
of the case, only two of the four pleas in 
law initially relied on by the appellant in 
support of his application were considered 
by the Court of First Instance, namely 
infringement of Articles 25 and 88 of the 
Staff Regulations and breach of the princi­
ple that officials should be treated equally, 
which were the only pleas relating to 
annulment of the decision suspending him 
from his duties. 
6. Rejecting the applicant's argument that 
the decision was rendered invalid by a 
4 - That case was joined with Case T-34/96 both of which were 
decided by the Court of First Instance in its judgment of 
19 May 1999 in Joined Cases T-34/96 and T-163/96 
Connolly v Commission [1999] ECR-SC I-A-87 and 
II-463). Mr Connolly also appealed against that judgment. 
See my Opinion of today's date in Case C-274/99 P. 
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CONNOLLY V COMMISSION 
defective statement of reasons which failed 
to explain why the facts complained of 
constituted serious misconduct, the Court 
of First Instance held that the decision at 
issue was not restricted to finding that the 
book had been written and published 
without the prior permission required by 
Article 17 of the Staff Regulations but also 
provided detailed reasons as to why the 
alleged infringement was so serious. The 
decision specified the appellant's grade and 
duties within the Directorate-General for 
Economic and Financial Affairs; it referred 
to the controversial wording of the title of 
the book, mentioned that The Times had 
published extracts from the book, thus 
highlighting the fact that the book had 
been heavily publicised and promoted; and 
it drew attention to the fact that the book 
expressed a fundamental disagreement with 
the Commission's policy, which it was the 
applicant's responsibility to implement. 
7. The Court of First Instance added that, 
in view of those facts, the appointing 
authority considered that the appellant 
might also have infringed Articles 11 and 
12 of the Staff Regulations, under which an 
official must conduct himself solely with 
the interests of the Communities in mind 
and refrain from any public expression of 
opinion which might reflect on his position. 
Consequently, the Court of First Instance 
found that the appellant's allegation that 
the appointing authority had not identified 
sufficiently clearly the facts capable of 
constituting an infringement of those pro­
visions was unfounded and also drew 
attention to the fact that Article 88 does 
not require the appointing authority to 
come to a definitive view on whether the 
obligations imposed by the Staff Regula­
tions have actually been infringed but 
merely requires it to state the grounds on 
which it is alleged that an official has 
committed serious misconduct. 
8. For those reasons, which are set out in 
paragraphs 47 to 49 of the judgment under 
appeal, the Court of First Instance consid­
ered that the appointing authority's deci­
sion to suspend Mr Connolly pending the 
outcome of the disciplinary proceedings 
brought against him was sufficiently well 
founded and rejected his first plea in law. 
9. The same view was taken of the second 
plea in law, namely that there had been a 
breach of the principle that officials should 
be treated equally. It is common ground 
that that principle is breached where two 
categories of person in essentially the same 
factual and legal situation are treated 
differently or where different situations 
are dealt with in the same way. 
The Court of First Instance held in that 
regard that the argument that it was the 
Commission's usual practice (whose exis­
tence was not established in the documents 
before that Court) not to make publication 
of material written by officials whilst on 
unpaid leave conditional on obtaining prior 
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OPINION OF MR RUIZ-JARABO — CASE C-273/99 P 
permission under Article 17 of the Staff 
Regulations did not establish that there had 
been any breach of the principle of equal 
treatment, since it concerned a different 
situation from that of the appellant. Even if 
it were assumed that such a practice had 
existed in respect of material which had a 
bearing on the work of the Communities, 
the Court considered it sufficient, as is clear 
from the judgment under appeal, that the 
gravity of the official's alleged misconduct 
lay not only in his failure to obtain prior 
permission to publish the book but also in a 
combination of circumstances particular to 
his case, such as the contents of the book, 
the publicity given to it and the possibility 
that his conduct was also in breach of 
Articles 11 and 12 of the Staff Regulations. 
His argument that the appointing authority 
did not suspend another official who had 
published defamatory works whilst in 
active employment also failed on the 
ground of insufficient evidence. 
III. Admissibility of part of the appeal 
10. In addition to applying for annulment 
of the judgment at first instance, Mr 
Connolly reproduces in his appeal the 
claims already made at first instance, 
namely, that the Court of Justice should 
(i) annul the decision of 27 September to 
suspend him, the decision of 6 September 
to bring disciplinary proceedings against 
him, and the decision of 4 October to refer 
the matter to the Disciplinary Board; (ii) 
order the Commission to pay him 
BEF 750 000 by way of compensation for 
material and non-material damage sus­
tained by him following the press campaign 
and defamatory statements to which he had 
been subjected and (iii) order that the 
operative part of the judgment be published 
at the Commission's expense in The Times, 
The Daily Telegraph and The Financial 
Times. 
11. The Commission has lodged an objec­
tion of inadmissibility regarding the claim 
for damages and the request for publication 
of the judgment in certain newspapers, to 
which the appellant has not replied. 
12. Paragraphs 29 and 30 of the judgment 
of the Court of First Instance record Mr 
Connolly's discontinuance both of those 
two claims and of his original claims for 
annulment of the decision of 6 September 
to bring disciplinary proceedings against 
him and that of 4 October to refer the 
matter to the Disciplinary Board. For that 
reason, the Court of First Instance confined 
itself to considering — and then reject­
ing — the pleas on which the claim for 
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CONNOLLY V COMMISSION 
annulment of the decision suspending the 
appellant was based. 
13. The Court of Justice has held that, in 
the context of an appeal, an appellant may 
not rely on a plea in law which he expressly 
withdrew in proceedings before the Court 
of First Instance or on pleas declared 
inadmissible by that court, where the 
finding that they are inadmissible is not 
contested. 5 
14. Under Article 113(2) of the Rules of 
Procedure of the Court of Justice, the 
subject-matter of the proceedings before 
the Court of First Instance may not be 
changed in the appeal. Nor may a party put 
forward for the first time a plea in law 
which he has not raised before the Court of 
First Instance, since that would enable him 
to bring before the Court a case of wider 
ambit than that which came before the 
Court of First Instance. In an appeal the 
Court of Justice's jurisdiction is confined to 
reviewing the assessment made by the 
Court of First Instance of the pleas argued 
before it. 6 
The same fate must befall those pleas in law 
which the appellant withdrew during the 
proceedings before the Court of First 
Instance. I take the view, therefore, that 
the appeal is inadmissible in so far as it 
seeks annulment of the appointing author­
ity's decisions to commence disciplinary 
proceedings and to refer the matter to the 
Disciplinary Board, claims damages and 
requests publication of the judgment. 
IV. The grounds of appeal 
15. The appeal is founded on the following 
pleas in law: 
(a) Inadequate statement of grounds in the 
judgment and misinterpretation of the 
first paragraph of Article 88 of the 
Staff Regulations. 
(b) Inadequate statement of reasons and 
breach of the principle of the inalter­
ability of measures. 
(c) Breach of the rules relating to the 
burden of proof and of the audi 
alteram partem rule. 
5 — Case C-354/92 P Eppe v Commission [1993] ECR I-7027, 
paragraph 13. 
6 — Order of 17 September 1996 in Case C-19/95 P San Marco 
v Commission (1996] ECR I-4435, paragraphs 47 and 49. 
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OPINION OF MR RUIZ-JARABO — CASE C-273/99 P 
V. The first ground of appeal 
16. The appellant maintains that the judg­
ment of the Court of First Instance is (in 
paragraphs 47, 48 and 49) vitiated by 
errors of reasoning, in that it fails to take 
account of the obligation imposed on the 
appointing authority by Articles 25 and 88 
of the Staff Regulations not merely to make 
an allegation of serious misconduct against 
an official but also to state the grounds 
giving rise to the need for his immediate 
suspension. 
17. To my mind there is no basis for 
interpreting those articles in the way pro­
posed by the appellant. Article 25 7 pro­
vides that any decision adversely affecting 
an official is to state the grounds on which 
it is based. The first paragraph of Arti­
cle 88 provides that where an allegation of 
serious misconduct is made against an 
official by the appointing authority, either 
of failing to carry out his official duties or 
of breaking the law, the authority may 
order that the official be suspended with 
immediate effect. 
Any interpretation of Article 88 must take 
account of the following: in the first place, 
the Staff Regulations do not treat suspen­
sion as a disciplinary measure but as an 
interim measure adopted pending the out­
come of disciplinary proceedings and, if 
appropriate, the imposition of a disciplin­
ary measure. 8 Second, the only condition 
to be fulfilled before the appointing author­
ity may adopt the measure is that an 
allegation of serious misconduct has been 
made against an official, either of failing to 
carry out his official duties or of breaking 
the law. Finally, the decision to suspend an 
official is, by definition, preventive and 
temporary, irrespective of whether it 
involves withholding part of his salary, 
which may not exceed one half of the basic 
salary. 
18. Thus, provided that the requirements 
of the first paragraph of Article 88 of the 
Staff Regulations are met, the appointing 
authority may suspend the official with 
immediate effect, giving a less extensive 
and less detailed statement of reasons than 
is required where, for example, one of the 
disciplinary measures laid down in Arti­
cle 86(2) of the Staff Regulations is 
imposed, in which case the disciplinary 
procedure in Annex IX must be followed. 
In accordance with the case-law of the 
Court of First Instance, a decision suspend­
ing an official is a provisional measure 
which relies on the existence of allegations 
of serious misconduct and not of duly 
established misconduct. 9 
7 — As it stands in Regulation (Euratom, ECSC, EEC) 
No 1473/72 of the Council of 30 June 1972 amending 
Regulation (EEC, Euratom, ECSC) No 259/68 (OJ, English 
Special Edition 1972 (III), p. 703). 
8 — Case T-219/96 Y v European Parliament [1998] ECR-SC I-
A-429,II-1235, paragraph 29. 
9 — Order of the President of the Court of First Instance in Case 
T-211/98 R Willeme v Commission [1999] ECR-SC I-A-15, 
II-57), paragraph 34. 
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CONNOLLY V COMMISSION 
19. Since Articles 25 and 88 of the Staff 
Regulations do not require the appointing 
authority to give reasons for suspending the 
appellant with immediate effect, the Court 
of First Instance rightly held, in paragraph 
48 of its judgment, that the contested 
decision contained an adequate statement 
of reasons concerning the gravity of the 
appellant's alleged misconduct. 
20. The first ground of appeal is therefore 
unfounded and must be rejected. 
VI. The second ground of appeal 
21. The appellant submits in his appeal1 0 
that paragraph 49 of the judgment is 
vitiated by inadequate reasoning and does 
not observe the principle of the inalterabil­
ity of measures. He argues that, to provide 
reasons for taking the decision to suspend 
him with immediate effect, the appointing 
authority alleged that he had infringed 
Article 17 of the Staff Regulations by 
publishing a book which constituted an 
unauthorised public expression of opinion 
and, in the alternative, that he had acted in 
breach of the obligations imposed on 
officials by Articles 11 and 12. In his 
opinion, the fact that the allegation relating 
to the second breach was expressed in 
conditional terms means that the facts 
alleged to be contrary to Articles 11 and 
12 of the Staff Regulations are distinct 
from those which the appointing authority 
knew about and described in relation to the 
infringement of Article 17. 
However, in paragraph 49 of its judgment, 
the Court of First Instance stated that the 
appointing authority had taken the view, as 
regards the same set of facts, that the 
appellant might also have infringed Arti­
cles 11 and 12 of the Staff Regulations. 
22. I believe that this ground of appeal is 
based on an incorrect reading of the 
judgment at first instance. The second 
recital in the preamble to the decision 
suspending Mr Connolly with immediate 
effect describes the conduct classified as an 
infringement of Article 17 of the Staff 
Regulations, namely publishing a book, 
extracts from which were published in 
The Times newspaper, without the appoint­
ing authority's permission having been 
previously requested or obtained. The third 
recital states that the book was a public 
expression of Mr Connolly's fundamental 
disagreement with Community policy and 
of his opposition to that policy, implemen­
tation of which was one of his duties. The 
fourth recital goes on to state that Mr 
Connolly may also have failed to comply 
with his obligations under Articles 11 and 
12 of the Staff Regulations. 
23. It is undisputed that Article 17 of the 
Staff Regulations imposes on an official, 
inter alia, an obligation to refrain from 
10 — The appellant deals with this ground of appeal only in his 
initial pleatlinşs, since his reply is largely taken up with 
objections to the account of thc facts in tne Commission's 
defence. 
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OPINION OF MR RUIZ-JARABO — CASE C-273/99 P 
publishing or causing to be published 
without the permission of the appointing 
authority any matter dealing with the work 
of the Communities, while Articles 11 and 
12 of the Regulations require an official, 
among other things, to carry out his duties 
and conduct himself solely with the inter­
ests of the Communities in mind and to 
abstain from any action and, in particular, 
any public expression of opinion which 
might reflect on his position. 
In paragraphs 47 to 49 of its judgment, the 
Court of First Instance found that the 
contested decision contained an adequate 
statement of reasons and went on to 
examine separately the infringement of 
Article 17 of the Staff Regulations, namely, 
publication of a book, extracts from which 
were published in The Times, without the 
appointing authority's permission having 
been previously requested or obtained, and 
the possibility that the appellant had also 
acted in breach of the obligations imposed 
on Community officials by Articles 11 and 
12 of the Staff Regulations, stating in the 
last sentence of paragraph 48 that the 
decision drew attention to the fact that 
the book expressed the appellant's funda­
mental disagreement with the Commis­
sion's policy, implementation of which 
was, however, one of his duties. 
In my opinion, there are various reasons for 
the appointing authority's use of a condi­
tional expression ('may') in relation to the 
infringement of Articles 11 and 12 of the 
Staff Regulations rather than the present 
indicative which it used in relation to the 
infringement of Article 17. The first is that 
Article 17 is infringed by the mere fact that 
a text dealing with the work of the 
Communities is published without the 
appointing authority's permission first hav­
ing been obtained. That is simply a ques­
tion of fact, whereas determining whether 
there has been a contravention of Arti­
cles 11 and 12 requires value judgments to 
be made, something it is not appropriate to 
do at the time when a decision of the kind 
referred to in Article 88 of the Staff Reg­
ulations is taken. The second reason is that, 
as is stated in paragraph 49 of the judgment 
at first instance, Article 88 of the Staff 
Regulations does not require the appoint­
ing authority to come to any final decision 
as to the existence of breaches of the 
obligations laid down in the Staff Regula­
tions, but merely to set out the reasons why 
an allegation of serious misconduct has 
been made against an official. 
In my view, therefore, the Court of First 
Instance did not distort the reasons given in 
the contested decision and did not infringe 
the principle of the inalterability of adopted 
measures. Consequently, this ground of 
appeal is unfounded and must, therefore, 
be rejected. 
VII. The third ground of appeal 
24. In this ground of appeal the appellant 
complains that the Court of First Instance 
failed to observe the rules concerning the 
burden of proof and the audi alteram 
partem principle in that, in paragraph 59 
I - 1586 
CONNOLLY V COMMISSION 
of its judgment, it rejected for lack of 
evidence his allegation that the appointing 
authority had not suspended another offi­
cial in active employment who had pub­
lished offensive material. 
He argues that, in his action for annulment, 
he was able to point out that the only 
sanction imposed on that official had been 
a reprimand, but that he did not have any 
further details since he had been prevented 
from obtaining any other information 
about officials on whom sanctions had 
been imposed by the Commission. It was 
therefore incumbent on the defendant 
institution to demonstrate, in pursuance 
of the audi alteram partem principle or the 
adversarial procedure, what its policy is 
where an official in active employment 
publishes any material without previously 
having obtained the necessary permission. 
25. I take the view that this ground of 
appeal, like those preceding it, is comple­
tely unfounded, given that the Court of 
First Instance rightly held in paragraph 59 
of its judgment that there were no facts or 
evidence enabling the case to which the 
appellant was referring to be identified 
with any certainty. Indeed, in cases where 
the issue is whether a proper comparative 
examination of the merits of various offi­
cials has been undertaken, the Court of 
First Instance has held that only where 
there are sufficiently consistent indicia to 
support the applicant's allegation that there 
was no real consideration of the candidates' 
comparative merits is the defendant institu­
tion under a duty to show, by objective 
evidence amenable to judicial review, that it 
has observed the guarantees given by 
Article 45 of the Staff Regulations to 
officials eligible for promotion and consid­
ered their comparative merits. 11 
In October 1999 the Court of Justice set 
aside a judgment of the Court of First 
Instance on the ground that the lower court 
had erred in law by requiring the applicant 
to adduce evidence that the actions of 
Commission officials had made it impossi­
ble for it to engage in proper cooperation 
with its partners in a project. The Court of 
Justice considered that the applicant had 
provided some evidence of interference by 
Commission officials in the management of 
the project, which was likely to have had an 
impact on its smooth running, and that, in 
circumstances such as those, it was for the 
Commission to show that, notwithstanding 
the interference in question, the applicant 
continued to be able to manage the project 
in a satisfactory manner. 12 
26. However, as noted above, Mr Con­
nolly, by limiting himself to stating that 
'recently an official who published offen-
11 — Case T-25/90 Scbiiiiberr v Economic and Social Commit­
tee 119921 ECU II-63, paragraph 25; Case T-557/93 
Rasmussen v Commission [1995] ECR-SC I-A-195, 
II-603, paragraph 33; Case T-262/94 Baiwir v Commission 
|1996| ECR-SC I-A-257, 11-739, paragraph 142. 
12 — Case C-433/97 P IPK v Commission |1999] ECR I-6795, 
paragraphs 15 to 17. The judgment set aside the Court of 
Eirst Instance's judgment in Case T-33I/94 IPK v Com­
mission [1997] ECR II-1665 and referred the case back to 
the Court of First Instance for it to deliver a further 
judgment. 
I - 1587 
OPINION OF MR RUIZ-JARABO — CASE C-273/99 P 
sive material while in active employment 
was reprimanded but was not suspended 
from duty', did not provide sufficient 
information or indicia for a specific case 
to be identified and thus did not place on 
the Commission the burden of proving 
that, in taking the decision to suspend 
him, it had neither overstepped its powers 
nor breached the principle that officials 
should be treated equally. 
27. Since this ground of appeal is also 
unfounded, the appeal must be dismissed in 
its entirety. 
VIH. Conclusion 
28. In the light of the foregoing I propose that the Court of Justice should: 
(1) Dismiss the appeal. 
(2) Order Mr Connolly to pay the costs pursuant to Article 69(2) of the Rules of 
Procedure. 
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