61974C0043
OPINION OF MR ADVOCATE-GENERAL CAPOTORTI
DELIVERED ON 12 MAY 1977 (
1
)
Mr President,
Members of the Court,
1.
The present case has close connexions with Case 53/72, which was brought by the same applicant against the Commission and was concluded by the judgment of 11 July 1974 ([1974] ECR 791).
The application in both cases arose as a result of the following facts. By means of an experiment carried out between 28 and 30 April 1971 Mr Guillot, a scientist who is an official of the EAEC Research Centre situated at Ispra, had tried to demonstrate the correctness of a theory which he had held since 1968 concerning the effect of dissolving radio-active xenon gas in water. Mr Malvicini, Mr Guillot's immediate superior, had accused him of falsifying the results of this experiment. According to Mr Guillot, the Commission ought to have come to the defence of his professional reputation but, by decision of 14 April 1972, it had rejected the complaint, submitted by Mr Guillot on 3 January of that year with a view to obtaining, inter alia, the withdrawal of the accusation made by Mr Malvicini. It was for the annulment of the decision of 14 April 1972 that Mr Guillot brought his first application.
In the judgment cited above, the Court held that the Commission had had no justification for refusing to institute the inquiries necessary to ascertain the truth or otherwise of the accusations made against the applicant, which related to his conduct in the service and reflected on his integrity. It was stated in the judgment that, in consequence of the Commission's refusal having been annulled, it must undertake the inquiry with the minimum delay (paragraphs 19 to 22 of the decision).
After the conclusion of the oral procedure in Case 53/72, and a few weeks before judgment was pronounced, Mr Guillot brought before the Court the application initiating the present proceedings. The origin of the second application is to be found in a note dated 21 October 1971, signed by Mr Malvicini which, without having received any previous intimation of it, the applicant had found in his personal file, which had been lodged at the Court Registry by the defendant in connexion with the proceedings in Case 53/72. This document, which was entitled ‘Short description and details of the facts which led Mr Guillot to submit a complaint within the meaning of Article 90 of the Staff Regulations’, amplified the charge, originally made by Mr Malvicini in a memorandum which he forwarded on 4 May 1971 to the Director-General of the Research Centre relating to the alteration of the results of the last six measurements of the scientific experiment in question, and claimed that the data relating to the last eleven measurements had been altered. In addition Mr Guillot was accused of having suppressed the results of three other previous measurements.
In the complaint submitted by Mr Guillot under Article 90 of the Staff Regulations of Officials on 26 November 1973 against the inclusion without his knowledge of the said document in his personal file and against the accusations which it contained, he requested the withdrawal of the document and of the charges, compensation for the damage suffered and, in addition, the return of the recordings, held by Mr Malvicini, of the experiments relating to the same subject-matter, which the applicant claimed to have completed prior to those at the end of April 1971.
After the expiry of the period prescribed in the last subparagraph of Article 90 (2) of the Staff Regulations Mr Guillot, in the absence of an express reply from the Commission, submitted the present application on 25 June 1974 against the implied decision rejecting his complaint resulting from the absence of a reply from the defendant. In addition to annulment of the said decision, the applicant sought the withdrawal from his personal file of the Malvicini note of 21 October 1971, an order that the Commission should pay FB 1000000 as damages, and the return of the recordings of the experiments which he had conducted.
In a statement submitted on 13 March 1975 the defendant raised a formal objection against the admissibility of the application and all its submissions and conclusions. By order of 24 September 1975 the Court decided to reserve its decision for the final judgment.
The oral submissions of the parties were made at the hearing on 18 November 1976. Subsequently, by order of 25 January 1977, the Court provided for the appearance of the applicant and the examination of four witnesses concerning the events referred to in the Malvicini memorandum of 21 October 1971 and events connected therewith. The measure of inquiry took place at the hearing on 3 March 1977.
2.
I think I ought first of all to make the comment that the present application which, as we have seen, arises from a document which repeats and amplifies previous accusations relating to one and the same occurrence, has the inevitable consequence of also repeating some of the issues discussed in the previous case. At that time the Court was unable to go into the substance because the necessary information was not available to it owing to the Commission's failure to initiate the inquiries which the situation demanded.
Let us now look at the arguments submitted by the Commission in support of its contention of inadmissibility.
In the first place, the defendant states that it was in the process of assembling the necessary information in order to ascertain the truth of the accusations made by the applicant's immediate superior and that, until its inquiries were concluded, the applicant could not, therefore, charge the Community with not having helped him in the matter of the alleged defamation.
This argument goes to the substance of the application, not to its admissibility. Moreover, the defendant's reference to the inquiry, which took place after the present application was lodged, would not in any case exclude the possibility that, at the time when the application was submitted, the applicant could have relied on the ground that the Community had failed to assist him. The Commission's statement could at most have been used to obtain a deferment of the Court's decision on the substance pending the outcome of the inquiry which, in order to comply with the said judgment in Case 53/72, the Commission was then completing, but it certainly does not afford grounds for finding inadmissible an application which must be adjudged on the basis of the situation existing at the time when it was lodged.
Secondly, in support of the inadmissibility of the submission in the application concerned with infringement of Article 26 of the Staff Regulations as the result of the inclusion of the Malvicini note of 21 October 1971 in the applicant's personal file without his knowledge, the defendant has stated that it has arranged for the withdrawal of that document and that, consequently, the application has become pointless. But this circumstance, too, occurred after the submission of the application and cannot therefore make it inadmissible. Its relevance falls to be assessed when consideration is given to the substance of the application.
For similar reasons the submission in the application concerning the infringement of Article 26 of the Staff Regulations cannot be inadmissible in consequence of the fact that the statements contained in the Malvicini note have become part of the subject-matter of the inquiry set in motion by the Commission.
Finally, it must be pointed out that, even in the case of the application for damages for the injury which the applicant claims to have suffered as a result of the persecution of which he considers himself to be the victim, the Commission has objected that it has not yet conducted the inquiries necessary to establish the truth or otherwise of the accusations which are alleged to be the main cause of the injury. Here again I must point out that the issue relates to the substance; objections of this kind have nothing to do with the admissibility or otherwise of the application.
Nor can any reliance be placed on the objection of res judicata in respect of the claims which are the same as those submitted with the first application. In its judgment of 11 July 1974 the Court in fact left open its decision on the claim for damages ‘pending the outcome of the action which must be taken by the Commission’ (paragraphs 35 and 36 of the decision). The operative part of the judgment specified that this head of claim was dismissed ‘in so far as the present proceedings are concerned’.
Since the said judgment was not, technically, an interlocutory one it definitively concluded the proceedings in Case 53/72. However, there was still a possibility of fresh proceedings in which, in the light of the outcome of the Commission's inquiry or of fresh evidence, Mr Guillot could renew his claim for damages. The new circumstance consisting of the Malvicini memorandum, the existence of which had been made known by the Commission during the previous proceedings but had not, at that time, given rise to specific claims by the applicant, constitutes, in my view, sufficient ground for Mr Guillot to submit, as part of the present application, a fresh claim for damages even before the Commission's inquiry took place.
A final objection of inadmissibility was raised by the Commission against the applicant's claim that the results of certain experiments carried out by him should be returned to him. The Commission has maintained that those results belong to it. This objection, too, clearly relates to the substance of the case. Nevertheless I ought to say at once that, in my view, since these working documents are undoubtedly the property of the Commission, that particular claim cannot be upheld.
3.
If my view is correct that the application is admissible consideration must now be given to the arguments relied upon in the applications for annulment and for damages. As we have seen, the applicant first complains of infringement of Article 24 of the Staff Regulations under which the Community is bound to assist an official ‘in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’. The Commission is alleged to have infringed this provision because it did not take the necessary action to ascertain the truth or otherwise of the accusations made against Mr Guillot by his immediate superior arising out of active employment.
Secondly, the applicant complains of infringement of the second and third paragraphs of Article 26 of the Staff Regulations under which ‘the documents referred to in subparapraph (a)’ that is to say, concerning his administrative status and all reports relating to his ability, efficiency and conduct, ‘may not be used or cited by the institution against an official unless they were communicated to him before they were filed’.
In this connexion I must point out that, since the Malvicini note of 21 October 1971 contained fresh grounds of complaint against the applicant as compared with those communicated to him previously, the Commission certainly could not incorporate that note in the applicant's personal file without complying with the conditions laid down in Article 26. In subsequently arranging for the note to be withdrawn the Commission itself has by implication recognized the impropriety of its own conduct. However, the withdrawal has satisfied the applicant's claim on this point.
Consideration must now be given to the main issue in this case, namely the alleged infringement of Article 24. In its judgment of 11 July 1974, concluding the previous proceedings in Case 53/72, the Court took Article 24 (in addition to the principles of justice and the requirements of good management) as the basis for holding that the Administration is under a duty to establish the truth or otherwise of serious accusations, made by his superior officer, reflecting on the professional integrity of an employee in carrying out his duties. Since the Commission had, in the first Guillot case, been found to have failed in this duty, it was compelled to carry out an inquiry to ‘seek evidence as to the truth of the accusations reflecting on the applicant's integrity’. At this juncture not only would failure to carry out an inquiry of this kind have constituted a fresh infringement of Article 24, but this provision must be considered to have been infringed even if, as a result of the inquiry which the Court had ordered the Commission to undertake, the accusations made against Mr Guillot had proved to be without foundation because, in that event, the Commission would have been guilty of not having refuted them in time and taken all the necessary steps to make good the injury suffered by the applicant. On the other hand there are no grounds for holding Article 24 to have been infringed if the inquiry carried out by the Commission in implementation of the previous judgment furnished objective and sufficient reason for the accusations made against the applicant by his immediate superior; this would mean that the Commission was under no obligation to exonerate the applicant from those accusations.
It must be made clear that, for the purposes of these proceedings, there is no question of establishing whether the result which the applicant claims to have proved through the contested experiments can be regarded as scientifically valid. The only question is whether the applicant's behaviour was such as to justify the accusation of falsification of the experiments or was consistent with an intention to make the result appear different from that actually obtained or, at least, with having presented an inconclusive result, obtained by means of processes incompatible with those used by a punctilious and conscientious researcher, as one which was correct and left no room for doubt.
4.
Essentially, therefore, the outcome of this case depends on the answer to this question: does the result of the investigations carried out by the Commission or on its behalf, as it emerges from the reports produced by it in the course of these proceedings, justify the accusations made by Mr Malvicini against Mr Guillot regarding the experiments completed by the latter between 28 and 30 April 1971?
Before going into the results of these inquiries I think it would be desirable to give a short summary, based on the available documents, of the salient facts on which the applicant's superior based his accusations and the position of the applicant in this respect.
In the memorandum to the Director of 4 May 1971, referred to earlier, entitled ‘Falsification of experimental results’, which gave rise to the previous case, Mr Malvicini stated that, in connexion with the last six measurements effected during the course of the experiment (which are identified under Nos 42 to 47), Mr Guillot had not forwarded to him the strips from the machine printer of the TMC multichannel analyser but only the data which Guillot himself had worked out. However, Mr Malvicini managed to compare these data with the divergent data from the printer since Mr Guillot had copied them on to a strip from an Olivetti computer which Mr Malvicini recovered from the wastepaper basket. But when Mr Guillot was, in the presence of a third person, asked to explain this, he insisted that he had forwarded the printer strips to Mr Malvicini.
In a memorandum of 6 July 1971, addressed to the Director General, Mr Malvicini repeated his previous statements and added that in the case of all the measurements carried out from 11.25 on 29 April, that is to say from measurement No 34 onwards, Mr Guillot had forwarded to him only the results worked out by him and not the original recordings from the spectrometer of the TMC multichannel analyser.
In the note of 21 October 1971, which gave rise to the present proceedings, Mr Malvicini declared that the applicant had sent him the results of the measurements carried out from the beginning of the experiment until 11.25 on 29 April, together with the recordings of the automatic printer of the analyser whereas, as regards the remaining experiments carried out after 11.35 on 29 April until 7.10 on 30 April (measurements Nos 34 to 47), the applicant had forwarded to him only the results of the last eleven measurements (Nos 37 to 47) and none of the record strips from the automatic printer of the analyser.
The experiments at issue ended on 30 April 1971. The note of 21 October, referred to above, stated that it was only on the following day, 1 May, that, when Mr Malvicini was transferring the points from the final measurements to a graph, he realized that he did not have the printer record. Again, according to the note, he first thought that he had left them on his table but when he failed to find them he continued his search and eventually discovered a roll from the Olivetti computer in a wastepaper basket in the corridor outside the applicant's office. The spectrum values for the last six measurements were printed on this roll but they were not the same as the values supplied by Mr Guillot. Mr Malvicini further stated that, during the morning of Monday 3 May, he had asked Mr Guillot, in the presence of another official, Mr Dominici, to explain this and he had replied that the data supplied to Mr Malvicini were those from the analyser, which had not been corrected. Mr Malvicini has said that he then showed Guillot the data written on the computer strip and that the latter was unable to supply any immediate explanation and went away. Becoming suspicious Mr Malvicini looked for and recovered other pieces from the Olivetti computer strips and the analyser machine printer strips in the dustbins which contained the wastepaper from the various offices collected during the previous few days.
During the afternoon of that day Mr Guillot told Mr Malvicini that he had corrected the results of the last six measurements in order to compensate for a change in the conditions for the experiment as a result of the accidental tilting of a flask containing the radio-active liquid. This explanation, which Mr Guillot, at Mr Malvicini's request, then wrote down on the last page of the report which he had previously sent to his superior, was repeated by him in his memoranda of 7 May and 9 July 1971 to Director-General Caprioglio.
After reconstructing piece by piece the record strip from the printer, which had been recovered in the manner already described, Mr Malvicini was, according to his statements, finally able to establish that all the data obtained on 29 April after 11.35 (namely measurements Nos 34 to 47) had been corrected by Mr Guillot.
On the other hand Mr Guillot has denied that, except in the case of the last six measurements already referred to, he had altered the data entered by the printer; in respect of these measurements Mr Guillot and Mr Malvicini disagree only about how the reasons for the alterations effected are to be interpreted.
5.
The Commission has put in four reports relating to the same number of investigations which were carried out at its request regarding the facts in dispute:
(1)
The report of 19 September 1975, which was often referred to during the proceedings as the ‘Boulenger report’ from the name of the scientific officer from the Belgian Centre for Nuclear Energy Studies at Mol, whose assistance was enlisted by the Commission. Mr Collard, another scientific officer of the Belgian Centre at Mol, collaborated in its preparation.
(2)
The report of 28 October 1975 of the internal administrative committee which was set up for the purpose by the Director-General of the Joint Research Centre at Ispra.
(3)
The report of 29 December 1975, compiled by the aforesaid Mr Collard and by other scientific officers of the Research Centre at Mol.
(4)
Finally, an additional Boulenger-Collard report of 26 April 1976.
The first of these documents begins with a comprehensive survey of the scientific work carried out by the applicant at the Ispra Research Centre since 1968. It gives him credit for having been the first to initiate the study, in terms of radio-protection, of the problem of the retention of xenon isotopes by the tissues of the human body. The work carried out in 1968 by Mr Guillot on this subject is judged to be noteworthy although it calls for certain reservations.
The subsequent studies (relating to the period 1968 to 1970) on the different degrees in which various types of xenon radio-isotopes are retained by the human body give rise to further reservations on the part of the authors of the report about the results submitted because the statistical accuracy of the measurements given is not stated. It is also noted that the number of results is often too small to enable positive conclusions to be drawn from them in a field in which biological differences militate against very accurate measurements.
The subsequent studies are the subject of further criticisms especially as regards the accuracy of the mathematical calculations. It is recognized that the experimental results cannot be a priori dismissed as invalid but the criticisms are focused on the mathematical conclusions drawn from those results.
Finally, on the subject of the applicant's work and scientific experiments prior to the experiment at the end of April 1971, the Boulenger report states that, in carrying out his work in difficult conditions, because of the conflict of views which had existed for some time between him and Mr Malvicini, Mr Guillot exhibited dangerous haste in preparing his papers. Furthermore, the lack of sufficient clarity in his reasoning made it difficult to pinpoint any mistakes. Those responsible for the report consider it likely that the applicant worked in this fashion because he was upset by the dispute with his immediate superior, who denied that the discoveries which the applicant claimed to have made were scientifically valid. This might to some extent have deprived Mr Guillot of the requisite clarity and peace of mind and inspired him with the desire to demonstrate his theories by means of experimental data which he mistakenly imagined that he had obtained.
Again, as regards the experiments relating to the dissolution of radio-xenon in water, which the applicant had carried out from 28 to 30 April 1971 in order to verify the correctness of certain results which he claimed had been produced during previous experiments, the report-writers state that no anomalies arise until measurement No 33. They report, however, that measurements Nos 34 to 36, carried out between 11.35 and 12.05 on 29 April, do not appear in Mr Guillot's papers. Their comment on this is that the applicant ‘semble les avoir écartés parce qu'ils n'allaient pas dans le sens espéré’. According to them, the results of the five subsequent measurements (Nos 37 to 41) have been changed, and so also have the results of the last six measurements. On this point, the report does not expressly reject the explanation given by the applicant to the effect that he had applied to the last six measurements a corrective factor in order to allow for an accidental tilting of the flask used for the experiment. On the other hand the authors of the report agree with the applicant that these last six measurements hold little importance for the experiment as a whole. Nevertheless they point out that the way in which the applicant carried out the correction of the results was not such as to make it clear in the report presented to Mr Malvicini.
However, the Boulenger report regards as more serious the fact that the applicant made no reference to the adjustments made to the five previous measurements and that he did not even mention the three missing measurements.
The latter measurements (Nos 34 to 36) and the five subsequent ones (Nos 37 to 41) were, in fact, sufficient in themselves, according to the report, to demonstrate the phenomenon under investigation. More precisely, this phenomenon of isotopic separation the existence of which is claimed by the applicant appears to be demonstrated by the twenty measurements on the first day. On the other hand, the applicants comments concerning the agreement between the first and second series of measurements are incorrect. The Boulenger report states that this agreement, which seems to be necessary in order to prove the existence of the phenomenon under investigation, would be impossible without the alteration of the results of measurements Nos 37 to 41 and the suppression of the results of measurements Nos 34 to 36.
Finally, the alleged tilting of the flask does not justify the changes made, in the second day's measurements or the use of variable corrective factors rather than a single factor applied to all the measurements. The authors of the report maintain that, if the flask was accidentally moved, the only scientifically correct decision would have been to ignore any measurements which might have been affected by the incident and to repeat the experiment. The opinion expressed in the report is that the use of adjusted results in such a way as nevertheless to produce the effect which it is desired to prove is, in scientific terms, nothing more or less than falsification.
6.
The second report is the outcome of the investigations of an internal administrative committee set up by decision of 18 September 1975 by the Director-General of the Joint Research Centre and composed of officials of the Centre, the Director of the Karlsruhe establishment and an official of the Administration. The work of this committee was based on a series of documents which, in addition to the judgment of the Court in Case 53/72 and the opinion in that case of Mr. Advocate General Trabucchi, consisted of the Malvicini memoranda to the Director, Mr Caprioglio, of 3 May and 6 July 1971, the applicant's memoranda to Mr Caprioglio of 7 May and 9 July 1971, tables of the experimental data submitted by Mr Guillot to Mr Malvicini on 28 and 30 April and 6 May 1971 and, lastly, the record strips from the Olivetti computer and the multichannel analyser on which the results of the experiments were printed.
The administrative committee considered that the basic problem was to compare the recording of the measurements made by electronic means (primary information) with the tables, recordings or statements of numerical values (secondary information) which the applicant worked out on the basis of the primary information. Of the primary information relating to the dispute this committee too attached special importance to the recordings from the automatic printer covering measurements Nos 37 to 41. The committee found that the values which appear on the Olivetti computer strip agree with those contained in Mr Guillot's report but only in respect of xenon-133, whereas a difference was noted in the case of the values relating to xenon-131m, which are consistently higher in the report submitted by Mr Guillot. In answer to the committee of inquiry, the applicant denied that the calculations printed on the Olivetti computer strip had been carried out by him. He even suggested the possibility of a falsification to his detriment. However, the committee of inquiry found that the values printed on the multichannel analyser strips were exactly the same as those from the Olivetti computer and came to the conclusion that, given the technical resources available at Ispra at the time, there would have been no real possibility of artificially producing a record strip from the printer of the electronic analyser. For this reason the committee reached the conclusion that the strip from the Olivetti computer recovered by Mr Malvicini was also genuine.
On the basis of these findings the committee of inquiry declared that the secondary information supplied by Mr Guillot must be regarded as inaccurate and inconsistent with the data in the primary information. There was a discrepancy of 2 %.
The internal administrative committee reached the conclusion that the changes in the experimental values and the submission of the altered data by Mr Guillot were scientifically and professionally unacceptable, so that the accusations made against the applicant by Mr Malvicini were justified.
7.
The supplementary report of 29 December 1975, signed by Mr Collard, Mr Ballaux and Mr Leduc, scientific officers at the Belgian Centre at Mol and submitted by the Commission in support of its rejoinder, deals with three experiments carried out by the signatories during November and December 1975 relating to the same phenomenon as was the subject of the experiments carried out by the applicant from 28 to 30 April 1971. The report notes that the isotopic effect was confirmed by the new experiments although it was much weaker than that described by Mr Guillot.
It must, however, be borne in mind that the extent to which the applicant's theory and experiments are scientifically sound is not in issue in the present case. Moreover the Boulenger report, referred to earlier, rightly pointed out from the outset that there was no possibility of new experiments, for the purposes of research into this penomenon, being carried out in conditions which were exactly the same as those in which Mr Guillot had conducted his own experiments. The Boulenger report states that, for the purposes of a scientific check on those experiments, it would have been better if Mr Guillot himself could have repeated them in the presence of witnesses.
In his reply the applicant states that the three new experiments described in the report of 29 December 1975 were carried out in conditions which were chosen by those conducting them without seeking his agreement.
8.
Finally, as an appendix to its rejoinder, the defendant put in the fourth report, dated 26 April 1976, signed by Mr Boulenger and Mr Collard. They again express the conviction that the strips sent to them by the Commission, which formed the main subject-matter of their previous investigations, are the original ones relating to the experiments carried out by Mr Guillot in the period from 28 to 30 April 1971. They also reaffirm their view that the results of measurements Nos 37 to 41 have been manipulated while the three previous measurements, which also failed to produce the desired results, were simply left out of Mr Guillot's report.
According to Mr Collard and Mr Boulenger the manipulation of the results of the experiments was carried out with the sole object of ensuring that those results agreed with the theory championed by Mr Guillot. It is for this reason that those reporting consider that there is justification for referring to falsification from the scientific point of view, especially since the way in which Mr Guillot drew up his report clearly reveals his intention to disguise the manipulations. According to them he had been at pains to correct the results of the experiments in such a way that the alterations would pass unnoticed by anyone not in possession of the original strips.
9.
The applicant has objected that neither the administrative committee nor the authors of the Boulenger report respected the rights of the defence. He says that they worked on their own, without communicating to him the papers in the various inquiries and without allowing him to put his own point of view; furthermore, to all intents and purposes they worked on the basis of the strips from the Olivetti computer and from the printer of the multichannel analyser, that is to say, material which had not been previously accepted as genuine by the applicant.
In this connexion Mr Guillot quotes the judgment of the Court in Case 80/63 concerning the work of the Establishment Board provided for under Article 102 of the 1962 Staff Regulations of Officials (judgment of 1 July 1964 [1964] ECR 391). In that decision the Court held that, since an unfavourable opinion of the Board was binding on the appointing authority, the Board must afford the person concerned the opportunity to submit his comments on the factors which may influence his integration. In the case to which the said judgment refers, the person concerned was heard by the Board after his superiors had been heard but he was not invited to submit his comments on the further material facts which the Board subsequently obtained and which led it to pass an unfavourable opinion. The Court accordingly held that, because of this omission, the opinion expressed by the Board was invalid.
In contrast to that case, the technical reports available in the present case are not binding on the authorities empowered to take a decision on the applicant's position under the Staff Regulations and are not even intended to influence any decision on the subject. The question on which at the present time those documents may have a bearing is not concerned with the official's position under the Staff Regulations at all. Nevertheless it has great importance for him and this impels me to state as a matter of principle that, even in the absence of strict rules as to form, and even in proceedings other than before a court, bodies responsible for discharging such delicate tasks must not fail to provide adequate safeguards for the person concerned.
However, in the present case, if the applicant was not given a hearing during the inquiries conducted by the Commission, he was himself largely responsible. The Commission announced that it was prepared to allow him, within certain limits, to participate in the experts' work (see letter of 15 January 1975 from the agent of the Commission to the applicant's lawyer). But the applicant preferred not to avail himself of the opportunity.
For this reason, too, the regrettable absence of an adversary procedure cannot in the present proceedings have the effect of depriving the technical reports submitted by qualified investigators of all value. The probative value of an investigation carried out extra-judicially is not, of course, the same as that of an inquiry directly ordered by the Court in the course of an action. But we must not lose sight of the fact that it was the Court itself which, in the decision in the previous Guillot case, to which I have referred on several occasions, ordered the Commission to carry out an inquiry despite the fact that the Commission had repeatedly asked for a proper investigation. Because of this I feel justified in suggesting that, while the Court cannot restrict itself by taking the technical reports summarized earlier as the basis for its decisions, it has nevertheless the power and the duty to take them into account as forming part of the evidence on the basis of which the conflicting arguments must ultimately be appraised.
10.
In reply to the charges made against him of having falsified the results of the experiments in April 1971 the applicant's line of defence is essentially to deny the authenticity of the printer strips from the TMC multichannel machine relating to measurements Nos 37 to 41, which his superior at that time claimed to have found in the wastepaper bins. It would appear, therefore, from the applicant's own line of reasoning that, if their authenticity were to be established, this in itself would constitute corroboration of the accusation made by Mr Malvicini.
As proof that these strips are genuine the defendant has stressed the fact, to which attention was also drawn in the reports of the two committees of inquiry, that in the case of one of the two gases analysed in the course of Mr Guillot's experiments, xenon-133, the values recorded on the strips in question are the same as the results supplied by the applicant himself in his report to the Director, Mr Caprioglio, (with the exception of certain minor variations due to a defect in the printer mechanism, which relate almost wholly to the units column). In the case of the other gas, xenon-131m, there is, however, no such similarity.
The applicant originally suggested the possibility that these data referred to a different experiment from his own or that they were the direct outcome of a deliberate fraud perpetrated in order to do him harm. But I have already pointed out that, according to the Commission and the experts which it consulted, there is no more than one chance in a thousand of being able to reproduce, with the TMC automatic printer, a result corresponding to that obtained during Mr Guillot's experiment on the first of the two gases.
Secondly, in the course of the written and the oral procedures, the applicant contested the similarity between the values registered on the strips relating to xenon-133 and the results included in his report. More particularly, the applicant, expressed doubt concerning a figure which appears on the said strips relating to the hundreds column: apparently it was capable of being read as zero or as a 9. But, bearing in mind both the normal course of the curve representing the dissolution phenomenon under consideration and the values entered in the applicant's own report, close study of the strip in question appears to demonstrate the accuracy of the figure accepted by the authors of the Boulenger report and its similarity to that which the applicant himself had originally shown.
Finally, and in more general terms, the applicant has maintained that the defect pointed out in the printer mechanism which, as we have seen, affects almost exclusively the units column and which sometimes makes the figures difficult to read, gave the experts responsible for the inquiry on behalf of the Commission a certain margin of discretion of which they took advantage in order to adapt the results printed on the strip to those already shown in the Guillot report, so as to give the appearance of a similarity which did not in fact exist.
This contention, the essence of which is to throw the accusation of manipulating calculations back upon the experts chosen by the Commission, does not carry complete conviction. First of all, it must be borne in mind that, far from arbitrarily choosing a convenient value, the Commission's experts have, in the case of an indecipherable number, always taken the average value 5. Moreover the Commission demonstrated that whenever extreme values (that is to say 1 or, alternatively, 9) were chosen for an indecipherable figure on the strips, so as to produce a minimum and maximum result, the data given in the applicant's report always lay between these two extremes.
On the question of the different figures supplied by the applicant during the proceedings, on the basis of the use of two alternatives, the Commission pointed out that the difference was due to the fact that, in determining these figures, Mr Guillot failed to deduct the fixed factor applied in order to allow for the so-called ‘background noise’ of the measuring apparatus whereas, on the other hand, he had deducted this factor in analysing the data from the experiments in question.
Replying on this point in the observations attached to his lawyer's letter of 6 December 1976 the applicant denied that he had allowed for the ‘background noise’ in his ‘technical appendix’ of 7 May 1971 in order to subtract it from the values supplied to him by the automatic printer. This statement was however in sharp contrast to the one previously made by the applicant on page 2 of the ‘technical appendix’, referred to above.
Finally, as further confirmation that the strips are genuine, the Commission has drawn attention to certain manuscript notes which appear on them and which, according to it, were, in the main, entered by the applicant himself and, in addition, to the fact that the various pieces of strip clearly belonged to the same roll because the margins were the same in each case. On the other hand, the applicant originally denied that the manuscript notes were in his writing and steadily maintained his denial until the day before his personal appearance before the Court.
11.
It was mainly because of the many disagreements between the parties concerning matters of fact which seemed capable of being of decisive importance in the settlement of the case and because account was taken of the way in which Mr Guillot had contradicted himself in respect of one of those matters that the Court decided that the applicant should appear in person and that four witnesses should be examined: Mr Benco, Mr Dominici, Mr Collard and Mr Malvicini. The applicant was subsequently given an opportunity of submitting in writing his observations on the evidence proffered.
The oral phase of inquiry was especially useful in clarifying certain aspects which had until then been obscure of Mr Malvicini's behaviour, in particular, the way in which he had recovered the strips referring to the applicant's experiments, and the reason why a period of six months elapsed between the date when the strips were recovered and the further details of the charge of falsification in his memorandum, referred to above, of October 1971.
Questioned on this point when making his statement, Mr Malvicini replied that after managing, during the first half of May, to trace and piece together the various pieces of strip relating to the experiments at issue, analysing the information and reaching the conclusions stated, he informed his immediate superior and the Director-General of the Centre by word of mouth.
During May and June Mr Guillot was in hospital for a surgical operation and remained absent from work. On 24 June Mr Malvicini, as a result of the meetings he had had with his immediate superior and with Mr Blaise, another scientific officer, decided to ask Guillot for explanations conerning the experiments in question and Mr Guillot replied in a note of 9 July which reached Malvicini's office after the latter's departure for the summer holidays, which lasted for the whole of July. On his return, Guillot was again absent, this time on holiday, and so, too, was the Director General. Thus it was only at the end of September that Malvicini could ask for the Director-General's views on the question of the falsification of Guillot's experiments. The Director-General then asked Malvicini to put his comments in writing, which the latter did in the memorandum of 21 October.
In his comments on what emerged during the hearing, the applicant submitted nothing capable of casting doubt on the accuracy of this account of the way in which events developed.
On the other hand, the oral inquiry failed to supply any reasons for the conflicting statements made by the applicant and produced others which, taken as a whole, seriously reflect on his credibility.
It was first of all established that on 26 and 27 April, immediately prior to the period in which Mr Guillot carried out the experiments in question, Mr Malvicini had, with the help of his colleagues, carried out a preliminary experiment of the same type, which had negative reaults, that is to say, which did not demonstrate the gas dissolution phenomenon asserted by the applicant. It is clear from the evidence of the witnesses that Guillot was perfectly well aware of the experiment and it is impossible to understand why he persisted so long in saying that he was not. It was only in the written observations submitted after the examination of the witnesses that the applicant for the first time admitted to having been aware of the preparations and of the ‘essais’ carried out by Mr Malvicini on 26 and 27 April 1971, while at the same time claiming that they could not be described as proper experiments because of the use of a hand-pump in place of the electric pump, subsequently used by the applicant, which was more watertight.
Again, in his statement, the applicant maintained that the xenon-131 which he used in the experiments at issue, had been prepared by him at the Ispra establishment and then mixed with xenon-133 from the Mol Research Centre. On the other hand, in the said ‘technical appendix’, submitted together with the memorandum of 7 May 1971 to the Director-General of the Centre, he had declared that the mixture of xenon-131 and xenon-133 was supplied ready prepared by the Mol Centre. As Mr Collard pointed out, if everything which the applicant stated orally were true, it would have been hardly proper on his part never to have said a word about it earlier since the use, for the mixture of the two gases, of a different type of xenon-131, which in various important respects differed from that supplied by the Mol Centre, would have produced unavoidable repercussions on the course of the experiments and, accordingly, on the assessment of their results. However, the evidence of Mr Dominici would appear to confirm what the applicant had previously written in the report referred to, namely that gases prepared in the Mol Centre were alone involved.
A further contradiction is to be found in Mr Guillot's statements concerning the length of time taken in bubbling the gases through the liquid the morning of Thursday 29 April. In his written report he had indicated that this lasted from 10 to 15 minutes; in oral evidence he claimed to have carried out the operation for about an hour. It must be borne in mind that it is important to establish the precise length of this period if the results of the experiments are to be correctly calculated.
Again, on the subject of the correction factor stated to have been used to allow for the disturbance caused by the alleged accidental displacing of a flask, the applicant claimed, in his handwritten report to Mr Malvicini, to have applied this factor (expressed as a four-figure value, determined apparently with a view to restoring the line of the curve to correspond to that of the previous day) to the results relating to xenon-131, but not to those relating to xenon-133. But in the subsequent report for the Director-General he stated that he had applied the correction factor to both gases, thus depriving the results of any value, as he himself had later to acknowledge in reply to a question put to him during his examination by the Judge-Rapporteur.
Again, on the question of the correction factor, the witness Collard confirmed what had already been pointed out in the ‘Boulenger Report’, namely that Mr Guillot had also applied the said coefficient to the measurements preceding the last six.
This justifies the conclusion that Guillot's statement about the tilting of the flask is untrue; it is quite possible that the applicant invented the alleged incident of the flask in order to answer Mr Malvicini's criticisms relating only to the last six measurements (namely those for which Malvicini had recovered the Olivetti computer strips at the time of his conversation with Guillot on 3 May 1971 and which therefore were the sole subject of his original remarks).
This supposition is confirmed by the fact, now proved, that in his first report to Malvicini Guillot made no reference to any incident which occurred during the experiments or to any corrections made by him to the data supplied by the analyser.
Mr Dominici was present at the meeting during the morning of Monday 3 May 1971 between Malvicini and Guillot, in the course of which the latter was questioned about the difference between the data in his written report concerning xenon-131 and the data given on the computer strip which Malvicini had been able to recover two days earlier. Mr Dominici's evidence confirms Malvicini's statement that Guillot had informed him, only after being obliged to do so as a result of Malvicini's challenge, of the corrections he had made to the data provided by the automatic printer in the case of one of the gases.
Conscious of the equivocal nature of his conduct the applicant has, since his note of 9 July 1971 to the Director-General and, later, during the whole of the present proceedings, maintained that since 30 April 1971, the final day of the experiments in question, he voluntarily informed Malvicini by word of mouth that the results had been ‘corrected’. In the light, however, of Mr Dominici's evidence about the way in which the discussion developed on the morning of 3 May, it is difficult to attach any credence to the applicant's statement.
Even on the question of the way in which, in working out the results, Mr Guillot remedied the defect in the printing mechanism affecting the units column, the applicant's explanations are vague and inconsistent, he stated that he had on occasion inserted 1 for the missing figure, and 9 on other occasions, without however explaining on the basis of what standard of frequency he chose one figure on one occasion and another on others. Moreover, from the strips which are not in dispute and from the figures given by Mr Guillot in his report, there is every reason for believing that he consistently used the average value 5 for the missing figure.
In conclusion I should like to draw attention to the fact that, in giving his evidence, the applicant for the first time confessed to a belief that part of the handwritten entries of figures and words made on the automatic printer strip referring to measurements Nos 37 to 41 were in his own hand.
This admission considerably weakens the attitude of total denial which he had previously adopted.
Finally, the fact that, in an attempt to demonstrate that the experts' reports submitted by the Commission are unreliable, the applicant has become entangled in this web of untrue, contradictory and inconsistent statements shows up the weakness of his position. In my view, the foregoing considerations, taken as a whole corroborate the statements and technical opinions contained in the reports put in by the Commission, particularly in the reports drawn up independently by the experts at the Mol Centre and by the administrative committee of inquiry. I have, moreover, already emphasized that for the application to be dismissed it is necessary to do no more than establish that the conduct of the applicant was such as to justify the accusations made against him by his immediate superior and, in addition, that the Commission was guilty of no illegal act in refusing to disavow Mr Malvicini. I consider these facts to have been established.
12.
The foregoing considerations justify the conclusion that Mr Guillot's contention that the Commission caused him harm by infringing Article 24 of the Staff Regulations of Officials ought to be rejected. As for Article 26, I have already made it clear that it was undoubtedly contravened by the Commission but the fact that the Commission has meanwhile taken the step of withdrawing the Malvicini memorandum of 21 October 1971 from the applicant's personal file means that the latter's request for the document to be withdrawn from his file has become pointless.
I therefore propose that the Court should dismiss as without foundation the applicant's application for annulment of the implied decision rejecting his complaint, resulting from the absence of a reply from the Commission to the complaint which he lodged on 26 November 1973.
The application for an order that the defendant shall pay compensation for the damage allegedly suffered by the applicant as a result of the Commission's refusal to dissociate itself from the accusations contained in the Malvicini memorandum of 21 October 1971 should, since the refusal was lawful, also be dismissed as being without foundation. The same decision should be taken regarding the application for return of the documents involved in the scientific experiments carried out by the applicant since, as I have already stated, the experiments were carried out under the auspices of the Ispra Centre and with the use of its resources and the documents do not belong to the applicant. Since the action has proved in all essentials to be unfounded I recommend that, as provided for under Article 70 of the Rules of Procedure governing proceedings by employees of the Communities, each party should bear its own costs.
(
1
)	Translated from the Italian.