62005FJ0023_EN
Parties
Grounds
Operative part
Parties
In Case F‑23/05,
ACTION under Articles 236 EC and 152 EA,
Jean-Louis Giraudy,
former official of the Commission of the European Communities, residing in Paris (France), represented by D. Voillemot, lawyer,
applicant,
v
Commission of the European Communities,
represented by J. Currall and G. Berscheid, acting as Agents,
defendant,
THE TRIBUNAL (Third Chamber),
composed of P. Mahoney (Rapporteur), President, H. Kanninen and S. Gervasoni, Judges,
Registrar: S. Boni, Administrator,
having regard to the written procedure and further to the hearing on 11 July 2006,
gives the following
Judgment
Grounds
1. By application lodged at the Registry of the Court of First Instance of the European Communities on 20 April 2005, Mr Giraudy seeks:
– annulment of the decision of 21 February 2005 rejecting his complaint of 22 September 2004;
– an order that the Commission of the European Communities pay to him damages in compensation for the damage and harm he claims to have suffered, assessed at the sum of EUR 264 000 in respect of material damage and EUR 500 000 in respect of non‑material harm.
Legal context
A – Provisions relating to anti-fraud investigations
2. Recital 10 of the preamble to Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1) is in the following terms:
‘Whereas these investigations must be conducted in accordance with the Treaty and in particular with the Protocol on the privileges and immunities of the European Communities, while respecting the Staff Regulations of officials and the conditions of employment of other servants of the European Communities (hereinafter referred to as “the Staff Regulations”), and with full respect for human rights and fundamental freedoms, in particular the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value; …’.
3. Article 4(1) of that regulation, headed ‘Internal investigations’, is worded as follows:
‘In the areas referred to in Article 1, the [European Anti-Fraud] Office shall carry out administrative investigations within the institutions, bodies, offices and agencies [“internal investigations”].
These internal investigations shall be carried out subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the conditions and in accordance with the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency. The institutions shall consult each other on the rules to be laid down by such decisions.’
4. The second paragraph of Article 5 of that regulation, headed ‘Opening of investigations’, provides:
‘Internal investigations shall be opened by a decision of the Director of the [European Anti-Fraud] Office acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted.’
5. Article 8(1) and (2) of the same regulation, under the heading ‘Confidentiality and data protection’, are worded as follows:
‘1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions.
2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities.
Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity.’
6. Article 2 of Commission Decision 1999/396/EC, ECSC, Euratom, of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests (OJ 1999 L 149, p. 57), headed ‘Duty to supply information’, provides in its first and second paragraphs:
‘Any official or servant of the Commission who becomes aware of evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in disciplinary or, in appropriate cases, criminal proceedings, or a failure to comply with the analogous obligations of the Members of the Commission or members of the Commission’s staff not subject to the Staff Regulations, shall inform without delay his Head of Service or Director-General or, if he considers it useful, the Secretary-General of the Commission or the [European Anti-Fraud] Office direct.
The Secretary-General, the Directors-General and the Heads of Service of the Commission shall transmit without delay to the [European Anti-Fraud] Office any evidence of which they are aware from which the existence of irregularities as referred to in the first paragraph may be presumed.’
7. The first paragraph of Article 4, headed ‘Informing the interested party’, of Decision 1999/396 states:
‘Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.’
B – Provisions on insurance against the risk of occupational disease
8. The first paragraph of Article 73(1) of the Staff Regulations of Officials of the European Economic Community (‘the Staff Regulations’) provides that ‘[a]n official is, from the date of his entry into the service, insured against the risk of occupational disease or accidents in the manner provided for in rules drawn up by common agreement of the Institutions of the Communities after consulting the Staff Regulations Committee …’.
9. Article 73(2)(b) of the Staff Regulations provide that in the event of permanent total invalidity, the official concerned is to receive payment of a lump sum equal to eight times his annual basic salary calculated on the basis of the monthly salaries received during the twelve months before the accident.
10. The rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the insurance rules’) determine, in accordance with Article 73 of the Staff Regulations, the circumstances in which an official is insured against the risks of accident and occupational disease.
11. Article 12(1) of the insurance rules provides that where an official sustains total permanent invalidity as a result of an accident or occupational disease, the lump sum provided for in Article 73(2)(b) of the Staff Regulations is to be paid to him.
12. The first and third paragraphs of Article 17(2) of the insurance rules provide that the Administration is to hold an enquiry in order to obtain all the particulars necessary to determine the nature of the disease, whether it has resulted from the official’s occupation and also the circumstances in which it arose. After seeing the report drawn up following the enquiry, the doctor(s) appointed by the institutions must state their findings as provided for in Article 19 of those rules.
13. Under Article 19 of the insurance rules, decisions recognising the occupational nature of a disease are to be taken by the appointing authority in accordance with the procedure laid down in Article 21 of those rules, on the basis of the findings of the doctor(s) appointed by the institutions and, where the official so requests, after consulting the Medical Committee referred to in Article 23 of those rules.
C – Provisions on invalidity allowances
14. The first paragraph of Article 78 of the Staff Regulations states that the official is entitled to an invalidity allowance in the case of permanent total invalidity preventing him from performing the duties corresponding to a post in his function group. The fourth and fifth paragraphs of that article provide, inter alia, that when the invalidity is the result of occupational disease, the institution is to be responsible for payment in full of contributions to the pension scheme covering the invalidity allowance.
D – General provisions of the Staff Regulations
15. The first paragraph of Article 7(1) of the Staff Regulations, as worded at the material time, provides:
‘[The appointing authority], acting solely in the interest of the service and without regard to nationality shall assign each official by appointment or transfer to a post in his category and service which corresponds to his grade’.
16. The second paragraph of Article 25 of the Staff Regulations states:
‘Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’
17. Under the first and second paragraphs of Article 62 of the Staff Regulations:
‘In accordance with Annex VII and save as otherwise expressly provided, an official who is duly appointed shall be entitled to the remuneration carried by his grade and step.
An official may not waive his entitlement to remuneration.’
The facts
18. In 2002 the applicant was an official at grade A 3, assigned to the Directorate General (DG) ‘Press and Communication’ as Head of the Commission’s Representation in France, in Paris.
19. During the second half of 2000, staff of the Directorate General (DG) ‘Education and Culture’ carried out an audit of the Info-Point Europe in Avignon, managed by the Maison de l’Europe d’Avignon et de Vaucluse. The resulting report dated 27 November 2000 highlighted deficiencies in the accounts of that Info-Point Europe. On 12 December 2000 the report was sent to the Director‑General of the DG ‘Education and Culture’, and on 8 February 2001 he sent it to the Head of the ‘Press and Communication’ department (later DG ‘Press and Communication’), given that certain activities were being transferred from that Directorate General to the ‘Press and Communication’ department. The report was also sent to the Commission’s Representation in Paris.
20. Following a complaint about the operation of the Maison de l’Europe d’Avignon et de Vaucluse, an additional inspection was carried out as part of the abovementioned audit. The outcome of that inspection was a memorandum dated 6 December 2000, the findings of which were that it was likely that some projects were fictitious. That there were fictitious projects was ultimately confirmed by OLAF’s external investigation IO/2001/4086 concerning the Maison de l’Europe d’Avignon et de Vaucluse. The memorandum about the additional inspection was not forwarded to the Commission’s Representation in Paris by the ‘Press and Communication’ department based in Brussels. When asked by the Tribunal at the hearing why this memorandum had not been forwarded, the Commission’s representative replied that he was not ‘able to … provide a precise answer on that point [and that it was necessary] to take the view that it [was] at most an administrative oversight’.
21. By jointly signed memorandum dated 21 March 2001 the Director-General of the DG ‘Education and Culture’, Mr V., and the Head of the ‘Press and Communication’ department, Mr F., forwarded to OLAF the audit report of 27 November 2000 and the additional inspection memorandum dated 6 December 2000, pursuant to the second paragraph of Article 2 of Decision 1999/396. In that memorandum, the signatories stated, inter alia, that concurrently with sending this information to the Director-General of OLAF, they had requested both the Head of the Commission’s Representation in France and the Head of the Unit in charge of the Maisons de l’Europe and of the Info-Points Europe to ‘report’ any circumstances they might be aware of which might clarify the matter. The applicant states that he did not ever receive such a request.
22. At the beginning of November 2002, the Director-General of the DG ‘Press and Communication’, Mr F., received from officials of his Directorate General who wished to remain anonymous but whom he declared were well known to him, precise and detailed accusations of irregularities concerning, inter alia, relations between the applicant and the President of the Maison de l’Europe d’Avignon et de Vaucluse, the allocation of subsidies to fictitious projects within that Maison de l’Europe, the management of the Economic Interest Group ‘Sources d’Europe’ and instances of favouritism in relation to procurement. Pursuant to the second paragraph of Article 2 of Decision 1999/396, the Director-General of the DG ‘Press and Communication’ then informed OLAF of the facts he had become aware of, by a memorandum dated 6 November 2002 accompanied by appended documents containing the evidence submitted to him.
23. On 15 November 2002 OLAF opened an internal investigation into possible irregularities within the DG ‘Press and Communication’, more specifically at the Commission’s Representation in Paris (investigation OF/2002/0513). The opening of this investigation was mentioned in a press release published by OLAF.
24. By memorandum dated Friday, 15 November 2002, which the applicant states that he received by e-mail on the morning of the following Monday, 18 November, the Director-General of the DG ‘Press and Communication’ informed the applicant that OLAF had opened an investigation into suspected irregularities based on facts falling within the knowledge of the Commission’s Representation in Paris, and requested that he immediately make his way to Brussels to meet him.
25. That meeting took place in Brussels on 18 November 2002.
26. On the same date, 18 November 2002, OLAF began its investigations in the offices of the Commission’s Representation in Paris.
27. After being informed by telephone that the applicant, on his return to the Commission’s Representation in Paris on 18 November 2002 and after his meeting with the Director-General of the DG ‘Press and Communication’, had questioned the Representation’s staff on what OLAF had done in the course of the day, the Director-General of OLAF made a recommendation to the DG ‘Press and Communication’ that the applicant, and his deputy, should be denied any access to the Representation’s offices for the duration of the investigation, to ensure that it was conducted properly. The applicant denies however that he returned to the Representation on 18 November 2002 and attempted to question the staff, and states that he returned there only on the morning of the following day.
28. On 19 November 2002 the Director-General of the DG ‘Press and Communication’, in his capacity as the appointing authority, decided to alter, with immediate effect, the applicant’s assignment in the interest of the service and to assign him to a post as ‘[a]dviser to the [D]irector‑[G]eneral of the DG [“Press and Communication”] in Brussels’.
29. The applicant was advised of that decision by memorandum dated the same day from the Director-General of the DG ‘Press and Communication’ and containing the information that ‘in order to facilitate the proper conduct of the investigation opened by OLAF into the operation of the Commission’s Representation in Paris, [the Director-General had] decided, in the interest of the service, to transfer [the applicant] as from that date to the DG [“Press and Communication”] – Brussels [and that] details of [his] assignment [would] be sent to [him] in [the next few days]’.
30. The applicant’s deputy was likewise subject to reassignment with immediate effect from Paris to Brussels.
31. By memorandum dated 20 November 2002, the Director-General of the DG ‘Press and Communication’ informed the staff of the Commission’s Representation in Paris that the investigation of the Representation was expected to last about one month.
32. The applicant made known his objections to his proposed reassignment by various memoranda for the attention of the Director-General of the DG ‘Press and Communication’ dated 21, 22 and 27 November 2002. In his memoranda of 21 and 22 November 2002, the applicant suggested, inter alia, that he take leave for the duration of OLAF’s investigation within the Commission’s Representation at Paris. The Director-General of the DG ‘Press and Communication’ replied to the applicant by a brief memorandum dated 27 November 2002, in which he confirmed that had decided to reassign him to other tasks within the Directorate‑General ‘in order to ensure the proper conduct of the investigation and to avoid any possible conflict of interest’.
33. On 21 November 2002 the applicant and the Director-General of the DG ‘Press and Communication’ had a further meeting, in the course of which the latter informed the applicant that his reassignment was purely a precautionary measure.
34. On the same date, 21 November 2002, the Commission issued a press release in the following terms: ‘[t]he [DG “Press and Communication”] has requested that [OLAF] consider whether to open an investigation into suspected irregularities in the management of subsidies allocated in France under the information and communication policy[;] in order to ensure the proper conduct of this investigation and to avoid any perceived conflict of interest, it has been decided in the interests of the service to reassign to Brussels two officials of the Commission’s Representation in Paris[,] these being administrative decisions [which] in no way prejudge the findings of the investigation’. On the eve of publication of this press release, the Director-General of the DG ‘Press and Communication’ telephoned the applicant to inform him of it.
35. However, on 21 November 2002 Mr F., acting on this occasion as spokesman for the Commission, a post he also held, held his regular press conference, and was then questioned by journalists about the OLAF investigation and the reassignment to Brussels of two officials of the Commission’s Representation in Paris. When replying to the journalists’ questions, he did not name the two officials concerned. He made clear that no one had been accused of anything and that the reassignments decided upon were to another department within the same Directorate General, and were designed to avoid any conflict of interest and to ensure the proper conduct of the investigation. At that press conference, a journalist asked him in particular whether he could ‘say whether the person in charge of the office in Paris [was] responsible for all expenditure incurred in France and in particular for the Maison de l’Europe [d’]Avignon [et de Vaucluse] since it appeared that was what was at issue and whether [that person] was or was not the person responsible for the management of that Maison de l’Europe …’, to which the Commission spokesman replied, inter alia, that ‘[it was] more complicated than that[,] [that] management of subsidies [was] the responsibility of several parties, that there [was] an [I]nternational Federation of Maisons de l’Europe in Brussels; that obviously there were Commission offices in the various countries concerned …’.
36. On 23 November 2002, the newspaper Le Monde
devoted an article to the OLAF investigation and to the reassignment of two officials, and the names of the applicant and his deputy were printed in the article.
37. By memorandum of 28 November 2002 the Director-General of the DG ‘Press and Communication’ clarified to the applicant what his duties would be as ‘[a]dviser to the Director‑General of the DG [“Press and Communication”] in Brussels’. He also confirmed to him that his reassignment to Brussels was precautionary and that it was intended to ensure the proper conduct of the investigation and to avoid any possible conflict of interest.
38. On 20 December 2002, the spokesman of the Commission and Director-General of the DG ‘Press and Communication’ held a press conference, where he announced that there was now nothing to prevent the lifting of the precautionary measure taken in relation to the two officials and that he was going to discuss with them shortly the arrangements to be made towards this end.
39. There was coverage in the French press of the lifting of the precautionary measures in relation to the two officials, by articles published in the newspapers Le Monde
(22 and 23 December 2002), Le Figaro
(21 and 22 December 2002) and Libération
(21 and 22 December 2002).
40. On 6 January 2003 the applicant and the Director-General of the DG ‘Press and Communication’ had a further meeting, in the course of which was discussed the resumption by the applicant of his duties as Head of the Commission’s Representation in Paris.
41. On 16 January 2003 the views of the applicant were heard by the OLAF investigators, in accordance with the first paragraph of Article 4 of Decision 1999/396.
42. By decision dated 21 January 2003, to take effect retroactively from 19 December 2002, the appointing authority reassigned the applicant to his previous duties as Head of the Commission’s Representation in Paris. The applicant states that he did not receive this decision until 12 February 2003. However, due to illness he did not in fact ever resume his work at the Commission’s Representation in Paris.
43. The resumption by the two officials of their duties in Paris was the subject, on 21 January 2003, of a Parliamentary question by Mrs Flesch to the Commission (written question E‑36/03). On 5 March of that year, Mr Prodi, President of the Commission, said in reply on behalf of the Commission that it was regrettable that the media had made public the names of the persons concerned.
44. On the same date, 5 March 2003, the Director-General of the DG ‘Press and Communication’ informed the applicant that certain posts as Head of Commission Representations, including the Representation in France, would shortly be advertised as vacancies.
45. On 6 May 2003 OLAF issued its final investigation report. The findings exonerate the applicant as regards the allegations which led to the opening of the investigation and make clear that a significant memorandum on the additional inspection, dated 6 December 2000, the content of which would have enabled the applicant and his deputy to form a more critical judgment on the operation of Maison de l’Europe d’Avignon et de Vaucluse, had never been sent to the Commission’s Representation in Paris by the staff of the DG ‘Press and Communication’. According to OLAF’s report, ‘[t]he fact that the [h]ead office did not send to the [R]epresentation the memorandum on the additional inspection of 6 December 2000 therefore indirectly contributed to increasing OLAF’s suspicions of [the applicant and his deputy]’.
46. At a press conference on 17 June 2003, in response to a question from a journalist, the new spokesman for the Commission, Mr K., said that he and the Commission had every sympathy for the applicant.
47. In an article of 23 October 2003, the newspaper La Tribune
made reference to ‘the lamentable “case” of the Commission’s office in Paris, which led the Commission to throw its management to the wolves of the media before … OLAF concluded, quietly, that the allegations brought were without foundation’.
48. On 22 March 2004 the Invalidity Committee determined that the applicant had sustained a permanent invalidity which was assessed as total and which rendered him incapable of performing his duties. The Invalidity Committee took no view as to whether this invalidity was occupational in origin, considering that it was preferable to await completion of proceedings brought under Article 73 of the Staff Regulations. The applicant was recognised as entitled to an invalidity allowance under Article 53 of the Staff Regulations as from 1 May 2004.
49. By letter of 10 December 2004 the applicant submitted an application for the recognition of his illness as occupational in origin, under Article 73 of the Staff Regulations.
50. Prior to that, by letter of 2 March 2004, supplemented by a letter dated 17 June of the same year, the applicant submitted to the appointing authority an application for compensation for the damage he claimed to have suffered at the time of and during the OLAF investigation, on the basis of Article 90(1) of the Staff Regulations.
51. That application was rejected by decision of the appointing authority of 8 July 2004.
52. On 22 September 2004 the applicant submitted a complaint against that decision under the first paragraph of Article 90(2) of the Staff Regulations. The complaint reached the Commission on 19 October of that year.
53. The appointing authority rejected the complaint of the applicant by decision of 21 February 2005.
Procedure and forms of order sought by the parties
54. This action was initially registered at the Registry of the Court of First Instance as Case T‑169/05.
55. By order of 15 December 2005 the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) referred this case to the Tribunal. The action was registered at the Registry of the Tribunal as Case F‑23/05.
56. By way of measures for the organisation of the procedure, by letters of 22 March and 7 June 2006 the Tribunal requested that the Commission produce certain documents, in particular OLAF’s report of 6 May 2003. The Commission complied with the requests of the Tribunal in the period allowed. By letter of 22 March 2006 the Tribunal requested that the applicant inform it when the proceedings brought under Article 73 of the Staff Regulations were concluded.
57. By fax which arrived at the Registry of the Tribunal on 25 September 2006, the applicant forwarded to the Tribunal a letter which he had sent to the Commission on 18 August 2006 and in which he stated that he was abandoning the application for recognition that his disease was occupational in origin.
58. The Tribunal decided that it was appropriate, exceptionally, to admit that document to the Court’s papers after closure of the oral procedure, since, first, it related to a factor which had arisen after the hearing and, secondly, it was liable to affect the resolution of the dispute.
59. On the view that the principle that both parties should be heard required the Commission to be permitted to submit its observations on that document, the Tribunal by order of 17 October 2006 ordered that the oral procedure be re‑opened, pursuant to Article 62 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis
to the Tribunal, under Article 3(4) of Decision 2004/752, until the entry into force of the Tribunal’s Rules of Procedure.
60. The Commission submitted its observations on that document to the Registry of the Tribunal on 10 November 2006 by fax (the original being lodged on 13 November of the same year).
61. By letter of 16 November 2006 the Tribunal invited the applicant to present any observations he had on that response from the Commission.
62. The applicant submitted his observations to the Registry of the Tribunal on 29 November 2006 by fax (the original being lodged on 4 December of the same year).
63. By letter from the Tribunal dated 11 December 2006, the parties were informed that the oral procedure was closed.
64. The applicant requests that the Tribunal should:
– set aside the decision of 21 February 2005 rejecting his complaint of 22 September 2004;
– declare that wrongful acts on the part of the Commission have caused clear and quantifiable harm to him and that there is a causal link between the wrongful acts and that harm;
– declare that he is entitled to monetary compensation for the harm which he has suffered;
– assess his material damage at the sum of EUR 264 000 and his non-material harm at the sum of EUR 500 000;
– order the Commission to pay the costs.
65. The Commission requests that the Tribunal should:
– dismiss the action;
– make an appropriate order as to costs.
Law
A – Admissibility
66. The Commission raises three pleas of inadmissibility, namely that the pre-litigation procedure was not properly conducted, that the applicant has no standing to bring proceedings, and that the action is premature.
1. No properly conducted pre-litigation procedure
a) Arguments of the parties
67. The Commission queries the admissibility of the action on the ground that the applicant is alleging harm resulting from the reassignment decision of 19 November 2002, which was not challenged in accordance with the procedure laid down in Articles 90 and 91 of the Staff Regulations.
68. The applicant’s response is that his application for compensation is not based solely on challenging that decision, but raises various pleas in law relating to wrongful acts on the part of the Commission, in particular issue of its press release of 21 November 2002, statements of its spokesman at the press conference on the same day, and the forwarding of documents to OLAF. The present action for damages, which should be considered as a whole, is therefore admissible.
b) Findings of the Court
69. According to settled case‑law, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from non-decisional conduct of the administration, that is to say, conduct which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limits a complaint directed against the act in question. In the second case, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation. It is only the explicit or implicit dismissal of such a request that constitutes a decision adversely affecting the person concerned and against which he may submit a complaint, and only after the explicit or implicit dismissal of that complaint may an action seeking compensation be brought before the Tribunal (Case T‑5/90 Marcato
v Commission
[1991] ECR II‑731, paragraphs 49 and 50, and Case T‑500/93 Y
v Court of Justice
[1996] ECR-SC I-A‑335 and II‑977, paragraphs 64 and 66).
70. In the present case, before instituting proceedings before the Tribunal the applicant made, on 2 March 2004, a request for compensation under Article 90(1) of the Staff Regulations; thereafter he submitted, on 22 September 2004, a complaint under the first paragraph of Article 90(2) of the Staff Regulations which was directed against the decision of 8 July 2004 rejecting his request for compensation. The applicant, therefore, preceded his action before the Tribunal with the pre-litigation procedure governing requests for compensation for harm resulting from non-decisional conduct of the administration.
71. To determine whether that pre-litigation procedure was properly followed, it is therefore necessary to determine whether the damage for which compensation is sought results from, inter alia, non-decisional conduct of the administration.
72. In the present proceedings the applicant takes issue with various measures of the administration which he alleges have caused him harm, namely, first, the reassignment decision taken by the appointing authority on 19 November 2002; second, the Commission’s press release of 21 November 2002, and its spokesman’s statements at the press conference on the same day; and, lastly, the forwarding to OLAF by the Director-General of the DG ‘Press and Communications’ of evidence suggesting that there had been irregularities within the Commission’s Representation in Paris. By his criticism of the Commission’s press release of 21 November 2002, of its spokesman’s statements at the press conference on the same day, and of the abovementioned forwarding of evidence to OLAF, the applicant, in support of his action, challenges, inter alia, conduct of the administration which contains nothing in the nature of a decision.
73. It follows from the foregoing that the plea of inadmissibility on the ground that the pre-litigation procedure was not properly followed cannot be upheld.
2. The lack of standing to bring proceedings
a) Arguments of the parties
74. The Commission queries whether the applicant has standing to bring proceedings, contending that, when his application was lodged, the reassignment decision of 19 November 2002 had been revoked more than a year earlier.
75. The applicant takes no position on this plea of inadmissibility but asks the Tribunal generally not to accept the Commission’s procedural objections.
b) Findings of the Court
76. The assertion, on which the Commission’s argument is based, that the reassignment decision of 19 November 2002 had been ‘revoked’ more than a year before this action was brought must be regarded as unfounded in fact. The decision of 21 January 2003 reassigning the applicant to his previous duties as Head of the Commission’s Representation in Paris, with retroactive effect from 19 December 2002, did not replace the reassignment decision of 19 November 2002, which deployed its effects from 19 November until 19 December 2002.
77. In addition, the applicant’s standing to bring proceedings cannot be assessed with regard solely to the plea in law relating to the reassignment decision of 19 November 2002, but must be assessed in relation to the forms of order presented by the applicant seeking a declaration of liability.
78. The plea of inadmissibility on the ground that the applicant has no standing to bring proceedings must therefore be rejected.
3. That the action is premature
a) Arguments of the parties
79. In its defence the Commission contended that assessment of the prejudice sustained by the applicant had to take into account benefits received under Article 73 of the Staff Regulations, in accordance with the reasoning set out in the judgment of the Court of First Instance in Case T‑165/95 Lucaccioni
v Commission
[1998] ECR‑SC I‑A‑203 and II‑627. The Commission concluded that, since the procedure commenced by the applicant under that provision was still underway, the Tribunal would not be in a position to assess the prejudice sustained by him and, consequently, that the action was premature. At the hearing, the Commission abandoned this argument, and took the view that, given that the procedure brought under Article 73 of the Staff Regulations was likely to last several years, declaring the action to be premature might, in certain circumstances, cause the party concerned difficulties in observing the time period of five years within which an action for damages had to be brought.
80. The applicant’s response, as set out his reply, was that an application for recognition that his disease is occupational, brought under Article 73 of the Staff Regulations, does not prevent him from asserting his right to compensation for the non-material harm he has suffered. At the hearing the applicant altered his position on that point and requested that judicial notice be taken that he was prepared to abandon his application under Article 73 of the Staff Regulations. He emphasised that it was his wish that the Tribunal rule as quickly as possible on the entirety of the claim and, in particular, find that wrongful conduct on the part of the Commission was the cause of the prejudice sustained by him, a finding which would re‑establish his honour and reputation and bring an end to the long uncertainty in which he had found himself since the material time. By letter which arrived by fax at the Registry of the Tribunal on 25 September 2006, the applicant informed the Tribunal that he was abandoning his application brought under Article 73 of the Staff Regulations.
b) Findings of the Court
81. Since the Commission, at the hearing, withdrew the plea of inadmissibility on the ground that the action was premature, the Tribunal finds that no ruling on this point is necessary.
82. It follows that the action must be declared admissible.
B – The request for a stay of proceedings
1. Arguments of the parties
83. In its defence the Commission considered that the harm alleged by the applicant should be assessed by taking into account benefits received under Article 73 of the Staff Regulations. Since the procedure commenced under that provision was underway when the Commission submitted its defence, the Commission maintained that the Tribunal was not in a position to assess that harm. The Commission concluded that proceedings before the Tribunal ought at least to be stayed to await the outcome of the procedure under Article 73 of the Staff Regulations and, when that was concluded, the applicant should be requested to submit his observations on the consequences to be drawn from the appointing authority’s decision on whether his disease was occupational.
84. In his reply the applicant’s response was that an application for recognition that his disease is occupational, brought under Article 73 of the Staff Regulations, does not prevent him from asserting his right to compensation for the non-material prejudice he has sustained and that he was opposed to any stay of proceedings, which he described as a delaying tactic on the part of the Commission. At the hearing he requested that judicial notice be taken that he was prepared to abandon that application. By letter which arrived by fax at the Registry of the Tribunal on 25 September 2006, he informed the Tribunal that he was abandoning that application.
2. Findings of the Court
85. Since the applicant has abandoned his application brought under Article 73 of the Staff Regulations, the request presented by the Commission that the proceeding be stayed has become devoid of subject.
86. Consequently, a ruling on that request for a stay of proceedings is unnecessary.
87. In any event it is to be noted that if, in the event of the applicant having maintained his application under Article 73 of the Staff Regulations, the Tribunal had been obliged to rule on the Commission’s request made for a stay of proceedings, the request could not have been upheld. The applicant has stated his opposition to the requested suspension, whereas Article 77(c) of the Rules of Procedure of the Court of First Instance provides that proceedings may be stayed solely at the joint request of the parties.
C –  Merits
88. In accordance with settled case-law, whether the Community is liable is dependent on each of a series of conditions being satisfied, namely the illegality of the impugned conduct of the institution, the actual sustaining of damage and the existence of a causal link between the conduct and the harm alleged (Case T‑82/91 Latham
v Commission
[1994] ECR‑SC I‑A‑15 and II‑61, paragraph 72, and Case T‑506/93 Moat
v Commission
[1995] ECR‑SC I‑A‑43 and II‑147, paragraph 46).
89. It is necessary first to determine whether the Commission has acted illegally in such a way as to incur liability, by examining the various pleas in law put forward by the applicant, taking these in the chronological order of the facts to which they relate.
1. The alleged wrongful acts of the Commission
a) The third plea in law: the lack of substance in the complaints made against the applicant and the wrongful acts of his superiors
Arguments of the parties
90. As part of his third plea in law, the applicant submits that the Director-General of the DG ‘Press and Communication’ committed a wrongful act of the utmost gravity by sending to OLAF a ‘dossier à charge’ (file of incriminating evidence) against the Commission’s Representation in Paris, when the conditions for the application of the second paragraph of Article 2 of Decision 1999/396 had not been satisfied.
91. According to the applicant, the Director-General of the DG ‘Press and Communication’ did not have available to him sufficient evidence to warrant informing OLAF pursuant to the last-mentioned provision. He claims that there is a requirement of materiality in that provision, so as to ensure that unfounded accusations are not brought wrongly against officials who are either not directly or are only indirectly involved in cases of fraud.
92. The applicant submits further that the DG ‘Press and Communication’, first, sent to OLAF incorrect information in relation to the responsibility of the Commission’s Representation in Paris in the monitoring of the presumed irregularities of the Info-Point Europe in Avignon and, secondly, concealed, intentionally or negligently, documents which had been used against him. In the circumstances in which they were presented to OLAF, the allegations of the DG ‘Press and Communication’ were libellous and defamatory.
93. The Commission considers that its decision to inform OLAF of the presumed irregularities within the Info-Point Europe in Avignon was justified and necessary. The Commission states this decision must be judged on how matters stood at the date when the decision was made and that the decision should not be criticised in the light of the investigation’s final outcome.
94. The Commission submits that the second paragraph of Article 2 of Decision 1999/396 does not oblige the Secretary-General, the Directors-General and the Heads of Service of the Commission to judge the relevance or probative value of the evidence of which they have become aware before sending it to OLAF; on the contrary that provision places them under an absolute obligation. In the context of observing the terms of that provision, the only circumstance in which it is possible to envisage a wrongful act in the performance of their duties which might incur liability is where an institution acted with the intention of causing harm to an official or other servant. The Commission considers that the applicant has not at any time adduced any evidence of such an intention to cause harm, and formally denies that such an intention existed.
Findings of the Court
95. Assessment of the third plea in law, which relates to the conduct of the Commission at the time of referring the matter to OLAF, involves two questions. First, it is necessary to determine whether the Director-General of the DG ‘Press and Communication’ committed a wrongful act in the performance of his duties, by forwarding to OLAF, by memorandum of 6 November 2002, the evidence of which he was aware. Secondly, it is necessary to examine whether certain alleged malfunctions in the internal communication system of the Commission, which could have contributed to the matter being referred to OLAF and to the opening of the investigation, are capable of constituting a wrongful act in the performance of duties such as to render the institution liable. The Community may incur non-contractual liability not only because of the actions of its servants, such as a Director-General, but also because of the inadequate organisation of its departments (see, to that effect, Case 23/59 FERAM
v High Authority
[1959] ECR 245).
– The forwarding of information to OLAF
96. The arguments of the applicant and of the Commission diverge on the extent of the discretion open to the Secretary-General, the Directors-General and the Heads of Service of the Commission, referred to in the first paragraph of Article 2 of Decision 1999/396. According to the applicant, in order to transmit information to OLAF, those authorities must have available to them evidence which is material and sufficient. Failing such evidence, they may render the institution liable for their wrongful acts in the performance of their duties. The Commission, on the other hand, submits that the obligation to inform OLAF is absolute and that the only circumstance in which it is possible to envisage a wrongful act in the performance of duties which may give rise to liability is when the institution had the intention to cause harm to an official.
97. The first matter to be determined therefore is the extent of the discretion open to the Secretary-General, the Directors-General and the Heads of Service of the Commission, referred to in the second paragraph of Article 2 of Decision 1999/396.
98. It is patent from the mandatory wording of the second paragraph of Article 2 of Decision 1999/396, which refers on this point to the first paragraph of the same article, that the Secretary-General, the Directors-General and the Heads of Service of the Commission are under an obligation to inform OLAF without delay, as soon as they become aware of ‘evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in disciplinary or, in appropriate cases, criminal proceedings …’. However, use of the term ‘presumption’ by the legislature necessarily implies that the authorities referred to in that provision make a minimal assessment of the relevance of the evidence of a possible irregularity of which they have become aware and thus confers on them a degree of discretion.
99. In order to give a ruling on the non‑contractual liability of the Community, it is necessary to determine whether, by forwarding to OLAF, by memorandum of 6 November 2002, the evidence of which he had become aware and which gave rise to a presumption that there were irregularities of the kind referred to in the first paragraph of Article 2 of Decision 1999/396, the Director-General of the DG ‘Press and Communication’ showed a manifest and grave disregard of the limits of his discretion (see, by analogy, Case T‑309/03 Camós Grau
v Commission
[2006] ECR II‑1173, paragraph 104).
100. In the present case, it must be held that there existed at the material time a body of evidence which justified the Director-General of the DG ‘Press and Communication’ referring to OLAF the information of which he had become aware.
101. First, the audit report of 27 November 2000 and the memorandum of the additional inspection of the following 6 December revealed that there might be fictitious projects within the Maison de l’Europe d’Avignon et de Vaucluse.
102. Secondly, the professional relations of the applicant and the president of the Maison de l’Europe d’Avignon et de Vaucluse, Mr P., who was suspected to be behind the fraud observed in the management of that Maison de l’Europe called for scrutiny; on that point, it is appropriate to recall the equivocal reaction of the applicant to the warnings coming from the Commission’s Representation in Marseille and in particular his own statements, to the effect that the Maison de l’Europe d’Avignon et de Vaucluse was ‘known for its professionalism’, had ‘an unquestioned authority in its area and [was] capable of successfully seeing through significant projects, having welcomed on occasions in the past several members of the Commission’ (see the memorandum for the attention of Mr C. dated 4 March 2002, signed by the applicant, and the memorandum for the attention of Mr C. dated 19 April 2002, unsigned, on the headed paper of the Commission’s Representation in France, both produced by the Commission at the request of the Tribunal by way of measures for the organisation of the procedure).
103. Lastly, the Director-General of the DG ‘Press and Communication’ had received from officials of his staff who wished to remain anonymous but whom he declared to know well, precise and detailed accusations of irregularities concerning inter alia the relations of the applicant and the president of the Maison de l’Europe d’Avignon et de Vaucluse, the allocation of subsidies for fictitious projects within that Maison de l’Europe, the management of the Economic Interest Group Sources d’Europe, and instances of favouritism in relation to procurement.
104. Taking account of all of those circumstances, the Director-General of the DG ‘Press and Communication’ might reasonably have considered that he was obliged to inform OLAF without delay of the evidence of which he had become aware, so that OLAF could carry out an investigation which was the only way of establishing whether the allegations of fraud were well founded.
105. The Director-General of the DG ‘Press and Communication’ therefore did not disregard the limits on his discretion by forwarding to OLAF, by memorandum of 6 November 2002, the evidence of which he had become aware and which did give rise to the presumption that there had possibly occurred irregularities of the kind referred to in the first paragraph of Article 2 of Decision 1999/396.
–  Malfunctions found in the Commission’s internal communication system
106. OLAF’s report revealed malfunctions in the Commission’s internal communication system, capable of having adverse consequences for the applicant.
107. A memorandum of 6 December 2000, relating to the inspections by way of supplement to the audit report of 27 November 2000 and in which there was mention of the risk of fictitious projects within the Maison de l’Europe d’Avignon et de Vaucluse, was not sent to the Commission’s Representation in Paris by the staff of the DG ‘Press and Communication’ in Brussels. According to OLAF’s report, ‘[t]he fact that the head office did not send to the [R]epresentation the additional inspection memorandum of 6 December 2000 therefore indirectly contributed to increasing OLAF’s suspicions of the [applicant and his deputy]’.
108. Moreover, the Director-General of the DG ‘Education and Culture’ and the Head of the ‘Press and Communication’ department, in their jointly signed memorandum of 21 March 2001, had stated that at the same time as they were informing the Director‑General of OLAF via that memorandum, they were also inviting the Head of the Commission’s Representation in France and the Head of the unit who had responsibility for the Maisons de l’Europe and the Info-Points Europe to ‘report’ any information which they might be aware of and which might shed light on the case. For a reason which has not been explained by the Commission, such an invitation was never made to the applicant. OLAF’s final investigation report states that ‘instead of that common report which was expected by OLAF as important additional information for the carrying out of its external investigation, the DG “Press and Communication” forwarded to [it] in November 2001 two confidential memoranda drafted and signed by the Representation [of the Commission in] Paris but also expressing the point of view of the ‘Press’ unit [of that DG]’.
109. However, even though it may be true that those malfunctions in the Commission’s internal communication system might initially have unjustifiably heightened OLAF’s suspicions of the applicant, there existed at the material time a body of other significant circumstantial evidence which, taken on its own, justified the opening of an investigation.
110. First, the explicit accusations received by the Director-General of the DG ‘Press and Communication’ coming from certain officials contained precise and detailed allegations of fraud. Secondly, the audit report of 27 November 2000 and the additional inspection memorandum of the following 6 December revealed that there were accounting deficiencies and a risk of fictitious projects within the Maison de l’Europe d’Avignon et de Vaucluse.
111. This being so, the malfunctions found in the Commission’s internal communication system had no determinative link of cause and effect with the opening of OLAF’s investigation. Accordingly, they are not capable of giving rise to a non-contractual liability on the part of the Commission for wrongful acts in the performance of duties.
112. It follows that the third plea in law must be rejected as unfounded.
b) The first plea in law: the unlawful and unjustified decision to reassign the applicant to Brussels
Arguments of the parties
113. In this plea in law the applicant complains of both the adoption and the manner of implementation of the decision of 19 November 2002 to reassign him immediately to Brussels. In his opinion the adoption by the Commission of that decision constituted a serious wrongful act which was vitiated by irregularity on several grounds: the reasons were not adequately stated, it was not taken in the interest of the service, it was disproportionate in comparison with the alleged facts and it amounted to a penalty which violated the presumption of innocence. In addition the applicant contended that the Commission failed in its duty to have regard for his welfare when taking the decision of 21 January 2003 reassigning him back to the Representation in Paris. In his reply the applicant also maintained that the evidence in the case-file cumulatively demonstrated an intention to cause harm on the part of the Commission, by way of response to the Commission’s argument that the only circumstance that could conceivably be constitutive of a wrongful act in the performance of duties such as to entail liability to make compensation was an intention to cause harm, and its denial that in the present case there had been such an intention. At the hearing, however, the applicant stated that he was withdrawing his allegations as to the existence of any such intention, although he considered that a serious wrongful act had been committed when the contested measure of reassignment had been adopted.
114. First, the applicant claims that the decision to reassign him to Brussels was a measure adversely affecting him and that, accordingly, the reasons for it should have been stated, in accordance with the second paragraph of Article 25 of the Staff Regulations. The mere mention in the memorandum of 19 November 2002 accompanying the decision to reassign him of the reassignment having been decided upon in order to ‘facilitate the proper conduct of the investigation’, did not constitute an adequate statement of reasons. The Commission’s argument that the decision was taken in circumstances which were known to the applicant was misconceived in the present case, since OLAF’s final investigation report confirmed that the departments of the DG ‘Press and Communication’ based in Brussels had kept him in ignorance of certain matters known about the Info-Point Europe d’Avignon.
115. Secondly, the applicant maintains that the reassignment to which he was subject was a complete departure from the normal rules of rotation and could not therefore be likened to a simple reassignment in the interest of the service.
116. Thirdly, the applicant claims that that reassignment was disproportionate in comparison with the facts alleged. In particular, he states that the proposal which he had made to the Commission to take leave for the duration of OLAF’s investigation would have been equally consistent with the interest of the service, while better safeguarding his interests.
117. Fourthly, the applicant observes that reassignment based entirely on a presumed involvement in a case of fraud was compatible neither with the principle of the presumption of innocence, nor with Regulation No 1073/1999, in the preamble of which recital 10 provides that investigations must be conducted ‘while respecting the Staff Regulations … and with full respect for human rights and fundamental freedoms, in particular the principle of fairness, for the right of persons involved to express their views on the facts concerning them’. He submits that his abrupt reassignment clearly amounts to a penalty out of any proportion to the facts alleged, since it was only belatedly presented as being precautionary.
118. Lastly, the applicant complains that the Commission failed to have regard for his welfare at the time of his resumption of duties in Paris and when OLAF’s final investigation report was delivered. He claims that the decision to reassign him to the post of Head of the Commission’s Representation in Paris, announced publicly on 20 December 2002 at a press conference given by the Commission’s spokesman, was not signed by the Director‑General of the DG ‘Press and Communication’ until 20 January 2003. In addition that reassignment was not given adequate publicity, since at that press conference the Commission spokesman was careful to state that the investigation was not concluded, and requested that the journalists exercise caution. Lastly, the applicant submits that the brief declaration of sympathy on 17 June 2003 by the Commission’s spokesman, prompted fortuitously by a journalist’s question, cannot compensate for the failure to publish a press release following delivery of OLAF’s final investigation report, which should in fairness have been published as the counterweight to the release of 21 November 2002.
119. The Commission denies any wrongful act and considers that adequate reasons for the decision to reassign the applicant to Brussels were stated, that it was taken in the interest of the service, that it was proportionate in relation to the facts alleged, that it was a precautionary measure intended to ensure that the investigation was conducted properly, and that it could not be regarded as infringing the principle of the presumption of innocence.
120. The Commission maintains that the decision was taken on the basis of the first paragraph of Article 7(1) of the Staff Regulations, as worded at the material time, whereby the appointing authority, acting solely in the interest of the service, was empowered to assign each official by appointment or transfer to a post in his category and grade. As regards the argument that the applicant’s reassignment departed completely from the normal rules of rotation, the Commission’s response is that the situation did not lend itself to normal rotation. Since the situation in the present case was exceptional, the response called for was also exceptional.
121. As regards the complaint that the measure reassigning the applicant to Brussels infringed the principle of proportionality, the Commission contended, at the hearing, that no other measure could have been contemplated in the present case. In relation more specifically to the argument that acceptance of the applicant’s proposal to ‘put himself on unpaid leave’ for the duration of the investigation would have been a measure equally consistent with the interest of the service, while better safeguarding the interests of the person concerned, the Commission observed at the hearing that Article 62 of the Staff Regulations prohibits an official from waiving his entitlement to the remuneration carried by his step and grade. It also added that to entrust the applicant with a mission to Brussels was not in the present case a solution which could have been contemplated either. A mission is typically short-term. When the measure reassigning the applicant to Brussels was adopted, it was impossible to anticipate how long OLAF’s investigation would take. Moreover, a mission would have had the disadvantage of requiring the institution to bear additional expenses.
122. As regards the complaint that the principle of the presumption of innocence was violated, the Commission contends that the applicant’s argument has no factual basis, in as much as the Director-General of the DG ‘Press and Communication’ and the Commission’s spokesman reiterated on many occasions that the official concerned continued to enjoy the benefit of that principle. It also maintains that that argument has no basis in law, referring to Article 23 of Annex IX of the Staff Regulations which provides that an official may be suspended from his duties, pending conclusion of disciplinary proceedings. Such a suspension does not constitute a penalty but a purely precautionary measure which does not infringe the presumption of innocence. What holds good for a measure of suspension must apply a fortiori to a mere reassignment, without suspension, for the short duration of an investigation. In the opinion of the Commission, the presumption of innocence cannot prevent adoption of precautionary measures intended to ensure the objective, effective and serene conduct of an investigation.
123. More generally, the Commission also points out that an administrative decision must be judged solely according to the circumstances known at the material time. At the time of the facts at issue, there was no reason why the Director-General of the DG ‘Press and Communication’ should not follow OLAF’s recommendations that the applicant be kept away from the Commission’s Representation in Paris for the duration of the investigation taking place there.
Findings of the Court
124. In the argument set out as part of his first plea in law, the applicant puts forward, in essence, three complaints. The first two complaints are directed against the reassignment decision of 19 November 2002 and allege, first, that there was no adequate statement of its grounds and, second, that the decision was vitiated by non-observance of the interest of the service, the principle of proportionality and the principle of respect for the presumption of innocence. As regards the third complaint, the applicant maintains that the Commission failed in its duty to have regard for his welfare, first, when it re-established him in his previous duties in Paris and, secondly, when OLAF’s final investigation report was delivered. The complaint as to the failure to have regard for his welfare when OLAF’s final investigation report was delivered will be dealt with as part of the second plea in law.
– The complaint that the grounds for the reassignment decision to Brussels were not adequately stated
125. To the extent that the Commission has queried the admissibility of the action for damages as a whole, on the ground that the applicant had not challenged the reassignment decision as adversely affecting him in accordance with the procedure laid down in Articles 90 and 91 of the Staff Regulations, the Commission must be regarded as disputing the admissibility of the complaint directed against that reassignment decision.
126. However, in the present case it is not necessary to give a ruling on the admissibility of the complaint that there is no adequate statement of reasons, since in any event the complaint is unfounded.
127. According to settled case‑law, the obligation to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations, which merely reiterates the general obligation laid down in Article 253 EC, is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the measure is well founded and whether it is it is appropriate to bring proceedings before the Tribunal and, secondly, to enable the Tribunal to review the legality of the measure. It follows that the obligation to state reasons, as thus enunciated, constitutes an essential principle of Community law which may be derogated from only for compelling reasons (Case T‑1/90 Pérez-Mínguez Casariego
v Commission
[1991] ECR II‑143, paragraph 73, and Case T‑281/01 Huygens
v Commission
[2004] ECR‑SC I‑A‑203 and II‑903, paragraph 105).
128. The extent of the obligation to state reasons must, in each case, be assessed in relation to the actual circumstances, in particular the content of the measure, the nature of the grounds relied on and the possible interest of the recipient in receiving explanations (Case T‑135/00 Morello
v Commission
[2002] ECR‑SC I‑A‑265 and II‑1313, paragraph 28). In particular, grounds for a decision are sufficiently stated when the measure has been taken in circumstances known to the official concerned, which enable him to apprehend the scope of a measure taken in his regard (Case T‑36/93 Ojha
v Commission
[1995] ECR‑SC I‑A‑161 and II‑497, paragraph 60, and Case T‑198/02 N
v Commission
[2004] ECR‑SC I‑A‑115 and II‑507, paragraph 70).
129. The case-law also makes clear that a decision which involves a transfer of an official against his will constitutes a measure adversely affecting him within the meaning of the second paragraph of Article 25 of the Staff Regulations and that the grounds must therefore be stated ( Ojha
v Commission, paragraph 42, and Case T‑129/98 Sabbioni
v Commission
[1999] ECR‑SC I‑A‑223 and II‑1139, paragraph 28).
130. In the present case the memorandum of 19 November 2002 informing the applicant of the decision to reassign him to Brussels stated that that decision had been taken in the interest of the service and in order to facilitate the proper conduct of the investigation which OLAF had just opened into the operation of the Commission’s Representation in Paris. That memorandum also explained to the applicant that details of his assignment would be communicated to him in the next few days.
131. Prior to communication of the decision of 19 November 2002, the Director-General of the DG ‘Press and Communication’ had informed the applicant of the opening of OLAF’s investigation, by a memorandum of 15 November 2002, and a meeting between them took place in Brussels on 18 November.
132. It follows that, by stating in the memorandum of 19 November 2002 that the reassignment decision had been taken to facilitate the proper conduct of the investigation, against a background of which the applicant had been informed and which had been discussed with him at a meeting, the appointing authority gave to the applicant sufficient information, first, to allow him to assess whether the decision was justified and, secondly, to enable the Community courts to review the legality of the decision.
133. The complaint that the grounds for the reassignment decision of 19 November 2002 were not adequately stated is thus unfounded.
– The complaints of non-observance of the interest of the service, the principle of pro portionality and the principle of the presumption of innocence
134. As with the complaint that the grounds of the decision of 19 November were not adequately stated, it is unnecessary to give a ruling on the implicit challenge, by the Commission, to the admissibility of these complaints, since they are in any event without foundation.
135. It must firstly be pointed out that while it is true that the administration has every interest in assigning officials in the light of their abilities and personal preferences, it cannot be said that officials thereby acquire an entitlement to exercise or to retain specific duties (Case T‑100/00 Campoli
v Commission, [2001] ECR‑SC I‑A‑71 and II‑347, paragraph 71). Accordingly, although the Staff Regulations, in particular Article 7, do not expressly provide for the possibility of ‘reassigning’ an official, it is clear from settled case-law that the Community institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition, however, that that assignment is carried out in the interest of the service and with respect for the principle of assignment to an equivalent post (Case 19/87 Hecq
v Commission
[1988] ECR 1681, and Case C‑294/95 P Ojha
v Commission
[1996] ECR I‑5863).
136. Given the extent of the discretion which the institutions have in evaluating the interest of the service, the Tribunal must restrict itself to determining whether the appointing authority has remained within limits which are not open to criticism and has not exercised its discretion in a manner which is manifestly incorrect (Case T‑223/99 Dejaiffe
v OHIM
[2000] ECR‑SC I‑A‑277 and II‑1267, paragraph 53, and Case T‑325/02 Soubies
v Commission
[2004] ECR‑SC I‑A‑241 and II‑1067, paragraph 50).
137. It is also settled case-law that, while the administration’s duty to have regard for the welfare of officials reflects a balance between reciprocal rights and obligations created by the Staff Regulations for relations between the public authority and public service employees, the requirements of that duty cannot prevent the appointing authority from adopting the measures it believes necessary in the interest of the service, since the filling of each post must be based primarily on the interest of the service (Case T‑80/92 Turner
v Commission
[1993] ECR II‑1465, paragraph 77, and Case T‑236/02 Marcuccio
v Commission
[2005] ECR-SC I‑A‑365 and II‑1621, paragraph 129).
138. It is in the light of the above principles and exercising the restricted power of review which they confer on the Tribunal that the applicant’s complaints of non-observance of the interest of the service, the principle of proportionality and the principle of the presumption of innocence should be examined.
139. As regards the complaint that the reassignment decision of 19 November 2002 was contrary to the interest of the service, it is to be noted, as regards the factual background to the present case, that the internal investigation opened by OLAF related to possible irregularities within the DG ‘Press and Communication’, more particularly in the Commission’s Representation in Paris, and that the applicant occupied a top management post within that Representation. In addition, his reassignment for the duration of the investigation was the result of a recommendation of the Director‑General of OLAF that he, and his deputy, should be denied any access to the Representation’s offices in that period, in order to ensure the proper conduct of the investigation.
140. It has previously been held that the need to ensure the serenity and proper conduct of investigations of that type may justify a decision to reassign pending their outcome (Case T‑339/03 Clotuche
v Commission
[2007] ECR II‑0000, paragraph 69, and Joined Cases T‑118/04 and T‑134/04 Caló
v Commission
[2007] ECR II‑0000, paragraph 113).
141. The objective pursued by the measure challenged by the applicant therefore satisfies an interest of the service. It remains however to be determined whether the means used to attain that legitimate objective complied with the requirements of the principle of proportionality.
142. On that point, taking account of the broad discretion which the institution has to evaluate the interest of the service, it cannot be held that the reassignment of the applicant to Brussels for the duration of OLAF’s investigation within the Commission’s Representation in Paris was manifestly disproportionate in relation to the objective pursued by the measure, namely to avoid any risk of conflict of interest and to ensure that the investigation was conducted properly. The fact that other options, such as accepting the applicant’s proposal to place himself on leave or sending him on a mission, might have been equally consistent with the interest of the service while better safeguarding the interests of the person concerned, is not sufficient in itself to render the disputed measure of reassignment disproportionate.
143. As regards the complaint that the principle of the presumption of innocence was infringed, it must be held that the reassignment of the applicant to Brussels was not intended to constitute a penalty but was a precautionary measure, the duration of which was restricted to that of OLAF’s investigation in the premises of the Commission’s Representation in Paris.
144. In addition it must be borne in mind that, according to the case-law, internal or external relationship difficulties, when they cause tensions which are prejudicial to the proper functioning of the service, may justify the reassignment of an official in the interest of the service. Such a measure may even be taken regardless of who is responsible for the incidents at issue (see, by analogy, Case 124/78 List
v Commission
[1979] ECR 2499, paragraph 13, and Ojha
v Commission, paragraph 41). If the interest of the service justifies the transfer of an official to bring to an end a purely internal conflict which disturbs the proper functioning of the service, without any responsibility being shown to attach to the official who is reassigned, that same interest must also be taken to justify adoption of a measure intended to ensure the serene conduct of an investigation, likewise where no responsibility is attributed to the official reassigned in relation to the matters which are under investigation ( Clotuche
v Commission, paragraph 71, and Caló
v Commission, paragraph 109).
145. Lastly, it should also be pointed out that the legality of a particular measure is to be assessed in relation to the elements of fact and law existing at the date when the measure was adopted (Joined Cases T‑124/01 and T‑320/01 Del Vaglio
v Commission
[2003] ECR‑SC I‑A‑157 and II‑767, paragraph 77). Accordingly, information which was revealed by the investigation after adoption of the reassignment decision and which exonerated the applicant cannot affect the legality of that decision, given that the very purpose of the investigation and of the measures taken to ensure its proper and serene conduct was to determine whether the initial suspicions were warranted.
146. In those circumstances the Commission cannot be held to have exceeded the limits of the broad discretion which it enjoys in this area when it concluded that the proper and serene conduct of OLAF’s investigation, including the taking of statements from members of staff of the Commission’s Representation in Paris, would be best ensured if the applicant relinquished his duties for the duration of that investigation into that Representation. Accordingly, since the Commission had determined that the status quo
could be prejudicial to the proper conduct of the enquiries decided upon by OLAF, it was entitled to consider, in the exercise of its broad discretion, that the interest of the service justified the reassignment of the applicant (see, to that effect, Case T‑51/01 Fronia
v Commission
[2002] ECR‑SC I‑A‑43 and II‑187, paragraph 55, Clotuche
v Commission, paragraph 76, and Caló
v Commission, paragraph 114).
147. The complaints that the reassignment decision at issue violated the interests of the service, the principle of proportionality and the principle of the presumption of innocence are accordingly unfounded.
– The complaint of infringement of the duty to have regard for the applicant’s welfare at the time of his re-establishment in his duties in Paris
148. As regards the non-decisional conduct of the Commission relating to the arrangements for the applicant’s re-establishment in his duties at the Representation in Paris, it is to be noted that it was through the press that the applicant first learned that the precautionary measure of his reassignment had been lifted. The fact there was no longer anything to prevent the lifting of that measure was publicly announced at a press conference given by Mr F., as the Commission’s spokesman, on 20 December 2002, before it was communicated personally to the applicant on 6 January 2003, at a meeting Mr F. agreed to have with him, on this occasion as Director‑General of the DG ‘Press and Communication’. In the interim the French press had reported the lifting of that precautionary measure. The decision reassigning the applicant to his duties at the Commission’s Representation in Paris was not signed by the Director‑General of the DG ‘Press and Communication’ until 20 January 2003, with retroactive effect from 19 December 2002. The justification offered by the Commission amounts to an assertion that the applicant had only to read the press to learn that there was no longer anything to prevent the lifting by the appointing authority of the precautionary measure affecting him.
149. By acting in this way, the Commission disregarded the legitimate interest of the applicant in being informed directly by the appointing authority, and not by the press, of a crucial development in his professional situation. Its conduct did not therefore respect the balance of reciprocal rights and obligations established by the Staff Regulations in relations between the public authority and public service employees, and, consequently, entails an infringement of the Commission’s duty to have regard for the welfare of the applicant.
150. It follows that the first plea in law must be upheld in so far as it relates to the complaint that there was an infringement of the duty to have regard for the applicant’s welfare at the time of his re‑establishment in his duties in Paris, and otherwise must be dismissed as unfounded.
c) The second plea in law, that the confidentiality of the investigation was not observed
Arguments of the parties
151. The applicant considers that the Commission violated the principle that OLAF’s investigations are confidential and gave inappropriate publicity to his reassignment, by its press release of 21 November 2002 and the statements of its spokesman at the press conference of the same date. He submits, further, that the spokesman, at the same press conference, made comments in public which were liable to damage his reputation.
152. According to the applicant, the press release of 21 November 2002, issued to several hundred journalists, was unprecedented and enabled the recipients very quickly to identify the officials concerned, given the prominence of their position. That media coverage was out of the ordinary and infringed the principle laid down in Article 8(2) of Regulation No 1073/1999 that OLAF’s investigations are confidential.
153. The applicant also claims that the spokesman of the Commission, by incorrectly asserting, at the Press conference of 21 November 2002, that management of the relevant subsidies to Maisons de l’Europe was under the control of the Representations, broadcast a libellous and defamatory statement, suggesting that he, as Head of the Commission’s Representation in Paris, was responsible for, if not an accomplice in, the alleged frauds.
154. According to the applicant, those various briefings led to the publication of an article which was very damaging for him, in the newspaper Le Monde
of 23 November 2002.
155. The Commission disputes that it violated the principle that OLAF’s investigations are confidential and contends that its representatives did not at any time disclose the name of the applicant, but that the journalists acted on their own initiative. The Commission explains that the press release of 21 November 2002 was issued as much in the interest of the applicant in order to cut short possible speculation and rumours likely to arise because of the interest which journalists were showing in the facts at issue.
156. The Commission also denies that any comments were made which were damaging to the applicant’s reputation and adds that its spokesman at no time made the incorrect claim at the press conference of 21 November 2002 that the applicant was responsible for the entirety of the expenses incurred in France, and, in particular, for those relating to Maison de l’Europe d’Avignon et de Vaucluse.
157. More generally, the Commission submits that its representatives cannot render the institution liable by making statements on facts in the public domain which are the subject of questions, provided that they do so with all appropriate reservations, which was the case at the press conferences of November and December 2002.
158. Lastly, the Commission states that the applicant had the benefit of adequate publicity both at the time of his reassignment to Paris and following OLAF’s final investigation report, by means of the press conferences of 20 December 2002 and 17 June 2003.
Findings of the Court
159. As part of the argument set out in the second plea in law, the applicant puts forward, in essence, three complaints, respectively that the obligation to keep OLAF’s investigations confidential was infringed, that the publicity given to his reassignment was inappropriate and that comments were made which were libellous and defamatory of him by the Commission’s spokesman at the press conference of 21 November 2002. As part of the first plea in law, the applicant submits, in addition, that the Commission failed in its duty to have regard for his welfare when OLAF’s final investigation report was delivered.
160. In view of their close connection, it is appropriate to examine together the complaints that the obligation to keep OLAF’s investigations confidential was not complied with, that the publicity given to the applicant’s reassignment was inappropriate, and that there was an infringement of the duty to have regard for his welfare when OLAF’s final investigation report was delivered.
– The complaints that the obligation to keep OLAF’s investigations confidential was not complied with, that the publicity given to the applicant’s reassignment was inappropriate and that there was an infringement of the duty to have regard for his welfare when OLAF’s final investigation report was delivered
161. Article 8(2) of Regulation No 1073/1999 enounces in broad terms a rule that OLAF investigations should be confidential. That rule is to be interpreted in its context and, in particular, in light of recital 10 in the preamble to the same regulation, which provides that OLAF’s investigations must be conducted with full respect for fundamental freedoms. Accordingly, that rule should not be interpreted as serving solely to protect the confidentiality of information obtained for the purpose of revealing the truth, but should be regarded as also having the objective of safeguarding the presumption of innocence of officials or other servants affected by those investigations, and therefore their reputation.
162. A further point to be noted is that the proper conduct of an investigation may entail that its detailed arrangements remain confidential and that persons targeted by the enquiries be kept in ignorance of its very existence. The first paragraph of Article 4 of Decision 1999/396 thus provides that an official need not be informed of his possible involvement in the facts under investigation if that is likely to be harmful to the investigation. In addition to the specific protection guaranteed by Article 8(2) of Regulation No 1073/1999, both the principle of good administration and the duty to have regard for the official’s welfare, as well as the necessary respect for the powers conferred on an independent body such as OLAF for the purposes of an investigation, require the institution to which an official belongs to show the greatest prudence and restraint when giving any publicity to allegations or suspicions of fraud. Those considerations have even more weight, particularly in view of every individual’s right to the presumption of innocence, when no conclusion has yet emerged from an OLAF investigation.
163. The duty to have regard for the welfare of staff members implies that, when the competent authority takes a decision concerning the situation of an official, it should take into consideration all the various factors liable to affect its decision and that, when doing so, it should take into account not only the interest of the service but also the interests of the official concerned (Case T‑133/02 Chawdhry
v Commission
[2003] ECR‑SC I‑A‑329 and II‑1617, paragraph 107, and Case T‑48/01 Vainker
v Parliament
[2004] ECR‑SC I‑A‑51 and II‑197, paragraph 125).
164. The case-law makes clear that, if there are serious accusations reflecting on the professional integrity of an official, it is incumbent on the administration not to give any publicity to the accusations beyond what is strictly necessary (Case 53/72 Guillot
v Commission
[1974] ECR 791, paragraphs 3 to 5). It has also been held that, by virtue of its duty to have due regard for the welfare of officials and of the principle of sound administration, the institution in question is required to prevent an official from becoming the subject of statements which might tarnish his professional integrity. As a general rule, therefore, the administration must both avoid giving the press information which might harm the of ficial in question and take all necessary measures to prevent any form of dissemination within the institution of information which might be defamatory of that official (see order of the President of the Court of First Instance of 12 December 1995 in Case T‑203/95 R Connolly
v Commission
[1995] ECR II‑2919, paragraph 35).
165. That being said, it has to be recognised that a culture of accountability has grown up within the Community institutions, responding in particular to the concern of the public to be informed and assured that malfunctions and frauds are identified and, as appropriate, duly eliminated and punished. The consequence of that requirement is that officials and other servants who hold posts of responsibility within an administration such as the Commission must take into account the possible existence of a justified need to communicate a degree of information to the public.
166. It must accordingly be pointed out that, as soon as an investigation based on suspicions of fraud is opened, there is likely to be some damage to reputation, particularly if the investigation is the subject of publicity outside the institution. Exoneration of the person concerned on conclusion of an investigation which has been publicised in such a way is rarely sufficient to erase entirely the damage to reputation which the person concerned has suffered. As concerns the non-contractual liability of the Community, compensation is due for the damage engendered by the opening and conduct of an investigation only if the institution in question has committed a wrongful act engaging its liability, regrettable as that may be for the individual who is ultimately exonerated on conclusion of that investigation. Furthermore, when, in addition to such non-material harm, an occupational disease within the meaning of Article 73 of the Staff Regulations is a result of an investigation, that provision allows the official to obtain compensation in the form of a lump sum, without it being necessary to prove any fault on the part of the institution.
167. Given that there may be a justified need to communicate a degree of information to the public, the duty incumbent on the administration to have regard for the welfare of its servants is greater. This imposition of a heightened duty on the administration to have regard for the welfare of its servants in the special context of an investigation is all the more necessary in circumstances where the professional integrity or reputation of individuals is liable to be publicly put in question by the media, thereby aggravating the damage already suffered by them, to point of making such damage irreparable.
168. In the light of the foregoing considerations it is necessary to examine the publicity measures which the Commission employed in relation to the opening of OLAF’s investigation and the reassignment of the applicant.
169. In the present case, since the appointing authority had chosen, in the legitimate exercise of its discretion, to reassign the applicant to Brussels for the duration of the investigation, the institution was entitled to consider that the interest of the service justified adoption of measures to ensure that the public was informed of that reassignment. Taking into account, first, the fact that the applicant was in regular contact with the press because of his duties as Head of the Commission’s Representation in Paris and, secondly, the interest already shown by journalists in the suspicions of irregularities within the Maison de l’Europe d’Avignon et de Vaucluse, some of them would inevitably have noticed his absence from that Representation if no information had been given by the institution. Recognition of that absence would inevitably have fed speculation of various kinds on the part of the press, which might harm both the interests of the applicant and those of the Commission.
170. That inevitable loss of confidentiality concerning not only the reassignment decision but also the applicant’s identity, since he was obviously one of the two officials affected by that measure, was the consequence of the nature of the post occupied by the applicant and not of a choice by the Commission, and generated an obvious interest of the service in employing appropriate publicity to avoid rumours which would be damaging both for the two officials and for the institution. Accordingly, in the particular circumstances of the present case, neither the disclosure to the press that there was an OLAF investigation nor the disclosure that the two officials concerned had been reassigned could, in themselves, be regarded as infringing the mandatory requirements of confidentiality appropriate to OLAF investigations.
171. It remains however to be determined whether the publicity given to the matter by the Commission remained within the limits of what was justified in the interest of the service.
172. The information which was given to the press by the Commission during OLAF’s investigation cannot be found to have struck a fair balance between the interests of the applicant and those of the institution. While the Commission’s initial objective of cutting short the rumours and speculations which would inevitably have arisen had no information at all been given on the applicant’s reassignment was justified, the publicity given by the Commission in the period from the opening of OLAF’s investigation until the presentation of their final investigation report appears open to criticism in several respects.
173. To begin with, the initiative taken by the Commission in issuing its own press release, in addition to the release issued by OLAF announcing the opening of the investigation, constitutes a practice which is relatively exceptional, as was stated by the Commission at the hearing in response to a question from the Tribunal. That quite unusual choice, which could not but attract attention to the facts at issue, consequently required the Commission to pay particular attention to the interests of the applicant and to put in place specific safeguards for the protection of his interests.
174. Secondly, the wording of the press release issued by the Commission suggested that the two persons concerned who were reassigned to Brussels were personally involved in the possible irregularities which were to be investigated by OLAF. Even though the officials in question were not named in that press release, the context allowed them easily to be identified by any reasonably well-informed journalist. Accordingly, the fact relied on by the Commission, that it did not mention the names of the officials in question, has no bearing on that point.
175. Lastly, there is an inaccuracy in the press release. Information is given there that the Commission has asked OLAF to consider whether an investigation should be opened, whereas at the date of issue of the release, on 21 November 2002, the Commission knew full well that an investigation was already under way, since the investigation had been opened on 15 November 2002.
176. It is true that at the press conference of 21 November 2002 the Commission’s spokesman attached certain reservations to his statement. In particular he took the precaution of stating that no one was accused of anything and that the decisions of reassignment to another department within the same Directorate General had been taken in order to avoid any conflict of interest and to ensure the proper conduct of the investigation. However, the fact that what the spokesman said at that press conference was relatively circumspect was not sufficient to erase the damage done to the applicant when the press release was issued on 21 November 2002, which implicated the two officials and provoked the subsequent questions of journalists.
177. It is also to be noted that the Commission did not on its own initiative give any publicity to OLAF’s final investigation report, dated 6 May 2003, the conclusions of which exonerated the applicant as regards the allegations which had led to the opening of that investigation. The only public statement of the Commission’s position following that report was in response to a question put by a journalist, on 17 June 2003, in the course of the regular press conference given by the Commission’s spokesman, who, when the question was put, said that both he and the institution had every sympathy for the applicant.
178. The taking of that stance, relatively belatedly, is not comparable, either in the manner or impact of its presentation, to the publicity which had been given to the applicant’s reassignment against the background of the opening of the investigation. There is accordingly a clear disparity between the publicity given to the applicant’s reassignment against the background of the opening of the investigation and that given following delivery of OLAF’s final investigation report. The high level of publicity given by the Commission to the applicant’s reassignment, which had an obviously injurious effect on his reputation, was not offset by any remedial action on the part of the Commission when OLAF published its final investigation report.
179. The argument submitted by the Commission, that the applicant’s name was cleared at the press conference of 20 December 2002, during which the Commission’s spokesman publicly announced the lifting of the precautionary measure of reassignment affecting the person concerned, is not such as to alter that conclusion. In fact, the investigation was still under way on that date and the suspicions of fraud, which the press had been informed of in the press release of 21 November 2002, therefore remained extant. Contrary to the submission of the Commission, the announcement of the lifting of the precautionary measure affecting the applicant cannot be regarded as amounting to clearing his name.
180. Accordingly, by issuing on its own initiative a press release the content of which suggested that the applicant, who was reassigned to Brussels, was personally involved in possible irregularities which were being investigated by OLAF and by failing to take corrective measures which might offset the abnormal negative publicity created by dissemination of that press release, the Commission did not adequately take into account the interests of the applicant as distinct from its own interests and did not reduce to the strict minimum the damage done to him by the opening of the investigation. Accordingly, the Commission infringed its duty have regard for the welfare of its servants.
– The complaint that comments were libellous and defamatory
181. As regards the complaint that, by asserting at the press conference of 21 November 2002, that the management of subsidies granted by the Commission to the Maisons de l’Europe was the responsibility of the Representations, the spokesman of the Commission broadcast an assertion which was libellous and defamatory, it should be pointed out that, even though such an assertion was in some respects inaccurate, the spokesman expressed himself relatively circumspectly, mentioning in particular that management of those subsidies was the responsibility of several parties. In addition, account must be taken of the fact that the statements in question were oral, which means that they cannot be expected to be as detailed and nuanced as written statements. Those declarations therefore do not have the sense alleged by the applicant.
182. The complaint that the Commission’s spokesman made comments which were libellous and defamatory is accordingly unfounded.
d) The Tribunal’s conclusion on whether the Commission committed a wrongful act
183. The Tribunal therefore comes to the conclusion that first, by disregarding the applicant’s legitimate interest to be informed directly by the appointing authority, and not through the press, of his reinstatement in his duties in Paris, and, secondly, by giving to the applicant’s reassignment against the background of the OLAF investigation a high degree of publicity without adequately compensating for the consequent damage caused to the applicant by that unwonted publicity, the Commission infringed its duty to have regard for the welfare of its servants and committed wrongful acts in the performance of its duties which are such as to give rise to its liability.
184. This being so, it is necessary to examine whether the alleged harm is real and whether there is a causal link between the acts determined by the Tribunal to be wrongful and the harm suffered.
2. The damage
a) Arguments of the parties
185. According to the applicant, the wrongful acts committed by the Commission were the cause of his suffering a seriously traumatic experience, resulting in a deep and chronic depression which led to his retirement on grounds of invalidity from 1 May 2004. Because of that retirement on grounds of invalidity, he suffered material damage, equivalent to the difference between the amount of his basic salary and the amount of his invalidity allowance, for the period from the date of his incapacitation until the date on which he was able to claim a retirement pension, that is for a period of 55 months. His material damage amounts therefore to a sum of EUR 264 000.
186. In addition, the wrongful acts of the Commission caused serious damage to his honour and reputation and ruined the final years of his career. He accordingly sustained non-material prejudice, the extent of which was greatly increased by the appointing authority’s refusal to accept that it had committed wrongful acts, and it is appropriate to quantify that damage at a sum of EUR 500 000.
187. During the written procedure, the Commission observed that the harm suffered by the applicant and the causal link which he alleged with the acts claimed to be wrongful could not be examined until the proceedings brought under Article 73 of the Staff Regulations had been brought to a conclusion. The Commission stated in particular that the harm suffered by the applicant had to be assessed by taking into account the benefits received under that provision, in accordance with Lucaccioni
v Commission .
188. In its observations submitted by fax to the Registry of the Tribunal on 10 November 2006 (the original being lodged on the following 13 November), following the applicant’s abandonment of the proceedings brought by him under Article 73 of the Staff Regulations, the Commission argues that that abandonment cannot alter the scope of the dispute. The Commission submits that damage must be assessed objectively and is not a matter which falls within the power of the parties to determine. Consequently, the applicant cannot, by that abandonment, increase the extent of the damages which he seeks by way of compensation for the prejudice he has sustained. The Commission also observes that the applicant would be fully entitled to withdraw his abandonment and to apply for resumption of the proceedings brought by him under Article 73 of the Staff Regulations.
189. In its defence the Commission contends, alternatively, that the sums claimed by the applicant under the head of non-material harm are excessive.
b) Findings of the Court
190. It is appropriate at the outset to point out that neither the material damage nor the non-material harm resulting from alleged wrongs not found by the Tribunal, in particular those relating to the Commission’s informing OLAF about the presumed irregularities at the Info-Point Europe d’Avignon and to the decision of reassignment to Brussels, can be taken into consideration.
191.
As regards the remaining heads of claim, the material damage and the non-material harm alleged by the applicant need to be distinguished.
Material damage
192. The applicant pleads material damage consisting in a loss of remuneration, consequent on his retirement on grounds of invalidity, as a result of the onset of disease which, when he brought proceedings under Article 73 of the Staff Regulations, he claimed to be occupational in origin.
193. However, it must be recalled that the Tribunal is not empowered to determine whether there is a causal link between an official’s conditions of service and an alleged disease. Article 19 of the insurance rules provides that the decision as to recognition of a disease as occupational is to be made by the appointing authority, on the basis of the conclusions issued by the doctor(s) appointed by the institutions and, if the official so requires, after consultation of the Medical Committee provided for in Article 23 of those rules. Article 12(1) of the insurance rules provides that, where an official sustains total permanent invalidity as a result of an accident or occupational disease, the lump sum provided for in Article 73(2)(b) of the Staff Regulations is to be paid to him, namely a lump sum equivalent to eight times the official’s annual basic salary, calculated on the basis of the monthly salaries received for the 12 months before the accident.
194. The system established in implementation of Article 73 of the Staff Regulations therefore provides for lump sum compensation in the event of accident or occupational disease, without it being necessary for the person concerned to prove any fault on the part of the institution. As made clear by the case-law, it is only when the compensation provided by the staff insurance scheme for the injury suffered by the official is insufficient that the official is entitled to apply for additional compensation (see, to that effect, Joined Cases 169/83 and 136/84 Leussink and Others
v Commission
[1986] ECR 2801, paragraph 13; Case C‑257/98 P Lucaccioni
v Commission
[1999] ECR I‑5251, paragraph 22; Case T‑165/95 Lucaccioni v Commission, paragraph 74; and Case T‑300/97 Latino
v Commission
[1999] ECR‑SC I‑A‑259 and II‑1263, paragraph 95).
195. It follows that the claims of the applicant seeking damages for the material damage allegedly suffered because of his disease and his consequent retirement on grounds of invalidity must be rejected.
196. That conclusion cannot be affected by the fact that the applicant has abandoned the proceedings brought by him under Article 73 of the Staff Regulations. That abandonment has no effect on the application of the rule of law that the recognition of a disease as occupational in origin falls within the competence of the appointing authority.
Non-material harm
197. The applicant claims that the wrongful acts committed by the Commission caused him non-material harm, which consists in particular in damage to his professional integrity and reputation and a chronic impairment of his health.
198. The first point to be made is that the objective of the proceedings provided for under Article 73 of the Staff Regulations is to provide compensation in the form of a lump sum for both material damage and non-material harm which are the result of occupational disease.
199. It follows that the claims of the applicant seeking compensation for the non-material harm he has suffered because of his disease and consequent retirement on grounds of invalidity must also be rejected.
200. In particular, the harm caused by the Commission’s infringement of its duty to have regard for the applicant’s welfare at the time of his reinstatement in his duties in Paris, as determined in paragraph 163 of this judgment, cannot give rise to liability within the present action for damages. Such an infringement of the duty to have regard for an official’s welfare must be held to have had as its sole consequence the likelihood of having placed the applicant in a situation of stress and anxiety and, thereby, of having caused or aggravated harm connected to his disease. It is precisely the proceedings provided for under Article 73 of the Staff Regulations which, in principle, enable compensation for harm of that kind.
201. On the other hand, the head of alleged non-material harm consisting in damage to the applicant’s honour and reputation is not connected to his disease and cannot be compensated for by means of a lump sum under Article 73 of the Staff Regulations.
202. Consequently, it is necessary to examine that aspect of the non-material harm pleaded by the applicant.
203. In that connection it should be recalled that the publicity which followed the opening of OLAF’s investigation suggested that the applicant was suspected of involvement in the irregularities and fraud which were to be investigated. Given that several articles published in the French press, which referred to the applicant by name, reported his reassignment against the background of that investigation and in the more general context of the suspected frauds within the Maison de l’Europe d’Avignon et de Vaucluse, the applicant suffered damage to his honour and to his professional reputation not only within the institution, but also more widely in the mind of the public. That damage was not remedied either by the Commission’s announcement of the lifting of the protective measure affecting him, or by the expression of sympathy by the Commission’s spokesman at the press conference of 17 June 2003.
204. Consequently, it falls to the Tribunal to examine whether there is a causal link between the wrongful acts of the administration in the performance of duties as established and that head of non-material harm suffered by the applicant.
3. The causal link
205. In order for a causal link to be found, the burden of proof is on the applicant to show a clear and direct causal nexus between the wrongful act committed by the institution concerned and the harm alleged (Case T‑140/97 Hautem
v EIB
[1999] ECR‑SC I‑A‑171 and II‑897, paragraph 85).
206. In the present case the publicity which the Commission chose to give to the applicant’s reassignment to Brussels, in particular by the press release of 21 November 2002, not only made him easily identifiable by any reasonably well-informed journalist but also suggested that he was involved in the irregularities under investigation. The direct and foreseeable consequence of that action was that it was reported in the French press, in particular in an article in the newspaper Le Monde, that the applicant was suspected of misappropriation of funds, thereby causing damage to his honour and reputation which went beyond the damage inevitably suffered by an official targeted by an OLAF investigation. That damage to the applicant’s honour and reputation was not subsequently made good by the Commission. In particular the Commission refrained from giving to OLAF’s final investigation report, which exonerated the applicant as regards the allegations which led to the opening of that investigation, publicity comparable to that which it had chosen to give to his reassignment when that investigation was opened. There is therefore a clear and direct causal nexus between the wrongful acts committed by the institution in the performance of duties, as established in paragraph 183 of this judgment, and the particular non-material harm suffered by the applicant, consisting in damage to the applicant’s honour and reputation.
207. Consequently, the Commission must be ordered to pay to the applicant damages in compensation for this head of non‑material harm suffered by him because of wrongful acts committed in the performance of duties, as found by the Tribunal. Having regard to the circumstances of the present case, the Tribunal makes an equitable determination of that compensation in the sum of EUR 15 000.
Costs
208. As the Tribunal has ruled in Case F‑16/05 Falcione
v Commission
[2006] ECR-SC I-A-0000 and II-0000, paragraphs 77 to 86, until the Rules of Procedure of the Tribunal and, in particular, the specific provisions relating to costs enter into force, it is appropriate to apply solely the Rules of Procedure of the Court of First Instance.
209. Under the first paragraph of Article 87(3) of the Rules of Procedure of the Court of First Instance, the Tribunal may order that the costs be shared where each party succeeds on some and fails on other heads, subject to the provision, under Article 88 of those Rules, that in proceedings between the Communities and their servants, expenses incurred by the institutions are borne by them.
210. In the present case, since the action has been in part upheld, it is a fair reflection of the circumstances of the case to decide that the Commission bear, in addition to its own costs, two thirds of the costs incurred by the applicant.
Operative part
On those grounds,
THE TRIBUNAL (Third Chamber)
hereby
1. Orders the Commission of the European Communities to pay to Mr Giraudy compensation in the sum of EUR 15 000 in damages for the non-material harm suffered by him consisting in prejudice to his reputation and honour;
2. Dismisses the action as to the remainder;
3. Orders the Commission of the European Communities to bear its own costs and two thirds of those incurred by Mr Giraudy;
4. Orders Mr Giraudy to bear one third of his costs.