61979C0791
OPINION OF MRS ADVOCATE GENERAL ROZÈS
DELIVERED ON 15 OCTOBER 1981 (
1
)
Mr President,
Members of the Court,
René Démont, an official, has brought two actions against the Commission of the European Communities.
Although the two cases were not ordered to be joined for the purposes of the oral procedure, I take the liberty of delivering a single opinion on both these two closely-connected applications by reason of the underlying facts.
The application in Case 791/79 seeks the annulment of the decision of 10 November 1978, notified to the applicant on 4 December 1978, changing the assignment of René Démont and his post within the Directorate-General; it also involved a change in the place of his employment from Santiago, Chile, to Brussels.
The second application, in Case 115/80, seeks the annulment of the defendant's decision of 15 June 1979 to reprimand the applicant and of the express rejection on 7 March 1980 of the applicant's complaint of 10 August 1979 through official channels against that reprimand.
I shall deal with these two applications in order.
Case 791/79
I — Admissibility
To see whether the application is admissible we have first to inquire whether the transfer of René Démont together with his post within one and the same Directorate-General constitutes a transfer within the meaning of the Staff Regulations, thus making it necessary to observe the requirements laid down by Articles 4 and 29 thereof.
In a judgment of the Second Chamber of the Court of 24 February 1981 in Case 161/80 Carbognani and Coda Zabetta v Commission [1981] ECR 543 at p. 561, paragraph 19, it was held that: “Within the general scheme of the Staff Regulations there is a transfer in the strict sense of the term only when an official is transferred to a vacant post. It follows that any transfer, properly so called, is subject to the formalities prescribed by Articles 4 and 29 of the Staff Regulations. However, those formalities do not apply when an official is reassigned with his post because such a transfer does not give rise to a vacant post.”
In the present case, since René Demont was transferred with his post, the decision taken concerning him does not constitute a transfer within the meaning of the Staff Regulations.
None the less, “decisions reassigning officials are subject in the same way as transfers, as regards safeguarding the rights and legitimate interests of the officials concerned, to the provisions of Article 7 (1) of the Staff Regulations, inasmuch as officials may be reassigned only in the interests of the service and in compliance with the requirement that posts must correspond to the officials' grades” (ibid, paragraph 21).
If such a decision is genuinely based solely on the interests of the service, within the terms of Article 7 (1) of the Staff Regulations of Officials, the reassignment cannot constitute an act adversely affecting the official since it falls within the discretionary powers of the administration, which may arrange its internal organization and allocate its staff as required for the performance of the tasks assigned to it (judgment of the Court of 5 May 1966 in Joined Cases 18 and 35/65 Gutmann v Commission [1966] ECR 103 at p. 117).
However, according to more recent case-law of the Court, even if a decision on transfer does not affect the material interests or rank of an official it may, having regard to the nature of the duties in question and to the circumstances, adversely affect the morale and the future prospects of the employee concerned and in that case found an action for annulment (judgment of the Court of 27 June 1973 in Case 35/72 Walter Kley v Commission [1973] ECR 679).
Furthermore, the applicant alleges, and this is one of the grounds upon which this application is based, that the change in his assignment amounted to a disguised disciplinary measure and constitutes a misuse of powers which as such may only be assessed by examining the substance of the case.
II — The substance of the case
The applicant makes various submissions which I shall examine in turn.
1. No statement of reasons
René Démont considers that the decision is one adversely affecting him. We must therefore ascertain whether it complies with Article 25 of the Staff Regulations.
To do so we must not only consider the decision itself but we must also check whether the internal memoranda, which form the basis of the decision, were brought to the knowledge of the applicant and whether they clearly informed him of the reasons upon which that decision was based. In exercising its judicial review, the Court must ascertain whether the staff memoranda contain all the essential factors which guided the administration (judgments of the Court of 14 July 1977 in Case 61/76 Geist v Commission [1977] ECR 1420; and of 12 October 1978 in Case 86/77 Ditterich [1978] ECR 1855).
We must therefore ascertain to what extent those provisions have been complied with.
On 23 July 1975 the Commission decided to set up a rotation scheme for the delegations and external offices which it had established in nonmember countries. That scheme is identical to the one which was set up on 24 November 1976 for the rotation of staff in Information Offices, which was at issue in the Carbognani case mentioned above.
Pursuant to the provisions laid down at that time, the normal duration of the assignment of officials to external posts was fixed in principle at three years, a period which might be extended in the interests of the service from year to year for a renewable period of one year with a limit of three years, thus making a total of six years.
In principle rotation must be effected by means of a general movement and officials are transferred together with their budgetary posts. The rotation scheme seeks to transfer officials, whilst ensuring mobility within departments, a broadening of the experience of officials and closer contact between the central administration and external posts as well as a proper balance of the careers of the officials involved.
The system applies, also in principle, to officials in Categories A, B and C: each year such officials are informed of the assignments which are available in the delegations and are invited to apply for them under the rotation system.
The list of officials to be included in the rotation scheme is drawn up by an ad hoc committee; the definitive list of assignments is determined by the Commission.
Decisions on staff assignments must be taken each year before 31 January and the assignments carried out during the third quarter of the year.
The Commission was to determine the first staff rotation list at the beginning of 1976.
The applicant had been assigned to Santiago as from 1 August 1973, that is, for more than three years, when the Commission decided on 26 May 1977 to transfer the Latin American delegation to Caracas and only to maintain a reduced presence in Santiago in view of the events occurring in Chile.
On 5 December 1977 the Rotation Committee entered his name on a list under the heading “Draft list, for examination, of officials who might possibly be included in the second rotation in 1978 and 1979” with the following comment “In view of the transfer of Mr L. and Mr Renner, the rotation of Mr Démont will only be possible in 1979”. It was also stated that applications should be invited in 1978 for the post of Head of Delegation (A 5/A 4) in Santiago.
By decision of 12 April 1978 the Commission formally assigned responsibility for the delegation in Santiago to René Démont as from 15 April 1978 and several days later, at its meeting on 26 April 1978, it approved the staff rotation list for 1979 which included his name.
René Démont maintains that the effect of the decision of 12 April 1978 was to renew his assignment to Santiago for a period of one year. That interpretation cannot be upheld. Indeed, it is apparent from the minutes of the meeting of the Commission that responsibility for the branch office maintained in Santiago was assigned to the applicant only as a temporary measure, in the same way as responsibility for the Commission's delegation to Latin America was assigned to Mr L. only “pending the appointment of a Head of Delegation”. That decision does not preclude a later reassignment. In December 1977, the Rotation Committee stated that applications should be invited in the course of 1978 to fill the post of head of the Santiago branch and this was confirmed on 11 July 1978.
At the hearing Counsel for the applicant submitted a fresh argument that, under point II, 1.3 and 3.1 of the rotation scheme set up on 23 July 1975 only the Commission acting as a collegiate body was empowered to determine the definitive staff rotation list whereas the contested decision was taken only by the Member of the Commission responsible for questions of personnel and administration.
The Commission did not question the admissibility of that argument; I think it is unfounded.
Since the Commission's decision of 5 October 1977 on the exercise of powers conferred on the appointing authority the power to order the reassignment of officials of Grades A 4 to A 8 with their posts has, by Article 3 thereof, been conferred upon the Member of the Commission responsible for matters of personnel and administration. Although the reference in the contested decision to the Commission decision of 25 July 1974 (superseded by the decision of 5 October 1977) is not correct, it is nevertheless true that the Commission at its meeting on 26 April 1978 only had power to approve the staff rotation list for 1979 to the extent to which it was the appointing authority, thus reserving the powers of the Member of the Commission responsible for personnel questions.
Moreover, it should be noted that if, as the rotation scheme seems to imply, the reassigned official is replaced by another official together with that official's post, the procedure puts at risk the organization and efficient operation of the department to which the new official belonged. However, I do not need to dwell on this aspect of the matter since it is not at issue in this case.
2. Misuse of powers
A transfer may be vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent facts, to have been undertaken for purposes other than the interests of the department (judgment of the Court of 5 May 1966 in Gutmann mentioned above).
Certain factors give the impression that that might be so in this case.
As the result of a staff memorandum dated 19 June 1978 from Mr L., a factfinding mission was sent to Santiago from 12 to 14 July 1978 to investigate the accusations of reprehensible conduct which had been made.
René Démont states that the decision to change his assignment was taken on 10 November 1978, that is to say, subsequent to the staff memorandum mentioned above, and also after the disciplinary proceedings had been started against him on 25 September 1978, and subsequent to his hearing in Brussels under Article 87 of the Staff Regulations which also took place on 25 September 1978. From that fact he infers that the decision to change his assignment was in the nature of a disciplinary measure.
In that connection it should be noted that the Assistant to the Director-General of External Relations stated in a note dated 23 June 1978 addressed to his superior that, in view of the confidential memorandum of 19 June 1978, the “immediate recall to Brussels of Mr Démont” (underlined in the original) was essential even before “applications are invited to replace the applicant”. Furthermore, that Assistant informed the applicant on 29 June 1978“unofficially and confidentially” that the Directorate would suggest to the Rotation Committee, due to meet at the beginning of the month of July, that his name should be “included” in the staff rotation list envisaged for 1978.
Disturbing as such coincidences may be, it must be stated that the applicant's transfer bears no relation to the disciplinary proceedings against him. Subsequently those proceedings resulted in the decision of 15 June 1979 to reprimand the applicant (the annulment of which is sought in Case 115/80). The two measures must be distinguished unless a reassignment (which does not feature amongst the penalties which may be imposed in consequence of disciplinary proceedings) is to be considered as constituting — like suspension — a precautionary measure in anticipation of the decision to impose a reprimand, which would, as it were, be additional to the reprimand (in which case the rule non bis in idem would apply to preclude the same offence from being visited with two penalties — see the judgment of the Court of 5 May 1966 in Gutmann).
3. Infringement of Article 24 of the Staff Regulations and breach of the general principles of good administration and of the trust which an official is legitimately entitled to place in his institution
Whilst a reassignment may cause inconvenience to an official and his dependants and also financial loss it does not constitute an unusual or unforeseeable occurrence in his career since the places of employment to which he may be assigned are spread over several countries and the appointing authority may have to face exigencies of the service which compel it to move its employees. This is particularly so in the case of staff belonging to external delegations. Such decisions are however accompanied by a number of measures to facilitate the resettlement of the official and the applicant received the benefit of those measures.
Furthermore, for the adoption of the decision, neither the existence of a request nor the agreement of the official is necessary.
In its judgment of 24 February 1981 in Carbognani and Zabetta the Court stated at paragraph 23 :
“The way in which the Community's administration functions implies a duty on the part of every European official to accept any assignment, provided that it is consistent with the category and grade of his post and in accordance with the requirements of the service, throughout the Community in any place of employment within the institution in which he took up his duties. Constraints of a personal and family nature to which those conditions may give rise in the operation of the service are compensated for by the advantages and privileges conferred by the conditions of employment in the European public service.”
and further at paragraph 28 :
“... It has been consistently held that the Community institutions are at liberty to organize their offices to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks”.
The applicant's argument that a reassignment cannot occur without the agreement of the official concerned “would have the effect of imposing an intolerable restriction on the institutions' discretion in organizing their services and in adapting that organization to changing requirements.”
Further René Drmont stresses that the education of his son has been affected by the relative haste with which the decision was put into effect.
It seems to me that that argument must be rejected.
Paragraph 37 of the judgment of the Court already quoted lays down:
“As regards in particular the educational problems, it should be pointed out that owing to the arrangements made by the institutions and the governments of the Member States, their solution should not raise any insuperable problems for the families of European officials.”
In this case the applicant was informed by telex message on 29 June 1978, that a proposal would be put before the Rotation Committee, which was due to meet at the beginning of July, that his name should be added to the staff rotation list envisaged for 1978 and that, if that proposal was approved, he would be asked to resume duty in Brussels on 1 September.
Even though the Committee did not adopt that proposal the applicant was informed on 20 July 1978 by telex message that he would be recalled to Brussels, not during the third quarter, but in December 1978, due allowance being made for the difference in the school year in the southern hemisphere.
The fact remains that whilst, in principle, the contested decision seems to have been justified, the manner in which it was put into effect may be open to criticism. It is not inconceivable that its implementation was hastened after the decision was taken to start disciplinary proceedings against the applicant. It was not in fact implemented until the first quarter of 1979 but took effect as from1 January 1979. It was thus necessary for the applicant to return to Brussels before the end of 1978 whereas it was not in fact until 15 April 1979 that he was replaced by an official from Brussels in Grade A 4, who was also assigned with his post. For nearly four months, therefore, there was nobody in charge of the Santiago branch office. I shall be suggesting that that factor should be borne in mind in ordering the Commission to pay part of the applicant's costs.
It remains for me to examine the submission relating to breach of the duty of assistance incumbent on the administration under Article 24 of the Staff Regulations inasmuch as the administration is said to have failed to check whether the accusations made against the applicant were well-founded. That issue is closely linked with an investigation of the substance of Case 115/80 to which I shall now turn.
As to the first application I propose that it should be dismissed and, having regard to the special circumstances in which the reassignment of René Demont took place, I propose that the Commission should bear, in addition to its own costs, one half of the costs incurred by the applicant.
Case 115/80
In this second application René Demont seeks the annulment of the reprimand administered to him on 15 June 1979 as well as the rejection on 7 March 1980 of the applicant's complaint through official channels, which was submitted on 10 August 1979, against that disciplinary measure. No particular question as to admissibility arises in connection with this application. It is apparent that the annulment of that express rejection is only sought as an ancillary remedy to the annulment of the reprimand itself.
In support of his application the applicant first disputes the instances of administrative negligence alleged against him, claiming an infringement of Article 25 of the Staff Regulations (mistaken statement of reasons) compounded by a breach of the duty to assist incumbent upon the institution towards its employees (Article 24), and secondly alleges the breach of a number of rules or general principles regarding the rights of the defence.
I —
I shall deal with the latter allegation first. The applicant claims that:
—
The Commission allowed him insufficient time in which to prepare his defence;
—
Both the applicant and his Counsel were refused access to the file against him;
—
He did not receive copies of nor was he allowed to acquaint himself with all the statements made by the persons mentioned in the contested decision;
—
Finally, a memorandum, drawn up by the person appointed by the authority to report to it on the matter, was removed from his disciplinary file. However, that point was clarified during the oral procedure and I do not need therefore to deal with it further.
I should recall that, under the heading of “Disciplinary Measures”, Article 86 of the Staff Regulations sets out seven measures. In regard to the first two (written warning and reprimand) which are considered as less serious, the first paragraph of Article 87 provides that: “The appointing authority shall have the right to issue a written warning or a reprimand without consulting the Disciplinary Board on a proposal from the official's immediate superior or on its own initiative. The official concerned shall be heard before such action is taken.” However, the second paragraph thereof provides, inter alia:“Other measures shall be ordered by the appointing authority after the disciplinary procedure provided for in Annex IX has been completed.”
That procedure includes the drawing up of a report by the appointing authority, its communication to the chairman and members of the Disciplinary Board and to the official charged (Article 1 of Annex IX to the Staff Regulations). “On receipt of the report the official charged shall have the right to see his complete personal file and to take copies of all documents relevant to the proceedings” (Article 2). “At the first meeting of the Disciplinary Board the chairman shall appoint one of its members to prepare a general report on the matter” (Article 3). “The official charged shall have not less than fifteen days from the date of receipt of the report initiating disciplinary proceedings to prepare his defence. When the official appears before the Disciplinary Board he shall have the right to submit observations in writing or orally, to call witnesses and to be assisted in his defence by a person of his own choice” (Article 4). “... The Disciplinary Board ... may order an inquiry in which each side can submit its case and reply to the case of the other side. The inquiry shall be conducted by the rapporteur ...” (Article 6).
As the Court is aware, the disciplinary measure imposed was a reprimand, so that the protection afforded by the need to consult the Disciplinary Board was not necessary. It is however clear that, whenever the appointing authority intends to impose a disciplinary measure on an official, the authority must, before hearing the official, inform him whether or not the adoption of the measure which it has in mind requires the Disciplinary Board to be consulted, so as to enable the official charged to avail himself if the need should arise of the guarantees contained in Annex IX concerning disciplinary proceedings. Moreover, the principle of respect for the rights of the defence, of which Annex IX, and in particular Article 4 thereof, is merely an illustration, apply, mutatis mutandis, to both warning and reprimand.
1.
The appointing authority, in this case the Member of the Commission responsible for personnel, adopted that procedure. Following the report of 25 July 1978 of the mission sent to Santiago to inquire into the applicant's conduct, the authority decided to initiate disciplinary proceedings against the applicant under Article 87 and appointed as rapporteur Mr Lannoy, a director in the Directorate-General for Scientific and Technical Information and Information Management and communicated in writing to René Démont the allegations of his immediate superior as well as the report of the commission of inquiry. Three days later the rapporteur arranged to hear the applicant, who was able to submit written explanations and to call witnesses who gave evidence. Whilst he in fact had only a very short period of time from the date of his return from Santiago when he received copies of the memorandum from Mr L., and the report of the mission to Santiago, to his first hearing, he was given two further opportunities to state his case (on 19 January and 3 April 1979) and, on the whole, I consider that he was given sufficient time to prepare his defence.
2.
However, whilst the applicant was, of course, able to call on the services of a lawyer, that lawyer was never allowed to have access to his file. Having written on 2 April 1979 to the Director-General for Personnel and Administration for permission to consult the file relating to the proceedings initiated against his client and having sent a reminder on 21 May 1979, the lawyer received a reply on 6 June 1979, nine days before the contested decision, which was taken on 15 June, to the effect that the applicant had never requested that he should be assisted by a person of his own choice at any hearing and that it was only where the appointing authority intended to initiate the disciplinary proceedings laid down in Annex IX to the Staff Regulations that the applicant was entitled to be assisted by such a person. That is to some extent a play upon words. It is true that the applicant did not in fact request representation by a lawyer at the hearings; he had, however, as early as 5 February 1979, authorized his lawyer in these matters to consult his personal file as well as the file relating to the disciplinary proceedings against him.
The memorandum of 25 September 1978 by the Member of the Commission responsible refers to Article 87 of the Staff Regulations in its entirety and the internal memoranda relating to the matter all bear the heading: “Subject: Disciplinary proceedings against Mr Démont”. The memorandum of the Director-General for Personnel and Administration dated 29 May 1979 recommending the Member of the Commission responsible to deal with the matter “without consulting the Disciplinary Board” also bears the same heading: “Disciplinary proceedings”. It was only on 6 June 1979 that the applicant's lawyer was informed that the proceedings against the applicant had been based up to that time on the first paragraph of Article 87.
The Commission states that neither the rules contained in Annex IX nor general principles of disciplinary law require the Commission to permit the applicant's lawyer to examine the file drawn up against his client so long as the proceedings have merely resulted in one of the disciplinary measures referred to in the first paragraph of Article 87. The applicant may only be represented by a lawyer where the appointing authority decides to initiate the disciplinary proceedings laid down in Annex IX.
It is certainly sometimes difficult to know from the outset whether a breach of discipline is serious enough to warrant a more severe measure than a reprimand but I think that, before imposing any of the measures laid down by the Staff Regulations, it would be good practice for the official charged to be informed of the relative seriousness of the disciplinary measure contemplated. Moreover, although the provisions of the second paragraph of Article 87 in conjunction with Annex IX to the Staff Regulations entitle the applicant to demand the presence of a lawyer or adviser only before the Disciplinary Board, the first paragraph of Article 87 certainly does not exclude the applicant's right to obtain the services of an adviser who may have access to the file. It seems desirable that as soon as disciplinary proceedings are initiated under Article 87 and whatever may be their outcome, the official charged should have the right to obtain the assistance of an adviser to prepare his defence and that that adviser should be allowed access to the file.
3.
But that is not all. During April and May 1979 statements were obtained by officials other than the official appointed“rapporteur” (statements from Messrs Forwood, Renner, Barberis, Long, Lesseliers, Pendville and Angelini). As distinct from the minutes of his hearing by the rapporteur none of those statements was communicated to René Démont.
Whilst regretting that omission the Commission explains that the statements of those witnesses had no influence on the contested decision and that the applicant's case was not prejudiced as a result of that omission.
Such a bare assurance is not convincing. If it is true that those statements, which are to be found in the file and, it must be stressed, are for the most part unfavourable to the applicant were of an anodyne nature, then what was the point of their being referred to in alphabetical order in the contested decision?
On the other hand it is certainly possible to infer, from certain of the judgments of the Court that the contents of a document need only be communicated if the document is of such a nature as to have a decisive influence on the final decision (judgment of 3 February 1971, Rittwegerv Commission [1971] ECR 7).
I do not think it is possible to extend that principle to apply to disciplinary matters and the failure to bring the statements, especially seeing that they were unfavourable, to the knowledge of the applicant constitutes an infringement of an essential procedural requirement.
4.
Finally, even if it was right not to give the applicant the opportunity to confront his immediate superior, who was the prime mover as regards the contested decision, he should at least have been heard in the context of the disciplinary proceedings. Apart from his statement to the commission of inquiry in Santiago he was neither brought face to face with the applicant nor examined.
For those reasons I doubt whether the disputed decision was adopted following lawful proceedings.
II —
I have stated my opinion that, in the final analysis, the somewhat hasty recall of the applicant was not in the nature of a disguised disciplinary measure but I believe I have shown sufficiently clearly that the eight-page “confidential memorandum” written from Santiago on 19 June 1978 by the applicant's immediate superior for the attention of Günter Burghardt, Assistant to the Director-General for External Relations, was not unconnected with it.
On the other hand, that memorandum, which is expressly mentioned in the contested decision, led directly to the opening of the disciplinary proceedings and to the disciplinary measure imposed on René Démont.
It may not therefore be inappropriate to mention certain features of the situation in which the decision was taken, all of which are to be found in the file.
Mr L., classified in Grade A4 and the immediate superior of the applicant, who was posted to Santiago, Chile, to the main office of the delegation of the Commission of the European Communities to Latin America, was responsible, besides Chile, for 24 other countries of Central and South America. He had been appointed administrator of imprest accounts as from 1 April 1972. René Démont, classified in Grade A 7, performed the duties of an administrator responsible for the Andean group of countries, as is apparent from the vacancy notice which preceded his assignment.
As soon as René Demont arrived in Santiago in August 1973 Mr L. delegated to him, almost completely, the responsibility for the imprest account which meant he had to deal in addition with the financial and accounting management of the Santiago office during the remainder of his available time.
Relations between the two men were not of the best. In November 1976 there was an altercation when Mr L. refused to agree with Mr Demont's proposal to dismiss, on the ground of theft, a person who was responsible for paying the female cleaners. Then, in 1978, Mr L. declined the applicant's suggestion to suspend, for a period of six months, the delegation's duty chauffeur who had been convicted of drunken driving in his own vehicle. Finally, during the period 1977/78, Mr L. refused to countersign his subordinate's travel orders and expense sheets.
The Court will also recall that a decision was made on 26 May 1977 to transfer to Caracas the delegation of the Commission to Latin America and merely to maintain a reduced presence in Santiago. As a result of the rotation scheme in respect of the period 1977/78 Mr L. was assigned to Caracas and put in charge, on a temporary basis, as from 15 April 1978 of the affairs of the delegation of the Commission to Latin America whereas his subordinate was kept on in Santiago in charge of that office. That decision was, moreover, taken in the face of objections by Wolfgang Renner, Head of Delegation, in September 1977 against René Demont's being kept on in Santiago with the responsibility for the Press and Information Office, after the departure of other officials of the delegation.
We do not know whether, as the Commission states, the exchange of correspondence between those two persons from 19 May to 13 June 1978 was merely of a “commonplace” nature. The fact remains that the abovementioned memorandum of Mr L. dated 19 June 1978 was far from ordinary. Let the facts speak for themselves.
The memorandum was written at the request of the Assistant to the Director-General for External Relations following a telephone conversation which he had had with Mr L. a copy of the memorandum was sent to Eduardo Volpi, a director in the Directorate-General for External Relations. Mr L. began by expressing his misgivings at René Demont's remaining directly in charge of the Santiago office. He also had “definite” suspicions about Mrs Goetschmann, René Demont's “right-hand”. He stated: “Whilst I have a certain amount of evidence which leads me strongly to doubt whether Mr Demont is performing his duties correctly” he also stressed that “clear proof is difficult to obtain”, but that “that list is not exhaustive”. He felt able to state that “a number of members of the local staff would be prepared to give evidence on one or other of the allegations alluded to below” (or possibly on others of which he was not then aware) in particular by giving them assurances against any “reprisals” by René Demont and in some cases by granting them guarantees analogous to those under the Fifth Amendment. He then set forth on six pages the “evidence” which he had concerning what he described as :
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“Mismanagement of funds”,
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“Mismanagement of personnel matters”, and
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“Contacts with firms or individuals unconnected with the Delegation, tending to bring a European official into disrepute.”
He added “Particularly now at the time of my departure for Caracas, which in the present circumstances does not exonerate me from my responsibilities for the efficient operation of the Santiago branch but which does seriously restrict my ability to have any influence or direct control over its operation, I considered that it was my (unpleasant) duty to inform you of this matter. Without wishing to anticipate in any way the inquiries which you may think opportune (and in connection with which I promise my full cooperation) I would earnestly ask you to contact first of all Mr Renner and Mr Forwood who, I believe, share my deep-seated belief that what I have set out above is only the tip of the iceberg”.
When it is recalled that Mr L. had previously mentioned in parentheses that he had for example “scantier evidence according to which Mr Demont was involved in arms trafficking” and had noted the existence of “relations which did not stop at official contacts” between the applicant and certain temporary staff directly taken on by him which was “common knowledge at the Delegation (and moreover also as regards Mrs Demont herself)”, in the light of all those facts we may well wonder what the rest of the iceberg might consist of.
He concluded the memorandum as follows: “I recommend as a result that Mr Demont be withdrawn immediately to Brussels, thus avoiding his remaining, even for a short period, in direct charge of the Santiago office ...”.
Four days later on 23 June 1978 with a diligence which stands in some contrast to the slowness which the Commission showed at the time of the arrest of the journalist, about which I shall have something to say later on, the Assistant to the Director-General forwarded Mr L.'s memorandum to his superior with copies to Mr Caspari, Mr Volpi, Mr Perlot, Mr Baichère and Mr Noël, as well as to the cabinets of Mr Haferkamp and Mr Tugendhat explaining that Mr L. “feared that an untenable situation would arise after his own departure, leaving Mr Demont alone in possession”. In addition to “Mr Demont's immediate recall to Brussels” as mentioned above, the following action was required:
“...
(b)
The dispatch to Santiago of an official from Brussels with the tasks of:
—
Taking charge of the office; the official should be assisted as soon as possible by an official in B Grade responsible for the administration of the office;
...
—
Taking the necessary steps to preserve the ‘status quo’ pending;
(c)
The initiation of an official inquiry to be conducted on the spot by Mr L. with the assistance of the appropriate offices at headquarters...;”
(underlined in the original)
“(d)
To take such measures as may be appropriate with regard to Mr Démont in the light of the results of the inquiry ...”
That memorandum from the Assistant to the Director-General for External Relations was placed in Mr Demont's disciplinary file only following an express request to that effect by the applicant on 27 February 1979. It was included amongst the documents in the file which was passed to Mr Tugendhat's chef de cabinet but it was not brought to his attention prior to that date together with the other documents, “in view of the fact that it was an internal memorandum of the Directorate-General for External Relations.”
I have already mentioned the “precautionary measures” which were then taken. Mr Burghardt, Assistant to the Director-General, “confirmed” to René Démont on 29 June 1978 that the directorate-general intended to make a proposal to the Rotation Committee that his name should be “added” to the staff rotation list envisaged for 1979, in which case he would be asked to resume duty in Brussels as from the following 1 September. Similarly, it was following Mr L.s memorandum of 19 June 1978 and Mr Burghardt's memorandum that the decision was taken to send a factfinding mission to Santiago made up of Mr Volpi, a director of the Directorate-General for External Relations, Mr Gibbels, head of division in the Directorate-General for Personnel and Administration, and Mr Lentz, Principal Administrator in the Directorate-General for Budgets.
The report drawn up by that commission of inquiry on 25 July 1978 echoed exactly the “observations” of Mr L. As I have already mentioned the proceedings of that commission were purely inquisitorial; the parties never met face to face and in particular René Démont was not able to confront Mr L. Furthermore, Mr Demont was not aware at that time of the “observations” made by the latter with the result that he was ignorant of the allegations being made against him.
At the conclusion of the proceedings which I have mentioned, the contested decision noted, amongst the “observations” made by Mr L., the following irregularities:
—
Artificial invoicing by a firm belonging to an acquaintance of the applicant to fix the wages of a temporary employee who had not been engaged under contract;
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Irregularities in the payment of female cleaners engaged in 1977 and 1978;
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Agreement of lawyers' fees without checking whether their amount was justified and without prior authorization from headquarters.
Finally the decision records that René Démont advanced to himself 100 % of the cost of his annual journey in 1977 and in 1978 instead of the permitted 90 %.
I shall not refer again, save by way of exception, to the question of the accuracy of the information on which the allegations are based. However, whilst a court is not normally accustomed to put itself in the place of the administration in determining the facts or in carrying out inquiries (judgment of 26 February 1981 in De Brieyv Commission [1981] ECR 637 at p. 645, paragraph 7, “In a case of dismissal for incompetence the Court may not ... review the basis on which that discretion was exercised, except where a patent error or a misuse of power can be proved”) nevertheless in disciplinary matters a court must not only check that the rules of procedure have been observed but must review the interpretation of the facts by the administration. Furthermore the Court must check whether the grounds on which the disciplinary measure is based are not erroneous in law.
1.
The allegation relating to annual travel expenses, which features at the beginning of the contested decision, was not mentioned by Mr L. in his famous memorandum since, along with Mr Renner and the other members of the delegation, he had taken advantage of the system himself. The allegation was raised as the result of a memorandum drawn up in December 1978 by the Directorate-General for Financial Control on the subject of advances on official travel expenses and on annual travel expenses drawn by René Demont.
That memorandum, which is not to be found on the file, was communicated to the applicant by the Member of the Commission responsible in a note of 16 January 1979 which is also not to be found on the file. The applicant was heard briefly on this matter by the rapporteur on 19 January 1979 and, at greater length, on 3 April 1979 (only the minutes of that last hearing are to be found in the file).
As a result, the fact-finding mission sent to Santiago did not investigate this aspect of the matter and René Demont did not know until 16 January 1979 that his file contained an allegation against him on this point. For that reason I consider that allegation to have been made at too late a stage in the proceedings.
As to the allegedly reprehensible nature of that practice I would observe that neither Mr L. nor Mr Renner was asked to account for this matter and that, in respect of 1978, the Commission itself paid back to the applicant a refund of 10 % which the applicant had “wrongly” made to comply with the requirements which he is now alleged not to have observed.
2.
All the shortcomings alleged against René Demont concern his financial management, in particular the second allegation, which dates back to 1976. The contested decision records against him that he had resorted to “accounting devices” without keeping head office properly informed which prevented a check on the true destination of Community funds” or, in connection with the matter of the amount of the lawyers' fees, that he had imprudently involved the Commission in financial commitments “without checking whether the amount was justified and without obtaining prior authorization from head office”.
The decision goes on to state that René Demont “must be presumed to have been fully aware of his responsibilities as the person in administrative control and administrator of imprest accounts since the end of 1973 and he was advised by departments at headquarters, inter alia by meetings with those in administrative charge of external offices”. The acts alleged against him were thus “not due to the pressure of exceptional circumstances”.
It is therefore rather surprising to learn from the next part of the decision that René Demont “according to several witnesses ... had neither the training nor the attitude of mind to perform the duties of administrator of imprest accounts and that his other duties did not allow him sufficient time properly to attend to the duties of administering those accounts ... Allowance should further be made for the situation prevailing in Santiago and in particular its remoteness from headquarters .... There is no evidence to suggest that he obtained any personal benefit from those irregular activities.” Nevertheless, the decision was that a reprimand should be administered to the applicant.
It is therefore necessary to bring under closer scrutiny the conditions under which the applicant's financial management was conducted.
If the allegations were proven a reprimand would certainly be justified on that ground. The administrator of imprest accounts renders himself liable to disciplinary proceedings and possibly to pecuniary sanctions if he is unable to produce proper vouchers in support of the payments which he makes or if he makes a payment to a person other than the one entitled to receive it.
But the question is whether René Demont was officially the administrator of imprest accounts at the material time.
Whilst Mr L., who was officially the administrator as from 1 April 1972, had, as we have seen, in practice transferred the imprest accounts to the applicant on his arrival in Santiago in August 1973, it was only on 12 August 1977 that the Director-General for the Budget decided to replace Mr L. (Grade A4) by Mr Demont (Grade A 7) as administrator of imprest accounts. The fact that retroactive effect to 12 December 1973 was given to that decision cannot render the applicant responsible for acts of management before the date of the decision. Either the decision is merely valid for the future, in which case the applicant cannot be called to account by way of disciplinary proceedings in respect of the previous period, or it has effect retroactively to December 1973 but then René Demont is exonerated at a stroke for the whole period preceding the adoption of that decision. Furthermore if the applicant only assumed responsibility for the Santiago branch office on a temporary basis, as stated in the reply dated 24 July 1979 to his first complaint through official channels dated 9 February 1979, it is not possible to apply to his management the same criteria as would apply to a person who has been duly appointed to that position.
In this respect insistence on due form is more than mere pedantry and the Commission cannot be heard to object that the applicant might have been expected to request headquarters to relieve him of that responsibility if he did not feel equal to his duties as administrator of imprest accounts!
Even so, a number of warnings were given to the competent authorities.
As early as 26 November 1976 a special mission reported to the Directorate-General for External Relations recommending the despatch as soon as possible of “a Grade B official to be responsible for the management of administrative and financial problems in line with the practice of all other delegations. At present these duties are carried out by René Demont whose other responsibilities at the delegation cause him to be frequently absent (he was in Santiago for less than three months in 1976)”. That report proposed “that the administrative infrastructure of the delegation should be adapted by making available to it the necessary staff and sending a Grade B official to be responsible for administrative and financial management and by recruiting local staff to perform the duties of ...” (there follows a list of four types of duties). The file shows that an official in Grade B 4, with special responsibilities for administering the imprest accounts in Santiago was appointed only on 30 November 1978 — for an organization reduced to the status of a branch office.
On 1 April 1977 the Financial Controller of the Commission considered that “Mr Démont, as administrator of imprest accounts, was liable” for the actions of a local employee who had falsified the receipts shown on certificates of posting, made out by the postal authorities, by increasing the figures of the sums actually paid and keeping the difference for herself. He added: “We must still consider whether, in view of such grave negligence, Mr Démont may be allowed to continue to perform the duties of administrator of imprest accounts...”.
On 8 September 1977 the deputy accounting officer of the Commission, who had made an audit of the Santiago office in August of that year, recommended in his report that Mr L. should be appointed cosignatory, in the same way as Mr Renner, as regards commitments of expenditure by the office. He found that the bank journal was in order and excellently maintained by René Demonťs assistant. He took the opportunity of congratulating René Démont on his management but stated that it was “of course a matter of regret that the efforts made for the management of administrative appropriations were made difficult or impossible by not having an official responsible for observing the rule by which proposals for commitment of expenditure must be submitted by the administrator”.
It is therefore not right to accuse René Démont of having conducted himself in such a way that a proper check on the administration of Community funds was prevented when the means put at his disposal to that end were inadequate. If, to quote from the statement made by Mr Lesseliers on 27 April 1979, “Santiago was the worst of all the external offices in the matter of imprest accounts”, responsibility for that state of affairs is primarily the Commission's. In another statement, that of 30 May 1979, that of Mr Angelini who at the time was director of General Services and Office Equipment it is stated that: “The Commission was wrong not to appoint an administrator of imprest accounts in Santiago and Mr Démont was therefore compelled to perform duties for which he was unprepared and for which he had no inclination”. If the applicant's management was less perfect than might have been required that is mainly the responsibility of his superiors, and in particular of Mr L., who was officially administrator of imprest accounts till November 1977.
3.
But by far the most serious allegation made against René Démont is that he, at the very least imprudently, committed the Commission to pay lawyers' fees amounting to USD 30 000.
The Court will find the background to this aspect of the case in the file. On the afternoon of Saturday 17 December 1977 Mr M., a member of the local staff and assistant to William Forwood (who was head of the Press Office in Santiago, in Grade A 5) was not only interrogated but arrested by the Chilean police in somewhat traumatic circumstances. Mr M., who was formerly a trainee with the Association “Journaliste pour l'Europe” was employed as a journalist by the Santiago delegation. He was known for his activities in opposition to the Pinochet regime. Under those circumstances the Santiago office had a genuine duty to assist him. At the time Mr Renner and Mr L. were absent on official business and Mr Forwood was not available. René Demont then telephoned Commission headquarters in Brussels but he was not able to make contact with the official responsible for providing emergency cover. Through the intermediary of a Chilean advocate known to the delegation he was subsequently successful in arranging for Mr M. to be set free on the same day. The political aspects of that affair and its implications for the press and information offices in Latin America were well highlighted in a memorandum by Mr Forwood of 23 December 1977 to the spokesman of the Commission (in Brussels). In that note he requested “instructions on the course which the delegation and the directorate-general should follow at the present time”. On 4 January Mr Volpi informed the applicant, who had in the meantime informed him that “the settlement of the affair ... will have to involve a payment of fees” the amount of which he did not at that time know, that he (Mr Volpi) “had never doubted the efficacy of his action”. The law firm in question, by letter of 27 December 1977, had already requested René Demont for payment of a sum of USD 18000“conforme lo que hemos conversado ... por las gestiones realizadas hasta fecha ...” [as discussed ... for steps taken up to date].
On 19 April 1978 Mr M. appeared in court and received a fine of only USD 200 with suspended execution of sentence for “conduct injurious to public morals”. Then, on 28 April 1978, the firm requested René Demont for payment of USD 12000“conforme a lo convenido con Ud. ... por la defensa asumida ... en favor de Dn. M.” [as agreed with you for the defence undertaken in favour of Mr M.]. The applicant forwarded these two fee notes to Eduardo Volpi in Brussels on 5 May 1978. We learnt at the hearing that in the end the Commission paid the firm in question an amount of two or three thousand dollars only.
From the moment when Mr M. was arrested to the date of his conviction the authorities in Brussels made practically no effort to intervene. Faced with a situation which everyone agreed was “delicate”, the applicant cannot be blamed for having dealt with a law firm of which he knew one of the members instead of asking another official from the delegation to deal with the question of the fees, as the Commission now maintains he should have done. That “other” official could certainly not have been Mr L. Whilst the applicant did refer the matter of fees to him for discussion during an official visit to Brussels Mr L. did not raise the matter with headquarters; instead, with a view to the imminent arrival of the commission of inquiry in Santiago, he asked a freelance journalist at the office in Santiago for a report unfavourable to the applicant. The last word on this affair seems to me to be the appreciation contained in a letter addressed to the law firm in question on 19 December 1977, on the instructions of Wolfgang Renner, No 77001968 (not in the file), in which he states “his services were of great value in avoiding straining official relations between the (Chilean) Government and the institutions of the European Communities”.
In the face of such allegations it is strange to note that the applicant was congratulated by Mr Angelini on 11 April 1975 for the results he had achieved in fitting out the premises of the Santiago office. His periodic report in respect of the period from 1 July 1973 to 30 June 1975, signed by Wolfgang Renner, Head of the Delegation to Latin America, dated 9 October 1975, contains the following general assessment: “A very competent official and an excellent colleague, Mr Démont has settled in well in the delegation, to which he gives loyal service. His knowledge of administration and statistics have been of the highest value to us. A very open person who has been able to nurture useful and very varied personal contacts enabling him rapidly to become fully acquainted with his work in Latin America”. The analytical assessements describe his competence, efficiency and conduct in the service as “above average”.
On 25 August 1977 Mr Angelini personally requested René Démont to make arrangements for his official visit to Caracas “with your customary tact and efficiency, of course...”
The applicant's periodic report dated 29 November 1977, signed by the Head of Delegation, and covering the period from 1 July 1975 to 30 June 1977, during which time the accounting duties at the delegation had been added to his other responsibilities, still describes his competence, his efficiency and his conduct in the service as “above average” and contains the following general assessment: “Mr Démont finds it very easy to establish contacts in Latin America. For that reason he is able to obtain the results expected of him. In performing his administrative and financial duties he has been able to resolve the problems posed by working conditions in Latin America consistently with the requirements of the administration”. The applicant's personal file does not contain any periodic report for the period from 1 July 1977 to 30 June 1979 or for the period from 1 July 1979 to 30 June 1981. However, by a document dated 5 April 1978 under the hand of the Member of the Commission responsible for personnel questions the applicant was promoted, with retroactive effect from 1 January 1977, from Grade A 7, Step 6, to Grade A 6, Step 6!
All things considered, I am forced to the conclusion that the applicant's role was not an easy one owing to the division of responsibilities amongst officials belonging to several directorates-general — External Relations, Administration, Press and Information (see Mr Pendville's statement of 17 May 1979). In particularly thankless working conditions and when, in 1977, the Commission had decided that the head of the Santiago branch office should be an official of Grade A5/A4, the applicant acted in good faith and never sought his own financial gain. In the words of Mr Long's statement of 27 April 1979: “He was casual with money but not dishonest. He was a land man and in his desire to be helpful he tended to overlook the correct procedure”.
I therefore agree with the appraisal of the rapporteur, who did not believe that the applicant's conduct called for the imposition of a disciplinary measure: “This is a man whose enthusiasm and resourcefulness have probably been more valuable to the Commission than harmful. But his superiors wrongly allowed him too much freedom of action which he sometimes used imprudently, imagining that nothing was beyond him.” Whilst acknowledging that prima facie irregularities exist in the case of the first two allegations made against the applicant (the contract with the agency AHNSA and the cleaners' wages) he finds that “there is no evidence to support the accusations made against him by Mr L.” and he asks: “If it is true that Mr L. was administrator of imprest accounts until 1977 why is it that the AHNSA affair (1976) and other matters prior to the appointment of René Démont evaded his scrutiny?”
As to the lawyers' fees, he states that he is not surprised that “under an authoritarian and police regime such as the one in Chile lawyers or other intermediaries try to charge very highly for their services in arranging for the release from imprisonment of victims of the regime”.
It is impossible to avoid the impression that, faced with the accusations made against the applicant, the director-general considered at first sight that the applicant deserved a severe penalty which explains why Article 87 was referred to in its entirety and also why his recall to Brussels, which had already been decided in principle, was expedited. However, as the proceedings developed, the “tip of the iceberg” mentioned in the accusation melted as snow in the sun and the Director-General for Personnel and Administration was considering on 23 March 1979 whether a “simple letter of warning not appearing in the personal file” would not be sufficient. However, since in the meantime René Démont had lodged a complaint through official channels on 9 February 1979 against his recall from Santiago maintaining that that amounted to a disguised disciplinary measure, the decision was taken to impose upon him a genuine disciplinary measure, albeit still relatively mild, to have a deterrent effect on the other delegations and to demonstrate irrefutably that the applicant's recall to Brussels was not in the nature of a disciplinary measure as he was maintaining.
For all those reasons, I consider that, in view of the breaches of the rights of the defence vitiating it, the decision adopted against the applicant might have involved a mere warning. It is not certain however whether the Court in disciplinary matters has unlimited jurisdiction, which would enable it to vary the decision whose annulment is sought. One further consideration, however, in my view, justifies outright annulment.
III —
Mr L.'s reasons for writing the “memorandum” may essentially be explained by the climate of animosity which constantly prevailed between him and the applicant and by the feeling of frustration which he felt at the idea that his subordinate would remain in his post at Santiago after his own departure. At the outcome of the disciplinary proceedings it may well have appeared, even to the appointing authority, that that memorandum was libellous since the allegations which the authority finally found proved against the applicant were merely trivial instances of negligence. The applicant was therefore the subject of allegations which may appear to be of a defamatory nature.
Contrary to the Commission's assertion, that is a classic case in which Article 24 should come into play. “The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties”. The Court held in its judgment of 14 June 1979 in Case 18/78 Mrs V. v Commission [1979] ECR 2093 at p. 2102, paragraph 15, that “Although that provision is devised primarily to protect the officials of the Communities against attacks and maltreatment by third parties the duty to provide assistance laid down in Article 24 also exists in a case in which the perpetrator of the acts referred to by that provision is another official or the Communities.” The Court added that the duty to provide protection was particularly compelling since the incident involved two officials, one of whom was in a subordinate position to the other.
I am of the opinion that the best way in which to restore the applicant's reputation and to “ensure that his future career proceeds in line with careers available at headquarters” is to grant his application in its entirety.
For all those reasons I recommend that the decision to reprimand René Demont taken on 15 July 1979 should be annulled and that the Commission should be ordered to pay the costs of this second application.
(
1
)	Translated from the French.