61999CC0274_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 Mr Connolly, a former Commission official, is appealing against the judgment of the Court of First Instance of 19 May 1999, (1) which dismissed his application for annulment of the opinion of the Disciplinary Board of 7 December 1995 and the decision of 16 January 1996 removing him from his post with effect from 1 February 1996.
I. Background
2 The facts taken as proved in the judgment at first instance are, in summary, the following:
- The appellant was a grade A4 official and Head of Unit 3, `EMS: National and Community Monetary Policies' in Directorate D, which dealt with monetary affairs in the Directorate-General for Economic and Financial Affairs.
- During and after 1991, Mr Connolly requested permission, in accordance with the second paragraph of Article 17 of the Staff Regulations of Officials of the European Communities (2) (`the Staff Regulations'), to publish up to three articles on monetary questions. Permission was refused.
- On 24 April 1995 he applied, under Article 40 of the Staff Regulations, for three months unpaid leave on personal grounds commencing on 3 July 1995.
The Commission granted him leave by decision of 2 June 1995 and, by a further decision of 27 September 1995, agreed that he should be reinstated in his post on 4 October 1995.
- Whilst on leave, Mr Connolly published a book entitled The Rotten Heart of Europe - The Dirty War for Europe's Money without requesting prior permission as required by the second paragraph of Article 17 of the Staff Regulations.
Early in September 1995, in particular on 4 and 10 September, a series of articles concerning the book was published in the British press.
- The Director-General for Personnel and Administration, acting in his capacity as appointing authority, sent a letter to the appellant on 6 September informing him of his decision to bring disciplinary proceedings for infringements of Articles 11, 12 and 17 of the Staff Regulations and, in accordance with Article 87 of those regulations, summoned him to a hearing.
- The appellant was heard for the first time on 12 September 1995.
At that hearing he submitted a written statement indicating that he would not answer any questions as he had not been informed in advance of the specific infringements he was alleged to have committed.
On the following day he was given notice of a further hearing and was informed that the conduct of which he was accused consisted in publishing his book, allowing extracts from it to appear in The Times newspaper and making statements in an interview published by that newspaper, without having requested prior permission to do so.
- On 26 September 1995, when he was heard again, he refused to answer any of the questions put to him and filed a written statement in which he submitted that it was legitimate for him to have published his work without requesting prior permission because, when he did so, he was on unpaid leave. He added that the publication of extracts from his book in the press had been decided on by his publisher and that some of the statements contained in the interview had been wrongly attributed to him.
Finally, Mr Connolly expressed some doubt as to whether the disciplinary procedure to which he was subject was objective.
- On 27 September 1995 the appointing authority decided, in accordance with Article 88 of the Staff Regulations, to suspend Mr Connolly from his duties with effect from 3 October 1995 and to withhold one-half of his basic salary for the duration of his suspension.
On 4 October 1995, it decided to submit a report to the Disciplinary Board under Article 1 of Annex IX to the Staff Regulations.
- Mr Connolly lodged a complaint on 27 October 1995 in accordance with Article 90(2) of the Staff Regulations, applying for annulment of the measures by which it had been decided (a) to bring disciplinary proceedings against him, (b) to submit a report to the Disciplinary Board and (c) to suspend him from his post.
- On 27 February 1996, the Commission informed Mr Connolly that his complaint had been dismissed by implied decision. However, he had already made an application to the Court of First Instance, which gave rise to Case T-203/95.
- On 7 December 1995 the Disciplinary Board delivered its opinion, in which it recommended that the disciplinary measure prescribed by Article 86(2)(f) of the Staff Regulations should be imposed on Mr Connolly, namely removal from his post without withdrawal of entitlement to retirement pension.
- On 9 January 1996, the appellant was heard by the appointing authority in accordance with the third paragraph of Article 7 of Annex IX to the Staff Regulations.
- By decision of 16 January 1996, the appointing authority ordered that Mr Connolly should, by way of disciplinary measure, be removed from his post but that his entitlement to a retirement pension should not be withdrawn.
- By letter of 7 March 1996 received at the Secretariat-General of the Commission on 14 March 1996, the appellant submitted a complaint under Article 90(2) of the Staff Regulations against the Disciplinary Board's reasoned opinion and against the decision to remove him from his post.
That complaint was expressly rejected by the Commission in a letter to Mr Connolly dated 18 July 1996.
- On 13 March 1996 Mr Connolly brought an action before the Court of First Instance for annulment of the reasoned opinion of the Disciplinary Board (Case T-34/96) and, on 18 October 1996, he brought a further action in respect of the decision removing him from his post (Case T-163/96).
II. The appeal
3 The present appeal was lodged at the Registry of the Court of Justice on 20 July 1999.
It is based on thirteen pleas in law, many of which are subdivided into several parts which, in turn, contain different grounds of appeal. I shall analyse each of those pleas in turn, although I shall not examine those complaints which, even if well founded, are manifestly incapable of constituting grounds for setting aside, even partially, the judgment under appeal.
First plea in law:
the obligation to obtain permission before publishing a text does not comply with the requirements of freedom of expression
4 By his first plea, comprising two parts which I shall deal with together, the appellant claims essentially that the judgment at first instance should be set aside on the ground that Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter `the Convention' or `the ECHR') has been infringed.
5 In the context of this plea, the appellant sets out at considerable length his various complaints concerning the judgment under appeal.
First, he submits that the Court of First Instance should have held that Articles 12 and 17 of the Staff Regulations impose a system of prior censorship, which is in itself unacceptable in that it is contrary to the requirements of Article 10 of the ECHR, as interpreted by the European Court of Human Rights (hereinafter `the Court of Human Rights').
Furthermore, those articles do not provide the procedural and substantive safeguards which, under Article 10, must go hand in hand with any limitations imposed on the fundamental rights which it protects, such as the requirement that any restriction must pursue a legitimate objective, must be prescribed by a legislative provision whose application is foreseeable and must be necessary and appropriate to the purpose in question, as well as being subject to effective judicial review.
Lastly, he considers that there has also been a breach of the obligation to balance the various interests at stake before any restriction is placed on a fundamental right such as freedom of expression.
6 As a preliminary point, the Commission contends that, if the appellant wishes to challenge the very lawfulness of the system set up by Article 17 of the Staff Regulations, rather than the Court of First Instance's interpretation of it, he should have lodged an objection of illegality in due time, in accordance with Article 241 EC (formerly Article 184 of the EC Treaty).
7 For my part, I take the view that although it is true that the complaints contained in the first plea may, by reason of their generality, be interpreted as challenging the validity of the rules on the granting of permission laid down in Article 17 in the abstract,
it may nevertheless be inferred from the very breadth of the complaints that the actual method adopted by the Court of First Instance is being challenged.
There is no need, therefore, either to look further into the question concerning the appropriate legal procedure for lodging an objection of illegality or to ascertain whether the procedure followed by the appellant amounted to lodging such an objection.
8 That does not mean that I reach the same conclusion as the appellant.
In my view, the Court of First Instance did not misinterpret Article 10 of the ECHR, when it considered, chiefly in paragraph 146 et seq. of its judgment, the alleged infringement of the fundamental freedom laid down in that provision.
9 Freedom of expression is one of the fundamental pillars of any democracy.
As the Court of Human Rights has stated in one of the finest passages found in its case-law: `Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man.
Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society"'. (3)
10 It is evident that officials of the European Communities enjoy the right of freedom of expression as it has been laid down in the ECHR and that they may rely on it before the Court of Justice as a general principle of Community law.
That is clear from, inter alia, Article 6(2) of the Treaty on European Union.
The corollary of that proposition is that, in the exercise of Convention rights and freedoms, Community officials are subject to the restrictions which are necessary in a democratic society, the imposition of which can be a matter only for the Community institutions.
The appellant's argument that the power to lay down the conditions under which Convention rights may be exercised is a matter for the State as traditionally viewed therefore fails.
11 The Convention, whose cardinal importance as a source for defining the fundamental rights of the Community legal order was recognised by the Court of Justice long before the Maastricht reforms, has its own review mechanism, which, at present, essentially consists in bringing the matter before the Court of Human Rights.
That Court uses, as did the Commission of Human Rights which is no longer extant, its own method of interpreting the Convention. Allow me to outline it.
12 As regards complaints based on Articles 8 to 11 of the Convention, which are all structured in a similar way, the Court of Human Rights usually examines certain requirements successively.
It analyses, in the first place, whether the act giving rise to the application may be considered as interference by the State with one of the rights and freedoms protected by the first paragraph of each of those four provisions.
If that is the case, the Court then considers whether the interference can be justified under the second paragraph of those provisions.
To that end, it determines, first, whether the act or measure in question was pursuing one of the stated objectives - which, in the case of Article 10, include protection of the following interests:
national security, territorial integrity or public safety, prevention of disorder or crime, protection of health, morals or the reputation or rights of others, prevention of disclosure of certain information and maintenance of the authority and impartiality of the judiciary - and, second, whether the act or measure was prescribed by a sufficiently clear law.
Finally, if all those requirements are satisfied, the Court of Human Rights determines whether the interference was necessary in a democratic society.
We are concerned, therefore, with an interpretative approach which does not impose any obligations distinct from those flowing from the Convention.
It follows that simply using a different method does not of itself constitute an infringement of the Convention, although the way in which the appellant has worded this plea might suggest that it does.
In so far as the present plea is seeking to challenge the Court of First Instance's use of certain canons of interpretation which differ from those used by the Court of Human Rights, it must be declared ineffective.
13 In any event, it is my opinion that, contrary to the appellant's assertions, the analytical criteria, the alleged absence of which forms the basis of this plea, are to be found in the judgment of 19 May 1999.
14 It seems to me beyond doubt that the disciplinary measure imposed on the appellant, in so far as it is founded partly on his failure to obtain permission prior to publication, constitutes, in principle, an interference with his right to freedom of expression understood in the general sense.
15 That interference is prescribed by law.
The second paragraph of Article 17 of the Staff Regulations - approved by a Council regulation - which makes publication of any matter dealing with the work of the Communities conditional upon obtaining permission, is indisputably a binding legal obligation.
The provision also embodies an adequate degree of foreseeability so far as the
disciplinary measure adopted was concerned.
The relative lack of precision of the reference in the last sentence to `the interests of the Communities' may be explained by the fact that the aim of the provision is to prevent conduct which may take many forms and that it is impossible to condense all the hypothetical cases into one more concrete expression.
I take the view, however, that the wording of the provision enabled the appellant to foresee, to a degree that was more than reasonable given the circumstances of the case, that, had he requested permission to publish The Rotten Heart of Europe, it would have been refused. The judgment under appeal recognises that to be the case when it points out, in paragraph 154, that one of the grounds for making the decision to remove Mr Connolly from his post was that he `could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content'.
Like the appellant, I turn, by way of illustration, to the judgment of the Court of Human Rights in Wingrove v United Kingdom. (4)
On that occasion the Court had to consider whether the refusal of a distribution licence for a video, which was considered to be blasphemous, interfered with the right to freedom of expression upheld in Article 10 of the Convention.
It appears from the judgment that English law defined the offence of blasphemy in the following terms: `Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established.' (5)
The imprecision of that definition did not hamper the Court of Human Rights in forming a view as to foreseeability.
On the contrary, it acknowledged that the national authorities needed sufficient flexibility to enable them to assess whether certain facts fell within the definition of the offence.
16 Nor do I believe that there can be any serious doubt either that the Commission, in imposing the disciplinary measure, was pursuing a legitimate objective or that the objective was compatible with the exceptions provided for in Article 10(2) of the Convention.
Although those restrictions are set out exhaustively, there is none the less a general reference to `the protection of the reputation or the rights of others', which, without any doubt, encompasses a Community institution's rights in relation to the reputation of its members and the loyalty of its employees.
The Court of First Instance made a clear statement to that effect in paragraph 150 of its judgment, holding that `the requirement that permission be obtained prior to publication corresponds to the legitimate aim of ensuring that material dealing with the work of the Communities does not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions'.
17 Furthermore, the Court of Human Rights has somewhat softened its approach when assessing whether an objective is legitimate, analysing a breach of the Convention by reference to, in particular, whether it is necessary in a democratic society.
It is sufficient to turn once again to Wingrove, in which the Court of Human Rights held that the offence of blasphemy, which was by its definition discriminatory in that it was limited to protecting the Anglican church and its beliefs, pursued an aim which undoubtedly corresponded to the `protection of the rights of others' within the meaning of Article 10(2). (6)
18 Finally, the appellant's assertion that the person whose reputation is to be protected and whose rights may justify an interference cannot be a public authority, and still less the authority imposing the punishment, does not have any legal basis.
First, unless I am mistaken, the Court of Human Rights has never accepted the view that a body which is a public authority may not legitimately limit a fundamental freedom in order to protect its reputation.
The opposite seems to be the case.
In the case of Thorgeir Thorgeirson v Iceland, (7) the Court of Human Rights acknowledged that an action for defamation brought by the police against a journalist who had accused them of brutality was pursuing the legitimate aim of protecting the reputation of others. It did not attach any significance to the fact that the authority seeking the imposition of a penalty was also the authority whose reputation was to be protected.
Thus, in its judgment of 26 February 2000 in Fuentes Bobo v Spain, (8) the Court of Human Rights acknowledged that the disciplinary measure imposed by a public radio and television broadcasting authority on one of its employees for having made insulting remarks about its managers had a legitimate aim in that it was seeking to protect the reputation of others.
Furthermore, as the defendant has pointed out, the Commission, in punishing Mr Connolly's conduct in accordance with the second paragraph of Article 17, was acting not as a public body protecting its reputation against a member of the public but as the employer of an official who has breached his duty of loyalty and rendered himself liable to disciplinary measures.
19 The appellant complains that by failing, in the judgment under appeal, to balance the various interests at stake the Court of First Instance erred in law.
For the reasons set out above, the plea that the lack of any express weighing of those interests
amounts to a breach of the general principle of protection of freedom of expression cannot be accepted.
As I have said, what is at issue here is the interpretative method and not any substantive condition governing the conformity of the disputed acts with the Convention.
It is therefore not surprising that the Court of Human Rights has never found a breach of the Convention based on the sole ground that the national authorities omitted to carry out a specific exercise of that nature.
20 Rather, the Court of Human Rights, when considering the question of `necessity in a democratic society', analyses whether the interference is based on relevant and adequate grounds and whether it is proportionate to the legitimate aim pursued.
I shall confine myself to observing that in the contested judgment the Court of First Instance proceeded in almost exactly that way.
Paragraph 154 summarises the reasons for which the appointing authority considered that the second paragraph of Article 17 of the Staff Regulations had been infringed, namely that the appellant had not fulfilled the requirement of seeking permission prior to publication, that he could not have been unaware that, had he done so, permission would have been refused, and that publication of the book had caused serious harm to the interests of the Communities, in particular to the Commission's image and reputation.
These reasons are clearly relevant and, furthermore, were considered adequate by the Court of First Instance since it stated, in paragraph 155, that nothing in the decision removing Mr Connolly from his post suggested that a breach of Article 17 would have been found if the Communities' interests had not been
adversely affected.
That finding, which is expressed in a way reflecting the role that the Court of First Instance has to play, is particularly significant in the present context.
It can be seen from it that a failure to comply with the obligation laid down in the second paragraph of Article 17 of the Staff Regulations may serve as a basis for the imposition of such a serious disciplinary measure as removal from office only where the unauthorised publication has jeopardised the Communities' interests.
To put it in positive terms, the decision dismissing Mr Connolly for having contravened that provision satisfies the requirement of proportionality in that it finds that the work which was published caused serious prejudice to the Communities' interests.
21 Moreover, in paragraphs 152 and 153 of its judgment, the Court of First Instance considered in the abstract whether the rules laid down in the second paragraph of Article 17 are proportionate.
It may not have undertaken a detailed evaluation of the proportionality of the disciplinary measure actually imposed on Mr Connolly but that is explained by the fact that his conduct was not merely contrary to Article 17 but at the same time involved other infringements, including that of Article 12 of the Staff Regulations.
The Court's overall assessment is found, however, in the context of the sixth plea for annulment put forward at first instance.
22 It is thus clear that the Court of First Instance, when considering whether the disciplinary measure of removal from post, so far as it was based on Article 17 of the Staff Regulations, was compatible with the requirements of freedom of expression, took account of relevant and adequate reasons and rightly found that the measure was proportionate.
The appellant contends, nevertheless, that the Court of First Instance's assessment of the necessity of the measure is not legally valid.
However, his argument appears to be limited to criticising the omission in its reasoning of the term `pressing social need', so that it must be dismissed as manifestly unfounded.
23 It should be added that under the second paragraph of Article 17 of the Staff Regulations, permission may be refused only where the proposed publication is liable to prejudice the interests of the Communities.
In other words, permission is the rule and refusal the exception. Furthermore, in this context, which is exceptional, the verb `to prejudice' must not be understood as `to have an effect on' or `to affect', but as nothing less than `to jeopardise'. The Court of First Instance rightly interpreted the expression in that way in its judgment in Cwik v Commission. (9)
Upholding an application for annulment brought by a Commission official in respect of a decision refusing him permission to publish the text of a lecture, the Court of First Instance held that `in a democratic society founded on respect for fundamental rights, the public expression by an official of points of view which differ from those of the institution for which he works cannot, in itself, be regarded as jeopardising the Communities' interests.' (10)
The Court of Human Rights has, on many occasions, recognised the power of judicial bodies to rely on their case-law to expound the concept of `applicable law'. (11)
In short, a mere difference of opinion between the Community institution and one of its officials is not sufficient.
The text concerned must be capable of seriously prejudicing the interests of the Communities.
24 It seems to me that the appellant's criticisms of the very principle of what he calls a system of prior censorship are more worthy of attention.
He contends that a system of that kind is contrary to both Article 10 of the Convention and the constitutional traditions of a large number of the Member States.
By failing to acknowledge that fact, the Court of First Instance erred in law.
25 I must start by saying that I share the appellant's aversion to rules which, more or less directly, entail the general imposition of pre-publication censorship.
In my opinion, censorship may be justified only in those exceptional cases in which the misuse of freedom of expression may give rise to serious prejudice - serious in the sense of being intolerable from society's point of view - which is, moreover, irreparable.
I am thinking of situations in which minors need to be protected from images or other publications capable of interfering with the normal development of their personality or in which the dissemination of certain private or confidential information should be prohibited.
However, as the Court of First Instance rightly observed in paragraphs 152 and 153 of its judgment, the second paragraph of Article 17 does not entitle the appointing authority to act as a censor in the traditional sense of the term.
First, that provision applies only to publications dealing with the work of the Communities and permission may be refused only in those exceptional cases where publication is liable to jeopardise the interests of the Communities, and a decision to that effect may be appealed against.
Second, if permission is granted, the official is, to a considerable degree, protected from disciplinary measures in the event that publication of the text does actually jeopardise the Communities' interests. It would be an over-simplification, and thus wrong, to compare rules of this kind to the forms of censorship which are prohibited by the constitutional laws of various Member States.
On the contrary, the mechanism at issue is preventive and is justified by the special relationship of trust between employer and employee, in particular where the employee is carrying out duties of a public nature, as is the case here. The Court of Human Rights has recognised, specifically in the two main cases relied on by the appellant in support of his claims, namely Vogt v Germany (12) and Wille v Liechtenstein (13) that the duties and responsibilities of public officials assume particular significance in relation to Article 10(2) of the ECHR, which justifies allowing the competent authorities greater latitude in determining whether a penalty is necessary. (14)
26 It must be pointed out, furthermore, that contrary to what may be inferred from the appellant's submissions, the Court of Human Rights has not declared unlawful, as contrary to the Convention, even rules which result in the creation of systems of real censorship.
I refer again to the legislation considered in Wingrove.
The grant in the United Kingdom of a distribution licence - which could be refused if, inter alia, the video in question contravened criminal law, including the law against blasphemy - did not exempt its owner from any liability whatsoever.
However, the Court of Human Rights confined itself to ruling, confirming the point of view expressed in its judgment in the case of Observer and Guardian v United Kingdom, (15) that `the fact that the present case involves prior restraint calls for special scrutiny by the Court'. (16) In addition, in the latter judgment the Court of Human Rights had declared `for the avoidance of doubt' that Article 10 does not of itself prohibit all pre-publication restrictions. (17)
27 Referring to Observer and Guardian v United Kingdom, the appellant contends that the Court of Human Rights requires that any system of prior restraint must be amenable to effective judicial review, including a requirement of expeditiousness which Community law and practice are unable to fulfil.
It need merely be observed that at no time did Mr Connolly request permission to publish the book at issue and he could not, for that reason, exercise his right to bring an action for annulment of any decision refusing him permission.
His argument is, therefore, purely hypothetical and thus cannot be accepted.
28 The
various allegations contained in the first plea are, therefore, ineffective, inadmissible or unfounded, which leads me to propose that they should be rejected.
Second plea in law: it was wrong in law to fail to take account of the fact that officials on unpaid leave are not required to obtain permission to publish a text
29 The appellant claims that the obligation laid down in the second paragraph of Article 17 of the Staff Regulations applies only to officials in active employment and not to those who are taking unpaid leave on personal grounds.
He also submits that, by not allowing him to call witnesses to testify that his proposed interpretation reflected the prevailing practice in the Commission's Directorate- General II, the Court of First Instance distorted the evidence.
30 This ground of appeal is utterly without foundation. It is clear from paragraph 161 of the judgment of 19 May 1999 that the `principle' to which the appellant refers may be deduced solely from the fact that in 1985, when, on another occasion, the appellant took unpaid leave in order to spend a year working for a private financial organisation, the then Director-General of DG II did not deem it necessary to approve or comment on the texts prepared by Mr Connolly for that organisation.
That statement is not, in itself, indicative of a practice, and confirmation of it would therefore be pointless.
Consequently, it cannot be accepted that the evidence was distorted.
Moreover, the plea merely repeats the argument developed before the Court of First Instance and does not undermine the validity of the conclusion reached by that court in holding that it may be inferred from Article 35 of the Staff Regulations that, when on unpaid leave, an official does not lose his status as an official.
He therefore remains subject to the obligations borne by every official, in the absence of express provision to the contrary.
The second plea must therefore be rejected in its entirety.
Third plea in law: it was wrong in law to equate royalties with remuneration for the purposes of the second paragraph of Article 11 of the Staff Regulations
31 In both parts of this plea, the appellant argues that the Court of First Instance's interpretation of the second paragraph of Article 11 of the Staff Regulations is wrong in law, in so far as it equates royalties with payment for the purposes of that article, since royalties do not constitute consideration for any service rendered and do not compromise an official's independence.
Furthermore, the Court of First Instance's finding is in breach of the right to property laid down in Article 1 of the First Protocol to the Convention and fails to take account of the Commission's usual practice of authorising an official taking leave on personal grounds to receive royalties.
32 In this plea, the appellant reiterates submissions which he made before the Court of First Instance in the context of his second plea for annulment and which were properly rejected.
In paragraph 108 of the judgment under appeal, the Court of First Instance stated correctly that the prohibition contained in the second paragraph of Article 11 of the Staff Regulations is objective and extends to all types of payment, of whatever kind.
It cannot be denied that royalties constitute consideration for personal creative effort, for which reason they must not be confused with income produced by, for example, investments in property or securities.
There has, moreover, been no interference with the appellant's right to property since no claim has been laid to the sums he received from the sale of his book but, even if the appellant's spurious argument were accepted and it were conceded that such interference had occurred, it would be warranted on the ground that Article 11 pursues the legitimate aim of ensuring the independence of public servants and would be entirely proportionate to that objective.
That is the reasoning in paragraphs 110 and 111 of the judgment under appeal.
Finally, the complaint concerning the second sentence of paragraph 113 of the judgment is directed against reasoning which the Court of First Instance included only for the sake of completeness, for which reason the plea must be held, at best, to be ineffectual.
33 Therefore, the third plea in law must also be rejected.
Fourth plea in law:
errors in the classification and examination of the charges against Mr Connolly
34 In the first part of the fourth plea, the appellant alleges that the Court of First Instance's classification of the charges against him was not consistent with that used in the disciplinary proceedings, with the result that the basis of the investigation was irregular. Specifically, the Court of First Instance found, in paragraph 125 of the contested judgment, that the book at issue contained numerous `frequently insulting' remarks about senior members of the Commission's staff and about the institution itself, something which was not complained of by the appointing authority in its report to the Disciplinary Board.
35 Although it is true that the Court of First Instance did not use exactly the same terms as were employed in the appointing authority's report to the Disciplinary Board, the fact remains that, in point 25 of that document, the appointing authority found that `Mr Connolly makes certain derogatory and unsubstantiated attacks on Commissioners and other members of the Commission's staff in such a way as to reflect on his position and to bring the Commission into disrepute contrary to his obligations under Article 12.' Even though the expression `insulting statements' may be perceived to be a little more serious than `derogatory attacks liable to bring [the Commission] into disrepute', the slight semantic discrepancy, if discrepancy there be, is not sufficient to vitiate the arguments relied on by the Court of First Instance to show that the appointing authority was entitled to treat Mr Connolly's conduct as a breach of his duty of loyalty under Article 12 of the Staff Regulations.
36 The first part of this plea is thus unfounded.
37 In the second part of the plea, the appellant criticises the Court of First Instance for saying, in paragraph 128 of its judgment, that the book at issue publicly expressed `the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement'. That statement was borrowed from the Commission but was not to be found anywhere in the charges set out by the appointing authority in its report to the Disciplinary Board.
Furthermore, if any expression of dissent from the policy of a Community institution on the part of one of its officials were regarded as a breach of the duty of loyalty, freedom of expression as laid down in Article 10 of the Convention would become a dead letter.
Finally, Mr Connolly's duties did not involve carrying out Community policy but, more moderately, as stated in the Disciplinary Board's opinion, involved `monitoring monetary policy in the Member States and analysing progress towards economic and monetary union'.
38 All those complaints are unfounded.
First, it is clear from the report to the Disciplinary Board that one of the facts complained of was that the appellant had committed a breach of the general duty of discretion with regard to facts and information connected with the performance of his duties, laid down in the first paragraph of Article 17. That duty encompasses a fortiori expressions of dissent relating to those facts and information.
In any event, it is apparent from the documents before the Court that that charge was clearly explained to the Disciplinary Board, the body responsible for the investigative stage of the proceedings, and that Mr Connolly had an opportunity to defend himself.
As to the limits which may be imposed on freedom of expression, I refer to the remarks made in the course of my analysis of the first ground of appeal. Finally, the assessment of what Mr Connolly's substantive duties comprise is a question of fact which cannot be examined in an appeal.
However, it is clear even from the appellant's preferred description of his duties that, in performing them, he did actually play a role in implementing the Commission's policy.
39 In the third part of the fourth plea, the appellant states that the Court of First Instance erred in finding that the Disciplinary Board and the appointing authority had not dropped the charge that he had contravened Article 12 of the Staff Regulations.
According to the appellant, it is clear from the attitude adopted by the Commission in its defence that the charge had been dropped.
It need only be pointed out, without accepting the convoluted inferences which the appellant's legal adviser draws from the views expressed by the Commission in the proceedings, that in any event it is not for the Commission to define how the disciplinary procedure is to be presented to the court examining its legality.
40 I therefore propose that the fourth plea in law should be rejected as being inadmissible in part and, for the rest, unfounded.
Fifth plea in law:
the judgment errs in its reasoning as regards the classification of the charges against the appellant
41 Mr Connolly claims that at the appropriate time he stated in writing that, if the Disciplinary Board intended to take into account allegations of substantive infringements of Article 12 of the Staff Regulations, it should stay the disciplinary proceedings and refer the matter back to the appointing authority so that it might hear the appellant's views on them.
The appellant submits that the Court of First Instance erred in law in holding that the charges against him included not only formal infringements of Articles 11, 12 and 17 of the Staff Regulations but also breaches relating to the contents of the book.
In particular, the Court of First Instance was wrong to rely on arguments concerning the defamatory nature of the book in response to allegations relating to the charge of publishing an opinion which was at odds with the Commission's policy.
42 This plea reproduces the arguments advanced by the appellant before the Court of First Instance, which that court duly considered in paragraph 40 et seq. of its judgment without, in my view, committing any error which it is appropriate to examine in appeal proceedings. The Court of First Instance's concern was to refute the appellant's argument that it was inappropriate to include any charge relating to the contents of the book among the matters complained of and it did so in relation to the allegation that the appellant had brought his office into disrepute. Once the contents of the book were included amongst those matters, the exact classification at law of the statements it contains could be developed as the case progressed without any breach of the right to a fair hearing. Furthermore, the observation made by Mr Connolly before the Disciplinary Board referred specifically to charges based on Article 12 and cannot therefore serve to support the appellant's contention that there was confusion in the Court of First Instance.
43 Accordingly, the fifth plea must also be rejected as manifestly unfounded.
Sixth plea in law: wrongful consideration of charges in relation to which the principle audi alteram partem had not been observed and substitution of grounds
44 In the first part of the sixth plea, the appellant again complains that, in its reasoning, the Court of First Instance accepted a fact that was not proved in the course of the disciplinary proceedings, namely that there was a divergence of opinion between him and the Commission in relation to the establishment of economic and monetary union, and that the court relied for that purpose on a quotation from the book at issue which did not appear in the file.
45 Suffice it to say, as the Court of First Instance does in paragraph 97 of its judgment, that the reasoned opinion of the Disciplinary Board, under the heading `II - Explanations given by Mr Connolly in the company of his adviser, Mr Van Gehuchten', contains Mr Connolly's avowal of his fundamental disagreement with the Commission's policy, expressed in his book.
That disagreement was, furthermore, patent and well known and the book merely constituted an expression of it, as may be inferred from the passage quoted by the Court of First Instance. Therefore, it was a question not of adducing evidence which had not been established during the adversarial stage of the proceedings but of illustrating, by means of a quotation from the book giving rise to the dispute, a fact which the Court of First Instance, in its absolute discretion with regard to facts, considered to be well known and was entitled to accept as proven.
46 The second part of the plea challenges the accuracy of the findings made by the Disciplinary Board under the heading mentioned above.
It is manifestly inadmissible in that the aim pursued is to secure a new appraisal of facts which the Court of First Instance has already considered. The minutes of the meeting of the Disciplinary Board, on which the appellant seemingly purports to found the allegation that the evidence has been distorted, reveal, on the contrary, in particular on page 4, that the summary included by the Disciplinary Board in the disputed section of its reasoned opinion is correct.
47 In short, the sixth plea in law must, like those preceding it, be rejected.
Seventh plea in law:
error of assessment consisting in holding that the appellant, at his final meeting with the appointing authority, neither claimed that the reasoned opinion was based on charges which should have been regarded as new nor applied for the disciplinary proceedings to be reopened
48 Mr Connolly challenges the Court of First Instance's finding in paragraph 47 of its judgment that, in the course of the hearing before the appointing authority on 9 January 1996, he neither contended that the charges on which the Disciplinary Board's reasoned opinion was founded were new nor applied for the disciplinary proceedings to be reopened in accordance with Article 11 of Annex IX to the Staff Regulations.
According to the appellant, it is clear from the minutes of that meeting that during it his representative handed to the appointing authority the defence submissions already lodged with the Disciplinary Board in which, among other things, he requested that the proceedings be suspended and that the matter be referred back to the appointing authority so that a new hearing could be held, if the Disciplinary Board wished to take account of an alleged substantive infringement of Article 12 of the Staff Regulations.
49 The Court of First Instance does not appear to have committed a manifest error of assessment in that, as regards the matter under consideration, the minutes of the hearing on 9 January 1996 do not contain any explicit complaint concerning the introduction of new charges and makes only a general reference to the defence lodged with the Disciplinary Board.
In any event, it must be borne in mind that the court's reasoning in paragraph 47 was obiter since it had already concluded that the appointing authority's report set out the facts complained of sufficiently clearly for the appellant to be able to exercise his right to a fair hearing.
This ground of appeal must, therefore, in any event fail.
50 Accordingly, the seventh plea in law must also be rejected.
Eighth plea in law:
statement of grounds vitiated by failure to reply adequately to a submission made at first instance
51 In paragraph 48 of its judgment, the Court of First Instance holds that the statements in point 19 of the report to the Disciplinary Board refute Mr Connolly's contention that he was not charged in the report either with publishing an article on 6 September 1995 or with giving an interview on 24 September 1995.
The appellant, however, maintains that what he challenged at first instance was not the absence of any reference to those facts in the appointing authority's report but rather the fact that he was not heard by the authority in relation to them.
52 This ground of appeal is also nugatory since, even if it were accepted, it would have no legal effect.
I must emphasise, however, that what the Court of First Instance was concerned to do (and did indeed do) was to draw attention to the fact that the appellant knew what the conduct complained of was and that he could not claim that his right to a fair hearing had in any way been prejudiced.
53 Being of no effect, the eighth plea in law cannot therefore be accepted.
Ninth plea in law:
errors in the taking and appraisal of evidence adduced to show that there were procedural irregularities before the Disciplinary Board
54 In the two parts into which he divides this plea, the appellant complains that the Court of First Instance, in paragraphs 74, 84, 95 and 101 of its judgment, (i) did not draw the right conclusions from the documentary evidence before it and (ii) did not agree to take account of the additional evidence that he had produced.
Otherwise, the Court would have concluded that there were irregularities in the proceedings before the Disciplinary Board. Specifically, the Board's rapporteur failed to produce the prescribed report and the Board itself was perfunctory and biased in the exercise of its functions, judging by the attitude of its Chairman, and acted over-hastily when the time came to deliver its reasoned opinion, failing to give due consideration to the defence case.
Furthermore, the Court of First Instance did not specifically address the appellant's offer of witness evidence intended to establish procedural irregularity before the Disciplinary Board.
55 By this plea, the appellant is merely seeking to submit questions relating to the taking and appraisal of evidence to the scrutiny of the Court of Justice.
Such matters are not admissible in an appeal.
As regards the alleged error concerning the refusal to take witness evidence which Mr Connolly sought to adduce in order to prove that the Disciplinary Board had not been impartial, it need only be pointed out - as the Commission has done - that, for Mr Connolly to persuade the Court of First Instance to take oral testimony, he would have to have given a sufficiently clear indication that the evidence was relevant and likely to be of use.
56 Therefore, the ninth plea in law must be rejected.
Tenth plea in law:
improper administration of evidence relating to the alleged misuse of powers
57 The appellant complains, furthermore, that the Court of First Instance failed to give adequate reasons for not acceding to the application for production of a memorandum dated 28 July 1995 on the calculation of salary reductions in cases of suspension which he made in support of his submission that the decision removing him from his post entailed misuse of powers.
58 This is a further ground of appeal that is immaterial in that, even if it were taken into account, it would not form a sufficient basis for setting aside the judgment under appeal so far as the alleged misuse of powers is concerned. I shall merely observe that, in paragraph 174 of the contested judgment, the Court of First Instance held that the memorandum in question did not specifically concern Mr Connolly's dismissal and that it did not therefore establish the irregularity complained of.
Having found that the memorandum was not relevant for the purposes claimed, the Court of First Instance, in declining to order its production, did not fail to deal with it properly.
59 Consequently, the tenth plea in law must be rejected.
Eleventh plea in law:
failure to respond to allegations of misuse of powers
60 By this plea the appellant asserts that, in paragraphs 172 to 175 of the judgment under appeal, the Court of First Instance failed to reply to certain arguments capable of establishing that the disciplinary proceedings were invalidated by misuse of powers.
These included complaints relating to the existence of `parallel proceedings', `the failure to reply to the question concerning the exact scope of the disciplinary proceedings in relation to Articles 11, 12 and 17 of the Staff Regulations', `the absence of a logical connection between the premisses and the conclusions drawn in relation to the disciplinary proceedings', the fact that `the Commission maintained in its pleadings that the Disciplinary Board was not even obliged to read the contested book' and to `the deliberate and provocative appointment of the Secretary-General as Chairman of the Disciplinary Board'.
61 As the Commission rightly observes, it is clear from paragraphs 171 to 175 of the judgment under appeal that the Court of First Instance did not consider that Mr Connolly's suppositions constituted `objective, relevant and consistent evidence' capable of supporting his argument that the disciplinary measure imposed on him was pursuing an aim other than that of safeguarding the internal order of the Community civil service.
Although courts are obliged to give reasons for their decisions, they do not have to respond in detail to every single argument advanced. (18) The appellant has not established that his submissions were sufficiently clear and precise, or that they were adequately supported by evidence (19) such as to prove that, in not responding to them in detail, the judgment under appeal was vitiated by defective reasoning.
62 Therefore, the eleventh plea in law must be rejected.
Twelfth plea in law:
misapplication of rules of evidence relating to presumptions and of inductive logic
63 The appellant complains that the reasoning of the Court of First Instance is flawed where, in paragraph 155 of the contested judgment, it states that `it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly, there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression'.
The appellant submits that, in making that statement, the Court of First Instance inferred a previously unknown fact from one that was uncertain, whereas a properly drawn presumption involves inferring a previously unknown fact from one that is certain.
Furthermore, an inference, being uncertain (`it cannot be inferred from ...'), cannot serve as a basis for sound reasoning.
64 In my opinion, the appellant believes he can discern an error of logic because he has read the passage in question incorrectly and taken it out of context.
It is clear from paragraph 140 of the judgment under appeal that Mr Connolly complained that the system of prior permission gave rise to `unlimited censorship', contrary to Article 10 of the ECHR. The Court of First Instance set out a reasoned rejection of that argument in paragraph 152, recalling that permission is refused only exceptionally and that refusal may be justified only where the publication concerned is liable to prejudice the interests of the Communities.
It went on to say (paragraph 154) that the decision dismissing Mr Connolly was based, amongst other things, on the fact that his behaviour caused serious prejudice to the interests of the Communities, and, in particular, to the reputation and image of the Commission.
It concluded (paragraph 155) that there was nothing to suggest that, had Community interests not been prejudiced, the disciplinary measure of removal from his post for contravention of the second paragraph of Article 17 would have been imposed, for which reason there can be no basis for speaking of `unlimited censorship'. Having thus rejected, both generally and specifically, the possibility that the second paragraph of Article 17 might be relied on to prohibit all types of publication, as the appellant contended, the Court of First Instance was not precluded from finding, as it did, that the restraint actually imposed was not disproportionate in relation to the aim pursued.
65 The twelfth plea in law is therefore based on a manifestly incorrect reading of the judgment and must be dismissed.
Thirteenth plea in law:
defective reasoning of the judgment under appeal
66 By his last plea, the appellant asserts that it must be inferred from his other grounds of appeal that the charges against him have not been proved.
Therefore, he contends, the analysis of whether the disciplinary measure was proportionate, which the Court of First Instance opens with the statement in paragraph 166 that `the truth of the allegations against the applicant has been established', is invalid.
Moreover, by failing to take account of evidence of essential importance, in that no order was made for production of the memorandum of 28 July 1995 on the calculation of salary reductions in cases of suspension, the Court of First Instance's conclusion that there was no misuse of powers (paragraph 175) is vitiated by defective reasoning.
67 The first ground of appeal must fail as a result of the rejection of each and every one of the other pleas in law.
As regards the second ground of appeal, I refer to what I have already said in my analysis of the tenth plea and, in particular, to the lack of relevance of the evidence offered.
68 Accordingly, the thirteenth plea in law must also be rejected as manifestly unfounded.
Costs
69 Under Article 69(2) of the Rules of Procedure, which applies to appeals by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs. Consequently, if, as I suggest, the thirteen pleas in law relied on by the appellant are rejected, he should be ordered to pay the costs.
Conclusion
70 For the reasons that I have set out above, I propose that the Court of Justice should declare that the appeal is inadmissible in part and, for the rest, unfounded, for which reason it should be dismissed and the appellant should be ordered to pay the costs.
(1) - Joined Cases T-34/96 and T-163/96 Connolly v Commission [1999] ECR-SC I-A-87 and II-463.
(2) - Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968, Series I, p. 30). That regulation, which made numerous substantial amendments to Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 (OJ, English Special Edition 1959-1962, p.
135), has itself been amended on numerous occasions (as at March 1999, no fewer than 80 amendments).
(3) - Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49.
(4) - Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions, 1996-V, p. 1957.
(5) - § 27.
(6) - § 48 to § 51 of the judgment in Wingrove.
(7) - Judgment of 25 June 1992, Series A no. 239, § 58.
(8) - Application No 39293/98, published only in French.
(9) - Case T-82/99 Cwik v Commission [2000] ECR-SC I-A-155 and II-713.
(10) - Ibid., paragraph 57.
(11) - Case cited in note 7 above, § 58.
(12) - Judgment of 26 September 1995, Series A no. 323.
(13) - Judgment of 28 October 1999, no. 28396/95.
(14) - § 53 of the judgment in Vogt and § 62 and 64 of Wille.
(15) - Judgment of 26 November 1991, Series A no. 216.
(16) - Wingrove, § 58 in fine.
(17) - § 60.
(18) - See, as to the interpretation of Article 6(1) of the ECHR, the judgment of the Court of Human Rights of 19 April 1994 in Van de Hurk v Netherlands, Series A no. 288), § 61.
(19) - See also the judgment of the Court of Human Rights of 9 December 1994, Ruiz Torija v Spain, Series A no. 303-A, § 30.