JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

20 January 2011

Case F-132/07

Guido Strack

v

European Commission

(Civil service — Officials — Articles 17, 17a and 19 of the Staff Regulations — Application for authorisation to disclose documents — Application for authorisation to publish a text — Application for authorisation to use findings before national judicial authorities — Admissibility)

Application: brought under Articles 236 EC and 152 EA by which Mr Strack seeks annulment of Commission decisions of 20 July, 9 August, 11 September and 9 November 2007 rejecting the applicant’s application for authorisation to publish certain documents and to use them for the purposes of criminal proceedings against certain Commissioners and Commission officials and an order that the Commission pay him EUR 10 000 for the damage suffered as a result of those decisions.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1. Procedure — Lodging of defence — Time-limit — Extension

(Rules of Procedure of the Civil Service Tribunal, Art. 39(2))

2. Officials — Rights and obligations — Freedom of expression — Exercise — Limits

(Art. 6(3) TEU; Staff Regulations of Officials, Art. 17a)

3. Officials — Rights and obligations — Freedom of expression — Publication of texts dealing with the work of the Union — No obligation to inform in the case of former officials — Disclosure of information relating to the service — Requirement of prior authorisation for former officials

(Staff Regulations of Officials, Arts 17 and 17a)

4. Officials — Actions — Request under Article 90(1) of the Staff Regulations —Definition

(Staff Regulations of Officials, Art. 90(1))

5. Officials — Rights and obligations — Disclosure of information relating to the service — Requirement of prior authorisation — Justification

(Art. 339 TFEU; Staff Regulations of Officials, Art. 17)

6. Officials — Rights and obligations — Disclosure of information relating to the service — Requirement of prior authorisation — Need to submit a sufficiently specific request to the administration

(Staff Regulations of Officials, Art. 17)

7. Officials — Principles — Principle of sound administration — Scope

8. Officials — Rights and obligations — Disclosure of information relating to the service — Giving evidence before a national court — Requirement of prior authorisation

(Staff Regulations of Officials, Arts 11, first para., 17 and 19)

1. Article 39(2) of the Rules of Procedure of the Civil Service Tribunal allows its President to grant an extension of the time-limit laid down for the defendant to lodge a defence. In that regard, the fact that several extensions have been granted in the absence of adversarial argument does not breach the applicant’s right to fair legal process if the position of the parties has not been substantially changed. The fairness of a procedure has to be assessed in the light of that position taken as a whole.

(see para. 31)

2. The obligation to inform the appointing authority of an intention to publish any text dealing with the work of the Union constitutes an interference in an official’s exercise of freedom of expression. That interference must, therefore, be assessed in accordance with Article 10(2) of the European Convention on Human Rights, which guarantees fundamental rights forming part of European Union law as general principles pursuant to Article 6(3) TEU. Under Article 10(2) of the Convention the exercise of freedom of expression, ‘since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties’ as are prescribed by law. Moreover, a rule may not validly impose restrictions on freedom of expression if it is not set out sufficiently clearly to allow a citizen to adapt his conduct, which the principle of legal certainty also requires.

(see para. 59)

See:

6 March 2001, C-274/99 P Connolly v Commission, paras 40 to 42; 3 June 2008, C-308/06 Intertanko and Others, para. 69

3. As Article 17a of the Staff Regulations is not applicable to former officials, they may publish texts dealing with the work of the Union without informing the appointing authority beforehand, but they are required to seek authorisation for the purposes of Article 17 of the Staff Regulations, not only before disclosing information which came to their knowledge in the performance of their duties, but also before publishing texts which they drew up, or on which they collaborated, containing such information, unless that information has already been made accessible to the public.

(see paras 62-64)

4. A request based on Article 90(1) of the Staff Regulations must specify its purpose sufficiently clearly for the authority to be able to take a decision in full knowledge of the facts and, in the absence of a specific request for a decision, there can be no request within the meaning of that provision. A request cannot achieve its aim if the appointing authority is not sufficiently informed of its purpose.

(see para. 69)

See:

12 March 1975, 23/74 Küster v Parliament, para. 11

11 June 1996, T-110/94 Sánchez Mateo v Commission, para. 26; 11 June 1996, T-111/94 Ouzounoff Popoff v Commission, para. 28

5. Article 17 of the Staff Regulations prohibits officials, as a rule, from disclosing information received in the performance of their duties and makes such disclosure subject to prior authorisation. That requirement of authorisation is intended to allow the appointing authority to ensure that such disclosure does not damage the interests of the Union, inter alia, by affecting its reputation. It is also intended to put the Union in a position to make sure, in good time, that officials adapt their conduct in accordance with the interests of the institutions and the obligations incumbent on them under Article 339 TFEU. The measures laid down by Article 17 of the Staff Regulations thus contribute, inter alia, to the maintenance of the necessary relationship of trust between the institutions and their staff.

(see para. 71)

6. The measures laid down by Article 17 of the Staff Regulations provide that an official who wishes to disclose information which came to his knowledge in the performance of his duties or to use findings made in that connection before national judicial authorities is required to submit a sufficiently specific request to the appointing authority.

The implementation of those measures presupposes that the question whether it is appropriate to authorise the disclosure of information is assessed in the light of all the specific circumstances of the case and their implications for the institution and for the performance of public service. Such implementation also requires that a balance be struck between the different interests in play in order to determine whether the interest of the Union or the interest of the public in receiving information should prevail. Moreover, it cannot be otherwise since freedom of expression entails freedom to distribute information and a refusal to authorise such distribution on the basis of an overall and abstract assessment would not comply with the conditions under which interference in that freedom is permissible.

Moreover, the very substance of the right of every individual to a fair trial, guaranteed by Article 6 of the European Convention on Human Rights, might be affected if the appointing authority were to rule in general and in the abstract without having first made a full and detailed examination.

(see paras 72-75)

See:

18 February 1992, C-54/90 Weddel v Commission, Opinion of Advocate General Van Gerven, point 11

13 June 2002, T-74/01 Ferrer de Moncada v Commission, para. 58

7. The principle of sound administration does not exempt a public servant from the obligation to provide information and to act in good faith towards the institutions incumbent on him when he makes a request to those institutions.

(see para. 79)

See:

23 January 2002, T-386/00 Gonçalves v Parliament, para. 74; 17 October 2002, T-180/00 Astipesca v Commission, para. 93; 11 March 2003, T-186/00 Conserve Italia v Commission, para. 50

8. Articles 17 and 19 of the Staff Regulations do not, it is true, require an official to limit the number and volume of the documents he asks to be authorised to disclose or produce before a court if he considers that the disclosure and production before the court of each of those documents is justified. However, in accordance with the duty of that official to cooperate in good faith under the first paragraph of Article 11 of the Staff Regulations, it is incumbent upon him to facilitate the task of the administration. In that light, the obligation on him to provide sufficiently specific information, inter alia as regards the subject-matter of the documents in question and their relevance to his general objective, is all the more compelling. An official may, therefore, be asked to classify documents according to appropriate and consistent criteria in order to facilitate their examination, and to provide a summary, where necessary.

(see paras 78, 81)