JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

16 October 1998

Case T-40/95

V

v

Commission of the European Communities

‛Officials — Disciplinary procedure — Removal from post — Appeal — Referral to Court of First Instance — Truth of the facts — Rights of the defence’

Full text in French II-1753

Application for:

annulment of the Commission decision of 18 January 1995 removing the applicant from his post without reduction or withdrawal of entitlement to retirement pension.

Decision:

Annulment.

Abstract of the Judgment

The applicant, Mr V, entered the Commission's service in 1988. On 24 May 1991 the applicant, his wife, Mrs G, and a colleague, Mr K, took part in competition EUR/B/21, which consisted of an accountancy part and an auditing part. A marker noticed similarities between the three candidates' answers to certain accountancy and auditing questions and also between a number of answers and the Court of Auditors auditing manual.

On 19 February 1992 the appointing authority informed the applicant that disciplinary proceedings had been opened against him on the ground that he was suspected of having communicated with two other candidates. At the hearing held on 3 June 1992 the applicant admitted having supplied draft answers, in the form of carbon copies, to both his wife and Mr K during the tests. However, he denied having had advance knowledge of the questions and/or the model answers.

On 17 February 1993 the appointing authority referred the matter to the Disciplinary Board. On 11 October 1994 the Disciplinary Board recommended, although a minority took the view that because of the contradictory statements a reprimand should be imposed, that the disciplinary measure referred to in Article 86(2)(c) of the Staff Regulations of Officials of the European Communities (Staff Regulations), namely downgrading to Grade C 4, maintaining his seniority in step, be applied to the applicant.

On 18 January 1995 the appointing authority removed the applicant from his post without reduction or withdrawal of entitlement to retirement pension, with effect from 1 March 1995 (contested decision).

On 17 February 1995 the applicant lodged an action for the annulment of that decision. By judgment of 28 March 1996 (Case T-40/95 V v Commission [1996] ECRSC II-461) the Court of First Instance annulled the decision on the ground that it did not contain an adequate statement of reasons and did not examine the other pleas and requirements put forward by the applicant. The Commission appealed against that judgment. On 20 November 1997 the Court of Justice set aside the judgment of 28 March 1996 and referred the case back to the Court of First Instance for a decision on the other pleas raised by Mr V at first instance.

Substance

Pleas alleging the illegality of the disciplinary measure and a manifest error of assessment.

The legality of any disciplinary measure presupposes that the truth of the facts alleged against the person concerned is established (paragraph 49).

See: T-12/94 Daffix v Commission [1997] ECRSC II-1197, para. 64

It follows from the first recital of the contested decision that the Commission upheld two complaints against the applicant; first, that during the accountancy and auditing tests he colluded with Mr K and Mrs G in subsection 1 of accountancy test A1 and with one of those two candidates as regards most of the remaining questions; and, second, that he had advance knowledge of the model answers to the accountancy questions and perhaps to the auditing questions, namely either of the wording of the questions or some of them, or of both the model answers and the questions.

The first complaint is established by the applicant's own admission.

It follows from the contested decision that the applicant was removed from his post because he had advance knowledge of the model answers to the accountancy questions. The appointing authority had no specific proof of that fact, however, but inferred it from the fact that Mr K's answer was virtually identical to the model answer and that he must have prepared his answers with the help of the draft answers which the applicant admitted having passed to him, not from the fact that the applicant's answer was similar to the model answer. The Commission also seems to maintain, however, that that similarity, although less striking, is none the less sufficient to establish in itself that the applicant was in possession of the model answer.

On examining the file, the Court concludes that the complaint that the applicant had the model answer in advance was not established.

Since the Commission committed an error of assessment by relying on facts which had not been established, the decision of 18 January 1995 must be annulled.

Operative pari:

The Commission's decision of 18 January 1995 removing the applicant from his post is annulled.