JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

6 November 1997

Case T-223/95

Luigi Ronchi

v

Commission of the European Communities

‛Officials — Article 90(1) of the Staff Regulations — Implied decision rejecting a request — Article 24 of the Staff Regulations — Duty to provide assistance’

Full text in French II-879

Application for:

annulment of an implied Commission decision rejecting a request for assistance brought by the applicant on 30 January 1995 and payment of one symbolic ecu as compensation for the nonmaterial damage which he claims to have suffered.

Decision:

Decision annulled.

Abstract of the Judgment

At the close of 1994, a book written by Mr François d'Aubert entitled Main basse sur l'Europe - Enquête sur les dérives de Bruxelles was published in, among other countries, France, Belgium and Luxembourg. That book accused a Mr ‘Y’, a Commission official in Luxembourg, of a number of improprieties, in particular with regard to the establishment of a banking agency in a Commission building.

The applicant was at the time a Commission official based in Luxembourg. He took the view that, certain factual errors notwithstanding, it was possible to identify him as Mr ‘Y’.

By letter of 30 January 1995, he called on the appointing authority, in accordance with Article 24 of the Staff Regulations applicable to Officials of the European Communities (‘the Staff Regulations’) to take all necessary measures to restore his reputation and integrity. In the alternative, should the Commission not intend itself immediately to take appropriate steps against the author of the comments in question, the applicant requested authorisation to take such steps in his own name. He also sought authorisation to use, for that purpose, all material, even confidential material, at his disposal, and also sought provision of financial and technical assistance.

By letter of reply dated 27 February 1995, the Director-General of the Directorate-General for Personnel and Administration (DG ĪX) stated inter alia that he had requested his services to investigate whether there was any basis to the allegations contained in the abovementioned book, and asked the applicant to notify the Director of Directorate B ‘Rights and Obligations’ of DG IX of any relevant material which he might have in his possession. In that letter, the Director-General of DG IX also pointed out to the applicant that, under Article 17 of the Staff Regulations, he could not in any manner whatsoever disclose to any unauthorised person any document or information not already made public without having sought prior authorisation from the institution.

By letter of 2 March 1995 addressed to the Director-General of DG IX, the applicant pointed out to him that his ‘decision’ under Article 17 of the Staff Regulations deprived the applicant of any opportunity to take appropriate steps against the author and editor of the comments allegedly directed against him, adding that he was prepared to assist the Director of Directorate B or any other person suitably qualified in order to enable them to carry out a proper investigation.

On 5 April 1995 he wrote to the Director-General of DG IX, expressing surprise at not having been informed of the results of the investigation. He also pointed out that he had not yet been interviewed for the purposes of the investigation.

By letter of 3 May 1995, the Director-General of DG IX stated in reply that the investigation was still continuing and that it was inappropriate to rule on his request prior to its conclusion. He pointed out that his letter of 27 February 1995 did not prohibit the applicant from taking whatever steps he considered appropriate for the purpose of safeguarding his interests, subject to the provisions of Article 17 of the Staff Regulations.

On 17 July 1995 the applicant submitted a complaint under Article 90(2) of the Staff Regulations, which was registered on 7 August 1995.

Following submission of the complaint, the Commission became aware that the investigation had not progressed. The investigation was for that reason entrusted, on 11 September 1995, to the Head of Unit 1 ‘Personnel (Luxembourg)’ within DGIX.

Since the Commission had not adopted an express decision in response to his complaint, the applicant brought the present action on 7 December 1995.

The Head of the ‘Personnel (Luxembourg)’ Unit filed his investigation report on 22 December 1995.

By letter of 6 February 1996, the Director-General of DG IX informed the applicant that the administrative investigation undertaken by his services had just been completed. According to that letter, the investigation report highlighted the fact that no connection could be made between a whole series of allegations contained in the work ‘Main basse sur l'Europe’ and the applicant's professional activities. So far as the establishment of a banking agency was concerned, the investigation permitted the conclusion to be drawn that this operation had been carried out in compliance with established procedures. In the light of the documents on the file, the applicant could not be faulted in any way.

The applicant was appointed honorary director on the occasion of his retirement in March 1996.

Admissibility

The applicant's letter of 30 January 1995 constituted a request within the meaning of Article 90(1) of the Staff Regulations. It follows from the actual wording of that provision that the absence of a reply within the four months following submission of the applicant's request on 30 January 1995 amounted to an implicit rejection of that request (paragraphs 26 and 27).

Notification that a request made under Article 90(1) of the Staff Regulations is under consideration and that the Commission's services have not yet reached a definitive conclusion has no legal effect and cannot, in particular, extend the time-limits provided for under Articles 90 and 91 of the Staff Regulations (paragraph 28).

See: 24/69 Nebe v Commission [1970] ECR 145, paras 2 and 6; 40/71 Richez-Parise v Commission [1972] ECR 73, paras 8 and 9; T-38/91 Coussiosv Commission [1991] ECR II-763, para. 31

In the present case, the expiry of the period provided for under Article 90(1) of the Staff Regulations was not suspended or interrupted by the letter of 27 February 1995 from the Director General of DG IX or by his letter of 3 May 1995 (paragraph 29).

This conclusion cannot be invalidated by the fact that, in the context of a request for assistance under Article 24 of the Staff Regulations in regard to serious accusations concerning the professional integrity of an official in the performance of his duties, the administration is required initially to take the measures necessary to ascertain whether the accusations have any basis or not. Such an obligation cannot allow the institution concerned to derogate from the provisions of Article 90(1) of the Staff Regulations, which allow the official to require the administration to take a position in the form of a decision within a fixed period (paragraphs 30 and 31).

See: 53/72 Guillot v Commission [1974] ECR 791, para. 3; 128/75 N. v Commission [1976] ECR 1567, para. 10; T-135/89 Pfloesclmer v Commission [1990] ECR II-153, para. 17

In this case, the Commission did not in fact carry out the investigation in question between the submission of the applicant's request and the date on which the investigation was handed over to the Head of Unit ‘Luxembourg (Personnel)’. The latter concluded the investigation within a period of less than four months. The Commission has thus failed to demonstrate that it was impossible, or even difficult, for it to conclude its investigation either within the four-month period provided for under Article 90(1) of the Staff Regulations or within the additional four-month period provided for under Article 90(2) of the Staff Regulations, or even prior to the bringing of the action (paragraphs 32 and 33).

Substance

The claim for annulment

Article 24 of the Staff Regulations requires that, in the case of serious accusations concerning the professional integrity of an official in the performance of his duties, the administration should take all necessary measures to ascertain whether the accusations have any basis and, if they do not, to reject them and take whatever measures may be necessary to restore his damaged reputation (paragraph 48).

See: Guillot v Commission, cited above, paras 3 and 4; N. v Commission, cited above, para. 10; T-59/92 Caronna v Commission [1993] ECR II-1129, paras 92 to 99

In so far as it failed, in the face of a serious accusation concerning an official's professional integrity, to reject the accusation, to take any measure whatever to restore the official's reputation or even to take a position on his request for assistance, the Commission breached Article 24 of the Staff Regulations (paragraphs 49 and 50).

The Commission's contention that it was impossible for it to take a position earlier is contradicted by its admission that it did not begin to investigate until 11 September, that is to say, more than seven months after the applicant had lodged his request. Moreover, by thus omitting to carry out its investigation, the Commission failed to act with the necessary diligence (paragraphs 51 and 52).

The claim for compensation

Following conclusion of the investigation eventually undertaken by the administration, the Director-General of DG IX confirmed, in his letter to the applicant of 6 February 1996, that, in the light of the documents on the file, no criticism could be levelled against him and he could in no way be personally brought into question by certain passages of the disputed book. He also pointed out that the letter and investigation report were available to him. The Commission further declared in its rejoinder that the applicant's appointment as an honorary director confirmed the result of the investigation and the full confidence which it placed in him (paragraph 59).

In addition, the Commission did not prevent the applicant from instituting proceedings against Mr d'Aubert or any other person before the national courts. In this regard, it was for the applicant to take the initiative to bring proceedings, in accordance with the second paragraph, in fine, of Article 24 of the Staff Regulations, against those responsible for the damage which he regarded himself as having suffered and, with a view to preparing such proceedings, to discuss with the administration the parameters of the obligation of discretion imposed on him by Article 17 of the Staff Regulations. Thus, the onus was in particular on him to specify which documents he considered to be necessary for the purpose of possible proceedings before the national courts and to request prior approval for them to be produced, pursuant to Article 17 of the Staff Regulations (paragraph 60).

See: Carolina v Commission, cited above, para. 37

In those circumstances, and in any event, the annulment of the implied decision of rejection which is the subject of the action constitutes adequate reparation for the nonmaterial damage which the applicant claims to have suffered (paragraph 61).

Operative part:

The Commission's implied decision rejecting the request for assistance submitted by the applicant on 30 January 1995 is annulled.

The remainder of the application is dismissed.