JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

15 May 1997

Case T-273/94

N

v

Commission of the European Communities

‛Officials — Duty of loyalty — Suspicion of acts incompatible with the dignity of an official's office — Official's cooperation m good faith in investigations — Absence — Disciplinary proceedings — Removal from post’

Full text in French II-289

Application for:

first, annulment of the Commission's decision of 4 October 1993 removing the applicant from his post and, second, compensation.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant entered the service of the Commission on 31 January 1983, as a Grade A 4 official in the Directorate-General for Transport (DG VII). In June 1991, he was appointed Deputy Head of Unit with responsibility for air safety matters in Unit 3 (‘air safety, air traffic control, industrial policy and social aspects’) of Directorate C (‘Air Transport’) of DG VII.

Before entering the service of the Commission, he worked in the same field as a consultant to the Greek company Doxiadis Associates (Doxiadis), inter alia, in Nigeria.

From 26 June to 3 July 1992 he took leave and indicated on his leave form that he was going to Greece. However, during that same period, he also went to Nigeria.

In a note dated 6 July 1992 the Security Office of the Commission (Security Office) stated that, according to a reliable source who wished to remain anonymous, a large sum of money - USD 45 million - was to be paid into the personal bank account of the applicant, who was in Nigeria. That transfer supposedly represented the balance outstanding under a contract concluded between the Nigerian Government and the applicant and related to work carried out in 12. The same source considered that it could be a money laundering operation.

In the light of the documents submitted to it, the Société Générale de Banque, established in Brussels, where the applicant held his current account, refused to cany out the requested transfer.

In response to the information it had gathered, the Security Office of the Commission commenced an investigation and decided to interview the applicant.

By letter dated 8 October 1992 the Commission informed the applicant of its decision to initiate disciplinary proceedings against him and to grant him a hearing pursuant to Article 87 of the Staff Regulations of Officials of the European Communities (the Staff Regulations). The applicant was heard in accordance with Article 87 of the Staff Regulations on 16 October 1992.

In the context of those proceedings, Directorate B of DG IX sent a request for information to Doxiadis concerning its dealings with the applicant. Doxiadis replied by letter dated 5 January 1993.

In a report dated 24 March 1993 the Director General for Personnel and Administration, acting in his capacity as appointing authority, referred the applicant's case to the Disciplinary Board. It was alleged that the applicant had breached the duties of loyalty and trust owed by every official to the institution.

On 6 July 1993 the applicant was heard by the Disciplinary Board. Later that day, the Disciplinary Board issued a reasoned opinion. Having examined die information gathered, it concluded that it ‘considered that Mr [N] had committed a serious breach of the duties of loyalty and trust owed by every official to the institution in a manner likely to cause serious harm to its reputation’ and recommended that the appointing authority downgrade the applicant. On 10 September and 4 October 1993 the applicant was heard by the appointing authority. By decision of 4 October 1993 the appointing authority declined to follow the Disciplinary Board's recommendation and removed the applicant from his post (the contested decision).

The decision to remove the applicant from his post took effect on 1 December 1993.

The claim for annulment

Plea based on an irregularity in the disciplinary proceedings

The conditions under which the information giving rise to the disciplinary proceedings was obtained

When the Commission became aware of matters capable of harming its interests, it was required to undertake an investigation pursuant to Title VI of the Staff Regulations concerning disciplinary measures in order to be able to adopt, if appropriate, the necessary measures to secure or protect those interests (paragraph 69).

The Commission was not prevented from initiating disciplinary proceedings merely because the information may have been provided by a bank in breach of national provisions for the protection of secrecy (paragraph 70).

Furthermore, the initiation of disciplinary proceedings did not constitute a breach of the right to respect for private life (paragraph 71).

That fundamental right, which is also laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), forms an integral part of the general principles of law, the observance of which the Community judicature ensures, in accordance with constitutional traditions common to the Member States and with international treaties on which the Member States have collaborated or of which they are signatories (paragraph 72).

See: 136/79 National Panasonic v Commission [1980] ECR 2033, paras 17 and 18; C-62/90 Commission v Germany [1992] ECR I-2575, para. 23

Those principles, however, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which encroaches upon the very substance of the rights guaranteed (paragraph 73).

See: 265/87 Schroder [1989] ECR 2237, para. 15; Commission v Germany, cited above, para. 23; C-404/92 PXv Commission [1994] ECR I-4737, para. 18; T-176/94 K v Commission [1995] ECRSC II-621, para. 33

By initiating an investigation and, subsequently, disciplinary proceedings in response to information which might relate to unlawful actions of the applicant and, consequently, serious breaches of his obligations under the Staff Regulations, the Commission did not in any way act in a disproportionate and intolerable manner encroaching upon the very essence of the right to respect for private life (paragraph 74).

Course of the disciplinary proceedings

Although Article 1 of Annex IX to the Staff Regulations, concerning disciplinary proceedings, provides that the report submitted to the Disciplinary Board must state clearly the facts complained of, no other provision of the Staff Regulations contains any similar obligation at the stage of the preliminary interviews which are designed to verify the accuracy of the information gathered by the institutions. At that stage, the institution is not in a position to formulate charges against the official until such time as investigations have enabled it to determine whether disciplinary proceedings should be initiated (paragraph 79).

The Commission has an obligation to protect the anonymity of informants in certain circumstances. Article 214 of the Treaty - which requires members and servants of the institutions of the Community not to disclose information of the kind covered by the obligation of professional secrecy - contains a general principle which applies also to information supplied by natural persons, if that information is, by virtue of its nature, confidential. In the case of information supplied on a purely voluntary basis, but accompanied by a request for confidentiality in order to protect the informant's anonymity, the institution which accepts such information is bound to comply with such a condition. Proceedings subsequently initiated on the basis of information from an undisclosed source are not irregular, provided that the opportunity for the person concerned to make known his views on the truth or implications of the facts or documents communicated or on the inferences drawn by the Commission from them is not affected (paragraph 81).

See: 85/76 Hoffinan-La Roche v Commission [1979] ECR 461, para. 14; 145/83 Adams v Commission [1985] ECR 3539, para. 34

The inter partes character of proceedings such as those before the Disciplinary Board and the right to a fair hearing in such proceedings require that the applicant and, as the case may be, his lawyer should have knowledge of all the facts on which a decision has been based in sufficient time to submit their observations. However, in the absence of a request to that effect, no obligation on the part of the appointing authority to communicate the complete file to an official against whom disciplinary proceedings have been initiated can be inferred from the Staff Regulations (paragraph 88).

See: 228/83 F v Commission [1985] ECR 275, para 23; 255/83 and 256/83 R v Commission [1985] ECR 2473, para. 17; T-26/89 De Compte v Parliament [1991] ECR II-781 para. 122

It follows from the foregoing that the Commission is required to transmit to the person who is the subject of an investigation the documents which disclose facts which are important for the exercise of his rights of defence, but not necessarily other documents, in the absence of a request to that effect (paragraph 89).

See: F v Commission, cited above, para. 24; T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paras 51 and 52

Finally, as regards the applicant's allegation that the Commission did not respect his right to a fair trial as laid down by Article 6 of the European Convention on Human Rights, it is sufficient to note that proceedings before the Commission are administrative, rather than judicial, and that the Commission cannot be characterized as a ‘tribunal’ within the meaning of Article 6 of the Convention. The right to a fair trial, as contemplated in that article, cannot, therefore, be relied upon in the context of disciplinary proceedings (paragraph 95).

See: 100/80, 101/80 102/80 and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, para. 7; De Compte v Parliament, cited above, para. 94

The pleas alleging manifest errors of assessment of the facts and breach of the principle of proportionality

A decision removing an official from his post necessarily implies fine consideration on the part of the institution in view of the serious and irrevocable consequences of such a decision. The institution has wide discretion in that respect and the Court's role is limited to ascertaining whether the facts on which the decision is based are materially accurate and whether there has been any manifest error in the assessment of the facts and any misuse of powers (paragraph 125).

The specific obligation of the applicant which is in issue in the present case is that set out as follows in the first subparagraph of Article 12 of the Staff Regulations: ‘An official shall abstain from any action and, in particular, any public expression of opinion which may reflect on his position’ (paragraph 126).

That provision is intended to ensure that Community officials, in their conduct, present a dignified image in keeping with the particularly correct and respectable behaviour which one is entitled to expect from members of an international civil service (paragraph 127).

See: T-146/94 Williams v Court of Auditors [1996] ECRSC II-329, para. 65

It can be compared to the first subparagraph of Article 11 of the Staff Regulations, which provides that an official must conduct himself solely with the interests of the Communities in mind, and the first subparagraph of Article 21 of the Staff Regulations, which requires officials to assist and tender advice to their superiors (paragraph 128).

Those provisions, read together, show that an official owes a duty of loyalty to the institution to which he belongs and that in consequence of this he must, and all the more so if he is in a high grade, conduct himself in a manner that is beyond suspicion, in order that the relationship of trust between that institution and himself may at all times be maintained (paragraph 129).

It is apparent from the documents before the Court that the applicant made no serious effort to enable the Commission to clarify the facts which gave rise to the investigation. On the contrary, he lent greater weight to the legitimate queries of the institution to which he belonged by providing it with explanations that were inadequate, inconsistent and contradictory (paragraph 141).

Having examined the facts, the Court finds no grounds for holding that the Commission committed a manifest error of assessment by concluding that the applicant committed a serious breach of his obligations under the Staff Regulations (paragraph 145).

Where the truth of the facts alleged against an official is established, it is for the appointing authority to choose the appropriate disciplinary measure to be imposed. The Community judicature may therefore review the choice of measure only in the event of manifest error or misuse of powers (paragraph 147).

See: 46/72 De Greef v Commission [1973] ECR 543, para. 45; F v Commission, cited above, para. 34; De Compte v Parliament, cited above, paras 220 and 222; T-549/93 D v Commission [1995] ECRSC II-43, para. 96

In the present case, there is nothing in the documents before the Court to justify the finding that the penalty imposed was manifestly disproportionate to the official's failure to fulfil his obligations or that the Commission used its powers for a purpose other than that for which they were conferred on it.

The claim for compensation

Where there is a direct link between an action for annulment and a claim for compensation, the latter is admissible as incidental to the action for annulment and does not have to be preceded by a request from the party concerned calling upon the appointing authority to make good the damage allegedly suffered and by a complaint in which the complainant challenges the validity of the implied or express rejection of his request. However, a claim for compensation in respect of material and nonmaterial damage must be dismissed in so far as it has a direct link with an action for annulment which has itself been dismissed as inadmissible or unfounded (paragraph 159).

See: T-29/91 Castelletti and Others v Commission [1992] ECR II-77, para. 29; T-207/95 Ibarra Gil v Commission [1997] ECRSC II-31, para. 88; T-211/95 Petit-Laurent v Commission [1997] ECRSC II-57, para. 88

In the present case, there is a direct link between the claim for compensation and the action for annulment. In those circumstances, the claim for compensation is admissible, notwithstanding the fact that no prior request or complaint was made, but it must be dismissed on its merits in so far as examination of the pleas submitted in support of the action for annulment has disclosed no illegality on the part of the Commission and thus no fault such as to give rise to its liability (paragraph 160).

Furthermore, even if it were considered that there is no direct link between each part of the claim for compensation and the action for annulment, die claim would have to be dismissed as inadmissible, since, as it was raised for the first time in the application, it was not preceded by a proper pre-litigation procedure (paragraph 161).

See: T-53/92 Piene de Stachelski v Commission [1993] ECR II-35, para. 18

Operative part:

The application is dismissed.