Opinion of Mr Advocate General Elmer delivered on 29 May 1997. - Commission of the European Communities v V. - Officials - Removal from post - Statement of reasons. - Case C-188/96 P.



European Court reports 1997 Page I-06561



Opinion of the Advocate-General

Introduction

1 In the present appeal the Commission claims that the Court of Justice should quash the judgment delivered by the Court of First Instance on 28 March 1996 in Case T-40/95 V v Commission, (1) in which the Court of First Instance annulled the Commission's decision of 18 January 1995 removing Mr V from his post, on the ground that it did not contain an adequate statement of reasons.

The relevant Community rules

2 Article 190 of the EC Treaty provides that:

`Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.'

3 The second paragraph of Article 25 of the Staff Regulations of Officials of the European Communities provides that:

`Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.'

Facts of the case

4 The Court of First Instance set out the facts of the case in its judgment as follows:

`1 [Mr V] is a former Grade C 3 official of the Commission ...

2 On 24 May 1991 [Mr V], his wife and one of his colleagues, Mr K, took part in the written accountancy and auditing tests in Open Competition EUR/B/21 ... organized jointly by the Commission and the Court of Auditors. By letter of 10 July 1991 one of the examiners marking the written tests informed the selection board responsible for the competition in question that he had noticed similarities in the answers of the three candidates to certain accountancy and auditing questions and also similarities between certain answers and the Court of Auditors auditing manual.

3 By letter of 19 February 1992 the appointing authority informed [Mr V] of its decision of the same day to open disciplinary proceedings against him on the ground that he was suspected of having communicated with two other candidates in Competition EUR/B/21 ...

6 ... [Mr V] admitted having supplied his rough notes in the form of carbon copies to his wife and Mr K during the tests for Competition EUR/B/21. However, he denied having had knowledge of the questions and/or the model answers to the written tests prior to the tests on 24 May 1991.

7 On 17 February 1993 the appointing authority decided to refer the matter to ... the Disciplinary Board ...

8 On 11 June 1993 the Disciplinary Board ... advised the appointing authority to reprimand [Mr V]. It found that he had acted in breach of his duties under the Staff Regulations, inasmuch as he had admitted having passed rough notes to two candidates during the written tests, but found unproven the charge that he had had advance knowledge of the questions and/or model answers.

9 ... Mr K ... appeared at a hearing before the appointing authority on 28 July 1993. In the course of that hearing he stated that on the day before the written tests [Mr V] himself had told him that he was in possession of the questions which were to be put during the tests. The questions had allegedly been given to [Mr V] by a group in the Security Office in Luxembourg, which had distributed information on the tests in the competition to a limited number of persons ...

10 By memorandum of 17 September 1993 the appointing authority informed [Mr V] of its decision to suspend the disciplinary proceedings against him temporarily in order to proceed with the administrative investigation "in the light of the new evidence disclosed at the recent hearings" ...

11 By a further report of 5 November 1993 the appointing authority reopened the proceedings against [Mr V] before the Disciplinary Board ...

15 ... the Disciplinary Board delivered a second opinion on 11 October 1994, the final part of which is worded as follows:

"... whereas the majority of its members are satisfied that Mr V was in possession of the questions before the tests;

... the Disciplinary Board recommends, by a majority, that the appointing authority should impose on Mr V the disciplinary measure provided for in Article 86(2)(e) of the Staff Regulations by downgrading him to Grade C 4, maintaining his seniority in step."

16 ... on 18 January 1995 the appointing authority adopted a decision imposing on [Mr V] the disciplinary measure referred to in Article 86(2)(f), namely removal from his post, with effect from 1 March 1995. The statement of reasons of the decision reads as follows:

"...

it follows from the minutes of the hearing of Mr V and from the opinions of the Disciplinary Board that Mr V admitted passing rough notes to Mr K during the written tests ...

Mr V's conduct is aggravated by the circumstances described below;

it follows from Mr K's paper that his answer ... is very similar to Mr V's answer;

...

it is apparent from the documents before the appointing authority that the elements forming the basis of the answer cannot have been taken from the Court of Auditors auditing manual ...

... the appointing authority therefore finds that Mr V had the model answer ... and necessarily had it before entering the examination room; he therefore took advantage of a leak;

Mr V therefore deliberately attempted to distort the results of an open competition, contrary to the principle that candidates for Community posts must be placed on an equal footing for the purpose of the tests in those open competitions;

that conduct also gave rise to a serious risk that candidates who did not in reality possess the required professional ability could succeed in the tests in that open competition, which would have been detrimental both to the other candidates and to the interests of the institution;

by failing to provide any indication of the origin of the model answer in question [Mr V] failed in his duty to cooperate in establishing the true facts, in the interest of the institution;

Mr V, a former inspector in the Belgian police force and official in the Security Office ... performed important duties involving responsibility and trust;

the institution is entitled, because of the nature of their duties, to expect irreproachable honesty on the part of its officials, and in particular a former official of the Security Office;

the conduct of Mr V, who abused the trust which must exist between an official and his institution, was extremely serious;

for those reasons, and in light of all the circumstances of the case, it is necessary and justified to apply to Mr V a more severe disciplinary measure than that recommended by the Disciplinary Board."'

Procedure before the Court of First Instance

5 Mr V brought proceedings before the Court of First Instance on 17 February 1995 for the annulment of the decision. He submitted five pleas in law in support of his action. Having regard to the facts of the case, the Court considered it appropriate to begin by considering Mr V's last plea, alleging a breach of the principle of proportionality and an inadequate statement of reasons for the contested decision.

6 The Court held as follows:

`35 It should be observed, first, that the Court of Justice and Court of First Instance have consistently held that the obligation to state the reasons on which a decision adversely affecting a person is based is intended both to provide the person concerned with the information necessary to decide whether the decision is properly founded and to allow judicial review ...

36 Whenever the appointing authority imposes a disciplinary measure on an official, the statement of the reasons for its decision must specify the acts which the official is found to have committed and the considerations which have led the appointing authority to impose the particular penalty. Furthermore, if, as in this case, the penalty imposed by the appointing authority is more severe than that suggested by the Disciplinary Board, the decision must set out in detail the grounds which have led the appointing authority to disregard the Board's opinion ...

40 ... both the Disciplinary Board and the appointing authority were decisively influenced in their assessment of the intrinsic gravity of the charges against [Mr V] essentially by the allegation that he possessed the model answers before the tests.

41 The appointing authority, however, found that [Mr V's] conduct was more serious than had been found by the Disciplinary Board, but did not set out in detail, by additional reasoning, the grounds which led it to disregard the Board's opinion.

...

50 ... the circumstances on which the appointing authority relies cannot in the present case justify its decision to remove [Mr V] from his post rather than downgrade him as recommended by the Disciplinary Board.

51 ... the decision should have contained a detailed statement of the grounds on which it was based and should have mentioned the reasons for which the appointing authority could be justified in refusing to take into consideration the mitigating factors which had been decisive in the Disciplinary Board's choice of the penalty to be recommended.

...

53 In the light of all the foregoing, the contested decision must be annulled on the ground that it does not contain an adequate statement of reasons, without its being necessary to consider the other pleas in law and arguments put forward by [Mr V].'

Pleas in law and arguments of the parties in the appeal

7 In the present appeal, the Commission relies on three pleas in law in support of its submission that the judgment of the Court of First Instance should be quashed. The Commission maintains, first, that the Court of First Instance misinterpreted the scope of the obligation to state reasons. Second, it maintains that the Court of First Instance erred in law in its assessment of what the appointing authority found to be aggravating factors in the contested decision. In the Commission's view, the Court of First Instance also erred in law in taking the view that the contested decision should have considered all the mitigating factors noted by the Disciplinary Board. Third, and finally, the Commission maintains that the Court of First Instance erred in its definition of the degree of proof required to establish a disciplinary offence.

8 Mr V contends that it follows from Article 51 of the EC Statute of the Court of Justice that an appeal to the Court is limited to points of law. Since the present appeal relates solely to findings of fact it is inadmissible. In the alternative, Mr V submits that the appeal must be dismissed as unfounded.

First plea and second branch of the second plea put forward by the Commission

9 By its first plea and the second branch of its second plea, the Commission claims that there is no basis for the finding of the Court of First Instance that the statement of reasons for the contested decision is inadequate. The Commission points out in that regard that the Court of First Instance laid down requirements more extensive than the interests that the obligation to state reasons serves, namely to allow the person concerned and the courts to determine whether the facts relied on are of such a kind as to justify the sanction imposed.

In the present case the obligation to state reasons was complied with in full, since the appointing authority's decision makes express reference to the reasons for which it decided to impose on Mr V a more severe penalty than that recommended by the Disciplinary Board. In that regard, the Court of First Instance confused the complaint alleging an inadequate statement of reasons with the potential complaint that the reasons actually given to justify the decision might be ill founded. The Commission did not ignore the mitigating factors in the case but failed to mention them in the contested decision, since in the present case they were overshadowed by the aggravating circumstances.

10 Mr V claims that the Commission's plea relating to the scope of the obligation to state reasons is inadmissible, since the Commission is in reality seeking to have the facts reassessed by the Court, contrary to Article 51 of the EC Statute of the Court of Justice. As regards the substance of the plea, Mr V submits that the Court of First Instance was right to find that there had been a breach of the obligation to state reasons, since, in particular, the appointing authority did not take into consideration the mitigating factors mentioned by the Disciplinary Board.

Admissibility

11 The Court of Justice held in Commission v Daffix (2) (hereinafter `Daffix'), which also concerned the obligation to state reasons where the appointing authority imposes a more severe penalty on an official than that recommended by the Disciplinary Board, that:

`... the statement of the reasons on which a decision adversely affecting a person is based must allow the Court to exercise its power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded ...

Accordingly, the fact that a statement of reasons is lacking or inadequate, hindering that review of legality, constitutes a matter of public interest which may, and even must, be raised by the Community Court of its own motion ...

... consideration of such pleas may take place at any stage in the proceedings ...' (paragraphs 23, 24 and 25).

12 The Court of Justice therefore found in Daffix that it was competent to rule in an appeal on whether the Court of First Instance had erred in its assessment of the obligation to state reasons laid down in Article 190 of the Treaty and Article 25 of the Staff Regulations, since that is a question of law. A review by the Court of Justice in that context of the legality of a decision must necessarily take into consideration the facts on which the Court of First Instance relied in reaching its conclusion that the statement of reasons was or was not adequate.

13 Accordingly, I consider that Mr V's objection of inadmissibility cannot be upheld.

Substance

14 The Court of First Instance stated in the judgment under appeal that it was appropriate first to examine Mr V's plea alleging `breach of the principle of proportionality and inadequate statement of reasons'. After referring to the case-law on the obligation to state reasons, the Court stated in paragraph 37 that it was necessary to consider whether the obligation to state reasons had been satisfied in the present case. The Court established the facts of the case in paragraphs 38 to 42. In paragraphs 43 to 50 it examined whether the circumstances on which the appointing authority relied could justify the adoption of a more severe penalty than that recommended by the Disciplinary Board. In paragraph 51 the Court observed that the decision should have contained a detailed statement of the grounds on which it was based and should have mentioned the reasons why any mitigating factors could not be taken into consideration. In paragraph 52 the Court found that the decision did not contain a statement of reasons sufficient to justify the choice of a penalty other than that recommended by the Disciplinary Board and in paragraph 53 it annulled the decision on the ground that it did not contain an adequate statement of reasons.

15 To my mind the judgment under appeal does not reveal very clearly the grounds on which the Court of First Instance actually reached its decision. Since it annulled the contested decision purely on the ground of an inadequate statement of reasons, it might appear at first sight that that was the only matter which the Court addressed. It is apparent on reading the judgment in its entirety, however, that the plea being considered relates both to the question of the statement of reasons and to the question of breach of the principle of proportionality and that the Court of First Instance dealt with the question of breach of the principle of proportionality in paragraphs 43 to 50 and with the question of compliance with the obligation to state reasons in paragraphs 51, 52 and 53.

16 However, those are two different questions which the Court of First Instance appears to have fused into a single question. The question of the absence or inadequacy of a statement of reasons concerns whether the contested decision indicates with sufficient clarity why the appointing authority chose to disregard the penalty recommended by the Disciplinary Board and is therefore more procedural in nature. The second question, which concerns a breach of the principle of proportionality, is a purely substantive question; it consists in determining whether the grounds relied on constitute an adequate basis for imposing the penalty chosen. In other words, while the first question relates to whether a statement of reasons was provided, the second relates to whether the reasons given are valid.

17 It would have been more logical, therefore, if the Court had first determined whether the contested decision contained an adequate statement of reasons and then, if appropriate, whether the reasons provided were valid. If the Court had found that the statement of reasons was inadequate the decision should have been annulled for that reason and it would have been unnecessary to consider the second question. If, on the other hand, the Court had considered that the decision contained an adequate statement of reasons it would then have had to consider whether there had been a breach of the principle of proportionality.

18 That approach is consistent with the case-law of the Court of Justice on the obligation to state reasons, (3) according to which the obligation to state the reasons on which a decision adversely affecting a person is based is intended inter alia to allow for judicial review. Where a decision is found not to contain an adequate statement of reasons that is precisely because it does not contain sufficient information to allow judicial review of its legality.

19 Although it is apparent from the wording of its judgment that the Court of First Instance considered both whether there had been a breach of the principle of proportionality and whether the contested decision contained an adequate statement of reasons, it must none the less be concluded that in paragraph 53 of the judgment the Court annulled the decision on the ground that it did not contain an adequate statement of reasons, (4) so that it is only possible in the present appeal before the Court of Justice to determine whether that finding by the Court of First Instance constitutes an error of law.

20 The judgment states in paragraph 16 that it follows from the contested decision that the circumstances of fact on which the appointing authority's decision is based are supported by the following factors:

- Mr V acknowledged at his interview before the Disciplinary Board that he had passed rough notes to a colleague during the written tests.

- That colleague's answer to the accountancy question was very similar to Mr V's answer.

- Mr V had the model answer to one test question and necessarily had it before entering the examination room; he therefore took advantage of a leak.

21 There is scarcely any doubt, therefore, that the contested decision sets out with sufficient clarity the facts established against Mr V. It should be pointed out in that regard that the decision marked the culmination of a disciplinary procedure initiated in 1992 and that Mr V was regularly informed of its progress. The decision in this regard therefore provides the person to whom it is addressed with the information necessary to know whether or not it is well founded and allows for judicial review.

22 According to paragraph 16 of the judgment, the appointing authority also went on to state in its decision that the facts attributed to Mr V and set out above were accompanied by certain aggravating circumstances, namely:

- Mr V had thus deliberately attempted to distort the results of an open competition, contrary to the principle that candidates must be placed on an equal footing for the purpose of the tests in such competitions;

- Mr V's conduct entailed a serious risk that candidates who did not possess the required qualifications would be successful in the tests, which would have been detrimental both to the other candidates and to the interests of the institution;

- by refusing to provide any indication of the origin of the model answer, Mr V had failed to fulfil his duty to cooperate;

- Mr V, a former inspector in the Belgian police force and official of the Security Office, performed important duties involving responsibility and trust;

- the institution is entitled to expect irreproachable honesty on the part of its officials, in particular a former official of the Security Office;

- Mr V had abused the trust between the official and his institution.

Consequently, the appointing authority concluded that `for those reasons, and in light of all the circumstances of the case, it is necessary and justified to apply to Mr V a more severe disciplinary measure than that recommended by the Disciplinary Board'.

23 The Court of First Instance pointed out in paragraph 41 of the judgment that the appointing authority had found that Mr V's conduct was more serious than had been found by the Disciplinary Board, but did not set out in detail, by additional reasoning, the grounds which had led it to disregard the Board's opinion. The Court further pointed out in paragraph 51 that the appointing authority had not taken into consideration the mitigating factor accepted by the Disciplinary Board in favour of Mr V, based on six years' irreproachable service and his previous staff reports. For those reasons, the Court found in paragraph 52 that `the decision does not contain any ground adequately specifying the reasons for which the appointing authority imposed on [Mr V] the sanction of removal from his post, which was much more severe than that recommended, on the basis of the same facts, by the Disciplinary Board'.

24 It follows from a consistent line of decisions (5) that the obligation to state the grounds on which a decision adversely affecting a person is based is intended, inter alia, to allow for judicial review. It also follows from the case-law that if, as in this case, the sanction imposed by the appointing authority is more severe than that recommended by the Disciplinary Board, the decision must set out in detail the grounds which have led the appointing authority to disregard the Board's opinion. (6)

25 It follows from the reasoning in point 22 above that the appointing authority indicated, in the contested decision, the reasons for which it disregarded the sanction recommended by the Disciplinary Board, namely the aggravating circumstances which the appointing authority had found to exist in the present case. It is also apparent on reading the judgment of the Court of First Instance that those reasons were sufficient to allow judicial review of the substantive legality of the decision, since the Court made such an evaluation in its judgment.

26 It does not appear to follow from the case-law cited above that decisions imposing more severe sanctions than those recommended by the Disciplinary Board are required to state which reasons the appointing authority, when choosing the sanction, considered that it should not accept. Nor would that make a great deal of sense. The reasons which must be set out are those which in the appointing authority's opinion justify the choice of a more severe sanction.

27 It is arguable, of course, that the appointing authority might have stated in the present case that `the circumstances referred to by the Disciplinary Board based on six years' irreproachable service and previous staff reports cannot justify a different solution'. To my mind, however, such an express reference to mitigating factors is unnecessary, since it is implicit in the decision that the appointing authority took those factors into consideration, provided that they were set out in the Disciplinary Board's opinion.

28 I consider, therefore, that the finding by the Court of First Instance in paragraph 52 of the judgment that the contested decision does not contain any ground adequately setting out the reasons why the appointing authority imposed on Mr V the sanction of removal from his post, which was more severe than that recommended, on the basis of the same facts, by the Disciplinary Board, constitutes an error of law.

29 Similarly, the Court of Justice reached the same conclusion in Daffix, cited above, although the statement of the reasons for choosing a sanction more severe than that recommended by the Disciplinary Board in that case was much less precise than the statement of reasons considered in the present case. The Court held that:

`... Whereas the Disciplinary Board had found only that Mr Daffix had not checked the identity of the third party in question and had not made certain of her bona fides, which it had described as a serious failure in carrying out his duties as an official, the appointing authority described the complaints which it had made out as an extremely serious breach of his obligations as an official vis-à-vis his institution, which called into question the very foundations of the relationship of mutual trust between the institution and members of its staff ... Even if it does not specify this expressly, it is sufficiently apparent from the contested decision that that was the reason why the appointing authority had diverged from the Disciplinary Board's opinion' (paragraph 37).

30 Since, as I have stated, I consider it necessary to accept the Commission's plea alleging that the Court of First Instance erred in law in finding that the contested decision did not contain an adequate statement of the grounds on which it was based, the judgment appealed against should be quashed pursuant to the first paragraph of Article 54 of the EC Statute of the Court of Justice without its being necessary to consider the other pleas in law relied on in support of the appeal.

31 Since, apart from the question whether the statement of reasons was sufficient, the Court of First Instance did not address the other pleas relied on by Mr V at first instance, I consider that a decision cannot yet be given in the case and it should therefore be referred back to the Court of First Instance to allow it to determine the pleas set out in paragraph 25 of the judgment appealed against. The costs should also be reserved.

Conclusion

32 For the foregoing reasons, I propose that the Court should hold as follows:

(1) The judgment delivered by the Court of First Instance on 28 March 1996 in Case T-40/95 V v Commission is set aside in so far as it annulled the Commission's decision of 18 January 1995 removing Mr V from his post, on the ground that the statement of reasons was inadequate, and ordered the Commission to pay the costs.

(2) The case is referred back to the Court of First Instance for it to adjudicate on the other pleas raised, which are set out in paragraph 25 of the judgment appealed against.

(3) Costs are reserved.

(1) - [1996] ECR-SC II-461.

(2) - Case C-166/95 P Commission v Daffix [1997] ECR I-983.

(3) - See, inter alia, Case 195/80 Michel v Parliament [1981] ECR 2861, Case 69/83 Lux v Court of Auditors [1984] ECR 2447, Daffix (cited above) and Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143.

(4) - See in this connection the French text: `annuler la décision attaquée pour insuffisance de motivation'.

(5) - See footnote 2.

(6) - See, inter alia, Case 228/83 F v Commission [1985] ECR 275.