Judgment of the Court (Second Chamber) of 7 July 1977. - Pierre Guillot v Commission of the European Communities. - Case 43-74.



European Court reports 1977 Page 01309

Greek special edition Page 00393

Portuguese special edition Page 00467



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Parties

IN CASE 43/74

PIERRE GUILLOT , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARCEL SLUSNY , ADVOCATE , OF BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34/B/IV RUE PHILIPPE II ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , GIORGIO PINCHERLE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR

1 . ANNULMENT OF THE IMPLIED REJECTION OF THE APPLICANT ' S COMPLAINT OF 26 NOVEMBER 1973 ,

2 . DAMAGES ,

Grounds

1 LIKE THE DISPUTE IN CASE 53/72 , WHICH WAS BROUGHT BY THE SAME APPLICANT AGAINST THE COMMISSION AND WHICH WAS DECIDED BY THE JUDGMENT OF 11 JULY 1974 (( 1974 ) ECR 791 ), THE DISPUTE IN THE PRESENT CASE ORIGINATED IN A SERIES OF EXPERIMENTS CARRIED OUT FROM 28 TO 30 APRIL 1971 BY THE APPLICANT , A SCIENTIFIC OFFICIAL AT THE EAEC JOINT RESEARCH CENTRE AT ISPRA ( HEREINAFTER REFERRED TO AS ' THE CENTRE ' ).

2 BY THOSE EXPERIMENTS , IN WHICH A MIXTURE OF RADIOACTIVE XENON GASES AND STABLE XENON GAS WERE DISSOLVED IN WATER , THE APPLICANT HAD BEEN SEEKING TO PROVE THAT A THEORY HELD BY HIM SINCE 1968 CONCERNING AN ISOTOPE SEPARATION EFFECT WAS WELL FOUNDED .

3 THE APPLICANT INFORMED HIS IMMEDIATE SUPERIOR , MR MALVICINI , OF THE RESULT AND ON 4 MAY 1971 THE LATTER SENT THE DIRECTOR-GENERAL OF THE CENTRE A NOTE HEADED ' FALSIFICATION OF EXPERIMENTAL RESULTS ' , IN WHICH HE ACCUSED THE APPLICANT OF HAVING ALTERED THE RESULTS OF THE LAST SIX MEASUREMENTS OF THE EXPERIMENTS IN QUESTION IN ORDER TO PRODUCE EVIDENCE OF A SEPARATION EFFECT .

4 BY A DECISION OF 14 APRIL 1972 , THE COMMISSION REJECTED A COMPLAINT SUBMITTED BY THE APPLICANT ON 3 JANUARY 1972 SEEKING INTER ALIA THE WITHDRAWAL OF THE ACCUSATIONS MADE AGAINST HIM BY HIS IMMEDIATE SUPERIOR .

5 THE APPLICANT SOUGHT ANNULMENT OF THAT DECISION IN HIS APPLICATION IN CASE 53/72 .

6 IN ITS JUDGMENT OF 11 JULY 1974 , THE COURT FOUND THAT , FOR ITS FAILURE TO GIVE AN EXPRESS REPLY ON THE SUBSTANCE OF THE APPLICANT ' S REQUEST IN ITS DECISION OF 14 APRIL 1972 , THE COMMISSION MUST BE REGARDED AS HAVING REFUSED TO CARRY OUT AN INQUIRY INTO THE TRUTH OF THE ACCUSATIONS MADE AGAINST THE APPLICANT AND THEREFORE AS HAVING FAILED IN ITS DUTY TO HIM .

7 ACCORDINGLY , THE COURT ANNULLED THE COMMISSION ' S DECISION REJECTING THE APPLICANT ' S COMPLAINT .

8 IN HIS PERSONAL FILE , WHICH HAD BEEN LODGED AT THE COURT REGISTRY BY THE DEFENDANT IN CASE 53/72 , THE APPLICANT DISCOVERED A NOTE DATED 21 OCTOBER 1971 , WHICH HAD BEEN DRAWN UP AT THE REQUEST OF THE DIRECTOR-GENERAL OF THE CENTRE , SIGNED BY MR MALVICINI AND PUT INTO HIS PERSONAL FILE WITHOUT HIS KNOWLEDGE .

9 HEADED ' SHORT DESCRIPTION AND DETAILS OF THE FACTS WHICH LED MR GUILLOT TO SUBMIT A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS ' , THAT DOCUMENT ENLARGED THE SCOPE OF THE ACCUSATION MADE BY MR MALVICINI IN THE NOTE OF 4 MAY 1971 , BY STATING THAT THE DETAILS RELATING TO THE LAST ELEVEN MEASUREMENTS HAD BEEN ALTERED AND BY ACCUSING THE APPLICANT OF HAVING SUPPRESSED THE RESULTS OF THREE OTHER PRECEDING MEASUREMENTS .

10 BY A COMPLAINT SUBMITTED ON 26 NOVEMBER 1973 UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS , THE APPLICANT REQUESTED THE WITHDRAWAL OF THE DOCUMENT FROM HIS PERSONAL FILE , THE WITHDRAWAL OF THE FRESH ACCUSATIONS , COMPENSATION FOR THE DAMAGE WHICH HE ALLEGED THAT HE HAD SUFFERED AND THE RETURN OF THE RECORDINGS OF HIS EXPERIMENTS OF DISSOLVING XENON IN WATER , WHICH WERE BEING HELD BY MR MALVICINI .

11 SINCE THE COMMISSION DID NOT REACT TO THAT COMPLAINT , THE APPLICANT BROUGHT THIS ACTION , BY AN APPLICATION LODGED AT THE COURT ON 25 JUNE 1974 , IN WHICH HE CLAIMED :

- THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT , RESULTING FROM THE COMMISSION ' S FAILURE TO REPLY ;

- THE WITHDRAWAL OF THE NOTE OF 21 OCTOBER 1971 FROM HIS PERSONAL FILE ;

- AN ORDER THAT THE COMMISSION SHOULD PAY FB 1 000 000 BY WAY OF DAMAGES ;

- THE RETURN OF THE RECORDINGS OF THE EXPERIMENTS CARRIED OUT BY HIM .

ADMISSIBILITY

12 THE COMMISSION RAISED A SERIES OF OBJECTIONS TO THE EFFECT THAT ALL , ' OR AT LEAST SOME ' , OF THE SUBMISSIONS IN SUPPORT OF THIS APPLICATION SHOULD BE DISMISSED AS INADMISSIBLE .

13 THE GROUNDS OF THESE OBJECTIONS MAY BE SUMMARIZED AS FOLLOWS :

- SINCE THE INQUIRY UNDERTAKEN BY THE COMMISSION WAS NOT FINISHED , THE APPLICANT COULD NOT PLEAD AGAINST THE COMMUNITY LACK OF ASSISTANCE IN BREACH OF ARTICLE 24 OF THE STAFF REGULATIONS ;

- THE COMMISSION ' S WITHDRAWAL OF MR MALVICINI ' S NOTE OF 21 OCTOBER 1971 FROM THE APPLICANT ' S PERSONAL FILE HAD DEPRIVED THE APPLICANT ' S SUBMISSION BASED ON ARTICLE 26 OF THE STAFF REGULATIONS OF ITS PURPOSE ;

- THE THIRD SUBMISSION , DIRECTED TO OBTAINING COMPENSATION FOR DAMAGE ALLEGEDLY SUFFERED BY THE APPLICANT , WAS PREMATURE , BECAUSE THE COMMISSION HAD NOT YET CARRIED OUT THE ABOVEMENTIONED INQUIRY ;

- THE RECORDINGS IN QUESTION WERE THE PROPERTY OF THE COMMISSION .

14 ALL THOSE OBJECTIONS GO TO THE SUBSTANCE OF THE CASE AND CANNOT THEREFORE BE EXAMINED IN RELATION TO ADMISSIBILITY .

THE SUBSTANCE OF THE CASE

15 BY PUTTING MR MALVICINI ' S NOTE OF 21 OCTOBER 1971 INTO THE APPLICANT ' S PERSONAL FILE WITHOUT THE LATTER ' S KNOWLEDGE , THE COMMISSION FAILED TO COMPLY WITH ARTICLE 26 OF THE STAFF REGULATIONS .

16 HOWEVER , SINCE THE SAID NOTE HAS BEEN WITHDRAWN FROM THE FILE IN THE MEANTIME , THE APPLICANT ' S CLAIM TO OBTAIN PRECISELY THAT RESULT HAS LOST ITS PURPOSE .

17 THE CLAIM FOR THE RETURN OF THE RECORDINGS RELATING TO THE SCIENTIFIC EXPERIMENTS CARRIED OUT BY THE APPLICANT MUST BE DISMISSED .

18 IN FACT , SINCE THEY CONCERN EXPERIMENTS CARRIED OUT IN THE COURSE OF THE APPLICANT ' S WORK AS AN OFFICIAL IN THE SERVICE OF THE CENTRE , THOSE DOCUMENTS ARE THE PROPERTY OF THE COMMISSION .

19 THE ESSENTIAL PROBLEM TO BE SOLVED CONCERNS THE ALLEGED INFRINGEMENT BY THE COMMISSION OF ARTICLE 24 OF THE STAFF REGULATIONS , ACCORDING TO WHICH ' EACH COMMUNITY SHALL ASSIST ANY OFFICIAL IN ITS SERVICE , IN PARTICULAR IN PROCEEDINGS AGAINST ANY PERSON PERPETRATING . . . DEFAMATORY ACTS OR UTTERANCES . . . BY REASON OF HIS POSITION OR DUTIES ' .

20 IN THE JUDGMENT OF 11 JULY 1974 , THE COURT HELD THAT IF SERIOUS ACCUSATIONS REFLECTING ON THE INTEGRITY OF AN OFFICIAL IN CARRYING OUT HIS DUTIES ARE MADE BY A SUPERIOR , APART FROM THE DUTIES WHICH FALL ON THE ADMINISTRATION UNDER ARTICLE 24 OF THE STAFF REGULATIONS , THE PRINCIPLES OF JUSTICE AND OF GOOD MANAGEMENT PLACE A DUTY ON THE COMMISSION TO TAKE ALL NECESSARY STEPS TO ESTABLISH WHETHER THE ACCUSATIONS ARE JUSTIFIED .

21 AFTER FINDING THAT THE COMMISSION HAD NOT FULFILLED THAT DUTY WITH REGARD TO THE APPLICANT AND ACCORDINGLY ANNULLING THE COMMISSION ' S REFUSAL TO UNDERTAKE THE INQUIRY WHICH IT SHOULD HAVE CARRIED OUT , THE COURT MADE IT CLEAR THAT THE DEFENDANT MUST FULFIL THAT OBLIGATION WITH THE MINIMUM DELAY BY UNDERTAKING AN INQUIRY ' TO SEEK EVIDENCE AS TO THE TRUTH OF THE ACCUSATIONS REFLECTING ON THE APPLICANT ' S INTEGRITY ' .

22 THE COMMISSION HAS ADDED TO THE CASE-FILE REPORTS RELATING TO FOUR INQUIRIES FOR WHICH IT HAS BEEN RESPONSIBLE IN ACCORDANCE WITH THE JUDGMENT IN CASE 53/72 :

- A REPORT DATED 19 SEPTEMBER 1975 ( HEREINAFTER REFERRED TO AS THE ' BOULENGER REPORT ' AFTER THE NAME OF ONE OF ITS AUTHORS ), DRAWN UP BY THE BELGIAN CENTRE D ' ETUDES D ' ENERGIE NUCLEAIRE ( NUCLEAR ENERGY STUDY CENTRE ) AT MOL AND DEALING WITH THE INQUIRY CARRIED OUT BY THE STUDY CENTRE ON THE APPLICANT ' S EXPERIMENTS ;

- A REPORT DATED 28 OCTOBER 1975 BY AN INTERNAL ADMINISTRATIVE COMMITTEE SET UP BY THE DIRECTOR GENERAL OF THE CENTRE AT ISPRA ;

- A REPORT DATED 29 DECEMBER 1975 DRAWN UP BY MR COLLARD , A SCIENTIFIC OFFICIAL OF THE BELGIAN STUDY CENTRE AT MOL , DEALING WITH EXPERIMENTS CARRIED OUT AT MOL RELATING SOLELY TO SCIENTIFIC MISTAKES WHICH MIGHT HAVE BEEN MADE BY THE APPLICANT AND MR MALVICINI IN APRIL 1971 ;

- A SUPPLEMENTARY REPORT DATED 26 APRIL 1976 DRAWN UP BY MR BOULENGER AND MR COLLARD OF THE STUDY CENTRE AT MOL .

23 THUS THE POINT AT ISSUE IN THIS CASE IS WHETHER , IN THE LIGHT OF THE INQUIRY WHICH THE COMMISSION CAUSED TO BE CARRIED OUT , THE ACCUSATIONS MADE AGAINST THE APPLICANT WERE FALSE , BECAUSE IF THEY WERE TO PROVE JUSTIFIED THE APPLICANT WOULD NOT BE ENTITLED TO SEEK THE ASSISTANCE OF THE COMMISSION WITHIN THE MEANING OF ARTICLE 24 OF THE STAFF REGULATIONS .

24 HOWEVER , BEFORE THE RESULTS OF THE INQUIRIES ARE ASSESSED , MENTION SHOULD BE MADE OF THE MAIN POINTS UPON WHICH MR MALVICINI BASED HIS ACCUSATIONS AS THESE POINTS EMERGE FROM THE CASE-FILE , AND OF THE APPLICANT ' S REACTION TO THOSE ACCUSATIONS .

25 ACCORDING TO MR MALVICINI ' S NOTE OF 4 MAY 1971 , THE APPLICANT FALSIFIED THE EXPERIMENTAL DATA RELATING TO THE LAST SIX MEASUREMENTS CARRIED OUT DURING THE EXPERIMENT - NOS 42 TO 47 ACCORDING TO THE NUMBERING APPLIED LATER - AND FORWARDED TO MR MALVICINI , CONCERNING THOSE MEASUREMENTS , NOT THE STRIPS FROM THE AUTOMATIC PRINTER OF THE TMC MULTICHANNEL ANALYSER , BUT ONLY THE DATA WORKED OUT BY THE APPLICANT HIMSELF .

26 IN A MEMORANDUM OF 7 MAY 1971 , SUPPLEMENTED BY A TECHNICAL REPORT AND SENT TO THE DIRECTOR-GENERAL OF THE CENTRE AT ISPRA , THE APPLICANT SET OUT HIS VERSION OF THE FACTS IN DISPUTE .

27 IN A MEMORANDUM DATED 6 JULY 1971 , SENT TO THE DIRECTOR-GENERAL OF THE CENTRE , MR MALVICINI COMMENTED UPON THE VERSION OF THE FACTS GIVEN BY THE APPLICANT AND CONFIRMED HIS PREVIOUS STATEMENTS , THEN ADDED THAT , FOR ALL THE MEASUREMENTS CARRIED OUT AFTER 11.25 A.M . ON 29 APRIL ( THAT IS , FROM MEASUREMENT NO 34 ), THE APPLICANT HAD SIMPLY GIVEN HIM THE RESULTS , AND NOT THE ORIGINAL RECORDINGS OF THE ANALYSER SPECTROMETER .

28 IN THE NOTE OF 21 OCTOBER 1971 , MR MALVICINI SPECIFICALLY STATED THAT THE APPLICANT HAD GIVEN HIM THE RESULTS OF THE MEASUREMENTS CARRIED OUT FROM THE BEGINNING OF THE EXPERIMENT ( AT 9.45 A.M . ON 28 APRIL ) TO 11.25 A.M . ON 29 APRIL WITH THE RECORDINGS FROM THE ANALYSER PRINTER , AND ONLY THE RESULTS OF ELEVEN OF THE FOURTEEN MEASUREMENTS CARRIED OUT FROM 11.35 A.M . ON 29 APRIL TO 7.10 A.M . ON 30 APRIL ( MEASUREMENTS NOS 34 TO 47 ).

29 ACCORDING TO THE SAME NOTE , ON 1 MAY , THE DAY AFTER THE END OF THE EXPERIMENTS IN QUESTION ON 30 APRIL , MR MALVICINI FOUND IN A WASTE-PAPER BASKET A PIECE OF THE ROLL FROM AN OLIVETTI COMPUTER ON WHICH THERE WERE RECORDED THE VALUES OF THE SPECTRA OF THE LAST SIX MEASUREMENTS , WHICH DID NOT CORRESPOND TO THE VALUES WHICH THE APPLICANT HAD GIVEN HIM .

30 THE NOTE FURTHER STATED THAT ON THE MORNING OF MONDAY 3 MAY THE APPLICANT ASSURED MR MALVICINI THAT THE DATA WHICH HE HAD GIVEN HIM WERE THOSE OF THE ANALYSER WITHOUT ANY CORRECTION , BUT WHEN MR MALVICINI SHOWED HIM THE STRIP FROM THE COMPUTER , THE APPLICANT WAS UNABLE TO GIVE ANY EXPLANATION .

31 THE NOTE CONTINUED THAT IN THE AFTERNOON OF THE SAME DAY , THE APPLICANT ADMITTED THE FACT THAT HE HAD APPLIED TO THE RESULTS OF THE LAST SIX MEASUREMENTS CORRECTIONS MADE NECESSARY BY THE ACCIDENTAL TILTING OF A BOTTLE CONTAINING THE RADIOACTIVE MIXTURE .

32 IN SUPPORT OF HIS ARGUMENT THE APPLICANT HAD WRITTEN A NOTE , ACCOMPANIED BY A TECHNICAL APPENDIX .

33 MR MALVICINI ENDS THE SAID NOTE BY STATING THAT AFTER RETRIEVING ALL THE PIECES OF THE RECORDINGS OF THE ANALYSER PRINTER AND OF THE OLIVETTI COMPUTER , AND AFTER RECONSTRUCTING PIECE BY PIECE THE STRIP RECORDED BY THE PRINTER , HE HAD FOUND THAT THE DATA OBTAINED ON 29 APRIL FROM 11.35 A.M . ( NAMELY MEASUREMENTS NOS 34 TO 47 ) HAD BEEN CORRECTED IN A ' SIMILARLY APPROPRIATE ' MANNER .

34 THE APPLICANT ADMITS THAT HE ALTERED THE RESULTS OF HIS EXPERIMENTS , BUT ONLY AS REGARDS THE LAST SIX MEASUREMENTS .

35 AS REGARDS THE EXPERIMENTS CARRIED OUT BY THE APPLICANT FROM 28 TO 30 APRIL 1971 , THE AUTHORS OF THE BOULENGER REPORT FOUND THAT THE RESULTS OF MEASUREMENTS NOS 1 TO 33 DID NOT GIVE RISE TO ANY DISPUTE .

36 HOWEVER , THE RESULTS OF MEASUREMENTS NOS 34 TO 36 , CARRIED OUT BETWEEN 11.35 A.M . AND 12.05 P.M . ON 29 APRIL , DID NOT APPEAR IN THE DOCUMENTS OF THE APPLICANT , WHO - THE REPORT STATES - SEEMED TO HAVE SET THEM ASIDE ' BECAUSE THEY DID NOT GO IN THE DESIRED DIRECTION ' .

37 ACCORDING TO THE REPORT THE RESULTS OF THE NEXT FIVE MEASUREMENTS ( NOS 37 TO 41 ) AS WELL AS THOSE OF THE LAST SIX MEASUREMENTS HAD BEEN ALTERED .

38 IN THEIR COMMENTS UPON THESE ALTERATIONS , THE AUTHORS OF THE REPORT STATE THAT THE ALTERATIONS TO THE LAST SIX MEASUREMENTS HAVE ONLY LIMITED IMPORTANCE IN THE CONTEXT OF THE EXPERIMENT .

39 ON THE OTHER HAND THE AUTHORS OF THE REPORT STATE THAT THE THREE MEASUREMENTS ( NOS 34 TO 36 ) WHICH THE APPLICANT DID NOT MENTION , AND THE FIVE FOLLOWING MEASUREMENTS ( NOS 37 TO 41 ) - THE ALTERATION TO WHICH THE APPLICANT DID NOT EXPLAIN - ARE DECISIVE , FOR WITHOUT THAT OMISSION AND THAT ALTERATION ' THE PHENOMENON SOUGHT NO LONGER EXISTS ' .

40 THE REPORT STATES THAT THE AGREEMENT BETWEEN THE FIRST AND THE SECOND SERIES OF MEASUREMENTS , UPON WHICH THE APPLICANT RELIES AND WHICH APPEARS NECESSARY IN ORDER TO PROVE THE EXISTENCE OF THE PHENOMENON IN QUESTION , COULD NOT HAVE EXISTED WITHOUT THE ALTERATION OF THE RESULTS OF MEASUREMENTS NOS 37 TO 41 AND THE DISAPPEARANCE OF THE RESULTS OF MEASUREMENTS NOS 34 TO 36 .

41 FURTHERMORE - ACCORDING TO THE REPORT - THE ALLEGED TILTING OF A BOTTLE IN NO WAY JUSTIFIES THE ALTERATIONS TO THE MEASUREMENTS TAKEN ON THE SECOND DAY OR THE USE OF VERY VARIABLE CORRECTION FACTORS , INSTEAD OF A SINGLE FACTOR APPLIED TO ALL THE MEASUREMENTS .

42 THE AUTHORS OF THE REPORT ARE OF THE OPINION THAT , FROM THE SCIENTIFIC POINT OF VIEW , THE USE OF SUCH ' CORRECTED ' RESULTS SO AS TO PRODUCE THE DESIRED EFFECT AMOUNTS TO ACTUAL FALSIFICATION .

43 THE REPORT OF THE INTERNAL ADMINISTRATIVE COMMITTEE ALSO STATES THAT MEASUREMENTS NOS 37 TO 41 ARE CRUCIAL FOR PROVING THE PHENOMENON ALLEGED BY THE APPLICANT .

44 ACCORDING TO THE REPORT , WHEN EXAMINED BY THAT COMMITTEE , THE APPLICANT DENIED THAT THE CALCULATIONS PRINTED ON THE RECORD STRIP FROM THE OLIVETTI COMPUTER HAD BEEN CARRIED OUT BY HIM .

45 FURTHERMORE THE APPLICANT STATED , ACCORDING TO THE REPORT , THAT IT WAS VERY EASY FOR ANYBODY TO REPRODUCE SUCH RECORDINGS .

46 HOWEVER , THE COMMITTEE OF INQUIRY STATES THAT IT FOUND THAT THE VALUES GIVEN IN THE ANALYSER RECORD STRIPS RELATING TO THE MEASUREMENTS IN DISPUTE , WHICH WERE SUBMITTED BY MR MALVICINI , AND THE VALUES APPEARING ON AN OLIVETTI COMPUTER RECORD STRIP WHICH THE LATTER HAD PUT AT THE DISPOSAL OF THE COMMITTEE , WERE IN COMPLETE AGREEMENT .

47 ACCORDING TO THE COMMITTEE , THERE WAS NO POSSIBILITY , BEARING IN MIND THE TECHNICAL RESOURCES AVAILABLE AT ISPRA IN 1971 , OF MAKING UP SUCH A RECORD STRIP ARTIFICIALLY .

48 CONSEQUENTLY , THE COMMITTEE FELT COMPELLED TO ACKNOWLEDGE THE OLIVETTI COMPUTER RECORD STRIP SUBMITTED BY MR MALVICINI AS GENUINE .

49 IT CONCLUDED THAT THE ALTERATIONS TO THE EXPERIMENTAL VALUES AND THEIR COMMUNICATION IN THE FORM OF A REPORT BY THE APPLICANT WERE UNACCEPTABLE FROM THE SCIENTIFIC AND PROFESSIONAL POINT OF VIEW , SO THAT THE MEMBERS OF THE COMMITTEE CONSIDER THE SEVERE CRITICISMUS ADDRESSED TO THE APPLICANT TO BE JUSTIFIED .

50 THE SUPPLEMENTARY REPORT OF 29 DECEMBER 1975 DEALS WITH EXPERIMENTS PERFORMED AT MOL , SIMILAR TO THOSE CARRIED OUT BY THE APPLICANT AND MR MALVICINI IN APRIL 1971 .

51 SINCE THAT REPORT , AS WELL AS THE REPLY WHICH IT PROVOKED FROM THE APPLICANT , CONCERN PURELY SCIENTIFIC MATTERS , THEY ARE IRRELEVANT FOR THE PURPOSE OF REACHING A DECISION IN THIS CASE .

52 IN FACT , IT IS NOT A MATTER OF EXAMINING THE SCIENTIFIC VALIDITY OF THE DISPUTED EXPERIMENTS , BUT ONLY OF ASCERTAINING WHETHER THE ACCUSATIONS OF FALSIFICATION OR DISHONEST CONDUCT ARE JUSTIFIED .

53 THE REPORT BY THE STUDY CENTRE AT MOL , DATED 26 APRIL 1976 , CONSTITUTES A SUPPLEMENT TO THE TWO PREVIOUS REPORTS BY THAT ORGANIZATION .

54 ATTACHED TO THIS SUPPLEMENTARY REPORT AS AN APPENDIX IS A PHOTOCOPY OF THE HANDWRITTEN REPORT DRAWN UP BY THE APPLICANT DURING THE EXPERIMENTS CARRIED OUT FROM 28 TO 30 APRIL 1971 AND THEN SENT BY HIM TO MR MALVICINI .

55 THE AUTHORS OF THE REPORT CONFIRM THEIR OPINION THAT THE AUTHENTICITY OF THE STRIPS IN QUESTION AS RELATING TO THE EXPERIMENTS CARRIED OUT BY THE APPLICANT FROM 28 TO 30 APRIL 1971 CANNOT BE DOUBTED .

56 ALTHOUGH THE COMMISSION MAY BE CRITICIZED FOR ITS EXCESSIVE DILATORINESS IN CARRYING OUT ITS DUTY TO CARRY OUT THE INQUIRY PRESCRIBED BY THE COURT IN ITS JUDGMENT OF 11 JULY 1974 , THE APPLICANT HAS NOT SUFFERED ANY DAMAGE BY REASON OF THAT DELAY , SINCE THE OUTCOME OF THE INQUIRY IS DISTINCTLY UNFAVOURABLE TO HIM .

57 HOWEVER , THE APPLICANT OBJECTED INTER ALIA THAT NEITHER THE INTERNAL ADMINISTRATIVE COMMITTEE NOR THE AUTHORS OF THE BOULENGER REPORT RESPECTED THE RIGHTS OF THE DEFENCE .

58 HE OBJECTED THAT THEY PROCEEDED UNILATERALLY WITHOUT GIVING HIM ANY OPPORTUNITY TO EXAMINE , IDENTIFY AND IF NECESSARY TO TAKE COPIES OF THE DOCUMENTS TO WHICH THEIR INQUIRIES RELATED AND WITHOUT ALLOWING HIM TO STATE HIS CASE .

59 IN PARTICULAR HE STATED THAT THEY BASED THEIR VIEWS ESSENTIALLY UPON ONE OF THE STRIPS FROM THE MULTICHANNEL ANALYSER , THE AUTHENTICITY OF WHICH HAD BEEN CHALLENGED BY THE APPLICANT .

60 IN THE COURSE OF THE DIFFICULT INQUIRY WHICH IT WAS RESPONSIBLE FOR CARRYING OUT , IT WAS INCUMBENT UPON THE DEFENDANT TO PROVIDE THE APPLICANT WITH ADEQUATE SAFEGUARDS .

61 IT EMERGES FROM A LETTER DATED 15 JANUARY 1975 FROM THE AGENT OF THE COMMISSION TO THE APPLICANT ' S LAWYER THAT THE COMMISSION WAS PREPARED TO ALLOW THE APPLICANT TO TAKE PART , AS APPROPRIATE , IN THE WORK OF THE EXPERTS .

62 SINCE THE APPLICANT DID NOT AVAIL HIMSELF OF THAT OPPORTUNITY , THE FACT THAT IN THE COURSE OF THE INVESTIGATIONS ONLY ONE PARTY WAS HEARD WAS DUE TO THE APPLICANT HIMSELF , AND CONSEQUENTLY IT CANNOT PREVENT THE COURT FROM ASSESSING THE TECHNICAL REPORTS IN THE CONTEXT OF ALL THE EVIDENCE UPON WHICH ITS FINAL DECISION MUST BE BASED .

63 THE APPLICANT STATED THAT HE ALTERED THE LAST SIX RESULTS OF THE EXPERIMENTS BY INTRODUCING CORRECTION FACTORS INTENDED TO ALLOW FOR THE ACCIDENTAL DISPLACEMENT OF A PART OF THE APPARATUS FOR THE EXPERIMENT .

64 IT IS NOT DISPUTED THAT HE NEGLECTED TO INFORM HIS IMMEDIATE SUPERIOR OF THAT ALTERATION OF THE EXPERIMENTAL DATA WHEN HE SUBMITTED THE RESULT OF HIS EXPERIMENTS , OR THAT THE INTRODUCTION OF THE CORRECTION FACTORS WAS REVEALED TO MR MALVICINI ONLY FOLLOWING THE DOUBTS WHICH MR MALVICINI HAD EXPRESSED WITH REGARD TO THE RESULTS SUBMITTED BY THE APPLICANT .

65 THIS CONDUCT MAY GIVE RISE TO DOUBTS FROM THE POINT OF VIEW OF SCIENTIFIC METHOD - WHICH WOULD PROBABLY HAVE REQUIRED EXPERIMENTS WHOSE NORMAL COURSE HAD BEEN DISTURBED TO BE REPEATED - AND THE APPLICANT ' S BEHAVIOUR IS CERTAINLY OPEN TO CRITICISM WITH REGARD TO THE DUTY OF FRANKNESS OWED BY A SCIENTIFIC RESEARCH WORKER TO HIS IMMEDIATE SUPERIOR .

66 IN FACT , THE APPLICANT WAS UNDER A DUTY AT ONCE TO GIVE HIS IMMEDIATE SUPERIOR COMPLETE DETAILS OF THE PROGRESS OF HIS EXPERIMENTS , WITHOUT HIDING ANY FACTORS CAPABLE OF RAISING DOUBTS AS TO THE RESULTS OBTAINED .

67 THAT BEHAVIOUR ON THE PART OF THE APPLICANT IS ENOUGH ON ITS OWN TO JUSTIFY MR MALVICINI ' S SUSPICIONS , WHICH WERE EXPRESSED IN THE FIRST EVALUATION GIVEN IN THE NOTE OF 4 MAY 1971 AND REITERATED SUBSEQUENTLY .

68 FURTHERMORE , IT BECAME INCREASINGLY CLEAR DURING THE COURT PROCEEDINGS THAT THE ESSENTIAL PART OF THE APPLICANT ' S DEFENCE CONSISTS IN DENYING THE AUTHENTICITY OF THE STRIPS FROM THE ANALYSER PRINTER RELATING TO MEASUREMENTS NOS 37 TO 41 WHICH MR MALVICINI STATES THAT HE FOUND IN THE WASTEPAPER BASKETS OF THE CENTRE AT ISPRA .

69 IF THE ABOVEMENTIONED STRIPS WERE AUTHENTIC , THE RESULTS CONTAINED IN THE HANDWRITTEN NOTE SUBMITTED BY THE APPLICANT TO MR MALVICINI MUST HAVE BEEN FALSIFIED , SO THAT THE ACCUSATIONS MADE BY THE LATTER AGAINST THE APPLICANT WOULD BE JUSTIFIED .

70 CONSEQUENTLY , THE COURT SHOULD FIRST OF ALL TURN ITS ATTENTION TO THOSE FACTORS WHICH AFFECT THIS QUESTION , WHICH IS FUNDAMENTAL FOR THE OUTCOME OF THE ACTION .

71 THE COMMISSION HAS EMPHASIZED THE FACT , WHICH IS MOREOVER CONFIRMED IN THE ABOVEMENTIONED REPORTS , THAT FOR THE XENON-133 , ONE OF THE TWO GASES ANALYSED IN THE COURSE OF THE APPLICANT ' S EXPERIMENT , AFTER DEDUCTION OF THE BACKGROUND NOISE OF THE APPARATUS USED FOR THE EXPERIMENT THE VALUES RECORDED ON THE STRIPS IN QUESTION CORRESPOND WITHIN A FEW FIGURES TO THE RESULTS SUBMITTED BY THE APPLICANT IN HIS REPORT TO THE DIRECTOR OF THE CENTRE AT ISPRA .

72 ON THE OTHER HAND IT IS POINTED OUT THAT THERE IS NO SUCH CORRESPONDENCE FOR THE OTHER GAS , THE XENON-131 .

73 THE APPLICANT FIRST ALLEGED THAT THOSE VALUES RELATED TO AN EXPERIMENT OTHER THAN HIS OWN OR THAT THEY WERE FAKES .

74 ACCORDING TO THE COMMISSION AND THE EXPERTS OF THE STUDY CENTRE AT MOL , THERE IS ONLY A MINUTE CHANCE OF MANAGING WITH THE PRINTER TO REPRODUCE FOR THE XENON-133 A RESULT CORRESPONDING TO THAT OBTAINED IN THE COURSE OF THE APPLICANT ' S EXPERIMENT .

75 MOREOVER ON SEVERAL POINTS THE APPLICANT HAS CHALLENGED THE STATEMENT THAT THE VALUES RECORDED FOR THE XENON-133 ON THE STRIPS CORRESPOND TO THE RESULTS SET OUT IN HIS REPORT .

76 HE HAS CAST DOUBT UPON A FIGURE APPEARING ON THE STRIPS IN THE HUNDREDS COLUMN , POINTING OUT THAT THAT FIGURE COULD BE READ EITHER AS A ZERO OR AS A NINE .

77 HOWEVER , WHEN THOSE STRIPS ARE COMPARED WITH THE NORMAL TREND OF THE CURVE REPRESENTING THE DISSOLUTION PHENOMENON IN QUESTION , IT EMERGES THAT THE FIGURE ADOPTED BY THE AUTHORS OF THE BOULENGER REPORT IS CORRECT AND THAT FURTHERMORE IT CORRESPONDS TO THE FIGURE INDICATED FIRST OF ALL BY THE APPLICANT HIMSELF .

78 THE APPLICANT ACCUSES THE EXPERTS CONSULTED BY THE COMMISSION OF HAVING TAKEN ADVANTAGE OF THE FACT THAT THE DIFFICULTY IN READING CERTAIN FIGURES IN THE UNITS COLUMN , OWING TO A MECHANICAL DEFECT IN THE PRINTER , PRESENTED THEM WITH A NUMBER OF ALTERNATIVES IN ORDER TO GIVE THE IMPRESSION OF A DIVERGENCE BETWEEN THE RESULTS ON THE STRIP AND THOSE GIVEN IN THE APPLICANT ' S REPORT .

79 HOWEVER , THE EXPERTS CONSISTENTLY ADOPTED THE MEAN VALUE 5 , IN THE CASE OF ILLEGIBLE FIGURES .

80 THE COMMISSION HAS SHOWN THAT IF EITHER 1 OR 9 ( THE EXTREME VALUES ) IS TAKEN FOR EVERY ILLEGIBLE FIGURE , SO AS TO OBTAIN EXTREME RESULTS , THE DATA GIVEN IN THE APPLICANT ' S REPORT OF 7 MAY 1971 STILL REMAIN WITHIN THOSE TWO LIMITS .

81 THE APPLICANT SUBMITTED DIFFERENT FIGURES ON THE BASIS OF THIS ' BRACKET ' METHOD , BUT THE COMMISSION POINTED OUT THAT THE DIFFERENCE WAS DUE TO THE APPLICANT ' S HAVING NEGLECTED TO DEDUCT THE CONSTANT FACTOR TO TAKE ACCOUNT OF THE ' BACKGROUND NOISE ' OF THE EQUIPMENT , A DEDUCTION WHICH HE HAD MADE IN HIS ANALYSIS OF THE DATA OF THE EXPERIMENTS .

82 ALTHOUGH , IN HIS OBSERVATIONS APPENDED TO HIS LAWYER ' S LETTER OF 6 DECEMBER 1976 , THE APPLICANT STATED THAT HE HAD NOT DEDUCTED THAT FACTOR IN HIS TECHNICAL APPENDIX OF 7 MAY 1971 , THIS IS IN OPEN CONTRADICTION WITH THE APPLICANT ' S STATEMENTS ON PAGE 2 OF THE TECHNICAL APPENDIX .

83 FINALLY , IN SUPPORT OF THE AUTHENTICITY OF THE STRIPS , THE COMMISSION POINTED OUT CERTAIN HANDWRITTEN ANNOTATIONS ON THE STRIPS WHICH IT ALLEGES WERE MADE MOSTLY BY THE APPLICANT HIMSELF .

84 IT ALSO DREW ATTENTION TO THE FACT THAT THE VARIOUS PIECES OF STRIPS BELONGED TO THE SAME ROLL , SINCE THE RESPECTIVE MARGINS OF THOSE PIECES CORRESPONDED TO ONE ANOTHER .

85 BOTH IN THE WRITTEN PROCEDURE AND IN THE ORAL PROCEDURE , THE APPLICANT DENIED THAT HE HAD MADE THE HANDWRITTEN ANNOTATIONS .

86 IN VIEW OF THE DISAGREEMENTS BETWEEN THE PARTIES OVER POINTS OF FACT , THE COURT DECIDED UNDER ARTICLE 60 OF THE RULES OF PROCEDURE TO REQUEST THE APPLICANT TO APPEAR IN PERSON AND TO HEAR FOUR WITNESSES : MR MALVICINI , MR BENCO , MR DOMINICI AND MR COLLARD .

87 THE APPLICANT AVAILED HIMSELF OF THE OPPORTUNITY OF SUBMITTING WRITTEN OBSERVATIONS ON THE HEARING OF THOSE WITNESSES .

88 IN HIS TESTIMONY , MR MALVICINI GAVE AN ENTIRELY SATISFACTORY EXPLANATION OF THE REASONS WHY A PERIOD OF SIX MONTHS HAD ELAPSED BETWEEN THE DISCOVERY OF THE STRIPS AND THE FURTHER ACCUSATIONS OF FALSIFICATION CONTAINED IN HIS NOTE OF 21 OCTOBER 1971 .

89 THE APPLICANT ' S WRITTEN OBSERVATIONS PROVIDED NO CAUSE WHATEVER FOR DOUBTING THOSE REASONS , WHICH RELATE ESSENTIALLY TO THE DIFFICULTIES PRESENTED BY THE APPLICANT ' S ABSENCE FROM HIS WORK OWING TO A STAY IN HOSPITAL AND THEN TO PERIODS OF HOLIDAY .

90 IT EMERGES FROM THE TESTIMONY OF THE WITNESSES BENCO , DOMINICI AND MALVICINI THAT , CONTRARY TO THE APPLICANT ' S STATEMENT TO THE EFFECT THAT NO EXPERIMENT HAD BEEN PERFORMED ON 26 AND 27 APRIL 1971 , SUCH EXPERIMENTS HAD BEEN CARRIED OUT BY MR MALVICINI AND THAT THE APPLICANT HAD BEEN AWARE OF THEM .

91 THE APPLICANT ADMITTED THAT HE WAS AWARE OF THE ' TESTS ' CARRIED OUT BY MR MALVICINI .

92 IN THE COURSE OF THE ORAL INQUIRY THE APPLICANT ASSERTED THAT HE HAD PREPARED THE XENON-131 GAS AND HAD THEN MIXED IT WITH THE XENON-133 FROM THE STUDY CENTRE AT MOL .

93 ON THE OTHER HAND , IN HIS AFOREMENTIONED TECHNICAL APPENDIX HE HAD STATED THAT THE PREVIOUSLY PREPARED MIXTURE HAD BEEN SUPPLIED TO HIM BY THE STUDY CENTRE AT MOL .

94 THAT STATEMENT IS CONFIRMED BY THE TESTIMONY OF THE WITNESSES COLLARD AND DOMINICI .

95 THE APPLICANT STATED ORALLY THAT DURING THE MORNING OF THURSDAY 29 APRIL HE HAD ' BUBBLED ' THE GASES THROUGH THE WATER FOR APPROXIMATELY ONE HOUR , WHEREAS IN HIS WRITTEN REPORT HE HAD STATED THAT THAT OPERATION HAD LASTED FROM 10 TO 15 MINUTES .

96 WHEN ASKED ABOUT THIS POINT , HE EXPLAINED THAT THE LATTER STATEMENT WAS ONLY APPROXIMATE AND WAS IMMATERIAL .

97 HOWEVER , THAT EXPLANATION IS UNACCEPTABLE , SINCE IT HAD TO BE KNOWN EXACTLY HOW LONG THAT OPERATION HAD LASTED IN ORDER TO BE ABLE TO CALCULATE THE VALUE OF THE ' BACKGROUND NOISE ' .

98 IN HIS HANDWRITTEN REPORT TO MR MALVICINI , THE APPLICANT STATED THAT , IN ORDER TO COMPENSATE FOR THE DISTURBING EFFECT OF THE ACCIDENTAL DISPLACEMENT OF A BOTTLE , HE HAD APPLIED A CORRECTION FACTOR TO THE RESULTS FOR THE XENON-131 , BUT NOT TO THOSE FOR THE XENON-133 .

99 HOWEVER , IN HIS SUBSEQUENT REPORT TO THE DIRECTOR-GENERAL OF THE CENTRE AT ISPRA , HE WROTE THAT HE HAD APPLIED THE CORRECTION FACTOR TO BOTH GASES , WHICH , AS THE APPLICANT HAD TO ADMIT IN THE COURSE OF HIS TESTIMONY , WOULD HAVE MADE THE OPERATION IN QUESTION MEANINGLESS .

100 AS REGARDS THE MEASUREMENTS WHICH HE TOOK , THE APPLICANT STATED THAT IN ORDER TO OBVIATE THE MECHANICAL DEFECTS OF THE PRINTER RELATING TO THE UNITS COLUMN HE HAD , IN CALCULATING THE RESULTS OF THE EXPERIMENTS , REPLACED THE ILLEGIBLE FIGURE SOMETIMES WITH A 1 AND AT OTHER TIMES WITH A 9 , BUT HE DID NOT EXPLAIN WHY HE CHOSE SOMETIMES ONE METHOD AND SOMETIMES THE OTHER .

101 HOWEVER , IT EMERGES FROM AN EXAMINATION OF THE UNDISPUTED STRIPS AND FROM THE FIGURES USED BY THE APPLICANT IN HIS REPORT THAT HE CONSISTENTLY REPLACED THE MISSING FIGURE WITH THE MEAN VALUE 5 .

102 FINALLY , DURING HIS TESTIMONY , THE APPLICANT ADMITTED FOR THE FIRST TIME THAT CERTAIN HANDWRITTEN ANNOTATIONS ON THE STRIPS RELATING TO MEASUREMENTS BETWEEN NOS 37 AND 41 MIGHT HAVE BEEN WRITTEN BY HIM .

103 THAT ADMISSION BOTH STRENGTHENS THE INFERENCES TO BE DRAWN FROM THE PHYSICAL RESEMBLANCE OF THE UNDISPUTED STRIPS TO THE DISPUTED ONES AND WEAKENS THE APPLICANT ' S STATEMENT TO THE EFFECT THAT THE DISPUTED STRIPS RELATED TO A DIFFERENT EXPERIMENT OR HAD EVEN BEEN FAKED .

104 IT FOLLOWS FROM THESE CONSIDERATIONS AS A WHOLE THAT THE INACCURACIES AND CONTRADICTIONS WHICH PROGRESSIVELY EMERGED IN THE APPLICANT ' S ARGUMENTS IN THE COURSE OF THE PROCEEDINGS ONLY STRENGTHEN MR MALVICINI ' S ESSENTIALLY CONSISTENT VERSION OF THE FACTS IN DISPUTE , AND ADD WEIGHT TO THE REPORTS SUBMITTED BY THE COMMISSION , AND IN PARTICULAR THOSE DRAWN UP BY THE EXPERTS OF THE STUDY CENTRE AT MOL AND BY THE ADMINISTRATIVE COMMITTEE OF INQUIRY .

105 THUS THE COMMISSION HAS PROVED TO THE EXTENT REQUIRED BY LAW THAT THE APPLICANT ' S BEHAVIOUR JUSTIFIED THE ACCUSATIONS MADE AGAINST HIM BY HIS IMMEDIATE SUPERIOR BOTH IN THE NOTE OF 4 MAY 1971 AND IN THAT OF 21 OCTOBER 1971 .

106 ACCORDINGLY , SINCE THE COMMISSION HAS NOT INFRINGED ARTICLE 24 OF THE STAFF REGULATIONS TO THE DETRIMENT OF THE APPLICANT , HIS CLAIM FOR THE ANNULMENT OF THE COMMISSION ' S IMPLIED REJECTION OF HIS COMPLAINT OF 26 NOVEMBER 1973 MUST BE DISMISSED AS UNFOUNDED .

107 CONSEQUENTLY , THE APPLICANT ' S CLAIM FOR DAMAGES FOR THE ACCUSATIONS MADE AGAINST HIM MUST BE DISMISSED .

Decision on costs

COSTS

108 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

109 NEVERTHELESS , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN ACTIONS BY STAFF OF THE COMMUNITIES , THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

110 MOREOVER , SINCE THE HEARING OF THE WITNESSES WAS MADE NECESSARY BY VIRTUE OF THE DISAGREEMENTS BETWEEN THE PARTIES OVER CERTAIN POINTS OF FACT , AND SINCE THE APPLICANT HAS FAILED IN HIS SUBMISSIONS , HE MUST PAY THE COSTS OF HEARING THE WITNESSES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS ;

3 . ORDERS THE APPLICANT TO BEAR THE COSTS OF HEARING THE WITNESSES .