JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

28 March 1995

Case T-12/94

Frédéric Daffíx

v

Commission of the European Communities

‛Officials — Removal from post — Statement of reasons’

Full text in French II-233

Application for:

annulment of the Commission's decision removing the applicant from his post.

Decision:

Annulment.

Abstract of the Judgment

At the request of the applicant, who was an official of the Commission (DG X), SA Newscom, one of the Commission's subcontractors, paid him the sum of BFR 450000 in return for three order forms. The first order form bore the applicant's signature on behalf of Mr M., at the time assistant to a head of unit in DG X; the second and third bore the signature of Mr M.

Mr M. stated that his signature on the last two order forms had been forged and that none of the order forms related to any service which Newscom had been asked to provide. Following those statements, disciplinary proceedings were commenced against the applicant.

The applicant did not deny having received the BFR 450000 from Newscom but he claimed to have passed it to Mrs Lombaerts, who works for ‘Haute Definition TV’ in Paris, in return for three receipts bearing her signature. Despite numerous statements from the applicant concerning Mrs Lombaerts' identity, the Commission was unable to trace her.

While being questioned by one of the officials responsible for investigating the case, the applicant stated that he had kept the money. However, after the interview he retracted that ‘admission’ and refused to sign the record of the interview, saying that to do so would amount to an acknowledgement of forgery.

In the report submitted to the Disciplinary Board in accordance with Article 1 of Annex IX to the Staff Regulations, the appointing authority complained that the applicant ‘had falsified three order forms made out to Newscom, one of the Commission's subcontractors, which, on the basis of those order forms, was induced to give him the sum of BFR 450000 in cash, which he kept’.

In its opinion, the Disciplinary Board expressed the view that it had not been proved that the applicant had falsified the order forms and that the possibility could not be ruled out that the applicant had passed the sum in question to a certain Mrs Lombaerts. However, given in particular that the applicant had failed to verify the identity of Mrs Lombaerts beforehand, the Disciplinary Board considered that his conduct amounted to a serious failure to carry out his official duties. It recommended that the appointing authority impose upon the applicant the disciplinary measure of downgrading.

On 18 March 1993 the appointing authority adopted the contested decision in which it considered inter alia that the applicant had admitted completing the three order forms (second ground), that he had denied forging his immediate superior's signature on the second and third order forms (third ground), that he had used the three order forms in order to obtain payment of the sum of BFR 450000 in cash from Newscom (fourth ground) and that his statements concerning the passing of that money to a third party and the identity of that person had been inconsistent and often contradictory, so that they could not be taken into consideration (fifth ground). According to the appointing authority, ‘it is therefore proper to conclude that Mr Daffix kept the sum of BFR 450000 which he had received in cash from Newscom’ (sixth ground). It further considered that its conclusion was corroborated by the applicant's ‘admission’ (seventh ground) despite the fact that he had refused to sign the record of the interview in question (eighth ground). Lastly, the appointing authority held ‘that the conduct with which the applicant is charged constitutes an extremely serious failure to carry out his official duties, which calls into question the very foundations of the relationship of mutual trust which must exist between the institution and each member of its staff and that such conduct justifies the imposition of a disciplinary measure more severe than that recommended by the Disciplinary Board’ (ninth — and last — ground). The appointing authority therefore decided to impose upon the applicant the disciplinary measure of removal from his post.

The admissibility of the plea in law alleging that the statement of the reasons for the contested act is inadequate

In view of the importance which attaches, in general, to the duty of the Community institutions to state reasons for decisions taken in the exercise of their powers — a duty laid down both in Article 190 of the EEC Treaty and in the second paragraph of Article 25 of the Staff Regulations — the Community judicature is required to examine the plea in law alleging that the statement of reasons for an act of a Community institution is inadequate, a plea which involves a question of public policy and which may, in any event, be examined by the Community judicature of its own motion (paragraph 31).

See: T-45/90 Speybrouck v Parliament [1992] ECR II-33, para. 89; T-115/89 Gonzalez Holguera v Parliament [1990] ECR II-831, para. 37; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para. 59

The substance of the plea in law alleging that the statement of the reasons for the contested act is inadequate

The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded and to enable the Court to review its legality (paragraph 32).

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 36; T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 73

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 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 (paragraph 33).

See: 228/83 F v Commission [1985] ECR 275, para. 35

As regards the acts which the applicant has been found to have committed, the Court observes that in the last ground for its decision the appointing authority classified the facts complained of as amounting to ‘an extremely serious failure’. However, it is not clear from the decision which of the facts complained of merit that description. In particular, the decision gives no indication as to whether, according to the appointing authority, the ground of complaint concerning the falsification of the order forms constitutes a proven fact which, together with the other ‘facts complained of’, led it to impose the disciplinary measure of removal from post. However, since the applicant denied falsifying the signature on the order forms, and since the Disciplinary Board had decided that there was insufficient proof that he had falsified them, the appointing authority was under an obligation to give explicit and detailed reasons for its decision on that point (paragraphs 34 to 36).

As regards the sixth ground for the decision, the Court notes that the applicant stated that he had passed the sum of BFR 450000 to Mrs Lombaerts and that, in order to substantiate that statement, he had produced three receipts which he claimed had been signed by her. However, no mention is made of those three receipts in either the fifth ground or in any of the other grounds given for the decision (paragraphs 37 to 39).

The appointing authority cannot simply rebut the applicant's statements to the effect that he had passed the sum at issue to a third person, without expressly stating the reasons for which the evidence put forward by the applicant does not, in its opinion, substantiate his statements, particularly in view of the fact that the Disciplinary Board had found itself unable to rule out the possibility that the applicant had given the money in question to Mrs Lombaerts (paragraph 40).

Furthermore, the conclusion drawn in the sixth ground for the decision is not supported by the applicant's ‘admission since’, according to the terms of the decision itself, that ‘admission’ — which moreover was subsequently retracted — constitutes no more than a subsidiary ground, serving as additional support for a determination already arrived at by the appointing authority (paragraph 41).

As regards the reasons for which the appointing authority disregarded the opinion given by the Disciplinary Board, the only relevant grounds given in the contested decision are to be found in the last part of the last ground for that decision. Those grounds are vague and general and in that respect the statement of reasons constitutes a stereotype which could justify in any given set of circumstances the imposition by the appointing authority of a more severe disciplinary measure than that proposed by the consultative body. The grounds given throw no light on the particular reasons for the choice, in the specific circumstances of the present case, of the disciplinary measure of removal from post rather than that of downgrading as die Disciplinary Board had suggested (paragraphs 44 and 45).

The Court finds that the grounds given for the contested decision do not enable it to carry out a proper review of the legality of that decision (paragraph 47).

The information and explanations provided by the Commission at the hearing cannot make good the inadequacy of the statement of the reasons for the contested decision. In any event, such a practice is unacceptable with respect to a decision constituting the final stage in disciplinary proceedings which have led to the imposition of a particularly severe penalty, namely the removal of the official concerned from his post, which was moreover not the penalty mentioned in the opinion given by the Disciplinary Board. In those circumstances, the duty to state the reasons for a decision adversely affecting an official must be construed strictly — thereby precluding any possibility of curing defects at a later stage — so as to ensure full compliance with the principle that the rights of the defence must be protected in disciplinary proceedings (paragraphs 48 and 49).

Operative part:

The Commission's decision of 18 March 1993 removing the applicant from his post is annulled.