JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

18 December 1997

Case T-12/94

Frédéric Daffix

v

Commission of the European Communities

‛Officials — Removal from post — Appeal — Case referred back to Court of First Instance — Truth of the facts — Burden of proof — Misuse of discretion — Manifest error of assessment — Rights of the defence — Article 7 of Annex IX to the Staff Regulations’

Full text in French II-1197

Application for:

annulment of the Commission's decision of 18 March 1993 dismissing the applicant and, in so far as necessary, of the implied decision rejecting his complaint.

Decision:

Application dismissed.

Abstract of the Judgment

At the material time the applicant was an official of the Commission in Grade B 3. He was assigned to the Directorate General ‘Information, Communication, Culture and Audiovisual’ (DG X) and employed as a production assistant.

On 28 November 1990 SA Newscom, one of the Commission's subcontractors, requested payment of three invoices amounting to BFR 450000 in all.

The invoices corresponded to three order forms dated 1 June, 15 June and 2 July 1990. The first order form bore the applicant's signature per pro and the second and third order forms the signature of Mr M., then an assistant to a Head of Unit in DG X. The latter two order forms bore the handwritten notes, made by the applicant, ‘received 20.06.1990’ and ‘received 4.07.1990’.

On 3 December 1990 Mr M. sent a memorandum for the attention of his then immediate superior informing him that his signature on the second and third order forms had been forged. The three order forms did not relate to any service requested from Newscom.

On 10 April 1991 Mr V., the Director General for Personnel and Administration (DG IX), heard the applicant pursuant to Article 87 of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’). The applicant stated that he had drawn up the three order forms. He said that he had signed the first order form ‘per pro’ and had sent the other two to the secretariat of Mr M., who had signed them. He further stated that he had received the sum of BFR 450000 from Newscom and had passed that sum on to Mrs Lombaerts, who worked for Haute Definition TV, in return for three receipts which were still in his possession. He explained that the word ‘received’ on the order forms meant that he had received the amounts in question from Newscom on the dates indicated.

Following the hearing the applicant gave the Commission officials responsible for the investigating the matter three copies of the receipts. These receipts bore the signature of ‘Régine Lombaerts, Production HDTV’.

On 7 June 1991 Mr V. informed the applicant that Mrs Lombaerts could not be traced.

On 18 July 1991 the applicant was interviewed by Mr J., a Head of Unit in DG IX. Mr J. informed the applicant that, after checking, the Commission had established that no one named Régine Lombaerts worked at the French production company in Paris. None the less, the applicant maintained his position. Mr J. explained the gravity of the situation to the applicant and informed him that, in the absence of proof to the contrary, the Commission had virtually no alternative but to conclude that he had kept the BFR 450000 for himself.

On 22 July 1991 the applicant was interviewed by Mr R., a Director in DG IX. He admitted having kept the money but undertook to return it. Following that interview he informed Mr J. that he would not sign the record of the interview, since to do so would amount to an acknowledgement of forgery.

On 20 February 1992 the appointing authority referred the matter to the Disciplinary Board. In the report which it submitted to that Board the appointing authority complained that the applicant had ‘falsified three order forms made out to one of the Commission's subcontractors, Newscom, which, on the basis of those order forms, was induced to give him the sum of BFR 450000 in cash, which he kept’.

On 14 May 1992 the Disciplinary Board held two meetings. During the course of the second meeting the applicant was heard. He stated that he had completed the first order form at the suggestion of Mr. M. He stated that completing the order form and handing over the money to Mrs Lombaerts formed two successive operations and that following each operation he had asked Mrs Lombaerts for receipts.

On 20 November 1992 the Disciplinary Board held a third meeting. Mr M. stated that the signature at the bottom of the last two order forms was not his. Furthermore, he pointed out that the numbers of the order forms did not correspond with the numbering used by the Commission.

At the same meeting the Disciplinary Board heard the applicant, who was assisted by a lawyer. The applicant said that he had passed the money on to Mrs Lombaerts and that he assumed that he had been instructed to do so.

On 18 February 1993 the Disciplinary Board held a fourth meeting. In the course of that meeting it first heard Mrs C, who stated that the appearance of the order forms in question was that normally used, but that their numbers had already been used for other orders.

At that fourth meeting the Disciplinary Board also heard Mr R., who stated that the applicant had admitted at the meeting of 22 July 1992 having kept sums belonging to the Commission.

When Mr R. gave his testimony the applicant, who was assisted by a lawyer, acknowledged that when interviewed on 22 July 1991 he had admitted having kept the amount in question. However, he maintained that the admission was untrue and that in reality he had not kept the money in question.

The Disciplinary Board delivered its opinion on the day of the fourth meeting. It considered that it had not been proved that the applicant had falsified the order forms and that it could not be ruled out that the money in question had actually been passed on to the supplier of services named by the applicant. However, it concluded that by failing to check the identity of that supplier beforehand and by failing to establish her bonafides the applicant had committed a serious breach of his obligations as an official of the European Communities. Consequently, it recommended that the appointing authority impose the sanction of downgrading to Grade B 5, Step 1.

On 4 March 1993 the applicant wrote to the appointing authority claiming, in particular, that the sanction proposed by the Disciplinary Board was, in his view, severe and unfair. He claimed to have seen Mrs Lombaerts in Mr M.'s office, in the presence of Mr Dewalcke, a producer.

Following that letter Mr M. was again questioned. He stated that he had never met either Mrs Lombaerts or Mr Dewalcke.

On 18 March 1993 the appointing authority adopted the contested decision, which reads as follows:

‘The complaint against Mr Daffix is that he forged three order forms made out to Newscom, a subcontractor of the Commission in the “culture” sector, and that he used the said order forms in order to induce Newscom to pay over to him, for and on behalf of the Commission, a large sum in cash in three instalments in June and July 1990.

Mr Daffix admitted at the hearing on 10 April 1991 that he had made out the three order forms, one of which he had signed personally per pro his immediate superior, in the absence of any instructions from his superior in that regard.

At the same hearing Mr Daffix denied having forged the signature of his immediate superior on the other two order forms.

Mr Daffix used the three order forms in order to obtain payment in cash of the abovementioned sum from Newscom without having obtained any instructions whatsoever in that regard.

Mr Daffix's statements concerning the payment to a person outside the institution of the sum he had obtained from Newscom, on the one hand, and as to the identity of that person, on the other, were inconsistent and often contradictory and hence could not be taken into consideration, in particular in the light of the other testimony given in the course of the disciplinary procedure.

It may therefore be properly concluded that Mr Daffix kept the sum of BFR 450000 which he received in cash from Newscom.

That conclusion is, moreover, corroborated by the statement made by Mr Daffix at the hearing on 22 July 1991.

Mr Daffix himself admitted before the Disciplinary Board that he had in fact made that statement on 22 July 1991, even though he subsequently refused to sign the record of the interview.

The conduct with which Mr Daffix is charged constitutes an extremely serious breach of his obligations, 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 such conduct justifies die imposition of a disciplinary measure more severe than that recommended by the Disciplinary Board.

The appointing authority therefore adopts die following decision:

Article 1: the disciplinary measure referred to in Article 82(2)(f) of the Staff Regulations, namely removal from post without reduction or withdrawal of entitlement to retirement pension, is imposed on Mr Daffix;

Article 2: this decision shall take effect on 1 April 1993.’

After the decision had been notified to the applicant on 29 March 1993 Article 2 of the operative part of the decision was amended, inasmuch as the date on which the decision was to take effect was put back to 1 July 1993.

On 18 June 1993 the applicant submitted a complaint within the meaning of Article 90(2) of the Staff Regulations against that decision.

On 18 October 1993 the applicant's complaint was impliedly rejected.

Procedure

By application lodged at the Registry of the Court of First Instance on 18 January 1994 the applicant brought an action for the annulment of the appointing authority's decision of 18 March 1993 (contested decision).

By judgment of 28 March 1995 in Case T-12/94 Daffix v Commission [1995] ECRSC II-233 the Court of First Instance annulled the contested decision on the ground that the statement of reasons was inadequate.

By application lodged at the Registry of the Court of Justice on 30 May 1995 the Commission appealed against that judgment.

By judgment of 20 February 1997 in Case C-166/95 P Commission v Daffix [1997] ECR I-983 the Court of Justice set aside the judgment of the Court of First Instance inasmuch as it annulled the contested decision on the ground that the statement of reasons was inadequate. It referred the case back to the Court of First Instance so that it might give judgment on the other pleas relied upon by the applicant at first instance. Finally, the Court of Justice reserved the costs.

Substance

In support of his action the applicant puts forward four pleas in law, the first alleging that the disciplinary measure imposed was unlawful, the second that the appointing authority abused its discretion and committed a manifest error of assessment, the third alleging breach of the rights of the defence and the fourth breach of Article 7 of Annex IX to the Staff Regulations.

First plea in law, alleging that the disciplinary measure imposed was unlawful

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 substitute its assessment for that of that authority only in the event of manifest error or misuse of powers (paragraph 63).

See: 228/83 F. v Commission [1985] ECR 275. para. 34; T-273/94 N v Commission [1997] ECR-SC II-289. para. 147

It follows from that case-law that every disciplinary measure assumes that the truth of the facts alleged against the official concerned is established (paragraph 64).

The contested decision must be read as meaning that the appointing authority considered it as established, first, that the applicant had falsified an order form made out to Newscom, which, on the basis ofthat order form and two other order forms, had then been induced to pay him the sum of BFR 450000 and, second, that he had kept that sum (paragraph 65).

It is appropriate to examine whether the appointing authority was in fact entitled to consider those facts to be established when it adopted the contested decision (paragraph 66).

The evidence that the applicant had falsified an order form made out to Newscom, which, on the basis of that order form and two other order forms, was induced to pay him the sum of BFR 450000 in cash

The applicant completed the three order forms in question. He stated that on a number of occasions he had done so, in particular when he was interviewed on 10 April 1991, and never subsequently denied it (paragraph 67).

He himself signed the first of those order forms and used all three in order to obtain payment from Newscom of the sum of BFR 450000 in cash (paragraph 68).

As to whether the applicant was instructed to obtain payment in cash from Newscom of the sum of BFR 450000, it should be observed that the applicant's statements are inconsistent. Mr M. and Mrs C, the applicant's immediate superiors, have always denied giving him the instructions to which he refers (paragraph 69).

In those circumstances, the appointing authority was entitled to take the view that the applicant had not been instructed to obtain the sum in question (paragraph 70).

Furthermore, it should be pointed out that both Mr M. and Mrs C. stated that the numbering of the order forms used to secure payment of the sum of BFR 450000 by Newscom was incorrect (paragraph 71).

In uose circumstances, the appointing authority had good reason to consider that the applicant had falsified an order form made out to Nevvscom (paragraph 73).

The evidence that the applicant had kept the sum which he had received from Newscom

At the interview on 10 April 1991 the applicant admitted that he had received the sum of BFR 450000 from Newscom ‘per pro the Commission’. That sum did not give rise to any service provided to the Commission (paragraph 74).

Those facts having been established, the appointing authority was entitled, in the absence of valid justification, to take the view that the applicant had kept the Commission's money (paragraph 75).

In applying that reasoning, the appointing authority did not breach the principle of the presumption of innocence. Although at the beginning of the disciplinary procedure it was required to presume that the applicant was innocent, it was lawfully able to depart from that presumption when the abovementioned facts had been established (paragraph 76).

For the purpose of showing that he did not keep the money, the applicant cannot confine himself to stating that he passed it on to a third person (paragraph 77).

First, it must be found that his statements in that regard were inconsistent and often contradictory, especially as regards Mrs Lombaerts's activity, the location of her office and the place where the applicant gave her the money (paragraph 78).

Next, it should be observed that a number of inquiries which the Commission made to trace Mrs Lombaerts were unsuccessful (paragraph 79).

Nor can the applicant claim that the appointing authority could not accuse him of having kept the amount entered on the three receipts while recognising that they were authentic (paragraph 80).

In any event, the receipts could not be regarded as credible, since they had not been drawn up on the headed paper of a company or of a Mrs Lombaerts, or on the Commission's headed paper and since, furthermore, they were not numbered and made no reference to any invoice or claim for payment (paragraph 81).

In those circumstances, the appointing authority was entitled to take the view that the receipts signed ‘Regine Lombaerts’ did not constitute evidence of the applicant's innocence (paragraph 82).

It follows from the foregoing that the appointing authority was justified in considering that the applicant had kept the sum which he had received from Newscom (paragraph 83).

Second plea in law, alleging an abuse of discretion and a manifest error of assessment

It should be pointed out that the disciplinary measures laid down by the Staff Regulations do not establish any fixed correlation between the measure to be imposed and the offence committed (paragraph 89).

See: T-549/93D v Commission [1995] ECR-SC II-43, para. 98; T-146/94 Williams v Court of Auditors [1996] ECR-SC II-329, para. 107

In the present case it is apparent that, having regard to the gravity of the facts, the disciplinary measure imposed on the applicant by the appointing authority was not disproportionate and was not of such a kind as to demonstrate that the appointing authority had abused its discretion or committed a manifest error of assessment (paragraph 90).

Finally, the applicant has failed to demonstrate the existence of objective, relevant and consistent evidence of such a kind as to establish that the contested decision was adopted for purposes other than that of punishing the breach of duty of which he was guilty, as is required by the case-law to establish, in a case such as this, a misuse of powers on the part of the appointing authority (paragraph 94).

See: T-108/89 Scheuer v Commission [1990] ECR II-411, paras 49 and 50; D v Commission, cited above, para. 88

Third plea in law, alleging a breach of the rights of the defence

The applicant's third plea in law consists of two parts, alleging failure by the Commission to comply with the obligation to investigate a complaint and a breach of the right to be heard (paragraph 96).

First part of the plea, alleging failure to observe the obligation to investigate

Under Article 4 of Annex IX to the Staff Regulations, in a disciplinary procedure the official charged is entitled to call witnesses before the Disciplinary Board. It is for the Board to assess whether the proposed evidence is relevant to the subject-matter of the proceedings and whether it is necessary to hear the witnesses called (paragraph 103).

See: 35/67 Van Eick v Commission [1968] ECR 329, at 342; T-500/93 Y v Court of Justice [1996] ECR-SC II-977, para. 43

In exercising his right to call witnesses, however, the official charged must request that the person of his choice be called upon to give evidence. In the absence of a request to that effect, the official concerned cannot subsequently rely on the fact that a person whom he wished to testify was not heard (paragraph 104).

See: N v Commission, cited above, para. 88

In the present case, there is no evidence before the Court that the applicant requested that Mr De Valck be heard during the disciplinary procedure, and in particular before the Disciplinary Board (paragraph 105).

In any event, when Mr De Valck was eventually interviewed by the inter-service group following the completion of the disciplinary procedure his evidence proved to be disastrous for the applicant (paragraph 106).

As regards the complaint that Mr M. was not present at the meetings of the inter-service group, it should be pointed out that consultation of that group does not form part of the disciplinary procedure susceptible of leading to a disciplinary measure (see Annex IX to the Staff Regulations). Furthermore, the inter-service group only intervened following the completion of the disciplinary procedure and the adoption of the decision on the appropriate disciplinary measure. In those circumstances, any irregularity concerning its consultation could not influence the legality and validity of the disciplinary procedure itself (paragraph 109).

Second part of the plea, alleging a breach of the right to be heard

Officials are presumed to know the Staff Regulations. The conduct of die disciplinary procedure is the subject of Annex IX to the Staff Regulations, which forms an integral part of those Regulations. Officials are also presumed to have knowledge of the conduct of the disciplinary procedure (paragraph 116).

See: 310/87 Stempels v Commission [1989] ECR 43, para. 10; T-122/95 Ombert v Commission [1996] ECR-SC II-63, para. 32

The Commission was therefore entitled to assume that the applicant had knowledge of the conduct of the disciplinary procedure. He cannot therefore rely on his alleged ignorance in that regard (paragraph 117).

That reasoning applies a fortiori since the applicant was assisted by a lawyer as from the second hearing before the Disciplinary Board, it is legitimate to presume that the lawyer chosen by an official to assist him in a disciplinary procedure knows the Staff Regulations or, in any event, the rules governing the conduct of the disciplinary procedure (paragraph 118).

It should further be pointed out that the applicant was capable of putting forward his point of view effectively (paragraph 119).

As regards the complaint alleging a breach of the duty to have regard for the welfare of its officials, it should be pointed out that the forms of order sought in actions brought by officials must have the same subject-matter as that of the initial administrative complaint and contain grounds of challenge based on the same matters as those in the complaint (paragraph 120).

See: T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 9; T-l 18/95 Anacoreta Correia v Commission [1996] ECR-SC II-835, para. 43

In the present case, however, there is no reference in either the complaint or even the application to the Court to a breach of the duty to have regard for officials' welfare. In those circumstances, the complaint alleging a breach of the duty to have regard for officials' welfare must be declared inadmissible (paragraph 121).

Fourth plea, alleging breach of Article 7 of Annex IX to the Staff Regulations

The first paragraph of Article 7 of Annex IX to the Staff Regulations provides that the Disciplinary Board is to transmit its opinion to the appointing authority ‘within one month of the date on which the matter was referred to the Board. The time-limit shall be three months where an enquiry has been held on the instructions of the Board’ (paragraph 129).

The time-limits laid down in Article 7 of Annex IX to the Staff Regulations, and in particular the period within which the Disciplinary Board is to deliver its opinion, are not peremptory but constitute rules of sound administration the purpose of which is to avoid, in the interests both of the administration and of officials, an unjustified delay in adopting the decision terminating the disciplinary proceedings. It follows that the disciplinary authorities are under an obligation to conduct disciplinary proceedings diligently and to ensure that each procedural step is taken within a reasonable period following the previous step. Failure to comply with that period (which can be assessed only in the light of the specific circumstances of the case) may not only render the institution liable, but may also result in the measure adopted after the expiry of the period being declared void (paragraph 130).

See: T-26/89 tie Compte v Parliament [1991] ECR II-781. para. 88

The Disciplinary Board may require a longer period than that prescribed in Article 7 in order to undertake an enquiry which is sufficiently complete and which affords the official concerned all the guarantees intended by the Staff Regulations (paragraph 131).

See:F. v Commission, cited above, para. 30; T-146/89 Williams v Court of Auditors [1991] ECR II-1293. para. 49

The periods which elapsed between the various steps taken by the Disciplinary Board were not unreasonable. The Disciplinary Board, which was faced with a case which was factually complex, owing in particular to the applicant's contradictory statements, carried out a full and thorough investigation of the matter (paragraph 133).

The application must therefore be dismissed in its entirety (paragraph 135).

Operative part:

The application is dismissed.