JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

23 November 2010

Case F-75/09

Fritz Harald Wenig

v

European Commission

(Civil service — Officials — Request for assistance — Damage to reputation and breach of the principle of the presumption of innocence)

Application: brought under Articles 236 EC and 152 EA, in which Mr Wenig seeks, first, annulment of the Commission’s decisions rejecting his requests for assistance and, second, an order for the Commission to compensate for the damage resulting from the alleged unlawfulness of those decisions.

Held: The applicant’s action is dismissed. The applicant is ordered to pay all the costs.

Summary

Officials — Obligation of administration to provide assistance — Scope

(Staff Regulations, Art. 24)

By reason of the duty to provide assistance arising from the provisions of the first paragraph of Article 24 of the Staff Regulations, the administration must, when faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and, consequently, taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that an official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.

Furthermore, the duty to provide assistance is not subject to the condition that the unlawfulness of the acts on account of which the official has requested assistance must be established beforehand. Such a condition would contradict the very purpose of the request for assistance in the frequent cases where that request is made precisely in order to have those acts recognised as unlawful through legal proceedings assisted by the institution.

However, although the duty to provide assistance laid down in the first paragraph of Article 24 of the Staff Regulations constitutes a fundamental guarantee for the official under the Staff Regulations and is not subject to the condition that the unlawfulness of the acts on account of which the official has requested assistance must be established beforehand, the official must still furnish prima facie evidence that those acts concern him because of his status and duties and are unlawful under the national law applicable. If those requirements were not imposed on the official, an administration would be forced to provide assistance as soon as one of its officials complained about facts allegedly linked to the performance of his duties, regardless of the nature of those facts, the seriousness of the complaint and its chances of succeeding.

Furthermore, the administration cannot be required to assist an official suspected, in the light of precise and relevant evidence, of having seriously breached his professional obligations and who is therefore liable to disciplinary proceedings, even where that breach has allegedly been caused by the unlawful actions of third parties.

(see paras 46-49)

See:

224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16

F-115/05 Vienne and Others v Commission [2007] ECR-SC I-A-1-9 and II-A-1-47, para. 51