OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 15 MARCH 1973 ( 1 )

Mr President,

Members of the Court,

I — The Facts

For three years Mr Luigi Giordano was employed in the Commission of the European Communities. After a probationary period from March to October 1964, he was engaged as a member of the auxiliary staff in Category A (Group III, Class I) for a period of one year from 15 November 1964, under a contract which was regularly renewed for periods of 3 to 6 months. He was allocated to the Directorate-General of Transport as a scientific assistant, and initially gave satisfaction there but, from October 1966, his standard of work and his general behaviour called for some reservations and were then judged to be clearly unsatisfactory by his superiors. On 23 March 1967 the Administration gave him notice that his duties would be terminated definitively on the following 30 June. His engagement terminated effectively on that date.

Fifteen months later, in October 1968, a post for an Italian-speaking administrator became vacant in the Library and Documentation Division of the Court of Justice and Mr Giordano submitted his candidature for this post in an endeavour to obtain his appointment. It seems that for some time he had cherished the hope that this venture would be crowned with success but that hope was rapidly dashed because his candidature went no further.

It was at about the same time that Mr Giordano entered into conflict with the Commission which he blamed, in the first instance, for the circumstances in which his duties were terminated. The applicant, considering himself to be the victim of improper dismissal, claimed, on 12 October 1968, an allowance based on his seniority of service, compensation for dismissal ‘without just cause’ and damages by way of compensation for non-material damage which he alleged he had suffered.

This first claim was rejected by the President of the Commission on 21 January 1969.

On 7 October 1970 he again claimed the amounts of compensation to which he believed he was entitled owing to his dismissal, alleging further that the Commission supplied the Court of Justice with information concerning him which was so unfavourable that it induced the Court to refuse to engage him. Thus the Commission should assume liability for this refusal.

This fresh claim was in turn rejected by the President of the Commission on 9 March 1971.

In the meantime, Mr Giordano's lawyer stated to the Director-General of Administration at the Commission on 10 February 1971 that his client was in fact dismissed for disciplinary reasons, the true grounds of which were revealed by the unfavourable information concerning his behaviour in service communicated to the Court of Justice. Accordingly he asked him to re-examine his position.

No reply was given to this intervention.

II — Admissibility of the application

By this application, Mr Giordano submits that the Commission is liable. He asks you to order it pay him compensation equal to the total remuneration which he would have received from the Court of Justice from December 1968 until the date of your judgment of any other sum which you may deem it proper to fix.

You are therefore entertaining a claim for damages based on the provisions of Article 215, second paragraph, of the Treaty of Rome endeavouring to impute extra-contractual liability to the Commission on the basis of dereliction of duty. This follows clearly from the submissions in the application, the object of which is compensation for damage caused to the applicant by the Commission in preventing his engagement by the Court of Justice.

This consideration is the decisive factor with regard to the admissibility of the application, which is expressly denied by the defendant which maintains in the first place that the applicant really intends, by means of this application, to question the legality of the decision of 23 March 1967, terminating his contract as an auxiliary agent, which decision became definitive and against which it is therefore no longer possible to appeal.

On this first point, the Commission's position seems to us to be admissible. The applicant approached the President of that Institution twice, on 12 October 1968 and 7 October 1970, with claims whereby, alleging that the cancellation of his contract of employment was tantamount to unlawful and improper dismissal, he requested compensation on that ground alone. But he did not dispute the legality of the decision within the prescribed time.

The Commission considers that, insofar as the object of his direct action is compensation for the damage caused by an unlawful decision of dismissal, this action, in reality, seeks the annulment of the legal consequences of the termination of the contract of employment, the annulment of which the applicant failed to seek within the prescribed time. In this field of actions for damages arising out of public office, you have decided (Judgment of 15 December 1966, Case 59/65 — Schreckenberg — First Chamber, Rec. 1966, p. 786 et seq.; Judgment of 12 December 1967, Case 4/67 — Collignon — First Chamber, Rec. 1967, p. 470) that officials or other agents of the Communities may not make use of actions for damages in order to endeavour to redress the pecuniary consequences of individual decisions which they have not contested within the periods laid down by the provisions of Title VII of the Staff Regulations, extended by analogy to auxiliaries under the terms of Article 73 of the system applicable to them.

According to this case law, Mr Giordano's application is therefore inadmissible insofar as it concerns the loss resulting from the dismissal.

But, Members of the Court, we have found that the submissions contained in the application are in no way aimed at reparation of the damage resulting from this dismissal. Before you, the applicant limits himself to claiming compensation merely for the damage resulting from the breach of duty committed by the Commission in furnishing the Court of Justice with unfavourable information about him. Although his line of argument is ambiguous in the sense that, for him, the event giving rise to liability ‘consists of a complex whole comprising, on the one hand, unlawful dismissal and, on the other hand, subsequent unlawful behaviour by reason of the fact that unfavourable information was supplied in an unjustified manner’, the admissibility of the action for compensation on the second ground seems to us to be undeniable, while admitting that any objection as to the legality of the dismissal must not come under discussion.

The act of which the Commission is accused, that is the communication of information to the Court of Justice, occurred between the end of November and the beginning of December 1968. But, by virtue of Article 43 (first sentence) of the Protocol on the Statute of the Court of Justice, proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. This period of limitation had therefore not expired when the application was introduced on 22 March 1972.

It is true that the Commission invokes the provisions of the second and third sentences of the same Article 43 by virtue of which, when the period of limitation is interrupted by a prior application made by the aggrieved party to the institution responsible, the proceedings must be instituted within the period of two months provided for in Article 173 of the Treaty.

In this case, as such a claim was made by the applicant's lawyer on 10 February 1971, the direct action is, according to the defendant, out of time and, therefore, inadmissible as it was not presented within that period.

Such plea of inadmissibility cannot be accepted because, as you held in a judgment of 14 July 1967(Kampffmeyer, Rec. 1967 p. 337), these provisions are not aimed at reducing the five-year period of limitation, but on the contrary are aimed at permitting the parties concerned, who have made a prior application of such a nature as to interrupt the period of limitation, to benefit from a supplementary period in order to file their application for compensation.

III — Discussion as to the merits

We may therefore turn to the merits of the dispute.

Bearing in mind what we have just stated, it is proper to ignore the termination of the contract as an auxiliary agent which took place in 1967 and to centre our examination on the sole fact, charged against the Commission, that it supplied the Court of Justice with unfavourable information concerning Mr Giordano and that, in consequence, it prevented his recruitment by this institution.

The involvement of Community liability on the basis of Article 215, second paragraph, of the Treaty involves:

— Proof of the event giving rise to the damage;

— the unlawful or incorrect nature of that event;

— the existence of a relation of cause and effect between the event giving rise to the damage and the alleged damage itself;

— finally, the existence of damage which is capable of being compensated.

1. Event giving rise to the damage and relation of cause and effect

First of all, what is the position with regard to the event upon which the applicant endeavours to base the liability of the Commission?

The applicant produces two documents in support of his allegations:

— The first is the unsigned copy of a memorandum (or a draft memorandum) drawn up on 29 November 1968 by the Registrar of the Court for submission to the President and Members of the Court. This memorandum recalls that, on the preceding 2 October, a post for an Italian-speaking administrator in the Library and Documentation Division was stated to be vacant: mention was made of the desire expressed by the Court in its administrative meeting of 13 November to resort to the employment of a temporary agent in order to fill this post; its purpose was to inform the Court of Justice of Mr Giordano's candidature and states, should such candidature be accepted, the conditions in which the person concerned could be recruited under a contract as a temporary agent for a period of six months which could be considered as a probationary period.

— The second is a copy of a telegram sent on 6 December 1968 to the applicant by the Administration of the Court. This message refers to difficulties encountered in Mr Giordano's recruitment as a result of ‘information received from Brussels’.

What can one deduce from these two exhibits?

The memorandum emanating from the Registry is a document of a purely internal nature, the sole object of which was that of informing the Court, the appointing authority for its agents, of the applicant's candidature; it certainly did not contain any commitment to appoint him to the vacant post; furthermore, such a commitment would have been devoid of any legal effect, as the power of decision is vested in the President and Members of the Court, acting at an administrative meeting.

Moreover, the minutes of meetings of this nature held after 29 November 1968 make no mention of this memorandum which seems to have remained in the draft stage. Therefore the applicant's claim that he was ‘on the point of being employed by the Court of Justice’ has no foundation. His candidature had been recorded by the Personnel Department but the examination thereof had never gone past the stage of preliminary contacts and preparatory measures.

As to the telegram, which is in the nature of a personal message and not an official communication, one can only infer from this that, at this stage of investigation of the candidature, certain departments of the Court had taken the initiative of asking ‘Brussels’ — by this we understand the Commission — for information concerning Mr Giordano. But the text of the message states neither the nature of the information obtained nor the official of the Commission from whom the information was received.

For its part, the defendant asserts that it was not approached with any request for information and it expressly denies that it supplied any information. At the most it is possible to assume that such a request was made, doubtless through unofficial channels, and that the information obtained related to the standard of work and professional behaviour of the applicant during the time he was employed with the Directorate-General of Transport and that ultimately this information was not favourable to him.

The applicant's allegations rest therefore only on uncertain foundations which, in our view, are manifestly insufficient to involve the liability of the Commission. If, nevertheless, you consider it possible to hold that certain unfavourable information was transmitted to the Court of Justice, the existence of a relation of cause and effect between such information and the fact that the applicant was not employed by the Court has in no way been demonstrated. The Court was in no way bound to accept the applicant's candidature; its freedom of choice remained total. Consequently, Mr Giordano had no right to be appointed to the vacant post.

2. Liability of the Commission

For these reasons alone, we would therefore be tempted to propose that the application be rejected and it is on a purely subsidiary basis that we shall examine the question of whether, even assuming the facts put forward by the applicant to be established, the behaviour of the Commission was of such a nature as to involve its liability under Article 215, second paragraph of the Treaty. Mr Giordano bases his argument on Italian law in order to claim that by communicating to a possible employer — in this case the Court of Justice — unfavourable information, drawn from facts which could not be held to be established, the Commission infringed against the obligation of propriety which must govern all social relationships.

Is this rule, which concerns the relationship between an employer and an employee under private law, among the principles common to the law of the Member States in the matter of non-contractual liability of public authorities?

Would it be enforceable against an institution of the European Communities where one of its agents — or a former agent — submits his candidature for a vacant post in the services of another institution?

A comparative examination of German and French administrative law enables one to reply to the first question in the negative.

According to the commentary by Plow-Wiedow on the status of officials of the Federal Republic, all the authorities of the Federation and the Lands are bound by an administrative obligation of mutual aid: they are under an obligation to communicate all information to each other, providing that the administration which requests such information is competent to consider the matter for which such information is necessary.

Only particular legislative provisions imposing secrecy — for example in fiscal or postal matters — may set aside this obligation which is also valid for the communication of an official's personal file. The only consequence arising from the confidential nature of this file is that the department holding it must consider whether knowledge of the documents contained therein is a matter of necessity for the authority which requests the same.

In the case where an official is to be seconded or allocated to another authority, his file must be transmitted in its entirety.

In our opinion, the same solution should obtain when a public authority examines the candidature of a person who has previously performed duties for another authority.

In French administrative law the communication of correct information by an administrative authority is not, in principle, incorrect unless it concerns confidential facts or facts reference to which is prohibited by law. Further, case law deals with the disclosure of information, not to another administration but to the public or third parties: thus the Minister of Foreign Affairs commits an error by mentioning, in a press communiqué, facts taken from the personal administrative file of a former diplomat and in particular the fact of amnesty having been granted in respect of a conviction (Conseil d'État, 28 November 1962, Minister of Foreign Affairs v Robert Peyrefitte, Rec. 1962, p. 635).

As for British law, it admits that, for reasons of public policy, a person can in certain circumstances communicate information, even of such a nature as to affect adversely the reputation of another person, without incurring liability unless it is proved that it was actuated by malice. In this sense, statements made with the object of safeguarding a lawful interest are protected by the concept of qualified privilege. This is the case, for example, with replies to requests for information concerning the qualifications of possible employees (Principles of Scottish Private Law — David Walker — Vol. II, The Law of Obligations).

In like manner, we do not think that the fact that a Community institution supplies another institution with information concerning the professional behaviour of one of its former employees is unlawful and will render it liable, seeing that, on the one hand, this information satisfies the lawful desire of the institution requesting the information to obtain all useful factors for the assessment of a candidate for employment in its own departments and that, on the other hand, the information given is not actuated by malice or an intention to cause harm.

The confidential nature given to the personal file of an official reflects a desire to provide protection against indiscretions with regard to third parties; it could not be invoked in the relationships between institutions when communication of this file or of details thereof is motivated by the interests of good administration.

The applicant's argument cannot therefore be accepted in law, when he has not even attempted to establish that the information supplied concerning him did not relate to his professional qualifications.

Finally, it remains for us to say that the damage of which the applicant complains is no better established than the event giving rise to it.

For Mr Giordano, this damage consists in the fact that, since December 1968, he has been unlawfully deprived of the remuneration which he would have received at the Court of Justice if he had been engaged at that time.

Apart from the fact that the right to remuneration is attached to the concept of ‘services rendered’, a condition not fulfilled in this case, the applicant does not adduce the slightest vestige of evidence that the fact that he was not appointed has prevented him, for more than 4 years, from pursuing any remunerative activity whatsoever.

Thus, whether it be from the point of view of the event giving rise to the damage, the involvement of Community liability or the existence of damage capable of being compensated, we can only conclude:

— that the application should be rejected, and

— that, in accordance with Article 70 of the Rules of Procedure each of the parties should bear its own costs.

( 1 ) Translated from the French.