JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 March 1998

Case T-74/96

Georges Tzoanos

v

Commission of the European Communities

‛Officials — Decision ordering removal from post — Application for annulment — Concurrent disciplinary proceedings and criminal proceedings — Errors of assessment — Rights of defence — Articles 12, 13, 14, 21 and 86 of the Staff Regulations — Principle of proportionality — Principle of equal treatment — Misuse of powers’

Full text in French II-343

Application for:

annulment of the Commission's decision of 22 June 1995 to remove the applicant from his post without loss of his entitlement to a retirement pension, and of the decision of 19 February 1996 expressly rejecting the complaint which the applicant submitted on 21 September 1995 against the decision of 22 June 1995

Decision:

Application dismissed.

Abstract of the Judgment

On 22 December 1994 the appointing authority referred to the Disciplinary Board five complaints against the applicant, the former Head of Unit 3 ‘Tourism’ in Directorate A ‘Business development and improvement of the business environment’ of the Directorate-General for Enterprise Policy, Distributive Trades, Tourism and Cooperatives (DG XXIII) (Unit XXIII.A.3).

First, it was alleged that he ‘has exercised and continues to exercise unauthorised outside activities’. Second, he was alleged to have ‘failed to observe his duty of discretion in that, without informing his superiors, he had his residence at the same address as that of an outside firm which regularly participated in projects funded or to be funded by the Commission and publicly criticised a national body involved in the field of tourism’. Third, he was alleged to have ‘provided services to the Commission in the field of his professional activities on behalf of persons or bodies outside the institution in such a way as to have compromised his independence in the performance of his duties as Head of Unit within the Commission’. Fourth, he was alleged to have ‘prepared for persons or bodies outside the institution documents ultimately destined either for the Commission, and contrary to its interests, or for outside partners in projects funded by the Community’. Fifth, he was alleged to have ‘committed administrative irregularities and been guilty of budgetary and financial mismanagement in the performance of his duties as Head of the “Tourism” Unit’.

On 23 May 1995 the Disciplinary Board delivered a reasoned opinion recommending that the appointing authority should impose on the applicant a disciplinary measure referred to in Article 86(2)(f) of the Staff Regulations of Officials of the European Communities (Staff Regulations), namely removal from post without loss of entitlement to a retirement pension.

On 22 June 1995 the appointing authority decided to uphold the five complaints which it had referred to the Disciplinary Board, since it agreed with the Disciplinary Board that the matters of which the applicant was accused were established by incontrovertible evidence and to a large degree admitted by the applicant, and to impose the disciplinary measure recommended by the Disciplinary Board.

By note of 21 September 1995, which was registered at the Secretariat-General of the Commission on 25 September 1995, the applicant submitted a complaint under Article 90(2) of die Staff Regulations, which was expressly rejected by decision of 19 February 1996.

On 17 may 1996 the applicant lodged the application initiating the present proceedings at die Registry of the Court of First Instance.

Substance

Fourth plea in law, alleging infringement of the fifth paragraph of Article 88 of the Staff Regulations and of the second paragraph of Article 7 of Annex IX to the Staff Regulations

Since it is common ground between die parties that the applicant is the subject of criminal proceedings which commenced, at least in Belgium, at a time when disciplinary proceedings were pending against him, it is necessary to consider whether the contested decision complies with the second paragraph of Article 7 of Annex IX to the Staff Regulations and with the fifth paragraph of Article 88 of the Staff Regulations (paragraph 31).

The second paragraph of Artide 7 of Annex IX to the Staff Regulations, as worded, provides that it is within the discretion of the Disciplinary Board to decide not to deliver its opinion in the event of criminal proceedings (paragraph 32).

The fifth paragraph of Article 88 of the Staff Regulations, on the other hand, confers no such discretion on the appointing authority responsible for taking a final decision in respect of an official against whom disciplinary proceedings have been initiated. The purpose ofthat provision is to ensure that the administrative authority responsible for adopting a decision imposing a disciplinary measure on an official, and the administrative court responsible for reviewing the legality of the decision thus adopted, do not make findings in respect of facts which at the same time also form the subject of criminal proceedings until the criminal court dealing with the matter has definitively ruled on the actual existence of those facts, so that the official concerned will not be placed at a greater disadvantage in the criminal proceedings than if such a decision had not been taken by the administrative authority and, where appropriate, if a decision had not been taken by the administrative court, in this case the Court of First Instance. That rule is justified, in particular, by the difference in the scope of the controls exercised by the administrative authorities and courts, on the one hand, and the criminal authorities and courts, on the other, since the latter normally have greater powers of control than the former. The raison d'être. of the fifth paragraph of Article 88 of the Staff Regulations corresponds to the concern to ensure that the position of the official concerned is not affected in any criminal proceedings brought against him in respect of matters which also form the subject of disciplinary proceedings within his institution (paragraphs 33 and 34).

It follows from the scheme of the fifth paragraph of Article 88 of the Staff Regulations that it is for the official concerned to provide the appointing authority with sufficient information to enable it to determine whether the matters of which he is accused in disciplinary proceedings are at the same time the subject of criminal proceedings against him. In order to meet that obligation, the official concerned must, as a rule, show that criminal proceedings have been initiated against him while he was subject to disciplinary proceedings. It is only where such criminal proceedings have been initiated that the matters to which they relate can be identified and compared with the matters in respect of which the disciplinary proceedings have been instituted so that it can be determined whether they are the same (paragraph 35).

In the present case the evidence before the Court shows that on the date on which the contested decision was adopted no criminal proceedings had been initiated against the applicant. Having regard to the fact that no criminal proceedings had been initiated against him when the contested decision was adopted, it is not open to the applicant merely to accuse the Commission of having infringed the fifth paragraph of Article 88 of the Staff Regulations to his detriment (paragraphs 36 and 37).

In so far as the applicant was at that time the subject of inquiries liable to lead to criminal proceedings, however, he should be allowed, in accordance with the ratio legis of the fifth paragraph of Article 88 of the Staff Regulations, to show specifically that a final decision on his case was capable of affecting his position in any subsequent criminal proceedings to which the inquiry being carried out at the same time as the disciplinary proceedings might lead and which related to the same matters. It is therefore incumbent upon the applicant to identify those matters precisely and to state the reasons for which a decision taken by the appointing authority in respect of each of those matters was such as to affect his position in any subsequent criminal proceedings (paragraph 38).

It is clear from the documents before the Court that the applicant did not precisely identify any such matters in the context of the disciplinary proceedings which led to the adoption of the contested decision. When considering the first and second pleas in law the Court will consider whether the applicant provided more precise information in the context of the present proceedings (paragraphs 39 and 40).

First plea in law, alleging infringement of Articles 12, 13 and 14 of the Staff Regulations and breach of the general principle of law that every administrative act must be based on legally acceptable grounds

First complaint

The applicant is accused, first, of having pursued and continuing to pursue unauthorised outside activities. First, the Court rejects the argument that certain matters cannot be taken into account in support of the first complaint on the ground that they are not included in the initial report submitted to the Disciplinary Board but in a further report submitted during the course of the proceedings.

In that regard, Annex IX to the Staff Regulations, which covers disciplinary proceedings, does not require that all the matters with which an official subject to disciplinary proceedings is charged be included in the initial report submitted to the Disciplinary Board referred to in Article 1 of that annex. First, it cannot be ruled out that new matters which provide grounds for criticism and of which the appointing authority was unaware when it referred the matter to the Disciplinary Board may come to light in the course of the disciplinary proceedings. Nor can it be ruled out that the appointing authority may find that certain matters provide grounds for criticism only after it has referred the case to the Disciplinary Board. In such cases the appointing authority must be able to draw up a further report in order to widen the scope of the initial reference to the Disciplinary Board by adding those matters to the ones mentioned to in the initial report. The communication of a further report and the procedure for dealing with it in the context of the disciplinary proceedings referred to in Annex IX to the Staff Regulations are subject to the same provisions as those governing the transmission of and the procedure for dealing with the initial report (paragraph 58).

The Court finds, next, that the only matters to which the applicant admits constitute in themselves proof that he pursued an unauthorised outside activity within the meaning of the third paragraph of Article 12 of the Staff Regulations.

According to the third paragraph of Article 12 of the Staff Regulations the obligation to seek permission from the appointing authority arises as soon as the official ‘wish[es] to engage in an outside activity, whether gainful or not, or to carry out any assignment outside the Communities’. It applies without exception and makes no distinction according to the nature or importance of the activities or assignment concerned. It is therefore solely for the appointing authority, pursuant to the second sentence of the third paragraph of Article 12 of the Staff Regulations, to evaluate the characteristics of the activity or assignment when considering the request for permission (paragraph 66).

The material inaccuracies alleged by the applicant to exist with respect to the matters found to have been proved against him in the context of the first complaint are not established and each of those matters may form the subject of a final decision on his case at the end of the disciplinary proceedings, as provided for in the fifth paragraph of Article 88 of the Staff Regulations (paragraphs 67 to 79).

Second complaint

Second, the applicant is accused of having failed to observe his duty of discretion by having had, without informing his superiors, his residence at the same address as that of an outside firm which regularly participated in projects funded or to be funded by the Commission and with having publicly criticised a national body involved in the field of tourism.

The material inaccuracies alleged by the applicant to exist with respect to the matters found to have been proved against him in the context of the second complaint are not established and each of those matters may form the subject of a final decision terminating the disciplinary proceedings, as provided for in the fifth paragraph of Article 88 of the Staff Regulations (paragraphs 95 to 109).

Under the first paragraph of Artide 12 of the Staff Regulations an official is required to abstain from any action and, in particular, any public expression of opinion which may reflect on his position. In that regard, there is no prima facie reason for which fulfilment of the obligation set out in the first paragraph of Article 12 of the Staff Regulations should not mean that an official personally implicated in one or more press articles must consult the departments of his institution with specific responsibility for press relations, in order, in particular, to preserve the dignity of his position in the institution concerned (paragraph 101).

Third and fourth complaints

Finally, the applicant is accused of having provided services falling within the field of his professional activities within the Commission on behalf of persons or bodies outside the institution in such a way as to have compromised his independence in the performance of his duties as Head of Unit within the Commission and of having prepared for persons or bodies outside the institution documents ultimately destined either for the Commission, and contrary to its interests, or for outside partners in projects in receipt of Community subsidies.

The material inaccuracies and errors of assessment alleged by the applicant to exist with respect to the matters held against him in the context of the third and fourth complaints are not established and each of those matters may form the subject of a final decision terminating the disciplinary proceedings, as provided for in the fifth paragraph of Article 88 of the Staff Regulations.

The Commission is entitled to take the view that the applicant knowingly and persistently engaged in unauthorised outside activities which completely negated all guarantees of his independence and were such as to give rise to serious conflicts of interest in the performance of his duties and that the applicant seriously neglected his duty, as a senior official called upon, within the institution, to perform important managerial duties in a specific, sensitive sector, to act responsibly, independently and with integrity. By deliberately and continuously failing to inform the Commission of the real nature of his activities and the links which he had formed with companies operating in the sector covered by his own duties within the Commission, the applicant committed a serious breach of his duty of loyalty to the institution and, furthermore, in doing so infringed Article 12 of the Staff Regulations. Those breaches caused serious damage to the image, reputation and interests of the Commission (paragraph 178).

Second plea in law, alleging infringement of Article 21 of the Staff Regulations

In the context of this plea the applicant criticises, first, the general description of his duties as Head of Unit XXIII. A.3 which the Commission uses in accusing him of a number of irregularities in selecting and following up the various projects and, second, the particular allegations made against him in the contested decision concerning certain projects (paragraph 180).

First part of the plea, alleging misdescription of the applicant's duties

The applicant disputes the responsibilities which the Commission attributes to him in connection with the fifth complaint in the contested decision. It is necessary, therefore, to determine whether the Commission infringed Article 21 of the Staff Regulations in defining, in the contested decision, the applicant's responsibilities as Head of Unit XXIII.A.3 (paragraph 187).

The applicant cannot accuse the Commission of infringing Article 21 of the Staff Regulations in attributing to him, in connection with the fifth complaint, responsibility for the management of projects funded by the Commission in the tourism sector, for selecting those projects and for following up their budgetary and financial aspects, on the ground that the tasks thus generally assigned to him did not fall within his role as Head of Unit XXIII. A.3 (paragraph 207).

Furthermore, none of the matters at issue between the parties in relation to the definition of the responsibilities which the applicant assumed as Head of Unit XXIII.A.3 provides grounds for applying the fifth paragraph of Article 88 of the Staff Regulations (paragraph 208).

Second part of the plea, alleging errors affecting the individual charges formulated in the contested decision

The Court considers that the Commission did not infringe Article 21 of the Staff Regulations by upholding the charges in question against the applicant.

In the light of all the matters considered in the context of the second plea submitted in this action, it must be held that the charges made against the applicant in the contested decision establish the fifth complaint to the requisite standard in law and in fact, so that in upholding them in the contested decision the Commission did not infringe Article 21 of the Staff Regulations. Accordingly, the second part of the second plea must also be rejected. In so far as it follows from the assessment of the second part of the second plea that the fifth paragraph of Article 88 of the Staff Regulations is not applicable, the fourth plea must be definitively rejected (paragraph 308).

mrd plea in law, alleging breach of the rights of defence

It is necessary to determine, first, whether the Commission was entitled, in the applicant's absence, to examine the memory of the computer assigned to him and the office which he occupied in Unit XXIII.A.3 when no disciplinary proceedings had been initiated against him, and subsequently to use any evidence which it may thereby have discovered (paragraph 319).

In that regard, the question of any unlawful entry does not arise, since both the computer and the office which the applicant used in Unit XXIII. A.3 were provided by the Commission solely for the purpose of his duties as Head of Unit. Apart from the fact that the Commission remains the owner of these professional facilities, the applicant has neither shown, nor even claimed, that the Commission conferred on him any individual right over them, apart from the right to use them in the exclusive context of his duties. There is therefore no reason to consider that the Commission was guilty of unlawful entry when it accessed the data in the applicant's computer or entered the space occupied by his office (paragraph 320).

There is no provision in the Staff Regulations or in any other rules applicable in the present case to the effect that the Commission is entitled to obtain documents held in the memory of the computer or in the office placed at an official's disposal only when disciplinary proceedings have been initiated against him or when he is present. The fact that the institution owns the facilities and the obligation of every official to serve the interest of the institution in which he performs his duties mean that the institution concerned cannot be required to give a specific reason in order to have access to its facilities. Operations carried out for the purpose of checking the contents of computer equipment and offices do not require the presence of the official concerned, since the institution is merely examining its own resources. Accordingly, there is no scope in such circumstances for the official in question to plead breach of his rights of defence (paragraphs 321 and 322).

Secondly, the parties' arguments concerning access to the file should be examined (paragraph 328).

As regards the first category of documents, namely the documents used for the purpose of drawing up the DG XX audit report of 16 May 1994, the applicant's criticisms relate exclusively to the documents which were not annexed to those reports and whose absence allegedly affected his rights of defence in the context of the present proceedings (paragraph 329).

On that point, two observations are called for. First, the applicant did not respond at the hearing to the Commission's comments to the effect that he had access during the disciplinary proceedings to the file which was available to the Disciplinary Board when it delivered its opinion and to the appointing authority when it adopted the contested decision. It must be concluded that the principle of equality of arms was observed in the present case and that the applicant was able to acquaint himself with all the facts on which the decision was based in sufficient time to submit his observations. Second, although the applicant must be recognised as entitled to access to documents other than those communicated in the course of the disciplinary proceedings, the exercise of that right is not such as to affect the findings established and, accordingly, to show that there was a breach of the applicant's rights of defence (paragraph 329).

See: T-30/91 Solvay v Commission [1995] ECR II-1775, para. 83; T-273/94 N. v Commission [1997] ECRSC II-289, para. 88

Third, the Court must rule, in the light of Article 6 of the European Convention on Human Rights (Convention), on the allegation that the official assigned by the appointing authority to conduct the hearings of the applicant was not impartial (paragraph 338).

Since proceedings before the Commission are administrative rather than judicial, the Commission cannot be classified as a ‘tribunal’ within the meaning of Article 6 of the Convention. Accordingly, the Commission cannot be required to comply with the characteristics which Article 6 requires of a ‘tribunal’ where, in the context of disciplinary proceedings, it hears the official in question (paragraph 339).

See: 100/80,101/80,102/80and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, para. 7; T-26/89 De Compte v Parliament [1991] ECR II-781, para. 94

Next, it should be pointed out that the hearing carried out at this stage of the disciplinary proceedings, at the request of the appointing authority, is designed to enable it to consider whether it is appropriate to refer the matter to the Disciplinary Board pursuant to Article 1 of Annex IX to the Staff Regulations and, if so, to draw up the report stating the conduct complained of and, where appropriate, the circumstances in which it occurred. The person responsible for investigating the matter therefore acts in the name of the appointing authority. It is only at the subsequent stage of the proceedings, where the matter comes before the Disciplinary Board, that it is necessary to ascertain whether the case has been dealt with impartially, since the Disciplinary Board, composed of representatives of the institution and the staff in equal numbers, acts as an independent body in relation to the opposing parties, in the present case the applicant and the Commission. At this stage any problems which the applicant may have encountered during the hearing before the appointing authority may be submitted to the Disciplinary Board. In that regard, it should be emphasised that Article 87 of the Staff Regulations merely requires that an official on whom it is contemplated to impose a disciplinary measure be heard by the appointing authority (paragraph 340).

Fourth, the applicant's argument that he was unable to defend himself before the Disciplinary Board against the individual charges formulated in connection with the fifth complaint must be rejected. It is sufficient to consult the report of 22 December 1994 referring the matter to the Disciplinary Board to find that the individual charges upheld against the applicant in connection with the fifth complaint are set out in that report (paragraph 343).

Fifth, it is necessary to ascertain whether DG XX's audit report of 16 May 1994 should have been drawn up on an inter partes basis (paragraph 345).

In that regard, it should be pointed out that, as the Commission rightly observes, DG XX's audit reports need not necessarily be drawn up on an inter partes basis, since they are drawn up in the general interest of the institution and not in thé context of an inter partes procedure initiated against an official (paragraph 346).

Fifth plea in law, alleging breach of the principle of proportionality, of the principle of equal treatment and of Article 86 of the Staff Regulations, and misuse of powers

The principle of proportionality, as enshrined in the case-law, has two aspects. First, it is clear from the case-law that the choice of the appropriate measure is a question for the appointing authority where the matters v/ith which the official is charged are established and that it is not open to the Community judicature to find fault with the appointing authority's choice of disciplinary measure, provided that the measure imposed is not disproportionate to the matters with which the official was charged. Second, the determination of the disciplinary measure is based on a global appraisal by the appointing authority of all the particular facts and circumstances peculiar to the individual case, since Articles 86 and 89 do not prescribe any fixed relationship between the various lands of offences committed by officials and do not specify the extent to which the existence of aggravating or mitigating circumstances is to affect the choice of disciplinary measure. Review by the Community judicature is therefore confined to ascertaining whether in weighing up the aggravating and mitigating circumstances the appointing authority did not act disproportionately; in doing so the Court cannot assume the role assigned to the appointing authority as regards the value judgments made by that authority (paragraph 352).

See: 13/69 Van Eick v Commission [1970] ECR 3, paras 24 and 25; 46/72 De Greef v Commission [1973] ECR 543, paras 44 to 46; 228/83 F. v Commission [1985] ECR 275, para. 34; 403/85 F. v Commission [1987] 645, para. 26; 175/86 and 209/86 M. v Council [1988] 1891, para. 9; T-146/94 Williams v Court of Auditors [1996] ECRSC II-329

In the present case the applicant has failed to establish the existence of a breach of the principle of proportionality (paragraph 354).

As regards the alleged breach of the principle of equal treatment and of Article 86 of the Staff Regulations, it must be emphasised that the determination of the wrongful or improper nature of the applicant's conduct necessarily implies that his responsibilities within the Commission, more particularly as Head of Unit XXIII.A.3, must be taken into account, since this makes it possible to distinguish proper conduct from improper conduct (paragraph 355).

Furthermore, it cannot be maintained that the gravity of the measure imposed on the applicant is the consequence of his grade. The grounds of the contested decision show that the gravity of the measure corresponds to the gravity of his misconduct in the context of his responsibilities as Head of Unit XXIII. A.3. Similarly, it does not follow from Article 86 of the Staff Regulations that an official's grade and responsibilities cannot be taken into account for the purpose of determining the gravity of the measure to be imposed on him. It must therefore be concluded that in the present case the applicant has not shown that there has been a breach of the principle of equal treatment or of Article 86 of the Staff Regulations.

As regards the alleged existence of a misuse of powers, it should be pointed out that misuse of powers consists, in the case of an administrative authority, in using its powers for a purpose other than that for which they were conferred on it. Consequently, a decision is not vitiated for misuse of powers unless it appears, on the basis of objective, relevant and consistent evidence, that it was taken for purposes other than those stated (paragraph 357).

See: T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paras 87 and 88; T-80/92 Turner v Commission [1993] ECR II-1465, para. 70

The various matters put forward by the applicant do not constitute objective, relevant and consistent evidence such as to establish to the requisite legal standard that the decision to remove him from his post was taken for a reason other than to punish him for his wrongful conduct in the performance of his duties within the Commission (paragraph 358).

Operative part:

The application is dismissed.