Opinion of Mr Advocate General La Pergola delivered on 19 September 1996. - Commission of the European Communities v Frédéric Daffix. - Officials - Removal from post - Statement of reasons. - Case C-166/95 P.



European Court reports 1997 Page I-00983



Opinion of the Advocate-General

1 In this appeal the Commission is asking the Court to set aside the judgment of the Court of First Instance of 28 March 1995 in Case T-12/94 Daffix v Commission [1995] ECR-SC II-233. The appellant claims, inter alia, that the form of order sought by it at first instance should be granted and that the respondent should be ordered to pay the costs.

2 Before analysing the parties' arguments, I would outline the events giving rise to this appeal.

At the material time Mr Daffix was a Commission official, responsible for production at the Information, Communication, Culture and Audiovisual Directorate-General (DG X). Disciplinary proceedings were started against him on charges of failing to fulfil his obligations as an official. He was accused of having forged three order forms addressed to the Newscom company, which, on the basis of those order forms, had allegedly been induced to pay over to him the sum of BFR 450 000 in cash, and of having wrongfully appropriated that money.

The Disciplinary Board, before which the matter had been duly brought by the appointing authority in accordance with Article 1 of Annex IX to the Staff Regulations, found, as regards the first charge, that `it had not been proven that the order forms had been forged by Mr Daffix'. Next, with regard to the charge of misappropriation, the Board concluded that it could not rule out the possibility that the money in question had in fact been handed over by Mr Daffix to its lawful recipient. The Disciplinary Board nevertheless concluded that, by paying over a substantial amount of money without first verifying the identity of the recipient, Mr Daffix had been guilty of a breach of his general duty of diligence as an official of the European Communities. It therefore recommended that the appointing authority impose upon him the disciplinary measure of downgrading.

The appointing authority did not share that view. While making no pronouncement on the forgery of the order forms, the appointing authority found that Mr Daffix had kept the money in question for himself and accordingly imposed on him the disciplinary measure of removal from his post, instead of the more lenient measure proposed by the Disciplinary Board.

3 Mr Daffix challenged that decision before the Court of First Instance, relying on five distinct pleas in law. In the contested judgment, the Court of First Instance upheld the application and annulled the Commission's decision on the ground that it had an inadequate statement of reasons. Consequently, it did not rule on the other pleas and arguments put forward by the applicant. More particularly, the Court of First Instance assumed that the duty to state reasons is particularly stringent where an administrative act concerns an individual and refers to facts which might have criminal implications. It considered that the Commission had not observed the minimum requirements in point of the statement of reasons which had to be complied with if a decision adopted by it was to be lawful. According to the Court of First Instance, the decision did not indicate precisely which charges levelled against Mr Daffix were well founded and did not provide an adequate statement of the reasons which had prompted the appointing authority to depart from the opinion of the Disciplinary Board and impose upon Mr Daffix a disciplinary measure more severe than that recommended by that body.

4 In the present case, the Commission claims that the Court should set aside the contested judgment and uphold the claims which it made at first instance. The respondent contends, for his part, that the appeal should be dismissed and the judgment of the Court of First Instance upheld.

The first plea

5 In its first plea, the appellant claims that the Court of First Instance was wrong to uphold the objection raised by Mr Daffix that the statement of reasons of the contested decision was defective. That objection should have been declared inadmissible inasmuch as it was raised out of time.

The first plea should, in my view, be rejected. The Court of First Instance correctly held that a plea alleging that a statement of reasons is inadequate constitutes a matter of public policy which the Court may raise of its own motion. (1) It is therefore of no consequence that Mr Daffix raised that defect only in the reply.

The second plea

6 By the second plea, the assessment of the Court of First Instance is challenged in various respects inasmuch as it considered the statement of reasons of the contested decision to be inadequate for the purposes of Article 190 of the Treaty.

According to the Commission, the decision at issue was essentially based on the conclusion that Mr Daffix had misappropriated the money. That conclusion was adequately reasoned as a result of the reference made to the `"manifestly" inconsistent and often contradictory' statements made by the official in the course of the administrative procedure. In the appellant's words, it `seemed pointless to expand at any greater length' on the reasons for the measure and hence reference to the administrative file had been deemed sufficient.

That argument is not convincing. The appellant maintains, essentially, that there was no need to state reasons because the charges levelled against Mr Daffix are clearly made out in the file. Assuming, but not admitting, that the charges were justified icto oculi, it must be stated forthwith that this did not exempt the authority which subsequently imposed a sanction for the alleged misconduct in the form of a disciplinary measure from stating the reasons on which that measure was based. There is in every case an obligation to provide an express and adequate statement of reasons for a disciplinary measure. A fortiori in this case, given that the Disciplinary Board took the view that the allegations were not proven. This is sufficient to rule out the evidence in the file providing complete, incontrovertible proof of the respondent's guilt. It was therefore rightly held in the contested judgment that mere reference to the findings in the administrative file did not constitute an appropriate statement of reasons.

7 The Commission goes on to take issue with other aspects of the contested judgment. In its view, the Court of First Instance erred in considering that the appointing authority had failed to indicate clearly the reasons which prompted it to adopt a disciplinary measure more severe than that recommended by the Disciplinary Board: according to the appellant, the appointing authority, unlike the Board, considered that the misappropriation of the money was a proven unlawful act. The result of this - as is made clear in the statement of reasons - was the loss of the trust which must be a feature of relations between the Commission and its staff.

In dealing with this criticism, it should be noted that the Court of Justice laid down the principle in F v Commission (2) that where `the disciplinary measure imposed by the appointing authority is severer than that suggested by the Disciplinary Board in its opinion, the reasons for this must be ... stated'. This means that, in any event, the reasons for the measure imposing the more severe disciplinary measure may not and must not fail to appraise the opinion delivered by the Disciplinary Board which it elects not to follow; it must state - that is to say, explain in appropriate, explicit terms - why the reasons given by the Board in recommending a more lenient disciplinary measure are unacceptable. In such case, the statement of reasons necessarily presupposes an assessment of the view expressed by the Disciplinary Board as to the seriousness of the disciplinary offence and as to the lack of foundation for the appointing authority's allegation which the latter considers it must maintain and for which it imposes a very much more severe disciplinary measure: in this case, removal from the post instead of the downgrading recommended by the Disciplinary Board.

It need hardly be added that the obligation to state reasons is an essential aspect of the legality of administrative action and of the possibility of judicial review thereof: ultimately, it provides a guarantee for the person concerned, who must be able to argue before the Court where appropriate that the disciplinary measure imposed on him is unwarranted. As this Court has held on a previous occasion, the purpose of the statement of reasons is `to enable the Court to review the legality of the decision and to provide the person concerned with details to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested'. (3)

The criticism put forward in the plea in question cannot, therefore, be levelled at the decision of the Court of First Instance.

8 The Commission further claims that an adequate statement of reasons was provided for the decision inasmuch as Mr Daffix had admitted to the allegations, and the reference to that admission, which appears in the statement of reasons of the decision, justifies, in itself, the disciplinary measure imposed. But the Court of First Instance rightly observed that that confession - the value of which, however, is very doubtful since it was retracted - is mentioned in the final part of the statement of reasons only in order to bear out a conclusion which had already been reached on the basis of other evidence. The contested judgment therefore rightly ruled out the possibility that the fact that the official made a confession which he subsequently withdrew could in itself justify the decision adopted by the appointing authority.

The appellant, however, disagrees. In its eyes, the confession was valid and, in any event, Mr Daffix failed to prove that the charges against him were untrue. In truth, according to this singular proposition, it was not so much a question of the appointing authority's having to provide reasons for the contested decision. Rather, it was for Mr Daffix to prove that the accusations levelled against him were unfounded. The well-known maxims onus probandi incumbit ei qui dicit and reus in excipiendo fit actor are quoted in support of this argument.

That argument is completely without merit. I shall not, however, dwell upon the arguable assertion that it should be for Mr Daffix to prove his innocence in the face of an allegation which the Commission assumes to have been made out even though the Disciplinary Board took a different view. I cannot see, in any event, how it is possible to respond to the criticism of the Court of First Instance regarding the lack of a statement of reasons for the measure by claiming that the onus of proof had to be discharged by the official and not by the administration. It is one thing to determine who has to prove a fact; the obligation to set forth reasons justifying the measure is obviously quite another. In short, the appellant here is confusing two different aspects of the case: on the one hand, the rules on the burden of proof and the assessment of evidence by the Court and, on the other, the obligation requiring administrative acts to state the reasons on which they are based. Moreover, the Commission's confusion about that fundamental distinction clearly emerges when, instead of showing that the statement of reasons was adequate for the purposes of Article 190, it seeks to convince this Court that the measure taken against Mr Daffix was well founded on the merits. Such considerations are of no relevance in the present case. The Court of First Instance merely observed that the measure submitted to it for its assessment did not state sufficiently clearly the reasons on which it was based. On that ground it annulled it. This Court is now called upon exclusively to ascertain whether the assessment of the Court of First Instance was legally appropriate. Whether the admission was valid or whether or not the respondent was guilty of the misconduct of which he was accused are questions which have no bearing on these proceedings. Those questions are concerned with the merits of the contested decision rather than with the obligation to provide an adequate statement of reasons.

9 The Commission further criticizes that part of the judgment of the Court of First Instance where it held that the statement of reasons of the measure did not indicate the precise facts on which the disciplinary measure imposed on Mr Daffix was based. However, the reasoning of the Court of First Instance is unobjectionable also in this respect. The contested judgment found that the decision did not specify whether or not the respondent was considered to have been responsible for forging the order forms. The Court of First Instance thus correctly applied the principle, laid down by this Court, that `the statement of the reasons for [the] decision must specify the acts which the official is found to have committed'. (4) As the Court of First Instance stated, it was especially necessary for reasons to be stated with regard to that point inasmuch as the official had denied the charges and the appointing authority had not provided any explanation for its failure to carry out an investigation into who had in fact signed the order forms in question.

The Commission objects, however, that forgery of the order forms had been included amongst the charges levelled against the respondent. In its view, although that was not expressly stated, it could, however, be inferred by interpreting the measure as a whole. My earlier observation applies here also. The proper and adequate statement of reasons required by Article 190 requires the grounds on which the measure is based to be shown clearly and unambiguously. (5) A ground which may be deduced only by an interpretative analysis of the measure which is far from easily accomplished cannot be considered clear and unambiguous.

10 On those grounds I am of the view that the judgment of the Court of First Instance should be upheld. The decision at first instance is not vitiated by any error of law in the application of the rules with which an appropriate statement of reasons for an administrative measure must comply, when it held that in this case the requirement laid down by Article 190 had not been fulfilled.

The third plea

11 In its third plea the Commission maintains that the Court of First Instance erred by failing to take account of the explanations provided by it in the course of the proceedings at first instance. In other words, the Commission maintains that the Court of First Instance should have accepted that it was possible for the statement of reasons to be expanded ex post.

That criticism is, however, manifestly unfounded also. It is sufficient to recall, in this regard, that the Court of Justice has held that `the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him'. (6) The lack of a statement of reasons cannot be remedied during the proceedings before the Court. There is no reason for departing from that fundamental principle here. A fortiori, I would add, since in the present case - as was correctly observed at first instance - the contested decision and the allegations to which it referred were particularly serious and the Disciplinary Board and the appointing authority reached different conclusions with regard to whether Mr Daffix was responsible. To uphold the Commission's argument would lead to the unacceptable result that, in disciplinary proceedings, the administration could prepare some semblance of a statement of reasons, reserving the right to complete it once the addressee of the measure brought judicial proceedings. The upshot would be that the administration could shape the content of the statement of reasons to suit the criticisms brought to bear by the person concerned. This would also open up the possibility of an infringement of the rights of the defence. Consequently, the contested judgment should be upheld in this respect as well.

The Commission's other pleas

12 Finally, the Commission rehearses a number of arguments relating to the merits of the case at first instance. However, those arguments cannot be taken into consideration here. Article 51 of the Statute of the Court of Justice is peremptory in this regard: an appeal must be limited to points of law alone. The Court of First Instance held that the contested decision was vitiated by an inadequate statement of reasons and decided to annul it on that very ground, without ruling on the other pleas put forward by Mr Daffix. I can only reiterate what I have already stated: in these proceedings the Court of Justice is called upon solely to adjudge whether the contested judgment correctly applied the legal rules which must apply to the statement of reasons of measures. In other words, what is involved is simply a legal assessment of the judgment of the Court of First Instance. No account can be taken of the merits of the measure which was the subject-matter of the proceedings at first instance.

Conclusion

13 On the basis of the foregoing, I propose that the Court should:

- dismiss the Commission's appeal;

- order the Commission to pay the costs.

(1) - See Case 18/57 Nold v High Authority [1959] ECR 41; Case 185/85 Usinor v Commission [1986] ECR 2079, paragraph 19; Case T-45/90 Speybrouck v Parliament [1992] ECR II-33, paragraph 89; Case T-115/89 González Holguera v Parliament [1990] ECR II-831, paragraph 37, and Case T-534/93 Grynberg and Hall v Commission [1994] ECR-SC II-595, paragraph 59.

(2) - Case 228/83 F v Commission [1985] ECR 275, paragraph 35.

(3) - Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22.

(4) - See F v Commission (cited in footnote 2), paragraph 35.

(5) - See, ex multis, Case 1/69 Italy v Commission [1969] ECR 277, paragraph 9.

(6) - See Michel v Parliament (cited in footnote 3), paragraph 22.