JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

28 March 1996

Case T-40/95

V

V

Commission of the European Communities

‛Officials — Disciplinary measures — Removal from post — Statement of reasons — Aggravating circumstances’

Full text in French II-461

Application for:

annulment of the Commission's decision of 18 January 1995 removing the applicant from his post without reduction or withdrawal of his entitlement to a retirement pension.

Decision:

Annulment.

Abstract of the Judgment

On 24 May 1991, the applicant, his wife and Mr K, one of his colleagues, took part in the written accountancy and auditing tests in Open Competition EUR/B/21, published on 26 October 1990 and organized jointly by the Commission and the Court of Auditors of the European Communities.

On 10 July 1991, one of the examiners marking the written tests informed the selection board by letter that he had noticed similarities in the answers of the three candidates to certain accountancy and auditing questions, and similarities between certain answers and the Court of Auditors auditing manual.

By letter of 19 February 1992, the appointing authority informed the applicant of its decision of the same date to open disciplinary proceedings against him on the ground that he was suspected of having communicated with two other candidates in Competition EUR/B/21.

In its opinion of 11 June 1993, the Disciplinary Board advised the appointing authority to reprimand the applicant. It found that he had acted in breach of his duties under the Staff Regulations, inasmuch as he had admitted having passed draft answers to two candidates during the written tests, but found unproven the charge that he had had advance knowledge of the questions and/or model answers.

At a hearing held on 28 July 1993 by the Director General for Personnel and Administration acting in his capacity as appointing authority, Mr K, who was assisted by counsel, stated that on the day before the written tests the applicant himself had told him that he possessed the questions which were to be put during those tests. The applicant had said that the questions had been given to him by a group in the security office in Luxembourg, which had distributed information on the tests in the competition to a limited number of persons.

By memorandum of 17 September 1993, the appointing authority informed the applicant of its decision to suspend the disciplinary proceedings against him temporarily in order to proceed with the administrative investigation ‘in the light of the new evidence disclosed at the recent hearings’.

In its second opinion, of 11 October 1994, the Disciplinary Board recommended by a majority that the appointing authority should downgrade the applicant to Grade C 4, maintaining his seniority in step, a majority of the board's members being convinced, in particular, that Mr V was in possession of the questions before the tests.

On 18 January 1995, the appointing authority adopted a decision imposing on the applicant the disciplinary measure referred to in Article 86(2)(f) of the Staff Regulations, namely removal from his post, with effect from 1 March 1995. In its decision, the appointing authority noted that the applicant's conduct was aggravated by the following circumstances: first, by taking advantage of a leak, he had deliberately attempted to distort the marks obtained in the open competition by candidates who did not in reality possess the required professional ability, which would have been detrimental both to the other candidates and to the interests of the institution; secondly, by refusing to give any information as to the origin of the model answer in question he had failed in his duty to cooperate in establishing the true facts, in the interest of the institution; and, finally, the nature of his former positions as inspector in the Belgian police and official in the security office required that his honesty should be irreproachable.

Substance

Breach of the principle of proportionality and inadequate statement of reasons

It has consistently been held by the Court of Justice and the Court of First Instance that the obligation to state the reasons on which a decision adversely affecting a person is based is intended both to provide the person concerned with the information necessary to decide whether the decision is properly founded and to allow judicial review (paragraph 35).

See: 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 36; T-l/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 73

Whenever the appointing authority imposes a disciplinary measure on an official, the statement of the reasons for its decision must specify the acts which the official is found to have committed and the considerations which have led the appointing authority to impose the particular penalty. Furthermore, if the penalty imposed by the appointing authority is more severe than that suggested by the Disciplinary Board, the decision must set out in detail the grounds which have led the appointing authority to disregard the Board's opinion (paragraph 36).

See: 228/83 F v Commission [1985] ECR 275, para. 35; T-12/94Daffix v Commission [1995] ECRSC II-233, para. 33

The Court finds that both the Disciplinary Board and the appointing authority were decisively influenced in their assessment of the intrinsic gravity of the charges against the applicant essentially by the allegation that he possessed the model answers before the tests (paragraph 40).

The appointing authority, however, found that the applicant's conduct was more serious than had been found by the Disciplinary Board, but did not set out in detail, by additional reasoning, the grounds which led it to disregard the Board's opinion (paragraph 41).

The aggravating circumstances on which the appointing authority relies cannot in the present case justify its decision to remove the applicant from his post rather than downgrade him as recommended by the Disciplinary Board (paragraphs 44 to 50).

The decision should, moreover, have contained a detailed statement of the grounds on which it was based and should have mentioned the reasons for which the appointing authority could be justified in refusing to take into consideration the mitigating factors which had been decisive in the Disciplinary Board's choice of the penalty to be recommended (paragraph 51).

Operative part:

The Commission's decision of 18 January 1995 removing the applicant from his post is annulled.