Keywords

Summary



Keywords

1. Community law Principles Fundamental rights Freedom of expression Limitations Strict interpretation

(Art. 6(2) EU; European Convention for the Protection of Human Rights, Art. 10(2))

2. Officials Rights and obligations Freedom of expression Exercise Limits Protection of the rights of others Relationship of trust between an institution and its officials Administration's margin of appreciation Scope Judicial review

(European Convention for the Protection of Human Rights, Art. 10(2); Staff Regulations, Arts 11, 12 and 17)

3. Officials Rights and obligations Freedom of expression Exercise Limits Protection of the rights of others Publication of texts dealing with the work of the Communities Limitation in the form of prior permission Refusal of permission Conditions Judicial review

(European Convention for the Protection of Human Rights, Art. 10(2); Staff Regulations, Art. 17, first para.)

4. Officials Rights and obligations Official on leave on personal grounds No effect

(Staff Regulations, Art. 35)

5. Appeals Grounds Mere repetition of pleas and arguments put forward before the Court of First Instance Inadmissible

(EC Statute of the Court of Justice, Art. 51)

6. Appeals Pleas in law Plea alleging incorrect appraisal of the facts Inadmissible Whether the Court of Justice may review the appraisal of the evidence Possible only where the clear sense of the evidence has been distorted Burden of proof and the taking of evidence

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

7. Officials Disciplinary measures Procedure before the Disciplinary Board Measures of inquiry Oral presentation of the report by the rapporteur Whether permissible

(Staff Regulations, Annex IX, Art. 3)

8. Procedure Grounds of judgments Judgment annulling a measure Scope

(EC Statute of the Court of Justice, Art. 51)

Summary

1. Fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The European Convention for the Protection of Human Rights has special significance in that respect.

Those principles have been restated in Article 6(2) of the Treaty on European Union.

According to the case-law of the Court of Human Rights, freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 of the European Convention for the Protection of Human Rights, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.

Freedom of expression may be subject to the limitations set out in Article 10(2) of the Convention, which must be interpreted restrictively. The adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although the contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient. Furthermore, any prior restriction requires particular consideration.

Moreover, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice.

( see paras 37-42 )

2. Officials and other employees of the European Communities enjoy the right of freedom of expression, even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution.

However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees. The scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy. In terms of Article 10(2) of the European Convention for the protection of Human Rights, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively.

That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy the relationship of trust between himself and that institution and make it thereafter more difficult, if not impossible, for the work of the institution to be carried out in cooperation with that official.

In exercising their power of review, the Community Courts must decide, having regard to all the circumstances of the case, whether a fair balance has been struck between the individual's fundamental right to freedom of expression and the legitimate concern of the institution to ensure that its officials and agents observe the duties and responsibilities implicit in the performance of their tasks. In that regard, whenever civil servants' right to freedom of expression is in issue the duties and responsibilities referred to in Article 10(2) of the Convention assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.

( see paras 43-49 )

3. The second paragraph of Article 17 of the Staff Regulations requires permission for publication of any matter dealing with the work of the Communities. Permission may be refused only where the proposed publication is liable to prejudice the interests of the Communities. That eventuality, referred to in a Council regulation in restrictive terms, is a matter that falls within the scope of the protection of the rights of others, which, according to Article 10(2) of the European Convention for the Protection of Human Rights as interpreted by the Court of Human Rights, is such as to justify restricting freedom of expression. The fact that the restriction at issue takes the form of prior permission cannot render it contrary, as such, to the fundamental right of freedom of expression. The second paragraph of Article 17 of the Staff Regulations clearly provides that, in principle, permission is to be granted, refusal being possible only in exceptional cases. Indeed, in so far as that provision enables institutions to refuse permission to publish, and thus potentially interfere to a serious extent with freedom of expression, one of the fundamental pillars of a democratic society, it must be interpreted restrictively and applied in strict compliance with certain requirements, such as that there be a pressing social need, that it be proportionate to the aim pursued, and that relevant and sufficient reasons be advanced by the institution in its refusal decision. Thus, permission to publish may be refused only where publication is liable to cause serious harm to the Communities' interests.

As their scope is restricted to publications dealing with the work of the Communities, the rules are designed solely to allow the institution to keep itself informed of the views expressed in writing by its officials or other employees about its work and reflect the trust that must exist between an employer and its staff, especially when members of staff are carrying out duties of a public nature.

Remedies against a decision refusing permission are available under Articles 90 and 91 of the Staff Regulations and are amenable to effective judicial review enabling the Community Courts to ascertain whether the appointing authority has exercised its power under the second paragraph of Article 17 of the Staff Regulations in strict compliance with the limitations to which any interference with the right to freedom of expression is subject. In that context, when applying the second paragraph of Article 17 of the Staff Regulations, the appointing authority must balance the various interests at stake and is in a position to do so by taking account, in particular, of the gravity of the potential prejudice to the interests of the Communities.

( see paras 51-57 )

4. Moreover, it is patently clear from the wording of Article 35 of the Staff Regulations that an official on leave on personal grounds does not lose his status as an official during the period of leave. He therefore remains subject to the obligations incumbent upon every official, unless express provision is made to the contrary.

( see para. 69 )

5. In an appeal, a ground which in reality is seeking no more than a re-examination of the submissions made before the Court of First Instance, which under Article 51 of the Statute of the Court of Justice the Court does not have jurisdiction to undertake, is inadmissible.

( see para. 76 )

6. Provided the evidence has not been misconstrued and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, findings of fact and the assessment by the Court of First Instance of the evidence submitted to it are not, in principle, subject to review by the Court of Justice in an appeal.

As to the rules relating to the burden of proof and the taking of evidence, as a general rule, in order to satisfy the Court as to a party's claims or, at the very least, as to the need for the Court itself to take evidence, it is not sufficient merely to refer to certain facts in support of the claim. There must also be adduced sufficiently precise, objective and consistent indicia of their truth or probability.

( see paras 83, 100, 113-114 )

7. As regards the need for a written report to be drawn up for the Disciplinary Board, Article 3 of Annex IX is confined to laying down the rapporteur's duties and does not prescribe any specific formalities concerning the way in which they should be performed, such as whether a written report should be produced or whether such a report should be disclosed to the parties. There is therefore no reason why the rapporteur should not present his report orally to the other members of the Disciplinary Board.

( see para. 112 )

8. Although the Court of First Instance is required to give reasons for its decisions, it is not obliged to respond in detail to every single argument advanced by an applicant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence.

( see para. 121 )