WRITTEN QUESTION E-0490/03

by Gabriele Stauner (PPE-DE) to the Commission

(21 February 2003)

Subject: Judgment in connection with the PerryLux affair

From a reading of the judgment handed down by the Court of First Instance on 11 September 2002 in Case T-89/01, I gather that the Private Office of the President of the Commission was in contact with PerryLux, the company involved in bribery and fraudulent activities.

That emerges from statements quoted in the judgment and made by the Deputy Director of the Commission's Security Office, who claims that he was instructed to establish those contacts.

According to previous information, only Commissioner Cresson had contacts with that company.

Can the Commission indicate why and on whose authority the Private Office of the President was in contact with PerryLux?

Can the Commission indicate what steps it has taken as a result of the judgment referred to above in order to reopen the proceedings against the Deputy Director of the Commission's Security Office?

Can the Commission confirm that the payments received by the wife of the Deputy Director of the Commission's Security Office from PerryLux in return for no services of any significance were made from the Community budget earmarked for humanitarian aid operations and were, therefore, not used for the purpose for which they were intended?

Has the Commission demanded repayment of the monies from the wife of the Deputy Director of the Commission's Security Office?

Answer given by Mr Kinnock on behalf of the Commission

(10 June 2003)

1. The first paragraph of the question infers that the Cabinet of the then President of the Commission was involved in corrupt dealings with Perry Lux and claims that the basis for that suggestion is provided by the judgement in Case T-89/01.

There is, however, no basis whatever for the insinuation made by the Honourable Member in the judgement to which she refers and the Commission therefore strongly refutes that insinuation.

The Commission has thoroughly examined the judgement to which the Honourable Member refers. That judgement does not say that the Private Office of the President of the Commission was in contact with PerryLux, the company involved in bribery and fraudulent activities. The only passage of the judgement which has any relation to this alleged matter is Ground 14, which forms part of the statement of facts but is not part of the Court's findings. The text of Ground 14 is as follows:

On 12 January 1999, the applicant was heard pursuant to Article 87 of the Staff Regulations. During that hearing, the applicant made the following statement: I understand the Commission to be suggesting that Mr Perry gave this contract to my wife because of my duties at the Commission.

I am very shocked by this allegation. I don't have the reputation of being the sort of person who is open to things of that kind. I have no professional dealings with Mr Perry . During the hearing, the applicant was asked if he had any contacts with Mr Perry after the termination of the employment contract [i.e. his wife's contract]. The applicant replied that he had had some dealings at the request of the president's cabinet and some private contacts from time to time, either by telephone, or the occasional meeting.

The Commission strongly contested Mr W's claim that he had no business dealings with Mr Perry, as can be seen from grounds 40-45 of the judgement. However, the Court did not accept that as a sufficient basis for a finding of a conflict of interest contrary to Article 14 of the Staff Regulations. However, the argument did not depend upon Mr W's allegation that he had had dealings with Mr Perry at the request of the President's cabinet and that issue was not debated between the parties before the Court. The Commission in fact has no idea what evidence, if any, Mr W had for that allegation. Since there is no evidence, the Commission naturally cannot check it. Nothing was produced during the disciplinary proceedings to support the allegation, and the Commission itself has no knowledge from its own sources of any evidence which might support it.

In short, the statement referred to in the question relates to an unsubstantiated allegation by one official, which was never tested in Court. The mere fact that it is quoted (without further comment) in a Court judgement obviously does not make it true. Indeed, it is wholly unproven. The judgement thus provides no basis for the insinuation in the question. If the Member thinks she has any other information which might shed light on the question, the Commission will investigate it. If she has none, there is nothing to investigate and there never has been.

2. As to the possible reopening of the disciplinary proceedings, a distinction has to be made between those findings of the Appointing Authority in the disciplinary decision which the Court annulled and the finding which it upheld.

As to the first, the Court's decision is final. As the Honourable Member will know, these allegations could therefore only be reopened if there were decisive new facts: see Article 11 of Annex IX of the Staff Regulations.

As to the finding which the Court did uphold (infringement of Article 13 of the Staff Regulations), the Court cannot and does not seek to substitute itself for the Appointing Authority to determine the appropriate penalty. The Court was obliged to annul the disciplinary decision, in view of the other findings not being sufficiently proved, but it left the Appointing Authority to determine whether proceedings should be restarted in relation to this one point (see Ground 83 of the judgement). The disciplinary proceedings have in fact been restarted to that extent.

3. The Commission can inform the Honourable Member that the results of the inquiry carried out by the European Fraud Office into the PerryLux company have been forwarded to the judicial authorities in the Grand Duchy of Luxembourg. Criminal proceedings are currently under way. Since the matter is now sub judice, the Commission is not in a position to communicate any information about it.

4. The last part of the question is clearly based on a misreading of the judgement. It was not suggested in the disciplinary proceedings or in the Court case that Mrs W had received money improperly from the Commission which should have been put to other uses. What was alleged was that Mr Perry's company had paid Mrs W (i.e. from its own funds) and that, by not declaring this, Mr W had put himself under an obligation to Mr Perry, thus compromising his independence, contrary to his obligations under Articles 11, 13 and 14 of the Staff Regulations (see the quotations from the decision in Grounds 36 and 63 of the judgement). There was consequently no undue payment by the Commission which could be recovered e.g. under Article 85 of the Staff Regulations (which in any event do not apply to Mrs W since she is not an official). Moreover, the question fails to take account of Grounds 74 and 75 of the judgement, where the Court rejected the Commission's arguments concerning what it saw as the peculiar circumstances of Mrs W's employment: the Court thus considered that there was nothing improper about the transaction between Mrs W and Mr Perry. The judgement is final and the Commission cannot take any step that is inconsistent with it, as the Honourable Member will no doubt appreciate: to claim in recovery proceedings that the payment was improper is therefore impossible.

The only exception would be if a relevant new fact was to be revealed in particular in the criminal proceedings mentioned in point 3 which had previously been unknown to the Commission and the Court. If that was to happen, the Commission would naturally take any appropriate steps as a result. However, those proceedings are still pending. The Commission would point out that it has intervened in those proceedings as partie civile in order to take advantage of any possibility of taking further steps, should it arise.