CELEX: 61978CC0018
Language: en
Date: 1979-03-29 00:00:00
Title: Opinion of Mr Advocate General Capotorti delivered on 29 March 1979. # Mrs V v Commission of the European Communities. # Case 18/78.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
      DELIVERED ON 29 MARCH 1979 (
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         Mr President,
      
         Members of the Court,
      
               1. 
            
            
               The main problem which has to be solved for a decision to be given in this case concerns the content and the limits of the Communities' duty to assist officials under Article 24 of the Staff Regulations of Officials.
               The facts out of which the case arose are as follows. On 7 July 1976 Mrs. V., an official of the Commission, placed at the disposal of the Staff Committee, Brussels section, had a heated argument with her superior, Mr T., Secretary of the Committee; the argument degenerated into a physical fight, in which Mrs V. sustained bodily injuries.
               Mr T. made an oral report to the Head of the Individual Rights and Privileges Division, Mr Pratley, about the unpleasant incident, and later sent in a written report. Similarly Mrs V. reported the incident orally forthwith and underwent a medical examination to verify the injuries sustained. Then she too sent a written account to the Director General for Personnel and Administration, Mr Baichère, having been invited to do so by Mrs Delfausse, assistant to Mr Baichère. Subsequently the Administration examined the facts with the trade union representatives and suggested to the applicant that she accept a transfer to another office. According to the account given by the Commission's Agent in the course of the oral procedure in this case, the Commission's security department also dealt with the incident, carrying out an inquiry, of which, however, there is no record. After the present action was brought the Commission took the evidence of two officials, Mrs Nicaise and Mrs Joundy, who had witnessed at least pan of the altercation.
               Mrs V., by a letter of 10 March 1977, asked the Administration to inform her of the outcome of the inquiry. The Director General for Personnel and Administration replied to her by a letter of 21 April 1977, saying that the appropriate inquiry had been carried out, but that it had not made it possible ‘to draw any conclusion as to the exact responsibility for the events which took place, such as might have led the competent authority to take an administrative decision concerning each of the officials in question’. As regards the transfer of the applicant to another office (decided upon in the meantime), the same letter added that that was a measure affecting all the staff assigned to the Staff Committee, which had been planned for a long time. By a further letter, dated 27 May 1977, the Director-General for Personnel and Administration confirmed the position already adopted in its entirety.
               Mrs V. then submitted a complaint to the Commission under Article 90 (2) of the Staff Regulations of Officials, requesting the Administration, in performance of the duties arising under Article 24 of the regulations, to proceed with the inquiry into the incident which took place on 7 July 1976 and annul her transfer to a different office. That complaint proved fruitless and Mrs V. then brought legal proceedings, claiming: (1) a declaration that the Commission had failed in its duty to protect and assist the applicant; (2) the annulment of her transfer to another office, on the grounds that it was unjust and oppressive; (3) an order that the Commission pay her compensation for the damage which she sustained as a result of the illegal conduct referred to above at (1) and (2).
            
         
               2. 
            
            
               The first paragraph of Article 24 of the Staff Regulations provides: ‘The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’.
               In this case the applicant requested the assistance of the Communities although no legal proceedings were pending (at least at the time of the request) against the alleged aggressor. But it has been indicated by the Court of Justice that the obligation to assist applies also where the official injured has not instituted proceedings against the person responsible for the attacks against him (cf. judgment of 18 October 1976 in Case 128/75 Mr N v Commission [1976] ECR 1567). That interpretation should be followed, since it is in accordance with the letter of the provision, which defines the obligation to assist, in general terms, in the first part of the first paragraph, and refers to legal proceedings only as one of the situations — albeit probably the most important one — in which the obligation to assist applies. That meaning is made clear by the expression ‘in particular’ (in the French text ‘notamment’) which precedes the reference to legal proceedings.
               It is worth pointing out also that the obligation to assist arises even when the perpetrators of the offences are officials of the Communities: such was the ruling of the Court in Case 83/63 Krawczynski v Commission [1965] ECR 1.
               What we have to establish now is whether the Communities' obligation to assist must involve, inter alia, carrying out an administrative inquiry.
               The reply to that question, in general terms, must be in the affirmative. When an incident takes place which threatens the dignity and the physical well-being of the official, the Administration must endeavour to ascertain exactly what has happened. However, it is clear that the breadth of such investigations must be in proportion to the gravity of the events and the damage which may result, whether it falls upon the Communities or upon the officials. That is what the Court meant when it declared in the judgment of 18 October 1976, already cited, that ‘Article 24 requires that where there are serious accusation as to the integrity of an official in carrying out his duties, the administration should take all necessary steps to establish whether the accusations are justified’. Moreover, the investigations will also be related to the steps which, according to the nature and importance of the events, the Administration feels obliged to take in respect of the officials involved. What strikes me as being quite out of the question is the suggestion — made in the applicant's pleadings — that, under the obligation to provide assistance, the Administration is required to take disciplinary action against the official who is held responsible for offences against another official. In this regard the overriding consideration is that disciplinary action is never compulsory, in so far as the Administration must always be free to exercise its discretion in considering all aspects of individual cases and to decide accordingly. The text of Article 86 of the Staff Regulations, concerning disciplinary measures, confirms the existence of that margin of discretion, when it lays down that ‘any failure by an official … to comply with his obligations … shall make him liable to disciplinary action’; that wording is sufficiently flexible to leave a wide margin of discretion to the Administration.
            
         
               3. 
            
            
               Let us deal now with the case in point. Given the circumstances described at the beginning, must it be said that the Commission was under a duty to conduct an inquiry? And did the inquiry carried out in this case comply with the obligations under Article 24?
               As regards the first question, some doubt might arise from the fact that the subject of the argument was essentially extraneous to the work of the institution: as far as can be ascertained from the evidence obtained, it was rather matters of a personal nature that were involved. Moreover, one cannot overlook the fact that the argument degenerated into a brawl, and that one of the participants (Mrs. V.) sustained personal injuries which were immediately verified by the Medical Department. In view of that, I am of the opinion that the Administration was under a duty to carry out investigations.
               It remains for us to examine the second question. As far as can be ascertained rom the pleadings, the Commission's inquiry took place in two different stages. Mrs Delfausse, Principal Administrative Assistant in the Individual Rights and Privileges Division, listened to Mrs V's account of the incident directly after it took place and invited her to undergo an immediate medical examination and then to submit a written account. The applicant was in fact examined by the doctor on duty at the Commission, who certified that she had slight injuries. As we know, Mr T. also sent a written account of the incident to the Directorate General for Personnel immediately after it occurred. The Administration was at that stage in possession of three important documents to enable them to reconstruct the facts: the statements of the two persons concerned and the medical report.
               Having acquired those items the Administration took two further steps: in the first place, it had certain investigations carried out by its own security department (a claim made by the Commission and not denied by the other parry) and, secondly, it had meetings with trade union representatives to consider the facts and discuss possible measures (see, on this point, the confidential note of 18 November 1976 from the Directorate General for Personnel signed by Mr Delauche). The meetings with the trade union representatives were particularly appropriate in this case because the altercation took place in the Staff Committee's offices and involved the Committee's Secretary and an employee attached to it. Thereafter the Administration came to the conclusion that it was not obliged to take disciplinary or other measures against the two officials involved in the altercation: in fact — as the Director General, Mr Baichère, explained in his letter of 21 April 1977 — it had not been possible to ascertain ‘the exact responsibility of each of the persons concerned for the events which took place’.
               Later, in March 1978, after the present action had been brought, the Administration obtained the statements of two witnesses, Mrs Nicaise and Mrs Joundy, who had been present at part of the incident. According to the Commission's defence, both those witnesses had already been questioned orally at the time of the incident by the internal security department. That claim, contained in the Commission's defence, dated 21 August 1978 (p. 2) has not been proved and I consider that, if it is true that the two witnesses were questioned immediately after the incident, it is most regrettable that the two statements were not then taken down in writing; equally regrettable, moreover, is the fact that the results of the inquiry by the security department were not written down.
               In spite of that, I do not think that those failings are of such importance as to constitute an infringement of Article 24. The Commission sought to establish what had occurred and although its attempts to ascertain the origins of the incident and the responsibility of the persons involved have not been successful, that is not due to the fact that it omitted to undertake some inquiry or provide some form of assistance to the two officials concerned. The evidence of the two witnesses whose written statements were belatedly obtained confirms the difficulty of ascertaining precisely the responsibility of each of the two officials, and thus demonstrates that the cautious attitude adopted by the Administration following the inquiry was, in the last analysis, reasonable.
               Of course it would be different if the Administration had adopted a measure capable of prejudicing the applicant's rights under the Staff Regulations. But I do not think that the applicant has suffered any damage as a result of the Administration's attitude; in fact she has continued her career and has worked at the Commission without hindrance, and her transfer to another office was not — as I shall explain shortly — of a disciplinary nature. Moreover, I do not think it possible to accuse the Administration of having failed to adopt the measures which the case required: indeed it is difficult to imagine what other steps the Administration could, or should, have taken, even if the inquiry had been conducted more thoroughly. Thus, it appears that the incomplete nature of the inquiries, referred to above, is of marginal importance and not such as to constitute a breach of the obligation to assist.
            
         
               4. 
            
            
               The applicant also complains that she was transferred to another post as part of a measure which, although in appearance a normal rotation of staff, was really a disciplinary measure related to the incident of 7 July 1976.
               I am unable to accept that argument.
               It is worth recalling that the transfer affected all the officials attached to the Staff Committee in July 1976, with the exception of one unit. That shows that the Administration did not intend to punish the applicant, but considered it necessary to renew the composition of an office in which a climate of distrust and tension had been created which was, or at least was capable of being, detrimental to the ordinary functioning of the office.
               As for the position of the applicant in particular, I would point out that the unfortunate incident of July 1976 could not fail to create very serious difficulties in the relations with all the other officials attached to the Staff Committee. Thus the transfer of the applicant and of her colleagues to other offices was without doubt a measure dictated by objective criteria in the interests of the institution and of the applicant herself.
               Finally, as regards the claim for compensation for damage — which the applicant said at the hearing she would be willing to see limited to a nominal amount — it is clear that the person concerned did not sustain any material damage as a result of the Commission's conduct; but it would in any case be sufficient to declare that such conduct did not infringe any right of the applicant.
            
         
               5. 
            
            
               For these reasons, I conclude by proposing that the Court should dismiss the action brought by Mrs V. on 20 February 1978.
               As for costs, those incurred by the Commission will have to be borne by it under the terms of Article 70 of the Rules of Procedure.
            
         (
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         )	Translated from the Italian.