CELEX: 61965CC0018(01)
Language: en
Date: 1967-02-09
Title: Opinion of Mr Advocate General Roemer delivered on 9 February 1967. # Max Gutmann v Commission of the EAEC. # Joined cases 18 and 35-65.

OPINION OF MR ADVOCATE-GENERAL ROEMER
   DELIVERED ON 9 FEBRUARY 1967 (
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   Summary
    
            
               Introduction (Facts, Conclusions of the parties)
            
          
            
               1. The requests for annulment
            
          
            
               (a) The applicant's conduct towards his subordinates
            
          
            
               (b) The alleged misuse of the facilities of the department
            
          
            
               2. Other conclusions on which no ruling has yet been given; fresh conclusions
            
          
            
               (a) The request for the removal of certain documents from the applicant's personal file
            
          
            
               (b) The claim for damages
            
          
            
               3. Conclusion
            
         
      Mr President, Members of the Court,
   In its judgment of 5 May 1966 in Cases 18 and 35/65, which concern principally the suspension of the applicant, his transfer to Brussels, the continuation of the disciplinary inquiry concerning him, the subsequent suspension of the disciplinary proceedings and the claims for damages, the Chamber considered that it was unable to give a final ruling on the applicant's request for the annulment of the decision of 20 and 21 January 1965 (that the disciplinary inquiry be continued) and the decision of 13 May 1965 (that the disciplinary proceedings be suspended until the Court gave a ruling on Application 18/65). The Chamber considered that the Commission ought to be allowed the opportunity to produce documents to refute the complaint that, by deciding, after the first disciplinary measure was taken on 3 July 1964, to set fresh disciplinary proceedings in motion, it violated the principle turn bis in idem. The operative part of the judgment orders the suspension of the proceedings before the Court in the following terms: the Court hereby … suspends judgment on the application for the annulment of the decisions of 20 and 21 January 1965 and 13 May 1965 by the Commission of the EAEC regarding the continuance and the suspension of fresh disciplinary proceedings; orders the Commission to produce within three months all the items missing from the file, in particular all the documents and minutes referred to in the Ritter memorandum of 17 June 1964 (especially the documents establishing the nature of the ‘inconclusive’ investigations) and the ‘complaint lodged by a Head of Division’ referred to by ‘the Commission in its decision of 30 September 1964 ordering an inquiry’.
   Following this order, on 21 July 1966 the Court received from the Commission a statement of case containing explanations and a series of documents which, together with the documents submitted earlier, were intended to show that the complaints made against the applicant during the second disciplinary proceedings did not concern the facts which had already formed the subjectmatter of the first disciplinary proceedings. In particular the Commission gave an assurance that the later disciplinary proceedings were in no way prompted by the complaint lodged by a Head of Division, which is expressly referred to in the judgment and the text of which is before us.
   On the other hand, in his statement of case of 6 October 1966, the applicant maintained that not all the documents of importance in the action, whose existence may (be deduced from those already submitted, have yet been produced. Consequently, the Commission has not succeeded in proving that the subject-matter of each of the above-mentioned disciplinary proceedings was different. For this reason, the applications for the annulment of the decision of 20 and 21 January 1965 and the decision of 13 May 1965 must now be allowed. Moreover, there must now be removed from the applicant's personal file all documents which were laid before the Court in the two actions pending before it and which were entered in the said file. The applicant is also claiming damages, on the ground that the Commission wrongly referred to the complaints lodged by a Head of Division, which did not concern him, in order to justify his suspension and the opening of fresh disciplinary proceedings. Finally he is requesting the Court to order the Commission to publish the final judgment in the form of a staff memorandum addressed to the officials and servants of the European Atomic Energy Community.
   The parties have submitted their detailed observations on the matters at issue during the oral proceedings on 19 January 1967, and I will now try to make a final assessment of the points still in dispute on the basis of the main grounds of the judgment of 5 May 1966.
   1. The applications for annulment
   Before considering how the complaint of violation of the principle non bis in idem should now be assessed, let me recall the conclusion at which I arrived in my opinion of 2 March 1966. I then considered that the subject-matter of the second disciplinary proceedings brought against the applicant on the basis of the preliminary decision to suspend him and after he had been heard on 25 September 1964 and on 22 December 1964 must be his conduct towards his subordinates and the alleged misuse of certain facilities in the department including in particular the use, for private ends, of the services of the garage and workshops at Ispra. I expressed the opinion that these matters may already have been considered during the first disciplinary proceedings, since the memorandum of 17 June 1964 from the Director-General, Mr Ritter, on which the first disciplinary measure was based, contains observations on the applicant's conduct towards his subordinates and refers to the ‘inconclusive’ investigations into an alleged misuse of the facilities of the department — an expression which might refer to matters for which the applicant was again criticized when he was examined on 25 September and 22 December 1964. This view appeared justified on the ground that the Commission did not submit to us the file which must in accordance with the principles of sound administration have been prepared regarding the first disciplinary proceedings. For this reason I considered that the Commission could not hold further disciplinary proceedings on the same facts.
   It is true that the Chamber did not wish to accept this conclusion without reservations, but, and it is in this sense that the judgment must be interpreted, it accepted my interpretation of the principle non bis in idem and, in the light of the existing evidence, it considered a presumption to exist in favour of the complaint brought by the applicant, since the text of the judgment orders the Commission to show that the facts forming the basis of both disciplinary proceedings were not the same.
   Let us therefore see whether such proof has been forthcoming. If I may anticipate my conclusion, my view is that it quite certainly has not.
   (a) The applicant's conduct towards his subordinates
   As regards the conduct of the applicant towards his subordinates, which is one of the matters forming the subject of the disciplinary proceedings, the Commission has done no more than give a further assurance that within the context of the first disciplinary proceedings this matter had resulted in no disciplinary consequences, but merely in administrative consequences in the form of a decision taken at a later date to transfer the applicant. In my opinion this argument is inadequate. It is clear from the Ritter memorandum of 17 June 1964, to which I have already referred, that the applicant's conduct towards his subordinates was considered during the first disciplinary inquiry. This leads me to accept that the first disciplinary proceedings actually concerned his conduct with his subordinates and therefore that further proceedings could only be held if the Commission became aware of new facts after the first proceedings had closed. As I have already stated in my opinion of 2 March 1966, there was no proof on this point even before the judgment of 5 May 1966 was delivered. There is still no such proof as the Commission's statement of case of 21 July 1966 was not accompanied by any documents on the matter presently in dispute. It is therefore quite clear that the Commission can no longer refer to this complaint in order to justify its decision of 20 and 21 January 1965.
   (b) The alleged misuse of the facilities of the department
   As regards the misuse of the facilities of the department, it is true that, in addition to the documents produced regarding the first disciplinary sanction (schedules 1 to 8 of the statement of case of 21 July 1966), the Commission submitted documents which show that even before being reprimanded the applicant may have been criticized for using the department's vehicles for private purposes and that a check had been carried out at this period on the photographic equipment in the applicant's department, which might explain the phrase ‘inconclusive investigations’ used in the Ritter memorandum of 17 June 1964. In spite of this, I consider that the Commission has not succeeded, by submitting these few documents, in removing all the doubts which exist on this point, nor in refuting die possibility that other complaints, that is, those which were raised later concerning the use of the services of the garages and workshops for private purposes, had been discussed during the first disciplinary proceedings. It might have been otherwise, that is to say, it might have been possible to take the view that acceptable evidence had been produced, had the Commission put before us a proper file relating to the first disciplinary proceedings, a file which the Chamber in its judgment clearly considers to be indispensable and which, with the aid, for example, of an introductory note summarizing all the complaints, or with the existence of the minutes of the examination of the applicant, would have enabled the subject matter of the first disciplinary proceedings to be precisely defined. Although reference was made during the first disciplinary proceedings to the examination of the applicant (see the Ritter memorandum of 17 June 1964), no such file has been produced in the present case and, in my opinion, the Commission must be regarded as responsible for this.
   This omission could have been overcome if other documents making it possible to establish an accurate chronology had been submitted as evidence that complaints raised during the second disciplinary proceedings concerned factors which clearly arose after 3 July 1964, or which came to the notice of the Commission after that date. Apart from the documents produced earlier, which the Chamber clearly regards as inconclusive, the only document before us at present is the memorandum from Mr Grass of 15 September 1964, which, as the Commission itself has stressed, does not concern the applicant and has nothing to do with the institution of the second disciplinary proceedings. The Commission maintains that there are no other relevant documents, although we are aware of certain documents (the examination of 25 September 1964, the minutes of the meeting of 30 September 1964, the Lacroix report, the memorandum from Mr Funck of 18 January 1965) which contain passages from which a contrary conclusion could be drawn.
   In the light of all the information available which the Commission has been unable to refute, I can only adhere to my earlier view that the holding of second disciplinary proceedings violated the principle non bis in idem. As a result, the decision of 20 and 21 January 1965 must be annulled and, as the decision of 13 May 1965 to suspend the applicant is based upon that decision, the suspension decision must be annulled too. This being so, I do not consider it necessary to deal with the other arguments of the applicant which he repeats in his statement of case. On this point, as no new factors have arisen, I refer to my opinion of 2 March 1966.
   2. Other conclusions on which no ruling has yet been given; fresh conclusions
   As regards the other conclusions set out in the applicant's statement of case of 6 October 1966, I need only make a few brief remarks.
   (a) Conclusions seeking the removal of certain documents from the applicant's personal file
   I have therefore no objection to make to the applicant's claim for the removal of the documents in his personal file concerning the matters pending at present or referring to the above-mentioned two decisions. It is true that this claim was not submitted in the application. It may however be considered as necessarily contained in the conclusions for the annulment of the contested measures. If the Commission's decision regarding the holding of further disciplinary proceedings must be annulled, the Commission is under an obligation to take all the measures necessary to comply with the judgment ordering this annulment. I consider this to include the removal from the applicant's personal file of all documents which do not justify the holding of disciplinary proceedings, which could, if they remained in the file, shed an unfavourable light on the applicant.
   (b) The claim for damages
   As regards the claim for reparation, which by its nature includes the claim for the judgment to be published (which must itself be regarded as a type of compensation in kind for the non-material injury suffered), no objections can be raised to its admissibility, since it was submitted for the first time in Applications 18 and 35/65 and has in any event been disposed of by the judgment of 5 May 1966 to the extent to which the claim is founded on the decision to suspend and transfer the applicant. However, to the extent to which the applicant claims financial compensation (on the ground that the Commission had wrongly considered the memorandum from Mr Grass of 15 September 1964 to be a complaint and had used it as a pretext to hold a disciplinary inquiry), I consider that his claim cannot be accepted. The Commission has expressly assured us that the complaints made in this memorandum do not concern the applicant's behaviour and that they did not form the basis of the second disciplinary proceedings. I consider this statement to be corroborated by the minutes of the examination of the applicant on 25 September and 22 December 1964, which define the subject matter of the second disciplinary proceedings and which (unlike the decision of 30 September 1964 suspending the applicant from his duties) do not refer to the above-mentioned memorandum; consequently, the complaints made by Mr Grass cannot be considered to have given rise to the injury suffered by the applicant. Moreover, in my opinion, it is possible to consider that the unlawful institution of the second disciplinary proceedings, which began with the examination by the head of the security office, constitutes a wrongful act giving rise to a right to damages, particularly in the light of the inevitable publicity which attached to this measure and prejudiced the applicant's reputation and taking into account the worry which he suffered as a result. If, as I considered in my earlier opinion, in the light of the law on administrative liability, the administration is held responsible for these proceedings, fair compensation for the non-material damage might take the form of the publication of your judgment (for example, as a staff memorandum to the officials and servants of Euratom), and in this way the applicant's claim might succeed.
   3. Conclusions
   In the light of the foregoing, my opinion on the questions which have not yet been settled by the Court in Cases 18 and 35/65 is as follows: the applicant's application for the annulment of the decisions of 20 and 21 January and 13 May 1965 must succeed. Moreover, an order should be made for the removal of all the documents concerning the second disciplinary proceedings placed in his personal file by the Commission. Finally, the Commission should be ordered to make good the non-material damage suffered by the applicant by the suitable publication of the judgment of the Chamber. To the extent to which the judgment of 5 May 1966 did not decide the question of costs, these must be borne by the Commission in accordance with the Rules of Procedure of the Court.
   (
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      )	Translated from the German.