CELEX: C1999/299/09
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-274/99 P: Appeal brought on 20 July 1999 by Mr B. Connolly against the judgment delivered on 19 May 1999 by the First Chamber of the Court of First Instance of the European Communities in Joined Cases T-34/96 and T-163/96 between Mr Connolly and the Commission of the European Communities

C 299/8               EN                    Official Journal of the European Communities                                  16.10.1999
Appeal brought on 12 July 1999 by Karola Gluiber against               Appeal brought on 20 July 1999 by Mr B. Connolly
the order made on 5 May 1999 by the First Chamber of                   against the judgment delivered on 19 May 1999 by the
the Court of First Instance of the European Communities                First Chamber of the Court of First Instance of the
in Case T-190/98 Karola Gluiber versus Council of the                  European Communities in Joined Cases T-34/96 and
European Union and Commission of the European Com-                     T-163/96 between Mr Connolly and the Commission of
                            munities                                                     the European Communities
                       (Case C-259/99 P)
                                                                                              (Case C-274/99 P)
                        (1999/C 299/08)
An appeal against the order made on 5 May 1999 by the First                                    (1999/C 299/09)
Chamber of the Court of First Instance of the European
Communities in Case T-190/98 Karola Gluiber versus Council
of the European Union and Commission of the European                   An appeal against the judgment delivered on 19 May 1999 by
Communities was brought before the Court of Justice of the             the First Chamber of the Court of First Instance of the
European Communities on 12 July 1999 by Karola Gluiber,                European Communities in Joined Cases T-34/96 and T-163/96
represented by Jean-Claude Schöninger, Rechtsanwalt, of                between Mr B. Connolly and the Commission of the European
Mühlgasse 6, D-77933 Lahr.                                             Communities was brought before the Court of Justice of the
                                                                       European Communities on 20 July 1999 by Mr Connolly,
The appellant claims that the Court should:                            represented by Jacques Sambon and Pierre-Paul van Gehuch-
                                                                       ten, both of the Brussels Bar, with an address for service in
(1) set aside the order made by the Court of First Instance of         Luxembourg at the Chambers of Louis Schiltz, 2 rue du Fort
    the European Communities on 5 May 1999 in Case                     Rheinsheim.
    T-190/98;
(2) order the respondent to pay the appellant compensation             The appellant claims that the Court should:
    in the sum of DM 25 700 .32 for the costs incurred by her
    in unsuccessful legal proceedings before the German courts
    and the Court of Justice;
                                                                       Set aside the judgment of the Court of First Instance of the
(3) order the respondents to pay the appellant damages in              European Communities of 19 May 1999 in Joined Cases
    respect of non-contractual liability;                              T-34/96 and T-163/96
(4) order the respondent to pay the costs of the present
    proceedings;
                                                                       and uphold the actions by the applicant in which he sought:
(5) declare that the Community is required to pay compen-
    sation, even in the future, for the damage caused by illegal
    acts perpetrated hitherto;                                         — annulment in so far as necessary of the opinion of the
                                                                           Disciplinary Board of 7 December 1995, notified on
(6) alternatively, stay the proceedings pursuant to Article                15 December, recommending that the applicant be penal-
    82a(1)(b) of the Rules of Procedure of the Court of Justice            ised by removal from his post without reduction or
    in order to enable a preliminary ruling to be obtained from            withdrawal of pension rights;
    the European Court of Human Rights concerning the
    finding that the incomplete transposition into German law
    of Council Directive 76/207/EEC infringes, as regards the          — annulment of the Commission’s decision of 16 January
    appellant;                                                             1996 imposing upon the applicant the penalty of removal
                                                                           from his post without reduction or withdrawal of pension
    (a) Article 6 of the European Convention on Human                      rights;
         Rights (‘ECHR’);
    (b) Article 11 of the ECHR;                                        — annulment of the express rejection of 12 July 1996,
                                                                           notified to the applicant by letter of 18 July 1996, of his
    (c) Article 14 of the ECHR; and                                        pre-litigation action of 7 March 1996 against the opinion
                                                                           of the Disciplinary Board and the decision of the Com-
    (d) Article 50 of the ECHR.                                            mission referred to above;
Pleas in law and main arguments                                        — an order that the Commission pay him, subject to increase
— failure to observe the appellant’s right to     a fair hearing,          or decrease in the course of the proceedings, the sum of
    since the application was dismissed           as manifestly            FB 7 500 000 for material damage and the sum of FB
    unfounded pursuant to Article 111 of           the Rules of            1 500 000 for non material damage by way of compen-
    Procedure of the Court of First Instance      without being            sation for the damage suffered by reason of the illegalities
    served on the respondents;                                             and irregularities complained of.
— infringement of substantive law.
                                                                       And order the Commission to pay the whole of the costs of
                                                                       the two sets of proceedings.
 ---pagebreak--- 16.10.1999             EN                    Official Journal of the European Communities                                       C 299/9
Pleas in law and main arguments                                            The grounds relied on under Article 12 of the Staff
                                                                           Regulations are not sufficient to justify the removal of the
                                                                           applicant from his post from the standpoint of Article 10
                                                                           ECHR. To penalise the expression of a ‘fundamental
— Infringement of Article 6(2) (ex Article F) of the Treaty on             opposition’ to the policy of the Commission amounts to
    European Union, of Article 10 of the European Convention               prosecution for one’s beliefs. It is obvious that the mere
    for the Protection of Human Rights and Fundamental                     removal of the applicant from his post was not enough,
    Freedoms (ECHR), of freedom of expression as laid down                 on the Commission’ argument, to defend the interests of
    by the constitutional traditions common to the Member                  the institutions and the persons challenged in his work, if
    States, of Articles 2, 220 (ex 164), 236 (ex 179) and                  not accompanied by measures aimed at preventing the
    225 (ex 168a) of the Treaty establishing the European                  distribution of the work itself. It does not appear that any
    Community, of Articles 12, 17, 86 and 91 of the Staff                  such measures have been adopted by the Commission in
    Regulations, and of the prohibition on the substitution of             the form, for example, of legal proceedings to prevent the
    reasoning: The restrictions which Article 17 of the Staff              sale of the work in Member States in whole or in part,
    Regulations permits to be placed upon officials’ exercise of           and to seize the stock already published. Nor did the
    their freedom of expression must still be subject to a                 Commission consider that it needed to bring an action
    balancing of the interests at stake and comply with the                under Article 22 or 23 of the Staff Regulations.
    principles in the above provisions. The contested judgment
    merely stases that censorship before the event under
    Article 17 is to the advantage of a public servant since it
    shelters him from a penal disciplinary measure afterwards.             Finally, by not taking into consideration the fact that the
    That argument not only misrepresents the scope of                      Commission expressly recognises that it did not at any
    Article 10 ECHR, but it also conflicts with the shared                 time rely on one of the exceptions mentioned in Article
    constitutional traditions (and infringes Article 6, ex Article         10(2) and that none of the situations to which that
    F, of the TEU), which, on the contrary, see in the penal               provision might apply existed in the present case, the
    system after the event an essential guarantee of freedom               Court of First Instance disregards the fact that the Com-
    of expression in relation to the system of censorship                  mission did not examine the admissibility of the decision
    beforehand. Therefore, in so far as that system of a priori            taken in the light of the criteria in Article 10 ECHR, with
    censorship is upheld by the Court of First Instance, the               the result that the contested judgment misassesses the
    scope of the freedom of expression as laid down in the                 scope of Article 10 ECHR and infringes the obligation to
    principles referred to in the plea, in relation to Articles 17         state reasons.
    and 12, has been infringed.
                                                                        — Insufficient reasons for the judgment; misinterpretation of
    The concepts of ‘prejudicing the interests of the Communi-             the second paragraph of Article 17 and of Article 35 of
    ties’ (Article 17 of the Staff Regulations) and ‘reflecting on         the Staff Regulations; infringement of the legal rules on the
    his position’ (Article 12 of the Staff Regulations) go far             adducing and burden of proof; failure to give due weight
    beyond the scope of the objectives which are admissible                to acts; infringement of the principle of the protection
    having regard to Article 10(2) ECHR, and cannot as such                of legitimate expectations: The Court of First Instance
    attach to any of the objectives which that provision                   misassesses the scope of the second paragraph of Article
    limitatively enumerates.                                               17 and Article 35 of the Staff Regulations, inasmuch as
                                                                           Article 17 does not apply to officials on leave on personal
                                                                           grounds.
    The terms in the second paragraph of Article 17 of
    the Staff Regulations (‘dealing with the work of the
    Communities’ and ‘liable to prejudice the interests of the             The Court of First Instance has distorted the plea of the
    Communities’) are particularly general and vague and do                applicant which relied not on ‘a general practice’ of the
    not satisfy the requirement of legality and foreseeability. In         Commission, but on a practice ‘within DG II’ in offering as
    any event, that requirement cannot be brought down to                  proof a statement of the former director general in his
    the existence of precedents. Moreover, the Court of First              capacity as the appointing authority for the granting of
    Instance misassessed the scope of Article 10 ECHR by                   leave on personal grounds.
    maintaining without further elaboration that the refusal
    decision was open to legal challenge, whereas the length
    of the procedure (pre-litigation and then litigation) may
    be estimated al some 25 months and the Community                    — Insufficient reasons for the judgment; infringement of
    judicature, not having unlimited jurisdiction, can never               Article 6(2) (ex Article F) of the TEU, infringement of
    grant the authorisation requested or even direct the                   Article 30 (ex Article 36) of the Treaty establishing the
    authority to grant it.                                                 European Community; infringement of the first additional
                                                                           protocol to the ECHR; misinterpretation of Article 11
                                                                           of the Staff Regulations: Royalties do not constitute
                                                                           remuneration not being capable of being drawn, by an
    The contested judgment does not examine whether this                   official, on behalf of an external person in consideration of
    was a case of an imperative social need and whether the                a service rendered. The Court of First Instance was wrong
    disputed intervention was proportionate to that end.                   to take the view that its interpretation of Article 11 of the
 ---pagebreak--- C 299/10              EN                    Official Journal of the European Communities                                    16.10.1999
   Staff Regulations did not lead to an infringement of the                 before the Commission and the pleadings and supplemen-
   right to property. Finally, the Court of First Instance                  tary pleadings presented by the applicant before the
   misinterprets the scope of Article 11 of the Staff Regu-                 Disciplinary Board.
   lations in that it distorts the system established by that
   provision by making it subject to the system of prior               — Lack of reasoning; failure to reply to the plea for annulment;
   authorisation under Article 17.                                          misinterpretation of the second paragraph of Article 87 of
                                                                            the Staff Regulations.
                                                                       — Infringement of the legal rules governing the proof of facts
                                                                            and the burden of proof; lack of reasoning; misinterpret-
— Infringement of Article 6(2) (ex Article F) of the TEU,                   ation of Articles 3, 6 and 7 of Annex IX to the Staff
   Article 10 ECHR, Articles 116 point 3 (ex 109 E3), 177.2                 Regulations; failure to give due weight to acts, particularly
   (ex 109 F2), 121 (ex 109 J), 220 (ex 164a), 225 (ex 168a)                the minutes of the first meeting of the Disciplinary Board
   and 236 (ex 179) of the EC Treaty, and of Articles 12, 87                and the Commission’s defence.
   and 91 of the Staff Regulations and Annex IX thereto,
   more particularly in Article 1 of the latter, and of the            — Infringement of Articles 164, 168a and 179 of the
   prohibition on the substitution of reasoning, failure to give            EC Treaty and of Article 91 of the Staff Regulations;
   due weight to acts and infringement of the rules governing               infringement of the rules on the burden of proof and on
   the adducing of evidence: The Court of First Instance                    the method and admissibility of evidence; infringement of
   infringed the above provisions by taking account of certain              the rights of the defence and of the prohibition of reliance
   references in the applicant’s book on the (unjustified)                  by the court on all facts known to it personally.
   reading of them by the Commission, without having regard
   to, or giving reasons for its rejection of the objections put       — Inadequate reasoning for the judgment and failure to reply
   forward by the applicant relating to the fact that, by so                to the pleas in the action for annulment.
   doing, the Commission continues to feed the disciplinary
                                                                       — Lack of reasoning.
   inquiry in the adversarial stage of the dispute.
— Insufficient reasons for the judgment; failure to give due
   weight to acts, particularly the report of the appointing           Reference for a preliminary ruling by the Hessische
   authority and the minutes of the hearing of the applicant           Finanzgericht by order of that court of 11 March 1999 in
   before the Disciplinary Board; lack of reasoning; infringe-         the case of vauDe Sport Albrecht von Dewitz against
   ment of the rights of the defence; failure to respond to            Oberfinanzdirektion Koblenz, ZuVA-Außenstelle Frank-
   pleas; flawed logic in reasoning: The applicant argues that,                                   furt am Main
   in holding that the Commission’s report included the
   contents of the book amongst the facts of which he stood                                     (Case C-288/99)
   accused, meaning the expression of an economic argument
   at odds with the line of action adopted by the Commission                                    (1999/C 299/10)
   as an institution of the European Union, the Court of First
   Instance fails to give due weight to the Commission report
                                                                       Reference has been made to the Court of Justice of the
   which referred to ‘derogatory and unsubstantiated attacks’          European Communities by order of the Hessische Finanzge-
   and commits an error of logic in giving the term ‘contents’         richt (Finance Court, Hessen) of 11 March 1999, received at
   a variable meaning, referring sometimes to allegedly diver-         the Court Registry on 2 August 1999, for a preliminary ruling
   gent economic arguments and sometimes to derogatory
                                                                       in the case of vauDe Sport Albrecht von Dewitz against
   attacks on persons.
                                                                       Oberfinanzdirektion Koblenz, ZuVA-Außenstelle Frankfurt am
                                                                       Main on the following question:
                                                                       Is the term ‘similar containers’ in CN heading 4202 of the
— Failure to give due weight to acts, particularly the minutes         Common Customs Tariff to be interpreted as including a
   of the hearing before the Disciplinary Board and of the             product described as a child carrier consisting essentially of a
   work published by the applicant; infringement of the law            support frame made of aluminium tubing and woven fabric
   on the proof of facts, the burden of proof and the duty to          made of synthetic fibres — assembled by being sewn together
   give a fair hearing; lack of adequate and relevant reasoning        — in which a child may be carried in a seated position on a
   for the judgment; infringement of Articles 220 (ex 164),            person’s back and small items stored under the seat,
   225 (ex 168a) and 236 (ex 179) of the EC Treaty, of
   Articles 87 and 91 of the Staff Regulations and Article 1           or
   of Annex IX thereto. The Court of First Instance was not
   entitled to regard an essential element of the Commission’s         is the aforementioned product to be classified pursuant to
   disciplinary decision (the existence of a conflict of opinion)      General Rule 3(b) among other made up textile articles of
   as an established fact when it did not appear in argument           woven fabric under CN subheading 6307 9099 0990
   from the disciplinary procedure.
                                                                       or
                                                                       is the aforementioned product covered by another heading?
— Insufficient reasons for the judgment; failure to give due
   weight to acts, particularly the minutes of the hearing