Commission of the European Communities v Michael Cwik.
Date: 2001-12-13
17 That complaint was rejected by decision of 5 January 1999.
4 In its decision rejecting the complaint, the Commission made the following points in particular:
... possible conflicts of interest between an official and his institution over a publication are not confined to cases in which the official publicly dissents from a policy of the institution, since the latter may have an interest in preserving some room for manoeuvre before it adopts a definitive view. Obviously, the fact that the complainant expressed a clear view in writing on the question [as to whether economic and monetary union called for territorial differentiation as regards fiscal and wage policies ("fine-tuning")] may have the effect, precisely, of restricting that room for manoeuvre. Even if he were to make clear that his view is purely a personal one, the reader might nevertheless, in spite of that caveat, associate the view of an official working in that sector with that of his institution, precisely because the latter does not have a view.
...
Under no circumstances is a one-page summary comparable to an article of over 20 pages. Permission given on the basis of the former can certainly not entail permission for the latter. That principle is all the more relevant in the present case, where there are significant discrepancies between the summary of the lecture and the text of the article.
5 On 12 April 1999, Mr Cwik brought proceedings before the Court of First Instance for annulment of the decision rejecting his complaint.
The judgment under appeal
6 In support of his appeal, Mr Cwik claimed inter alia that the second paragraph of Article 17 of the Staff Regulations had been wrongly interpreted and wrongly applied.
7 The Court of First Instance accepted that plea for the following reasons:
56 The Court finds that in the contested decision the appointing authority confined itself to stating that the interests of the Communities could be prejudiced where the Commission and its staff publicly express different points of view. The decision does not explain why, in the present case, such a risk exists.
57 In a democratic society founded on respect for fundamental rights, the fact that an official publicly expresses a point of view different from that of the institution for which he works cannot, in itself, be regarded as liable to prejudice the interests of the Communities.
58 Clearly, the purpose of freedom of expression is precisely to enable expression to be given to opinions which differ from those held at an official level. To accept that freedom of expression could be restricted merely because the opinion at issue differs from the position adopted by the institutions would be to negate the purpose of that fundamental right.
59 Likewise, the second paragraph of Article 17 of the Staff Regulations would be rendered nugatory, since, as is apparent from its wording, it clearly lays down the principle on which permission for publication is granted, specifically providing that such permission is to be refused only where the proposed publication is liable to prejudice the interests of the Communities.
60 Consequently, the fact that there is a difference of opinion between the applicant and the Commission does not justify restricting the right to freedom of expression, inasmuch as it has not been established that making that difference public would be liable, in the circumstances of the present case, to prejudice the interests of the Communities.
8 The Court of First Instance also held:
66 ... it is clear from the documents before the Court that, at the material time, the Commission had already publicly and clearly expressed its view on "fine-tuning" in, inter alia, official documents and that, unless there were exceptional circumstances, it entertained doubts as to the usefulness of measures of that kind and about the use, even at Member State level, of discretionary budgetary policies. Furthermore, the text at issue was written by an official who did not have any management responsibilities and who was expressing a personal view. Moreover, the text concerns an area on which the Commission states that it does not have an official policy. In any event, since the text is to be published in a collection of speeches made at the congress in question, it is intended for a readership consisting of specialists who are likely to be well informed about the Commission's views.
67 In those circumstances, the Court finds manifestly unfounded the defendant's argument that publication of the text at issue might entail a significant risk of the public mistaking the applicant's opinion for that of the institution, which could restrict the Commission's room for manoeuvre in the relevant area and thereby prejudice the interests of the Communities.
68 Furthermore, although the difference between a lecture and publication of the text thereof may be of some significance, that difference is not such, in the circumstances of the present case, to justify the concern that the Commission's room for manoeuvre might be restricted. In that regard, ... the text at issue sets out the same arguments as those put forward by the applicant in his lecture, which was even entitled "The need for local and regional economic fine-tuning in the monetary union of the European Union". Additionally, the fact that permission for the lecture was given by the appointing authority is a further indication that there was no risk of the applicant's opinion being mistaken for that of the Commission. In those circumstances, the defendant can have no grounds for contending that it had a reasonable concern that its room for manoeuvre would be restricted by publication of the text at issue.
69 It follows that, in refusing to permit publication of the text at issue on the ground that it was liable to prejudice the interests of the Communities, the defendant made a manifest error of assessment.
9 Consequently, the Court of First Instance annulled the decision at issue.
The appeal
10 The Commission claims that the Court should:
- declare the appeal to be admissible and well founded;
- set aside the judgment under appeal;
- dismiss, in consequence, the applicant's action or, in the alternative, refer the case back to the Court of First Instance;
- order the applicant to bear the costs.
11 Mr Cwik contends that the Court should:
- dismiss the appeal as inadmissible or, at the very least, unfounded;
- order the Commission to pay all the costs of the appeal.
12 In its appeal, the Commission relies on two pleas in law concerning (i) an error of interpretation as regards the second paragraph of Article 17 of the Staff Regulations and (ii) the failure of the judgment under appeal properly to state the grounds on which it is based.
The first ground of appeal
13 By its first ground of appeal, the Commission complains that the Court of First Instance, specifically in paragraphs 52, 56, 57 and 66 of the judgment under appeal, exceeded the bounds of its power to review the acts of the appointing authority and put an unduly restrictive construction on the second paragraph of Article 17 of the Staff Regulations.
14 The Court of First Instance failed, first, to have regard to the preventive function of that provision (recognised in Joined Cases T-34/96 et T-163/96 Connolly v Commission [1999] ECR-SC IA-87 and II-463, paragraph 153) when it ruled that the Commission had to provide factual evidence of prejudice to its interests and held that it had failed to establish, in the circumstances of the case, that the public expression of dissent between itself and the official concerned was liable to prejudice the interests of the Communities.
15 Second, the Court of First Instance did not take account of the appointing authority's discretion in respect of the technical aspects of the text of Mr Cwik's lecture and the risk of prejudice to the interests of the Communities. The Commission describes in that connection how the appointing authority consulted several specialists prior to adopting the contested decision, the economic and political climate in which economic and monetary union was being put in place and its need to reserve its official position in a very sensitive area. It claims that those factors prove that the appointing authority did not make a manifest error of assessment.
16 In its review of the way in which the second paragraph of Article 17 of the Staff Regulations had been applied, the Court of First Instance took three factors into consideration, namely the fact that Mr Cwik had no management responsibilities, the fact that the text concerned was intended for a specialist readership and the fact that at that time the institution had not, in any event, expressed a definitive opinion on the matter concerned. In doing so, the Court's appreciation of the appointing authority's discretion was clearly misconceived, since it attached to the second paragraph of Article 17 of the Staff Regulations conditions that are not found therein.
17 It should also be observed in that regard that the Court held in Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 53, that the second paragraph of Article 17 of the Staff Regulations clearly provides that, in principle, permission is to be granted and may be refused only in exceptional cases.
18 In so far as the 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, in such a way that permission to publish is refused only where publication is liable to cause serious harm to the Communities' interests (Case C-274/99 P Connolly v Commission, paragraph 53).
19 When it applies the second paragraph of Article 17 of the Staff Regulations, the appointing authority must balance the various interests at stake, taking account, first, of the freedom that an official has to express, orally or in writing, opinions that dissent from or conflict with those held by the employing institution - that freedom arising from the fundamental right of the individual to express himself freely - and, second, of the gravity of the potential prejudice to the interests of the Communities to which publication of the relevant text might give rise (Case C-274/99 P Connolly v Commission, paragraphs 43 and 57). In that connection, only where there is a real risk of serious prejudice to the interests of the Communities, established on the basis of specific, objective evidence, may the risk be taken into consideration for the purpose of applying the second paragraph of Article 17 of the Staff Regulations.
23 It is clear that, contrary to the Commission's submission, the Court of First Instance did not fail to have regard to the preventive function of the second paragraph of Article 17 of the Staff Regulations - whose legality vis-à-vis the fundamental right to freedom of expression was recognised by the Court of Justice in paragraphs 52 to 55 of Connolly. The Court of First Instance simply criticised the reasons relied on by the appointing authority to substantiate the contested decision: those reasons merely stated that there was a risk that the interests of the Communities would be prejudiced where an official's opinion was different from the view expressed by the institution employing him. As has been pointed out at paragraph 19 above, only where there is a real risk of serious prejudice to the interests of the Communities, established on the basis of specific, objective factors, can a refusal of permission to publish be warranted.
27 It is apparent from settled case-law that such findings, which concern purely matters of fact, cannot be reviewed by the Court of Justice in the context of an appeal, except where the clear sense of the evidence submitted to the Court of First Instance has been distorted (Case C-191/98 P Tzoanos v Commission [1999] ECR I-8223, paragraph 23; and Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 48). In that regard, the Commission has neither shown, nor even contended, that the Court of First Instance's findings were inconsistent or substantively inaccurate as regards the documents before it. In any event, it must be held that the findings of fact, which the Court of First Instance alone had jurisdiction to make and which the Commission challenges, evince no manifest error of assessment.