JUDGMENT OF THE COURT
6 March 2001 (1)
(Appeal - Officials - Disciplinary proceedings - Suspension - Statement of reasons - Alleged misconduct - Articles 11, 12 and 17 of the Staff Regulations - Equal treatment)
In Case C-273/99 P,
Bernard Connolly, a former official of the Commission of the European Communities, residing in London, United Kingdom, represented by J. Sambon and P.-P. van Gehuchten, avocats, Brussels, with an address for service in Luxembourg,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) of 19 May 1999 in Case T-203/95 Connolly v Commission [1999] ECR-SC I-A-83 and II-443, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by G. Valsesia, Principal Legal Adviser, and J. Currall, acting as Agents, assisted by D. Waelbroeck, avocat, with an address for service in Luxembourg,
defendant at first instance,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet (Rapporteur), V. Skouris (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen and N. Colneric, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 12 September 2000,
after hearing the Opinion of the Advocate General at the sitting on 19 October 2000,
gives the following
Legal background
'An official shall carry out his duties and conduct himself solely with the interests of the Communities in mind; he shall neither seek nor take instructions from any government, authority, organisation or person outside his institution.
An official shall not without the permission of the appointing authority accept from any government or from any other source outside the institution to which he belongs any honour, decoration, favour, gift or payment of any kind whatever, except for services rendered either before his appointment or during special leave for military or other national service and in respect of such service.
'An official shall abstain from any action and, in particular, any public expression of opinion which may reflect on his position.
...
An official wishing to engage in an outside activity, whether gainful or not, or to carry out any assignment outside the Communities must obtain permission from the appointing authority. Permission shall be refused if the activity or assignment is such as to impair the official's independence or to be detrimental to the work of the Communities.
'An official shall not, whether alone or together with others, publish or cause to be published without the permission of the appointing authority, any matter dealing with the work of the Communities. Permission shall be refused only where the proposed publication is liable to prejudice the interests of the Communities.
'Where an allegation of serious misconduct is made against an official by the appointing authority, whether this amounts to failure to carry out his official duties or to a breach of law, the authority may order that he be suspended forthwith.
The facts giving rise to the dispute
'2 At the material time, the applicant, Mr Connolly, was an official of the Commission in Grade A4, Step 4, and was Head of Unit 3, EMS: National and Community Monetary Policies, in Directorate D, Monetary Affairs, in the Directorate-General for Economic and Financial Affairs.
3 On 24 April 1995, Mr Connolly applied, under Article 40 of the Staff Regulations, for three months' unpaid leave on personal grounds commencing on 3 July 1995. The Commission granted him leave by decision of 2 June 1995.
4 By letter of 18 August 1995, Mr Connolly applied to be reinstated in the Commission service at the end of his leave on personal grounds. The Commission, by decision of 27 September 1995, granted that request and reinstated him in his post with effect from 4 October 1995.
5 Whilst on leave on personal grounds, Mr Connolly published a book entitled The Rotten Heart of Europe - The Dirty War for Europe's Money without requesting prior permission under the second paragraph of Article 17 of the Staff Regulations.
6 Early in September, and more specifically between 4 and 10 September 1995, a series of articles concerning the book was published in the European and, in particular, the British press.
7 By letter of 6 September 1995, the Director-General for Personnel and Administration, in his capacity as appointing authority ... informed the applicant of his decision to initiate disciplinary proceedings against him for infringement of Articles 11, 12 and 17 of the Staff Regulations and, in accordance with Article 87 of those regulations, invited him to a preliminary hearing.
8 The first hearing was held on 12 September 1995. The applicant then submitted a written statement indicating that he would not answer any questions unless he was informed in advance of the specific breaches he was alleged to have committed.
9 By letter of 13 September, the appointing authority again invited the applicant to attend a hearing, in accordance with Article 87 of the Staff Regulations, and informed him that the allegations of misconduct followed publication of his book, serialisation of extracts from it in The Times newspaper, as well as the statements he made in an interview published by that newspaper, without having obtained prior permission.
10 On 26 September 1995, at a second hearing, the applicant refused to answer any of the questions put to him and filed a written statement in which he submitted that it was legitimate for him to have published his work without requesting prior permission because, when he did so, he was on unpaid leave on personal grounds. He added that the serialisation of extracts from his book in the press had been decided on by his publisher and that some of the statements contained in the interview had been wrongly attributed to him. ...
11 On 27 September 1995, the appointing authority decided, pursuant to Article 88 of the Staff Regulations, to suspend Mr Connolly from his duties with effect from 3 October 1995 and to withhold one-half of his basic salary during the period of his suspension. The following reasons were given for that decision:
Whereas Mr Bernard Connolly has been an official of the Commission since 14 August 1978 and occupies the post of the Head of Unit II.D.3 (EMS, national and Community monetary policies) and whereas, since 3 July 1995, has been on leave on personal grounds for a period of three months;
Whereas Mr Connolly has written and had published a book entitled 'The Rotten Heart of Europe, extracts of which have been serialised in The Times newspaper, without having first requested and obtained the permission of the appointing authority as required under Article 17 of the Staff Regulations;
Whereas this book constitutes an unauthorised public expression of fundamental disagreement with and opposition to the very Commission policy which it was Mr Connolly's professional responsibility to implement;
Whereas Mr Connolly may also be in breach of his obligations arising under Articles 11 and 12 of the Staff Regulations;
Whereas the above allegations against Mr Connolly are of serious misconduct and justify initiating disciplinary proceedings;
Whereas in a letter dated 18 August 1995, Mr Connolly stated that he wished to be reintegrated into Commission service following the end, on 2 October 1995, of his leave on personal grounds and whereas the Commission, by decision of 27 September 1995, has granted this request and reinstated Mr Connolly in his former post which had remained vacant;
Whereas Article 88 of the Staff Regulations provides that where an allegation of serious misconduct is made against an official by the appointing authority, the authority may order that he be suspended forthwith and that the decision that an official be suspended shall specify whether he shall continue to receive his remuneration during the period of suspension or what part thereof is to be withheld;
Whereas the gravity and nature of the above-mentioned allegations of serious misconduct in relation to his official duties render the presence of Mr Connolly in the Commission's services inappropriate pending the outcome of the disciplinary enquiry and justify suspending him in accordance with Article 88 of the Staff Regulations;
...
...
12 On 4 October 1995 the appointing authority decided to refer the matter to the Disciplinary Board under Article 1 of Annex IX to the Staff Regulations.
13 By letter of 18 October 1995, received at the Secretariat General of the Commission on 27 October 1995, the applicant submitted to the appointing authority a complaint under Article 90(2) of the Staff Regulations against the decisions to initiate disciplinary proceedings and to refer the matter to the Disciplinary Board, and against the decision to suspend him from his duties. ...
...
20 By letter of 27 February 1996 the Commission informed the applicant that his complaint of 27 October 1995 had been implicitly rejected.
- annulment of the appointing authority's decision of 6 September 1995 initiating disciplinary proceedings against him, of the contested decision and of the decision of 4 October 1995 referring the matter to the Disciplinary Board;
- an order that the Commission pay him BEF 750 000 in respect of the material and non-material damage suffered following the press campaign and the defamatory allegations made against him, and
- publication of the operative part of the judgment to be delivered, at the Commission's expense, in The Times, The Daily Telegraph and The Financial Times.
The contested judgment
The alleged infringement of Articles 25 and 88 of the Staff Regulations
'46 It must be borne in mind that, according to the case-law, since a decision to suspend an official is an act adversely affecting him, it must, in accordance with the first paragraph of Article 25 of the Staff Regulations, state the reasons on which it is based. The statement of reasons must comply with the requirements of the first paragraph of Article 88 of the Staff Regulations, which do not permit the appointing authority to suspend an official forthwith unless serious misconduct is alleged, whether this amounts to a failure to carry out his official duties or to a breach of law (judgment in Joined Cases 18/65 and 35/65 Gutmann v Commission [1966] ECR 103).
47 In this case, it is clear from the contested decision that the allegation of serious misconduct made against the applicant related to events which, if taken as proved, constituted, in the view of the appointing authority, an infringement of Article 17 of the Staff Regulations and might also have constituted a breach of the obligations laid down in Articles 11 and 12 of the Staff Regulations.
48 However, contrary to the applicant's contention, the decision does not confine itself to indicating that the work in question was written and published without prior permission, contrary to Article 17 of the Staff Regulations. The decision describes the seriousness of the alleged misconduct in full detail. First, it refers to the grade and duties of the applicant, who was then Head of Unit 3, EMS: National and Community Monetary Policies, in the Directorate-General for Economic and Financial Affairs. Second, it cites the controversial wording used in the title of the book and indicates that extracts of it were serialised in The Times newspaper, thus referring to the way in which it was specially publicised and promoted. Finally, the decision emphasises that the book expresses a fundamental disagreement with the Commission policy which the applicant was nevertheless responsible for implementing.
49 It was also on the basis of those events that the appointing authority considered that the applicant might also have infringed Articles 11 and 12 of the Staff Regulations, under which an official must conduct himself solely with the interests of the Communities in mind and must abstain from any public expression of opinion which might reflect on his position. Accordingly, the applicant cannot validly contend that the appointing authority failed to give details of the factual circumstances which, in its view, were capable of constituting an infringement of those provisions. It must also be emphasised that Article 88 of the Staff Regulations requires the appointing authority not to take a final decision concerning breach of the obligations laid down by the Staff Regulations but merely to set out the reasons for which an allegation of serious misconduct is made against the official concerned.
50 It clearly follows that the appointing authority's statement of reasons for its decision to suspend the applicant from his duties pending the outcome of the disciplinary proceedings commenced against him was of the requisite legal standard.
The plea alleging breach of the principle of equal treatment of officials
'57 According to settled case-law, there is a breach of the principle of equal treatment only where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner (Case T-100/92 La Pietra v Commission [1994] ECR-SC II-275, paragraph 50, and the case-law cited therein).
58 As regards, first, the argument alleging the existence of a general practice on the part of the Commission - which, incidentally, has not been proved - whereby the publication of works prepared by officials whilst on unpaid leave on personal grounds is not subject to the requirement of prior permission laid down in the second paragraph of Article 17 of the Staff Regulations, that practice could not prove any breach of the principle of equal treatment since it relates to a situation different from that of the applicant. Even assuming that such a practice existed and applied to publications dealing with the work of the Communities within the meaning of Article 17, it is enough that, as is clear from the contested decision, the seriousness of the misconduct allegedlycommitted by the applicant consisted not merely in the absence of prior permission to publish but in a set of circumstances specific to this case, such as the content of the work in question, the publicity surrounding it and the possible infringement of Articles 11 and 12 of the Staff Regulations.
59 As regards the allegation that the appointing authority did not suspend another official who, whilst in active employment, published abusive pamphlets, the Court observes that the applicant has produced no evidence to that effect, for which reason that argument must also be rejected.
60 In any event, the first paragraph of Article 88 of the Staff Regulations does not require the appointing authority to suspend an official against whom an allegation of serious misconduct is made, but provides that it may take such a decision if that condition is fulfilled. It follows that, in such circumstances, the appointing authority enjoys a considerable degree of latitude, which it may exercise having regard to the specific circumstances of each case.
The appeal
The admissibility of the appeal
Substance
The first ground of appeal
The second ground of appeal
The third ground of appeal
Costs
46. Under Article 69(2) of the Rules of Procedure, which apply to appeals by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Under Article 70 of those Rules, in proceedings between the Communities and their servants, the institutions are to beartheir own costs. However, pursuant to the second paragraph of Article 122 of the same Rules, Article 70 does not apply to appeals brought by an official or other servant of an institution against that institution. Since the appellant has been unsuccessful, he must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Dismisses the appeal;
2. Orders Mr Connolly to pay the costs.
Rodríguez Iglesias
Wathelet
Puissochet
SchintgenColneric |
Delivered in open court in Luxembourg on 6 March 2001.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Language of the case: French.