Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)

12 May 2015 (*)

(Member of the Commission — OLAF investigation — Alleged oral decision of the President of the Commission to require the resignation of the person concerned — Action for annulment — No actionable measure — Inadmissibility — Action for damages)

In Case T‑562/12,

John Dalli, residing in St Julians (Malta), represented by L. Levi, A.‑M. Alamanou and S. Rodrigues, lawyers,

applicant,

v

European Commission, represented by B. Smulders, J. Baquero Cruz and J.‑P. Keppenne, acting as Agents,

defendant,

APPLICATION for annulment of the oral decision allegedly taken by the President of the Commission on 16 October 2012 to terminate the applicant’s office as a Member of the Commission and for compensation for damage allegedly suffered by the applicant as a result of that decision,

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of M. Jaeger, President, S. Papasavvas, N.J. Forwood (Rapporteur), I. Labucka and E. Bieliūnas, Judges,

Registrar: E. Coulon,

having regard to the written procedure and further to the hearing on 8 July 2014,

gives the following

Judgment

 Background to the dispute

1        By Decision 2010/80/EU of the European Council of 9 February 2010 appointing the European Commission (OJ 2010 L 38, p. 7), the applicant, Mr John Dalli, was appointed as a Member of the Commission for the period from 10 February 2010 to 31 October 2014. The health and consumer policy portfolio was allocated to him by the President of the Commission, Mr José Manuel Durão Barroso (‘President Barroso’).

2        On 21 May 2012 the Commission received a complaint (‘the complaint’) from the company Swedish Match, containing serious allegations concerning the behaviour of the applicant. According to the complainant, a Maltese entrepreneur, Mr Silvio Zammit, had used his contacts with the applicant to try to obtain a pecuniary advantage from the company and from the European Smokeless Tobacco Council (ESTOC) in return for seeking to influence a possible future legislative proposal on tobacco products, in particular, the European Union ban on the sale of the product known as ‘snus’.

3        On 25 May 2012 the European Anti-Fraud Office (OLAF) initiated an investigation into the complaint, in accordance with Articles 3 and 4 of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1).

4        By letter of 11 July 2012, OLAF informed the applicant that he was to be considered as a person concerned by an investigation opened following the complaint, in relation to attempts to involve two economic operators in paying bribes in order to obtain the adoption of a measure by the Commission that would be beneficial to them. The applicant was refused access to the complaint.

5        On 16 July 2012 the applicant was interviewed by OLAF for the first time.

6        President Barroso met the applicant on 25 July 2012. During that meeting the applicant denied the allegations made against him in the complaint.

7        By letter of 27 July 2012, the applicant confirmed to President Barroso that he had no knowledge of any negotiations between the entities making the complaint and a ‘person in Malta’ and that he was not involved in the matter in any way.

8        On 17 September 2012 the applicant was interviewed by OLAF for the second time.

9        On or around 5 October 2012, the Director-General of OLAF informed the Secretary-General of the Commission, Ms Catherine Day, that the final investigation report relating to the complaint (‘the OLAF report’) was about to be sent to the Commission.

10      On the basis of that information, on 11 October 2012 President Barroso’s cabinet called the applicant’s cabinet to arrange an appointment with him and a meeting was set for 16 October 2012.

11      The OLAF report was transmitted to Ms Day on 15 October 2012, for the attention of President Barroso. The report was accompanied by a letter signed by the Director-General of OLAF (‘the covering letter’), which summarised the main findings of the investigation and informed President Barroso that the results were being referred to him for possible action in the light of the provisions laid down by the Code of Conduct for Commissioners (C(2011) 2904).

12      The covering letter states, inter alia:

‘On 25 May 2012, based on information provided by the European Commission, OLAF opened an investigation regarding alleged bribe requests made to economic operators in order to obtain the lifting of the EU ban on snus.

…

Commissioner Dalli interacted on several occasions with representatives of the tobacco industry in unofficial and confidential meetings, which were conducted without the knowledge and the involvement of the competent Services. These meetings were all organised by Mr Silvio Zammit, who is a Maltese entrepreneur from outside the institutions, and a close friend of Commissioner Dalli.

…

Although there is no conclusive evidence of the direct participation of Commissioner John Dalli either as instigator or the mastermind of the operation of requesting money, there are a number of unambiguous and converging circumstantial pieces of evidence gathered in the course of the investigation, indicating that he was indeed aware of the machinations of Mr Silvio Zammit and of the fact that he was using his name and position to gain financial advantages.

In addition, Commissioner Dalli, on the occasions he was interviewed by OLAF in order to allow him to clarify his position on the facts under investigation, or when he wrote to the Office, tried to minimise the frequency and the extent of the contacts he had had with Mr Zammit and to hide their content relevant to the issue at stake.

Furthermore, at no stage did Commissioner Dalli take action to prevent or dissociate himself from the facts or to report the circumstances of which he was aware.

As a result of the facts highlighted by the OLAF investigation, it can be concluded that the image and the reputation of the European Commission have been put at risk in the eyes of the tobacco producers and, potentially, in front of public opinion.

Commissioner Dalli’s behaviour could thus be seen as a serious breach of his duty to behave in keeping with the dignity and the duties of his office.

...’

13      On the afternoon of 16 October 2012 the applicant met President Barroso in the latter’s office. They were then joined by President Barroso’s head of cabinet, Mr Johannes Laitenberger, and by the Director-General of the Commission’s Legal Service, Mr Luis Romero Requena. As the parties do not agree on the facts relating to the circumstances of that meeting (‘the meeting of 16 October 2012’), the way in which it unfolded or on its outcome and as those facts are central to the present dispute, they will be determined by the Court later in this judgment.

14      Later the same day, President Barroso telephoned the Maltese Prime Minister, Mr Lawrence Gonzi, to inform him that the applicant had resigned from his office as a Member of the Commission and to ask him to consider how to fill the vacancy. President Barroso also wrote to the Presidents of the European Parliament and of the Council of the European Union to notify them that the applicant had ‘tendered his resignation with immediate effect’.

15      Later that day, at around 17:00, the Commission released a press statement announcing the applicant’s resignation ‘with immediate effect’.

16      In the course of that day, the applicant himself issued a press statement through a private organisation.

17      During the plenary session of the Maltese Parliament on 16 October 2012, Mr Gonzi made the following statement:

‘I received a phone call from the President of the European Commission, José Manuel Barroso, this afternoon, in which he informed me that he had just accepted the resignation of John Dalli from the post of Commissioner.

President Barroso explained that it was a decision taken by John Dalli in the light of the OLAF report concerning an investigation into the actions of third parties.

...

In another phone call I received later on, John Dalli told me he would challenge any allegation made against him; however, he had decided to resign from the post of Commissioner in order to better defend himself and the institution which he had formed part of until then.

Later today, at circa 17:00, the office of the President of the Commission published a declaration, which I am presenting to the Chamber of the House for everyone’s attention.

...’

18      The transcription and English translation, certified by a sworn translator engaged by the applicant, of a radio interview given by the applicant in Maltese on the evening of 16 October 2012 include the following statements:

‘Interviewer: You handed in your resignation. Firstly, why did you resign?

Applicant: This is from what I was informed verbally. As a matter of fact, up till now I do not have anything in writing. … In fact I have started to talk to people, to my lawyers this very evening to open the necessary procedures so that it is proven that these conclusions are completely false. I am issuing a press release today wherein I am also stating that I will continue to work so that the effort that my people and I have made to revise the tobacco directive, that was proposing harsher rules on smoking, will continue as planned. Next Monday we were going to start the process. I hope that this process continues.

...

Interviewer: Then why did you resign, John? Why did you feel the need to resign since …?

Applicant: Let me tell you as I said some time ago on another television programme. I do not stay where I am not wanted, ok, and this I take very seriously. I have started working from today and want a completely free hand so that I can. I oppose these allegations.

Interviewer: You have just said that you do not stay where you are not wanted. President Barroso forced you to resign; am I understanding you well?

Applicant: These are words that in my opinion are correct to say, that I will not stay where I am not wanted and I will leave it at that.

Interviewer: But did Barroso force you to resign?

(unintelligible words, with the two persons talking simultaneously)

Applicant: There will be developments in the coming days.

Interviewer: Did he force you to resign or did you decide?

Applicant: There will be developments in the coming days.

Interviewer: What developments can we expect from all this?

Applicant: The developments that I am seeking advice from my lawyers and I will act step by step on their advice in all the developments that I decide to make.

...’

19      After the meeting on 16 October 2012, Mr Romero Requena drew up an ‘internal note’, dated 18 October 2012, which contained a report on that meeting. According to that note, the applicant, ‘… while categorically denying the accusations against him, stated that in order to defend his reputation he was presenting his resignation as a member of the European Commission with immediate effect’.

20      On the same day, the applicant received from the Commission documents to be signed in order to start ‘closing’ his employment and to pay him a transitional allowance. In this regard, he states that he refused to take any action that would signify that he had resigned his position as Commissioner and, in particular, to complete the papers that would have entitled him to allowances and the refund of expenses for repatriation. As the Commission services had unilaterally transferred into his bank account two payments for transitional allowances, the applicant, on 28 December 2012, wrote to the Commission that he had never signed any such request and returned the payments to the Commission’s account.

21      On 21 October 2012 the applicant wrote to President Barroso to inform him that he did not consider that there was a valid resignation on his part, that he considered that he had been denied his right to defend himself properly and that his right to a presumption of innocence had been infringed by the Director-General of OLAF.

22      On 22 October 2012 the applicant wrote to the Members of the European Parliament explaining that he categorically denied having been aware of any negotiations and/or communications that could have taken place between the Maltese entrepreneur concerned and the snus producers and that he had not been informed by OLAF of the evidence on which they were basing their conjectures in that regard.

23      On 23 October 2012 President Barroso replied to the applicant, underlining, inter alia, that the applicant’s various complaints against him of illegal or incorrect conduct were ‘incomprehensible’ and that, as a former Commissioner, the applicant was under the obligation ‘to behave with integrity in accordance with Article 245 TFEU’.

24      On 30 October 2012 President Barroso wrote to the President of the Parliament in order to provide some explanations concerning the applicant’s resignation during the meeting on 16 October 2012. He stated, inter alia, that:

‘[Mr Dalli] firmly rejected the OLAF findings. Nevertheless, during our discussion he acknowledged past contacts outside official channels with the tobacco business involving the Maltese entrepreneur and we came to the conclusion that, without prejudice to the legal presumption of innocence in relation to [OLAF’s] findings, it would not be politically tenable for him to remain in office as a Commissioner while he sought to clear his name. As I have since stated publicly, Mr Dalli unambiguously declared his immediate resignation before the Director-General of the Legal Service and the Head of my Private Office. I informed him that the resignation would be made public later that day through a press release, once he had had the opportunity to inform his family and collaborators of the resignation …

At this juncture, I would like to stress that the legal consequences of the OLAF findings have to be clearly separated from the political assessment thereof. As you know, OLAF has sent its report to the Attorney General of Malta and I am informed that the Attorney General has referred the matter to the police. It is now the sole responsibility of the Maltese authorities to bring the matter forward, in accordance with the Maltese law. As far as the Commission is concerned, we will continue to fully respect the principle of the presumption of innocence, as we did since the beginning of the OLAF investigation. In particular, all the communications made by Commission representatives following Mr Dalli’s resignation exclusively focused on the political and/or institutional dimension of the events at stake and carefully refrained from entering, even indirectly, into a legal qualification of those events and of the eventual responsibility of the involved persons.’

25      On 28 November 2012 the Council adopted, by common accord with President Barroso, Decision 2012/744/EU appointing a new Member of the European Commission (OJ 2012 L 332, p. 21), Mr Tonio Borg, for the remainder of the applicant’s term of office, which ran until 31 October 2014.

26      On 28 April 2013 a Maltese newspaper, MaltaToday, published on its website an almost complete version (two pages were missing) of the OLAF report, which the applicant was thus able to peruse.

27      The translation of a radio interview which the applicant gave in Maltese on 30 June 2013 contains the following statement which he made in response to being welcomed as ‘John Dalli, ex-Health Commissioner’:

‘First I would like to point out that I have not as yet resigned as European Commissioner for Health. My thesis is that I am still Commissioner. My dismissal was illegal and in fact I have a case pending at the European Court of Justice to annul Barroso’s decision.’

 Procedure

28      By application lodged at the Registry of the General Court on 24 December 2012, the applicant brought the present action.

29      In its defence, lodged at the Court Registry on 20 March 2013, the Commission stated that it was offering evidence, in accordance with Article 46(1)(d) of the Rules of Procedure of the General Court, concerning the facts and circumstances of the applicant’s resignation and it proposed that these facts and circumstances be confirmed, ‘by any or all of the witnesses to the meeting of 16 October [2012], orally or in writing’. It reiterated that offer of evidence in the rejoinder, which was lodged at the Court Registry on 20 September 2013.

30      Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was accordingly allocated.

31      Pursuant to Article 14(1) of the Rules of Procedure and on a proposal from the Third Chamber, the Court decided at its plenary session on 5 February 2014, in accordance with Article 51 of those rules, to refer the case to a formation composed of a greater number of judges (five).

32      As one of the judges in the Chamber sitting in extended composition was unable to sit in the present case, the Chamber was completed in accordance with the third subparagraph of Article 32(3) of the Rules of Procedure. The President of the General Court having designated himself in order to restore the number of Judges provided for, he took on the functions of President of the Chamber pursuant to the third paragraph of Article 8 of the Rules of Procedure.

33      Upon hearing the report of the Judge-Rapporteur, the General Court (Third Chamber, Extended Composition) decided to open the oral procedure, to adopt a measure of organisation of procedure pursuant to Article 64 of the Rules of Procedure in the form of a question to the applicant, and, subject to the observations of the parties, to order the personal appearance of the applicant pursuant to Article 65(a) of the Rules of Procedure and to order that certain facts be proved by the testimony of President Barroso pursuant to Article 65(c), Article 66(1) and Article 68(1) and (2) of those rules.

34      By letters of 27 May 2014, the Court invited the parties to submit their observations on those measures of inquiry within seven days.

35      By letter of 4 June 2014, the applicant stated that he was ready to appear in person before the Court and that he had no objection to President Barroso being heard as a witness. The applicant also considered that it would be useful if the Court summoned as witnesses Mr Frédéric Vincent, his former spokesman, Ms Joanna Darmanin, his former Head of Cabinet, Mr Giovanni Kessler, Director-General of OLAF, Mr Johannes Laitenberger, President Barroso’s Head of Cabinet, and Mr Johan Denolf, the Chairman of the OLAF Supervisory Committee.

36      Also by letter of 4 June 2014, the Commission stated that it had no objection to the applicant appearing in person or to President Barroso being heard as a witness. The Commission further stated that it could be appropriate also to summon as witnesses Mr Laitenberger and Mr Romero Requena.

37      By order of 16 June 2014, the Court ordered that the applicant appear in person at the hearing on 7 July 2014.

38      By a further order of 16 June 2014, the Court decided that the testimony of the following persons should be heard at the abovementioned hearing on 7 July 2014: President Barroso, Mr Laitenberger, Mr Romero Requena, Ms Darmanin and Mr Vincent, (i) on ‘the question whether or not the applicant resigned verbally during the meeting of 16 October 2012 in the office of … President [Barroso] and, in the affirmative, in which context and circumstances and following what declarations made by the latter’, and (ii) on ‘what was said in the course of their personal contacts with the applicant immediately after the said meeting’.

39      By letter of 18 June 2014, the applicant replied to the written question put by the Court as a measure of organisation of procedure.

40      At the hearing on 7 July 2014 the applicant appeared in person and the witnesses were heard by the Court, in accordance with the Rules of Procedure.

41      The parties presented oral argument and answered the questions put by the Court at the hearing on 8 July 2014, after which the oral procedure was closed and the case was deliberated.

42      At the hearing the applicant produced Opinion No 2/2012 of the OLAF Supervisory Committee of 11 December 2012, which the Court decided to place on the case-file once the Commission’s observations had been heard. The Commission produced the statement made by the Maltese Prime Minister on 16 October 2012 to the Maltese Parliament (see paragraph 17 above). After hearing the applicant’s submissions, the Court decided to place that document on the case-file, while reserving its decision as to the admissibility of the document.

43      By letter of 23 October 2014, the applicant submitted to the Court Registry written observations on the minutes of the hearing which had been communicated to it. The Court refused to place those observations on the case-file, the parties being so informed by a letter from the Court Registry of 13 November 2014.

 Forms of order sought by the parties

44      The applicant claims that the Court should:

–        annul the ‘oral decision of 16 October 2012 of termination of office of the applicant with immediate effect, taken by … President [Barroso]’ (‘the contested decision’);

–        order compensation for damage of 1 symbolic euro for non-material damage and, on a provisional basis, of EUR 1 913 396 for material damage;

–        order the Commission to pay the costs.

45      The Commission contends that the Court should:

–        dismiss the action as inadmissible, in whole or in part, and, in any event, as unfounded;

–        order the applicant to pay the costs.

 The request that Annexes 4 and 13 to the reply be removed from the case-file

46      After the production by the applicant, as Annex 4 to his reply, of a version of the opinion of the OLAF Supervisory Committee relating to the present case which was published in the online edition of the Maltese newspaper MaltaToday on 7 May 2013, and, as Annex 13 to the reply, a version of the OLAF report published in the online edition of MaltaToday on 28 April 2013, the Commission maintained, in its rejoinder, that both these documents had been ‘leaked’ to the Maltese press and requested that they be removed from the case-file, since they were not obtained by lawful means and the applicant had not claimed that there were special circumstances that would justify placing them in the case-file and had not alleged that they were decisive for the ruling in the present case.

47      In that regard, it must be observed that neither the fact that the documents in question may be confidential nor the fact that they may have been obtained unlawfully precludes their remaining in the case-file. First, there is no provision that expressly prohibits evidence obtained unlawfully from being taken into account (judgments of 8 July 2008 in Franchet and Byk v Commission, T‑48/05, ECR, EU:T:2008:257, paragraphs 74 and 75, and 24 March 2011 in Dover v Parliament, T‑149/09, EU:T:2011:119, paragraph 61). Second, the Court of Justice has not ruled out the possibility that even internal documents may, in certain cases, lawfully be placed on the case-file (orders of 19 March 1985 in Tordeur and Others, 232/84, paragraph 8, and 15 October 1986 in LAISA v Council, 31/86, paragraph 5).

48      Thus, in certain situations, it is not necessary for an applicant to show that he has obtained by lawful means the confidential document relied on in support of his action. The General Court has held, when weighing up the interests to be protected, that it is necessary to consider whether particular circumstances, such as the decisive nature of the production of the document for the purpose of reviewing the lawfulness of the procedure leading to the adoption of the contested measure (see, to that effect, judgment of 6 March 2001 in Dunnett and Others v EIB, T‑192/99, ECR, EU:T:2001:72, paragraphs 33 and 34) or of establishing the existence of a misuse of powers (see, to that effect, judgment of 29 February 1996 in Lopes v Court of Justice, T‑280/94, ECR-SC, EU:T:1996:28, paragraph 59), constituted grounds for not withdrawing a document.

49      In the present case, the Court observes, first, that it is not established that the applicant himself unlawfully obtained the documents whose removal from the case-file is requested, since he has produced the versions of those documents which were published in the Maltese press.

50      Secondly, the confidential nature of the documents in question has, in any event, been compromised by the very fact of that publication in the press; accordingly, the inclusion of those documents in the file in the present case does not otherwise undermine their confidential nature.

51      Thirdly, in the present case, the documents in question have been produced in support of the third and fourth pleas advanced in the action and are, in the applicant’s submission, necessary for the purpose of assessing whether President Barroso was properly entitled to rely on the OLAF report, assuming that the report is tainted by the irregularities alleged in the framework of those pleas. The Court observes, in that regard, that, in the reply, the applicant has developed new arguments, in law and in fact, directed both against the allegations made against him by Swedish Match, which lodged the complaint concerning him that was the subject of the OLAF report, and against the regularity of the procedure followed by OLAF with a view to the drafting of that report. Those arguments are, to a very great extent, based on the OLAF report and the Opinion of the OLAF Supervisory Committee, which the applicant considers to be new evidence that has come to light in the course of the proceedings, since those documents were published in the Maltese press after the commencement of the action. Without prejudging the inherent relevance of those arguments for the purpose of assessing the legality of the contested decision, they suffice to answer the Commission’s objection that the applicant has neither claimed that there are special circumstances that would justify placing the documents on the case-file nor alleged that they are decisive for the ruling in the present case.

52      Fourthly, the Court notes that the date of the meeting on 16 October 2012, at the conclusion of which the contested decision was allegedly adopted, was set by President Barroso’s cabinet on the basis of the date on which it had been suggested the OLAF report would be sent to him and that the contested decision, if it exists, was allegedly taken the day after the report had been sent to President Barroso. Thus, whilst asserting that the OLAF report is not a preparatory measure for the contested decision, the Commission itself, in its pleadings, accepts that it is unreasonable to claim that the contested decision ‘has nothing to do with the OLAF report’.

53      Accordingly, in view of the nature of the documents in question, of the fact that they have already been disclosed in the press and of the circumstances of the case, the Commission’s request that those documents be removed from the case-file must be rejected.

 Admissibility of the document produced by the Commission at the hearing

54      The statement made by the Maltese Prime Minister, Mr Gonzi, to the Maltese Parliament, at the plenary session on 16 October 2012 (see paragraph 17 above), which has been taken from an official public record, was mentioned by the Commission at the hearing on 7 July 2014 at which the applicant appeared in person, and was then produced by the Commission when oral argument was presented at the hearing on 8 July 2014, following which the document was provisionally placed on the case-file. The statement appears to be relevant for the purposes of this action, since it refers to the exchanges between Mr Gonzi and the applicant, concerning the latter’s departure from the office of Member of the Commission, in the course of a telephone conversation on the afternoon of 16 October 2012, shortly after the meeting of 16 October 2012.

55      At the hearing on 7 July 2014, the applicant’s lawyers none the less objected to the Commission’s reliance on that document, on the grounds that it was not part of the case-file and that taking it into account would be contrary to the audi alteram partem rule.

56      In that regard, the Court recalls that the principle of respect for the rights of the defence is a fundamental principle of EU law. That principle would be infringed where a judicial decision is based on facts or documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (judgment of 22 March 1961 in Snupat v High Authority, 42/59 and 49/59, ECR, EU:C:1961:5).

57      The principle of equality of arms, which is a corollary of the very concept of a fair hearing and the aim of which is to ensure a balance between the parties to proceedings, guaranteeing that any document submitted to the court may be examined and challenged by any party to the proceedings, implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (judgment of 6 November 2012 in Otis and Others, C‑199/11, ECR, EU:C:2012:684, paragraphs 71 and 72).

58      In the present case, the late production of the document at issue is justified by the particular circumstances in which the Commission found it necessary to rely on it. Whilst neither of the parties had referred, in their pleadings, to a telephone conversation between the applicant and the Maltese Prime Minister on the afternoon of 16 October 2012, the applicant mentioned it, for the first time, when he appeared in person at the hearing on 7 July 2014, explaining that he had told Mr Gonzi in the course of that conversation that President Barroso had just ‘terminated [him] from the Commission’. Thus, in order to refute the applicant’s claims concerning the exact content of the exchanges that took place during that telephone call, the Commission’s agents referred to the document at issue, in which Mr Gonzi instead states that the applicant informed him that he had decided to resign. Therefore, far from infringing the audi alteram partem rule, taking the document concerned into account instead ensures compliance with that rule by giving the Commission the opportunity to respond to a new argument from the applicant, made for the first time at the hearing on 7 July 2014.

59      Moreover, the applicant and his lawyers were given an opportunity to state their views on the admissibility, relevance and evidential value of the document concerned at the hearing on 8 July 2014, within a period that cannot be considered unreasonably short in view of all the circumstances of the case and, in particular, the official nature of that document which was taken from a public record. On that occasion, the applicant did not restate his objection to the document in question being placed on the file. Nor did he ask the Court for an opportunity to comment on that document in writing or request that the hearing be postponed.

60      In the light of those considerations, it must be held that the document in question is admissible in the present proceedings (see, by analogy, judgment of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, ECR, EU:C:2014:2363, paragraphs 33 to 35 and the case-law cited).

 The application for annulment

 Preliminary considerations concerning the subject-matter of the application for annulment

61      The Court found itself obliged to conclude that the wording of the applicant’s first head of claim, as set out in full in paragraph 44 above, read in the light of the arguments put forward in his pleadings, does not identify, clearly and unequivocally, the act whose annulment is sought in the present case. It appears from certain passages in his pleadings (in particular, paragraphs 58 to 67 and 129 of the application and paragraphs 3, 17 and 48 of the reply) that the applicant is seeking annulment of a decision allegedly taken on 16 October 2012, whereby President Barroso, on his own authority and assuming the powers conferred on the Court of Justice by Articles 245 TFEU and 247 TFEU, is said to have removed him from office with immediate effect. On the other hand, it appears from other parts of those pleadings (in particular, paragraphs 53, 70, 85, 88, 118 and 119 of the application and paragraph 54 of the reply) that the applicant is seeking annulment of an oral decision allegedly taken by President Barroso, on 16 October 2012, to exercise his power under Article 17(6) TEU to request the applicant’s resignation.

62      In this regard, it should be recalled that Articles 245 TFEU and 247 TFEU cover the case of compulsory retirement of a Member of the Commission by the Court of Justice, on application by the Council or the Commission, whilst, under Article 17(6) TEU, ‘[a] member of the Commission shall resign if the President so requests’.

63      By a measure of organisation of procedure of 22 May 2014 (see paragraph 33 above), the Court therefore requested that the applicant specify ‘clearly and unambiguously’ with which of the two acts envisaged on a hypothetical basis in paragraph 61 above his first head of claim was concerned.

64      In his written reply of 18 June 2014 (see paragraph 39 above), the applicant stated that he was seeking annulment of ‘the oral decision taken by … President [Barroso] on 16 October 2012 to terminate [his] office as Member of the Commission’. He added that, in his view, that decision could have two possible legal bases: either Articles 245 TFEU and 247 TFEU or Article 17(6) TEU.

65      It must be held that, despite the Court’s request, the applicant’s answer does not clarify the scope of his claim for annulment, as reproduced in paragraph 44 above.

66      It must be observed, however, that the contention of the applicant (who bears the burden of proof) that President Barroso removed him from office, improperly assuming the powers of the Court of Justice under Articles 245 TFEU and 247 TFEU, finds no support in the documents before the Court, in the various testimonies gathered or even in the statement made by the applicant himself when he appeared before the Court in person, so that this contention may be rejected at the outset as lacking any factual basis, the applicant having produced no proof or evidence of the existence of the alleged decision removing him from office.

67      Thus, in so far as the applicant’s first head of claim is intended to seek annulment of a decision allegedly taken on 16 October 2012, whereby President Barroso, on his own authority and assuming the powers conferred on the Court of Justice by Articles 245 TFEU and 247 TFEU, is said to have removed the applicant from office with immediate effect, the application for annulment must be rejected as inadmissible on the ground that there is no challengeable act for the purposes of Article 263 TFEU, the applicant not having established the existence in fact of such a decision (see, to that effect, order of 14 January 1992 in ISAE/VP and Interdata v Commission, C‑130/91, ECR, EU:C:1992:7, paragraph 11, and judgment of 10 July 1990 in Automec v Commission, T‑64/89, ECR, EU:T:1990:42, paragraph 42 and the case-law cited).

68      For the remainder, the subject-matter of the present action must be considered to be an application for the annulment of an oral decision allegedly taken by President Barroso, on 16 October 2012, to exercise his power to request the applicant’s resignation as a Member of the Commission, pursuant to Article 17(6) TEU (‘the contested act’).

 Facts

69      When the parties to an action do not agree on the facts, it is first and foremost for the Court to establish the relevant facts and to examine, to that end, the available evidence.

70      In the present case, even after the clarification, set out above, of the subject-matter of the application for annulment, the applicant’s position continues to be equivocal and inconsistent with regard to his reaction to the alleged oral request for his resignation that President Barroso is said to have made under Article 17(6) TEU. Thus, both before the commencement of the present action and in his pleadings, the applicant sometimes implied that he had in fact tendered his resignation at President Barroso’s request (see, inter alia, paragraphs 54, 56, 85, 88, 89, 118 and 136 of the application and paragraphs 3, 4, 11, 12, 14, 15, 17, 51, 63, 69, 80, 85, 91 and 121 of the reply), and sometimes that he had never formally tendered his resignation, despite such a request being made, and that the resignation was in any event invalid and had never taken effect; accordingly, he considered himself still to be, in title if not in practice, a Member of the Commission (see, inter alia, in addition to paragraphs 28, 30, 31, 33, 40, 63, 70 to 80, 86, 87, 93 and 129 of the application and paragraphs 10 and 86 of the reply, the applicant’s letter to President Barroso of 21 October 2012, referred to in paragraph 21 above, his letter to the Commission of 28 December 2012, referred to in paragraph 20 above, his affidavit of 8 May 2013, included at Annex 7 to the reply, and his statement made on 30 June 2013 on a Maltese radio station, referred to in paragraph 27 above).

71      The Commission, on its part, submits that the applicant chose to tender his voluntary resignation at the meeting on 16 October 2012, no request for his resignation having been made by President Barroso within the meaning of Article 17(6) TEU.

72      The evidence initially placed on the file did not on its own enable the Court to decide between, on the one hand, one or other of the two versions of events put forward by the applicant (see paragraph 70 above) and, on the other, the Commission’s version of events (see paragraph 71 above).

73      In those circumstances the Court decided to adopt the measures of inquiry mentioned in paragraphs 37 and 38 above.

74      In the remainder of this judgment, the Court will rely more particularly (i) on the applicant’s statement and his answers to the Court when he appeared in person at the hearing on 7 July 2014, as set out in the minutes of that hearing, and (ii) on the signed minutes reproducing the testimonies of the witnesses, President Barroso, Mr Laitenberger, Mr Romero Requena, Ms Darmanin and Mr Vincent, and the answers of those witnesses to the questions of the Court and the parties.

75      In the assessment of the evidential value of those various testimonies, account has been taken of the fact that, on the one hand, President Barroso is the person who allegedly adopted the contested act and, on the other hand, that the other witnesses are Commission officials or members of its staff and thus work more or less directly under the authority of its president, as well as of the fact that two of those witnesses, Mr Laitenberger and Mr Romero Requena, were personally involved in both the preparation for, and the follow-up to, the meeting on 16 October 2012.

76      The fact remains that the witnesses took the oath provided for in the first subparagraph of Article 68(5) of the Rules of Procedure and that they vouched the truth of their evidence in the manner laid down in Article 71 of those rules, their attention having been specifically drawn, when they did so, to the criminal liability provided for in their national law in the event of perjury.

77      Furthermore, the fact that four of the witnesses were, in terms of their position within the Commission, subordinate to President Barroso is not, by itself, a sufficient reason to call into question the veracity of their evidence, account being taken both of their rights and obligations under the Staff Regulations of Officials of the European Union (see, inter alia, Articles 11, 12, 19, 21a and 22 thereof) and the Conditions of Employment of other members of staff, and of their lack of personal interest in the case.

78      The reliability and credibility of those testimonies are, in any event, borne out by the fact that overall they are consistent. Above all, they are, on most of the essential points, corroborated by the other objective material in the file, to which reference is made later in this judgment.

79      By contrast, the evidential value of the statements made by the applicant on various occasions and, in particular, during his personal appearance at the hearing of 7 July 2014, is undermined by the equivocal, even contradictory, nature of his successive versions of events, which give rise more to confusion than bring clarification. In addition, certain of the applicant’s statements may, on certain crucial points, be refuted or contradicted not only by the concurring statements of the witnesses heard by the Court, but also by the other objective material in the file, to which reference is also made later in this judgment.

80      The Court will thus begin by establishing the facts of the present case on the basis of the five testimonies available to it and, where the parties are in agreement as to the facts, on the statements made by the applicant when he appeared before the Court in person. At the same time the Court will assess the degree of credibility of some of the applicant’s statements which are at variance with the evidence of those witnesses. The Court will then determine to what extent the facts thus established may be confirmed by the other evidence on the file.

81      In this regard, the following facts may be regarded as established as to the circumstances, the conduct and the outcome of the meeting on 16 October 2012, and as to its immediate aftermath.

82      First of all, as regards the preparation made in advance of that meeting, President Barroso, following the opening of the OLAF investigation, had had a number of discussions with his immediate collaborators about the various political options that would be available to him in the event of the applicant not being ‘unambiguously cleared’. In the light of the precedent set when the Commission led by Mr Jacques Santer resigned en bloc in response to the ‘Cresson case’ in 1999, an event viewed as a reference point in political terms, the persons concerned had envisaged three possible outcomes to the situation in issue: they were, in those persons’ order of preference: (i) an immediate full and satisfactory explanation from the applicant with respect to OLAF’s conclusions, which would thus allow President Barroso publicly to restate his confidence in him; (ii) failing that, the applicant’s voluntary resignation with a view to clearing his name and protecting the Commission; (iii) in the event of refusal on his part, the applicant’s resignation following a request from President Barroso under Article 17(6) TEU. The last-mentioned option was seen by the persons concerned as the most damaging one for the applicant since it would have entailed a public withdrawal of President Barroso’s confidence in him; thus, this option was to be used only as a last resort.

83      It was also accepted by the persons concerned that, if the Commission was not to be caused considerable political damage, swift and decisive handling of the situation was essential as soon as the OLAF report became known. Heard as a witness, Mr Laitenberger thus explained, with reference to various unfortunate cases over the past two decades, that, ‘once the news about such a situation breaks, an immediate reaction is required. Time lost cannot be retrieved. There is no period of grace in such situations’. Similarly, Mr Romero Requena stated when giving evidence that the Commission had had some ‘sad and bad’ experiences in connection with OLAF investigations when the Commission had been too slow in reacting and had been the victim of leaks.

84      Some days before the OLAF report was sent, President Barroso and his immediate collaborators were advised informally that the conclusions ‘were not at all good’ for the applicant, although they were given no further details.

85      On 11 October 2012, President Barroso’s cabinet, which had been informed that dispatch of the OLAF report was imminent, contacted the applicant’s cabinet in order to arrange an appointment with him and a meeting was fixed for 16 October 2012 at 13.30. Ms Darmanin informed the applicant of this and he asked her whether she knew what the meeting was to be about. She replied that she did not and asked whether he would like her to check. The applicant said that that was not necessary. She then prepared a dossier for him concerning various pending projects that were likely to be discussed at that meeting.

86      Concerning the subject-matter of the meeting on 16 October 2012, the applicant states that he was ‘taken completely unawares’. Nevertheless, the Court considers that he must at the very least have suspected that it would concern the OLAF investigation relating to him, even though he had not been informed of the closure of the investigation or of the fact that the OLAF report had been delivered to President Barroso.

87      First, the applicant had, in fact, been interviewed on two occasions by OLAF, on 16 July and 17 September 2012 (see paragraphs 5 and 8 above), and it is apparent from the OLAF report that, on those occasions, he had been asked very detailed questions about the facts set out in the covering letter, in particular with regard to unofficial meetings that were not reported to the Commission which he allegedly had in Malta with representatives of the tobacco industry, the existence of some of which he had himself acknowledged, and to his relations with Mr Zammit (who had acted as an intermediary in respect of those meetings), both during the period covered by the investigation and, in connection with its subject-matter, during the course of the investigation.

88      Secondly, the applicant had already had a first meeting with President Barroso concerning the OLAF report, on 25 July 2012, and the two men had discussed, in general terms, the problem raised by the complaint. President Barroso had told the applicant on that occasion how important the case was and the applicant, for his part, had categorically denied any involvement in it, stating that he intended to take legal action against the persons involved; that intention has not, however, been acted upon or, at any rate, if it has been acted upon, the Commission has not been made aware of that.

89      Thirdly, President Barroso, heard as a witness, explained that, in bilateral meetings with Commissioners, he normally indicates to them the agenda of the meeting if it is normal business of the Commission but that, on the occasion in question, he wanted to discuss the matter ‘personally and politically’ with the applicant, so that the subject-matter of this meeting was not mentioned. According to President Barroso, the applicant must have inferred from the fact that nothing had been said about the content of the meeting that it was going to be about a highly confidential and serious matter, which could only be the OLAF investigation concerning him. That assumption may also explain why the applicant did not seek to discover what the subject-matter of the meeting would be, even though his Head of Cabinet offered to do so (see paragraph 85 above).

90      Fourthly, the fact that the applicant’s cabinet was not informed of the subject-matter of the meeting may reasonably be explained by President Barroso’s legitimate concern to keep the investigation and the OLAF report confidential for as long as possible. It should be noted in that regard that Ms Darmanin and Mr Vincent confirmed, in response to a question put by the Court, that they had no knowledge of the investigation, or of the facts relating to it, before the applicant himself told them about it after the meeting on 16 October 2012.

91      On 15 October 2012, the OLAF report arrived at President Barroso’s cabinet and was read by four persons: President Barroso, Mr Laitenberger, Ms Day and Mr Romero Requena.

92      Two draft press releases were drawn up confidentially by Ms Day and were then re-read by Mr Laitenberger and Mr Romero Requena. One covered the possibility of the applicant resigning voluntarily and the other that of him resigning following a request from President Barroso under Article 17(6) TEU. The two drafts were then handed over to the Commission’s Spokesperson Service shortly before the start of the meeting on 16 October 2102.

93      However, no draft of a press release had been prepared to cover the eventuality of the applicant being able to provide full and convincing explanations in response to the OLAF report. President Barroso, Mr Laitenberger and Mr Romero Requena, heard as witnesses, explained that it would not have been possible to prepare such a press release before the substance of any explanations was known. In addition, it would probably not have been necessary, in that situation, to issue a press release, at least not at that time.

94      Nor, moreover, had a draft of a decision under Article 17(6) TEU or a draft letter of resignation by the applicant been prepared. However, a telephone call between President Barroso and the Maltese Prime Minister had been arranged, which was to take place after the meeting with the applicant.

95      Before the start of the meeting on 16 October 2012, President Barroso asked Mr Laitenberger and Mr Romero Requena to be on call in order to take note of the conclusions of the meeting and to deal with matters arising from it.

96      The meeting started at around 13.45 and lasted for approximately an hour and a half in total.

97      President Barroso began by showing the applicant the OLAF report. The applicant asked if he could read it, but President Barroso refused on the ground that the report was confidential. He none the less read the covering letter to the applicant, more than once, and asked him what he thought of it.

98      Whilst protesting his innocence emphatically as regards the bribery allegations and the instructions he allegedly gave Mr Zammit, the applicant did not deny either his unofficial meetings in Malta with representatives of the tobacco industry, as organised through Mr Zammit and without the knowledge of the Commission or even his Cabinet, or his personal friendship with Mr Zammit. He acknowledged that he had been imprudent in that regard and that he should not have made these kinds of contacts.

99      In view of those explanations, which he described as ‘not convincing’ and even ‘bizarre’, President Barroso considered that the political conditions were such that it was ‘unthinkable’ for the applicant to remain in office. In that context, President Barroso, heard as a witness, stated that he had, at this point, lost all political and personal confidence in the applicant. President Barroso also claimed that he had to protect the integrity of the Commission as an institution. He told the applicant that it would be better and more honourable, in those circumstances, for him to resign voluntarily, in order to be able to defend his reputation. President Barroso added, however, that if the applicant did not do that, the Treaty of Lisbon gave him the authority to force the applicant to resign by formally asking for his resignation.

100    The discussion between the two men went on for nearly an hour, with the applicant continuing to protest his innocence and ask for access to the OLAF report and President Barroso replying that he was not entitled to let him have it. The applicant also told President Barroso at some length how difficult this situation was for him and his family, arguing that he needed more time, at least 24 hours, in order to be able to consult a lawyer on these questions, but President Barroso refused to allow him that delay and was not prepared to allow him more than half an hour.

101    At the end of that discussion the applicant told President Barroso that he was choosing to resign. President Barroso emphasised, when giving evidence as a witness, that this statement had been made in the present tense (‘I resign’) and not in the future tense (‘I will resign’).

102    Against that background, the Court cannot give credence to the applicant’s assertion in his declaration before it that, in the face of the ‘harassment’ to which he was subject, he merely said to President Barroso ‘it seems that I would have to go’ or ‘said that [he] would go’, thereby implying that he had not in fact resigned at that point.

103    The effect of such temporising statements would in fact have been incompatible with the only three possible outcomes that President Barroso had envisaged for the meeting of 16 October 2012 (see paragraph 82 above), which all required swift and decisive action (see paragraph 83 above), so that the possibility that President Barroso would have been satisfied with such statements may reasonably be excluded.

104    Above all, without it being necessary to enquire into the reasons why the applicant has deemed it appropriate to bring the present case before the Court, it should be noted that he continued with his declaration to the Court in the following terms:

‘I come from a system, I was a Minister in the Maltese Cabinet for many years — for more than 15 years; [I] come from a system that if the Prime Minister tells you go, even by a simple sms, you go. I mean this is the system, you won’t say “no I am going to go to Court for this”; I mean this is the system that I am used to. So this is the situation I was facing at the time.’

105    Similarly, in response to a question from the Court, the applicant exclaimed: ‘How can a politician stay where he is not wanted?’

106    Those impromptu remarks seem scarcely compatible with the version, advanced by the applicant, according to which all that was mentioned was resignation at some future point or even just the possibility of some thought being given to resignation.

107    At around 15.00, President Barroso asked Mr Laitenberger and Mr Romero Requena to come to his office to take note of the conclusions of the meeting and to deal with matters arising from it, in particular by issuing the press release announcing the applicant’s resignation and by making arrangements about the staff in his cabinet.

108    For the purposes of this judgment, it should essentially be taken as established with regard to the second part of the meeting on 16 October 2012, as described by the witnesses, that:

–        President Barroso explained to Mr Laitenberger and Mr Romero Requena, in the applicant’s presence, that the applicant had decided to resign but that he disputed OLAF’s allegations;

–        the applicant continued emphatically to protest his innocence, to object to his treatment, going so far as to speak of ‘lynching’, and above all to request more time before his resignation was announced; in that regard, Mr Romero Requena, when giving evidence, explained in response to a question from the applicant’s lawyers that, whilst emphatically protesting his innocence, the applicant accepted the political reality of his resignation;

–        President Barroso took the view that he could not postpone the matter, given that the applicant’s resignation was a political and institutional decision, the Maltese authorities and the Presidents of the other institutions had to be informed and a press release had to be issued later in the afternoon;

–        given the applicant’s insistence that he should be given more time before news of his resignation was made public, President Barroso sought to obtain clarification on whether the applicant was confirming his resignation or whether he thought that it would be possible for him to continue as a Member of the Commission; the applicant replied that he did not think that was possible and confirmed his resignation, whilst continuing to ask for more time;

–        President Barroso concluded that the matter could not be reopened; he would have been happy to give the applicant more time but it could not be done and he considered the applicant’s resignation to have been presented;

–        President Barroso, in the presence of two witnesses, read the applicant the draft press release announcing his resignation; the applicant did not object to it; President Barroso none the less added by hand the words ‘Mr Dalli categorically rejects these findings’;

–        towards the end of the meeting, the conversation focussed on the follow-up to the applicant’s resignation and its practical aspects; the applicant thus asked for and was given information concerning the procedure for replacing him as a Member of the College and on the administrative situation of the members of his cabinet.

109    During the second part of the meeting on 16 October 2012, the applicant asked whether he should write a letter of resignation. President Barroso replied that he did not have to but that he could if he wanted to and the two men agreed to ask Mr Romero Requena to prepare a draft letter setting out the reasons for his resignation. President Barroso explained that he merely intended to give the applicant the opportunity to put forward arguments in his defence which could not be included in the Commission’s press release.

110    On this point, and for reasons similar to those explained in paragraphs 103 to 106 above, which address the contention set out in paragraph 102 above, the Court considers that the applicant lacked credibility when he maintained, in his statement to the Court, that he said in the presence of Mr Laitenberger and Mr Romero Requena that he ‘would go’ or was going to go but only if the resignation was put in writing. In response to a question from the applicant’s lawyers, Mr Romero Requena, when giving evidence, also stated that he had never considered the letter of resignation to be an essential procedural requirement for the applicant’s resignation. That letter was solely to enable the applicant to give a written explanation to the outside world of the reasons for his resignation. Similarly, when Mr Laitenberger was heard as a witness, he concluded his account of the facts by stating that it was clear to him, in view of the discussion that had taken place between President Barroso and the applicant in his presence, that the applicant had chosen to resign ‘of his own motion’, rather than being compelled to do so, and that the applicant’s letter of resignation was merely confirmatory of a decision already taken and effective.

111    The meeting ended and the applicant left President Barroso’s office at around 15.30.

112    President Barroso then spoke by telephone to the Maltese Prime Minister, Mr Gonzi, with whom he agreed that the process for replacing the applicant should be launched.

113    At around 15.45, the applicant returned to his office and asked his secretary to call the cabinet staff for a meeting. When Ms Darmanin asked him what had happened, he replied, so far as she recalls, as follows:

‘We have a problem, we have a big problem — I have to call my wife and tell her. I need to or I have to leave [in Maltese: irrid nitlaq]; I need to see, I need to check [in Maltese: irrid nara] about my allowances. What are my rights? Am I entitled to a pension?’

114    The applicant then telephoned his wife and Ms Darmanin left the room.

115    The applicant also called the Maltese Prime Minister whose call he had previously missed. According to the applicant, that call lasted one minute and Mr Gonzi simply said to him: ‘Listen, I received this phone call from Barroso and he told me that, that, you are no longer Commissioner and that we need to find another one.’ The applicant further stated, in response to a question put to him when he appeared before the Court in person, that he had told Mr Gonzi that President Barroso ‘[had] terminated me’ from the Commission. That assertion, reported in those terms, is, however, contradicted by the statement which Mr Gonzi made to the Maltese Parliament on the evening of the same day (see paragraph 17 above).

116    Between 16.00 and 16.15, the members of staff of the applicant’s cabinet were convened in the meeting room. The applicant informed them that he had had a meeting with President Barroso who had shown him the conclusions of the OLAF report concerning some contacts he had with the tobacco industry. He said in particular that, at 17.00, President Barroso was going to announce his departure from the Commission and that he was now going to leave the Commission and go back to Malta to defend his case.

117    When giving evidence, Ms Darmanin affirmed and repeated that, although she did not recall the exact words used by the applicant during the meeting with the staff of his cabinet, it was clear to her that by 17.00 he would no longer be a Member of the Commission. In response to a question from the Court, she added that she was not able to state under oath that the applicant had said ‘I have resigned’, but that nor did she recall him saying anything to the contrary.

118    Between 16.20 and 16.45, Mr Romero Requena went to the applicant’s offices to give him the draft resignation letter which he had just drafted with the help of his assistant. He found the applicant in an office with a person whom he did not know. The applicant did not sign the draft letter concerned but replied that he ‘would take care of it’. Mr Romero Requena then left the office.

119    The draft letter in question (Annex A.12 to the application) is drafted in the following terms and contains the following deletions; it is common ground that those deletions were made by hand by the applicant after the draft letter had been given to him:

Mr President,

‘I hereby inform you of my decision to resign from the office of member of the European Commission with immediate effect.

I have taken this decision in the interest both of defending my own good reputation and of averting any damage from the European Union and the Commission during the coming weeks.

I strongly contest all the allegations. I am convinced that nothing will lead to any finding of infringements of the law on my part. I therefore plan to use all legal means that will be to my avail, to protect my reputation and my interests against these allegations. This will however not only be time-consuming, but above all require me to be freed from my current political responsibilities as a Member of the European Commission. I would be unable, while staying in office, to defend my case as vigorously as I believe is necessary. At the same time, I recognise that it would inevitably be harmful for the institution’s image if one of its serving members was engaged in a legal conflict on allegations concerning his personal conduct. Most importantly, I would feel unable to dedicate all my energy to exercising my functions as Commissioner …, while simultaneously having to defend myself against such allegations.

Let me however assure you that my resolve in defending my good reputation against these allegations will at no time prevent me from respecting my legal obligations as a former Commissioner to behave with integrity and discretion.’

120    At 16.50, Ms Day called Ms Darmanin and suggested organising a meeting with staff of the cabinet, together with herself and Mr Laitenberger. That meeting took place between 17.30 and 17.45, on the 13th floor of the Berlaymont building. The staff of the applicant’s cabinet were informed, inter alia, that the Vice-President of the Commission, Mr Maroš Ševčovič, would be responsible for the Directorate-General ‘Health and Consumer Protection’ until such time as a new Commissioner was appointed to replace the applicant.

121    At 17.11 the Commission’s press release stating that the applicant had resigned was issued. The applicant acknowledges that he was aware of it.

122    Towards 18.00, the applicant’s spokesperson, Mr Vincent, was asked to meet the applicant in his office. The applicant asked him if a press statement in which he would give his views in response to the Commission’s press release could be issued. Mr Vincent replied that it was no longer possible since the applicant’s resignation had now become official and that therefore he could no longer use the Commission’s media services. The applicant was very upset by that. At that moment Ms Darmanin, who, from her office, had heard agitated voices in a nearby office, found the applicant arguing with Mr Vincent. She confirmed to the applicant that it was no longer possible to issue a press statement in his name, given that, as of 17.00, he was no longer a Member of the Commission and that the person who represented the institution was its President, who had already issued his own statement.

123    Later that evening the applicant issued his own press statement. That statement makes no mention of a voluntary resignation but nor does it contradict the Commission’s press release. It is, in essence, confined to rejecting all the allegations made by OLAF.

124    In view of all the foregoing findings, assessments and considerations, the Court considers that it is established to the requisite legal standard that the applicant orally tendered his resignation as a Member of the Commission during the meeting he had with President Barroso in the latter’s office on the afternoon of 16 October 2012 and that he gave oral confirmation of that resignation in the presence of Mr Laitenberger and Mr Romero Requena.

125    That conclusion, reached principally on the basis of the testimonies of the witnesses, confirmed where appropriate by the applicant’s statements when he appeared before the Court in person, is corroborated by, in particular:

–        the statement made to the Maltese Parliament on the evening of 16 October 2012 by the Maltese Prime Minister, following his telephone conversation with the applicant (see paragraph 17 above);

–        the interview given by the applicant to a Maltese radio station on the evening of 16 October 2012 (see paragraph 18 above), in which the applicant chose to present his departure from the Commission as a political choice freely made;

–        the fact that the applicant did not challenge the press statement issued by the Commission at around 17.00 on 16 October 2012, although he was aware of that statement which referred to his resignation;

–        the absence of any official declaration by the applicant, in particular in his own press statement issued on the evening of 16 October 2012, denying that he had resigned as announced by the Commission;

–        the limited nature of the handwritten annotations made by the applicant to the draft letter of resignation which Mr Romero Requena had given him (see paragraph 119 above);

–        Mr Romero Requena’s internal note of 18 October 2012 (see paragraph 19), drawn up before the applicant first disputed either the fact or the legality of his resignation (see paragraph 21 above), in other words in tempore non suspecto.

 Law

126    It follows from all the foregoing findings of fact that the applicant orally tendered his resignation as a Member of the Commission during the meeting on 16 October 2012 and that he gave oral confirmation of that resignation in the presence of Mr Laitenberger and Mr Romero Requena at the end of that meeting.

127    Having regard to the pleas in law on which the action is based, it is for the Court to determine in law whether that resignation must be classified as voluntary or whether the applicant was under an obligation to tender it following a request for resignation allegedly made by President Barroso pursuant to Article 17(6) TEU, which request would then constitute the challengeable act in the present case.

128    As a preliminary point, it should be observed that Article 17(6) TEU does not make either the request from the President of the Commission, or the resignation that must ensue, subject to a particular requirement as to form — for example, that it be in writing. Nor does a procedural requirement of that kind appear to be called for by the general principle of legal certainty, since the burden of proof in respect of a resignation rests, in any event, with the party seeking to rely on that resignation (see, to that effect and by analogy, judgment of 23 February 2001 in De Nicola v EIB, T‑7/98, T‑208/98 and T‑109/99, ECR-SC, EU:T:2001:69, paragraphs 287 and 290). The same is true, moreover, of the voluntary resignation of a Member of the Commission.

129    The Court must therefore reject at the outset the plea for annulment which alleges that, since the applicant did not tender his resignation in writing, Article 17(6) and the abovementioned general principle of law were infringed.

130    Nevertheless, the applicant argues, in essence, that, by expressly intimating that he intended to use his power under Article 17(6) TEU to request the applicant’s resignation, President Barroso took an oral decision which constitutes a challengeable act for the purposes of the fourth subparagraph of Article 263 TFEU, in as much as it produces legally binding effects such as to affect the applicant’s interests by significantly altering his legal situation.

131    More specifically, the fact that President Barroso invited the applicant to resign, pointing out to him that it would be more honourable to do so of his own free will rather than being requested to do so, was, in the applicant’s submission, de facto and de jure, the very expression of the power which the President of the Commission has under Article 17(6) TEU to request the resignation of a Member of the Commission. The applicant maintains that the ‘invitation’ addressed to him ‘to resign voluntarily’ and the ‘threat’ that if he refused to do so President Barroso would ‘request him to do so’ actually form only one act, presented in two different ways and described with different words.

132    In order to determine whether the words actually spoken by President Barroso at the meeting on 16 October 2012 constitute, as the applicant maintains, an oral ‘request’ that the applicant resign from his office, within the meaning of Article 17(6) TEU, regard should be had, on the one hand, to the nature and substance of the duties pertaining to that office and, on the other, to the history and ratio legis of the provision concerned.

133    As regards the nature of the duties in question, they pertain to a mandate that is essentially political in nature (see, inter alia, Article 17(1), (3) and (8) TEU), conferred by the European Council on the person concerned, by common accord with the President of the Commission and following the consent of the Parliament (see Article 17(7) TEU). Those duties, as defined in Article 17(1) TEU, essentially involve coordinating, executive, management and supervisory functions in relation to the implementation of the European Union’s policies in the areas of competence attributed to the Union by the Treaties.

134    Inasmuch as the Commission may be regarded, in the terms it uses to define itself, as the principal ‘executive organ’ of the new legal order of international law constituted by the European Union (within the meaning of the judgment of 5 February 1963 in van Gend & Loos, 26/62, Rec, EU:C:1963:1), its members thus perform, as a body, functions which, according to the classical doctrine of the separation of powers, are within the province of the executive.

135    In this connection it should be observed that, under the constitutional traditions common to the Member States, the persons on whom such functions have been conferred in national governments may generally be removed at the discretion of the head of the government or the authority that appointed them. In that regard, the Court recalls the statements made by the applicant himself during his personal appearance, as they are set out in paragraph 104 above, concerning accepted political practice in Malta.

136    As regards, secondly, the history and ratio legis of Article 17(6) TEU, it should be recalled that, apart from normal replacement, or death, the Treaties did not originally provide for any possibility of a Member of the Commission resigning other than the possibility of voluntary resignation (Article 215 EC) or compulsory retirement by the Court of Justice, particularly in the case of serious misconduct (Article 216 EC).

137    Apart from those particular circumstances capable of giving rise to a procedure for compulsory retirement by the Court of Justice, there was thus no possibility for the Commission as a body or for its President as the head of that body to compel one of its members to resign when the context or the political circumstances of the time appeared to require it in the interest of the institution.

138    As pointed out in paragraph 135 above, that state of affairs did not reflect the accepted political practice that has traditionally obtained in national governments.

139    As the Commission has pointed out in these proceedings, that state of affairs had, moreover, resulted in the collective resignation of the Commission led by Mr Jacques Santer, on 15 March 1999, following the refusal of two of its members to resign in the face of a threat of a vote on a motion of censure of the Commission, as a body, by the Parliament.

140    In order to prevent the recurrence of such cases of collective resignation, which are liable to be detrimental to the proper functioning of the Community institutions or to erode their political capital, the authors of the Treaty of Nice, signed on 26 February 2001, therefore conferred on the President of the Commission power to require, with the support of the majority of the College, the resignation of a Member of the Commission. Article 217(4) EC, as amended by the Treaty of Nice, thus provided that ‘[a] Member of the Commission shall resign if the President so requests, after obtaining the approval of the College’.

141    The authors of the Treaty of Lisbon, signed on 13 December 2007, strengthened that power of the President of the Commission by enabling him to request the resignation of a Member of the Commission, pursuant to Article 17(6) TEU, without having to obtain the prior approval of the majority of the College.

142    As is shown by the history and the ratio legis of Article 17(6) TEU, that provision covers more particularly the eventuality of a Member of the Commission refusing to resign voluntarily and on his own initiative in circumstances in which the President of the Commission has lost confidence in him and considers that, were he to remain in office, that would be likely to be detrimental to the institution’s reputation or even its political survival.

143    In the present case the approach taken by President Barroso, which consisted — even at a stage prior to the meeting of 16 October 2102 — in allowing the applicant a choice between voluntary resignation and resignation ‘provoked’ by a request made under Article 17(6) TEU, is very much a continuation of the way that provision has developed and is wholly in keeping with its ratio legis. The implementation of that approach entailed, inter alia, the preparation of two draft press releases, one for each of those possible outcomes (see paragraph 92 above).

144    It is also apparent from the Court’s investigation of the facts that, at an early stage of the meeting on 16 October 2012, President Barroso had decided, in view of the applicant’s failure to provide a full and convincing explanation when faced with OLAF’s conclusions, that the applicant should leave the Commission, and that he was determined, should it prove necessary, to exercise his power under Article 17(6) TEU to request the applicant’s resignation to achieve that end. At the same time, President Barroso remained willing, in the applicant’s own interest, to accord him what he regarded as the ‘political favour’ of giving him the opportunity to resign voluntarily, without a formal request from the President under Article 17(6) TEU.

145    President Barroso thus suggested that the applicant resign voluntarily, while letting it be very clearly understood that, if the applicant failed to do so, he would request his resignation under Article 17(6) TEU. President Barroso, when giving evidence, confirmed that, if the applicant had not resigned voluntarily, he would ‘certainly’ have requested him to do so under Article 17(6) TEU. The choice presented to the applicant was perceived in his own mind as meaning: ‘I have the authority to fire you; but you can resign’.

146    In that context, the fact that President Barroso asserted, increasingly insistently in the face of the applicant’s reluctance and hesitation, that it would be more honourable for the applicant to resign voluntarily than to be asked to do so, does not suffice to establish the existence of the alleged contested decision. As long as a request for resignation under Article 17(6) TEU was not clearly formulated, President Barroso’s words, however insistent they may have been, did not result in a request to that effect which was capable of affecting the applicant’s interests by significantly altering his legal situation.

147    As to the applicant’s argument that there was ‘pressure’ from President Barroso and that, by exerting that ‘pressure’, the latter exercised his power under Article 17(6) TEU, the Court considers it unfounded, since a mere allusion to the possibility of using a power cannot be equated with the actual exercise of that power. In that regard, the Commission correctly points out that even if, as regards the end result, there was not a great difference between the two options put to the applicant, there was a considerable difference in political and, above all, legal terms between, on the one hand, a resignation resulting from a deliberate and unilateral choice and, on the other, a resignation which follows a request under Article 17(6) TEU and therefore appears more like a dismissal. Faced with those alternatives, the applicant then chose, at least initially, to avail himself of the opportunity he had been given to resign voluntarily, which had the advantage for him that the public perception would not be that he had been required to resign following a request from President Barroso.

148    That being so, the Court does not find credible the applicant’s claim that he did not see any difference between the two options making up the choice that was put to him. It must, on the contrary, have been clear to the applicant, a seasoned politician, that there is a significant difference between a voluntary resignation and a compulsory resignation in accordance with a formal and binding procedure.

149    The foregoing assessments of fact and of law are confirmed by the manuscript annotations made by the applicant to the letter of resignation which Mr Romero Requena handed to him personally, but which he did not sign, following the meeting on 16 October 2012 (see paragraph 119 above). In that regard, the Court finds that the applicant lacked credibility when he maintained, in the course of his statement to the Court, that the reason he did not sign the draft letter of resignation was because it suggested a voluntary resignation on his part. In fact, the handwritten deletions which the applicant made to that draft did not concern the actual fact of his resignation, or even the emphasis on its voluntary nature, but rather concerned details of less importance in that context. The Court considers that it may reasonably be assumed that, if the misunderstanding had been more fundamental and had concerned the actual fact of the resignation or the essential conditions attaching to it, the applicant would not merely have marked up the draft with some minor amendments of that kind but would either have simply rejected it outright, refusing to mark it up, or would have struck out the principal statements in it.

150    These assessments are also confirmed by the statement made by the Maltese Prime Minister, Mr Gonzi, to the Maltese Parliament on 16 October 2012 after his telephone conversation with the applicant (see paragraph 17 above).

151    Finally, further confirmation of these assessments is found in what the applicant said in the course of his radio interview on the evening of 16 October 2012 (see paragraph 18 above). The Court notes, in particular, that the applicant refused to respond clearly to the journalist when the latter suggested that President Barroso had forced him to resign.

152    It follows from all the foregoing considerations that the applicant resigned voluntarily, no request for his resignation having been made by President Barroso within the meaning of Article 17(6) TEU.

153    Since the existence of that request, which is the act that the present application for annulment purports to challenge, has not been established, that application must be rejected as inadmissible, in accordance with the case-law cited in paragraph 67 above.

154    The applicant further maintains, in the alternative, that, if he were found to have resigned, it would also have to be found that his resignation was obtained by means of a threat of dismissal, and thus under unbearable pressure, which permits the inference that his consent was vitiated. He submits that in the course of the meeting on 16 October 2012 President Barroso kept insisting on the fact that he had the right to dismiss the applicant and referred on several occasions to the word ‘dismissal’. In reality, the applicant had no choice but to obey the order given by President Barroso. The applicant argues that the fact that his consent was vitiated means that his resignation is null and void.

155    Such an argument cannot, in principle, be put forward in support of the present application for annulment, which has not been brought against either (i) the applicant’s own decision to resign (for which moreover the Commission is not answerable) or (ii) any other act of the Commission which may be characterised as an act adversely affecting him.

156    In any event, even if it were open to the applicant to call in question, in these proceedings, the legality of his resignation on the ground that the latter was irregular as his consent was vitiated, the Court does not consider that such an irregularity has been established.

157    In that connection and as regards the termination of a mandate that, as has been stated in paragraph 133 above, is essentially political in nature, the Commission rightly contends that the expression of a firm intention to exercise, if need be, the power to request a Member of the Commission to resign, which is a discretion conferred on the President of the Commission by the EU Treaty, cannot be considered to be illegitimate pressure affecting the validity or the voluntary nature of the resignation of the person concerned.

158    Moreover, with his long political experience at governmental level, the applicant, in the course of an interview that lasted approximately an hour and a half, was free to reject President Barroso’s proposal and to challenge the latter to make a formal request under Article 17(6) TEU. The applicant was, in particular, free to leave the meeting at any time or to request the participation of one or more members of his cabinet.

159    It follows from the foregoing considerations that the present application for annulment must be rejected.

 The claim for damages

160    In support of his claim for damages, the applicant maintains that all the illegalities alleged in the framework of the application for annulment are constitutive of a serious breach of a rule of law intended to confer rights on individuals.

161    Since the Court has, by the present judgment, already found that the existence of the Commission acts challenged in that application for annulment has not been established, no illegality in that respect and, a fortiori, no serious breach of a rule of law can be found against the Commission.

162    As to the allegation that the applicant’s consent was vitiated, put forward as a subsidiary plea in the context of the application for annulment (see paragraph 154 above), the Court has already found that it has not been established.

163    It follows from the foregoing that the allegations of wrongful conduct on the part of the Commission or its President have not been established to the requisite legal standard.

164    The claim for damages must therefore be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.

 Costs

165    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders Mr John Dalli to pay the costs.

Delivered in open court in Luxembourg on 12 May 2015. 

[Signatures]

* Language of the case: English.

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