Contents
Judgment of the Court (second chamber)7 July 1977notePierre Guillotv Commission of the European CommunitiesIn Case 43/74PIERRE GUILLOT, an official of the Commission of the European Communities, represented by Marcel Slusny, Advocate, of Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34/B/IV rue Philippe II,vCOMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Giorgio Pincherle, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser, Jean Monnet Building, Kirchberg,THE COURT (Second Chamber)composed of: P. Pescatore, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,Advocate General: F. CapotortiRegistrar: A. Van Houttegives the following
Judgment
Facts and issues
The facts and the arguments put forward by the parties in the course of the written procedure may be summarized as follows:
I —Facts and procedure
II —Conclusions of the parties
In his application originating the proceedings, the applicant claims that the Court should:1. Declare null and void the implied rejection of his complaint of 26 November 1973:2. Rule that the Commission is to withdraw Mr Malvicini's note of 21 October 1971 from the applicant's personal file;3. Order the Commission to pay the applicant one million Belgian francs by way of damages, subject to amendment in the course of the proceedings;4. Order Mr Malvicini to return to the applicant the recordings of his experiments of dissolving xenon in water;5. Order the Commission to pay the costs.In its application on a procedural issue, the Commission claims that the Court should:1. Dismiss all, or at least some, of the submissions in support of this application as inadmissible;2. In so far as all or part of the submissions in support of the application are not declared inadmissible or in any event and in particular for reasons of the proper administration of justice, stay the proceedings until the Commission has lodged the report of the inquiry which has been begun;3. Consequently, reserve the right or the parties to submit within a period to be fixed by the Court their observations on the application in the main action;4. Order the applicant to pay the costs.In reply to this document, the applicant contends that the Court should:1. Dismiss the objection of inadmissibility as unfounded;2. Alternatively, reserve its decision for the final judgment;3. Reserve the costs.In its defence, the Commission contends, subject to the foregoing conclusions on inadmissibility, that the Court should:1. Dismiss the application as unfounded;2. Order applicant to pay the costs.In his reply, the applicant claims that the Court should:1. Join Cases 53/72 and 43/74 as being related, at least for the purpose of the oral procedure;2. Therefore authorize the parties to lodge supplementary pleadings in consequence of the lodging of three new reports by the Commission in Case 53/72;3. In the alternative, take formal note that the applicant persists in the conclusions contained in the application.
III —Submissions and arguments of the parties
Admissibility
The Commission argues that the first submission which the applicant seeks to rely upon — breach of duty under Article 24 of the Staff Regulations — as well as his fourth submission — the return to the applicant of the recordings in question — are inadmissible at this stage. The applicant's second submission, based on the defendant's failure to obey the second and third paragraphs of Article 26 of the Staff Regulations, is inadmissible in so far as it infringes the principle of res judicata arising from the judgment of the Court in Case 53/72, and in that it is at least premature. The third submission, directed at obtaining compensation for damage allegedly suffered by the applicant, is also, at this stage, inadmissible or premature.In his reply, the applicant rejects the arguments of the Commission to the effect that the application should be ruled inadmissible.
The substance of the case
The applicant claims that he is entitled to assistance and protection from the Commission in accordance with Article 24 of the Staff Regulations of Officials, and that even if he cannot demand that the Commission should commence disciplinary proceedings against Mr Malvicini, which comes within its discretionary powers, he can at all events demand that the Commission should acknowledge that the accusations levelled against him were completely unfounded and, hence, unjustified. What is more, its refusal of assistance and protection constitutes a wrongful act or omission on its part.The Commission's inclusion of Mr Malvicini's note of 21 October 1971 in the applicant's personal file is contrary to the second and third paragraphs of Article 26 of the Staff Regulations of Officials, and the fact that it added that note to the file and subsequently produced it in Case 53/72, constitutes a wrongful act or omission on its part.The systematic refusal of the Commission to put an end to the persecution to which the applicant is subject also constitutes a wrongful act or omission on its part. Furthermore, it was guilty of such a wrongful act or omission in not taking steps to prevent one of its subordinates from persisting in tarnishing the applicant's reputation, and it even adopted his accusations by adding Mr Malvicini's note of 21 October 1971 to the applicant's personal file which was submitted to the Court in Case 53/72. These wrongful acts or omissions have caused damage which may be evaluated, in respect of material and non-material damage combined, at FB 1000000, subject to amendment in the course of the proceedings. Moreover, that damage is distinct from the damage which formed the subject-matter of another application in Case 53/72.As to the recordings in dispute, either they should be added to the applicant's file, in which case there is no reason for their remaining in the hands of Mr Malvicini, or else the results of a piece of work should not be added to the personal file but only the documents relating that piece of scientific work itself, and in that case, there is no reason for the recordings, which are the subject of serious conflict between Mr Malvicini and the applicant, to remain in the hands of Mr Malvicini, who might destroy them, mislay them, alter them and so on.In its defence, the Commission argues that Mr Malvicini's note of 21 October 1971 was submitted to the Court at the hearing on 30 May 1974, in Case 53/72, at the request of the Advocate General, with the agreement of the parties and the administration. Thus the Court did not become aware of it solely because it appeared in Mr Guillot's personal file, but also and especially because it was produced at the hearing. Moreover, the Advocate General would take the matter fully into account in his opinion.Moreover, it is the defendant's submission that that note does not contain any fresh accusation as against those which gave rise to Case 53/72. The same accusations and the same documents containing those accusations were examined by the Court and gave rise to the judgment in Case 53/72, imposing upon the Commission the obligation of carrying out an inquiry into the existence of evidence justifying those accusations. The Commission has now produced the reports arising from the inquiry, and the conclusions which emerge therefrom prevent the Commission from giving the applicant satisfaction and deprive of its effect his application to benefit from the operation of Article 24 of the Staff Regulations of Officials.The Commission also acted upon its intention of withdrawing the documents from the file as soon as the file was returned to it by the Court at the end of Case 53/72, as the applicant could moreover have found out if he had consulted his file. The statement to the effect that the complaint of 26 November 1973 concerned in particular the withdrawal of Mr Malvicini's note from the file is incorrect. No such request was made in the complaint, and therefore there was no reason to send him a reply, inasmuch as the contested documents were withdrawn as soon as possible after the judgment in Case 53/72. The Commission takes the view that the withdrawal of the contested documents constituted an appropriate and justified measure, which gave the applicant satisfaction even before he had made his complaint of 26 November 1973, which comprised only a request for an apology, which moreover there was no reason to provide.Taking into account the various details supplied to the Court and in particular the reports of the inquiries, the request for the recordings to be added to the file is in open contradiction of the applicant's argument to the effect that, by allowing certain documents to be added to the applicant's file, the Commission was guilty of a wrongful act or omission, as well as with his request for the withdrawal of Mr Malvicini's note of 21 October 1971. In requesting that the recordings should otherwise be returned to him, the applicant fails to observe the institution's property rights over the material which it puts at the disposal of its officials.In his reply, the applicant retorts that the subject-matter of Cases 53/72 and 43/74 is doubtless different, but that the proper administration of justice requires that the two cases should be capable of being dealt with at the same time, which would avoid useless repetition, and even the risk of confusion in the presentation of facts which are distinct but situated in the same historical context.As regards the recordings, the applicant specifies that those of which he seeks the return concern experiments carried out in 1970 and 1971, before the experiment of 28 April 1971. Those recordings were handed over by the applicant to Mr Benco on 25 February 1972, upon Mr Malvicini's order of 22 February 1972, and they have never been given back to him despite his requests.The applicant is acting in complete good faith. He states that if he had wished to hide anything from Mr Malvicini, he would not have given him all the record strips, and above all he would not have sent him on 7 May 1971 the technical appendix containing all his measurements, including the corrected measurements, whereas in the face of Mr Malvicini's accusations of 4 April 1971, he could have confined himself, in drawing up his technical appendix, to reproducing, without any conclusions, the data appearing in his handwritten notes.On the other hand, the applicant emphasizes to the Court that there are three different versions of the facts by Mr Malvicini: the one contained in the memorandum of 4 April 1971, the one contained in his memorandum of 6 July 1971 and a third version of his accusations, contained in the note of 21 October 1971 which is in issue. These versions are in complete disagreement with one another.He also draws the Court's attention to the fact that Mr Malvicini did not react in any way, on the morning of 30 April 1971, when the applicant gave him the recordings of the measurements carried out from 28 to 29 April, and on doing so fully explained to him the correction carried out for the last recordings, which moreover do not have the least importance for the verification of the theory, since the results of the preceding recordings are amply sufficient. Mr Malvicini made his accusations only on the Tuesday, whereas on the Monday, he had already sent the Director-General of the Centre a note which did not contain any accusation.Withdrawing the document does not suffice to make good any harm which it has done, namely the particularly serious defamation which it contains. That document appeared in the personal file of the applicant submitted to the Court and it was mentioned in the course of the hearing in Case 53/72. Thus it has received the publication necessary to constitute defamation and the other party should bear the consequences thereof, since the harm has been done.The fact that the document was submitted in the course of the hearing in Case 53/72 does not conflict with the applicant's argument, because that which in his view constitutes a wrongful act or omission by the Commission is the inclusion of that document in his personal file, contrary to the provisions of Article 26 of the Staff Regulations and having regard to its defamatory content.Both the complaint and its content show that the applicant is actually protesting against the fact that that document was added to his file without his being informed, which constitutes an implied reference to Article 26 of the Staff Regulations.As regards the recordings, the applicant declares that even though there can no longer be any question of his seeking their return to him, since they belong to the institution, he does however have the right to ask that they should not remain in the hands of third parties who have not been agreed upon and that a precise descriptive inventory should be made of them, subject to checking by the applicant, after which the documents should be entrusted either to an agreed third party or to a person appointed by the Court. He needs those documents, at and at all events should be able to have access to them, first for the continuation of his own experimental work, and secondly to be able to reply even more appropriately to the conclusions drawn by Mr Collard's last report.Concerning the report of the internal administrative committee, the applicant takes the view that it was drawn up with excessive and unjustified haste. The committee confined itself to hearing Mr Malvicini and the applicant, and it made an appraisal essentially on the basis of one of the record strips from the Olivetti computer and one of the strips from the multichannel analyser.Moreover, the composition of the committee was decided unilaterally. Whereas its investigations were to lead to conclusions putting the applicant's honour in question, the applicant did not benefit from any of the guarantees provided in Article 9 of the Staff Regulations of Officials with regard to the joint composition of the Disciplinary Board, or from those provided in Annex IX to the Staff Regulations.Furthermore, the internal administrative committee did not have sufficient information, because apart from the documents which it had at its disposal, it did not receive from the Commission the written documents of the parties and the appendices thereto. What is more, it neglected to bring Mr Malvicini and the applicant face to face with each other.The chairman of the internal administrative committee did not submit to the applicant in order to enable him to examine and identify them and if necessary to take a copy of them, the only documents which ultimately formed the basis for his decision, namely the record strips from the Olivetti computer.As regards the record strips from the multichannel analyser, the chairman of the committee of inquiry showed the applicant a fragment, with scribbled writing on it, and asked him not to touch it. The applicant was given no opportunity to examine and identify and if necessary to take a copy of the said documents.The fragment of the record strip which was shown to the applicant from a distance was about 30 cm long, whereas all of the strips for each experiment should have been several metres long. It is quite improper to isolate a fragment, which was moreover not identified.The applicant submits that in the present case the rights of the defence have been infringed. In Case 80/63, Robert Degreef v Commission of the EEC [1964] ECR 391, the Court held that the Establishment Board, a consultative board provided for in Article 102 of the 1962 Staff Regulations, was obliged to respect the rights of the defence. It is a sacrosanct principle of respect for the rights of the defence that it is absolutely necessary to disclose the documents to each of the parties, and that principle applies with the same force in these administrative proceedings.Furthermore, handwriting experts always take great care to obtain the signature of the party whose writing is to be checked upon the text which is alleged to be false as well as upon the documents used for the purposes of comparison, that is, documents written by the accused which are to be used to prove that the document alleged to be false was written by the same person.As regards the reports by the Belgian organization, Mr Collard, who actually wrote the reports, did not give the applicant a hearing. He reached his conclusion from the same documents as the internal administrative committee, and consequently his expert opinion is open to the same criticisms as may be directed at the report of the said committee.As to the reports submitted by the other party, the applicant considers them worthless. In view of the lapse of time, for which the Commission is responsible since it did not in May 1971 take the steps necessary to check the facts and thus put an end to the accusations made against the applicant, he takes the view that it will no longer be possible, through measures of inquiry, to determine exactly what happened at the end of April 1971. The Court has already passed a judgment of annulment on the other party's refusal to settle the dispute, and therefore it should now declare that the wrongful act or omission on the part of the Commission is continuing and that that wrongful act or omission is the cause of the damage suffered by the applicant.In its rejoinder, the Commission retorts that if the document of 21 October 1971 had not been submitted, the present situation of the parties would not be altered thereby.In its submission, the results of the two inquiries, which were carried out independently of one another, are precise, are in agreement, and reach the same conclusions.Moreover, it emerges from the judgment of the Court that the responsibility for the inquiry, from the point of view both of organization and of the consequences to be drawn from it, rests with the administration in the exercise of its powers and duties.The Commission does not accept the view that the inquiry to be carried out by the administration must be subject to the rules which, in the Staff Regulations, govern disciplinary proceedings.Statutory institutions exist in order to function within the sphere of their powers, and to set up a bogus Disciplinary Board in order to carry out the inquiry ordered by the Court would have signified a deliberate wish to dissociate the institution from its powers.The judgment is extremely clear on the question whether responsibility for the inquiry was that of the administration. It was essential that, in dealing with the matter, the administration should respect the principles which must govern its actions, namely the impartiality and the independence required by the objectivity of the conclusions of the inquiries themselves.The Court clearly specified the objective to be reached by the inquiry, so that the laying-down of rules of procedure, which have no place in the carrying out of a definite task, was immaterial.The principle of respect for the rights of the defence also has no place. Where there is no individual interest to be protected, it is absurd to speak of the defence and of its rights.The Commission maintains that it has carried out the task imposed on it by the judgment in Case 53/72, which, it contends, enables it at the same time to submit material for its defence which is indispensable for this case to be disposed of to its complete satisfaction.
IV —Oral procedure and measures of inquiry
Decision
Admissibility
The Substance of the Case
Costs
Operative part
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