Opinion of the Advocate-General
1. Mr Connolly, a former Commission official, is appealing against the judgment of the Court of First Instance of 19 May 1999, which dismissed his application for annulment of the Commission decision of 27 September 1995 suspending him from his post with effect from 3 October 1995 and withholding one half of his salary.
I. Background
2. The facts held not to be in dispute in the judgment at first instance are, in summary, the following:
The appellant was a grade A 4 official and Head of Unit 3, EMS: National and Community Monetary Policies in Directorate D, which dealt with monetary affairs in the Directorate-General for Economic and Financial Affairs.
On 24 April 1995 he applied, under Article 40 of the Staff Regulations, for three months unpaid leave on personal grounds commencing on 3 July 1995. The Commission granted him leave by decision of 2 June 1995 and, by a further decision of 27 September 1995, agreed that he should be reinstated in his post on 4 October 1995.
Whilst on leave, Mr Connolly published a book entitled The Rotten Heart of Europe The Dirty War for Europe's Money without requesting prior permission as required by the second paragraph of Article 17 of the Staff Regulations. Early in September 1995, specifically on 4 and 10 September, a series of articles concerning the book was published in the British press.
The Director-General for Personnel and Administration, acting in his capacity as appointing authority, sent a letter to the appellant on 6 September 1995, informing him of his decision to commence disciplinary proceedings for infringements of Articles 11, 12 and 17 of the Staff Regulations and, in accordance with Article 87 of those regulations, summoned him to a hearing.
The appellant was heard for the first time on 12 September 1995. At that hearing he submitted a written statement indicating that he would not answer any questions as he had not been informed in advance of the specific infringements he was alleged to have committed. On the following day he was invited to a further hearing and was informed that the conduct of which he was accused consisted in publishing his book, allowing extracts from it to appear in The Times newspaper and making statements in an interview published by that newspaper, without having requested prior permission to do so.
At the subsequent hearing on 26 September 1995 he refused to answer any of the questions put to him and filed a written statement in which he submitted that it was legitimate for him to have published his work without requesting prior permission because, when he did so, he was on unpaid leave. He added that the publication of extracts from his book in the press had been decided on by his publisher and that some of the statements contained in the interview had been wrongly attributed to him.
On 27 September 1995 the appointing authority decided, in accordance with Article 88 of the Staff Regulations, to suspend Mr Connolly from his duties with effect from 3 October 1995 and to withhold one half of his basic salary for the duration of his suspension. On 4 October 1995, it decided to refer the matter to the Disciplinary Board under Article 1 of Annex IX to the Staff Regulations.
On 27 October 1995 Mr Connolly submitted a complaint in accordance with Article 90(2) of the Staff Regulations, seeking annulment of the decisions by which the Commission had decided (a) to open disciplinary proceedings and refer the matter to the Disciplinary Board, and (b) to suspend him from his duties.
On 27 February 1996 the Commission informed Mr Connolly that his complaint had been dismissed by implied decision. However, he had already made an application to the Court of First Instance, which gave rise to Case T-203/95.
3. By his application Mr Connolly sought not only an order that the Commission should pay the costs but also:
annulment of the decision of 6 September to bring disciplinary proceedings against him, the decision of 27 September to suspend him from his duties, and the decision of 4 October to refer the matter to the Disciplinary Board;
an order that the Commission should pay him BEF 750 000 by way of compensation for the material and non-material damage sustained by him as a result of the press campaign and the defamatory statements made about him;
an order that the operative part of the judgment should be published, at the Commission's expense, in The Times, The Daily Telegraph and The Financial Times.
4. At the hearing before the Court of First Instance, Mr Connolly stated that following the adoption of the decision removing him from his post, which would be dealt with in Case T-163/96, the only outstanding issue in Case T-203/95 was the decision suspending him from duty. The Court of First Instance took formal notice that the appellant was discontinuing the proceedings in so far as they concerned (i) annulment of the appointing authority's decision to bring disciplinary proceedings against him and to refer the matter to the Disciplinary Board and (ii) his application for damages and for an order that the judgment should be published.
II. Basis of the judgment at first instance
5. As a result of the partial discontinuance of the case, only two of the four pleas in law initially relied on by the appellant in support of his application were considered by the Court of First Instance, namely infringement of Articles 25 and 88 of the Staff Regulations and breach of the principle that officials should be treated equally, which were the only pleas relating to annulment of the decision suspending him from his duties.
6. Rejecting the applicant's argument that the decision was rendered invalid by a defective statement of reasons which failed to explain why the facts complained of constituted serious misconduct, the Court of First Instance held that the decision at issue was not restricted to finding that the book had been written and published without the prior permission required by Article 17 of the Staff Regulations but also provided detailed reasons as to why the alleged infringement was so serious. The decision specified the appellant's grade and duties within the Directorate-General for Economic and Financial Affairs; it referred to the controversial wording of the title of the book, mentioned that The Times had published extracts from the book, thus highlighting the fact that the book had been heavily publicised and promoted; and it drew attention to the fact that the book expressed a fundamental disagreement with the Commission's policy, which it was the applicant's responsibility to implement.
7. The Court of First Instance added that, in view of those facts, the appointing authority considered that the appellant might also have infringed Articles 11 and 12 of the Staff Regulations, under which an official must conduct himself solely with the interests of the Communities in mind and refrain from any public expression of opinion which might reflect on his position. Consequently, the Court of First Instance found that the appellant's allegation that the appointing authority had not identified sufficiently clearly the facts capable of constituting an infringement of those provisions was unfounded and also drew attention to the fact that Article 88 does not require the appointing authority to come to a definitive view on whether the obligations imposed by the Staff Regulations have actually been infringed but merely requires it to state the grounds on which it is alleged that an official has committed serious misconduct.
8. For those reasons, which are set out in paragraphs 47 to 49 of the judgment under appeal, the Court of First Instance considered that the appointing authority's decision to suspend Mr Connolly pending the outcome of the disciplinary proceedings brought against him was sufficiently well founded and rejected his first plea in law.
9. The same view was taken of the second plea in law, namely that there had been a breach of the principle that officials should be treated equally. It is common ground that that principle is breached where two categories of person in essentially the same factual and legal situation are treated differently or where different situations are dealt with in the same way.
The Court of First Instance held in that regard that the argument that it was the Commission's usual practice (whose existence was not established in the documents before that Court) not to make publication of material written by officials whilst on unpaid leave conditional on obtaining prior permission under Article 17 of the Staff Regulations did not establish that there had been any breach of the principle of equal treatment, since it concerned a different situation from that of the appellant. Even if it were assumed that such a practice had existed in respect of material which had a bearing on the work of the Communities, the Court considered it sufficient, as is clear from the judgment under appeal, that the gravity of the official's alleged misconduct lay not only in his failure to obtain prior permission to publish the book but also in a combination of circumstances particular to his case, such as the contents of the book, the publicity given to it and the possibility that his conduct was also in breach of Articles 11 and 12 of the Staff Regulations.
His argument that the appointing authority did not suspend another official who had published defamatory works whilst in active employment also failed on the ground of insufficient evidence.
III. Admissibility of part of the appeal
10. In addition to applying for annulment of the judgment at first instance, Mr Connolly reproduces in his appeal the claims already made at first instance, namely, that the Court of Justice should (i) annul the decision of 27 September to suspend him, the decision of 6 September to bring disciplinary proceedings against him, and the decision of 4 October to refer the matter to the Disciplinary Board; (ii) order the Commission to pay him BEF 750 000 by way of compensation for material and non-material damage sustained by him following the press campaign and defamatory statements to which he had been subjected and (iii) order that the operative part of the judgment be published at the Commission's expense in The Times, The Daily Telegraph and The Financial Times.
11. The Commission has lodged an objection of inadmissibility regarding the claim for damages and the request for publication of the judgment in certain newspapers, to which the appellant has not replied.
12. Paragraphs 29 and 30 of the judgment of the Court of First Instance record Mr Connolly's discontinuance both of those two claims and of his original claims for annulment of the decision of 6 September to bring disciplinary proceedings against him and that of 4 October to refer the matter to the Disciplinary Board. For that reason, the Court of First Instance confined itself to considering and then rejecting the pleas on which the claim for annulment of the decision suspending the appellant was based.
13. The Court of Justice has held that, in the context of an appeal, an appellant may not rely on a plea in law which he expressly withdrew in proceedings before the Court of First Instance or on pleas declared inadmissible by that court, where the finding that they are inadmissible is not contested.
14. Under Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the Court of First Instance may not be changed in the appeal. Nor may a party put forward for the first time a plea in law which he has not raised before the Court of First Instance, since that would enable him to bring before the Court a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court of Justice's jurisdiction is confined to reviewing the assessment made by the Court of First Instance of the pleas argued before it.
The same fate must befall those pleas in law which the appellant withdrew during the proceedings before the Court of First Instance. I take the view, therefore, that the appeal is inadmissible in so far as it seeks annulment of the appointing authority's decisions to commence disciplinary proceedings and to refer the matter to the Disciplinary Board, claims damages and requests publication of the judgment.
IV. The grounds of appeal
15. The appeal is founded on the following pleas in law:
(a) Inadequate statement of grounds in the judgment and misinterpretation of the first paragraph of Article 88 of the Staff Regulations.
(b) Inadequate statement of reasons and breach of the principle of the inalterability of measures.
(c) Breach of the rules relating to the burden of proof and of the audi alteram partem rule.
V. The first ground of appeal
16. The appellant maintains that the judgment of the Court of First Instance is (in paragraphs 47, 48 and 49) vitiated by errors of reasoning, in that it fails to take account of the obligation imposed on the appointing authority by Articles 25 and 88 of the Staff Regulations not merely to make an allegation of serious misconduct against an official but also to state the grounds giving rise to the need for his immediate suspension.
17. To my mind there is no basis for interpreting those articles in the way proposed by the appellant. Article 25 provides that any decision adversely affecting an official is to state the grounds on which it is based. The first paragraph of Article 88 provides that where an allegation of serious misconduct is made against an official by the appointing authority, either of failing to carry out his official duties or of breaking the law, the authority may order that the official be suspended with immediate effect.
Any interpretation of Article 88 must take account of the following: in the first place, the Staff Regulations do not treat suspension as a disciplinary measure but as an interim measure adopted pending the outcome of disciplinary proceedings and, if appropriate, the imposition of a disciplinary measure. Second, the only condition to be fulfilled before the appointing authority may adopt the measure is that an allegation of serious misconduct has been made against an official, either of failing to carry out his official duties or of breaking the law. Finally, the decision to suspend an official is, by definition, preventive and temporary, irrespective of whether it involves withholding part of his salary, which may not exceed one half of the basic salary.
18. Thus, provided that the requirements of the first paragraph of Article 88 of the Staff Regulations are met, the appointing authority may suspend the official with immediate effect, giving a less extensive and less detailed statement of reasons than is required where, for example, one of the disciplinary measures laid down in Article 86(2) of the Staff Regulations is imposed, in which case the disciplinary procedure in Annex IX must be followed.
In accordance with the case-law of the Court of First Instance, a decision suspending an official is a provisional measure which relies on the existence of allegations of serious misconduct and not of duly established misconduct.
19. Since Articles 25 and 88 of the Staff Regulations do not require the appointing authority to give reasons for suspending the appellant with immediate effect, the Court of First Instance rightly held, in paragraph 48 of its judgment, that the contested decision contained an adequate statement of reasons concerning the gravity of the appellant's alleged misconduct.
20. The first ground of appeal is therefore unfounded and must be rejected.
VI. The second ground of appeal
21. The appellant submits in his appeal that paragraph 49 of the judgment is vitiated by inadequate reasoning and does not observe the principle of the inalterability of measures. He argues that, to provide reasons for taking the decision to suspend him with immediate effect, the appointing authority alleged that he had infringed Article 17 of the Staff Regulations by publishing a book which constituted an unauthorised public expression of opinion and, in the alternative, that he had acted in breach of the obligations imposed on officials by Articles 11 and 12. In his opinion, the fact that the allegation relating to the second breach was expressed in conditional terms means that the facts alleged to be contrary to Articles 11 and 12 of the Staff Regulations are distinct from those which the appointing authority knew about and described in relation to the infringement of Article 17.
However, in paragraph 49 of its judgment, the Court of First Instance stated that the appointing authority had taken the view, as regards the same set of facts, that the appellant might also have infringed Articles 11 and 12 of the Staff Regulations.
22. I believe that this ground of appeal is based on an incorrect reading of the judgment at first instance. The second recital in the preamble to the decision suspending Mr Connolly with immediate effect describes the conduct classified as an infringement of Article 17 of the Staff Regulations, namely publishing a book, extracts from which were published in The Times newspaper, without the appointing authority's permission having been previously requested or obtained. The third recital states that the book was a public expression of Mr Connolly's fundamental disagreement with Community policy and of his opposition to that policy, implementation of which was one of his duties. The fourth recital goes on to state that Mr Connolly may also have failed to comply with his obligations under Articles 11 and 12 of the Staff Regulations.
23. It is undisputed that Article 17 of the Staff Regulations imposes on an official, inter alia, an obligation to refrain from publishing or causing to be published without the permission of the appointing authority any matter dealing with the work of the Communities, while Articles 11 and 12 of the Regulations require an official, among other things, to carry out his duties and conduct himself solely with the interests of the Communities in mind and to abstain from any action and, in particular, any public expression of opinion which might reflect on his position.
In paragraphs 47 to 49 of its judgment, the Court of First Instance found that the contested decision contained an adequate statement of reasons and went on to examine separately the infringement of Article 17 of the Staff Regulations, namely, publication of a book, extracts from which were published in The Times, without the appointing authority's permission having been previously requested or obtained, and the possibility that the appellant had also acted in breach of the obligations imposed on Community officials by Articles 11 and 12 of the Staff Regulations, stating in the last sentence of paragraph 48 that the decision drew attention to the fact that the book expressed the appellant's fundamental disagreement with the Commission's policy, implementation of which was, however, one of his duties.
In my opinion, there are various reasons for the appointing authority's use of a conditional expression (may) in relation to the infringement of Articles 11 and 12 of the Staff Regulations rather than the present indicative which it used in relation to the infringement of Article 17. The first is that Article 17 is infringed by the mere fact that a text dealing with the work of the Communities is published without the appointing authority's permission first having been obtained. That is simply a question of fact, whereas determining whether there has been a contravention of Articles 11 and 12 requires value judgments to be made, something it is not appropriate to do at the time when a decision of the kind referred to in Article 88 of the Staff Regulations is taken. The second reason is that, as is stated in paragraph 49 of the judgment at first instance, Article 88 of the Staff Regulations does not require the appointing authority to come to any final decision as to the existence of breaches of the obligations laid down in the Staff Regulations, but merely to set out the reasons why an allegation of serious misconduct has been made against an official.
In my view, therefore, the Court of First Instance did not distort the reasons given in the contested decision and did not infringe the principle of the inalterability of adopted measures. Consequently, this ground of appeal is unfounded and must, therefore, be rejected.
VII. The third ground of appeal
24. In this ground of appeal the appellant complains that the Court of First Instance failed to observe the rules concerning the burden of proof and the audi alteram partem principle in that, in paragraph 59 of its judgment, it rejected for lack of evidence his allegation that the appointing authority had not suspended another official in active employment who had published offensive material.
He argues that, in his action for annulment, he was able to point out that the only sanction imposed on that official had been a reprimand, but that he did not have any further details since he had been prevented from obtaining any other information about officials on whom sanctions had been imposed by the Commission. It was therefore incumbent on the defendant institution to demonstrate, in pursuance of the audi alteram partem principle or the adversarial procedure, what its policy is where an official in active employment publishes any material without previously having obtained the necessary permission.
25. I take the view that this ground of appeal, like those preceding it, is completely unfounded, given that the Court of First Instance rightly held in paragraph 59 of its judgment that there were no facts or evidence enabling the case to which the appellant was referring to be identified with any certainty. Indeed, in cases where the issue is whether a proper comparative examination of the merits of various officials has been undertaken, the Court of First Instance has held that only where there are sufficiently consistent indicia to support the applicant's allegation that there was no real consideration of the candidates' comparative merits is the defendant institution under a duty to show, by objective evidence amenable to judicial review, that it has observed the guarantees given by Article 45 of the Staff Regulations to officials eligible for promotion and considered their comparative merits.
In October 1999 the Court of Justice set aside a judgment of the Court of First Instance on the ground that the lower court had erred in law by requiring the applicant to adduce evidence that the actions of Commission officials had made it impossible for it to engage in proper cooperation with its partners in a project. The Court of Justice considered that the applicant had provided some evidence of interference by Commission officials in the management of the project, which was likely to have had an impact on its smooth running, and that, in circumstances such as those, it was for the Commission to show that, notwithstanding the interference in question, the applicant continued to be able to manage the project in a satisfactory manner.
26. However, as noted above, Mr Connolly, by limiting himself to stating that recently an official who published offensive material while in active employment was reprimanded but was not suspended from duty, did not provide sufficient information or indicia for a specific case to be identified and thus did not place on the Commission the burden of proving that, in taking the decision to suspend him, it had neither overstepped its powers nor breached the principle that officials should be treated equally.
27. Since this ground of appeal is also unfounded, the appeal must be dismissed in its entirety.
VIII. Conclusion
28. In the light of the foregoing I propose that the Court of Justice should:
(1) Dismiss the appeal.
(2) Order Mr Connolly to pay the costs pursuant to Article 69(2) of the Rules of Procedure.
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