JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
30 November 2009 (*)
(Civil service – Officials – Disciplinary proceedings – Suspension of an official – Withholding of remuneration – Allegation of serious misconduct – Rights of the defence – Competence – Failure to publish a delegation of power – Lack of competence of the author of the contested measure)
In Case F‑80/08,
ACTION under Articles 236 EC and 152 EA,
Fritz Harald Wenig, an official of the Commission of the European Communities, residing in Woluwé-Saint-Pierre (Belgium), represented by G.‑A. Dal, D. Voillemot, D. Bosquet and S. Woog, lawyers,
applicant,
v
Commission of the European Communities, represented by J. Currall and D. Martin, acting as Agents,
defendant,
THE TRIBUNAL (First Chamber),
composed of S. Gervasoni, President, H. Kreppel (Rapporteur) and H. Tagaras, Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 16 June 2009,
gives the following
Judgment
1 By application lodged at the Registry of the Tribunal on 13 October 2008 by e-mail (the original having been received on the same date), Mr Wenig sought annulment of the decision of 18 September 2008 whereby the Commission of the European Communities, in application of Articles 23 and 24 of Annex IX to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), suspended him for an indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months.
Legal context
2 According to Article 86 of the Staff Regulations:
‘Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.
…
3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’
3 Article 23 of Annex IX to the Staff Regulations is worded as follows:
‘1. If the appointing authority accuses an official of serious misconduct, whether through a failure to honour his professional obligations or through an infringement of the law, it may immediately suspend the person accused of that misconduct for a specified or indefinite period.
2. The appointing authority shall take this decision after hearing the official concerned, save in exceptional circumstances.’
4 Article 24(1) and (2) of Annex IX to the Staff Regulations are worded as follows:
‘1. The decision suspending an official shall state whether the official is to continue to receive his full remuneration during the period of suspension or what part thereof is to be withheld. The amount paid to the official shall not under any circumstances be less than the minimum subsistence figure laid down in Article 6 of Annex VIII to these Staff Regulations, with the addition of any family allowances payable.
2. The situation of a suspended official must be definitively settled within six months of the date on which the suspension takes effect. If no such decision is taken within six months, the official concerned shall be entitled to again receive full remuneration, subject to paragraph 3.’
5 On 30 November 2007, the Commission adopted Decision C (2007) 5730 on the exercise of powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment of other servants (‘the Conditions of Employment’) on the authority responsible for concluding contracts of employment (‘the contracting authority’). The first paragraph of Article 1 of that decision, which was published in Administrative Notices No 57-2007 of 6 December 2007, was worded as follows:
‘The powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the [contracting authority] in respect of staff paid from the administrative appropriations and staff paid from the research and technological development budget other than those serving in the Joint Research Centre shall be exercised as appropriate and save as provided for hereinafter by the Commission, by the Member of the Commission responsible for personnel, the Member of the Commission responsible for the Unified External Service, the Director-General for Personnel, other Directors-General including heads of department and the Directors of [the Office for the Administration and Payment of Individual Entitlements], the [Office for Infrastructure and Logistics Brussels] and the [Office for Infrastructure and Logistics Luxembourg] in accordance with Annex I.’
6 According to paragraph 14, in Section VI ‘Discipline …’ of the ‘[t]able of appointing authorities for Commission staff paid out of the operating budget and the research budget (other than those serving in the [Joint Research Centre]’, to which Annex I to Decision C (2007) 5730 refers, it was envisaged that the powers conferred on the appointing authority to suspend an official in application of Articles 23 and 24 of Annex IX to the Staff Regulations were to be exercised, in the case of officials in grades AD 16 and AD 15 and officials in grade AD 14 of the senior positions (directors or equivalent), by the Commission and, in the case of other officials, by the Director-General for Personnel.
7 By a communication of 9 September 2008, a draft Decision C (2008) 5085 amending Decision C (2007) 5730 was placed on the agenda of the 1842nd meeting of the College of Commissioners of 10 September 2008. That draft decision envisaged that the power to suspend officials in grades AD 16 and AD 15 and officials in grade AD 14 in the senior positions (directors or equivalent) would be transferred to the Member of the Commission responsible for personnel. At the meeting of 10 September 2008, the College of Commissioners decided to ‘amend Decision C (2007) 5730 … as set out in Document C (2008) 5085’ and stated that that decision ‘[would] take effect immediately’ (the ‘decision of 10 September 2008’). That decision was not published in Administrative Notices.
8 On 29 April 2009, the Commission adopted Decision C (2009) 3074 ‘amending Decision C (2007) 5730’, in which it was envisaged that the powers conferred on the appointing authority to suspend an official would henceforth be exercised, in the case of officials in grades AD 16 and AD 15 and officials in grade AD 14 in the senior positions (directors or equivalent), by the Member of the Commission responsible for personnel. That decision was published in Administrative Notices No 33-2009 of 8 May 2009.
Facts
9 At the material time the applicant was an official of the Commission in grade AD 15 and was Director of Directorate G ‘Market Access and Industry’, which came under the Directorate-General (DG) for Trade of the Commission and was responsible, in particular, for implementing the anti-dumping policy.
10 On 7 September 2008, the United Kingdom weekly newspaper The Sunday Times published in its printed version and on its website an article entitled ‘Revealed: how Eurocrat leaked trade secrets over lavish dinners’. The article described three dinners which the applicant attended between March and September 2008 in restaurants in Brussels (Belgium) with reporters from The Sunday Times who had introduced themselves to him as the correspondents of a Chinese exporter with an interest in certain anti-dumping procedures conducted by the Commission. Still according to the article, the applicant provided the persons in question, in the course of those dinners and in telephone conversations, with information relating to proceedings pending before the Commission which he was not authorised to disclose. It was also proposed to the applicant that, in exchange for the information, he should collaborate in the activities of the alleged Chinese exporter for an annual remuneration of EUR 600 000, but, according to the article, the applicant envisaged doing so only after he had retired. Last, in response to the proposal which had been made to him during the second dinner to pay him a sum of EUR 100 000, the applicant was alleged to have stated that such a sum could be placed in a frozen account to which he would have access once he had retired, but none the less said that that payment should be made only in the light of the results obtained by the alleged Chinese exporter on the basis of the information received.
11 In the context of an administrative investigation initiated by the Commission, the applicant was heard on 10 September 2008 by two officials from the Commission’s Investigation and Disciplinary Office (IDOC). During that hearing, the applicant, who was legally represented, admitted having been invited to, and having attended, the three dinners described in the article in The Sunday Times without informing his superiors. He also acknowledged having communicated to his hosts various information concerning, in particular, the names of two Chinese candle-producing companies which were likely to obtain ‘market economy treatment’ (MET) status following an anti-dumping proceeding then in progress. However, the applicant emphasised that the information was semi-public and, in any event, of no commercial value. Last, while the applicant informed the IDOC officials that at the second dinner his hosts had proposed that, in exchange for the information communicated to them, they should pay the applicant a sum of money in a bank account in a country with a preferential tax regime, he denied having accepted that offer and emphasised that during those contacts he had only envisaged the possibility of collaborating in the activities of the Chinese exporter after he had retired.
12 By letter of 11 September 2008, the Member of the Commission responsible for personnel, relying on his capacity as appointing authority, informed the applicant that he proposed to suspend him and to withhold a part of his remuneration, pursuant to Articles 23 and 24 of Annex IX to the Staff Regulations, and ordered him to attend a hearing to be held on 12 September 2008.
13 By letter of 12 September 2008, counsel for the applicant requested the Commission to postpone the hearing and added that the applicant intended to ‘use the French language throughout the proceedings against him’.
14 Also on 12 September 2008, the Member of the Commission responsible for personnel informed the applicant that the hearing would take place on 16 September 2008 and stated that the applicant would be able to use the French language at that hearing.
15 On 16 September 2008, the applicant was heard by the Member of the Commission responsible for personnel. During that hearing, a record of which was drawn up in English, the applicant repeated in substance the statements which he had made before the IDOC officials.
16 Also on 16 September 2008, the applicant lodged a complaint with the prosecuting authorities, together with a claim for civil damages, against, in particular, the authors of the article in The Sunday Times.
17 By decision of 18 September 2008, the citations in which referred to Commission Decision C (2007) 5730 of 30 November 2007 on the exercise of powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority and ‘as last modified by [the] decision of 10 September 2008’, the Member of the Commission responsible for personnel, acting pursuant to Articles 23 and 24 of Annex IX to the Staff Regulations, suspended the applicant for an indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months (‘the contested decision’).
18 By way of justification of the contested decision, the Member of the Commission responsible for personnel relied on the fact, disclosed by the information ‘in various press articles published, in particular [the article] in The Sunday Times’, and at the hearings of the applicant before the IDOC officials and before himself, that the applicant had failed to comply with Articles 11, 12 and 17(1) of the Staff Regulations. According to the contested decision, the applicant had transmitted confidential information to persons to whom it was not to be communicated, had displayed a willingness to be recruited by those persons at a later date for a substantial salary in exchange for collaboration which had begun even before he retired and did not inform his superiors that he had been approached by such persons or sought the authorisation of his superiors to engage in those repeated contacts. Last, the contested decision emphasised that such conduct, should it be established, would constitute ‘serious misconduct on [the applicant’s] part’, in view, in particular, of the ‘major reputational damage to the … Commission’ which it would have caused and the applicant’s ‘high-ranking’ position within the Commission.
19 On 24 September 2008, the applicant submitted a request for assistance under Article 24 of the Staff Regulations, dated 23 September 2008 and requesting the Commission to do all that was necessary to reinstate his professional reputation and, in particular, to institute legal proceedings in order to establish the illegality of the conduct of the authors of the article in The Sunday Times.
20 On 3 October 2008, the applicant lodged a complaint within the meaning of Article 90(2) of the Staff Regulations, seeking annulment of the contested decision.
21 By memorandum of 22 January 2009, the Commission replied to the applicant’s request for assistance of 24 September 2008 and stated that the investigation opened by the European Anti-Fraud Office (OLAF) took the place of the inquiry which the appointing authority would have been able to carry out under Article 24 of the Staff Regulations. The Commission added that that memorandum did not constitute a rejection of the request for assistance.
22 On 29 January 2009, OLAF closed the investigation; it sent its findings to the Belgian judicial authorities on 12 February 2009.
23 By decision of 3 February 2009, the appointing authority rejected the complaint lodged against the contested decision.
24 By decision of 18 February 2009, the applicant, at his request, was granted permission to retire with effect from 1 May 2009.
Forms of order sought by the parties and procedure
25 By application received at the Registry of the Tribunal on 13 October 2008 by e-mail, the applicant brought the present action. On the same date, an application for a stay of enforcement of the contested decision was also received at the Tribunal.
26 By letters from the Registry of 14 October 2008, the parties were informed that the main proceedings had been stayed pending an express or implied decision rejecting the complaint lodged by the applicant on 3 October 2008.
27 By order of 17 December 2008, the President of the Tribunal dismissed the application for a stay of enforcement of the contested decision.
28 Following the decision rejecting the complaint, the parties were informed by letters from the Registry dated 25 February 2009 that the proceedings had been resumed before the Tribunal.
29 The applicant claims that the Tribunal should:
– annul the contested decision;
– order the Commission to pay the costs.
30 The Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to bear his own costs and to pay the Commission’s costs.
31 By means of a measure of organisation of procedure, the Tribunal invited the Commission to confirm that the decision of 10 September 2008 referred to in the citations in the contested decision had been adopted and, if so, to produce a copy of that decision and state whether it had been published. In response to that measure, the Commission, by letter of 3 June 2009, produced a copy of the communication of 9 September 2008 of the Vice-President of the Commission containing the draft decision which became the decision of 10 September 2008 and the minutes of the meeting of the College of Commissioners of 10 September 2008 at which the draft decision had been adopted. Furthermore, while acknowledging that the decision of 10 September 2008 had not been published in Administrative Notices, the Commission emphasised that the communication of 9 September 2008 had none the less been made available on the Commission’s intranet and provided the relevant electronic link.
32 In the preliminary report, the Tribunal invited the parties to concentrate their pleadings on the question whether the Member of the Commission responsible for personnel was competent to adopt the contested decision.
Law
Admissibility
33 Pointing to the fact that the contested decision had suspended the applicant for an indefinite period and ordered that the sum of EUR 1 000 per month be withheld from his remuneration for a maximum period of six months, the Commission submits that the applicant, who retired on 1 May 2009, no longer has an interest in seeking annulment of the contested decision, at least in so far as that decision suspended him from his duties.
34 In that regard, it is true that, in so far as it ordered the applicant’s suspension for an indefinite period, the contested decision was implicitly but necessarily repealed when, on 1 May 2009, the applicant retired, since a measure of suspension can apply only to officials in active service. Furthermore, even before the present action was brought, the contested decision had lapsed in so far as it ordered that part of the applicant’s remuneration be withheld, since, in accordance with Article 24(2) of Annex IX to the Staff Regulations, the withholding of his remuneration had been limited to a period of six months.
35 However, the circumstances referred to above have not rendered the present action devoid of purpose or removed the applicant’s interest in seeking annulment of the contested decision in its entirety, since it produced effects not only on his financial situation, but also on his reputation (see, by analogy, concerning the interest of an official retired on the ground of total invalidity in seeking annulment of his staff report, Case C‑198/07 P Gordon v Commission [2008] ECR I‑10701, paragraphs 44 and 45).
36 It follows that the plea of inadmissibility must be rejected.
Merits
37 In his application, the applicant puts forward seven pleas in law, alleging:
– breach of the second paragraph of Article 25 of the Staff Regulations, consisting in failure to state reasons;
– breach of the rights of the defence;
– breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’);
– the existence of manifest errors of assessment with respect to the alleged facts;
– breach of Article 23 of Annex IX to the Staff Regulations with respect to the alleged serious misconduct;
– breach of the principle of proportionality;
– failure to comply with the duty to have regard for the interests of officials.
38 Furthermore, at the hearing the applicant put forward an eighth plea, alleging that the contested decision was adopted by an incompetent authority.
First plea: breach of the second paragraph of Article 25 of the Staff Regulations, consisting in failure to state reasons
– Arguments of the parties
39 The applicant maintains that the contested decision does not contain a sufficient or a valid statement of reasons in so far as it does not set out in detail the reasons why the facts alleged against him constitute misconduct and, moreover, serious misconduct.
40 In its defence, the Commission contends that the plea should be rejected and claims that the contested decision contains a sufficient statement of reasons.
– Findings of the Tribunal
41 According to established case-law, the purpose of the obligation to state the grounds on which a decision adversely affecting an official is based is to enable the Community judicature to review the legality of the decision and to provide the official concerned with sufficient information to assess whether the decision is well founded or subject to a defect enabling its legality to be challenged. That obligation is satisfied when the measure against which an action may be brought has been adopted in circumstances known to the official concerned, which enable him to apprehend the scope of the measure taken against him (Case T‑80/92 Turner v Commission [1993] ECR II‑1465, paragraph 62, and Case T‑20/96 Pascall v Commission [1997] ECR-SC I-A-361 and II‑977, paragraph 44).
42 In the present case, it is apparent from the documents in the case‑file that the Commission, in the contested decision, the substance of which is set out at paragraph 18 of the present judgment, described in detail the nature of the allegations of serious misconduct made against the applicant. The Commission also stated that those allegations had as their origin information disclosed by ‘various press articles published, in particular [the article in] The Sunday Times’, and emphasised that such conduct, should it be established, would constitute ‘serious misconduct on the part of the applicant’, in view, in particular, of the ‘major reputational damage to the … Commission’ which it would have caused and the applicant’s ‘high-ranking’ position within the Commission.
43 It follows that the applicant cannot validly claim that the contested decision does not contain a sufficient statement of reasons.
44 In those circumstances, the first plea must be rejected.
Second plea: breach of the rights of the defence
– Arguments of the parties
45 The applicant claims that, in order to adopt the contested decision, the Commission relied on information ‘in various press articles published, in particular [the article] in The Sunday Times dated 7 September 2008’. In the applicant’s submission, only the article published in The Sunday Times was communicated to him, and not the other press articles. There was thus a breach of the rights of the defence.
46 In reply, the Commission contends that it observed the principle of respect for the rights of the defence by hearing the applicant before adopting the contested decision.
47 The Commission adds that, in any event, if any criminal or disciplinary proceedings should subsequently be brought, the applicant would again be given the opportunity to express his views.
– Findings of the Tribunal
48 According to established case-law, respect for the rights of the defence in all proceedings which are brought against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed, even in the absence of any express provision to that effect in the rules relating to the proceedings in question (see Case T‑169/95 Quijano v Commission [1997] ECR-SC I‑A‑91 and II‑273, paragraph 44, and Case T‑36/96 Gaspari v Parliament [1997] ECR-SC I‑A‑201 and II‑595, paragraph 32).
49 That principle, which derives from the requirements of sound administration, requires that any person who may be adversely affected by the adoption of a decision should be placed in a position in which he may effectively make known his views on the evidence against him which has been taken as the basis for that decision (Case T‑450/93 Lisrestal and Others v Commission [1994] ECR II‑1177, paragraph 42, upheld on appeal by the Court of Justice in Case C‑32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, paragraph 21).
50 It is also important to bear in mind that Article 23(2) of Annex IX to the Staff Regulations, the purpose of which is to guarantee respect for the rights of the defence in proceedings concerning the suspension of officials, provides that the appointing authority may take a decision to suspend an official only after hearing the official concerned, save in exceptional circumstances.
51 In the present case, it is apparent from the documents in the case‑file that, in application of the abovementioned provisions of Article 23(2) of Annex IX to the Staff Regulations, the applicant was heard on 16 September 2008, that is to say, before the contested decision was adopted, by the Member of the Commission responsible for personnel, who informed him of the allegations of serious misconduct against him and gave him the opportunity to make known his views on those allegations.
52 Furthermore, although the applicant claims that the Commission communicated to him, before the hearing held on 16 September 2008, only the article published in The Sunday Times, whereas it had itself stated, in the contested decision, that it had relied on ‘various press articles published, in particular [the article in] The Sunday Times’, it is apparent from the documents in the case‑file that the press articles which appeared in the wake of the publication of the article in The Sunday Times were in fact confined, as the applicant acknowledged at the hearing, to reiterating the tenor of the information revealed by TheSunday Times reporters.
53 The applicant cannot therefore validly maintain that the Commission failed to observe the principle of respect for the rights of the defence.
54 It follows that the second plea must be rejected.
Third plea: breach of Article 6 of the ECHR
– Arguments of the parties
55 The applicant claims that the contested decision was adopted in breach of the principle of procedural fairness guaranteed by Article 6 of the ECHR, since the information on which the appointing authority relied in order to suspend him was obtained without his knowledge, on the occasion of a trap set by TheSunday Times reporters.
56 In its defence, the Commission emphasises that the Community case-law, according to which Article 6 of the ECHR does not apply to disciplinary proceedings, applies a fortiori in a case involving suspension.
– Findings of the Tribunal
57 According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Community judicature ensures. For that purpose, the Community judicature draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have cooperated or to which they are signatories. The ECHR has special significance in that respect (Case C‑112/00 Schmidberger [2003] ECR I‑5659, paragraph 71; Case C‑540/03 Parliament v Council [2006] ECR I‑5679, paragraph 35; and Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 76).
58 According to Article 6(1) of the ECHR, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
59 However, it must be borne in mind that proceedings involving suspension and the withholding of remuneration are not judicial but administrative in nature, such that the Commission cannot be characterised as a ‘tribunal’ within the meaning of Article 6 of the ECHR (see, by analogy, order of the Court of Justice in Case C‑252/97 P N v Commission [1998] ECR I‑4871, paragraph 52; Case T‑26/89 de Compte v Parliament [1991] ECR II‑781, paragraph 94; and Case T‑23/00 A v Commission [2000] ECR-SC I‑A‑263 and II‑1211, paragraph 24). Accordingly, compliance with the obligations which that Article imposes on a ‘tribunal’ cannot be required of the Commission when it suspends an official and orders that sums be withheld from his remuneration.
60 It follows that the applicant cannot validly rely on a breach by the Commission of Article 6(1) of the ECHR.
61 The third plea cannot therefore be upheld.
Fourth and fifth pleas: the existence of manifest errors of assessment with respect to the alleged facts and breach of Article 23 of Annex IX to the Staff Regulations with respect to the alleged serious misconduct
– Arguments of the parties
62 The applicant claims that the allegations of serious misconduct made against him by the Commission, relating in particular to the fact that he breached the second paragraph of Article 11 and Article 17(1) of the Staff Regulations, are manifestly unfounded, since they have their source in false information reported in the article published in The Sunday Times.
63 In that regard, the applicant claims that he supplied only ‘semi-public’ information having no commercial impact, relating to anti-dumping procedures and concerning, in particular, the foreseeable duration of those procedures, the criteria for obtaining MET status or the need to seek advice from a lawyer or a consultant on such matters.
64 Furthermore, although the applicant admits having accepted three invitations to dinner with reporters from The Sunday Times claiming to be correspondents of a Chinese exporter, he emphasises that his attendance at those dinners, which was common practice at the Commission, cannot be regarded as contrary to the professional obligations of officials and did not require prior authorisation as provided for in the second paragraph of Article 11 of the Staff Regulations.
65 Last, the applicant claims that he never received any sum of money and never made the supply of information conditional on obtaining a post in the service of the Chinese exporter in question after he retired.
66 In its defence, the Commission observes first of all that the question as to whether the applicant was in fact guilty of the serious misconduct of which he is accused can be examined only in any disciplinary proceedings that might be instituted. In any event, the allegations made against the applicant are not manifestly unfounded, since the article in The Sunday Times, which served as the basis for those allegations, is very detailed and the applicant has admitted that it is accurate in part.
– Findings of the Tribunal
67 It must be emphasised at the outset that judicial review of the merits of a measure ordering suspension can only be very limited, given the provisional nature of such a measure. The Tribunal must therefore confine itself to examining whether the allegations of serious misconduct are sufficiently probable and whether they are manifestly unfounded (see, by analogy, for a case involving an order dismissing an application for interim measures against a suspension measure, order of the President of the Court of First Instance in Case T‑211/98 R Willeme v Commission [1999] ECR-SC I‑A‑15 and II‑57, paragraph 30).
68 In the present case, in the first place, it must be observed that the article published in The Sunday Times, the information in which, together with the statements made by the applicant at his hearings, is at the origin of the contested decision, is very detailed and on numerous occasions reports, and in quotation marks, the applicant’s replies to the questions put to him by the reporters.
69 In the second place, it is apparent from the documents in the case-file that at the hearings before the IDOC officials and before the Member of the Commission responsible for personnel, at which he was legally represented, the applicant admitted some of the facts reported in the article in The Sunday Times. He thus acknowledged having communicated to those reporters, in the course of the dinners to which he had been invited or during telephone conversations, certain information, in particular the names of two Chinese companies involved in the manufacture of candles which, following an anti-dumping procedure then in progress, were likely to obtain MET status. In that regard, the applicant cannot seriously dispute the confidential nature of that information or maintain that it was ‘semi-public’, since it was capable of conferring a distinct advantage on a trader wishing to enter into contracts with those companies before the anti-dumping procedures had been concluded. For the remainder, it should be observed that the two companies in question did in fact obtain MET status and that no anti-dumping duty was imposed on them by Commission Regulation (EC) No 1130/2008 of 14 November 2008 imposing a provisional anti-dumping duty on imports of certain candles, tapers and the like originating in the People’s Republic of China (OJ 2008 L 306, p. 22).
70 In the third place, although the applicant told the IDOC officials that during the second dinner it had been proposed that a sum of money be deposited in an account opened in his name in a country with a preferential tax regime in exchange for the provision of information, it is common ground that the applicant neither informed his superiors of such facts nor broke off contacts with the reporters, but even accepted a further invitation to dinner from them.
71 In the fourth place, while it is true that the information in the article published in The Sunday Times was obtained by means of a ‘trap’ designed to encourage the applicant to commit misconduct, it must none the less be emphasised that that trap was laid not by the Commission but by third parties, namely TheSunday Times reporters, whose conduct has not been shown or even been alleged to have been instigated by the administration. Consequently, the applicant cannot take issue with the Commission for having relied on the information reported in the article in The Sunday Times.
72 It should be added, moreover, that the contested decision did not merely reproduce the information set out in The Sunday Times, but also made express reference to the statements which the applicant made at the hearings before the IDOC officials and the Member of the Commission responsible for personnel.
73 Thus, with reference solely to the considerations set out above, the applicant cannot validly maintain that the Commission’s allegations of serious misconduct are manifestly unfounded.
74 In those circumstances, the fourth and fifth pleas must be rejected.
Sixth and seventh pleas: breach of the principle of proportionality and of the duty to have regard for the interests of officials
– Arguments of the parties
75 The applicant claims that, as he had been on leave at the time of his hearing before the Member of the Commission responsible for personnel, he had proposed that his leave should be extended for eight weeks. Instead of adopting that solution, however, which would have made it possible to avoid being publicly implicated while giving the administration sufficient time to investigate the matter, the Commission preferred to adopt the contested decision. The Commission thereby failed to observe both the principle of proportionality and the duty to have regard for the interests of its officials.
76 The applicant further claims that the Commission also breached the duty to have regard for the interests of its officials by communicating with him in English and drawing up the contested decision in that language, in spite of his repeated requests that French be used in the proceedings, in order to enable, in particular, his lawyers to have a ‘perfect understanding’ of the proceedings.
77 In its defence, the Commission denies having failed to observe the principle of proportionality or the duty to have regard for the interests of its officials, observing that entitlement to leave is quite distinct from the appointing authority’s power to suspend an official in application of Article 23 of Annex IX to the Staff Regulations. The applicant’s interests were taken into account, moreover, since the amount withheld from his remuneration was limited to EUR 1 000 per month.
– Findings of the Tribunal
78 In view, first, of the gravity of the allegations against the applicant, a senior official in the Trade DG and responsible for Directorate G ‘Market Access and Industry’; second, of the damage to the Commission’s reputation as a result of the publicity given to the affair; and, third, of the need for the Commission to have OLAF conduct an administrative investigation without disruption, the appointing authority cannot be held to have failed to observe either the principle of proportionality or the duty to have regard for the interests of officials by adopting, on the basis of an overall and provisional assessment specific to the present case, the contested decision. In that connection, the fact that the applicant lodged a complaint with the prosecuting authorities, together with a claim for civil damages, against the authors of the article published in The Sunday Times cannot invalidate that finding, since that has nothing to do with the reality or the gravity of the misconduct alleged against the applicant.
79 As for the argument that there was a breach of the duty to have regard for the interests of officials in that the Commission communicated with the applicant in English and drafted the contested decision in that language, it cannot be upheld. Although the applicant, by letter from his lawyer dated 12 September 2008, had requested to be able to ‘use the French language throughout the proceedings against him’, it is common ground that he was able to express himself in French at the hearing on 16 September 2008. Furthermore, while it is true that the record of that hearing and the contested decision were drafted in English, the applicant has not established or even alleged that he or his lawyers were unable to understand those documents. The documents in the case-file, moreover, show that the applicant had a thorough command of the English language (see, to that effect, Case T‑197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, paragraph 46, and Case T‑95/04 Lavagnoli v Commission [2006] ECR-SC I‑A‑2‑121 and II‑A‑2‑569, paragraph 48).
80 It follows that the sixth and seventh pleas must be rejected.
Eighth plea: lack of competence of the author of the act
– Arguments of the parties
81 The applicant claims that the contested decision was adopted by an authority lacking competence. He maintains that, pursuant to Commission Decision C (2007) 5730 of 30 November 2007, the contested decision ought to have been adopted by the College of Commissioners and not, as happened in the present case, by the Member of the Commission responsible for personnel. The applicant further maintains that, while it is true that on 10 September 2008 the Commission adopted a decision transferring to the Member of the Commission responsible for personnel the power to order the suspension of officials in grade AD 15, that decision is not enforceable against him as it was not published or made available before the contested decision was adopted.
82 In its defence, the Commission contends that the plea should be rejected. It observes that the publication of the decision of 10 September 2008 was not mandatory and that the failure to publish it did not preclude its entry into force and thus its enforceability. In any event, that decision was accessible in the database on the Commission’s intranet, which contains the communications to the College of Commissioners and the minutes of the meetings of that body.
– Findings of the Tribunal
83 It must be borne in mind at the outset that the plea alleging that the author of a measure adversely affecting the applicant was not competent to adopt that measure is a plea concerning a matter of public interest which the Tribunal is bound in any event to examine of its own motion (Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 56; Case T‑165/04 Vounakis v Commission [2006] ECR-SC I‑A‑2‑155 and II‑A‑2‑735, paragraph 30; Case F‑17/05 de Brito Sequeira Carvalho v Commission [2006] ECR-SC I‑A‑1‑149 and II‑A‑1‑577, paragraph 51; and Case F‑10/07 Botos v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paragraph 78).
84 In the present case, given that the contested decision referred to a decision of 10 September 2008 which amended ‘Decision on the exercise of powers conferred by the Staff Regulations on the [a]ppointing [a]uthority and by the Conditions of Employment … on [the contracting authority] of 30 November 2007’ and that that decision of 10 September 2008 was not in the case‑file, it fell to the Tribunal, in accordance with the case-law cited above, to request, by means of a measure of organisation of procedure, production of a copy of that decision and also the communication of any information relating to the publicity given to it.
85 As stated at paragraph 31 of the present judgment, the Commission, in response to that measure of organisation of procedure, produced, first, a copy of the communication of 9 September 2008 of the Vice-President of the Commission containing the draft decision which became the decision of 10 September 2008 and, second, the minutes of the meeting of the College of Commissioners of 10 September 2008 at which that draft decision was adopted.
86 The applicant contends, however, that because the decision of 10 September 2008 was not published before the contested decision was adopted it is not enforceable against him. He infers that, pursuant to Commission Decision C (2007) 5730 of 30 November 2007, the contested decision ought to have been adopted by the College of Commissioners and not, as happened in the present case, by the Member of the Commission responsible for personnel.
87 The Tribunal considers that the applicant’s argument, even though it was raised only at the hearing, is admissible, which the Commission has not disputed. First, the issue whether the Member of the Commission responsible for personnel was duly authorised to adopt the contested decision presupposes that the issue of the enforceability of the decision of 10 September 2008 be settled. The latter issue cannot be dissociated from the preceding issue and therefore, like that issue, constitutes a matter of public interest which is for the Tribunal to examine of its own motion, at any stage of the proceedings (see, to that effect, Joined Cases 73/63 and 74/63 Rotterdam and Putterskoek [1964] ECR 1, at p. 14). Second, even on the assumption that the issue of the enforceability of the decision of 10 September 2008 were distinct from the issue of competence, the latter being the only issue that the Tribunal would be able to raise of its own motion, the applicant’s argument should be analysed as a plea based on matters of law and of fact which came to light in the course of the proceedings, within the meaning of Article 43(1) of the Rules of Procedure, on the occasion of the examination by the Tribunal, of its own motion, of the issue of the competence of the person who adopted the contested decision. Furthermore, the Tribunal would point out that the Commission was informed before the hearing, by the measure of organisation of procedure decided upon by the Tribunal, that the publication of the decision of 10 September 2008 would be at issue. The Commission was thus put on notice to prepare its defence on that point, as, moreover, was revealed both in its written answer to the measure of organisation of procedure and in the observations submitted by its representative at the hearing.
88 The applicant’s argument alleging that the decision of 10 September 2008 is not enforceable against him on the ground that it was not published is also well founded.
89 In that regard, it must be borne in mind that decisions determining the distribution of the powers conferred on the appointing authority are rules on the internal organisation of the institution (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 18) and that, as the Court of First Instance observed in Case T‑76/98 Hamptaux v Commission [1999] ECR-SC I‑A‑59 and II‑303, paragraph 23, neither the provisions of the EC Treaty nor those of the Staff Regulations, in particular Article 2, provide that the publication of such decisions is a condition of their entry into force and, accordingly, of their enforceability.
90 However, in the first place, observance of the principle of legal certainty, whereby an act adopted by the public authorities cannot be enforced against individuals before they have had the opportunity to make themselves acquainted with it (Case 98/78 Racke [1979] ECR 69, paragraph 15; Case 99/78 Weingut Decker [1979] ECR 101, paragraph 3; and Case C‑161/06 Skoma-Lux [2007] ECR I‑10841, paragraph 37), requires that, even in the absence of any express written provision to that effect, decisions relating to the exercise of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority be given adequate publicity according to the rules and forms which it is for the administration to determine.
91 In the second place, it is relevant that the Commission itself endeavours, in principle, to ensure that publicity is given to decisions concerning the exercise of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority, since they are usually published in Administrative Notices. In particular, Decision C (2007) 5730, which was amended by the decision of 10 September 2008, was published in Administrative Notices No 57-2007 of 6 December 2007. In addition, it should be noted that Article 5 of Decision C (2007) 5730, which authorises directors‑general to delegate their powers to subordinate authorities, such as deputy directors-general, directors, heads of unit and heads of sector, provides even that those delegations ‘shall be published in suitable form and brought to the attention of the staff’.
92 In the third place, the Court of Justice has previously referred to the need to ensure that specific publicity is given to decisions relating to the determination of the authorities responsible for the administration of the staff. Thus, in a case in which an applicant challenged the decision whereby the European Parliament, following an internal competition, had appointed an official to a post as head of division and, in order to support his assertion that the Secretary-General of the Parliament had unlawfully appointed the members of the selection board, claimed that the delegation of power conferred for that purpose on the Secretary-General by the Bureau of the institution had not been brought to the knowledge of the staff, the Court held that that delegation of power was ‘legally effective’, since, apart from the fact that it contained a generally recognised division of powers within the institution, it had been notified to the directors-general of the institution, to the chairmen of groups, to the secretariat and to the control bureau, and also to the Staff Committee established under Article 9 of the Staff Regulations, whose duties under that provision are, inter alia, to represent the interest of the staff vis-à-vis their institution and to maintain continuous contact between the institution and the staff (Case 123/75 Küster v Parliament [1976] ECR 1701, paragraphs 6 to 8).
93 More generally, and even though that case-law has not been applied in cases involving decisions relating to the exercise of powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority, the Court of Justice has also held that the principle of legal certainty requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them, since individuals must be able to ascertain unequivocally what their rights and obligations are (Case C‑158/06 ROM-projecten [2007] ECR I‑5103, paragraph 25, and Skoma-Lux, paragraph 38). In Skoma-Lux, paragraphs 33, 34, 36 and 38, the Court held that the requirement for the proper publication of a Community regulation in the official language of the person to whom it is addressed not only had its basis in written provisions, such as Article 254(2) EC or Articles 4, 5 and 8 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952‑1958 (I), p. 59), but also followed from the principle of legal certainty (see also Case C‑345/06 Heinrich [2009] ECR I‑1659, paragraph 44).
94 In the fourth place, the need to ensure that adequate publicity is given to decisions determining the allocation of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority also follows from the rules of sound administration in the management of the staff, as the Tribunal expressly observed in Case F‑89/07 Kuchta v ECB [2008] ECR I‑A‑1‑0000 and II‑A‑1‑0000, paragraph 62.
95 In the present case, it is common ground, first, that the decision of 10 September 2008 was not published in Administrative Notices and, second, that on the date on which the contested decision was adopted it had not been brought to the attention of the staff. Although the Commission maintained, in its answer to the measure of organisation of procedure ordered by the Tribunal, that the communication of 9 September 2008 containing the draft decision amending Decision C (2007) 5730 was made available on the institution’s intranet, it provides no information about the date on which it was placed on the intranet. Nor, in any event, does the Commission establish that the minutes of the meeting of 10 September 2008, at which that draft decision was adopted, had been placed on the intranet before the contested decision was adopted. Thus, on the date on which the contested decision was adopted and notified to the applicant, he was not in a position to have effective knowledge of the content of the decision of 10 September 2008.
96 It should be added, for the sake of completeness, that the obligation incumbent on the Commission to ensure adequate publicity for the decision of 10 September 2008 was imperative in the present case. Although the power to suspend an official was vested, under Decision C (2007) 5730, in the highest authority of the Commission, namely the College of Commissioners, it is common ground that the decision of 10 September 2008 transferred that power to a single person, that is, the Member of the Commission responsible for personnel. A measure adopted by a single person offers the official to whom it is addressed a lower degree of protection than is guaranteed by a measure issued by a collegiate authority, since, by virtue of the deliberations of its members, a collegiate authority is able to take a greater amount of relevant information into consideration. Consequently, since the decision of 10 September 2008 had the effect of reducing the level of protection afforded to officials and thus of affecting their rights, there were even more pressing reasons why it ought to have been given adequate publicity.
97 Last, it would appear that the failure to publish the decision of 10 September 2008 also prevented the administration itself from being able to acquire an adequate knowledge of its own decision. As is apparent from the discussion at the hearing, the Commission adopted on 29 April 2009 a new decision concerning the exercise of the powers conferred on the appointing authority by the Staff Regulations and by the Conditions of Employment on the contracting authority, namely Decision C (2009) 3074 ‘amending Decision C (2007) 5730’. In that decision, which was published in Administrative Notices of 8 May 2009, the Commission, acting as though the decision of 10 September 2008 had never been adopted, decided that the powers conferred on the appointing authority to suspend an official would henceforth be exercised, in the case of officials in grades AD 16 and AD 15 and officials in grade AD 14 in senior positions (directors or equivalent), by the Member of the Commission responsible for personnel and no longer by the College of Commissioners.
98 As the decision of 10 September 2008 is not enforceable against the applicant, he is therefore correct in his submission that the Member of the Commission responsible for personnel lacked competence to adopt the contested decision, which ought to have been taken by the authority designated by Decision C (2007) 5730, in this instance the College of Commissioners.
99 As the plea alleging that the Member of the Commission responsible for personnel was not competent to adopt the contested decision is well founded, the contested decision must be annulled.
Costs
100 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
101 It follows from the grounds set out above that the Commission is the unsuccessful party. Furthermore, the applicant expressly claimed in his pleadings that the Commission should be ordered to pay the costs. As the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the Commission must therefore be ordered to pay the costs of the main proceedings.
102 As regards the costs of the interim measures proceedings, it is common ground that the applicant was unsuccessful in those proceedings. However, given that the Commission did not apply for costs in those proceedings, each party must bear the costs which it incurred in that connection.
On those grounds,
THE TRIBUNAL (First Chamber)
hereby:
1. Annuls the decision of 18 September 2008 whereby the Commission of the European Communities, in application of Articles 23 and 24 of Annex IX to the Staff Regulations of Officials of the European Communities, suspended Mr Wenig for an indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months;
2. Orders the Commission of the European Communities to pay the costs of the main proceedings;
3. Orders the parties to bear their own costs in the interim measures proceedings.
Gervasoni | Kreppel | Tagaras |
Delivered in open court in Luxembourg on 30 November 2009.
W. Hakenberg | | S. Gervasoni |
The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu