JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

2 May 2007

Case F-23/05

Jean-Louis Giraudy

v

Commission of the European Communities

(Officials – Actions – Action for damages – Investigation by the European Anti-Fraud Office (OLAF) – Reassignment – Regulation (EC) No 1073/1999 – Decision 1999/396/EC, ECSC, Euratom – Fault – Damage – Occupational disease – Account to be taken of the benefits provided for under Article 73 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Giraudy seeks annulment of the decision of 21 February 2005 rejecting his complaint of 22 September 2004 and an order for the Commission to pay him damages for the harm he claims to have suffered, assessed at EUR 264 000 for material damage and EUR 500 000 for non-material damage.

Held: The Commission is ordered to pay the applicant damages in the amount of EUR 15 000 by way of compensation for the non-material damage suffered by him in the form of an attack on his reputation and integrity. The remainder of the application is dismissed. The Commission is to bear its own costs and two thirds of Mr Giraudy’s costs. Mr Giraudy is to bear one third of his own costs.

Summary

1.      European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF – Rules for internal investigations adopted by the Community institutions

(European Parliament and Council Regulation No 1073/1999, Art. 5, second para.; Commission Decision 1999/396, Art. 2, first and second paras)

2.      Officials – Non-contractual liability of the institutions – Conditions

3.      Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

4.      Officials – Administration's duty to have regard for the welfare of officials

(Staff Regulations, Arts 7(1), first para., and 25, second para.)

5.      Officials – Administration's duty to have regard for the welfare of officials – Principle of sound administration

(Staff Regulations, Art. 73; European Parliament and Council Regulation No 1073/1999, 10th recital and Art. 8(2))

6.      Officials – Administration's duty to have regard for the welfare of officials

(European Parliament and Council Regulation No 1073/1999, Art. 8(2))

7.      Officials – Actions for damages – Claim for compensation for the harm resulting from the applicant’s illness and from his being invalided out of the service as a result of a breach of administrative duty by the administration

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Arts 19 and 23)

1.      It is patent from the mandatory wording of the second paragraph of Article 2 of Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, which refers on this point to the first paragraph of the same article, that the Secretary-General, the Directors-General and the Heads of Service of the Commission are under an obligation to inform the European Anti-Fraud Office (OLAF) without delay, as soon as they become aware of ‘evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in disciplinary or, in appropriate cases, criminal proceedings’. However, use of the term ‘presumption’ by the legislature necessarily implies that the authorities referred to in that provision make a minimal assessment of the relevance of the evidence of a possible irregularity of which they have become aware and thus confers on them a degree of discretion.

(see para. 98)

2.      Malfunctions in an institution’s internal communication system which might have unjustifiably heightened OLAF’s suspicions of an official, but which had no determinative link of cause and effect with the opening of OLAF’s investigation into that official, in view of the existence of a body of other significant evidence which, taken on its own, justified the opening of such an investigation, do not appear capable of giving rise to a non-contractual liability on the part of the institution for wrongful acts in the performance of duties.

(see paras 109, 111)

3.      The decision to reassign, as a precaution, the official responsible for an administrative unit during an internal investigation opened by OLAF relating to possible irregularities within that unit, as a result of a recommendation of the Director‑General of OLAF that the official should be denied any access to the unit’s offices in that period, in order to ensure the proper conduct of the investigation, is in the interest of the service. Taking account of the broad discretion which the administration has to evaluate that interest, such a decision is not manifestly disproportionate in relation to the objective pursued by the measure, namely to avoid any risk of conflict of interest and to ensure that the investigation was conducted properly. The fact that other options, such as accepting the official’s proposal to place himself on leave or sending him on a mission, might have been equally consistent with the interest of the service while better safeguarding the interests of the person concerned, is not sufficient in itself to render the disputed measure of reassignment disproportionate. That decision also does not infringe the principle of the presumption of innocence, given that, first, it is not intended to penalise the reassigned official, but is a precautionary measure, the duration of which was restricted to that of the investigation, and second, the interest of the service justifies the adoption of a measure intended to ensure the serene conduct of an investigation, likewise where no responsibility is attributed to the official reassigned in relation to the matters which are under investigation.

Lastly, since the legality of a particular measure is to be assessed in relation to the elements of fact and law existing at the date when the measure was adopted, information which was subsequently revealed by the investigation and which exonerated the applicant cannot affect the legality of the reassignment decision.

(see paras 139-146)

See:

T-51/01 Fronia v Commission [2002] ECR-SC I‑A‑43 and II‑187, para. 55; T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I‑A‑157 and II‑767, para. 77; T-339/03 Clotuche v Commission [2007] ECR-SC I-A-2-000 and II-A-2-000, paras 69, 71 and 76; T‑118/04 and T-134/04 Caló v Commission [2007] ECR-SC I‑A‑2-000 and II-A-2-000, paras 109, 113 and 114

4.      The fact that the administration publicly announced at a press conference, before communicating personally to the applicant, an official formerly in charge of a department, that there was no longer anything to prevent the lifting of the precautionary measure of his reassignment adopted in order to ensure the proper conduct of an internal investigation by the European Anti-Fraud Office (OLAF) into possible irregularities in his department, disregards the legitimate interest of the official in being informed directly by the administration, and not by the press, of a crucial development in his professional situation. Such conduct does not respect the balance of reciprocal rights and obligations established by the Staff Regulations in relations between the public authority and public service employees, and, consequently, entails an infringement of the Commission’s duty to have regard for the welfare of the official and a wrongful act in the performance of duties such as to render the institution liable.

(see paras 148-149, 183)

5.      The rule that investigations should be confidential, enounced in broad terms in Article 8(2) of Regulation No 1073/1999 concerning investigations conducted by OLAF, is to be interpreted in its context and, in particular, in light of recital 10 in the preamble to the same regulation, which provides that those investigations must be conducted with full respect for fundamental freedoms. Accordingly, it should not be interpreted as serving solely to protect the confidentiality of information obtained for the purpose of revealing the truth, but should be regarded as also having the objective of safeguarding the presumption of innocence of officials or other servants affected by those investigations, and therefore their reputation. In addition to the specific protection guaranteed by that provision, both the principle of good administration and the duty to have regard for the official’s welfare, as well as the necessary respect for the powers conferred on an independent body such as OLAF for the purposes of an investigation, require the institution to which an official belongs to show the greatest prudence and restraint when giving any publicity to allegations or suspicions of fraud. Those considerations have even more weight, particularly in view of every individual’s right to the presumption of innocence, when no conclusion has yet emerged from an OLAF investigation.

If there are serious accusations reflecting on the professional integrity of an official, it is incumbent on the administration not to give any publicity to the accusations beyond what is strictly necessary, and to prevent an official from becoming the subject of statements which might tarnish his professional integrity. As a general rule, therefore, the administration must both avoid giving the press information which might harm the official in question and take all necessary measures to prevent any form of dissemination within the institution of information which might be defamatory of that official. That being said, it has to be recognised that a culture of accountability has grown up within the Community institutions, responding in particular to the concern of the public to be informed and assured that malfunctions and frauds are identified and, as appropriate, duly eliminated and punished. The consequence of that requirement is that officials and other servants who hold posts of responsibility within a Community administration must take into account the possible existence of a justified need to communicate a degree of information to the public.

Given that there may be such a need, the duty incumbent on the administration to have regard for the welfare of its servants is greater. This imposition of a heightened duty on the administration to have regard for the welfare of its servants in the special context of an investigation is all the more necessary in circumstances where the professional integrity or reputation of individuals is liable to be publicly put in question by the media, thereby aggravating the damage already suffered by them, to point of making such damage irreparable.

As soon as an investigation based on suspicions of fraud is opened, there is likely to be some damage to reputation, particularly if the investigation is the subject of publicity outside the institution. Exoneration of the person concerned on conclusion of an investigation which has been publicised in such a way is rarely sufficient to erase entirely the damage to reputation which the person concerned has suffered. As concerns the non-contractual liability of the Community, compensation is due for the damage engendered by the opening and conduct of an investigation only if the institution in question has committed a wrongful act engaging its liability, regrettable as that may be for the individual who is ultimately exonerated on conclusion of that investigation. Furthermore, when, in addition to such non-material harm, an occupational disease within the meaning of Article 73 of the Staff Regulations is a result of an investigation, that provision allows the official to obtain compensation in the form of a lump sum, without it being necessary to prove any fault on the part of the institution.

(see paras 161-167)

See:

53/72 Guillot v Commission [1974] ECR 791, paras 3 to 5

T-203/95 R Connolly v Commission [1995] ECR II‑2919, para. 35; T-133/02 Chawdhry v Commission [2003] ECR-SC I‑A‑329 and II‑1617, para. 107; T-48/01 Vainker v Parliament [2004] ECR-SC I‑A‑51 and II‑197, para. 125

6.      Measures to inform the public taken by an institution and relating to the reassignment of an officer in charge of an administrative unit in order to ensure the proper conduct of an internal investigation by the European Anti-Fraud Office (OLAF) into possible irregularities in his department, do not infringe the mandatory requirements of confidentiality appropriate to OLAF investigations and are justified in the interest of the service where, in the particular circumstances of the case in question, the loss of confidentiality concerning not only the reassignment decision but also the identity of the reassigned official is not the result of a choice by the institution, but is the inevitable consequence of the nature of the post occupied by the official, which involved regular contact with the press, and of the interest already shown by journalists in the suspicions of irregularities, so that the absence of information would inevitably have fed speculation of various kinds which might harm both the interests of the official and those of the institution.

That institution nevertheless infringes its duty to have regard for the welfare of its servants where it takes the unusual step of issuing its own press release, in addition to the release issued by OLAF announcing the opening of the investigation, the content of which suggests that the official who was reassigned was personally involved in possible irregularities, and where, once he was exonerated, it fails to take corrective measures which might offset the abnormal negative publicity created by dissemination of that press release, thereby failing adequately to take into account the interests of the official as distinct from its own interests and to reduce to the strict minimum the damage done to him by the opening of the investigation.

Such conduct constitutes a wrongful act in the performance of duties such as to render the institution liable. There is a clear and direct causal nexus between that wrongful act and the harm resulting for the official from the damage to his honour and reputation which goes beyond the damage inevitably suffered by an official targeted by an OLAF investigation.

(see paras 169-170, 173, 180, 183, 206)

7.      Claims seeking damages for the material and non-material damage allegedly suffered by an official because of his disease and his consequent retirement on grounds of invalidity as a result of a wrongful act by the administration in the performance of its duties, and in particular for the non-material damage caused by an infringement of the duty to have regard for an official’s welfare which placed the official in a situation of stress and anxiety and, thereby, caused or aggravated harm connected to his disease, must be rejected . The Community judicature is not empowered to determine whether there is a causal link between an official’s conditions of service and an alleged disease, since under Article 19 of the rules on insurance for officials against the risks of accident and occupational disease, the decision as to recognition of a disease as occupational is to be made by the appointing authority, on the basis of the conclusions issued by the doctor(s) appointed by the institutions and, if the official so requires, after consultation of the Medical Committee provided for in Article 23 of those rules. The system established in implementation of Article 73 of the Staff Regulations provides for lump sum compensation in the event of accident or occupational disease, covering both material and non-material damage, without it being necessary for the person concerned to prove any fault on the part of the institution, and it is only when the compensation provided by the staff insurance scheme for the injury suffered by the official is insufficient that the official is entitled to apply for additional compensation.

That conclusion cannot be undermined in a case where the applicant has abandoned the proceedings brought by him under Article 73 of the Staff Regulations to have his disease recognised as occupational, since that abandonment has no effect on the application of the rule of law that the recognition of a disease as occupational in origin falls within the competence of the appointing authority.

On the other hand, claims for compensation for non-material harm consisting in damage to the applicant’s honour and reputation must be considered by the Court, since such harm, not being connected to his disease, cannot be compensated for by means of a lump sum under Article 73 of the Staff Regulations.

(see paras 193-196, 198-201)

See:

169/83 and 136/84 Leussink and Others v Commission [1986] ECR 2801, para. 13; C-257/98 P Lucaccioni v Commission [1999] ECR I‑5251, para. 22

T-165/95 Lucaccioni v Commission [1998] ECR-SC I‑A‑203 and II‑627, para. 74; T-300/97 Latino v Commission [1999] ECR-SC I‑A‑259 and II‑1263, para. 95