JUDGMENT OF THE COURT (First Chamber)

18 November 1999 (1)

(Appeal — Dismissal of application for annulment of a decision ordering removalfrom post — Concurrent disciplinary and criminal proceedings (Fifth paragraphof Article 88 of the Staff Regulations)

In Case C-191/98 P,

Georges Tzoanos, a former official of the Commission of the EuropeanCommunities, residing in Athens (Greece), represented by E. Boigelot, of theBrussels Bar, with an address for service in Luxembourg at the Chambers of L. Schiltz, 2, Rue du Fort Rheinsheim,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (Fourth Chamber) of 19 March 1998 in Case T-74/96 Tzoanos vCommission [1998] ECR I-A-129 and II-343, seeking to have that judgment setaside,

the other party to the proceedings being:

Commission of the European Communities, represented by G. Valsesia, PrincipalLegal Advisor, acting as Agent, with D. Waelbroeck and O. Speltdoorn, of theBrussels Bar, with an address for service in Luxembourg at the office of C. Gómezde la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (First Chamber),

composed of: D.A.O. Edward (Rapporteur), President of the Fifth Chamber, actingfor the President of the First Chamber, P. Jann and M. Wathelet, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 March 1999,

gives the following

Judgment

1.

    By application lodged at the Registry of the Court of Justice on 19 May 1998, MrTzoanos brought an appeal, pursuant to Article 49 of the EC Statute of the Courtof Justice and the corresponding provisions of the ECSC and Euratom Statutes ofthe Court of Justice, against the judgment of 19 March 1998 in Case T-74/96Tzoanos v Commission [1998] ECR-SC I-A-129 and II-343 ('the contestedjudgment‘), in which the Court of First Instance dismissed the action he hadbrought against the Commission's decision of 22 June 1995 to remove him from hispost without loss of his entitlement to a retirement pension and the decision of 19February 1996 expressly rejecting his complaint of 21 September 1995 against thedecision of 22 June 1995.

2.

    It appears from the contested judgment that Mr Tzoanos is a former official of theCommission in Grade A 3 who, from 1 July 1989, had been Head of Unit 3'Tourism‘ in Directorate A 'Business development and improvement of thebusiness environment‘ of the Directorate-General for Enterprise Policy,Distributive Trades, Tourism and Cooperatives (DG XXIII) (hereinafter 'UnitXXIII.A.3‘) (paragraph 1 of the contested judgment).

3.

    Towards the end of 1993, the Directorate-General for Financial Control (DG XX)discovered a number of problems in the management of Unit XXIII.A.3. At thebeginning of 1994 a press article which had appeared in Greece in July 1993concerning the conduct of Mr Tzoanos was brought to the attention of his superiors(paragraph 2 of the contested judgment).

4.

    The appointing authority held an inquiry into Mr Tzoanos's activities within UnitXXIII.A.3 and on 22 December 1994 it referred five complaints against MrTzoanos to the Disciplinary Board, namely:

—    that he '[had] exercised and continue[d] to exercise unauthorised outsideactivities‘;

—    that he had 'failed to observe his duty of discretion in that, withoutinforming his superiors, he had [had] his residence at the same address asthat of an outside firm which regularly participated in projects funded or tobe funded by the Commission and [had] publicly criticised a national bodyinvolved in the field of tourism‘;

—    that he had 'provided services to the Commission in the field of hisprofessional activities on behalf of persons or bodies outside the institutionin such a way as to have compromised his independence in the performanceof his duties as Head of Unit within the Commission‘;

—    that he had 'prepared for persons or bodies outside the institutiondocuments ultimately destined either for the Commission, and contrary toits interests, or for outside partners in projects funded by the Community‘.

—    that he had 'committed administrative irregularities and been guilty ofbudgetary and financial mismanagement in the performance of his duties asHead of the ”Tourism” Unit‘.

5.

    On 5 April 1995 the appointing authority sent an additional report to theDisciplinary Board (paragraph 15 of the contested judgment).

6.

    On 23 May 1995 the Disciplinary Board delivered a unanimous reasoned opinionrecommending that the appointing authority should impose on Mr Tzoanos thedisciplinary measure referred to in Article 86(2)(f) of the Staff Regulations ofOfficials of the European Communities ('the Staff Regulations‘), namely removalfrom post without loss of entitlement to a retirement pension. That opinion wasnotified to Mr Tzoanos on 1 June 1995 (paragraph 16 of the contested judgment).

7.

    On 12 June 1995 Mr Tzoanos was heard in accordance with the third paragraphof Article 7 of Annex IX to the Staff Regulations (paragraph 17 of the contestedjudgment).

8.

    On 22 June 1995 the appointing authority decided to uphold the five complaintswhich it had referred to the Disciplinary Board (see paragraph 4 of this judgment),since it agreed with the Disciplinary Board that the charges against Mr Tzoanoswere substantiated by incontrovertible evidence and to a large degree admitted by

him, and to impose a disciplinary measure referred to in Article 86(2)(f) of theStaff Regulations, namely removal from post without reduction or withdrawal ofentitlement to retirement pension ('the contested decision‘). That decision wasnotified to Mr Tzoanos on 23 June 1995 and took effect on 1 August 1995(paragraph 18 of the contested judgment).

9.

    By note of 21 September 1995, which was registered at the Secretariat-General ofthe Commission on 25 September 1995, Mr Tzoanos submitted a complaint underArticle 90(2) of the Staff Regulations, which was expressly rejected by decision of19 February 1996 (paragraph 19 of the contested judgment).

10.

    It was against that background that, by application lodged at the Registry of theCourt of First Instance on 17 May 1996, Mr Tzoanos brought an action for theannulment of the contested decision and of the express rejection of his complaintof 21 September 1995 against the decision of 22 June 1995.

The contested judgment

11.

    By the contested judgment, after examining the pleas in law relied on by MrTzoanos, the Court of First Instance dismissed the application in its entirety.

12.

    For a fuller account of the legal background and facts of the case, reference shouldbe made to the contested judgment.

13.

    The appeal is based on infringement of Community law, in particular:

—    infringement of Article 33 of the EC Statute of the Court of Justice, whichprovides that judgments are to state the reasons on which they are basedand which, pursuant to Article 46 of that Statute, is applicable to the Courtof First Instance. Mr Tzoanos claims that the obligation to state reasonsimplies, in particular, that the reasons given must be legally permissible, thatis to say adequate, relevant, not vitiated by any error of law or of fact andnot contradictory;

—    infringement of the Staff Regulations, specifically Articles 12, 13, 14, 17, 21,first and second paragraphs, 25, 87, second paragraph, and 88, fifthparagraph, and Annex IX to the Staff Regulations, more particularlyArticles 1, 2, 3, 7, second paragraph, and 11 thereof;

—    infringement of general principles of Community law, namely the principlesthat the rights of the defence must be observed, the right to an inter parteshearing and an impartial court (and of Article 6 of the EuropeanConvention on Human Rights and Fundamental Freedoms), legal certainty,good faith, protection of legitimate expectations, the duty to have regard forthe welfare and interests of officials and the principle that all administrative

measures must be based on legally permissible grounds, that is to saygrounds which are relevant and not vitiated by any error of law and/or offact.

14.

    Mr Tzoanos's arguments may be summarised under three headings:

—    application of the fifth paragraph of Article 88 of the Staff Regulations;

—    application of the Staff Regulations, in particular Article 21, with regard toMr Tzoanos's financial obligations;

—    observance of the rights of the defence concerning, in particular, access todocuments.

15.

    It is appropriate to examine, first, the appellant's arguments regarding theapplication of the fifth paragraph of Article 88 of the Staff Regulations, whichallege that the Court of First Instance misapplied that provision. First of all theCourt must establish that that article is applicable to the present case.

16.

    The first and fifth paragraphs of Article 88 of the Staff Regulations are worded asfollows:

'Where an allegation of serious misconduct is made against an official ... [theappointing authority] may order that he be suspended forthwith.

...

Where, however, the official is prosecuted for those same acts, a final decision shallbe taken only after a final verdict has been reached by the court hearing the case.‘

17.

    As regards application of that provision, the Court of First Instance first examinedits purpose, in paragraphs 33 and 34 of the contested judgment. Then, inparagraph 35, it held that it followed from the scheme of Article 88 that it was forthe official concerned to provide the appointing authority with sufficientinformation to enable it to determine whether the matters of which he was accusedin disciplinary proceedings were at the same time the subject of criminalproceedings against him. The Court considered that in order to meet thatobligation the official concerned had, as a rule, to show that criminal proceedingshad been initiated against him while he was subject to disciplinary proceedings. The Court observed that it was only where such criminal proceedings had beeninitiated that the matters to which they related could be identified and comparedwith the matters in respect of which the disciplinary proceedings had beeninstituted so that it could be determined whether they were the same.

18.

    In Mr Tzoanos's case the Court of First Instance held, in paragraphs 36 and 37 ofthe contested judgment, that the evidence before it showed that on the date onwhich the contested decision had been adopted no criminal proceedings had beeninitiated against the applicant.

19.

    Then, in paragraph 38 of the contested decision, the Court of First Instanceconsidered that in so far as Mr Tzoanos was at that time the subject of inquiriesliable to lead to criminal proceedings he had to be allowed, in accordance with theratio legis of the fifth paragraph of Article 88 of the Staff Regulations, to showspecifically that a final decision on his case in disciplinary proceedings was capableof affecting his position in any criminal proceedings to which the inquiries mightlead.

20.

    The Court of First Instance considered, in paragraph 39 of the contested judgment,that it was clear from the documents before it that Mr Tzoanos had not preciselyidentified matters capable of being classified as the 'same acts‘ in respect of whichhe was subject simultaneously to disciplinary proceedings which had led to theadoption of the contested decision and to criminal proceedings. In paragraph 208of the contested judgment the Court of First Instance concluded that Mr Tzoanoshad also failed to demonstrate the existence of such matters in the context of theproceedings before it.

21.

    Thus it follows from the contested judgment that the Court of First Instanceconcluded that the fifth paragraph of Article 88 of the Staff Regulations was notapplicable for two reasons. First, on the date on which the contested decision hadbeen adopted no criminal proceedings had been initiated against Mr Tzoanos. Second, in so far as Mr Tzoanos had referred to the existence of criminal inquiries,he had not identified, either in the disciplinary proceedings leading to the adoptionof the contested decision or in the proceedings before the Court of First Instance,any matters forming the subject of disciplinary proceedings and at the same timethe subject of criminal proceedings.

22.

    In taking the view that it was for Mr Tzoanos to provide the appointing authorityand the Court of First Instance with the necessary evidence to conclude that he wassubject at the same time to disciplinary proceedings and to criminal proceedingsrelating to the same matters, the Court of First Instance did not commit an errorof law.

23.

    The finding of the Court of First Instance that Mr Tzoanos had not provided thenecessary evidence in that regard is a finding of fact which comes within theexclusive jurisdiction of the Court of First Instance and cannot be called intoquestion in the context of an appeal (see, to this effect, Case C-283/90 P Vidrányiv Commission [1991] ECR I-4339, paragraph 12, and Case C-53/92 P Hilti vCommission [1994] ECR I-667, paragraph 10).

24.

    Since the conditions governing the application of the fifth paragraph of Article 88of the Staff Regulations are not satisfied in this case, there is no need to considerthe other arguments which Mr Tzoanos has put forward on this point.

25.

    Secondly, the arguments concerning infringement of the Staff Regulations, inparticular Article 21, must be examined.

26.

    Mr Tzoanos claims, first, that since he was not the authorising officer for paymentshe could not be held responsible for the budgetary and financial monitoring of aproject. Secondly, he maintains that the contested judgment contains a manifesterror of law. He claims that under the first paragraph of Article 21 of the StaffRegulations he can only be held responsible, where appropriate, for theperformance of his specific duties, which did not consist in the control and financialmonitoring of projects. He considers that responsibility for mismanagement of theresources of the 'Tourism‘ Unit lay with the Director-General, not with himself.

27.

    As regards the first of these arguments, it is clear, from paragraphs 202 and 203 ofthe contested judgment, that the Court of First Instance considered that even if MrTzoanos was not formally an authorising officer for payments he was none the lessunder an obligation, as Head of Unit XXIII.A.3, to effect a preliminary verificationof the merits of applications for payment submitted by recipients of subsidiesgranted by decision of DG XXIII.

28.

    As the Advocate General observed in point 60 of his Opinion, in reaching theconclusion that the deficiencies cited fell within Mr Tzoanos's responsibilities,irrespective of whether he was the authorising officer for payments, the Court ofFirst Instance made a finding of fact which cannot be reviewed in an appeal.

29.

    The Court must therefore reject Mr Tzoanos's argument that since he was not theauthorising officer for payments he could not be held responsible for them.

30.

    Mr Tzoanos's second argument, concerning the application of Article 21 of theStaff Regulations, must also be rejected. In ascertaining the precise scope of thetasks entrusted to Mr Tzoanos and defining his responsibility in terms of thosetasks, the Court of First Instance fully complied with the requirements of thatprovision.

31.

    Lastly, the Court must examine Mr Tzoanos's arguments concerning observance ofhis rights of defence. He claims that the judgment should be set aside on theground that it misapplied the principles of audi alteram partem, equality of armsand the obligation to state reasons.

32.

    It is apparent from paragraph 329 of the contested judgment that the Court of FirstInstance concluded from the fact that Mr Tzoanos had not responded at thehearing to the Commission's statements to the effect that he had had access, during

the disciplinary proceedings, to the file which had been available to the DisciplinaryBoard when it delivered its opinion and to the appointing authority when itadopted the contested decision, that the principle of equality of arms laid down inthe case-law had been observed. The Court further held that Mr Tzoanos hadbeen able to acquaint himself with all the facts on which the contested decision wasbased in sufficient time to submit his observations. The Court also observed thatalthough the applicant had to be recognised as entitled to access to documentsother than those communicated in the course of the disciplinary proceedings, theexercise of that right was not such as to affect the findings established and,accordingly, to show that there had been a breach of Mr Tzoanos's rights ofdefence.

33.

    Mr Tzoanos claims that the Court of First Instance wrongly concluded that he hadhad access to the file which had been available to the Disciplinary Board when itdelivered its opinion and to the appointing authority when it adopted the contesteddecision. He also disputes the Court's finding, that he had been able to acquainthimself with all the facts on which the contested decision was based in sufficienttime to submit his observations.

34.

    In that regard, it should be pointed out that, according to the principle that therights of the defence must be observed, an official must have the opportunity tocomment on every document which the institution intends to use against him (see,in particular, Vidrányi, paragraph 20). Where an official is not given such anopportunity the undisclosed documents must not be taken into consideration asevidence. However, the exclusion of certain documents used by the Commissionis of no significance except to the extent to which the Commission's objection canbe proved only by reference to those documents (Case 107/82 AEG v Commission[1983] ECR 3151, paragraphs 24 to 30).

35.

    In accordance with that case-law, the Court of First Instance considered whetherthe non-disclosure of the documents requested could have influenced the coursetaken by the proceedings and the content of the contested decision to Mr Tzoanos'sdetriment. It concluded that the exercise of the right to have access to documentsother than those communicated in the course of the disciplinary proceedings wasnot such as to affect the findings established, since these were the clearconsequence of the statements of the parties and the documents to which MrTzoanos had had access during the disciplinary proceedings. Furthermore, theCourt emphasised, in paragraph 329 of the contested judgment, that the documentsto which Mr Tzoanos had not had access were not of such a kind as to show thathe was not responsible for the budgetary and financial monitoring of the projectssubsidised in the tourism sector and that his powers had been misused by hissuperiors without his knowledge. The Court also considered that none of thedocuments produced by the Commission in answer to the written questions put bythe Court enabled Mr Tzoanos to deny that he did in fact participate in thebudgetary and financial monitoring of the projects in issue.

36.

    The findings of the Court of First Instance in this regard form part of anassessment of the facts which cannot be called into question in an appeal. Sincethe Court of First Instance's approach is consistent with the case-law of the Courtof Justice, the appellant's arguments on that point must be rejected.

37.

    The Court of Justice must therefore consider the arguments which Mr Tzoanosraised against paragraphs 266, 277 and 298 of the contested judgment. Hemaintains that it follows from the file that, in the case of the IFTO, IERAD andBDG projects, the appointing authority had put forward no specific charge and thatthe Court of First Instance took it upon itself to formulate such a charge againsthim. Mr Tzoanos considers that the Court thus failed to fulfil its obligation toremain impartial.

38.

    Before the Court of First Instance Mr Tzoanos contended that the charges againsthim in the context of those projects were not to be found in the contested decision,which should therefore be annulled for failure to state reasons. The Court of FirstInstance rejected that argument.

39.

    In this case the complaint raised by Mr Tzoanos is based on the claim that theCourt of First Instance sought information in the reports of DG XX to fill the gapsin the reasoning of the contested decision. The Court must therefore examine theapproach which the Court of First Instance adopted in rejecting Mr Tzoanos'sarguments.

40.

    It is clear from the contested judgment that, in the light of Mr Tzoanos'sallegations, the Court of First Instance examined the contested decision in orderto ascertain the specific charges against him in the relevant grounds of thatdecision.

41.

    As regards the IFTO and IERAD projects, and also the BDG project, referred toin paragraphs 265, 277 and 297 respectively of the contested judgment, the Courtof First Instance first referred to the contested decision. In the absence of furtherindications in that decision, the Court decided that it was necessary to examine thespecific DG XX report to which the contested decision referred.

42.

    As regards the IFTO and BDG projects (see paragraphs 266 and 298, respectively,of the contested judgment), the Court of First Instance identified two charges, inrespect of each of these projects, specifically concerning Mr Tzoanos.

43.

    As regards the IERAD project, the Court of First Instance considered that it wasapparent from the specific report that the irregularities described in the section onGreek involvement in the project were more specifically attributable to MrTzoanos, even though he was not named. The Court then found that, havingregard to the information provided by that report, the content of the decision

expressly rejecting his complaint and Mr Tzoanos's reactions, as set out in hispleadings, four specific charges against him could be made out.

44.

    In paragraph 280 of the contested judgment, the Court of First Instance alsopointed out that the twenty-seventh recital in the preamble to the contesteddecision cited the IERAD project and on that occasion referred to the specificreport of DG XX relating to that project, which had been brought to Mr Tzoanos'sattention. The Court also referred to the twenty-eighth recital and observed thatthat recital, which was couched in general terms, clarified the irregularities foundin the various projects referred to in the preceding recital. The Court alsoobserved that the Commission had specified its particular charges relating to theIERAD project in its decision expressly rejecting the complaint.

45.

    It is therefore evident that, contrary to the arguments put forward by Mr Tzoanos,the Court of First Instance merely ascertained the particular charges against himand did not substitute its own reasoning for the Commission's, since all the chargesupheld against Mr Tzoanos were contained in the reports to which the contesteddecision expressly referred.

46.

    Mr Tzoanos's arguments in that regard are therefore unfounded.

47.

    In those circumstances, it follows from the foregoing that the appeal must bedismissed.

Costs

48.

    Under Article 69(2) of the Rules of Procedure, which applies to the appealprocedure pursuant to Article 118, the unsuccessful party is to be ordered to paythe costs if they have been applied for in the successful party's pleadings. Since theCommission has requested that Mr Tzoanos be ordered to bear the costs andMr Tzoanos has been unsuccessful, he must be ordered to pay the costs of thisappeal.

On those grounds,

THE COURT (First Chamber)

hereby:

1.    Dismisses the appeal;

2.    Orders Mr Tzoanos to pay the costs of this appeal.

EdwardJann Wathelet

Delivered in open court in Luxembourg on 18 November 1999.

R. Grass

L. Sevón

Registrar

President of the First Chamber

1: Language of the case: French.