C-18/65

3. Misuse of powers — Proof

1. For disciplinary measures the grounds of to justify the inadequacy of the state­­­­­ complaint based on the conduct of the ment of reasons therefor, since the official concerned must be indicated, at measure must remain confidential. least in brief, to enable the Court to 2. Transfer of an official in the interests of exercise its power of review, in particular the service cannot constitute an act with regard to the seriousness of the adversely affecting him and falls within offence. the discretionary powers of the admin­­­­­ Oral communication to the official con­­­­­ istration, which may arrange its depart­­­­­ cerned of the complaints alleged against ments and move its staff as required for him cannot be deemed to supplement the the performance of the tasks assigned to statement of reasons for a disciplinary it. However, a transfer may amount to a measure since the Court cannot take it misuse of powers if it appears, on the into account in assessing the considera­­­­­ basis of objective, relevant and consis­­­­­ tions by which the administration was tent facts, to have been undertaken for guided in its actions. purposes other than those stated. Any concern on the part of the admin­­­­­ istration to safeguard the reputation of an 3. Misuse of powers must be proved on the official who has been subjected to a basis of objective, relevant and con­­­­­ disciplinary measure cannot be invoked sistent sources of information.

In Joined Cases 18 and 35/65

MAX GUTMANN, an official of the EAEC, represented by Ernest Arendt, avocat- avoué, with an address for service in Luxembourg at 6 rue Willy-Goergen,

— the annulment of a decision of the Commission of 5 February 1965, notified on 18 February 1965, dismissing a complaint by the applicant against two previous decisions relating to his suspension and transfer;

— the annulment of Vacancy Notice No V/IS/40/65, of a decision of the Com­­­­­ mission of 20 and 21 January 1965 ordering that an inquiry 'within the disci­­­­­ plinary sphere' be continued, and of a decision of the Commission of 13 May 1965 suspending a final decision on the disciplinary measures pending the judgment of the Court on the first application for annulment;

— damages for non-material injury allegedly suffered by the applicant,

THE COURT (First Chamber)

composed of: L. Delvaux, President, A. Trabucchi and R. Lecourt (Rapporteur), Judges,

Advocate-General: K. Roemer

Attached to this letter you will find copies of of the service, and to appoint him to the the relevant documents in the matter for vacant post of Principal Administrator inclusion in the official's personal file. A 5-A 4 in the library of the Information and I have taken the administrative steps Documentation Centre as from 16 Decem necessary to avoid a recurrence of such ber 1964' (minute of 14 December 1964), the events and, on consideration, I do not think vacancy notice for the post in question as things are at present that a transfer is having appeared on 9 December 1964.

(1) Complaints about Mr Gutmann's run its meeting on 9 December 1964 has decided ning of the department and in particular to transfer you in the interests of the service his conduct as Head of Division in by appointing you to a post of Principal relation to his staff; Administrator in the Directorate for Dis (2) Allegations that Mr Gutmann was semination of Information, in the library misusing the staff and facilities of service. The date on which you are to com

The main camera, Mr Mercereau having told him that points covered in this hearing were those the other points would not be pressed. made during the interview of 25 September On the same day (25 September 1964) the 1964. Director-General at the JNRC decided to On 5 January 1965, the applicant lodged an suspend Mr Gutmann on full pay under the official complaint with the President under first paragraph of Article 88 of the Regula Article 90 of the Regulations, in which he

December 1964 which I delivered to you in On 30 September 1964, the 258th meeting of person, you are requested to present your the EAEC Commission approved the self to Mr Suenner on Monday 25 January decision to suspend Mr Gutmann and at 9 a.m. to take up your new post.' ordered an inquiry to be held at the request On 18 January 1965 Mr Funck sent to the of the Director of the JNRC, Ispra, 'on the Commission the following note concerning ground of certain irregularities which have Mr Gutmann's official position: been established and of a complaint lodged '1. Acting on the instructions of the Com by a Head of Division'. mission and in accordance with the On 9 December 1964 the Commission requirements of Article 87 of the Regula decided, at its 268th meeting, to 'transfer tions, I interviewed Mr Gutmann on 22 Mr Gutmann to another post in the interests December 1964 assisted by Mr Prelle of

the Legal Department and Mr Bourgeois Gutmann, the institution's admin of the Directorate of Personnel and, at istration has been considering the the request of Mr Gutmann, in the pre possibility of a transfer; sence of Mr Caprioglio. I informed Mr — the reprimand issued on 3 July 1964 Gutmann of the facts giving rise to the contributed to undermining Mr Gut interview. During the interview he denied mann's reputation as Head of Divi the substance of some of the facts and sion; disputed the irregularity of the rest. — from all the information gathered It therefore seems, on the facts available, since then, both from Mr Gutmann's that two courses of action are open to the colleagues and from various members Commission: of the staff" of the institution, it ap — either it can continue its investigation pears that the nature of Mr Gut of the matter, bearing in mind that it mann's relationship with his staff has still not been possible to investi

2. In any event the Commission, acting in mann be lifted as from the date when the interests of the service, has already he commences his duties in Brussels; settled Mr Gutmann's official position — his complaint be dismissed on the by deciding to transfer him to the Direc above grounds.' torate for Information Services in Brus On 20 and 21 January 1965 the EAEC Com sels. This occasioned a complaint to the mission held its 272nd meeting, the minutes Commission by Mr Gutmann under of which contain the following passage: Article 90 of the Regulations seeking 'After considering a note of 18 January cancellation of his transfer to Brussels from the Directorate for Personnel and and claiming that the transfer was a Administration the Commission approved punitive measure directly connected the lifting of the suspension imposed on Mr with the decision to suspend him. It Gutmann with effect from the time when he should be noted that the institution's takes up his duties in Brussels. medical adviser has told me that Mrs It dismissed the appeal lodged by Mr Gut Gutmann's doctor has informed him of mann against his transfer to the library in the possible effects which the date of Mr the interests of the service and decided that Gutmann's assumption of duty may the investigation with regard to disciplinary have on his wife's health. proceedings should continue. Mr Gutmann's complaint does not seem On 3 February 1965 a note was sent from justified in view of the facts, which may Mr Ritter at Ispra to Mr Funck, saying in be summarized as follows: particular: — since early July 1964 when it was 'The investigations I have been able to carry taking the official action necessary to out have shown that Mr Gutmann's con prevent a recurrence of certain con duct vis-à-vis his staff and in the performan duct which had already led to a ce of his duties makes it impossible for him reprimand's being addressed to Mr to continue to work at Ispra.

ministration, Directorate of Personnel, Mr On 17 March 1965 Mr Gutmann sent the Funck, in which the EAEC Commission following note to Mr Funck: dismissed his appeal of 5 January 1965 in ‘... I request that a full inquiry with evidence the following terms: from both sides be held as soon as possible ‘In pursuance of Article 6 of the instruc­­­­­ into the grounds for my suspension and tions set out in Circular No 7/64, I have to transfer, its terms of reference being deter­­­­­ inform you that at its meeting of 20 and 21 mined by the administration, and guaran­­­­­ January 1965 the Commission considered teeing me complete objectivity and the the complaint by you referred to above. fullest opportunity to state my defence. It has decided that the complaint cannot be My prestige and reputation have been entertained for the following reasons: seriously prejudiced by the publicty given As regards your transfer: to my suspension both in the note to all the The Commission has confirmed the deci­­­­­ staff at the Ispra Centre (EUR/CIS/1282/64 sion, as stated in the note which I sent to you of 13 October) and in a statement made by a on 22 December 1964, to transfer you in the spokesman of Euratom ('Telegraaf’ of 13 interests of the service. The Commission October 1964). considers that the objections which you have I am obliged, therefore, to make the above expressed as regards the decision to transfer request, which will be followed by an appeal you are not borne out by the facts on which to the Court in accordance with Article 91 they are based; these may be summarized as of the Staff Regulations if no action is taken follows: by 29 March 1965.' — since early July 1964, when it was taking On 30 March 1965 Mr Gutmann lodged the official action necessary to prevent a Application No 18/65 for the annulment of recurrence of certain conduct which had the decision of the Commission of 5 Febru­­­­­ already given rise to a reprimand's being ary 1965, notified on 18 February 1965, addressed to you, the administration of together with a request for damages. the institution has been considering the On 13 April 1965 Mr Gutmann received possibility of a transfer; from Mr Funck the following reply to his — the reprimand issued on 3 July 1964 con­­­­­ note of 17 March: tributed to undermining your reputation 'In your note referred to above you request­­­­­ as Head of Division; ed that an inquiry be held with evidence — from all the information gathered since from both sides into the grounds for your then, from your colleagues as well as suspension and transfer, "on terms of from various members of staff at Ispra, reference determined by the administra­­­­­ it appears that the nature of your rela­­­­­ tion."

least questionable that it does in fact refer sion of the EAEC of 5 February 1965, to you. notified to the applicant on 18 Feb­­­­­ As for the note sent to all the staff at Ispra ruary 1965, on the ground of illega­­­­­ (EUR/CIS/1282/64 of 13 October 1964) it lity, excess of powers, misuse of pow­­­­­ contains no reference prejudicial to your ers, violation of the rights of the prestige or your reputation for it states, on defence, infringement of Articles 25, the contrary, that suspension "does not 29, 86 and 88 of the Regulations; III — Declare that the defendant is bound itself constitute a punishment".' Meanwhile on 24 March 1964 the vacancy to make good the non-material and notice for post No V/IS/40/65 appeared, material damage suffered by the dated 11 March 1965, concerning a post of applicant owing to the illegality of the contested decision and order the Principal Administrator in career bracket A5—A4 at Ispra (Press and Public Relations defendant to pay such damages and interest as the Court sees fit; Division), the post held by Mr Gutmann IV — Order the defendant to produce: prior to his transfer. 1. The applicant's original personal On 13 May 1965 the Commission of the file in accordance with the terms EAEC adopted the following decision: of the final paragraph of Article 26 'The Commission has decided in view of the of the Staff Regulations; similarity of subjectmatter between the case 2. The minutes of the inquiry referred pending before the Court of Justice and the to in the decision to suspend him matter in which you stated your case to me dated 25 September 1964; on 22 December 1964, to postpone a 3. The minutes of the administrative decision in the disciplinary proceedings in inquiry concerned with the deci­­­­­ the abovementioned matter until the Court sion; has given its judgment in the appeal which 4. The minutes of the Commission's you have brought.' meetings of 9 December 1964, 20 This decision was communicated to Mr and 21 January 1965, with all the Gutmann in a letter of 25 May 1965 signed documents, reports and other by Mr Funck. material considered by the Com­­­­­ On 16 June 1965 Mr Gutmann lodged a mission at its meetings, in so far as triple application for the annulment of: they concern the applicant; 5. The minutes of the hearing of the — Vacancy Notice No V/IS/40/65; applicant conducted by Mr Van — the decision of the Commission of 20 and der Valk on 25 September 1965 21 January 1965 in so far as it decided to and by Mr Funck on 22 December continue the investigation with regard to 1964; disciplinary proceedings; 6. The minutes of the administrative — the decision of the Commission of 13 inquiry and the hearings of the May 1965 to postpone a decision in the applicant prior to the disciplinary disciplinary proceedings until Judgment action taken on 3 July 1964; had been given by the Court in Case 18/65. V — Place on record the fact that the

clusions in the application: the hearing on the substance of the application, order the defendant to — place on record the fact that the defen­­­­­ answer the following questions: dant produces the documents requested by the applicant at Nos 1, 3, 4 and 5 of 1. What are the alleged facts which constituted the basis for the deci­­­­­ the abovementioned passage in the con­­­­­ clusions; sion to suspend the applicant — place on record the fact that no 'minutes' taken on 25 September 1964? of the inquiry mentioned at point 2 exist; 2. When and how did these facts — declare that there is no ground for come to the notice of the author­­­­­ ordering production of the documents ities? (represented under No 6) which preceded 3. Are these facts merely "alleged" or the reprimand of 3 July 1964, as this has proof of them been adduced? does not concern the dispute; 4. What are the consequences en­­­­­ subject to the usual reservations.’ visaged by the Commission's deci­­­­­ In his reply the applicant claims that the sion of 30 September 1964 (state­­­­­ Court should: ment of defence, Schedule 2 ter) ‘I — Order that document No 123 (file according to which Mr Van der VIII) be withdrawn from his personal Valk is to continue his inquiry and file on the ground that it lacks the report to the Commission as soon applicant's signature required by as possible? Article 26 of the Regulations; 5. What are the consequences en­­­­­ visaged by the Commission's deci­­­­­ II — Preliminary requests: sion of 20 and 21 January 1965 (statement of the defendant, Sched­­­­­ A — Request for the production of docu­­­­­ ule 2 bis) to the effect that 'the ments: inquiry within the disciplinary Before proceeding any further with sphere should be continued'? the case and before commencement of the hearing on the substance of the 6. Is the inquiry within the dis­­­­­ application, declare that the defen­­­­­ ciplinary sphere now complete? If dant must produce the following not, what is the approximate date documents and material: by which the Commission thinks 1. The minutes of the administrative it can bring this disciplinary in­­­­­ quiry to a close? inquiry and the hearings of the applicant which preceded the dis­­­­­ 7. Why was the transfer decided upon ciplinary action of 3 July 1964, on 9 December 1964 and originally together with the file of the entire fixed for 16 December 1964 post­­­­­ disciplinary proceedings; poned to 25 January 1965?

of the principle that both parties must (a) Declare that no proof of "fresh be heard and of the rights of the lapses" brought to the defendant's defence and that the circumstances notice early in December 1964 and did not ensure their objectivity and leading the defendant to the con­­­­­ veracity; clusion that the applicant's con­­­­­ Alternatively: duct in the department made it Place on record that the applicant impossible for him to continue in formally contests the facts alleged his post, has been adduced; against him in these statement of third (b) Declare that the facts which led to parties; allow him to bring evidence the decision to transfer him are to refute them; identical with those alleged against Place on record that the applicant him as the ground for his suspen­­­­­ does not accept as a valid and true sion; account of the interview held on 25 (c) Declare that the transfer in the September 1964 that drawn up by Mr interests of the service consequent Van der Valk exclusively and without upon the alleged breaches of con­­­­­ any prior notification; place on record duct was decided upon without that the applicant had no knowledge the applicant's having been heard of this document until he read the beforehand; statement of defence lodged on 30 As a consequence, annul the de­­­­­ April 1965; cision to transfer him: — for infringement of Articles 4, B — As regards the suspension: 24, 25, 45(2), 86 (3) and 87 of (a) Declare that the administration had known of the "serious matters the Staff Regulations; — for being incompatible with alleged" against the applicant the suspension still in force on since before 3 July 1964, the date 9 December 1964; of the reprimand, and that these — for infringement of the rights are therefore covered by that of the defence; reprimand; — for infringement of the general (b) Hold that no measure of inquiry duty to assist officials, keep in order to clarify the "serious them informed, and have matters alleged" was adopted, regard to their personal cir­­­­­ either between 3 July 1964 and 25 cumstances; September 1964, the date of the suspension, or after 25 September D — As regards the application for dama­­­­­ 1964; ges for a wrongful act or omission: Accordingly, declare that this Declare that the defendant's behav­­­­­ "allegation of serious matters" iour towards the applicant amounts to has no genuine proof or indication a series of wrongful acts or omissions of proof to support it; and that the defendant is bound to (c) Declare that between 3 July 1964, compensate him for the non-material the date of the reprimand, and 25 and material damage thus caused; September 1964, the date of the Order the defendant to pay such

damages and interest as the Court 2. Declare this application admissible; sees fit to award; 3. On the substance, declare it well- founded; IV — As to costs: (a) Accordingly, annul Vacancy Notice V/IS/40/65 concerning the vacant Order the defendant to pay the costs of the post of Principal Administrator in application; career bracket A5—A4 at Ispra (Press and Public Relations Divi V — Application for cases to be joined: sion), following the annulment of the Order the present application and that decision of transfer in Case 18/65; lodged by the applicant on 16 June 1965 (b) Annul the decision of the Commis which appears on the Register as Case No sion of the European Atomic Energy 35/65 to be joined on the ground of similar Community of 20 and 21 January ity of subject-matter.' 1965, and the decision of the Com In its rejoinder the defendant contends that mission of the EAEC of 13 May the Court should: 1965, on the ground that they in ‘Find for the conclusions set out in its state fringe Articles 88 and 25 of the Staff ment of defence; Regulations, and for misuse of Declare that the preliminary requests made powers; by the applicant are neither admissible nor (c) Declare that the said decisions of 20 relevant; dismiss them and proceed with the and 21 January and 13 May 1965 oral arguments; constitute a wrongful act or omis Declare that the information contained in sion; documents Nos 3, 10, 14, 15, 16, 17, 18a, order the defendant to pay the appli 18b and 18c, annexed to the statement of cant damages as settled by the Court, defence, was properly obtained, no rule that as compensation for the non- both parties must be heard nor any right of material damage caused to him; the defendant being involved where an 4. Order the defendant to pay all the costs of institution is collecting information from the application.' within its own departments on the running The defendant contends that the Court of the latter for the purposes of administra

ber 1964 and the transfer on 9 February 1965, which were not set out in the original application and for which the time-limit for A — The legality of the Commission's deci bringing an appeal imposed by Article 91 of sion of 5 February 1965, notified on 18 the Staff Regulations has expired; February 1965, rejecting the appeal Subject to the usual reservations.' made by Mr Gutmann on 5 January 1965 against his suspension and transfer B — In Case 36/65

JUDGMENT OF 5. 5. 1966 — JOINED CASES 18 AND 35/65

If this had to be taken in order 'to clarify the is not so, he is unaware of the fresh mis facts.' demeanour alleged against him; any such It recalls that on the day the measure was would in any case be difficult to prove, he adopted it was explained to the applicant claims, bearing in mind the dates on the by the Head of the Security Service. various documents contained in the file, and the truth of the allegation would not be (b) Complaint of infringement of Article apparent unless the file of the disciplinary 88 of the Staff Regulations proceedings concerning the reprimand were first consulted. The applicant claims that the suspension The defendant replies that there are two was in reality a disciplinary measure, and distinct measures and that the facts alleged that this was proved by the facts set out in in each instance are not the same, as the the file (lack of objectivity in the inquiry). Commission did not maintain in the dis He stresses that the two conditions imposed ciplinary proceedings its allegations of for all disciplinary proceedings were not abuse of authority as motivating the repri satisfied: serious misconduct was not mand. established, nor could it be, owing to the suspension of the disciplinary proceedings 2.

the rule non bis in idem. ment that the measure adopted does not in It refers to the requirements of the interests itself constitute disciplinary action. of the service as described in the letter from Lastly, it explains that the spokesman, Mr Funck to the applicant of 19 February whose statement could be taken as more or 1965. less favourable by his hearers, could not have intended replying to the reference in (b) Complaint of infringement of Article the papers, since the article complained of 88 of the Staff Regulations itself referred to the spokesman's state

GUTMANN v COMMISSION

(e) Complaint of infringement of Article provision prevents the necessary adminis 110 of the Staff Regulations and of trative, as opposed to disciplinary, measures the provisions concerning vacancy from being taken. notices It explains further that any official may be transferred, particularly to a place where he The applicant points out that the vacancy has already worked for two years and which notice advertising the Brussels post to offers housing and educational facilities for which he was transferred was posted with children. out prior notification to the Staff Commit Lastly, it recalls that the Director-General tee and gave no precise indication of the nature of the duties or the closing date for for Administration allowed the applicant a month and a half in which to start his new applications.

another. vice, which is unfounded, as the file shows. The defendant replies that the only decisions (d) Complaint of infringement of Articles which need state the reasons on which they 4 and 29 of the Staff Regulations are based are those adversely affecting an official—not a case in which a transfer is The applicant believes that the fact that the made in the interests of the service. transfer came at the same time as the posting of the vacancy notice in Brussels for the (g) Complaint of misuse ofpowers post to which he was transferred without The applicant complains that the allegations having applied for it proves that the Staff of fact and the file of the case disclose that Regulations were infringed. the decision to transfer him was taken in The defendant replies that Article 29 of the order to avoid having to take a new formal Staff Regulations in no way prohibits an disciplinary measure and to evade the institution from filling a vacant post on the necessity for observing the rights of the same day as the vacancy notice for it is defence. posted, or from deciding to transfer to The defendant considers that the applicant another post an official who has not applied is seeking the benefit of the guarantees

The defendant replies that different facts The applicant claims that the transfer have given rise to two measures of differing effected an alteration in his service without nature and that only one disciplinary the holding of a competition. measure was taken by the administration: The defendant replies that the Regulations the reprimand of 3 July 1964. set up only one true service ('cadre'), the linguistic service, which is not relevant to (b) Complaint of infringement ofthe third this case. paragraph of Article 88 of the Staff Regulations B — The prejudicial character of the suspen­­­­­ sion and transfer decisions The applicant recalls that the first sentence of the third paragraph of Article 88 obliges The applicant claims that the file reveals the the administration to make a final decision existence of wrongful acts involving the on the position of a suspended official within liability of the Community, especially in the four months and that the second sentence, posting up of the contested decisions at providing for the contrary case, is by way of Ispra; the applicant considers that his an exception and envisages the possibility of reputation and honour have been seriously the administration's finding it impossible to impeached. act within the said period. The defendant says that the suspension He considers that since 25 September 1964 declaration was never posted up and that the administration has made no effort, as the decision of transfer was posted up as the file shows. part of the monthly table of movements of He explains the decision of 13 May 1965 to personnel. postpone a ruling in the disciplinary pro­­­­­ ceedings by the fact that Application 18/65 C — The legality of Vacancy Notice had been lodged and by the desire to conceal V/IS/40/65 the disciplinary nature of the transfer. The defendant contends that Mr Gutmann, The applicant claims that the vacancy notice whose salary was not withheld, falls outside is illegal as a direct consequence of the the ambit of this provision, which refers to a illegality of the transfer decision. four months' time-limit for the sole purpose The defendant, denying that the transfer of restoring to the official, after this period decision is illegal, disputes the illegality of has elapsed, his salary in full, when this has the vacancy notice. been partially or totally withheld during his suspension. D — Legality of the Commission's decision of 20 and 21 January 1965 and 13 May (c) Complaint of infringement of Article 1965 concerning the disciplinary action 25 of the Staff Regulations with regard to the applicant The applicant complains that he did not (a) Complaint of violation of the rule non receive nor was he given an opportunity to bis in idem see within a reasonable time various docu­­­­­ ments in his file, and that no genuine inquiry The applicant points out that this is, in his was held; he has put forward formal con-

clusions in this respect. and the damage have not been proved. The defendant replies that at the preliminary IV — Procedure stage in disciplinary proceedings there is 'no duty to communicate to the official con Cases 18 and 35/65 were joined by Order of cerned any documents or information at all' 8 July 1965. Acting on a request made within and that Article 87 of the Staff Regulations the purview of Case 18/65 the President of only requires that the official be heard the Second Chamber made an order on before action is taken, so that he may know 8 April 1965 that no further action be taken what is being alleged against him. with regard to Vacancy Notice V/IS/40/65, dated 19 March 1965, advertising 'the 'Communication' of the documents in the vacant post of Principal Administrator in file does not mean, according to the defen

reach an agreement. dure; On 3 February 1966 the First Chamber — the unsupported accusations made requested the defendant 'to lodge by the against him. evening of 7 February any documents The defendant repeats that the sole aim of missing from the applicant's personal file to the transfer was to safeguard the proper make it complete, including the full record of functioning of the service and that it is free the disciplinary proceedings and in particu to adopt disciplinary measures whenever it lar the minutes of the official inquiry and of sees fit, since the suspension does not affect the interviews with the applicant prior to the the official financially. disciplinary measures of 3 July 1964.' The postponement of a decision in the dis On 7 February 1966 the defendant sub ciplinary proceedings is explained by the mitted additional documents. wish to take a decision in a calm atmosphere In the course of the hearing on 9 February after a settlement had been reached in Case 1966 the applicant complained that certain 18/65. documents relating to his first reprimand were still missing from his file, in particular E — The prejudicial nature of the decisions those establishing the nature of the 'incon of 20 and 21 January 1965 and 13 May clusive' proofs referred to by Mr Ritter in 1965 his memorandum to the applicant of 17

JUDGMENT OF 5. 5. 1966 — JOINED CASES 18 AND 35/65

Grounds of judgment

The application for annulment of the decision of the Commission of the EAEC of 5 February 1965, notified on 18 February 1965, reject­­­­­ ing the applicant's complaint concerning two previous decisions to suspend and to transfer him

A distinction must be drawn with regard to the decision of 5 February between the factors relating to suspension and those relating to transfer. In so far as this decision concerns the decision of 25 September 1964 to suspend the applicant it must be deemed to incorporate the statement of reasons given in the latter. Since a decision to suspend an official is an act adversely affecting him it must, in accordance with Article 25, state the reasons on which it is based.

This statement of reasons must comply with the requirements of the first para­­­­­ graph of Article 88 of the Staff Regulations which do not permit the appointing authority to suspend an official unless serious misconduct is alleged, whether this amounts to failure to carry out his official duties or to a breach of law.

The decision of 25 September 1964 is limited to a statement that 'the inquiry carried out has revealed in Mr Gutmann's relationships with his staff and in the general management of his department, conduct inconsistent with his duties as Head of a Division', and that 'he must be suspended from his duties in order to allow these facts to be elucidated'.

As the transfer decision of 9 December 1964 was based on the interests of the service there was no need to state the reasons therefor. If such a decision is indeed

taken on that basis, it cannot constitute an act adversely affecting an official and falls within the discretionary powers of the administration, which may arrange its departments and move its staff as required for the performance of the tasks assigned to it.

On the other hand, such a decision may amount to a misuse of powers if it appears, on the basis of objective, relevant and consistent facts, to have been taken for purposes other than those stated.

The documents produced show that after various irregularities had been found in the applicant's conduct he was reprimanded on 3 July 1964.

By a decision of the Director-General of the JNRC dated 25 September 1964 the applicant was suspended from duty, banned from the Centre and his office was sealed off, on the ground that a fresh inquiry had 'brought to light' in Mr Gutmann's relationship with his subordinates and in the management of his department conduct inconsistent with his duties. Approving this step on 30 September 1964, the Commission ordered an inquiry based on certain irregularities 'which have been established' and a 'complaint lodged by a Head of Division'.

As a consequence of these serious charges, which were stated to have been 'estab­­­­­ lished', and of the special measures, the Commission decided on 9 December 1964 to transfer Mr Gutmann from Ispra to Brussels 'in the interests of the service' and published on the same day the vacancy notice for a post of Principal Administrator in the library.

The publicity which was in fact—though doubtless unintentionally—given to the applicant's reprimand, to the sealing off of his office and to the other special precautions taken by the Commission, which became common knowledge, could not but worsen the relationship between the applicant and his staff.

Reports on the applicant described him, some months before the events in question, as fulfilling his duties with 'perfect tact' and maintaining 'good' relationships with his staff. The immediate contradiction between the grounds given in the letter of 19 February 1965 and his reports is obvious.

The Court has not been able to assess the value of the evidence produced because the conditions under which the statements were taken by the Commission's security service while the case was in progress do not enable the Court to exercise its powers of review.

The variations and discrepancies described above, together with circumstances such as the timing of the publication of the vacancy notice simultaneously with the transfer of the applicant to the vacant post, the long period of inactivity, not seriously contested, forced on the applicant after taking up his new post and the general circumstances of the case, together amount to a series of objective facts leading to the conclusion that in transferring Mr Gutmann the administration was not exercising its powers for the purpose prescribed for such a measure by the Staff Regulations.

Accordingly the decision of 5 February 1965 rejecting the applicant's complaint must be annulled on the ground of misuse of powers in so far as it confirms the decision of 9 December 1964 to transfer him.

This rule prohibits not only the imposition of two disciplinary measures for a single offence, but also the holding of disciplinary proceedings more than once with regard to a single set of facts.

It must therefore be ascertained from the file of the case as it stands whether the

fresh disciplinary proceedings were based on facts other than those which gave rise to the reprimand of 3 July 1964, against which no complaint or appeal was made by the applicant.

The file shows that the administration's main complaints were, in both cases, the applicant's behaviour towards his colleagues and alleged misuse of the facilities provided by the department. In spite of the Court's request the defendant has failed to produce all the information required for an examination of the file of the disciplinary proceedings relating to the reprimand. In particular it has not ex­­­­­ plained the 'inconclusive ... investigations' made with regard to the misuse of the department's facilities (memorandum from Ritter to Gutmann of 17 June 1964). In addition it has given the Court no precise information concerning the 'complaint lodged by a Head of Division' referred to in the Commission's decision of 30 September 1964 (258th meeting) ordering an inquiry to be held. The Court must therefore confine its consideration to the actual contents of the file.

It must be said then that the somewhat vague list of complaints given in the later disciplinary inquiry makes it difficult to distinguish these complaints from those raised earlier at the time of the inquiry which preceded the reprimand.

The request for damages

The applicant seeks compensation for the material and non-material damage which he has suffered as a result of the disputed decisions.

The non-material damage is, in the light of the present proceedings and the reprimand given on 3 July 1964 without being disputed, made good by the annul­­­­­ ment of the said decisions.

Material damage has not been proved; in particular the applicant has received his salary during the period of his suspension and his removal expenses on transfer.

The request for damages must therefore be rejected.

The subsidiary conclusions

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading. The defendant has been unsuccessful in its main pleadings.

Under Article 69 (3) the Court may order one party to pay costs which the Court considers that party to have unreasonably caused the opposite party to incur.

Judgment has been partially suspended pending production of certain documents in the defendant's possession, and not produced during the proceedings.

The costs of the application for the interim measure, reserved by an order of 8 April 1965, must be borne by the Commission, since the application for the suspension of operation made in Case 18/65 was directed against the vacancy notice annulled in the present case.

The defendant must accordingly pay the entire costs of the action.

On those grounds,

3. Orders the Commission of the EAEC to withdraw document No 123/8 from the applicant's personal file;

4. Suspends judgment on the application for the annulment of the decisions of 20 and 21 January 1965 and 13 May 1965 by the Commission of the EAEC regarding the continuance and the suspension of fresh disciplinary proceed­­­­­ ings; orders the Commission to produce within three months all the items missing from the file, in particular all the documents and minutes referred to in the Ritter memorandum of 17 June 1964 (especially the documents establishing the nature of the 'inconclusive' investigations) and the 'complaint lodged by a Head of Division' referred to by the Commission in its decision of 30 September 1964 ordering an inquiry;

5. Refers the case back to the Commission for execution of this judgment;

6. Rejects the claim for compensation and the remainder of Mr Gutmann's subsidiary pleas;

7. Orders the Commission of the EAEC to pay all the costs so far incurred in the proceedings, including those in the application for the adoption of an interim measure; and reserves judgment on the remaining costs.

Luxembourg, 5 May 1966

Legal consideration 124 A — Admissibility 124 B — The substance 125

I —Case 18/65 125 1. Is the decision temporarily to suspend the applicant

illegal? 125

(a) Inadequate statement of reasons 125 (b) Infringement of Article 88 of the Staff Regulations 126

1 — Translated from the German.