C-53/72

2. Procedure — Appeals by officials — Time limits — Commencement — Definite decision by the Administration (Staff Regulations, Article 91)

1. Apart from the duties which fall on If they are not, it is incumbent on the the Administration under Article 24 Administration to refute them and to of the Staff Regulations, the principles do everything possible to restore the of justice as well as those of good good name of the official concerned. management demand that if serious In any case, it is incumbent upon it accusations, reflecting on the not to give any unnecessary publicity to the accusations. professional integrity of an official in carrying out his duties, are made by a 2. The time limits in the Staff superior, the Administration should Regulations commence to run only take all necessary steps to establish from a definite decision by the whether the accusations are justified. Administration.

In Case 53/72

PIERRE GUILLOT, official of the Commission of the European Communities at the Joint Research Centre at Ispra, represented by Marcel Slusny, Advocate at the Court of Appeal at Brussels, with an address for service in Luxembourg at the chambers of Ernest Arendt, 34 B/IV rue Philippe II,

applicant,

1 — Language of the Case: French.

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure responsibility for observing the internal contamination of the staff by radiation The facts and the arguments developed and for calculating the quantities of by the parties in the course of the written radiation absorbed. procedure may be summarized as fol­ lows: 2. In 1968, as a result of an accident which occurred in the working of the 1. The applicant entered the service of Ispra I reactor, one of its operators was the European Atomic Energy Community contaminated after inhaling radio-active on 17 April 1961 and was posted to the gases. It was then decided to assign the Joint Research Centre at Ispra, applicant to the task of carrying out hereinafter called the 'JRC'. On 1 January certain experiments with a view to 1962, he was established at Grade A 6. obtaining the retention curves of xenon Since 1965 he has worked in the in the human body, a subject on which Protection Department at the Centre scientific literature contained little under Mr Malvicini and has been given information.

GUILLOT v COMMISSION

question; members of the Biology listings and justified the alteration of the Department had become interested in his data by explaining that it had become work and had obtained money and necessary to make a correction because certain physical facilities for him. of a change in the experimental measurement data and that he had been 3. In 1970, the applicant applied for able to fix the "exact" correction factor permission to take part in the Brighton without need for further experiment'. Congress on protection against radiation A copy of this memorandum was (May 1970) and also in the Evian distributed to five scientific officers of Congress on radiobiology (June to July the JRC. 1970), in order that he could report the results obtained in the course of the By letter of 14 May 1971, which reached research mentioned above. The first the addressees on 18 May 1971, the applicant asked Mr Finzi, the immediate request was refused, but the second was superior of Mr Malvicini, to forward a eventually granted. note dated 7 May 1971, attached to the 4. On 3 and 4 May 1971 Mr Malvicini said letter, to Mr Caprioglio. In this addressed two memoranda to Mr note, which the applicant described as a Caprioglio, Director-General of the Joint 'complaint against Mr Malvicini', he Research Centre. endeavoured, on scientific grounds, to refute the criticisms contained in the In the first memorandum (No memoranda mentioned. In addition, he 2.31/91/71), he stated that certain asked 'specifically that one or more measurements which the applicant had impartial persons competent to judge carried out as part of the abovementioned should be given all the computer records experiments had not been 'carried out held by Mr Malvicini, should examine under correct conditions'. and check all the figures enclosed The second memorandum (No herewith, together with my mathematical 2.31/94/71, headed 'Falsification of analysis, so as to ascertain whether my Experimental Results'), was in the interpretation of the results is the correct following terms: one and dispose of these slanderous accusations made by Mr Malvicini'. He 'Further to my note of 3 May, it is my concluded as follows: duty to inform you that, in order to produce evidence of a separation effect, 'I wish to continue these trials as they

In a note of 24 June 1971, in reply to the 6. In May 1971, Mr Malvicini note of 7 May 1971, Mr Caprioglio, instructed the applicant, by word of after requesting the applicant to provide mouth, not to continue his research and him with certain information, informed in a memorandum of 8 July 1971 the him that he was inclined to grant the applicant asked for this order to be put request for an opinion on the in writing or withdrawn. In a note of 9 experiments which had been carried out. July 1971 Mr Malvicini informed the In a note of 7 July 1971 (No applicant that, in his view, it was 1.01/423/71), he told the applicant, necessary that 'conclusions should be among other things, that contrary to drawn from the results of research what the latter believed, he had 'never at completed to date on separation effects, any moment decided to open before work in hand is continued and disciplinary proceedings against you, but fresh experiments embarked upon'. I have asked my staff to investigate the situation, telling them that the facts 7. In a note of 8 November 1971, the appear to me to be of sufficient gravity applicant made the following statement, to justify disciplinary proceedings'. No among others, to Mr Caprioglio: such proceedings have, however, been 'I should like to know the outcome of instituted to date. the inquiry which has been going on 5. On 8 November 1971, after the since May and of which I have heard rejection of his request to be authorized nothing since July. I should also like to to publish the results obtained during know what decision you have taken. I the course of his experiments, the regard it as extremely important that a definite decision should be taken applicant brought an action before the Court (Case 91/71). because, as I explained to you in my memo of 9 July 71, I must insist that the In written observations dated 23 serious accusations, gratuitously and November 1971, Mr Malvicini criticized, recklessly made against me, should be on the basis of scientific consideration, completely withdrawn, and that I should the wording of the article which the receive substantial compensation. Mo­ applicant intended to publish. reover, using this investigation as a On 24 November 1971 in response to an spurious excuse, Mr Malvicini has once invitation from Mr Caprioglio, a group more forbidden me to continue my of senior officials of the JRC, including experiments in conjunction with the Mr Malvicini, met under the Biology Department, in accordance with chairmanship of Mr Finzi, and deli­ job-sheet No 111-4-01/1971, which he

2. authorization of and provision of the Having concluded its examination of this physical resources necessary for the question, the Commission takes the view continuation of these experiments, that the information which, by note of the theoretical and practical 24 June 1971, you were asked to importance of which, already provide, did not form part of a considerable, could, from the disciplinary inquiry; this view is, of economic point of view, be course, the same as that communicated enormous if the results I have to you by the Director-General of the obtained for the dissolution of Joint Research Centre in his note of 7 radioactive xenon in water were of July 1971. general application, especially as Accordingly, the Commission hereby regards isotope separation of confirms that it has been decided not to uranium; take disciplinary proceedings against you 3. adequate compensation for the harm and therefore directs that the done as a result of these accusations Memoranda No 2.31/91/71 of 4 May, and of the ban imposed on my No 101/286/71 of 17 May, No continuing the abovementioned 01.00/413/71 of 26 June and No experiments'. 1.01/423/71 of 7 July 1971 be removed In a letter of 14 April 1972, which from your personal file. Finally, the reached the applicant on 28 April 1972, Commission considers that there are no Mr Barre, vice-president of the grounds for your first or your second Commission, replied as follows to the request and that, consequently, no applicant: further amends are called for.' 'After careful consideration of your complaint, the Commission has 8. On 25 July 1972 the applicant established that the work which you are brought the present appeal. seeking authority to continue is not included in any of the programmes of 9. The written procedure was duly work which the Council has approved completed. After hearing the report of for the Joint Research Centre. In these the Judge-Rapporteur and the opinion of circumstances, the Commission has the Advocate-General the Court (Second decided to confirm the decision of the Chamber) decided to open the oral Director-General of the Joint Research procedure without a preparatory Centre not to authorize you to carry out inquiry.

2. rule that the other party, after having 7. as a subsidiary matter, direct that acknowledged the baselessness of the witnesses be called upon to testify to accusations made by Mr Malvicini the truth of certain allegations in the against the applicant, is under an application, those to be called upon obligation to bring such acknowled­ being named by the applicant gement to the notice of all who without prejudice to his freedom to were aware of the contents of the extend the list of witnesses'. notes exchanged in connexion with this case, namely: Messrs Appleyard, In his reply, the applicant, without in Benco, Bertolini, Blaes, Bourdeau, any way modifying the claims set out in Caprioglio, Finzi, Gerbaulet, Her­ the application, makes the additional rinck, Kley, Lafuma, Marchetti, claim that the Court should rule that Schleicher and Scotti, and the 'the appendices Nos 10 and 16 of the presidents of the unions CLP defence statement' viz. Mr Malvicini's (Comitato locale personale, local comments of 23 November 1971 and the staff committee), USEI (Union considered opinion of 24 November syndicale des Employes d'Ispra, 1971, 'must not remain on the Trade Union of Ispra Employees), applicant's administrative file'. SILARN (Sindacato italiano lavora­ tori ricerca nucleare, Italian Union of In its statement of defence, the Nuclear Research Workers) and Commission contends that the appeal FFPE (Federation de la fonction should be dismissed as inadmissible or publique européenne, European without foundation and that the Public Service Union); applicant should be ordered to pay the costs. 3. declare null and void the express rejection by the other party, by letter In its rejoinder, the Commission, of 14 April 1972, of the applicant's without prejudice to the arguments request to be allowed to recommence adduced in its defence, claims that 'if the work and experiments on the Court considers that the bringing of a dissolution of radioactive xenon in criminal action by the applicant is water; inappropriate in this case, it should 4. order the other party to pay the direct that arrangements be made for an applicant, as compensation for expert to examine and report on the material and non-material damage facts relating to the experiments of 28, caused by the facts referred to under 29 and 30 April 1971 … it should note 1. of the administrative complaint, that, without prejudice to the final order the sum of FB 100 000 subject to as to costs, the Commission is prepared final assessment in the course of the to advance the sums necessary for an proceedings; expert opinion …'.

III — Submissions and argu applicant's personal file. The Commis ments of the parties sion is ready to take similar action regarding 'the considered opinion' 1. On the first and second heads of mentioned above together with any claim in the application (withdrawal other document concerning the work of of Mr Malvicini's accusations and the applicant which he would like to have removed from his file. In addition recognition of the authenticity of the experiments carried out by the the Commission is ready, provided the applicant) applicant signifies his agreement, to communicate that part of the letter of 14 The applicant complains that the letter April 1972 beginning with the words of 14 April 1972 did not go far enough 'having concluded its examination' and to meet his complaint, in view of the fact ending with the words ' .

Even if this officials in case of need, must recognize were not so, however, the Commission that the said accusations, which, if proved, should have given rise to cannot be called upon to 'recognize' publicly the quality of the services disciplinary measures, are wholly rendered by an official. without foundation. In any case, 'custom and practice' require that a memoran In asking for his work to be examined dum 'approved by the applicant' should by experts, the applicant has admitted be drawn up on the subject and that this that Mr Malvicini's 'accusations' were memorandum should receive the same 'concerned with the way in which he amount of publicity as that given to the carried out the experiments and drew memoranda which the Commission, as conclusions from them and that these stated in its letter of 14 April 1972, said accusations belong, therefore, exclusively it was prepared to remove from the to the field of the scientific analysis of personal file of the applicant, i.e. that the scientific experiments and work, where memorandum should be sent to the the right to criticize must be recognized group of people referred to under (2) of as being not only acceptable but the claims in the application; to date, indispensable …' only Messrs Finzi and Herrinck are aware of the said letter, which is marked The applicant replies that, as was 'Confidential'. decided by the Court in Case 83/63 (Krawczynski v Commission, Rec. The Commission replies that the 1965-2, p. 791 et seq.) the Communities applicant has 'received full satisfaction' so far as he is entitled to claim it.

1971). Moreover, the documents taken action with regard to Mr mentioned in the letter of 14 April 1972 Malvicini or have compelled him to have been withdrawn from the tender an explanation or apology.

Malvicini ought not, in view of his the application. previous attitude, have taken part; The Commission has no intention of secondly, the applicant ought to have adopting Mr Malvicini's statements been allowed to be present at the concerning the falsification of experi­ meeting and to have been invited to ments by the applicant, nor has it ever nominate persons of his choice to serve had this intention. on the committee. The considered opinion, which has not yet, incidentally, The Commission believes that, in this been communicated to the applicant, case, the institution of criminal does not represent a reply to his note of proceedings would be an appropriate 7 May 1971 nor, amongst other things, step for the applicant to take. does it arrive at any conclusion on the charge of falsification; it is exclusively 2. On the third head of claim in the concerned with the question whether application (continuation of his authority should be given for publication experiments by the applicant) of the article submitted by the applicant. As regards the statement that the work The applicant states that his request is in dispute was not included in the not for the purpose of obtaining fresh programme, the applicant brings the authority but to enable him to continue same arguments to bear as those which work begun in 1968. he set out in connexion with the third In forbidding the applicant to continue head of claim (cf. 2 below). He adds his experiments, Mr Malvicini exceeded

GUILLOT v COMMISSION

In these circumstances, the Even supposing that Mr Malvicini had applicant had no justification for had the authority to take the decision demanding to be authorized to continue mentioned, it would be vitiated as being the experiments concerned. Moreover, it a misuse of powers. It was designed to is made quite clear on the sheet that it penalize the applicant in an indirect way refers only to 'exploratory research'. and was conditioned by factors which By his own actions (note of 8 July 1971 militated against the interests of the to Mr Malvicini and note of 8

The structure of ground that it is out of time and that the responsibility in the Centre is in no way Court can grant no remedy. It states: changed when, from time to time, it is 'Mr Malvicini's decision forbidding the called upon to carry out as part of the applicant to continue the work which is schedule of activities work which has in dispute dates from 9 July 1971. not been assigned to it direct. During the three months immediately Neither can it be said that there has following that date, the applicant did been, as alleged, any misuse of powers, not initiate proceedings or submit a as appears from the reasons given for the complaint through administrative chan order to discontinue the experiments

particular kind. When, to some extent, suspend the work on a purely the Commission changed the responsi temporary basis'. It is doubtful bilities with which the applicant had for whether a measure of this kind can

form the subject of a complaint or allocation of physical resources, funds of an appeal. However, a complaint and the assistance of a collaborator, did or an appeal is always admissible not appear in the JRC's programme of once a definite decision has been work. taken. The facts adduced in support of the (ii) Mr Malvicini's decision could only allegation that Mr Malvicini exceeded refer to the year 1971; in fact, the his competence are as follows. Since the

In order to justify refusal The Commission cannot support its case to authorize the applicant to by reference to the fact that the continue his work, the decision of applicant wrote to Messrs Caprioglio 14 April pointed out that the work was not included in the official and Malvicini. The question under whose authority the applicant was programmes of work of the JRC, whereas Mr Malvicini relied on working must be settled objectively and different reasons. not with reference to his own subjective appraisal.

The Commission would be hopelessly frustrated in believes that it has provided sufficient his career. Moreover, Article 24 of evidence to show that Mr Malvicini's the Staff Regulations of officials, as attitude, which was dictated by his revised with effect from 1 July 1972, misgivings as to the validity of the imposes the obligation on the results obtained by the applicant during Communities to 'encourage an his experiments, was shared by a official's. advanced vocational train number of others. ing'.

GUILLOT v COMMISSION

for exploratory work. The Commission 4. On the supplementary claims has stated that this fell outside the submitted in the reply (withdrawal of normal programme. certain documents from the appli­ The Commission has no intention of cant's administrative file; the Court's exclusion of them from its instructing its officials to carry out consideration) scientific work which is not part of the research programme laid down by the Council. It therefore has no intention of The applicant states that the documents comprised in Annexes 10 and 16 of the arranging for the applicant's experiments statement of defence (Mr Malvicini's to be repeated, not even for the sole written observations of 23 November purpose of establishing whether his 1971; considered opinion of 24 conclusions were, or were not correct. November 1971) are defamatory and, contrary to the provisions of Article 26 of the Staff Regulations of officials, have 3. On the fourth and fifth heads of the not been communicated to him or signed applicant's claim (damages) by him. They cannot therefore be used against him. The applicant contends that, in taking no definite decision on Mr Malvicini's accusations and in making wholly inadequate amends to the applicant, the IV — Oral procedure Commission has committed a wrongful act or omission for which it must pay After closing the written procedure, the him damages. The Commission is Court (Second Chamber) asked the responsible for the actions of its officials. Commission to explain why it had not Similarly, the obstacles put in the way of investigated the truth of the accusations the applicant's scientific work and made by his superior against the applicant. particularly the ban imposed upon his continuing his experiments have caused The reply given by the Commission at damage for which the Commission must the hearing may be summarized as pay adequate compensation. follows:

Law

1 By appeal submitted on 25 July 1972, the applicant sought annulment of the decision of 14 April 1972 rejecting his complaint of 3 January 1972 in which he requested (i) withdrawal of certain accusations made against him by his superior (ii) annulment of the decision not to authorize him to continue his experiments and (iii) grant of damages in respect of the accusations made against him and of the ban on his going on with his work.

On the first and second heads of claim

2 The applicant relies on the general principle which requires the employer to look after the interests of his employees, and on the first paragraph of Article 24 of the Staff Regulations, which imposes on the Community a duty to assist an official who becomes a victim of certain misdeeds.

3 Apart from the duties which fall on the Administration under Article 24 of the Staff Regulations, the principles of justice as well as those of good management demand that if serious accusations, reflecting on the professional integrity of an official in carrying out his duties, are made by a superior, the Administration should take all necessary steps to establish whether the accusations are justified.

4 If, after this has been done, it appears that the accusations cannot be justified, it is incumbent on the Administration to refute them and to do everything possible to restore the good name of the official concerned.

10 Though this request could be more happily phrased, nevertheless, in view of the applicant's note of 8 November 1971 according to which he wished 'to know the outcome of the inquiry which has been going on since May … and to know what decision you have taken', it can only be taken as a request addressed to the Commission to conduct an investigation and, in the event of the accusations of bad faith proving to be without foundation, to ensure that they be withdrawn.

11 For its failure to give an express reply on the substance of the request in its letter of 14 April 1972 the Commission must be regarded as having taken a decision to refuse an inquiry.

12 In neglecting to take all steps necessary to investigate the truth of the accusa­ tions made by the applicant's superior and, more specifically, to conduct a conclusive investigation, the Commission failed in its duty to the applicant.

13 This was aggravated by the Commission's failure to take the requisite steps to ensure that there was no publication of the accusations beyond what was strictly necessary.

JUDGMENT OF 11. 7. 1974 — CASE 53/72

14 In view of this the Commission's refusal to undertake an inquiry should be annulled.

21 It is thus necessary to make it clear that the purpose of the inquiry which the Commission ought to have undertaken was to seek evidence as to the truth of the accusations reflecting on the applicant's integrity.

22 Now that the Commission's refusal has been annulled, it must carry out this obligation with the minimum delay.

GUILLOT v COMMISSION

On the third head of claim

23 The applicant claims that the decision prohibiting him from continuing his experiments was vitiated as being a misuse of powers in that it was intended indirectly to punish him.

24 The Commission objects that his head of claim is inadmissible as being out of time.

31 Though there was good reason at that time for a decision of this kind while the inquiry begun by the Director-General was going on, this is to some extent invalidated by the fact that the inquiry was not completed.

JUDGMENT OF 11. 7. 1974 — CASE 53/72

32 The fact that, without specifically basing its decision upon the accusations of dishonesty, the Commission confirmed the decision to prohibit the applicant from continuing his research, is not enough to remove the impression that, because it was maintained, the decision was a disciplinary measure rather than a temporary suspension pending the outcome of the inquiry.

33 The argument advanced by the Commission to justify prohibiting the appli­ cant from continuing his work, viz. that the work was not covered by the programme of the Joint Research Centre, does not explain why, in that case, the annual job-sheet referring to the applicant's work provided for him to do this work during the whole of 1971, as he had done during the previous year.

34 In view of these considerations, the Commission's decision on this point must be annulled.

On the fourth head of claim

39 Annulment of this refusal is sufficient compensation for all non-material damage he has sustained.

Costs

40 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay costs.

41 The Commission has failed as regards the substance of its pleas and must accordingly be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

Delivered in open court in Luxembourg on 11 July 1974.

A. Van Houtte M. Sørensen

Registrar President of the Second Chamber