C-43/74

JUDGMENT OF THE COURT (SECOND CHAMBER) 7 JULY 1977 <apnote>1</apnote>

Pierre Guillot

v Commission of the European Communities

Case 43/74

In Case 43/74

Pierre Guillot, an official of the Commission of the European Communities, represented by Marcel Slusny, Advocate, of Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34/B/IV rue Philippe II,

THE COURT (Second Chamber)

composed of: P. Pescatore, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

1 — Language of the Case: French.

JUDGMENT OF 7. 7. 1977 — CASE 43/74

The facts and the arguments put forward authorization to publish his results, Mr by the parties in the course of the written Malvicini decided to repeat the retention procedure may be summarized as experiments, but this time dissolving follows: mixtures of radio-active gases in water. The statements of the facts diverge on this point. I — Facts and procedure 5. According to Mr Malvicini, the 1. At the time of the facts in dispute, experiment was carried out on 26 and 27 the applicant was working, at the EAEC April 1971, without revealing any isotope Joint Research Centre at Ispra separation effect, and it was repeated by (hereinafter referred to as 'the Centre'), in the applicant on 28 and 29 and the the Protection Branch under Mr morning of 30 April. Malvicini, and he had been given 6. According to the applicant, on 26 responsibility for observing the internal and 27 April Mr Malvicini and Mr contamination of the staff by radiation Dominici set up the measuring apparatus and for calculating the quantities of (the equipment used for the experiment radio-active substances absorbed. having been borrowed from the Environment Section), while the 2. In 1968, as a result of an accident applicant was preparing the bottles which occurred in the working of the containing the mixtures of radio-isotopes. Ispra I reactor, one of its operators was contaminated by inhaling radio-active 7. Be that as it may, a first or second gases. It was then decided to assign to series of experiments was thus carried out the applicant the task of carrying out on 28, 29 and 30 April. It was in two certain experiments with a view to stages: the partial dissolution of the obtaining curves for the retention of gaseous mixture of radio-isotopes in xenon gas in the human body. water on 28 April and the study of the decay in radio-activity on the following 3. From the first stages of these night, that is the night of 28 to 29 April, experiments, the applicant thought he then a further dissolution of the gaseous detected a completely unexpected mixture in water on 29 April and the tendency as regards the way in which recording of the decay in radio-activity retention was affected by the quantity of from 29 to 30 April. xenon inhaled, namely an isotope separation effect. Mr Malvicini did not 8. The applicant gave Mr Malvicini the share this view and maintained that the results of these experiments, or what he results obtained were due to errors. The describes as such, and at least some of applicant continued the experiments in the spectrometer readings, which seemed question; members of the Biology to confirm the presence of the Branch had become interested in his phenomenon alleged by the applicant. work and had obtained finance and equipment for him. 9. By a memorandum of 3 May, Mr Malvicini informed the Director General

The experiment did not produce the which ended in the judgment of the separation effect, in spite of numerous Court (Second Chamber) of 11 July 1974, experiments passing bubbles through the [1974] ECR 791. water of various bottles. I also checked the manner in which Mr Guillot had 11. In a memorandum of 7 May 1971, taken the measurements which led him Mr Guillot gave his version of the facts to state positively that separation results and explained that, for scientific reasons, were observed. The measurements were he had corrected the measurements in all taken at too high a frequency and the appropriate ways, and that for the last therefore were not carried out in a six measurements, he had had to make a correct manner.' particular correction, made necessary by an accidental tilting of a bottle forming 10. Next day, Mr Malvicini sent the part of the experimental apparatus. In Director-General a note headed conclusion, he asked that one or more 'Falsification of Experimental Results', impartial persons competent to judge which was in the following terms: should be given all the records held by Mr Malvicini, should examine and check 'Further to my note of 3 May, it is my all the figures enclosed, together with his duty to inform you that, in order to mathematical analysis, so as to ascertain produce evidence of a separation effect, whether his interpretation of the results Mr Guillot has falsified the experimental was correct and dispose of the slanderous data relating to the last six accusations made by Mr Malvicini. A measurements. technical appendix was attached to that memorandum. Contrary to the arrangements made, Mr Guillot did not forward the listings from 12. On 6 July, in a memorandum to Mr the machine printer but only the data as Caprioglio, the Director-General of the processed. The printer data did, however, Centre, Mr Malvicini commented on Mr appear on the listing from an Olivetti Guillot's version of the facts. In brief, he computer and I was able to recover this persisted in his point of view, but added listing from the waste-paper basket. that, for all the measurements carried out on 29 April after 11.25 a.m., Mr Guillot When, in the presence of Mr Dominici, had simply given him the results, and Mr Guillot was asked to explain why the not the spectrometer recordings data had been altered, he was most themselves, and that he did not see any insistent that the data had been obtained need to alter the last six test direct from the machine and that the measurements, since those results fitted printer listings had been forwarded to in well with the previous measurements. me. In reply to this statement, I That memorandum was not sent to Mr produced the computer listing. Guillot.

14. On 21 October 1971, Mr Malvicini containing the radio-active mixture drew up for the Commission a document displaced. In support of his argument he headed 'Short description and details of wrote a note, containing serious the facts which led Mr Guillot to submit accusations against me, with an a complaint within the meaning of eight-page technical appendix with Article 90 of the Staff Regulations', calculations, tables and graphs, to show which contained the following that the alteration to the plotting of the paragraphs: last six measurements was a correction made necessary by reason of the tilting of 'Mr Guillot gave me the results of the the bottle, in order to bring them into measurements carried out from the line with the values of 29 April. beginning of the experiment (9.45 a.m. on 28 April) to 11.25 a.m. on 29 April, I reconstructed piece by piece the printer with the recordings from the analyser recordings which I had retrieved, and I printer, and only the results of 11 of the found that the data obtained on 29 April 14 measurements carried out from 11.35 from 11.35 a.m. had also been corrected a.m. on 29 April to 7.10 a.m. on 30 April. in a 'similarly appropriate' manner, and I realized why Mr Guillot had asked in Next day, 1 May, when I was about to writing, when he was drawing up the plot the points of the latter technical appendix, for the list of the measurements on a graph, I noticed that spectra in my possession. I did not have the recordings from the printer; I went to my office, thinking 15. This document was drawn up at the that I had left them on my table, but request of the Director-General of the

Mr Guillot was questioned by me, he 16. Mr Guillot did not receive a copy of assured me that the data which he had that note. At some point, the note was given me were those of the analyser put into his personal file without his without any correction. When I showed knowledge. him that I possessed the data inscribed on the roll from the computer, he was 17. The exchanges between Mr Guillot unable to give me an explanation and and his superior continued.

By a memorandum of 26 day of 30 April, when he had dismantled November 1973, Mr Guillot submitted to the apparatus, he had found the bottle the Commission a complaint within the

I became aware for the first time of a 20. Since there was no reply to this note signed by Mr Malvicini, dated 21 complaint, Mr Guillot brought this October 1971, headed: action against its implied rejection, by an application lodged at the Court on 25 'Breve descrizione e precisazioni sui fatti June 1974. che hanno spinto il Signor Guillot a inoltrare il reclamo ai sensi dell'articolo 21. By a separate document, lodged at 90 dello statuto dei funzionari.' the Court Registry on 13 February 1975, the Commission raised an objection of This note makes very serious accusations inadmissibility to all the conclusions in against me, but I did not receive a copy the application. of it, and it was put into my personal file without my being informed. 22. The applicant replied to this (...) objection by a written statement lodged at the Court Registry on 15 March 1975. Thus, six months after the events, whereas I had immediately asked Mr Caprioglio for the recordings in Mr 23. By an order of 24 September 1975, Malvicini's possession to be entrusted to the Court (Second Chamber) decided to someone else, Mr Malvicini accuses me reserve for the final hearing its decision of having suppressed the recordings of 11 on the objection and to reserve the costs. measurements (instead of six, as he had stated in May) and of having completely 24. In view of the judgment of the done away with the results of 3 Court of 11 July 1974 in Case 53/72 measurements. [1974] ECR 791, the Commission (...) decided to instruct the Centre d'Études (Study Centre) at Mol, a Belgian The alleged strips retrieved by Mr organization, to carry out an inquiry into Malvicini from the refuse bins are Mr Guillot's experiments. By a letter of worthless: anybody can easily make up a 13 December 1974, the Agent of the strip with the figures of his choice; all he Commission informed the applicant's has to do is press the keys of the Olivetti lawyer that the Belgian organization computer in the correct sequence to wished certain conditions to be observed, cause the desired results to be printed.' namely: 1. That the assignment should be In conclusion Mr Guillot states: extended so as to give it the opportunity of carrying out again, 'Consequently, I request (...) that: quite independently, such 1. these fresh accusations or falsification experiments as should prove and deliberate destruction of results necessary, that is: should be declared false in writing, — Without any intervention by the with an apology for their having been parties, but solely on the basis of

should be solely to seek objective measurements of 29 April (Nos 29 to conclusions, that is, to determine 33) are also correct. whether the 'effects' occur or not; if — The results of the next 3 they do occur, the circumstances in measurements (Nos 34 to 36) carried which they do so and the inferences out on 29 April between 11.35 and which can be drawn therefrom. In no 12.05 do not appear in the case would any judgment be made on documents of Mr Guillot, who seems the honesty or the merits of the to have set them aside because they experimenter as such: did not go in the desired direction! 3. That it should be allowed a period of — The results of the next 5 6 months.' measurements (Nos 37 to 41), appearing in Mr Guillot's documents 25. By a letter of 25 January 1975, the have been altered. Whereas the applicant protested against these results corresponding to the Y of the conditions. 133Xe have been transcribed faithfully, 26. On 18 September 1975, by reason those of the peak which are attributed to the 131mXe have all been modified, of the delay in the conclusion of the so that the ratio of the 133Xe/131m Xe external inquiry, the Commission decided to open a parallel internal counts becomes smaller (at 3·3371) administrative inquiry and to set up a than the one actually obtained committee for that purpose which should (3·4124), as is proved by the numerical strips from the computer. be 'empowered to collect any — The results of the last 6 information, evidence or proof, to have measurements were altered on two access to any file or document relevant to the facts relating to Case 53/72, and in occasions by Mr Guillot. On the first occasion, in the handwritten particular to question the officials directly concerned'. document given to Mr Malvicini, the 131mXe results were divided by the 27. The report of the inquiry carried factor 09829 (except for out at Mol is dated 19 September 1975. measurements Nos 44 and 46 in The authors of the report state as follows: which the factor is different) whereas the 133Xe results were not altered; on 'We have compared the results recorded: the second occasion, the 133Xe results — First in the tables drawn up by Mr given in the technical appendix to Malvicini, on numerical strips from the memorandum sent to Mr

29. The report ends with the following when experiments contradicted him and general conclusions; left him no alternative, he altered their results or kept only those which were These experiments were undertaken favourable to his argument.' with the aim of definitively settling the dispute between Mr Guillot and Mr 30. The internal committee of inquiry Malvicini. drew up its report on 28 October 1975. This report also finds that the 5 On the first day, the results seemed to measurements (Nos 37 to 41) carried out confirm Mr Guillot's arguments; on 29 April 1971 between 12.25 p.m. and unfortunately, on the second day the 4.05 p.m. are the ones which are crucial situation was reversed and he altered the for proving the phenomenon alleged by results of the measurements so as to be Mr Guillot, and it further mentions an able to deduce from them an effect interview between the committee of identical to that observed on the first day. inquiry and Mr Malvicini on 20 October 1975, during which Mr Malvicini is said Then, the results of the second night in to have put at the disposal of the their turn had to be altered but solely to members of the committee a record strip make them correspond to the last from an Olivetti computer. falsified result of the measurements of the second day! 31. Point 9 of the report dealing with the examination of Mr Guillot is worded The explanation 'perché il flacone è stato as follows: trovato apostato ...' was put forward a posteriori, and is a bad explanation, 'Mr Guillot (...) replied on several because it in no way justifies the occasions that the calculations printed on alterations to the measurements taken on the record strip from the Olivetti the second day or the use of very variable computer were not carried out by him. correction factors, instead of a single Furthermore he retorts that it is very easy factor applied to all the measurements. for anybody to reproduce such recordings. The only scientifically correct position would have been the absolute rejection of Moreover, it must be noted that Mr all the measurements which might have Malvicini also submitted to the members been disturbed by the accidental (?) displacement of the bottle and the of the committee record strips from the repetition of the measurements on the TPM multichannel analyser, relating to following day. the measurements in dispute. The members of the committee found that

32. The conclusion of the report is as nothing without corresponding to follows: any experiment, by the use of an impulse generator, because such 'In view of the documents placed at their fabrication would demand an disposal and the facts which they have enormous amount of work on been compelled to find, the members of numerous spectra each comprising the committee are of the opinion that 400 results, and the implausibility of the alterations to the experimental values the spectra thus obtained would be and their communication in the form of immediately apparent to an a report, in which Mr Guillot saw fit to experimenter trained in these engage, are unacceptable from the techniques of measurement by scientific and professional point of view, nuclear spectrometry. and they consider as justified the severe — Secondly, it is also impossible to criticisms to which Mr Guillot has been defend the argument that those tapes subjected.' come from previous measurements, because the results would never be 33. On 3 November 1975, Mr Guillot identical to those in Mr Guillot's sent to the chairman of the committee of report. In fact, those which had not inquiry a criticism of the procedure been 'altered' — those relating to the which has been followed, particularly in 133Xe — are strictly identical. relation to the fact that he had been — Finally, various annotations on those denied an opportunity to examine the strips should enable the author to be tapes in question, in order to check easily identified.' them.

GUILLOT v COMMISSION

1. Declare null and void the implied In his reply, the applicant claims that rejection of his complaint of 26 the Court should: November 1973: 1. Join Cases 53/72 and 43/74 as being 2. Rule that the Commission is to related, at least for the purpose of the withdraw Mr Malvicini's note of 21 oral procedure; October 1971 from the applicant's 2. Therefore authorize the parties to personal file; lodge supplementary pleadings in 3. Order the Commission to pay the consequence of the lodging of three applicant one million Belgian francs new reports by the Commission in by way of damages, subject to Case 53/72; amendment in the course of the 3. In the alternative, take formal note proceedings; that the applicant persists in the 4. Order Mr Malvicini to return to the conclusions contained in the applicant the recordings of his application. experiments of dissolving xenon in water;

5. Order the Commission to pay the III — Submissions and argu­ costs. ments of the parties

In its defence, the Commission contends, The applicant claims that he is entitled subject to the foregoing conclusions on to assistance and protection from the inadmissibility, that the Court should: Commission in accordance with Article 1. Dismiss the application as unfounded; 24 of the Staff Regulations of Officials, 2. Order applicant to pay the costs. and that even if he cannot demand that

JUDGMENT Mal OF vicini 7. 7. 1977 — CASE 43/74

the Commission should commence itself, and in that case, there is no reason disciplinary proceedings against Mr for the recordings, which are the subject Malvicini, which comes within its of serious conflict between Mr

is distinct from the damage which formed the subject-matter of another The Commission also acted upon its application in Case 53/72. intention of withdrawing the documents from the file as soon as the file was

As to the recordings in dispute, either returned to it by the Court at the end of they should be added to the applicant's Case 53/72, as the applicant could file, in which case there is no reason for moreover have found out if he had

their remaining in the hands of Mr consulted his file. The statement to the Malvicini, or else the results of a piece of effect that the complaint of 26 work should not be added to the November 1973 concerned in particular personal file but only the documents the withdrawal of Mr Malvicini's note relating that piece of scientific work from the file is incorrect. No such

GUILLOT v COMMISSION

notes. Taking into account the various details supplied to the Court and in particular On the other hand, the applicant the reports of the inquiries, the request emphasizes to the Court that there are for the recordings to be added to the file three different versions of the facts by Mr is in open contradiction of the Malvicini: the one contained in the applicant's argument to the effect that, memorandum of 4 April 1971, the one by allowing certain documents to be contained in his memorandum of 6 July added to the applicant's file, the 1971 and a third version of his Commission was guilty of a wrongful act accusations, contained in the note of 21 or omission, as well as with his request October 1971 which is in issue.

Mr of facts which are distinct but situated in Malvicini made his accusations only on the same historical context. the Tuesday, whereas on the Monday, he had already sent the Director-General of As regards the recordings, the applicant the Centre a note which did not contain specifies that those of which he seeks the any accusation. return concern experiments carried out in 1970 and 1971, before the experiment Withdrawing the document does not of 28 April 1971. Those recordings were suffice to make good any harm which it handed over by the applicant to Mr has done, namely the particularly serious Benco on 25 February 1972, upon Mr defamation which it contains.

JUDGMENT OF 7. 7. 1977 — CASE 43/74

Concerning the report of the internal The fragment of the record strip which administrative committee, the applicant was shown to the applicant from a takes the view that it was drawn up with distance was about 30 cm long, whereas excessive and unjustified haste. The all of the strips for each experiment committee confined itself to hearing Mr should have been several metres long. It Malvicini and the applicant, and it made is quite improper to isolate a fragment, an appraisal essentially on the basis of which was moreover not identified.

GUILLOT v COMMISSION

The Court has already passed a judgment of annulment on the other party's refusal The Court clearly specified the objective to settle the dispute, and therefore it to be reached by the inquiry, so that the should now declare that the wrongful act laying-down of rules of procedure, which

JUDGMENT OF 7. 7. 1977 — CASE 43/74

have no place in the carrying out of a 4. In order to cast doubt upon this definite task, was immaterial. coincidence, counsel for the applicant drew the Court's attention to the fact

GUILLOT v COMMISSION

7. At Mr Slusny's request, Mr Guillot Dominici, Mr Collard, one of the experts was authorized to submit a reply, from at Mol, and Mr Malvicini. which it emerges that the values given by Mr Guillot in his technical appendix 9. The applicant and the witnesses gave were not corrected for background noise. their evidence at the hearing on 3 March 1977.

8. In view of this discrepancy in the 10. After hearing the witnesses, the statement of the facts and of other Court adjourned proceedings to allow the discrepancies which became apparent in applicant to submit any observations on the course of the written procedure, the the measures of inquiry. Written Court decided, pursuant to Article 60 of observations were lodged on behalf of the the Rules of Procedure, to order a applicant on 12 April 1977. measure of inquiry to be taken. It decided to hear Mr Guillot as a party 11. The Advocate General delivered his and, as witnesses, Mr Benco, Mr opinion at the hearing on 12 May 1977.

Decision

1 Like the dispute in Case 53/72, which was brought by the same applicant against the Commission and which was decided by the judgment of 11 July 1974 ([1974] ECR 791), the dispute in the present case originated in a series of experiments carried out from 28 to 30 April 1971 by the applicant, a scientific official at the EAEC Joint Research Centre at Ispra (hereinafter referred to as 'the Centre').

2 By those experiments, in which a mixture of radioactive xenon gases and stable xenon gas were dissolved in water, the applicant had been seeking to prove that a theory held by him since 1968 concerning an isotope separation effect was well founded.

8 In his personal file, which had been lodged at the Court Registry by the defendant in Case 53/72, the applicant discovered a note dated 21 October 1971, which had been drawn up at the request of the Director-General of the Centre, signed by Mr Malvicini and put into his personal file without his knowledge.

9 Headed 'Short description and details of the facts which led Mr Guillot to submit a complaint within the meaning of Article 90 of the Staff Regulations', that document enlarged the scope of the accusation made by Mr Malvicini in the note of 4 May 1971, by stating that the details relating to the last eleven measurements had been altered and by accusing the applicant of having suppressed the results of three other preceding measurements.

10 By a complaint submitted on 26 November 1973 under Article 90 of the Staff Regulations of Officials, the applicant requested the withdrawal of the document from his personal file, the withdrawal of the fresh accusations, compensation for the damage which he alleged that he had suffered and the return of the recordings of his experiments of dissolving xenon in water, which were being held by Mr Malvicini.

11 Since the Commission did not react to that complaint, the applicant brought this action, by an application lodged at the Court on 25 June 1974, in which he claimed:

— The annulment of the implied decision rejecting his complaint, resulting from the Commission's failure to reply;

GUILLOT v COMMISSION

— Since the inquiry undertaken by the Commission was not finished, the applicant could not plead against the Community lack of assistance in breach of Article 24 of the Staff Regulations;

— The Commission's withdrawal of Mr Malvicini's note of 21 October 1971 from the applicant's personal file had deprived the applicant's submission based on Article 26 of the Staff Regulations of its purpose;

— The third submission, directed to obtaining compensation for damage allegedly suffered by the applicant, was premature, because the Commission had not yet carried out the abovementioned inquiry;

— The recordings in question were the property of the Commission.

14 All those objections go to the substance of the case and cannot therefore be examined in relation to admissibility.

The Substance of the Case

20 In the judgment of 11 July 1974, the Court held that if serious accusations reflecting on the integrity of an official in carrying out his duties are made by a superior, apart from the duties which fall on the Administration under Article 24 of the Staff Regulations, the principles of justice and of good management place a duty on the Commission to take all necessary steps to establish whether the accusations are justified.

21 After finding that the Commission had not fulfilled that duty with regard to the applicant and accordingly annulling the Commission's refusal to undertake the inquiry which it should have carried out, the Court made it clear that the defendant must fulfil that obligation with the minimum delay by undertaking an inquiry 'to seek evidence as to the truth of the accusations reflecting on the applicant's integrity'.

22 The Commission has added to the case-file reports relating to four inquiries for which it has been responsible in accordance with the judgment in Case 53/72:

— A report dated 19 September 1975 (hereinafter referred to as the 'Boulenger report' after the name of one of its authors), drawn up by the

GUILLOT v COMMISSION

Belgian Centre d'Etudes d'Énergie Nucléaire (Nuclear Energy Study Centre) at Mol and dealing with the inquiry carried out by the Study Centre on the applicant's experiments;

25 According to Mr Malvicini's note of 4 May 1971, the applicant falsified the experimental data relating to the last six measurements carried out during the experiment — Nos 42 to 47 according to the numbering applied later — and forwarded to Mr Malvicini, concerning those measurements, not the strips from the automatic printer of the TMC multichannel analyser, but only the data worked out by the applicant himself.

26 In a memorandum of 7 May 1971, supplemented by a technical report and sent to the Director-General of the Centre at Ispra, the applicant set out his version of the facts in dispute.

27 In a memorandum dated 6 July 1971, sent to the Director-General of the Centre, Mr Malvicini commented upon the version of the facts given by the

JUDGMENT OF 7. 7. 1977 — CASE 43/74

applicant and confirmed his previous statements, then added that, for all the measurements carried out after 11.25 a.m. on 29 April (that is, from measurement No 34), the applicant had simply given him the results, and not the original recordings of the analyser spectrometer.

28 In the note of 21 October 1971, Mr Malvicini specifically stated that the applicant had given him the results of the measurements carried out from the beginning of the experiment (at 9.45 a.m. on 28 April) to 11.25 a.m. on 29 April with the recordings from the analyser printer, and only the results of eleven of the fourteen measurements carried out from 11.35 a.m. on 29 April to 7.10 a.m. on 30 April (measurements Nos 34 to 47).

34 The applicant admits that he altered the results of his experiments, but only as regards the last six measurements.

35 As regards the experiments carried out by the applicant from 28 to 30 April 1971, the authors of the Boulenger report found that the results of measurements Nos 1 to 33 did not give rise to any dispute.

36 However, the results of measurements Nos 34 to 36, carried out between 11.35 a.m. and 12.05 p.m. on 29 April, did not appear in the documents of the applicant, who — the report states — seemed to have set them aside 'because they did not go in the desired direction'.

37 According to the report the results of the next five measurements (Nos 37 to 41) as well as those of the last six measurements had been altered.

38 In their comments upon these alterations, the authors of the report state that the alterations to the last six measurements have only limited importance in the context of the experiment.

39 On the other hand the authors of the report state that the three measurements (Nos 34 to 36) which the applicant did not mention, and the five following measurements (Nos 37 to 41) — the alteration to which the applicant did not explain — are decisive, for without that omission and that alteration 'the phenomenon sought no longer exists'.

44 According to the report, when examined by that committee, the applicant denied that the calculations printed on the record strip from the Olivetti computer had been carried out by him.

45 Furthermore the applicant stated, according to the report, that it was very easy for anybody to reproduce such recordings.

46 However, the committee of inquiry states that it found that the values given in the analyser record strips relating to the measurements in dispute, which were submitted by Mr Malvicini, and the values appearing on an Olivetti computer record strip which the latter had put at the disposal of the committee, were in complete agreement.

47 According to the committee, there was no possibility, bearing in mind the technical resources available at Ispra in 1971, of making up such a record strip artificially.

48 Consequently, the committee felt compelled to acknowledge the Olivetti computer record strip submitted by Mr Malvicini as genuine.

49 It concluded that the alterations to the experimental values and their communication in the form of a report by the applicant were unacceptable from the scientific and professional point of view, so that the members of the committee consider the severe criticismus addressed to the applicant to be justified.

55 The authors of the report confirm their opinion that the authenticity of the strips in question as relating to the experiments carried out by the applicant from 28 to 30 April 1971 cannot be doubted.

56 Although the Commission may be criticized for its excessive dilatoriness in carrying out its duty to carry out the inquiry prescribed by the Court in its judgment of 11 July 1974, the applicant has not suffered any damage by reason of that delay, since the outcome of the inquiry is distinctly unfavourable to him.

57 However, the applicant objected inter alia that neither the internal administrative committee nor the authors of the Boulenger report respected the rights of the defence.

58 He objected that they proceeded unilaterally without giving him any opportunity to examine, identify and if necessary to take copies of the documents to which their inquiries related and without allowing him to state his case.

59 In particular he stated that they based their views essentially upon one of the strips from the multichannel analyser, the authenticity of which had been challenged by the applicant.

JUDGMENT OF 7. 7. 1977 — CASE 43/74

66 In fact, the applicant was under a duty at once to give his immediate superior complete details of the progress of his experiments, without hiding any factors capable of raising doubts as to the results obtained.

67 That behaviour on the part of the applicant is enough on its own to justify Mr Malvicini's suspicions, which were expressed in the first evaluation given in the note of 4 May 1971 and reiterated subsequently.

GUILLOT v COMMISSION

68 Furthermore, it became increasingly clear during the Court proceedings that the essential part of the applicant's defence consists in denying the authenticity of the strips from the analyser printer relating to measurements Nos 37 to 41 which Mr Malvicini states that he found in the wastepaper baskets of the Centre at Ispra.

69 If the abovementioned strips were authentic, the results contained in the handwritten note submitted by the applicant to Mr Malvicini must have been falsified, so that the accusations made by the latter against the applicant would be justified.

70 Consequently, the Court should first of all turn its attention to those factors which affect this question, which is fundamental for the outcome of the action.

76 He has cast doubt upon a figure appearing on the strips in the hundreds column, pointing out that that figure could be read either as a zero or as a nine.

77 However, when those strips are compared with the normal trend of the curve representing the dissolution phenomenon in question, it emerges that the figure adopted by the authors of the Boulenger report is correct and that furthermore it corresponds to the figure indicated first of all by the applicant himself.

78 The applicant accuses the experts consulted by the Commission of having taken advantage of the fact that the difficulty in reading certain figures in the units column, owing to a mechanical defect in the printer, presented them with a number of alternatives in order to give the impression of a divergence between the results on the strip and those given in the applicant's report.

79 However, the experts consistently adopted the mean value 5, in the case of illegible figures.

80 The Commission has shown that if either 1 or 9 (the extreme values) is taken for every illegible figure, so as to obtain extreme results, the data given in the applicant's report of 7 May 1971 still remain within those two limits.

81 The applicant submitted different figures on the basis of this 'bracket' method, but the Commission pointed out that the difference was due to the applicant's having neglected to deduct the constant factor to take account of the 'background noise' of the equipment, a deduction which he had made in his analysis of the data of the experiments.

87 The applicant availed himself of the opportunity of submitting written observations on the hearing of those witnesses.

88 In his testimony, Mr Malvicini gave an entirely satisfactory explanation of the reasons why a period of six months had elapsed between the discovery of the strips and the further accusations of falsification contained in his note of 21 October 1971.

89 The applicant's written observations provided no cause whatever for doubting those reasons, which relate essentially to the difficulties presented by the applicant's absence from his work owing to a stay in hospital and then to periods of holiday.

90 It emerges from the testimony of the witnesses Benco, Dominici and Malvicini that, contrary to the applicant's statement to the effect that no experiment had been performed on 26 and 27 April 1971, such experiments had been carried out by Mr Malvicini and that the applicant had been aware of them.

91 The applicant admitted that he was aware of the 'tests' carried out by Mr Malvicini.

92 In the course of the oral inquiry the applicant asserted that he had prepared the xenon-131 gas and had then mixed it with the xenon-133 from the Study Centre at Mol.

98 In his handwritten report to Mr Malvicini, the applicant stated that, in order to compensate for the disturbing effect of the accidental displacement of a bottle, he had applied a correction factor to the results for the xenon-131, but not to those for the xenon-133.

99 However, in his subsequent report to the Director-General of the Centre at Ispra, he wrote that he had applied the correction factor to both gases, which, as the applicant had to admit in the course of his testimony, would have made the operation in question meaningless.

100 As regards the measurements which he took, the applicant stated that in order to obviate the mechanical defects of the printer relating to the units column he had, in calculating the results of the experiments, replaced the illegible figure sometimes with a 1 and at other times with a 9, but he did not explain why he chose sometimes one method and sometimes the other.

101 However, it emerges from an examination of the undisputed strips and from the figures used by the applicant in his report that he consistently replaced the missing figure with the mean value 5.

GUILLOT v COMMISSION

102 Finally, during his testimony, the applicant admitted for the first time that certain handwritten annotations on the strips relating to measurements between Nos 37 and 41 might have been written by him.

Costs

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

109 Nevertheless, under Article 70 of the Rules of Procedure, in actions by staff of the Communities, the institutions shall bear their own costs.

OPINION OF MR CAPOTORTI — CASE 43/74

110 Moreover, since the hearing of the witnesses was made necessary by virtue of the disagreements between the parties over certain points of fact, and since the applicant has failed in his submissions, he must pay the costs of hearing the witnesses.

On those grounds,

Delivered in open court in Luxembourg on 7 July 1977.

A. Van Houtte P. Pescatore

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL CAPOTORTI DELIVERED ON 12 MAY 1977 <apnote>1</apnote>

Mr President, the Commission and was concluded by Members of the Court, the judgment of 11 July 1974 ([1974] ECR 791). 1. The present case has close connexions with Case 53/72, which was The application in both cases arose as a brought by the same applicant against result of the following facts. By means of

1 — Translated from the Italian.