C-128/75

Article 24 requires that where there are possible to restore the good name of the serious accusations as to the integrity of official concerned. The obligation to an official in carrying out his duties, the assist also applies in a case in which the administration should take all necessary official injured has not himself taken the steps to establish whether the accusations initiative in pursuing the person are justified and where they are not responsible for the attacks against him. should refute them and do everything

In Case 128/75,

Mr N., an official of the Commission of the European Communities, represented by Betsy Calande, Advocate of the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 B IV rue Philippe II, applicant, v

Commission of the European Communities , represented by its Legal Adviser Giorgio Pincherle, acting as Agent, assisted by Denise Sorazio-Allo, member of the Legal Department of the Commission, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Bâtiment CFL, place de la Gare, defendant,

Application for the annulment of the implied rejection by the Commission of a complaint by the applicant directed towards obtaining the assistance of his

1 — Language of the Case: French.

JUDGMENT

Facts

The facts and the arguments of the described him as an 'irritating official by parties put forward during the written reason of his tendency to cause procedure may be summarized as complications with considerations follows: irrelevant to the work and frequently matters of pure invention'; as a result of this assessment the applicant's I — Facts and procedure probationary period was extended for three months. 1. The applicant entered the service of the former High Authority of the On 1 October 1972 the applicant was European Coal and Steel Community in established. 1963 as a member of the local staff employed as a locksmith. In 1970 he was transferred to Brussels and assigned to a The tasks assigned to the applicant post of locksmith in the maintenance involved being in charge of the labour workshop of the Commission's buildings. made available to the Commission by a Brussels company, 'X', with which the Commission had contracts to this On 1 January 1972 he was appointed purpose. probationer in Grade D 1 and assigned to a post as head of the section dealing with maintenance of locks and metal work. In letters written to his superiors from The first report on the probationary 1972 onwards the applicant made period made on 16 May 1972, while numerous criticisms of the company X recognizing that the quality of the work which he said was sending insufficiently done by the applicant was 'very good', qualified workmen to the Commission.

MR N. v COMMISSION

2. On 25 March 1974 Mr B, the On 19 April 1974 the applicant sent the director of this company, sent a letter to assitant a letter asking him to forward a the Director-General for Personnel and photocopy of the letter from Mr B. He Administration of the Commission enclosed with his letter a number of suggesting that he should 'intervene in statements made by workers of the the situation which has arisen in Mr N.'s company X who were under the orders workshop where our locksmiths are of the applicant praising him and in working. This letter contained the particular the way in which he treated his following statements: subordinates.

3. On 17 December 1974 the applicant In a memorandum dated 17 April 1974, sent the appointing authority a request the assistant of the Director-General: under Article 90 of the Staff Regulations: — Informed the applicant of the — Pointing out that at a meeting on 8 existence of the abovementioned October 1974 representatives of the letter and certain details of its administration, including the said contents but stressed that in the Director-General, informed the absence of the Director-General he applicant's advocate that no decision had no authority to forward a copy of would be taken in the case in the letter to the applicant; question; — Stated that the Director-General had — Requesting the Commission: asked the head of division concerned — To ensure that Article 24 of the to hear the parties; Staff Regulations is respected'; — Requested the applicant to forward to — To inform the applicant of the him for the Director-General's results of the inquiry, to pursue it attention 'a brief written report on and to inform the applicant the working relations which you have 'officially and fully of the with the locksmiths in question'. particulars in the file';

JUDGMENT OF 18. 10. 1976 — CASE 128/75

compensation for the non-material and material damage' suffered by him arising The Commission claims that the Court from the fact that the Commission did should: not assist him as provided for in Article — Declare the present action 24 of the Staff Regulations. The applicant inadmissible and in any event stated that the accusations made against unfounded and dismiss it in its him were known to the workmen in the entirety; metalwork and locksmith workshop and — Order the applicant to bear the costs. to his colleagues and immediate superiors. The fact that no action had been taken with regard to the said III — Submissions and argu­ accusations did not suffice to repair the ments of the parties 'damaging situation' which they had caused since the inquiry was not 1. Admissibility conducted in the presence of the parties and the applicant had not been informed A — The applicant states in his of its results. application that the objective of the

MR N. v COMMISSION

B — The Commission considers that The Commission in answer says that the the second head of the claims is likewise letter from Mr B. must be looked at in inadmissible on the ground that on the the general light of the previous conduct one hand assessment of the applicant's of the applicant as it emerges in conduct is within the administration's particular from the critical remarks with discretion and on the other hand the said regard to him in the reports on his head is 'outside the ambit of the dispute probationary period. The applicant between the applicant and the always insisted that the Commission Commission'. should employ local staff instead of an external work force. The differences of The applicant restricts himself to view on this, which was in no way a observing that the Commission does not matter for the applicant, led to friction contest the admissibility of the first and between the applicant on the one hand third heads of claim which contain the and his superiors and the company X on main objectives of the action. the other. Further in spite of repeated instructions given to him in this respect, 2. Substance the applicant had never made weekly reports on the work in the sector of The applicant states that he has always which he was in charge. This neglect tried to protect the interests of the prevented the administration from being Commission in particular vis-à-vis the in possession of the facts enabling it to company X; these efforts have earned judge the conduct of the company X, him the unjustified reputation of having which was criticized constantly by the a difficult character. applicant before his superiors and colleagues and the workmen of this Article 24 of the Staff Regulations company but against which the requires the institutions to protect their Commission had no serious complaints. officials against unjustified accusations by third parties and this obligation arises Following the letter from Mr B., the likewise under the general principle, Director-General for Personnel and described in German law as Administration had instructed the 'Fürsorgepflicht', that institutions are Director for General Services and Office required to look after the material and Equipment to conduct an internal non-material well-being of officials. In inquiry. This inquiry had involved

applicant would in no way be adversely consequences for him. Further it had not affected. This outcome appeared been in a position formally to reject the satisfactory to the applicant's lawyer. criticisms made by Mr B. since they were only the clumsy and exaggerated Action for annulment expression of real difficulties and the applicant had refused to supply the The interpretation of the first paragraph necessary supplementary information. of Article 24 of the Staff Regulations sought by the applicant is too wide. This In brief the Commission had acted in provision, as appears from the use of the the best interests of the applicant by word 'assist' which has a different giving him a reply with little detail. meaning from 'protect', is intended to cover only the case where the official has The action for damages himself already taken the initiative to defend himself against threats, insults The applicant has not adduced the and the like, of which he has been the slightest evidence to establish the object. Article 24 therefore does not existence of material damage. There is no apply in the present case since the non-material damage because the applicant has not informed the administration has refrained from Commission that he has proceeded impugning in any way the applicant's against Mr B. and in any event has not good character and has avoided all asked the Commission to assist him in publicity other than what was strictly an action of this nature. necessary.

obligation even when it is to the his superiors, are not unrelated to the institution that defamatory accusations present case. have been made against one of its officials and on the other hand that in It follows from the second paragraph of such a case the official is required to Article 24 of the Staff Regulations that bring the matter before the national the Communities are not required to courts with the assistance of the compensate damage caused to one of institution where necessary. In the their officials except where he has been present case the Commission was unable to obtain compensation from the involved, as a result of its action or person causing the damage. negligence, in the defamation in question originating from an undertaking The file shows clearly that the connected with the administration by a Commission has even gone beyond its contract to supply services. obligations under the regulations and that it cannot be reproached for failure to Although the Commission has refrained act or negligence and even less for 'being 'from giving... any foundation' to this involved' in the accusations made against defamation it has neglected to take all the applicant. Moreover the latter has not proper measures to put a definite end to specified what measures would have it; thus there was a wrongful omission. completely satisfied him.

When the written procedure was The damage arises from the fact that the concluded, on hearing the Commission's attitude unjustifiably Judge-Rapporteur and the views of the lessens the applicant's career prospects. Advocate-General the Court (Second Chamber) decided to open the oral The Commission replies that in its procedure without preparatory inquiry. defence it has refrained from any allegation of fact in respect of the The parties put forward oral observations applicant which it has not been able to at the hearing on 16 September 1976. support with a document. Further the facts to which it has referred, in The Advocate-General delivered his particular the applicant's persistent opinion at the hearing on 30 September refusal to comply with certain orders of 1976.

5 The applicant claims in his application (1) the annulment of the implied rejection of the abovementioned complaint, (2) that the Court should require the Commission to acknowledge 'that the accusations... are baseless' and should bring such acknowledgement to the notice of all persons having knowledge of the dispute, and (3) order the Commission to pay damages.

6 The observations of the applicant in his reply must be understood as meaning that he does not intend to maintain the second claim with the result that it is

not necessary to rule on the objection of inadmissibility made by the Commission with regard to this claim.

7 Complaint is made that the Commission has to the prejudice of the applicant disregarded the obligation to assist him under the first paragraph of Article 24 of the Staff Regulations which provides: The Community shall assist any official in its service, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances ... to which he ... is subjected by reason of his position or duties'.

8 It is alleged that the Commission has not taken the measures necessary to re-establish the applicant's good character which the letter in question seriously impugned.

MR N. v COMMISSION

15 If the Commission had found the accusations justified, if only in substance, it would necessarily have had to draw the consequences in respect of the applicant.

16 Nevertheless the applicant complains that the Commission has conducted the inquiry in a questionable manner and in particular has not confronted him with the writer of the letter and further has omitted 'to clarify the matter' by notifying him of the results of the inquiry.

JUDGMENT OF 18. 10. 1976 — CASE 128/75

17 First it was for the Commission to decide whether it was appropriate or not to bring the accuser and accused together to clarify as far as possible the facts in question.

18 The applicant cannot complain that the Commission has not expressed the results of the inquiry more clearly since by his conduct he has himself prevented the Commission from giving a ruling with full knowledge of the matter.

19 He has constantly refused to comply with the repeated request of his superiors to make weekly reports on the activity of the work force supplied to the Commission by the undertaking in question albeit one of the causes of differences between the undertaking and the applicant was precisely the fact that the applicant regarded the work force as insufficiently qualified.

THE COURT (Second Chamber)

hereby:

MR N. v COMMISSION

1. Dismisses the application as unfounded;

2. Orders the parties to bear their own costs.

Pescatore Kutscher Sørensen

1 — Translated from the French.