C-55/88
ECLI:EU:C:1989:364
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KATSOUFROS v COURT OF JUSTICE
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 10 October 1989 *
Mr President, Admissibility Members of the Court,
2. To begin with, the Court of Justice 1. These proceedings arise from a quarrel contends that the application is inadmissible which took place at work between Mr since the applicant has no legal interest in Katsoufros, an official, who is a lawyer- bringing proceedings. On the one hand, the linguist in the Translation Directorate at the failure to adopt disciplinary measures does Court of Justice, and Mr Constantinou, a not adversely affect any situation in respect former official of the Court, who at the of which he is entitled to legal protection; time was working as a free-lance reviser in on the other, he has already obtained satis that directorate. In the light of that incident, faction from the administration to a the applicant submitted a request under sufficient extent after being assured, Article 90 of the Staff Regulations, following the incident in question, that in informed the administration that he had future his translations would no longer be been physically assaulted and consequently revised by Mr Constantinou. asked, in connection with the duty of assistance referred to in Article 24 of the Staff Regulations, for appropriate — that is to say disciplinary — measures to be taken It may seem somewhat puzzling, on the one against the assailant. hand, for the Court to state that the applicant does not have an interest worthy of protection and, on the other, to deny him an interest in bringing proceedings on the ground that his substantive legal rights, Taking the view that the evidence gathered which he alleges to have been adversely did not confirm the applicant's version of affected, have in any event already been the facts, the administration refused to fully recognized and protected by the adopt the measures requested and merely administration. gave instructions that, in the future, Mr Katsoufros's translations were no longer to be revised by Mr Constantinou.
It is true that the contradiction detected in the defendant's argument is the result of the frequent confusion, often designed to Not content with that outcome, Mr strengthen the arguments for the defence, Katsoufros lodged a complaint which was between the lack of an interest in bringing rejected by decision of the Administrative proceedings and the lack of grounds for the Committee of the Court of Justice. It is that application, that is to say between the decision which forms the subject-matter of strictly procedural aspect and the substance this application. of the case. That confusion usually relates to an interest in taking action in the strict * Original language. Italian. sense, that is to say an interest in bringing
OPINION OF MR TESAURO — CASE 55/88
proceedings; less frequently — this being Moreover, in the event that an adminis easier to verify — it relates to an interest in trative measure is contested, the action is challenging an administrative act or a frequently based on a further interest, judgment, for the simple reason that an namely that the conduct of the adminis interest in bringing proceedings arises in tration should be free from any irregu those circumstances either from the larities, whether procedural or substantive. rejection by the contested measure of the original request or, in the event of a judicial decision, from the fact that the applicant has been unsuccessful either wholly or in part — matters which can be ascertained at It follows that a person has no interest in once without difficulty. bringing proceedings only where the contested measure is entirely consistent with
his request. In that case, the commencement of proceedings and possible annulment of the measure would have the effect of It is quite clear that this case turns on the compelling the administration to adopt a applicant's interest in challenging a measure, measure identical in scope to the one specifically the measure whereby the annulled. appointing authority rejected his request. Precisely because it is an adverse measure — on the substance, moreover, and not on the (original) interest in taking action — it is reasonable to suppose that the Still in that context, however, it must be applicant has an interest in challenging it apparent from the proceedings that the before the Court.
It is the classic example in contested measure has no adverse effects at textbooks on procedural law. all since it corresponds entirely as regards its scope and its effects to the subject-matter of the request submitted to the administration. Only in those circumstances can the investi gation carried out by the court be However, there is something more to be considered relevant to the issue of admissi said. To begin with, it is well known that a bility alone and not to the merits of the measure may be lawfully challenged by an action. individual who has what may be termed a personal interest in his request being granted, that is to say a person who is likely to derive a 'benefit' from the desired
outcome of the proceedings. A 'personal' Conversely, if the applicant argues before interest, however, cannot be understood as the court that the contested measure, meaning only an interest on the part of the though partially favourable to him, does not applicant in a modification of his subjective afford him sufficient protection in respect of material or economic rights, but must also his legal rights (in other words, where he include an interest in an outcome capable of has been partially unsuccessful), he cannot satisfying his non-material rights.
To take a be denied an interest in bringing an action. different view, as the defendant does in this In the event of the application being case, would be tantamount to denying the allowed, the possibility cannot be ruled out admissibility, for instance, of any action for that the administration may take a decision defamation in which the applicant seeks which is consistent to an even greater extent damages not for himself but for a charitable with the applicant's expectations, as set out institution. in the original application.
Furthermore, the
KATSOUFROS v COURT OF JUSTICE
benefit which must derive from the judicial of assistance referred to in Article 24, in decision may also consist — as frequently cases in which an official has been attacked emphasized in national case-law 1 — in an by a colleague. instrumental benefit which amounts merely to calling in question the contested relationship anew as a result of the annulment (as is usually the case, moreover, where a measure is annulled 'without prejudice to the adoption of further measures by the administration'). The institutions naturally have a broad discretion in assessing the requirements to be guaranteed and in choosing the specific measures to be adopted. This does not It should also be pointed out that, even in mean, however, that an official who those circumstances, the court will in any considers himself to have been insufficiently event review the scope of the administrative protected by the administration cannot ask measure in the light of the request made by the Court to review the administration's the applicant to the administration (in order conduct, though clearly within the limits of to assess, for instance, whether there has its jurisdiction to review legality. Although been a manifest disregard or distortion of he may not be entitled to a specific measure the facts suggesting that the measure is (for instance the adoption of a disciplinary unsuitable for achieving its purpose). measure), he is none the less entitled to ask However, the investigation will focus on the the Court to ascertain whether the act or substance and not on the admissibility of the omission on the part of the administration is action in view of the need in practice to vitiated by an abuse of power or by a ascertain whether the administrative manifest error in the assessment of the facts, measure did not overstep the bounds set by reflecting a failure by the administration to its governing provisions and is not vitiated discharge its duty of assistance towards him. by any manifest errors of assessment. In such cases, review by the Court will focus essentially on a comparison between the seriousness of the attack and the measure adopted as a result thereof, since a complete 3. Having said that, and turning to the failure to act on the part of the adminis circumstances of this case, my findings are tration or an evident lack of proportion as follows. between those two factors may constitute grounds for allowing the application.
To begin with, there is no doubt that the applicant has asserted a legitimate interest inasmuch as it is protected by the Staff Regulations and, in more general terms, by certain principles (duty of care and duty of Although the annulment of one measure proper administration) on which the rules does not necessarily entail the adoption by governing the European public service are the administration of another measure also based. It is established law that the which meets the applicant's wishes in every Community institutions are required to take respect, he will none the less have an action, particularly on the basis of the duty interest in his legal position being recon sidered in the light of the Court's judgment 1 — See, for instance, the judgment of 7 December 1976 of the since it may lead to a higher degree of Italian Council of State (Fourth Chamber) in Case 1221, in Consiglio di Stato 1976, I, 1343 protection than that previously afforded.
OPINION OF MR TESAURO — CASE 55/88
That is precisely the kind of review which is required, in the light of that provision the applicant seeks from the Court in this (but also, it may be said, by virtue of the case. He considers that his legitimate more general principle of proper adminis interest in obtaining adequate assistance tration) to intervene so as to ascertain the from the administration has been adversely facts and take appropriate action. 3Having affected by the contested measure. In my regard to the importance of the personal view, therefore, there can be no doubt that and general interests involved, that investi he has an interest in bringing an action, gation must be carried out in depth, inasmuch as — if his allegations prove to be promptly and impartially. Furthermore, the well founded — it may lead to the decisions adopted as a result of that investi annulment of the contested decision without gation must be such as to remedy any prejudice, evidently, to any further measures violation of the dignity and reputation of which the administration may adopt. the official concerned and guarantee the good name and proper functioning of the service, which evidently implies observance of the principle of proportionality. Substance
4. In support of his application for 5. In this case, in contrast to the view taken 4 annulment, the applicant relies on three in other proceedings, the administration submissions. has carried out a prompt inquiry into the incident in question, asking the parties to give their versions of what happened and soliciting statements from two eyewitnesses. (A) In the first place, he considers that the No other evidence appears to have been administration has infringed Article 24 of neglected in order to ascertain the facts, the Staff Regulations by failing to adopt with the result that, in my view, there are measures capable of remedying the no flaws in the preliminary investigation. aggression to which he fell victim. In particular, he points out that a disciplinary measure would have been proportionate to the gravity of the incident, whilst acknowl edging that in the precontentious procedure Although it is apparent from the evidence even a mere invitation to apologize would gathered, when we come to assess it, that a have been sufficient. quarrel in fact took place between the two officials, it does not permit the physical assault reported by the applicant to be considered proven in view of the conflicting accounts given by witnesses. As stated earlier, it is established law that Article 24 also applies to cases in which an 2 official has been attacked by colleagues. The Court has pointed out, moreover, that in the face of incidents which are incom patible with the good order, tranquillity and Nor can Mr Constantinou be held to blame efficiency of the service, the administration for his purely verbal attacks on the
2 — See, most recently, the judgment of 26 January 1989 in 3 — Ibid., paragraph 15 of the decision. Case 224/87 Koutchoumoff [1989] ECR 99, paragraph 14 4 — See, in particular, the judgment of 14 june 1979 in Case of the decision. 18/78 Mrs V. v Commission [1979] ECR 2099.
KATSOUFROS v COURT OF JUSTICE
applicant, since he was provoked by the authority also adds that, in any event, disci latter. It would appear that Mr Katsoufros plinary measures under the Staff Regu provoked Mr Constantinou by stating that lations are inapplicable to persons whose the latter had on two occasions expressed status is that of free-lance agents. differing assessments of the former's professional ability solely in order to ingratiate himself with a view to obtaining a free-lance contract. The applicant was therefore in a position to take cognizance of the reasons on which the measure was based and to seek, if necessary, a review thereof by the Court. In fact the On the strength of those factors, therefore, proceedings before the Court focused it cannot be said that the administration was precisely on those aspects. absolutely bound to intervene, in connection with its duty of assistance, by taking steps or measures of whatever type or nature The criticism relating to the absence of a against Mr Constantinou and in defence of statement of reasons must therefore also be the applicant. rejected.
Accordingly, it serves no purpose to raise 7. (C) Finally, the applicant challenges the the question whether or not the decision view that a former official, even one that Mr Constantinou was no longer to working on a free-lance basis, cannot be revise work translated by Mr Katsoufros subjected to disciplinary measures. was appropriate.
That contention may be correct in theory, The submission alleging infringement of in the sense that, according to the wording Article 24 of the Staff Regulations must of Article 86 of the Staff Regulations, disci therefore be rejected. plinary measures are also applicable to former officials. However, it would still be necessary to establish whether, in those circumstances, penalties may be imposed for 6. (B) The applicant further submits that any breach of the obligations arising from the reasons stated in the contested decision the Staff Regulations or only for breach of are inadequate. the duty to behave with integrity and discretion (Articles 16 and 17), which is the only duty expressly stated to be binding even on persons who have left the service. It is sufficient to point out that in its decision the appointing authority clearly stated the reasons why no breach of the duty of assistance had occurred in this case. However, that question would appear to be In particular, reference is made in the purely theoretical since, in this case, as decision to the investigation carried out by stated earlier, no breach of the obligations the administration and to the objective arising from the Staff Regulations has been impossibility of ascertaining precisely who established and consequently the adminis was to blame owing to the witnesses' tration was not required to take any conflicting accounts. The appointing measures in relation to Mr Constantinou.
OPINION OF MR TESAURO — CASE 55/88
Even on the assumption that the statement In other words, that observation is justified in the contested decision to the effect that inasmuch as its purpose was to show that disciplinary action may not be taken against the administration's answer was not in former officials is incorrect, that error could keeping with the applicant's request. not in any event invalidate the measure in Therefore it is logically relevant to the question inasmuch as it is not one of the arguments put forward by the applicant in fundamental grounds on which the measure support of his allegation that Article 24 of is based. the Staff Regulations has been infringed.
Hence the applicant's third submission must also be rejected.
In my view, it is also important to point out that, in this case, although it is true that it has not been possible to establish whether the assault allegedly committed on Mr Costs Katsoufros by Mr Constantinou actually took place, it is equally true that it has in no way been established that the applicant lied when giving his version of the incident. In those circumstances, I do not believe that the applicant's action can in any way be 8. The Court of Justice takes the view that, regarded as reckless. On the contrary, it as the action is vexatious, the applicant must be acknowledged, it seems to me, that should be ordered to bear the whole of the there was an objective interest in costs. considering whether or not, in carrying out the investigation and adopting the decisions in question, the administration exceeded the bounds of its discretion.
It is true — as the Court has pointed out — that the applicant has contested the legality of the administration's practice of resorting to free-lance agents in order to meet the requirements of the Translation Directorate. None the less, that observation is also justified inasmuch as it aims to show that, in deciding that a free-lance agent was Finally, in view of the specific nature of the no longer to be entrusted with revision, the case and the subsistence of doubts regarding administration acted exclusively with a view the facts themselves, I believe there are no to remedying a situation that was not grounds for the view that this action seeks entirely lawful, or was at any rate inappro to achieve aims which are unconnected with priate, and its decision therefore constitutes those inherent in any review of the legality merely a measure pertaining to internal of administrative conduct, with the result organization and not a proper discharge of that the general rule concerning the appor its duty of assistance towards the applicant. tionment of the costs must be applied.
KATSOUFROS v COURT OF JUSTICE
9. I therefore suggest that the Court:
(i) declare the application admissible;
(ii) dismiss it as to the substance;
(iii) order the parties to bear their own costs.