C-326/91

DE COMPTE v PARLIAMENT

OPINION OF ADVOCATE GENERAL LENZ delivered on 10 November 1993 *

Summary

I 96 A —Introduction -20

I 97 B — Discussion -20

9 Expiry of the limitation period I-20 7

The failure to comply with the obligation to administer payment credits in a proper

manner I-2122

The failure to comply with the obligation to effect expenditure only on presentation of proper supporting documents and to keep such documents in a safe place I-2126

Infringement of Article 86(1) of the Staff Regulations and of Articles 70(1) and 71 of the Financial Regulation, the failure to comply with the principles of equal treatment, equity and the impartial administration of justice, and the misuse of powers I-2132

Breach of the principle of proportionality I-2136

The submissions concerning the appointment of a committee of experts I-2137

Mr President, in the absence of the accused or his legal rep­ Members of the Court, resentative. The defendant informed the applicant on 9 December 1986 of its inten­ tion to reopen the proceedings against him and after the applicant had again been heard (second paragraph of Article 87 of the Staff A — Introduction Regulations) and after a formal reopening of the disciplinary proceedings on 24 June 1987 the defendant, by decision of 18 Janu­ ary 1988 imposed the disciplinary measure of 1. In this case the Court of Justice is called downgrading the applicant from Grade A 3, upon to decide upon an appeal brought by Step 8, to Grade A 7, Step 6. the former official Henri de Compte (the applicant at first instance, hereinafter referred to as 'the applicant') against a judg­ ment delivered by the Court of First Instance on 17 October 1991 (Case 3. That decision was based on a series of T-26/89). 1 irregularities of which the applicant was accused in the course of the administration of a bank account of the Members' cash office. The facts regarding the administration of this bank account are uncontested on 2. Until his transfer on 30 April 1982, the many points. They are set out in paragraphs applicant was an accounting officer in the 39 to 54 of the judgment under appeal, to service of the Parliament (the defendant and which I refer. respondent to the appeal, hereinafter referred to as 'the defendant'). In September 1982 irregularities of which the applicant was accused in the course of his ostensible responsibility for the members' cash office were referred for the first time to a disciplin­ 4. The complaints upheld against the appli­ ary board. However, the proceedings were cant include the following: cancelled by the appointing authority by rea­ son of a procedural error. After the comple­ tion of fresh proceedings the defendant in March 1984 imposed the disciplinary mea­ — opening an interest-bearing account with sure of removal from post which, upon com­ the Midland Bank, London, on plaint from the applicant, was commuted 21 July 1980, and depositing therein a on 24 May 1984 to a more lenient penalty, sum of UK £400 000 at 16% without namely downgrading to Grade A 7, Step 6. prior authorization, accounting entries or That measure was declared void by the entries regarding interest in the Parlia­ Court of Justice by judgment in 2 ment's accounts for 1980 and 1981; Case 141/84, delivered on 20 June 1985, on the ground that witnesses had been examined

Expiry of the limitation period — failure to comply with the accounting officer's duty to effect expenditure only on production of proper supporting documentation and to ensure the safeguard­ ing of the Parliament's assets. The 7. The applicant claimed before the Court of absence of proper supporting documen­ First Instance that the disciplinary proceed­ tation related to a discrepancy between ings which led to the contested decision were the physical assets of the Parliament's initiated after the expiration of the limitation members' cash office and the general period laid down by Article 72 of the Finan­ accounts amounting to BFR 4 100 000, cial Regulation, which provides: 'Each insti­ appearing after the entry of the tution shall be allowed a period of two years BFR 4 136 125 arising from the encash­ from the date when the account for revenue ment of the two cheques drawn on the and expenditure is submitted to take a deci­ Midland Bank. sion on the final discharge to be given to accounting officers for the transactions relat­ ing thereto'.

5. The applicant's action against that deci­ sion, which was based on grounds concern­ ing 'formal' and 'substantial' legality, was 8. He claims that once that period has dismissed by the Court of First Instance in expired the discharge is granted by implica­ the judgment at issue. In this appeal the tion, that is, the accounting officer is released applicant repeats twelve of the pleas in law from his responsibility for the formal regu­ which he originally put forward and takes larity of the accounts. Disciplinary proceed­ the view that the Court of First Instance, in ings involving merely formal complaints rejecting them, failed to comply with Com­ must therefore also be brought within two munity law. years (from 31 May of the year following the

12. The applicant is challenging before the 10. In the second place the Court of First Court of Justice all three of the findings of Instance refers to the principle that disciplin­ the Court of First Instance to which I have ary measures are independent of other referred. Let us deal first with the applicant's administrative proceedings. In this connec­ objections to the first two findings, concern­ tion it refers to the Order of the President of ing the relationship between the disciplinary the Third Chamber of the Court of Justice in proceedings and the proceedings for the Case 141/84R, 4 where a distinction was grant of a final discharge within the meaning made between the grant of final discharge of Article 72 of the Financial Regulation. under Article 72 of the Financial Regulation and the disciplinary proceedings. The alleged implied final discharge after a period of two

13. The applicant repeats his arguments at 3 — In this connection the Court of First Instance refers to the first instance and expresses the opinion that judgment of the Court of Justice in Case 41/69 ACF Che- miefarma NV v Commission [1970] ECR 661. the view of the Court of First Instance in 4 — De Compte v Parliament [1984] ECR 2575. By that Order this respect is wrong in principle. With the operation of the first disciplinary measure — of 24 May 1984 — was suspended untiljudgment in the regard to the question of a limitation period main action. for the initiation of disciplinary proceedings

I - 2098

DE COMPTE v PARLIAMENT

6 — See paragraph 60 of the contested judgment. 5 — With regard to their nature, see paragraph 88 of the con­ tested judgment and paragraph 53 below. 7 — Paragraph 69 of the grounds of the contested judgment.

I - 2099

OPINION OF MR LENZ — CASE C-326/91 P

provision was adopted under Article 209 of from the fact that the two procedures are the EEC Treaty (now the EC Treaty) and the independent of one another that the alleged corresponding provisions of the other Trea­ implied discharge after the expiration of a ties according to a procedure differing in period of two years is no bar to disciplinary essential points from the procedure envis­ proceedings against the applicant. He states 8 aged by Article 24 of the Merger Treaty for that the discharge has a minimum implica­ the adoption of the provisions of the Staff tion, namely to release the accounting officer Regulations. from responsibility for the regularity of the accounts.

8 — Treaty of 8 April 1965 establishing a Single Council and a 9 — See paragraph 30 below and footnote 15. Single Commission of the European Communities. 10 — See paragraph 33 below and footnote 20.

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event have the effect that the applicant was 25. That argument must be rejected. deemed to have been discharged. To ascribe According to case-law the declaration that a the effect of discharge to the fact that the disciplinary measure is void on grounds of a time-limit was not observed is in my view procedural error as a rule puts the procedure not legally tenable. The Financial Regulation back to the stage at which the procedural does not envisage such an effect. But without error occurred. 11The appointing authority a provision in that sense it cannot be may resume the proceedings as from that assumed that there will be such an effect. point until the final decision. That would mean a considerable encroach­ ment upon the institution's prerogative to examine the regularity of the work of the accounting officer and thus to guarantee the correct management of Community resources. Moreover, this case shows that the 26. Of course it cannot in theory be ruled decision on discharge may take an extremely out that the appointing authority may in an long time precisely when the question of individual case take the judgment of the irregularities has arisen. The applicant's argu­ Court as a reason for discontinuing the orig­ 12 ment about implied discharge might there­ inal proceedings and starting fresh ones. fore result in the granting (fictionally) of But the answer to the question which of the such a discharge in the very cases in which two methods the appointing authority has there might be a special reason for refusing chosen in a specific case lies in an apprecia- it. tion of the facts, or more precisely of how it acts following the judgment declaring the proceedings void. In this case the Court of First Instance was guided decisively by the fact that the appointing authority had 23. That argument put forward by the appli­ referred to the disciplinary board (which had cant must therefore also be rejected. committed the procedural irregularity estab­ lished in the Court's judgment of 20 June 1985) the same report as on 13 April 1983.

First Instance, which is restricted to matters 13 of law, cannot be based on such an argu­ 14 ment.

According to the operative part of the deci­ sion the Parliament 'grants the final dis­ charge to the accounting officer of Parlia­ 28. The applicant's criticism concerning the ment in respect of the 1981 financial year'. findings as to the date of the opening of the disciplinary proceedings therefore also fails.

31. In the applicant's opinion that decision by itself renders the disciplinary proceedings, 29. The plea with regard to the expiry of the which concerned exclusively charges regard­ limitation period must therefore in any event ing the formal regularity of the accounts, be rejected. inadmissible and void.

The grant of the final discharge for the 1981 financial year 32. In addition the applicant claimed in the application that it was immaterial that the discharge for the 1982 financial year had been granted him with a reservation con­ cerning the very point at issue in this matter, 17 namely the question of the BFR 4 million. In that respect he referred principally to the 30. In his application the applicant relied on fact that that question had been dealt with 15 the fact that in a decision of 10 April 1984 by the discharge effect of the decision to he had been granted a final discharge for grant a discharge for 1981, or alternatively the 1981 financial year. In the preamble to that he had been discharged for the financial that decision the European Parliament had year 1982, or in the further alternative that regard to the fact that:

on his transfer on 30 April 1982 and his the final discharge cannot be partial (cf. the replacement by a new accounting officer decision of 10 April 1984 for the year 1981 there had been no rendering of accounts so and that of 11 July 1986 for the year 1982); that the appointing authority itself had made it impossible to establish for the financial year 1982 what was within his sphere of responsibility and what within that of his 18 successor. the validity of a decision granting final dis­ charge cannot be restricted by a recital in the preamble to the decision (cf. the decision of 10 April 1984 for the year 1981). 33. In his reply the applicant also went into detail with regard to the Parliament's deci­ 19 20 sions of 18 May 1983 and 11 July 1986. The first dealt with the 1981 financial year and contained the final discharge of the Pres­ ident and the statement that it was necessary 22 to postpone 'final discharge to the account­ 34. The Court of First Instance observed ing officer to enable the Committee on Bud­ first that the disciplinary proceedings were getary Control to effect certain work'. The independent of the final discharge procedure. decision of 11 July 1986 related to the 1982 Consequently even if the decisions financial year. In it the Parliament granted of 18 May 1983 and 10 April 1984 had con­ final discharge to its President and autho­ tained a final discharge, either expressly or rized him 'to grant discharge to its account­ by implication, for the 1981 financial year, ing officers ... excluding therefrom the sum that could not preclude the institution of dis­ of ECU 91 263 and the matters relating ciplinary proceedings against the applicant, thereto described in the letter from the Pres­ particularly since those proceedings were 23 ident of the Court of Auditors instituted on 13 April 1983, that is, prior dated 7 November 1985 and the accompany­ to the decisions in question. The Court of 21 First Instance then examined both the said ing advice of the Court of Auditors'. In the applicant's opinion: decisions. It rejected, by reference to the 24 wording of the decision, the applicant's view that the discharge to the President in the decision of 18 May 1983 automatically implied a discharge for the accounting the discharge to the President (cf. the deci­ officer. With regard to the decision sion of 18 May 1983 for the year 1981 and of 10 April 1984 it declared that its meaning that of 11 July 1986 for the year 1982) was to be deduced by reference to the pre­ 25 implies at the same time the discharge of the amble, according to which the Parliament accounting officer;

had reserved to itself the right to comment, 36. In this respect it should be observed that in the context of the discharge for 1982, in paragraphs 80 and 81 of the contested on the points at issue. Finally the relevant judgment, the Court of First Instance came financial year was not 1981 but 1982, to the conclusion, on the basis of the word­ since in 1981 no accounting entries had ing of the decisions of 18 May been made, whether relating to payment or 1983, 10 April 1984 and 11 July 1986, that recovery, in respect of the sum of the applicant received a final discharge nei­ 26 BFR 4 136 125, so that it was impossible, ther for 1981 nor for 1982. In particular it in checking operations at the end of that found that the applicant's discharge for the financial year, to determine whether there financial year 1981 was made subject to a had been a surplus or a deficit. For the reservation according to which the com­ 1982 financial year, however, the authority to plaints made in the disciplinary proceedings the President to grant a discharge to the would be considered in the context of the accounting officers had been made subject to discharge for 1982. The Court of First 27 an express reservation. Instance found that there had been a similar reservation for the 1982 financial year, namely with regard to the authorization to the President to grant the accounting officers 35. The applicant's criticism of these find­ a discharge. ings may be divided into three parts. First he repeats his argument with regard to the sig­ nificance of the discharge decision for the 2 disciplinary proceedings 8and claims that 37. Those considerations would have been those proceedings, now at issue, contrary to sufficient for a rejection of the applicant's the statement of the Court of First Instance, ground of complaint now under consider­ had been instituted not on 13 April 1983 but 29 ation. I shall now show that they answer the only on 9 December 1986. Secondly he applicant's pleas, so that there can be no thinks that the Court of First Instance did objection to the rejection of this ground of not answer his arguments concerning the sig­ complaint. nificance of the discharge to the President, to the impossibility of a partial discharge and to the point that the purport of a discharge results only from the operative part of the 38. Contrary to the applicant's view, the decision. Thirdly, the Court of First Instance Court of First Instance has complied with its did not consider his argument that the duty to provide a proper statement of rea- appointing authority, for lack of a rendering sons. 30 It has actually given a satisfactory of accounts on 30 April 1982, had made it reply to the arguments put forward in the impossible for itself to define his liability for application. the 1982 financial year as against that of his successor. The rejection of the plea in ques­ tion by the Court of First Instance is there­ fore unlawful as the Court gave no reasons, 39. First the question raised therein as to or mistaken ones. whether a discharge was granted to the applicant for 1981 and 1982, relates, as such, only to the interpretation of the relevant

decisions. The applicant's argument in the the rendering of accounts which was in his application did not on the other hand give view essential), was raised by him in a sep­ any reason to inquire whether these deci­ arate plea which the Court of First Instance 33 sions were permissible in the form in which examined in detail. In the present connec­ they were issued. In particular the Court of tion the Court therefore rightly took into First Instance did not need to inquire account only the arguments by which the whether the discharge could be issued in par­ applicant claims he was granted an express tial form and whether it could be refused to final discharge for the 1981 and 1982 finan­ 34 the accounting officer for the periods and cial years. amounts for which the President had received a discharge. The Court of First Instance was therefore entitled under Art­ 41. It is in any event correct that the appli­ icle 42(2) of the Rules of Procedure of the cation raised the question of whether the Court of Justice, which were at that time purport of the decision of 10 April 1984 applicable by analogy, to leave out of should be determined by taking its preamble account the grounds of complaint contained into account. However, the Court of First in the reply, in which these questions were Instance did deal with this in paragraph 80 of raised. If the applicant had wished to raise the judgment, even though only very briefly these or other questions of law on this sub­ for lack of arguments substantiated by the ject, which is marked by both difficult and applicant. complicated legal problems, on which there 31 are few rules and for which institutional practice has not so far been discussed in the case-law, he should have specified them 42. As therefore no objection can be found clearly in his application. to the views of the Court of First Instance with regard to the duty to state reasons, the applicant's pleas of substance must now be considered briefly. As regards the Court's findings examined here, the applicant (apart 40. Nor do I find in the contested judgment from the argument already considered with any failure to specify the reasons on which it regard to the absence of a rendering of is based as regards the argument in the appli­ accounts on 30 April 1982) simply repeats cation relating to the lack of a rendering of the arguments set out in the reply at first 3 accounts on 30 April 1982. 2In fact that instance. In so far as those pleas had to be argument does not concern the discharge of left out of account by the Court of First the applicant (for 1982) but the question Instance as new pleas not contained in the whether the infringements alleged against application, 35 they cannot, under Rules him are proved. At no time did the applicant 113(2) and 116(1) of the Rules of Procedure claim that this lack had the same effect as a of the Court of Justice, be put forward by discharge (which would at least have been, way of an appeal either. 36 All that remains legally speaking, highly questionable). How­ therefore is to examine the applicant's argu- ever, the question whether the applicant's lia­ bility could be proved (if necessary without

46. I. In view of the applicant's pleas that the disciplinary proceedings had been insti­ tuted or continued, or both, subject to unreasonable delay, the Court of First Instance considered the various stages of the 43. For form's sake let me refer to the fact proceedings. First it excluded from his calcu­ that that argument, correctly understood, lation 'the time spent by the applicant in pre­ does not relate to the interpretation which paring his defence before the Court of Jus­ the Court of First Instance, as judge of the 37 tice'. On the basis of this premiss it came facts, gave to the text of the decision in ques­ to the conclusion that the question whether a tion. Instead the applicant is asserting a rule reasonable time-limit had been observed of law according to which reference may be could be raised on two occasions. The first made only to the operative part for the pur­ concerned the period of eight months in poses of such interpretation. which the first disciplinary board was con­ sidering the case (from 2 June 1983 to 10 February 1984); the second concerned the period of 18 months which elapsed between delivery of the judgment of the Court of Jus­ tice declaring his downgrading void and the despatch of the letter from the President of 44. However, he did not specify that rule. the Parliament requesting the applicant to Nor is it possible to find any such provision give his observations in pursuance of the sec­ in written Community law. In fact from the ond paragraph of Article 87 of the Staff Re­ nature of a decision granting final discharge gulations (from 20 June 1985 to 9 December 3 it may be deduced that the extent of the dis­ 1986). 8 charge must emerge clearly and unequivo- cally from the decision, in which respect it is surely possible to take into account whether the relevant passage is contained in the oper­ 47. II. 1. The applicant first claims that the ative part or in the preamble to the decision. disciplinary proceedings, which in any case However, there is nothing to show that the concerned events which had taken place Court of First Instance, in interpreting the prior to his transfer on 30 April 1982, were contested decision of 10 April 1984 by refer­ instituted only on 24 June 1987, that is, more ence to its preamble, ignored the require­ than five years later. That was therefore far ment of clarity. in excess of any reasonable period.

49. 2. The applicant's second argument con­ cerns the fact that the Court of First Instance excluded from its calculation 'the time spent by the applicant in preparing his defence 52. My view is that it should not. Article 7 before the Court of Justice'. of Annex IX to the Staff Regulations shows that the time-limits applicable to disciplinary proceedings relate to the intervals between specified individual steps in the proceedings 50. First it must be noted that the Court of and not the total duration of the proceed­ First Instance obviously took into account ings. That relates to the fact that the individ­ the time between the disciplinary decision in ual steps all have a significance of their own. its final form of 24 May 1984 and the judg­ In accordance with that approach the Court ment of 20 June 1985 by which the Court of of First Instance regarded the disciplinary Justice declared the decision void. The appli­ authorities as required to proceed in such a cant's view is that in order to avoid infring­ way that each procedural step is taken within ing the principle of the protection of the a reasonable period following the previous 4 rights of the defence the Court of First step. 0 If, in the event of a formal error, as Instance ought not to have excluded this here, a judgment of the Community Court period from its calculation. In any event, in declaring the proceedings void takes them order to observe that principle it ought to back to a stage before they were initiated, the have taken into account the fact that that time-limit for the relevant stage in the pro­ action was shown to be justified. The find­ ceedings must necessarily start to run 41 ings of the Court of First Instance, the appli­ afresh. cant claims, made him, as it were, responsible for the delay due to circumstances for which the defendant was to blame. Moreover the arguments of the Court of First Instance were contradictory because on the one hand 53. Moreover the applicant bases his argu­ in this matter it left out of account the ques­ ment on the view of the Court of First tion whether the action brought by the Instance to the effect that failure to meet a applicant was justified or unjustified, but on reasonable time-limit 'may not only render the other hand it had regard to the circum­ the institution liable, but may also result in stances justifying on behalf of the appointing the measure adopted after the expiry of the 42 authority the period which elapsed between period being declared void'. So far as I am the judgment of 20 June 1985 and the state­ 39 ment of 9 December 1986. 40 — Paragraph 88 of the contested judgment. 41 — See in this connection the unambiguous judgment in Case 13/69 Van Eick (footnote 11 above). 39 — See paragraph 2 above. 42 — Paragraph 88 of the contested judgment.

58. That view cannot be accepted. The disci­ plinary proceedings instituted on 30 Septem­ 54. All that does not alter the fact that an ber 1982 were cancelled by the appointing infringement of procedural rules, as for authority itself on 14 January 1983. The example the principle of protection of the periods considered by the Court of First rights of the defence, may constitute a Instance therefore do indeed fall within the wrongful act or omission which under nor­ new proceedings. The fact that the cancella­ mal conditions may involve the liability of tion was the result of a procedural error can­ the institution. The disadvantages which may not — contrary to what the applicant appar­ have arisen as a result of the delay in the dis­ ently thinks — lead to regarding the two ciplinary proceedings arising from the litiga­ separate sets of proceedings as a single one. tion before the Community Court are thus Otherwise the measure at issue could be appropriately taken into account. declared void as a result of the original pro­ cedural irregularity, which is precisely what the authority wished to prevent when it can­ celled the original proceedings and instituted fresh ones. 55. Accordingly the applicant's argument must be rejected.

43 — Judgment in Van Eick (footnote 11) at paragraph 7; judg­ ment in Case 228/83 F. v Commission [1985] ECR 275, 59. It should further be noted that the con­ paragraph 30. sideration of the period in question relates to

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As the second period. In doing so, he claims, the contested judgment did not go into that Court was making a choice inconsistent with point, the applicant claims that the statement the date it selected to mark the beginning of of the reasons on which it was based is insuf the first period, which the Court took as the ficient. date of the first meeting of the disciplinary board, whereas it selected the date on which the President's intention to reopen the pro ceedings was communicated to the applicant 63. I do not regard that plea as sound.

61. This argument does not convince me ing authority in fixing the disciplinary mea- either. As I have said, the first period con sure considered the total period which had cerns the work of the first disciplinary elapsed between the 'communication by the board, so that it had to be considered on the appointing authority of the facts complained basis of the time-limit laid down in the first 44 of' and the conclusion of the disciplinary paragraph of Article 7 of Annex IX to the proceedings. Staff Regulations. The second period does not correspond to any of the provisions of that article with regard to time-limits.

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OPINION OF MR LENZ — CASE C-326/91 P

65. III. The foregoing considerations with ing of 26 November 1987 were approved at a regard to that plea indicate that it should be later date. Although the first paragraph of rejected in its entirety. Article 9 of Annex IX provides that "the sec­ retary shall keep minutes of meetings of dis­ ciplinary boards", it in no way requires that minutes must be signed immediately after the meeting of the board in order for them The approval of the minutes after the rea- to be valid.' soned opinion had been issued

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to observe the rights of the defence which production of documents which are not gave rise to the considerations put forward specified in greater detail. The Court con­ by the Court of First Instance in para­ firmed a claim for the production of all mat­ graphs 129 and 130 of the contested judg­ ters relevant to the disciplinary decision but ment, but on the contrary has expressly rejected a claim for the production of the 46 complete file. It did, however, state that the withdrawn it. The applicant did not claim at first instance that the issue of the reasoned appointing authority and the chairman of the opinion was a formal bar to the disciplinary disciplinary board had allowed access to the board's drawing up minutes later. If there­ entire file and the opportunity to request the fore the Court had not dealt with this point, production of documents corresponding to the applicant would not in any event have the stage of examination of the file by the been able to complain. disciplinary board. In the circumstances the Court took the view 'that the applicant has failed to prove that his allegation, to the effect that the administration unjustifiably refused to communicate certain documents 48 to him, is properly founded'. The appli­ 70. Secondly, a survey of the arguments of cant has not challenged this conclusion in the the Court of First Instance shows that it appeal. would have regarded the procedure of the disciplinary board as irregular only if the applicant's defence had been restricted.

73. The second aspect concerned the appli­ cant's access to the defendant's accounts. On this, paragraph 125 of the contested judg­ 71. The applicant's complaint put forward in ment states: this plea, to the effect that the statement of reasons was defective, therefore appears to be in any case unfounded.

76. This plea relates to the communication of the original of the said reverse entry. The 74. To this the applicant repeats the argu­ applicant claimed before the Court of First ment contained in his reply at first instance. Instance that the only document at his dis­ In his view the answer of the Court of First posal until shortly before the termination of Instance to his arguments is 'legally unsatis­ the last disciplinary proceedings had been a factory'. In view of the special fact that the document not signed by the accounting alleged loss did not relate to a specific item officer. The original, which he had received of expenditure but a total amount, the duty only a few days before the termination of of communication cannot be understood in those disciplinary proceedings, differed from the usual sense but necessarily means free that document in a number of respects. The access to the accounts. To provide a sound reverse entry, however, was a 'vital docu­ justification for rejecting this plea the Court ment' in so far as once such an entry has ought to have stated why in this case access been made 'the loss is beyond doubt'. in the sense understood by the applicant was unnecessary or why the Court was of the opinion that access had been granted (which, moreover, was not the case).

77. The Parliament referred to the fact that the applicant himself had requested on 30 March 1982 that a correction be made in respect of the loss of an approximately 75. In my view this argument cannot be equivalent amount. Moreover the document accepted and must therefore be rejected. It is merely noted and registered in the accounts not even clear in what exact point the appli­ the existence of a loss in the accounting and cant regards the Court's reasoning as wrong. is quite irrelevant when it comes to establish­ Moreover in his appeal he can neither put ing proof of that loss. The Parliament ques­ forward complaints which the Court rejected tioned the relevance, for the resolution of the as out of time, nor can he call in question as case, of the different typeface in the two doc­ such the Court's finding of fact, made on the uments.

78. In that connection the Court of First after receiving the document on 1 9 Novem­ Instance declared (paragraph 143 of the con­ ber 1987 he had the opportunity to submit tested judgment): any comments thereon in the definitive state­ ment of defence which he addressed to the disciplinary board on 24 November 1987. The period of five days which elapsed between those two dates was however insuf­ 'In the light of the explanations provided by ficient in such a complicated matter. It was the parties, the Court takes the view that the not possible to 'analyse thoroughly' the doc­ applicant has failed to demonstrate how the ument produced 'at the last minute'. communication on 25 August 1982 of the original document recording the reverse entry, shortly before the termination of the disciplinary proceedings, could have consti­ tuted an infringement of the rights of the defence of such seriousness as to vitiate those proceedings. It should also be noted that that 80. As a result the applicant's view is that document was made available to the appli­ the Court of First Instance did not suffi­ cant on 19 November 1987 and that he con­ ciently state the reasons on which this rejec­ sequently had the opportunity to submit any tion of his plea was based. comments in the definitive statement of defence which he addressed to the disciplin­ ary board on 24 November 1987. The Court is in those circumstances unable to identify any infringement of the applicant's rights of defence attributable to a delay in communi­ cating the original of the document in ques­ 81. In examining these arguments it must tion.' first be pointed out that the applicant's claim at first instance raised two questions. The first related to the applicant's exact interest in receiving the original document; the sec­ ond, to be examined in the light of the first 79. In this respect the applicant repeats his question, was whether the period of five argument at first instance and is of the opin­ days was sufficient to allow him to produce a ion that the Court first of all found that proper defence. there had been an infringement of the rights of the defence, but that it had not explained why this infringement was not 'of such seri­ ousness' as to vitiate the proceedings. In this connection he refers to the significance which in his view is to be attached to the 49 reverse entry. On the other hand, he says, 82. As regards first of all the question of the the Court stated, in contradiction to that applicant's exact interest in receiving the finding, that there had been no infringements original, it must be noted, on the basis of the of the applicant's rights of defence, since applicant's arguments, that he was appar­ ently not concerned with the date on which he had knowledge of the entry itself. Instead 49 — Paragraph 76 above. he was concerned to examine the original

83. It therefore appears that the possibility of effecting a check raised by the applicant could only have been of significance for his defence if the complaints made against him 86. Here, in my view, the Court of First had been based on the outward form of the Instance expressed itself more cautiously document or possible differences between it than necessary, so that its reasoning may and other documents. However, that is obvi­ have lost some of its persuasive force. How­ ously not the case. The nub and essence of ever, I cannot find therein any defect in its the dispute between the applicant and the statement of reasons. appointing authority are, as the Parliament rightly observed, the causes of the discrep­ ancy between the cash balance and the amount shown in the documentation 50 traced. How otherwise could it be explained that, in order to substantiate what he claimed as the causes of this state of affairs, the applicant demanded free access to 87. Still less can the Court of First Instance the defendant's accounts? 51 be criticized, in view of the background mentioned, for any defect of reasoning as regards the five-day delay. If strictly speak­ ing the production of the document in ques­ tion was not even necessary, then the brevity of the period cannot represent an infringe­ 84. On the other hand the applicant neither ment of the rights of the defence either. denied that this deficit had been established Accordingly, in so far as the Court of First by the defendant nor that the reverse entry Instance 'also noted', in support of its con­ at issue was made as a result of that. clusion, that the document was made avail­ able on 19 November 1987, that cannot con­ stitute a defect but on the contrary appropriate assiduity. 85. In these circumstances the Court of First Instance concluded from the 'explanations given by the parties ... that the applicant has failed to demonstrate how the communica­

91. III. 1. As regards the division of respons­ 'The applicant makes the preliminary point ibility between the applicant as accounting that this allegation relates to the recital in the officer and the administrator of advance decision stating that "Mr de Compte's deci­ funds, the Court of First Instance pointed sion to alter the banking arrangements fixed out that 'the respective powers and respons­ by common consent between the Parliament ibilities of the accounting officer and the and the Midland Bank, in the case where he administrator of advance funds are defined in had not been asked to do so and in excess of particular, so far as the administration of his powers amounts to ... a failure to comply advance funds is concerned, by the third with the obligations incumbent on an paragraph of Article 17 and by Art­ accounting officer.".' icles 20, 49, 63 and 70 of the Financial Regu­ lation, in addition to Articles 46 to 54 of the measures of implementation in force at the 55 time of the matters in dispute'. After con­ sidering those provisions, the Court of First Instance came to the following conclusion 90. II. Without denying that the administra­ (paragraph 168 of the contested judgment): tor of advance funds, Mr Offermann, and his assistant had opened the account in question contrary to the provisions of the Financial 53 Regulation and the measures of implemen­ 54 tation applicable at the material time and had paid in a sum of UK £400 000, and that 'It follows from this division of responsibil­ he was aware of these transactions, the appli­ ities between the accounting officer and the cant, at first instance, essentially insisted that administrator of advance funds that it is the the administrator of advance funds was latter who is primarily responsible for the solely responsible. For the same reason he administration of the advance funds office and that he may be discharged from that responsibility only if he has received con­ 52 — In accordance with the content of the application, as I have trary instructions from the accounting been able to check. officer. On the other hand, the accounting 53 — Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p . 1). 54 — Commission Regulation No 75/375 of 30 June 1975 on measures of implementation of certain provisions of the Financial Regulation of 25 April 1973 (OJ 1975 L 170, p . 1). 55 — Paragraph 167 of the contested judgment.

officer is jointly responsible if, once 95. As I have said, the applicant does not informed of possible irregularities, he fails to deny that the opening of the account for the take appropriate measures or refrains from purpose of depositing UK £400 000 and carrying out ordinary or extraordinary without, moreover, the assent of the officers checks on the accounts of the advance funds responsible for budgetary matters consti­ office.' tuted an irregularity. Nor does the applicant deny that that operation ought to have been entered in the accounts and accordingly was required to be brought to his notice in pur­ suance of Articles 51 and 53 of the measures of implementation. In the circumstances it is irrelevant that in this case (in accordance 92. The Court of First Instance applied with the third paragraph of Article 20 and those principles to this case and found that Article 49 of the Financial Regulation in the applicant, having been informed at the conjunction with Article 46 et seq. of the outset that the disputed account had been measures of implementation) the administra­ opened, was jointly responsible for all the tion within an advance payments office of irregularities which occurred as a result. the funds at issue had been assigned to an administrator of advance funds. Nor is it relevant that the administrator himself (to­ gether with his assistant) had arranged by letter for the opening of the account and the pay­ ment, since the liability of the accounting 93. The applicant repeats the argument officer under Article 70 of the Financial Reg­ which he put forward at first instance, stat­ ulation is not discharged by such an arrange­ ing that the matter concerned an account of ment. On the contrary, the setting up of an the advance funds office for which the advance payments office gives rise — quite accounting officer as such was not responsi­ logically — to what one might term a 'super­ 56 ble. Thus the opening of this account visory responsibility' on the part of the depended not on a decision of the applicant accounting officer. In fact under Article 53 of but on that of the administrator of advance the measures of implementation he is funds and his assistant. required to check the existence of the funds and the accounts of the administrators of advance funds by unannounced inspections. In addition under Article 54 of those provi­ sions he must communicate the result of his scrutiny to the financial controller and the authorizing officer. These duties would be 94. The applicant has not explained on what pointless if the accounting officer were not at exact ground he regards the contested con­ the same time required to prevent imminent clusion of the Court of First Instance as irregularities or, if the administrator of incorrect. In any event it must be stated that advance funds has already committed them, there can be no doubt about his joint to report them as soon as they have come to responsibility for the events concerning the his notice to the authorizing officer and the opening of the account. financial controller so that the appropriate measures may be taken. It follows that in the event of irregularities committed by the 56 — Paragraph 153 of the contested judgment and paragraph 56 administrator of advance funds which come of the appeal.

99. Secondly the applicant thinks that the Court of First Instance wrongly assumed that the absence of disciplinary measures 'The fact that no sanction was imposed on against the administrator of advance funds the administrator of advance funds at the was due only to the fact that the disciplinary conclusion of the disciplinary proceedings authorities in those proceedings laid the brought against him cannot in any way affect responsibility for the events at issue upon the legality of the disciplinary measure the applicant. In his reply at first instance the imposed on the applicant in view of the fact applicant had in fact mentioned other that each set of proceedings is distinct and grounds which, he claims, led the disciplin­ separate. It should in this regard be pointed ary board in the proceedings against out that the opinions delivered by the disci­ Mr Offermann to propose no disciplinary plinary board in the two sets of proceedings measure: 57

agree in respect of the determination of the facts. The opinions differ only with regard to the assessment of those recorded facts. In the case of the proceedings brought against Mr Offermann, the disciplinary authorities took the view that the responsibility for his — he (Mr Offermann) thought he was act­ actions devolved on his hierarchical superior, ing rightly; that is to say, the applicant, whereas the dis­ ciplinary board in the proceedings instituted against the applicant reached the conclusion 57 — See p. 34 (top) of the appeal.

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— the transaction was never hidden trator of advance funds but which were not (because the documents concerning this taken into account in his (the applicant's) account had always been in the Midland 5 favour. 8 Bank file and still were; this file is avail­ able to all persons authorized to inspect it and so to all Mr Offermann's superi­ ors); 102. With regard to all these arguments it should be pointed out first of all that in this connection the question is whether the appli­ cant is objectively responsible for the irregu­ — in accordance with banking practice he larities with regard to the opening of the must be given the benefit of the doubt; account.

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correct. In view of this principle, which has delay to the authorizing officer and the recently been confirmed, it is not obvious financial controller. why, as the applicant thinks, the Court was called upon to identify precisely any illegal­ ity in favour of the administrator of advance funds, since it is clear that in any event the action taken with regard to the applicant on 61 107. In this respect also therefore the appli­ the point at issue here was lawful. cant's argument fails.

106. The fact taken into account by the dis­ ciplinary board in the Offermann case (here­ inafter referred to as 'the Offermann board') 110. The Court first stated that the argu­ that the relevant correspondence with the ments of the parties on this question were Midland Bank was kept in the bank file can­ not call the applicant's responsibility in not relevant to the issue: whatever the replies question either. In view of his supervisory might be they could not duty the applicant, even if he could not pre­ vent the transaction, was at least required under Articles 53 and 54 of the measures of implementation to report them without 'in any event have the result of releasing the applicant from his liability, which lies essen­ 60 — See the judgment in Case C-313/90 CIRFS v Commission tially in the fact that he failed within a rea­ [1993] ECR I-1125 at paragraph 45. sonable time to record the transactions in 61 — Cf. the judgment in Joined Cases 260/85 and 106/86 TEC y Council [1988] ECR 5855 at paragraph 18. 62 — Paragraph 99 above, first indent. 63 — Op. cit., third and fourth indents. 64 — See paragraphs 173 to 178 below. 65 — Paragraph 171 of the contested judgment.

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112. That argument is mistaken. It is true that I cannot agree with the Court of First Instance in denying the relevance of this 'the documents on the file do not in any way question because the applicant's liability 'lies suggest that either the authorizing officer or essentially in the fact that he failed within a the financial controller was aware that the reasonable time to record the transactions in disputed bank account had been opened. On question in his capacity as accounting officer the contrary (as pointed out by the disciplin­ of the institution'. The applicant was not ary board at points 146 to 154 of its reasoned contesting the findings of the decision at opinion of 27 November 1987), two docu­ issue with regard to the absence of an ments on the file raise the presumption that accounting entry but the recital stating that: those two hierarchical superiors of the appli­ 'Mr de Compte's decision to alter the bank­ cant knew nothing of the interest-bearing ing arrangements fixed by common consent account with the Midland Bank. The two between the Parliament and the Midland documents in question are a note Bank, in the case where he had not been of 5 June 1981 from the applicant to asked to do so and in excess of his powers Mr Paludan-Müller, then Director of amounts to ... a failure to comply with the Finances and authorizing officer, and a note

66 — See the previous footnote. 67 — Paragraph 152 of the contested judgment.

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of 22 January 1982 to the applicant from in ignorance (long after the account was Mr Etien, who at that time was the financial opened) confirms the applicant's breach of controller.' duty.

117. With regard to that criterion it is not significant that the correspondence in ques­ tion was deposited in the Midland Bank file, 120. As regards the second point concerning but the Court was certainly entitled to the alleged conversation in December 1980, accept that the fact that the authorizing it must be stressed that by this argument the officer and the financial controller remained applicant is calling in question a finding of fact by the Court of First Instance, but can­ not claim that its finding was based on an incorrect legal criterion or that the Court 68 — Paragraph 168 of the contested judgment and paragraph 95 above. otherwise made an error of law.

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121. These arguments too must therefore be 123. In so far as the applicant denied respon­ rejected. sibility for the belated entry in the accounts by referring to the poor general organization of the Parliament's financial departments, the Court stated in paragraph 181 of its judg­ ment The failure to comply with the obligation to administer payment credits in a proper man- ner

'that the applicant is wrong in restricting the scope of the complaint upheld against him to the "non-immediate entry in the accounts" of the two cheques. The disciplinary decision 122. I. 1. The Court of First Instance also accuses him of having cashed those two defined the subject-matter of this plea in cheques without specific and valid justifica­ paragraphs 174 and 175 of the contested tion and with having failed to record the judgment as follows: withdrawal on the "accounting forms for cash extracts" of the Parliament's cash office in Luxembourg in the three currencies in which that withdrawal had been made.'

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128. II. In addition the applicant disputes the Court's answer to his argument that the six months' delay in entering in the accounts the 129. The applicant challenges all three of the encashment of the two cheques was to be conclusions thus drawn, that is, concerning

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OPINION OF MR LENZ — CASE C-326/91 P

the question of a contradiction in the disci­ in the accounts, so that the complaints plinary decision, the further failings with regarding the other failings were not chal­ regard to the encashment of the cheques and lenged, this criticism by the applicant must the applicant's 'senior position'. be rejected in its entirety.

70 — My emphasis. 71 — First subparagraph of paragraph 72 of the appeal.

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applicant. In any event it would be imposs­ 136. III. The applicant also challenges the ible to find fault with the contested judgment thinking of the Court of First Instance with in rejecting the applicant's argument against regard to his argument regarding the exclu­ the complaint as to the belated accounting sive responsibility of the administrator of entry. Moreover this argument of the appli­ advance funds. In that respect the Court had cant fails to take into consideration the fact been referring to his claims with regard to that the recognition of the said factors as the complaint concerning the opening of an extenuating circumstances relates to all com­ interest-bearing account with the Midland plaints and it is not at first sight clear to Bank, which the applicant had contested 73 what extent and for what exact reasons the with the same argument. The Court added: appointing authority thought they ought to be taken into account in the applicant's favour with regard to the individual com­ plaints.

'that the applicant was much more exten­ sively implicated in the failures surrounding the encashment of the two cheques than in those which related to the opening of the 134. Finally the applicant criticizes the account'. 74

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138. Contrary to the applicant's views the imately BFR 4 100 000 recorded in the mem­ Court was not required to explain the extent bers' cash office and which lacks supporting to which his involvement in the shortcom­ documentation is due to the entry noting the ings might be significant for the responsibil­ encashment, for an overall amount expressed ity of the administrator of advance funds. in Belgian francs, of two cheques drawn on 78 Since the applicant would have been respon­ the Midland Bank'. sible even if not he but the administrator of advance funds, with his knowledge, had given the order for the encashment of the cheques, his responsibility was all the clearer in view of his personal intervention.

142. In this connection the Court of First Instance first summarized the relevant con­ 139. As a result this plea must be rejected in tent of the contested decision (paragraph its entirety. 196), the reasoned opinion of the disciplinary board (paragraph 197) and the findings of the Court of Auditors (paragraphs 198 and 79 199). It then stated that it shared the view of the appointing authority and declared The failure to comply with the obligation to effect expenditure only on presentation of proper supporting documents and to keep such documents in a safe place

140. I. This complaint relates to the absence 'that the contested decision was quite prop­ of proper supporting documents for an erly entitled to consider as established that amount equal to the exchange value of the absence of supporting documents was the two aforementioned cheques (BFR connected in this case to the encashment of 77 4 136 125). In this connection the Court the two cheques drawn on the Midland 8 examined two questions which it extracted Bank'. 0 from the parties' arguments.

146. With regard to the deficit at issue, it should be stated that the Court of First Instance, whilst not expressing any view as 144. Here the applicant first claims 2 that 8 to the existence or whereabouts of the sup­ the question is wrongly formulated by the porting documents or money, used the con­ Court of First Instance because as a prelimi­ cept of the deficit to distinguish between the nary it takes as a fact precisely what was to supporting documents so far discovered and be proved, namely the existence in the mem­ the cash balance. In paragraph 197 the Court bers' cash office of an established deficit for summarized the conflicting theories with which there were no supporting documents. which the disciplinary board was faced as The question so formulated, on which the follows (paragraph 197 of the judgment): Court's subsequent thinking was necessarily based, was exclusively as to whether the facts previously regarded as established (deficit amounting to BFR 4.1 million; absence of supporting documents) was caused by the encashment of the two cheques. The formu­ 'The first explained the difference between lation was also contradictory, he adds, as the the cash office and the general accounts by Court had previously stated (at the end of connecting it with the encashment of the two paragraph 192 of the judgment) that accord­ ... cheques; the second rejected this connec­ ing to the defendant's own argument the tion and expressed the view that the deficit complaint against the applicant was 'that he represented the end result of a series of 84 had kept no supporting documents, but not accounting errors'. that he had covered the deficit by means of the two cheques'.

148. These forms of wording show, on the 150. The applicant next puts forward a series one hand, that the criticism that the Court of objections to the findings on which, as had in advance assumed a deficit (understood the Court of First Instance observes in para­ as the complete absence of supporting docu­ graph 196 of its judgment, the appointing ments) is unfounded. On the other hand authority relied as 'reasons for the conclu­ they illustrate the error of logic on which the sion reached in its disciplinary decision'. applicant's argument rests. The Court's examination as to whether there was a 'con­ nection' between the absence of the support­ ing documents and the encashment of the cheques was intended to establish whether there was a 'deficit' in that sense. Such a con­ nection — alleged by the appointing author­ 151. However, these objections must be ity and contested by the applicant — might rejected out of hand, as they are not directed have consisted in the fact 'that the late regis­ against the contested judgment but against tration of the entry relating to the encash­ the disciplinary decision. ment of the two cheques revealed a deficit ... corresponding to the total amount of those 85 cheques'. That means that the absence of the supporting documents concerned expen­ diture not entered in the accounts, but cov­ ered by the cash proceeds of the cheques 152. The applicant further contests the find­ (still in 1981). This 'connection' and thus in ing of the Court of First Instance that there the last resort the 'deficit' was the subject is a connection between the absence of sup­ and not the assumption of the Court's porting documentation and the encashment assessment of the evidence. of the two cheques. He thinks that in its assessment the Court failed to consider cer­ tain factors (which are detailed in the appeal). As these arguments relate to a find­ ing of fact by the Court and are not based on an infringement of the rights of the defence, they can at first sight be considered only 149. Nor is there any validity in the appli­ from the point of view of a defective state­ 88 cant's argument that the Court's approach ment of reasons. Certainly some thought contradicts the defendant's argument, might be given to the question whether the namely that the complaint against him is that independence of the Court of First Instance, he kept no supporting documents, not that as so understood, in deciding as to the facts, he covered the deficit by means of the two is limited where the rules of logic have obvi­ cheques. The complaint against the applicant ously been infringed. However that may be, is indeed that there are no supporting docu­ the applicant's objections could not be 86 accepted from either point of view, as I shall ments, but in circumstances which might be significant for assessing the seriousness of briefly show. the shortcoming.

154. Secondly, in the applicant's opinion the 156. I think no more need be said on this Court of First Instance has overlooked the point. fact that in point of time the decision grant­ 89 ing final discharge for 1982 was issued after the opinions of the Court of Auditors. In view of that decision the Court could not, he thinks, start from the idea that the cause 157. Apart from the arguments, thus refuted, of the deficit was explained. Here he relies by which the applicant has contested, as on the one hand on the preamble to the deci­ such, the conclusion of the Court of First sion, to the effect that 'no unequivocal expla­ Instance, he finally claims that was unable to nation is so far available of the difference adduce proof of an error in the contested between the cash in hand and the sums in the decision (on the point dealt with here), as he accounts'. On the other hand the applicant did not have free access to the accounts and relies on the fact that that decision did not his application for the appointment of a distinguish between the discharge for him committee of experts was refused. The and that for the accounting officer who suc­ Court's finding that he had not succeeded in ceeded him during that year (on 1 May). adducing this proof was therefore an infringement of the rights of the defence.

155. As regards these two aspects it is, in my view, sufficient to quote in full the text of Recital A to the preamble, from which the 158. With regard to this argument I refer to quotation set out by the applicant is taken: the relevant passages from this Opinion: I have already dealt with the plea concerning 9 access to the accounts; 1 asregards the Court's refusal to appoint a committee of 92 experts the applicant has put forward a 'Whereas the difference between the cash in 93 separate plea which I shall consider later. hand and the sums in the accounts (at that time shown in the Parliament's accounting documents as an amount of BFR 4 136 125) 90 — My emphasis. 91 — Paragraphs 73, 74 and 75 above. 92 — Paragraph 224 et seq. of the contested judgment. 89 — Footnote 20 above. 93 — Paragraph 202 et seq. below.

As has already been made clear in this case, the applicant was personally involved in the 'whether, in connection with an advance encashment of the two cheques in view of fund, the obligation and the corresponding the fact that he himself provided the signa­ responsibility to effect expenditure only on ture and, according to his own statements, presentation of proper supporting docu­ himself placed the cash, provided in three ments and to retain those documents devolve separate currencies, in the Parliament's safe on the administrator of advance funds or on 94 in Luxembourg. In those circumstances, the the accounting officer'. disciplinary decision was perfectly correct in taking the view that the applicant had been gravely negligent in failing to take proper 162. In this connection the Court of First care of the Parliament's assets.' Instance stated as follows (paragraphs 203 and 204):

'With regard to the second question, as to whether the obligation and consequently the

163. In the applicant's opinion these views show a failure of reasoning. His criticism 94 — Paragraph 195 of the contested judgment. falls into three parts.

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166. That analysis is correct as far as the question of a failure to comply with the duty to give instructions is concerned. In this con­ nection it must also be admitted that the introductory words of paragraph 204 might at first sight give the impression that the 168. In this connection the applicant thinks — and here we come to the third part of his

95 — For a comparable case with regard to a drafting error in a regulation, see the judgment in Case C-27/90 SITPA [1991] ECR I-133 at paragraph 13. 96 — See paragraph 193 of the contested judgment.

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criticism — that taking pan in the encash­ second subparagraph of Article 70(1), that ment of the cheques has nothing to do with the applicant and not the administrator of the duty to take proper care of the Parlia­ advance funds was responsible. ment's assets, as the supporting documents for this encashment were available. In the alternative, the applicant's participation is without significance in this regard because the signature and the deposit in the safe do not necessarily point to a failure to comply 171. It follows from the foregoing that the with that duty. arguments against the considerations on which the Court of First Instance has dealt with this division of responsibility (admit­ tedly not with outstanding clarity) must be rejected.

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enter or the late entry relating to the encash­ tions belongs to the problem of equal treat­ ment of the two cheques and the failure to ment, which the applicant has also raised in comply with the obligation to effect expendi­ this connection and which I shall shortly ture only upon presentation of proper sup­ examine. porting documents and to ensure their reten­ tion constituted negligence on the part of the applicant which was all the more serious inasmuch as he, as the accounting officer, held the most senior position in the accounts 177. Finally the applicant thinks that the administration of the institution. Court of First Instance did not reply to his argument based on the poor general organ­ ization and unsatisfactory material resources of the Parliament's financial departments. In my view the Court had no need to go into 174. In so far as the applicant, in disputing that point, since in so far as the applicant had that finding, claims that the complaints made claimed that there was a specific link against him are unjustified, I may refer to the between these circumstances and the irregu­ relevant considerations in this Opinion. larities established, it had already rejected 98 this argument. It did not therefore need to revert to the matter here.

ments, it had described his responsibility in the cash office, the question is not that of comparison with that of the administrator of the assessment of the applicant's conduct as advance funds, 99the authorizing officer and being in accordance with or contrary to his 10 the financial controller. 0 The Court stated duty. It is rather whether the appointing that the difference between the decisions authority has used its discretion correctly taken at the conclusion of the disciplinary with regard to the initiation of the disciplin­ proceedings brought against the administra­ ary proceedings and, upon their conclusion, tor of advance funds and against the with regard to its decision on the principle accounting officer could not have any bear­ and scope of the penalty. ing on this case in the light of the principle that every set of disciplinary proceedings is independent, compliance with which must be reconciled with the principles of equal treat­ ment, equity and distributive justice relied on by the applicant. 183. In this respect the applicant's argu­ ments raise the question whether there has been compliance with the principle of equal treatment, in accordance with which, inter 181. In the applicant's view the Court of alia, comparable situations must be similarly First Instance is overlooking the fact that the treated. divergence between the two decisions is not the only thing: there have in addition been no disciplinary proceedings against other people who may be responsible, including in particular the financial controller. In this respect the applicant refers to the special 101 report of the Court of Auditors in 1982. 184. From this point of view this plea could Moreover the decision as to whether to insti­ only be successful if it were clear from the tute proceedings and as to any penalties on judgment that other persons in a situation their conclusion is a matter for the appoint­ comparable to that of the applicant had been ing authority. The applicant raises the ques­ differently treated (better than he), or if the tion how, in view of that, the principles applicant had made it clear that the Court relied upon in the application at first instance had wrongly disregarded his statements on and treatment which is diametrically this point. However, that is not the case. opposed to them might be reconciled.

189. Finally the applicant regarded the disci­ plinary decision as a misuse of powers because he was penalized for infringements 186. As regards the authorizing officer, the of form as if they had been confirmed com­ applicant has not put forward any arguments plaints of substance. The Court rejected that in this respect from which it might be con­ argument. It declared, in accordance with the cluded that the Court of First Instance (or definition of misuse of powers recognized in the appointing authority) failed to observe the consistent case-law of the Court of Jus­ the principle of equality of treatment. tice, that the applicant failed to provide rele­ vant proof to justify the conclusion that, by instituting disciplinary proceedings against him, the appointing authority was pursuing an objective other than that of safeguarding the internal order of the European public service. The fact that the applicant was downgraded for formal irregularities does not suffice to establish that the administra­ tion, as he contended, brought proceedings against him with the sole purpose of offering 104 187. The comparison in the appeal of the him up as a sacrificial victim. applicant's treatment with that of the financial controller is new, since it was not in the original application. If the applicant's argument on this point were to be under­ stood as meaning that the Court of First Instance disregarded relevant statements by the applicant, that could not be accepted. 190. The applicant acknowledges that the Moreover it may be noted that in the appeal assessment of the relevant evidence is a mat­ the applicant relies only on the special report ter for the Court, and he leaves it to the of the Court of Auditors. It is true that judgment of the Court of Justice to decide therein the Court of Auditors criticizes the whether the Court of First Instance, regard conduct of the financial controller, but only being had to the applicant's arguments, has in relation to a given procedure applied in not overstepped the limits of its power of accounting for the expenses, reimbursements assessment. and allowances paid by the members' cash office. That has nothing to do with the com­ plaints at issue in this case. 104 — Paragraph 214 of the contested judgment.

195. In my view, however, the answer to the 192. The Court of First Instance also applicant's arguments at first instance is to rejected the applicant's argument that there be found in the Court's reference to the seri­ was an obvious disproportion between the ous nature of the infringements established. importance of the complaints made against him and the severity of the disciplinary mea­ sure adopted against him. The Court first referred to the fact that it could not substi­ tute its own judgment for that of the 196. That applies, first of all, to the view of appointing authority except in the case of a the 'formal nature' of the infringements. It is manifest error or misuse of powers. More­ obvious that infringements of formal provi­ over there is no fixed relationship between sions of the Financial Regulation, which are the disciplinary measures provided for in meant to ensure proper administration and Articles 86 to 89 of the Staff Regulations and to safeguard Community assets, may also be the various types of failures by officials to described according to the circumstances as comply with their obligations. The determi­ serious infringements, that is, as seriously nation of the penalty to be imposed in each prejudicing the Community's interests. That individual case must however be based on a depends upon the precise purpose of the rule comprehensive appraisal of all the particular infringed, the amounts in question and the facts and the aggravating or mitigating cir­ situation in which the infringement in ques­ cumstances peculiar to the case. tion occurs. It is impossible therefore to question the Court's answer.

the infringement. The Court of First 200. If in a particular case (in this case with Instance therefore replied to the applicant's regard to the opening of the account) the argument with another and comparatively administrator of advance funds may be more essential factor for determination of responsible together with the accounting the penalty. I cannot, in that respect either, officer (namely if the former has infringed detect any defect of reasoning, particularly as the relevant substantive provisions and the the Court had only to consider whether the latter his duty of supervision), that does not appointing authority had committed a man- prevent the special situation of the account­ ifest error. ing officer from being taken into consider­ ation as against him in the fixing of the pen­ alty. Contrary to what the applicant appears to think, there is no contradiction between the responsibility on this point of the admin­ istrator of advance funds as the person actu­ 198. In addition the applicant thinks it is ally taking the action and the special position incorrect, in so far as the Court of First of the accounting officer. Instance relied upon it, that the applicant as accounting officer of the institution was pri­ marily responsible for the proper function­ ing of the accounting division. That contra­ dicts what the Court had declared elsewhere 201. These arguments by the applicant must (namely in paragraph 203 of the contested accordingly be rejected. judgment) with regard to the administrator of advance funds.

The submissions concerning the appointment of a committee of experts

I-2137

OPINION OF MR LENZ — CASE C-326/91 P

The Court was thereby calling attention, as 206. In this connection the applicant repeats the applicant correctly observes, to the fact that after his transfer he could not make the that the Court had already convinced itself necessary investigations. However, the Court on the basis of its assessment of the facts that rejected that argument, which was based on the disciplinary decision rightly made the an infringement of the rights of the defence complaint at issue. and these proceedings have produced no grounds for establishing that that rejection offended against Community law. 203. On this point the applicant refers only to his arguments to the effect that the Court wrongly regarded the complaint as well founded. 207. Finally the applicant refers once more to the fact that at the time of his transfer there was no rendering of accounts. How­ 204. Here my view is that the Court was ever, he has not even asserted that the entitled to refuse the application on the absence of a rendering of accounts called in ground to which it referred. The relevant question the probative force of the docu­ facts had already been investigated on several ments relied upon by the Court. Quite apart occasions by the Court of Auditors which, from the question how far such an assertion as between the parties, was an independent could in any event be tested on appeal, that body. The Court based its assessment inter argument is therefore unsound. alia on the findings of the Court of Audi­ tors.

205. As the applicant did not advance any 208. This plea too, relating to the applicant's grounds for thinking that the committee of request for the provision of evidence, and the experts could discover new facts, there can final plea in this appeal, must therefore be be no objection to the Court's refusal. rejected.