C-166/95
ECLI:EU:C:1996:339
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OPINION OF MR LA PERGOLA— CASE C-166/95 P
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 19 September 1996
1. In this appeal the Commission is asking The Disciplinary Board, before which the the Court to set aside the judgment of the matter had been duly brought by the Court of First Instance of 28 March 1995 in appointing authority in accordance with Case T-12/94 Daffix v Commission [1995] Article 1 of Annex IX to the Staff Regula- ECR-SC 11-233. The appellant claims, inter tions, found, as regards the first charge, that alia, that the form of order sought by it at 'it had not been proven that the order forms first instance should be granted and that the had been forged by Mr Daffix'. Next, with respondent should be ordered to pay the regard to the charge of misappropriation, the costs. Board concluded that it could not rule out the possibility that the money in question had in fact been handed over by Mr Daffix to its lawful recipient. The Disciplinary Board nevertheless concluded that, by paying over a substantial amount of money without first verifying the identity of the recipient, Mr Daffix had been guilty of a breach of his 2. Before analysing the parties' arguments, I general duty of diligence as an official of the would outline the events giving rise to this European Communities. It therefore recom- appeal. mended that the appointing authority impose upon him the disciplinary measure of downgrading.
At the material time Mr Daffix was a Com- mission official, responsible for production at the Information, Communication, Culture and Audiovisual Directorate-General (DG X). Disciplinary proceedings were started against him on charges of failing to fulfil his obligations as an official. He was accused of having forged three order forms addressed to The appointing authority did not share that the Newscom company, which, on the basis view. While making no pronouncement on of those order forms, had allegedly been the forgery of the order forms, the appoint- induced to pay over to him the sum of BFR ing authority found that Mr Daffix had kept 450 000 in cash, and of having wrongfully the money in question for himself and appropriated that money. accordingly imposed on him the disciplinary measure of removal from his post, instead of the more lenient measure proposed by the * Original language: Italian. Disciplinary Board.
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3. Mr Daffix challenged that decision before uphold the objection raised by Mr Daffix the Court of First Instance, relying on five that the statement of reasons of the contested distinct pleas in law. In the contested judg- decision was defective. That objection should ment, the Court of First Instance upheld the have been declared inadmissible inasmuch as application and annulled the Commission's it was raised out of time. decision on the ground that it had an inad- equate statement of reasons. Consequently, it did not rule on the other pleas and argu- ments put forward by the applicant. More particularly, the Court of First Instance assumed that the duty to state reasons is par- The first plea should, in my view, be ticularly stringent where an administrative rejected. The Court of First Instance cor- act concerns an individual and refers to facts rectly held that a plea alleging that a state- which might have criminal implications. It ment of reasons is inadequate constitutes a considered that the Commission had not matter of public policy which the Court may observed the minimum requirements in raise of its own motion. 1 It is therefore of point of the statement of reasons which had no consequence that Mr Daffix raised that to be complied with if a decision adopted by defect only in the reply. it was to be lawful. According to the Court of First Instance, the decision did not indi- cate precisely which charges levelled against Mr Daffix were well founded and did not provide an adequate statement of the reasons which had prompted the appointing auth- ority to depart from the opinion of the Dis- The second plea ciplinary Board and impose upon Mr Daffix a disciplinary measure more severe than that recommended by that body.
6. By the second plea, the assessment of the Court of First Instance is challenged in vari- ous respects inasmuch as it considered the 4. In the present case, the Commission statement of reasons of the contested claims that the Court should set aside the decision to be inadequate for the purposes of contested judgment and uphold the claims Article 190 of the Treaty. which it made at first instance. The respon- dent contends, for his part, that the appeal should be dismissed and the judgment of the Court of First Instance upheld. According to the Commission, the decision at issue was essentially based on the conclu-
The first plea 1 — See Case 18/57 Nold v High Authority [1959] ECR 41; Case 185/85 Usinor v Commission [1986] ECR 2079, paragraph 19; Case T-45/90 Speybrouck v Parliament [1992] ECR II-33, paragraph 89; Case T-115/89 González Holgueta v Parlia- 5. In its first plea, the appellant claims that ment [1990] ECR II-831, paragraph 37, and Case T-534/93 Grynberg and Hall v Commission [1994] ECR-SC II-595, the Court of First Instance was wrong to paragraph 59.
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sion that Mr Daffix had misappropriated the authority had failed to indicate clearly the money. That conclusion was adequately rea- reasons which prompted it to adopt a disci- soned as a result of the reference made to the plinary measure more severe than that rec- '"manifestly" inconsistent and often contra- ommended by the Disciplinary Board: dictory' statements made by the official in according to the appellant, the appointing the course of the administrative procedure. authority, unlike the Board, considered that In the appellant's words, it 'seemed pointless the misappropriation of the money was a to expand at any greater length' on the rea- proven unlawful act. The result of this — as sons for the measure and hence reference to is made clear in the statement of reasons — the administrative file had been deemed suf- was the loss of the trust which must be a fea- ficient. ture of relations between the Commission and its staff.
That argument is not convincing. The appel- lant maintains, essentially, that there was no need to state reasons because the charges lev- In dealing with this criticism, it should be elled against Mr Daffix are clearly made out noted that the Court of Justice laid down in the file. Assuming, but not admitting, that the principle in F v Commission 2 that where the charges were justified icto oculi, it must 'the disciplinary measure imposed by the be stated forthwith that this did not exempt appointing authority is severer than that sug- the authority which subsequently imposed a gested by the Disciplinary Board in its opin- sanction for the alleged misconduct in the ion, the reasons for this must be ... stated'. form of a disciplinary measure from stating This means that, in any event, the reasons for the reasons on which that measure was the measure imposing the more severe disci- based. There is in every case an obligation to plinary measure may not and must not fail to provide an express and adequate statement of appraise the opinion delivered by the Disci- reasons for a disciplinary measure. A fortiori plinary Board which it elects not to follow; it in this case, given that the Disciplinary must state — that is to say, explain in appro- Board took the view that the allegations priate, explicit terms — why the reasons were not proven. This is sufficient to rule out given by the Board in recommending a more the evidence in the file providing complete, lenient disciplinary measure are unaccept- incontrovertible proof of the respondent's able. In such case, the statement of reasons guilt. It was therefore rightly held in the necessarily presupposes an assessment of the contested judgment that mere reference to view expressed by the Disciplinary Board as the findings in the administrative file did not to the seriousness of the disciplinary offence constitute an appropriate statement of rea- and as to the lack of foundation for the sons. appointing authority's allegation which the latter considers it must maintain and for which it imposes a very much more severe disciplinary measure: in this case, removal from the post instead of the downgrading recommended by the Disciplinary Board. 7. The Commission goes on to take issue with other aspects of the contested judg- ment. In its view, the Court of First Instance erred in considering that the appointing 2 — Case 228/83 F v Commission [1985] ECR 275, paragraph 35.
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It need hardly be added that the obligation quently withdrew could in itself justify the to state reasons is an essential aspect of the decision adopted by the appointing auth- legality of administrative action and of the ority. possibility of judicial review thereof: ulti- mately, it provides a guarantee for the person concerned, who must be able to argue before the Court where appropriate that the disci- plinary measure imposed on him is unwar- ranted. As this Court has held on a previous occasion, the purpose of the statement of The appellant, however, disagrees. In its reasons is 'to enable the Court to review the eyes, the confession was valid and, in any legality of the decision and to provide the event, Mr Daffix failed to prove that the person concerned with details to allow him charges against him were untrue. In truth, to ascertain whether the decision is well according to this singular proposition, it was founded or whether it is vitiated by an error not so much a question of the appointing which will allow its legality to be con- authority's having to provide reasons for the tested'. 3 contested decision. Rather, it was for Mr Daffix to prove that the accusations lev- elled against him were unfounded. The well- known maxims onus probandi incumbit ei qui dicit and reus in excipiendo fit actor are The criticism put forward in the plea in quoted in support of this argument. question cannot, therefore, be levelled at the decision of the Court of First Instance.
8. The Commission further claims that an That argument is completely without merit. I adequate statement of reasons was provided shall not, however, dwell upon the arguable for the decision inasmuch as Mr Daffix had assertion that it should be for Mr Daffix to admitted to the allegations, and the reference prove his innocence in the face of an alle- to that admission, which appears in the state- gation which the Commission assumes to ment of reasons of the decision, justifies, in have been made out even though the Disci- itself, the disciplinary measure imposed. But plinary Board took a different view. I cannot the Court of First Instance rightly observed see, in any event, how it is possible to that that confession — the value of which, respond to the criticism of the Court of First however, is very doubtful since it was Instance regarding the lack of a statement of retracted — is mentioned in the final part of reasons for the measure by claiming that the the statement of reasons only in order to onus of proof had to be discharged by the bear out a conclusion which had already official and not by the administration. It is been reached on the basis of other evidence. one thing to determine who has to prove a The contested judgment therefore rightly fact; the obligation to set forth reasons justi- ruled out the possibility that the fact that the fying the measure is obviously quite another. official made a confession which he subse- In short, the appellant here is confusing two different aspects of the case: on the one hand, the rules on the burden of proof and the assessment of evidence by the Court and, on 3 — Case 195/80 Michel v Parliament [1981] ECR 2861, para- graph 22. the other, the obligation requiring adminis-
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trative acts to state the reasons on which Court of First Instance thus correctly they are based. Moreover, the Commission's applied the principle, laid down by this confusion about that fundamental distinction Court, that 'the statement of the reasons for clearly emerges when, instead of showing [the] decision must specify the acts which that the statement of reasons was adequate the official is found to have committed'. 4 As for the purposes of Article 190, it seeks to the Court of First Instance stated, it was convince this Court that the measure taken especially necessary for reasons to be stated against Mr Darfix was well founded on the with regard to that point inasmuch as the merits. Such considerations are of no rel- official had denied the charges and the evance in the present case. The Court of appointing authority had not provided any First Instance merely observed that the explanation for its failure to carry out an measure submitted to it for its assessment investigation into who had in fact signed the did not state sufficiently clearly the reasons order forms in question. on which it was based. O n that ground it annulled it. This Court is now called upon exclusively to ascertain whether the assess- ment of the Court of First Instance was legally appropriate. Whether the admission was valid or whether or not the respondent The Commission objects, however, that was guilty of the misconduct of which he forgery of the order forms had been included was accused are questions which have no amongst the charges levelled against the bearing on these proceedings. Those ques- respondent. In its view, although that was tions are concerned with the merits of the not expressly stated, it could, however, be contested decision rather than with the obli- inferred by interpreting the measure as a gation to provide an adequate statement of whole. My earlier observation applies here reasons. also. The proper and adequate statement of reasons required by Article 190 requires the grounds on which the measure is based to be shown clearly and unambiguously. 5 A ground which may be deduced only by an interpretative analysis of the measure which is far from easily accomplished cannot be considered clear and unambiguous.
9. The Commission further criticizes that part of the judgment of the Court of First 10. O n those grounds I am of the view that Instance where it held that the statement of the judgment of the Court of First Instance reasons of the measure did not indicate the should be upheld. The decision at first precise facts on which the disciplinary meas- instance is not vitiated by any error of law in ure imposed on Mr Daffix was based. How- the application of the rules with which an ever, the reasoning of the Court of First appropriate statement of reasons for an Instance is unobjectionable also in this respect. The contested judgment found that the decision did not specify whether or not the respondent was considered to have been 4 — See F v Commission (cited in footnote 2), paragraph 35. 5 — See, ex multis, Case 1/69 Italy v Commission [1969] responsible for forging the order forms. The ECR 277, paragraph 9.
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administrative measure must comply, when it disciplinary proceedings, the administration held that in this case the requirement laid could prepare some semblance of a statement down by Article 190 had not been fulfilled. of reasons, reserving the right to complete it once the addressee of the measure brought judicial proceedings. The upshot would be that the administration could shape the con- tent of the statement of reasons to suit the criticisms brought to bear by the person The third plea concerned. This would also open up the pos- sibility of an infringement of the rights of the defence. Consequently, the contested judgment should be upheld in this respect as 11. In its third plea the Commission main- well. tains that the Court of First Instance erred by failing to take account of the explanations provided by it in the course of the proceed- ings at first instance. In other words, the Commission maintains that the Court of First Instance should have accepted that it The Commission's other pleas was possible for the statement of reasons to be expanded ex post.
12. Finally, the Commission rehearses a That criticism is, however, manifestly number of arguments relating to the merits unfounded also. It is sufficient to recall, in of the case at first instance. However, those this regard, that the Court of Justice has held arguments cannot be taken into consider- that 'the statement of reasons must in prin- ation here. Article 51 of the Statute of the ciple be notified to the person concerned at Court of Justice is peremptory in this regard: the same time as the decision adversely an appeal must be limited to points of law affecting him'. 6 The lack of a statement of alone. The Court of First Instance held that reasons cannot be remedied during the pro- the contested decision was vitiated by an ceedings before the Court. There is no rea- inadequate statement of reasons and decided son for departing from that fundamental to annul it on that very ground, without rul- principle here. A fortiori, I would add, since ing on the other pleas put forward by in the present case — as was correctly Mr Daffix. I can only reiterate what I have observed at first instance — the contested already stated: in these proceedings the decision and the allegations to which it Court of Justice is called upon solely to referred were particularly serious and the adjudge whether the contested judgment cor- Disciplinary Board and the appointing auth- rectly applied the legal rules which must ority reached different conclusions with apply to the statement of reasons of mea- regard to whether Mr Daffix was respon- sures. In other words, what is involved is sible. To uphold the Commission's argument simply a legal assessment of the judgment of would lead to the unacceptable result that, in the Court of First Instance. N o account can be taken of the merits of the measure which was the subject-matter of the proceedings at 6 — See Michel v Parliament (cited in footnote 3), paragraph 22. first instance.
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Conclusion
13. O n the basis of the foregoing, I propose that the Court should:
— dismiss the Commission's appeal;
— order the Commission to pay the costs.
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