C-188/96

COMMISSION v V

OPINION OF ADVOCATE GENERAL ELMER delivered o n 29 M a y 1997 *

Introduction which were required to be obtained pursuant to this Treaty.'

1. In the present appeal the Commission claims that the Court of Justice should quash 3. The second paragraph of Article 25 of the the judgment delivered by the Court of First Staff Regulations of Officials of the Euro- Instance on 28 March 1996 in Case T-40/95 pean Communities provides that: V v Commission, ' in which the Court of First Instance annulled the Commission's decision of 18 January 1995 removing Mr V from his post, on the ground that it did not contain an adequate statement of reasons.

'Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing t o the official concerned. Any decision The relevant Community rules adversely affecting an official shall state the grounds on which it is based.'

2. Article 190 of the EC Treaty provides that: Facts of the case

2 O n 24 May 1991 [Mr V], his wife and one 8 O n 11 June 1993 the Disciplinary Board ... of his colleagues, Mr K, took part in the advised the appointing authority to repri- written accountancy and auditing tests in mand [Mr V]. It found that he had acted in Open Competition EUR/B/21 ... organized breach of his duties under the Staff Regula- jointly by the Commission and the Court of tions, inasmuch as he had admitted having Auditors. By letter of 10 July 1991 one of passed rough notes to two candidates during the examiners marking the written tests the written tests, but found unproven the informed the selection board responsible for charge that he had had advance knowledge the competition in question that he had of the questions and/or model answers. noticed similarities in the answers of the three candidates to certain accountancy and auditing questions and also similarities between certain answers and the Court of Auditors auditing manual.

9 ... Mr K ... appeared at a hearing before the appointing authority on 28 July 1993. In the course of that hearing he stated that on the day before the written tests [Mr V] himself had told him that he was in possession of the 3 By letter of 19 February 1992 the appoint- questions which were to be put during the ing authority informed [Mr V] of its decision tests. The questions had allegedly been given of the same day to open disciplinary pro- to [Mr V] by a group in the Security Office ceedings against him on the ground that he in Luxembourg, which had distributed infor- was suspected of having communicated with mation on the tests in the competition to a two other candidates in Competition limited number of persons ... EUR/B/21 ...

it follows from Mr K's paper that his answer ... the Disciplinary Board recommends, by a ... is very similar to Mr V's answer; majority, that the appointing authority should impose on Mr V the disciplinary measure provided for in Article 86(2)(e) of the Staff Regulations by downgrading him to Grade C 4, maintaining his seniority in step."

it is apparent from the documents before the 16 ... on 18 January 1995 the appointing appointing authority that the elements form- authority adopted a decision imposing on ing the basis of the answer cannot have been [Mr V] the disciplinary measure referred to taken from the Court of Auditors auditing in Article 86(2)(f), namely removal from his manual ... post, with effect from 1 March 1995. The statement of reasons of the decision reads as follows:

... the appointing authority therefore finds that Mr V had the model answer ... and nec- essarily had it before entering the examina- tion room; he therefore took advantage of a u leak;

I - 6565

OPINION OF MR ELMER — CASE C-188/96 P

Mr V therefore deliberately attempted to dis- able honesty on the part of its officials, and tort the results of an open competition, con- in particular a former official of the Security trary to the principle that candidates for Office; Community posts must be placed on an equal footing for the purpose of the tests in those open competitions;

'35 It should be observed, first, that the Court of Justice and Court of First Instance have consistendy held that the obligation to state the reasons on which a decision adversely affecting a person is based is intended both to provide the person con- cerned with the information necessary to decide whether the decision is properly founded and to allow judicial review ... 50 ... the circumstances on which the appointing authority relies cannot in the present case justify its decision to remove [Mr V] from his post rather than downgrade him as recommended by the Disciplinary Board.

36 Whenever the appointing authority imposes a disciplinary measure on an official, the statement of the reasons for its decision 51 ... the decision should have contained a must specify the acts which the official is detailed statement of the grounds on which found to have committed and the consider- it was based and should have mentioned the ations which have led the appointing auth- reasons for which the appointing authority ority to impose the particular penalty. Fur- could be justified in refusing to take into thermore, if, as in this case, the penalty consideration the mitigating factors which imposed by the appointing authority is more had been decisive in the Disciplinary Board's severe than that suggested by the Disciplin- choice of the penalty to be recommended. ary Board, the decision must set out in detail the grounds which have led the appointing authority to disregard the Board's opinion ...

40 ... both the Disciplinary Board and the 53 In the light of all the foregoing, the con- appointing authority were decisively influ- tested decision must be annulled on the enced in their assessment of the intrinsic ground that it does not contain an adequate gravity of the charges against [Mr V] essen- statement of reasons, without its being nec- tially by the allegation that he possessed the essary to consider the other pleas in law and model answers before the tests. arguments put forward by [Mr V].'

Pleas in law and arguments of the parties in there is no basis for the finding of the Court the appeal of First Instance that the statement of rea- sons for the contested decision is inadequate. The Commission points out in that regard that the Court of First Instance laid down requirements more extensive than the inter- 7. In the present appeal, the Commission ests that the obligation to state reasons relies on three pleas in law in support of its serves, namely to allow the person concerned submission that the judgment of the Court and the courts to determine whether the of First Instance should be quashed. The facts relied on are of such a kind as to justify Commission maintains, first, that the Court the sanction imposed. of First Instance misinterpreted the scope of the obligation to state reasons. Second, it maintains that the Court of First Instance erred in law in its assessment of what the appointing authority found to be aggravating In the present case the obligation to state factors in the contested decision. In the reasons was complied with in full, since the Commission's view, the Court of First appointing authority's decision makes Instance also erred in law in taking the view express reference to the reasons for which it that the contested decision should have con- decided to impose on Mr V a more severe sidered all the mitigating factors noted by penalty than that recommended by the Dis- the Disciplinary Board. Third, and finally, ciplinary Board. In that regard, the Court of the Commission maintains that the Court of First Instance confused the complaint alleg- First Instance erred in its definition of the ing an inadequate statement of reasons with degree of proof required to establish a disci- the potential complaint that the reasons actu- plinary offence. ally given to justify the decision might be ill founded. The Commission did not ignore the mitigating factors in the case but failed to mention them in the contested decision, since in the present case they were overshad- 8. Mr V contends that it follows from owed by the aggravating circumstances. Article 51 of the E C Statute of the Court of Justice that an appeal to the Court is limited to points of law. Since the present appeal relates solely to findings of fact it is inadmis- sible. In the alternative, Mr V submits that 10. Mr V claims that the Commission's plea the appeal must be dismissed as unfounded. relating to the scope of the obligation to state reasons is inadmissible, since the Com- mission is in reality seeking to have the facts reassessed by the Court, contrary to Article First plea and second branch of the second 51 of the EC Statute of the Court of Justice. plea put forward by the Commission As regards the substance of the plea, Mr V submits that the Court of First Instance was right to find that there had been a breach of the obligation to state reasons, since, in par- ticular, the appointing authority did not take 9. By its first plea and the second branch of into consideration the mitigating factors its second plea, the Commission claims that mentioned by the Disciplinary Board.

Accordingly, the fact that a statement of rea- sons is lacking or inadequate, hindering that review of legality, constitutes a matter of public interest which may, and even must, be raised by the Community Court of its own 14. The Court of First Instance stated in the motion ... judgment under appeal that it was appropri- ate first to examine Mr V's plea alleging 'breach of the principle of proportionality and inadequate statement of reasons'. After referring to the case-law on the obligation to ... consideration of such pleas may take place state reasons, the Court stated in paragraph at any stage in the proceedings ...' (para- 37 that it was necessary to consider whether graphs 23, 24 and 25). the obligation to state reasons had been satis- fied in the present case. The Court estab- lished the facts of the case in paragraphs 38 to 42. In paragraphs 43 to 50 it examined whether the circumstances on which the 12. The Court of Justice therefore found in appointing authority relied could justify the Daffix that it was competent to rule in an adoption of a more severe penalty than that recommended by the Disciplinary Board. In paragraph 51 the Court observed that the 2 — Case C-166/95 P Commission v Daffix [1997] ECR 1-983. decision should have contained a detailed

I - 6569

OPINION OF MR ELMER — CASE C-188/96 P

statement of the grounds on which it was more procedural in nature. The second ques ľ based and should have mentioned the rea­ tion, 'which concerns a breach of the prin­ sons why any mitigating factors could not be ciple of proportionality, is a purely substan­ taken into consideration. In paragraph 52 the tive question; it consists in determining Court found that the decision did not con­ whether the grounds relied on constitute an tain a statement of reasons sufficient to jus­ adequate basis for imposing the penalty cho­ tify the choice of a penalty other than that sen. In other words, while the first question recommended by the Disciplinary Board and relates to whether a statement of reasons was in paragraph 53 it annulled the decision on provided, the second relates to whether the the ground that it did not contain an reasons given are valid. adequate statement of reasons.

18. That approach is consistent with the case-law of the Court of Justice on the obli­ 16. However, those are two different ques­ gation to state reasons, 3 according to which tions which the Court of First Instance the obligation to state the reasons on which a appears to have fused into a single question. decision adversely affecting a person is based The question of the absence or inadequacy is intended inter alia to allow for judicial of a statement of reasons concerns whether the contested decision indicates with suffi­ cient clarity why the appointing authority 3 — Sec, inter alia. Case 195/80 Michel v Parliament [1981] ECR chose to disregard the penalty recommended 2861, Case 69/83 Lux v Court of Auditors [1984] ECR 2447, Daffix (cited above) and Cise T-l/90 Pérez-Mínguez Casar­ by the Disciplinary Board and is therefore iego v Commission.[1991] ECR 11-143.

I - 6570

COMMISSION v V

review. Where a decision is found not to — Mr V had the model answer to one test contain an adequate statement of reasons question and necessarily had it before that is precisely because it does not contain entering the examination room; he there- sufficient information to allow judicial fore took advantage of a leak. review of its legality.

— Mr V acknowledged at his interview before the Disciplinary Board that he had passed rough notes to a colleague during — Mr V had thus deliberately attempted to the written tests. distort the results of an open compe- tition, contrary to the principle that can- didates must be placed on an equal foot- ing for the purpose of the tests in such — That colleague's answer to the accoun- competitions; tancy question was very similar to Mr V's answer.

4 — Sec in this connection the French text 'annuler la décision — Mr V's conduct entailed a serious risk attaquée pour insuffisance de motivation'. that candidates who did not possess the

I - 6571

OPINION OF MR ELMER — CASE C-188/96 P

required qualifications would be success- severe disciplinary measure than that recom- ful in the tests, which would have been mended by the Disciplinary Board'. detrimental both to the other candidates and to the interests of the institution;

I - 6572

COMMISSION v V

decision must set out in detail the grounds tion'. To my mind, however, such an express which have led the appointing authority to reference to mitigating factors is unnecessary, disregard the Board's opinion. 6 since it is implicit in the decision that the appointing authority took those factors into consideration, provided that they were set out in the Disciplinary Board's opinion.

25. It follows from the reasoning in point 22 above that the appointing authority indi- cated, in the contested decision, the reasons for which it disregarded the sanction recom- mended by the Disciplinary Board, namely 28. I consider, therefore, that the finding by the aggravating circumstances which the the Court of First Instance in paragraph 52 appointing authority had found to exist in of the judgment that the contested decision the present case. It is also apparent on read- does not contain any ground adequately set- ing the judgment of the Court of First ting out the reasons why the appointing Instance that those reasons were sufficient to authority imposed on Mr V the sanction of allow judicial review of the substantive legal- removal from his post, which was more ity of the decision, since the Court made severe than that recommended, on the basis such an evaluation in its judgment. of the same facts, by the Disciplinary Board, constitutes an error of law.

26. It does not appear to follow from the case-law cited above that decisions imposing more severe sanctions than those recom- mended by the Disciplinary Board are 29. Similarly, the Court of Justice reached required to state which reasons the appoint- the same conclusion in Daffix, cited above, ing authority, when choosing the sanction, although the statement of the reasons for considered that it should not accept. N o r choosing a sanction more severe than that would that make a great deal of sense. The recommended by the Disciplinary Board in reasons which must be set out are those that case was much less precise than the which in the appointing authority's opinion statement of reasons considered in the justify the choice of a more severe sanction. present case. The Court held that:

extremely serious breach of his obligations as appealed against should be quashed pursuant an official vis-à-vis his institution,- which to the-first paragraph of Article 54 of the EG called into question the very foundations of Statute of the Court of Justice without its the relationship of mutual trust between the being necessary to consider the other pleas in institution and members of its staff ... Even if law relied on in support of the appeal. it does not specify this expressly, it is suffi- ciently apparent from the contested decision that that was the reason why the appointing authority had diverged from the Disciplinary Board's opinion' (paragraph 37). 31. Since, apart from the question whether the statement of reasons 'was sufficient, the Court of First Instance did not address the other pleas relied on by Mr V at first instance, I consider that a decision cannot 30. Since, as I have stated, I consider it nec- yet be given in the case and it should there- essary to accept the Commission's plea alleg- fore be referred back to the Court of First ing that the Court of First Instance erred in Instance to allow it to determine the pleas set law in finding that the contested decision did out in paragraph 25 of the judgment not contain an adequate statement of the appealed against. The costs should also be grounds on which it was based, the judgment reserved.

Conclusion

32. F o r the foregoing reasons, I propose t h a t the C o u r t s h o u l d h o l d as follows:

(1) T h e j u d g m e n t delivered b y the C o u r t of F i r s t Instance o n 28 M a r c h 1996 in C a s e T-40/95 V v Commission is set aside in s o far as it annulled the C o m m i s - s i o n ' s decision of 18 J a n u a r y 1995 r e m o v i n g M r V from his post, o n t h e g r o u n d t h a t t h e s t a t e m e n t of reasons w a s i n a d e q u a t e , a n d o r d e r e d t h e C o m - m i s s i o n t o p a y t h e costs.