C-140/96

the other party to the proceedings being:

Court of Auditors of the European Communities, represented by Jean-Marie Stenier, principal administrator in its Legal Service, Christos Komninos and Paolo Giusta, also of its Legal Service, acting as Agents, with an address for service at the seat of the Court of Auditors, 12 Rue Alcide de Gasperi, Kirchberg,

* Language of the case: Greek.

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T H E C O U R T (Second Chamber),

2 As regards the facts underlying the dispute between Mr Dimitriadis and the Court of Auditors, the Court of First Instance found:

' 1 . At the material time the applicant was an official of the Court of Auditors of the European Communities employed in the Language Service as a Greek- language translator.

2. O n 24 November 1993 Mr K., Head of the Greek Language Section and the applicant's immediate superior, left in the applicant's office and for his attention a

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DMITRIADIS v COURT OF AUDITORS

text to be translated by 9 December. O n 25 November 1993 Mr K. and the appli- cant discussed the translation of the text in the applicant's office. The applicant said that he would not have time to translate the document by the deadline, because he was to take three days' leave in the meantime, he had certain domestic duties to attend to and he had health problems (dizzy spells); he suggested that the job be given to someone else in the department.

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8. In the course of that inquiry on 19 January 1994 evidence was heard in turn from the applicant, from Mr K., and from four members of the language service relied upon by the applicant as witnesses. A last witness was heard on 27 January 1994.

9. Taking the view that there was some evidence that Mr K. and the applicant were both responsible, the appointing authority decided to hear those two officials in turn pursuant to the first paragraph of Article 87 of the Staff Regulations, relating to disciplinary measures. That procedure concerned, in the applicant's case, three alleged instances of refusal to work, including that occurring in the incident of 25 November 1993, and, in Mr K.'s case, the incident of 25 November 1993. The hearings were held on 28 January 1994. Two other members of the Greek Lan- guage Section were heard as witnesses on 31 January 1994.

10. O n 31 January 1994 the applicant left his post as a translator at the Court of Auditors to take up appointment as a lawyer-linguist at the Court of Justice of the European Communities.

11. O n completion of its inquiry, the appointing authority decided to reject the applicant's request for assistance by letter N o 8543 of 8 March 1994 addressed to the applicant. It did so on the basis that there was "some evidence that both parties were responsible" and in the light of the general context of the case. It cited, in particular, the following facts: Mr K. had never denied having used the terms in question, which were used in the course of a quarrel, and at the hearing on 19 January 1994 Mr K. offered to apologize. The appointing authority therefore con- cluded that it was in the interest of the service to take no further measures against Mr K.

15. The complaint was expressly rejected by the appointing authority by letter of 1 July 1994.'

3 Accordingly, by application lodged with the Registry of the Court of First Instance on 27 September 1994, the appellant brought an action for annulment in which he claimed that that Court should:

(1) annul decision N o 8543 of 8 March 1994 and decision N o 8912 of 1 July 1994 rejecting his complaint;

(2) order the defendant to pay him compensation of E C U 25 000 to make good the non-material damage suffered as a result of the decisions and the attitude of the appointing authority;

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— opened an inquiry a few days after the applicant's request for assistance;

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— heard the parties;

— heard the witnesses whom the applicant wished to be heard;

— opened disciplinary proceedings against each of the parties;

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adopted by the appointing authority. In that time the appointing authority had decided to open an inquiry to establish the facts, carried out that inquiry and con- ducted disciplinary proceedings against each of the parties to the argument.

io In those circumstances the Court of First Instance considered that no complaint of belated intervention amounting to infringement of the first paragraph of Article 24 of the Staff Regulations could lie against the appointing authority.

1 1 As to whether, after completing its inquiry, the appointing authority, in knowledge of the facts, took the appropriate action, bearing in mind the discretion vested in it (Case T-59/92 Carotina v Commission [1993] ECR 11-1129, paragraph 64) the Court of First Instance considered, in paragraphs 48 and 49 of the judgment appealed against, that, whilst it was not disputed that Mr K. used the terms in question, it did appear that the inquiry did not enable the appointing authority to determine the respective responsibilities of each of the parties, as the record of the witnesses' evidence shows. The appointing authority was therefore entitled, with- out exceeding its discretion, to reject the applicant's request for assistance and to close, without imposing any disciplinary sanction, the proceedings initiated against Mr K. specifically by reason of the argument in point.

i3 Finally, as regards the alleged refusal to work which, according to the appointing authority, was behind the incident, the Court of First Instance pointed out, in paragraph 54 of the judgment appealed against, that it had before it only an appli- cation for annulment of decision N o 8543 on the rejection of the applicant's request for assistance and not letter N o 8544 relating to the alleged instances of refusal to work. It therefore only considered this point to the extent that the appointing authority's reply of 1 July 1994 rejecting the applicant's complaint stated that 'the fact (...) that the incident of 25 November 1993 occurred when you refused, on very unconvincing grounds, to do at Mr K.'s request a translation which you subsequently did without any protest at Mr F.'s request can be included here as a factor in the analysis'. O n that point, the Court of First Instance found, first, that the file showed that the applicant had refused to carry out work which his immediate superior had requested him to do. Second, it took the view that, as the appointing authority had noted, the explanations given by the applicant did not seem reasonable or such as to justify his refusal. For instance, the applicant's explanation relating to domestic duties (washing and ironing, as he explained at the hearing) could not be regarded as reasonable. The Court of First Instance also con- sidered that the excuse relating to leave should not be taken into account given that the applicant had neither applied for nor taken any at that date and that, moreover, he had just taken three days' leave the week before the incident. As to the explana- tion based on his alleged dizzy spells, it noted that no medical certificate had been produced by the applicant. Finally, as regards his suggestion that the translation be given to someone else in the department and that he be given a less urgent job, the Court of First Instance took the view that, while an unequal distribution of work in a department might justify a request for an explanation addressed to an immedi- ate superior, it could not justify a refusal to work. Moreover, it pointed out that the applicant had confirmed at his disciplinary hearing that, in the days preceding the argument, he 'had had nothing to do'. The Court of First Instance therefore took the view, in paragraphs 57 and 58 of the judgment appealed against, that the appointing authority could not be accused of having infringed the first paragraph of Article 24 of the Staff Regulations and that the claims seeking annulment should be dismissed.

i7 Finally, on the question of costs, the Court of First Instance noted in paragraph 73 of the judgment appealed against that, under Article 87(2) of its Rules of Pro- cedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Article 88 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. However, under the second subparagraph of Article 87(3), the Court of First Instance may order even the successful party to pay costs which it considers that party to have unreasonably or vexatiously caused the oppo- site party to incur.

is The Court of First Instance held, having regard to the facts of the case and, in particular, the significance of the incident which gave rise to the case, the course of the procedure and the applicant's attitude, and given that the appointing authority had been unable to establish the facts and responsibilities with any certainty, that Article 87(3) of the Rules of Procedure should be applied and that the applicant should be ordered to bear all the costs.

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DIMITRIADIS v COURT OF AUDITORS

Forms of order sought and pleas in law

i9 Mr Dimitriadis seeks, first, an order that the Registrar of the Court of First Instance place on the file for the appeal the minutes of the hearing on 8 February 1996, the oral argument of the parties' lawyers and the transcript of the evidence given by Mr F. as a witness in Case T-326/94 Dimitriadis v Court of Auditors [1996] ECR-SC I-A-217 and 11-613 and, second, the annulment of all or part of the judgment appealed against. H e also claims that this Court should rule on the merits of the case itself and that the Court of Auditors should be ordered to pay the costs of both the appeal and the proceedings at first instance.

— infringement of Community law and lack of jurisdiction of the Court of First Instance;

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— error of law in the rejection of the application for compensation for non- material damage; and

— substantial procedural irregularity.

2i The Court of Auditors contends that the appeal should be declared inadmissible or rejected as unfounded.

25 In his first plea, the appellant argues, first, that the Court of First Instance's assess- ment would have been completely different if it had taken account of the argument alleging the ineffectiveness of the protection afforded by the remedies available in Luxembourg. Second, he alleges that the Court of First Instance did not take account of the evidence of Mr F. before it in Case T-326/94, cited above, in which he admitted having said to the appellant that if he did not withdraw his request for assistance he would be transferred to the Court of Justice with a poor staff report. The appellant argues that it is clear from this evidence that the statement which the defendant attached to its rejoinder is mendacious. Third, he alleges that the defen- dant placed on the file a statement by Mrs S., Mr K.'s wife, that she did not tele- phone the appellant's wife to apologize to her, and that the Court of First Instance accepted a statement by the appellant's wife contradicting that made by Mrs S. However, the judgment appealed against did not refer to those facts at all. The appellant claims that the Court of First Instance completely ignored facts which would expose the mendacious nature of the statements placed on the file by the defendant, to the extent that he harbours doubts as to that Court's neutrality and objectivity. Finally, the request by the appellant's counsel that evidence be taken from a former member of the Court of Auditors, Mr A., was not taken into consideration. Since the Court of First Instance would certainly have reached a different decision if those allegations had been taken into account, the appellant submits that the judgment appealed against should be annulled in whole or in part.

29 As the first plea is, in part, clearly inadmissible and, in part, clearly unfounded it must be dismissed.

30 In his second plea, the appellant argues that the grounds of the Court of First Instance's judgment directly contradict the judgment in Katsoufros, cited above. H e claims that the conditions established by this Court in that judgment — con- duct detrimental to the dignity and reputation of another official and the fact that such conduct was clearly established — were fulfilled in this case. Accordingly, the appellant considers that the defendant was legally bound to take appropriate mea- sures against Mr K., to protect the appellant from further insults. H e argues, fur- ther, that the determination of the respective responsibilities of the parties to the argument and the existence of doubt in that connection were a separate matter from the subject of his complaint and could not, therefore, be considered to justify the appointing authority's refusal to take appropriate measures in respect of the insults uttered to him by his immediate superior. The appellant argues that the Court of First Instance went beyond the subject-matter of the proceedings, namely the adoption of measures of assistance and not the determination of the respective responsibilities of the parties.

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3i O n that point, in paragraph 16 of the judgment in Katsoufros, cited above, this Court held that, although, according to its case-law, the administration is required, when faced with an incident which is incompatible with the good order and tran- quillity of the service, to intervene with all the necessary vigour so as to ascertain the facts and to take the appropriate action in full knowledge of the matter, it can- not take disciplinary action against the official in question unless the preliminary measures ordered clearly establish that the official concerned has engaged in con- duct detrimental to the proper functioning of the service or to the dignity and reputation of another official.

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35 In that connection, it must be noted that, in accordance with the case-law of this Court, the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice (see Case C-53/92 P Hilti v Commission [1994] ECR 1-667, paragraph 42).

36 As the appellant is disputing the assessment by the Court of First Instance of some of the evidence put before it relating to the pressure allegedly exerted on the appel- lant by Mr F. and by the Secretary-General of the Court of Auditors, his third plea is clearly inadmissible and must, therefore, be dismissed.

37 It is therefore necessary to consider the fourth plea, in which the appellant alleges that the assessment by the Court of First Instance of the appointing authority's decision not to hear two of the witnesses cited by him at the hearing constitutes a breach of Community law because it allows the appointing authority to choose which witnesses it will hear and to exclude without justification those the person concerned wishes to call. It allows, he claims, the appointing authority arbitrarily to exclude witnesses who were not present at the time of the incident in issue and thereby distort evidence or exclude certain parts of it for its own lawful or unlaw- ful purposes. Moreover, a person who requests the assistance of the appointing authority is deprived of any opportunity to demonstrate the truth of his allega- tions, in patent violation of his right to a fair hearing.

4i The respective responsibilities of those who were involved thus had to be assessed in the light of their conduct before and after the events in issue.

42 Accordingly, that plea must be dismissed as clearly unfounded.

43 In his sixth plea, the appellant argues that the Court's finding that he did not agree to carry out a piece of work at the time of the incident of 25 November 1993 should be annulled for several reasons.

44 First, if he did refuse to work, his immediate superior should, by virtue of the principle of legality, have used the proper channels and referred the matter to the head of the translation service, rather than taking matters into his own hands and insulting his subordinate. The appellant argues that the Court of First Instance appears to have accepted, indirectly but unequivocally, that the refusal to work justifies the insult uttered and that, this being so, the appointing authority can take

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46 Third, the appellant considers that the Court of First Instance infringed his right to a fair hearing by not adopting measures of inquiry on this point and by giving him no opportunity to demonstrate the truth of his allegations. In addition, he alleges, it ruled ultra petita in that, since it had already ruled the appointing authority's refusal to take measures against Mr K. reasonable in paragraph 49 et seq. of the judgment appealed against, the finding that he had refused to work in paragraphs 54 to 56 was superfluous and had not been sought. The appellant argues further that, in ruling on its own initiative, in the judgment appealed against, on certain substantive issues on which its assessment was not necessary and had not been requested, the Court of First Instance had also prejudged the decision to be given in Case T-326/94, cited above, and thus created a risk of con- flict between two contradictory decisions on the same facts.

47 Fourth, he claims, the Court of First Instance breached the principle of the neu- trality, freedom from interference and objectivity of the judicature. In paragraph 56 of the judgment appealed against, it made reference to the appellant's domestic duties — washing and ironing. The appellant submits that it failed to take account of his argument that, because of the absence of his wife, who was working in

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Greece, he had custody of his two young daughters and was therefore also obliged to undertake domestic duties. Even if the Court of First Instance had sole jurisdic- tion to determine issues of fact, it was not entitled to distort or diminish the appel- lant's allegations by taking such a harsh view of his arguments. Further, in taking the view that the justification put forward by the applicant was not reasonable, it erred in law, given the appellant's legal obligation to maintain his children.

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si Finally, as regards the appellant's claim that the Court of First Instance exceeded the limits of its jurisdiction and of its right of judicial review in that, in paragraphs 54, 55 and 56 of the judgment appealed against, it assessed the reasons given for the decision of the appointing authority of 1 July 1994, that part of the plea should be dismissed as unfounded since it has consistently been held that, while the Court of First Instance cannot substitute itself for the appointing authority and review its findings except to find that there has been a manifest error of assessment (see Joined Cases T-160/89 and T-161/89 KaUvros v Court of Justice [1990] ECR 11-871), it may nevertheless examine means which may have led to the evaluation made by the appointing authority (see Case 62/65 Serio v Commission [1966] ECR 561). Accordingly, that part of the sixth plea must be dismissed as clearly unfounded and the sixth plea as a whole must be dismissed.

52 In his seventh plea, the appellant argues that, if the other arguments raised in the appeal are allowed, paragraphs 59 to 61 of the judgment appealed against should also be annulled since the Court of First Instance rejected his application for com- pensation for the non-material damage he suffered. H e claims that it based its decision on the fact that the appointing authority's conduct was reasonable and did not represent a breach of the first paragraph of Article 24 of the Staff Regulations, and did not take into account the insults and threats of Mr F. and of Mr E., who was Secretary-General of the Court of Auditors at the time, and, in paragraph 43 of the judgment appealed against, underestimated the scale of those insults and threats.

55 The Court of First Instance, he claims, should have stated, first of all, whether he had unreasonably or vexatiously caused the defendant to incur costs, which was not obvious given the lack of clarity in paragraph 74 of the judgment appealed against. This allowed doubts to remain which were objectionable to the appellant and, moreover, no clear fact was alleged as a ground for the 'disciplinary measure'. According to the appellant, the reference to the 'significance of the incident' and to the 'attitude of the appellant, although the appointing authority had been unable to establish the facts and responsibilities with certainty' is incomprehensible. Whilst the Court of First Instance considered the incident to be of little importance, the appellant considered it to be very important because he was abused, threatened and insulted. As for its suggestion that his attitude had never been conciliatory, he counters that the person who abused him had to that day never apologized and the appointing authority expected him to both excuse the person who abused him and withdraw his application before the perpetrator of that abuse had even apologized.

56 O n that point, the second paragraph of Article 51 of the Statute of the Court of Justice provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them. Accordingly, where all the other pleas in an appeal have been rejected, the plea concerning the illegality of the decision of the Court of First Instance as to costs must, by virtue of that provision, be rejected as inad- missible (see Case C-396/93 P Henrichs v Commission [1995] ECR 1-2611).

T H E C O U R T (Second Chamber)

hereby orders:

1. The appeal is dismissed.

2. The appellant shall pay the costs.

Luxembourg, 16 October 1997.

R. Grass R. Schintgen