C-252/97

ORDER OF 16. 7. 1998 — CASE C-252/97 Ρ

O R D E R O F T H E C O U R T (Third Chamber) 16 July 1998 *

In Case C-252/97 P,

N , a former official of the Commission of the European Communities, represented by Xavier Magnée, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 15 May 1997 in Case T-273/94 Ν ν Commis­ sion [1997] ECR-SC II-289, seeking the annulment of the decision to remove the appellant from his post and the award of damages,

Advocate General: F. G. Jacobs, Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By application lodged at the Registry of the Court on 11 July 1997, N brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of 15 May 1997 in Case T-273/94 Ν ν Commission [1997] ECR-SC II-289 (hereinafter 'the contested judgment'), in which the Court of First Instance dismissed his application for annulment of the Commission decision of 4 October 1993 removing him from his post and his claim for compensation for the non- material loss allegedly incurred by him.

2 As regards the factual background to the dispute between Ν and the Commission, reference is made to paragraphs 1 to 30 of the contested judgment.

— order the Commission to pay him, by way of compensation for his non- material loss, the sum of BFR 3 million or any sum to be determined by the Court of First Instance;

— in the alternative, if it is decided that he should not be reinstated, to rule that the decision to remove him from his post was unfounded and consequently to order the Commission to pay him the sum of BFR 57 443 399 by way of com­ pensation for his pecuniary damage and the sum of BFR 20 million by way of compensation for his non-material loss, or any sum to be determined by the Court of First Instance;

— order the Commission to bear all the costs.

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4 In support of his application for annulment before the Court of First Instance, N had relied on three pleas in law alleging, first, irregularities in the disciplinary pro­ ceedings, second, manifest errors of assessment of the facts by the Commission and, third, breach of the principle of proportionality.

5 As regards the plea alleging irregularities in the disciplinary proceedings, the Court of First Instance first stated, at paragraphs 67 to 76 of the contested judgment, that the Commission had been right in initiating disciplinary proceedings, that the Commission was not prevented from initiating such proceedings merely because the information relied on by it may have been provided by a bank in breach of national provisions for the protection of banking secrecy and that the initiation of such proceedings did not constitute an infringement of the right to respect for pri­ vate life.

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ORDER OF 16. 7. 1998 — CASE C-252/97 Ρ

8 As regards the pleas alleging manifest errors of assessment of the facts and breach of the principle of proportionality, the Court of First Instance considered, at para­ graphs 125 to 145 of the contested judgment, that there were no grounds for hold­ ing that the Commission had committed a manifest error of assessment by con­ cluding that the applicant had committed a serious breach of his obligations under the Staff Regulations. The Court of First Instance added, at paragraphs 147 to 149 of the contested judgment, that there was nothing in the documents before it to justify the finding that the penalty imposed was manifestly disproportionate to the breach of obligations or that the Commission had used its powers for a purpose other than that for which they were conferred on it.

9 Finally, as regards the claim for compensation, the Court of First Instance held, at paragraphs 159 and 160 of the contested judgment, that the claim was admissible but was unfounded in so far as examination of the pleas submitted in support of the action for annulment had disclosed no illegality on the part of the Commission and thus no fault such as to give rise to its liability.

10 The Court of First Instance consequently dismissed the application in its entirety.

The appeal

— to rule that the decision to remove him from his post was unfounded and con­ sequently to order the Commission to pay him the sum of BFR 57 443 399 by way of compensation for his pecuniary damage and the sum of BFR 20 mil­ lion by way of compensation for his non-material loss, or any sum to be determined by the Court;

in the alternative, before giving judgment and without prejudice,

— to authorise him to prove by any legal means, including evidence from wit­ nesses, that he did not give any instructions to any person whatsoever con­ cerning performance of the alleged 'contract' at issue and did not sign that contract;

— appoint an expert graphologist with the task of verifying the writing.

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ORDER OF 16. 7. 1998 — CASE C-252/97 Ρ

Findings of the Court

14 Pursuant to Article 119 of its Rules of Procedure, where the appeal is clearly inad­ missible or clearly unfounded, the Court may at any time, by reasoned order dis­ miss the appeal without opening the oral procedure.

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15 Before considering the pleas raised by the appellant, it should be borne in mind that, according to settled case-law of the Court of Justice, under Article 168a of the E C Treaty and the first subparagraph of Article 51 of the E C Statute of the Court of Justice, an appeal may rely only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of facts (see, in particular, order in Case C-59/96 Ρ Koelman ν Commission [1997] E C R 1-4809, paragraph 31).

16 Consequently, where the Court of First Instance has established the facts or appraised them, the Court of Justice has jurisdiction only to exercise review under Article 168a of the Treaty with respect to the legal characterisation of those facts and the inferences in law which the Court of First Instance has drawn from it. Similarly, the Court of Justice does not in principle have jurisdiction to examine evidence in support of those facts which the Court of First Instance has accepted. Where that evidence has been properly obtained, and the general principles of law and rules of procedure governing the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the weight to be attributed to the evidence submitted to it (see, in particular, order in Case C-30/96 Ρ Abello and Others ν Commission [1998] E C R 1-377, paragraph 53).

First category of plea: the statement of the facts by the Court of First Instance

20 By this first category of plea, Ν submits that the Court of First Instance commit­ ted factual errors which had the effect of distorting the conclusions in the con­ tested decision and prejudicing his interests.

21 Ν criticises the Court of First Instance, first, for having disregarded the fact that he himself telephoned his bank and objected to the transfer of the sum in issue to his bank account, second, for having referred, at paragraph 7 of the contested judg­ ment, to 'a contract between the applicant and Nigeria', a fact which he has always disputed, and, third, for having failed to find as a fact that there was no 'credible explanation' for the transfer to his bank account since he had forbidden the trans­ action as soon as he was informed of the sum involved. According to the appellant, it was not his responsibility to dispel the Commission's legitimate doubts after having confirmed to his bank that it should not carry out the transaction. Fourth, Ν claims that he did not have access to all the information and sensitive files.

22 In that respect, it is sufficient to note that, by that argument, Ν is merely challeng­ ing findings of fact, and the appraisal of the facts in question, by the Court of First Instance.

23 The first category of plea in law must consequently be dismissed as clearly inad­ missible.

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27 The Court finds that the arguments set out above are directed essentially to obtaining a reconsideration of the application submitted to the Court of First Instance and do not demonstrate in what respect the contested judgment is vitiated by an error of law.

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28 As regards the argument that the Court of First Instance disregarded the general principle of law fraus omnia corrumpit, it should be noted that that principle does not constitute a separate plea in law on the basis of which it is possible to challenge the findings of the Court of First Instance that the Commission was not prevented from initiating disciplinary proceedings merely because the information relied upon by it may have been provided by a bank in breach of national provisions for the protection of banking secrecy and the initiation of such proceedings did not constitute an infringement of the right to respect for private life.

29 The first plea in that category must therefore be dismissed as clearly inadmissible.

30 Under the first part of the second plea, Ν criticises the Court of First Instance for having confused separate events, namely the initiation of an investigation, referred to in paragraph 69 of the contested judgment, and the initiation of disciplinary proceedings, referred to at paragraph 70. According to the second part of that plea, the Court of First Instance failed to substantiate the reasons for which the Com­ mission's interests could not have been satisfied by a simple investigation rather than disciplinary proceedings leading to the removal of the appellant from his post. In that respect, Ν submits that the primacy of the general interest over a legitimate individual interest must constitute an exception in any democracy and can be justi­ fied only if sacrifice of the individual interest is indispensable and proportionate to the general interest pleaded.

36 Under the first part of the third plea, N submits that, at paragraph 74 of the con­ tested judgment, the Court of First Instance was wrong in holding that the initia­ tion of the disciplinary proceedings did not constitute an infringement of the right to respect for private life. The Court of First Instance thus failed to take into account, first, the fact that N had not committed any unlawful act and, second, the fact that the general interest justifying a derogation to the fundamental right con­ ferred by Article 8 of the E C H R could be sufficiently protected by a simple inves­ tigation. Under the second part of that plea, he submits that he was justified in complaining that he had been denied the right to bring any form of action to seek review of the legality of the conduct which had deprived him of the right to respect for private life.

37 Under the fourth plea, N criticises the Court of First Instance for having failed to recognise that his rights of defence had been infringed. H e submits that the Court of First Instance could not hold that it was not necessary for the matters alleged to be clearly indicated at the stage of the preliminary interviews, since it could not refer to the concept of 'preliminary interviews' in order to justify an exception to the requirement of clarity laid down in Article 1 of Annex IX to the Staff Regula­ tions concerning disciplinary proceedings, and the preliminary interviews amounted to major interrogations in the course of which he was unlawfully led to incriminate himself.

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ORDER OF 16. 7. 1998 — CASE C-252/97 Ρ

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43 In that respect, it should be pointed out that, in so far as the fifth plea relates to an erroneous assessment of the facts by the Court of First Instance, it is clearly inad­ missible.

44 As regards the objection concerning the obligation to protect the anonymity of the informant, it is clear from the case-law of the Court of Justice, as the Court of First Instance pointed out at paragraph 81 of the contested judgment, that Article 214 of the E C Treaty — which requires the members and the servants of the insti­ tutions of the Community not to disclose information of the kind covered by the obligation of professional secrecy — constitutes a general principle which even applies to information supplied by natural persons, if that information is of the kind that is confidential. In the case of information supplied on a purely voluntary basis, but accompanied by a request for confidentiality in order to protect the informant's anonymity, an institution which accepts such information is bound to comply with such a condition (see Case 145/83 Adams ν Commission [1985] E C R 3539, paragraph 34). Furthermore, proceedings initiated on the basis of infor­ mation from an undisclosed source are lawful, provided that this does not affect the opportunity for the person concerned to make known his views on the truth or implication of the facts or documents communicated or on the conclusions drawn by the Commission from them (Case 85/76 Hoffmann-La Roche ν Com­ mission [1979] E C R 461, paragraph 14).

45 It follows that the fifth plea is in part clearly inadmissible and in part clearly unfounded.

50 The sixth and seventh pleas must therefore be dismissed as clearly inadmissible.

51 Under the eighth plea, Ν submits that, by relying on the fact that the Commission cannot be characterised as a 'tribunal' within the meaning of Article 6 of the E C H R , the Court of First Instance wrongly deprived him, at paragraph 95 of the contested judgment, of the guarantees laid down in that provision. H e adds that, even if that institution cannot be characterised as a tribunal, the Court of First Instance itself should at least have complied with that provision.

52 First, it should be noted that, as the Court of First Instance held at paragraph 95 of the contested judgment, proceedings before the Commission are administrative, rather than judicial, with the result that the Commission cannot be characterised as a 'tribunal' within the meaning of Article 6 of the E C H R (see Joined Cases 100/80 to 103/80 Musique Diffusion Française ν Commission [1983] E C R 1825, paragraph 7).

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53 Furthermore, no specific basis is put forward for N ' s assertion that the Court of First Instance itself failed to comply with Article 6 of the E C H R .

54 The eighth plea must consequently be dismissed as clearly unfounded.

57 The second part of the plea must be dismissed as clearly unfounded. As is clear from paragraph 112 of the contested judgment, the appellant submitted before the Court of First Instance that, even though the Disciplinary Board had recom­ mended that he be downgraded, the appointing authority had opted to remove him from his post for reasons which had not been proved to be correct in the present case, either in fact or in law. At paragraphs 142 and 143 of the contested judgment, the Court of First Instance responded to that argument by holding that the appointing authority's statement in the contested decision was the reflection of a global appraisal of the facts, that the applicant had therefore been wrong to con­ centrate on the question whether proof had been provided for that statement in isolation and, finally, that the appointing authority had merely envisaged a hypoth­ esis which was considered plausible in the light of the circumstances of the case and, in particular, of the appellant's failure to cooperate in good faith, which had resulted in the crystallisation of legitimate suspicions.

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Third category of plea: the appraisal of the facts by the Court of First Instance and breach of the principle of proportionality

58 In this third category of plea, Ν submits, under his first plea, that the charges against him were inconsistent to such an extent that the Court of First Instance should have held that there was no justification for removing him from his post, a measure which conflicted with the opinion of the Disciplinary Board. The Com­ mission and the Court of First Instance both based themselves on a mere hypoth­ esis with the trappings of plausibility, the former in order to impose the penalty at issue and the latter to justify it. Furthermore, the Court of First Instance was wrong in holding, at paragraph 147, that it was for the appointing authority to choose the appropriate disciplinary measure to be imposed and that review of the question whether the penalty was proportionate to the wrongful conduct could be limited to cases of manifest error.

judgment, that it could in any event be concluded from the appellant's statements that he had maintained contacts in a third country in a field in which, in his capac­ ity as a Community official, he had access to sensitive information, without advis­ ing his hierarchical superiors. The Court of First Instance thus stated, at paragraph 145, that there were no grounds for holding that the Commission had committed a manifest error of assessment in concluding that the appellant had committed a serious breach of his obligations under the Staff Regulations. That finding was made after the Court had pointed out, at paragraph 129, that the Staff Regulations gave rise to a duty of loyalty on the part of an official to the institution to which he belongs and that as a consequence of that duty he must conduct himself in a manner that is beyond suspicion, in order that the relationship of trust between that institution and himself may at all times be maintained.

62 Next, as the Court of First Instance pointed out at paragraph 147 of the contested judgment, according to the settled case-law of the Court of Justice, where the truth of the facts alleged against an official is established, it is for the appointing auth­ ority to choose the appropriate disciplinary measure to be imposed and that choice may be the subject of censure by the Community judicature only in the event of manifest error or misuse of powers (see, in particular, Case 228/83 F. ν Commission [1985] E C R 275, paragraph 34).

63 As the Court of First Instance correctly pointed out at paragraph 148 of the con­ tested judgment, there is nothing in the documents in the case to justify the con­ clusion that the penalty imposed was manifestly disproportionate to the breaches of duty found to have been established or that the Commission used its powers for a purpose other than that for which they were conferred on it.

67 The second part of the plea must be dismissed as clearly unfounded. At paragraph 145 of the contested judgment, the Court of First Instance stated that it found no grounds for holding that the Commission committed a manifest error of assess­ ment of the facts by basing itself on a global appraisal.

68 Finally, the third part of that plea is based on a clearly incorrect reading of the contested judgment. It is clear from paragraph 132 of the judgment not that prefer­ ence should be given to a presumption of guilt and that Ν should be denied the benefit of the doubt, but that he could not rely on the general principles of law and, in particular, a presumption of innocence, in order to justify a failure to coop­ erate. The Court of First Instance thus considered that, since he was the only per­ son in possession of information relating to a transaction of which he claimed to be the victim, it was for him to cooperate in good faith with the Commission, rather than to establish his innocence.

69 It follows from all the foregoing considerations that the pleas in law raised by the appellant in support of his appeal are either clearly inadmissible or clearly unfounded. The appeal must therefore be dismissed pursuant to Article 119 of the Rules of Procedure.

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Costs

70 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the appellant was unsuccessful, he must be ordered to pay the costs.

R. Grass C. Gulmann

Registrar President of the Third Chamber

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