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first, that he '[had] exercised and contin- ue [d] to exercise unauthorised activities'; second, that he had 'failed to observe his duty of discretion in that, without inform- ing his superiors, he [had] had his residence at the same address as that of an outside firm which regularly participated in pro- jects funded or to be funded by the Commission and [had] publicly criticised 2. The appellant is the former head of Unit a national body involved in the field of 3 'Tourism' in Directorate A 'Business tourism'; third, that he had 'provided development and improvement of the busi- services to the Commission in the field of ness environment' of the Directorate-Gen- his professional activities on behalf of eral for Enterprise Policy, Distributive persons or bodies outside the institution Trades, Tourism and Cooperatives (DG in such a way as to have compromised his XXIII) (Unit XXIII.A.3). By decision of independence in the performance of his 22 June 1995 the appointing authority, duties as Head of Unit within the Commis- namely the Commission, decided to impose sion'; fourth, that he had 'prepared for the disciplinary measure recommended by persons or bodies outside the institution the Disciplinary Board, that is to say documents ultimately destined either for removal from post without withdrawal of the Commission, and contrary to its inter- entitlement to retirement pension. ests, or for outside partners in projects funded by the Community'; and fifth, that he had 'committed administrative irregula- * Original language: German. rities and been guilty of budgetary and 1 — Judgment of 19 March 1998 in Case T-74/96 Tzoanos v Commission [1998] ECR-SC II-343. financial mismanagement in the perfor-

4. On 3 August 1994 the appellant was suspended from his post and an amount equal to half of his basic salary was with- 7. In that judgment the Court of First held. Since no final decision had been taken Instance concluded, inter alia, that there within the prescribed period, his full salary had been no need to suspend the disciplin- was reinstated on 4 December 1994, ary proceedings pursuant to the fifth para- although he continued to be suspended, graph of Article 88 of the Staff Regulations and the sums withheld from his salary were pending the close of the criminal proceed- repaid to him. ings against the appellant (or the applicant, as he then was), as he had requested. The Court of First Instance further held that the administrative irregularities and budgetary and financial mismanagement related to matters falling within the appellant's responsibilities and, finally, that he could 5. Following the close of the proceedings not claim that he did not have access to before the Disciplinary Board, the appoint- certain documents necessary for his ing authority decided on 22 June 1995 to defence. remove the appellant from his post without loss of entitlement to a retirement pension, with effect from 1 August 1995. The deci- sion was taken pursuant to Article 86(2)(f) of the Staff Regulations of Officials of the European Communities (hereinafter 'the Staff Regulations' — any articles cited 8. On 19 May 1998 the appellant appealed without a particular reference are also from against that judgment; he claimed, inter those Regulations). alia, that the Court of First Instance had misinterpreted the fifth paragraph of Arti- cle 88 of the Staff Regulations and held him responsible for irregularities relating to matters which were outside the scope of his duties. He further claimed, as he had already done at first instance, that there 6. The appellant lodged a complaint had been a breach of his rights of defence, against the decision of the appointing since the statement of reasons for the authority; that complaint was expressly complaints made against him was inade- rejected by decision of 19 February 1996. quate. He also pleaded a breach of the principle of equality of arms, on the ground that he had not had access to documents 2 — Abstract of the judgment in Case T-74/96 [1998] ECR-SC I-A-129, 130. which would have confirmed his claims.

10. The Commission contends that the (b) in any event, as unfounded in its appeal is unfounded, and in fact inadmis- entirety; sible on two points. Nor, in its view, can the findings of the Court of First Instance concerning the applicant's duties be called in question in an appeal. Furthermore, in point 23, pages 17 and 18, on the adequacy of the rights of defence, the appeal merely reiterates the complaints already raised in (2) order the appellant to bear the costs of the proceedings before the Court of First the appeal proceedings.

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Relevant legal provisions taken only after a final verdict has been reached by the court hearing the case' (fifth paragraph). 12. The most significant provision for the purposes of the present proceedings is Article 88 of the Staff Regulations, which reads:

Grounds of appeal

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of fact. I shall confine my examination to cerns the question as to what is to be the points which are further elaborated by understood by the term 'prosecuted'. the appellant.

16. In the interests of procedural economy, 14. The appellant sets out three grounds of I propose to examine the second and fourth appeal in detail. In the first, he criticises points first. what he considers the misinterpretation and misapplication of the fifth paragraph of Article 88 of the Staff Regulations; in the second, he criticises the incorrect con- clusions of the Court of First Instance, especially as regards his duties and respon- sibilities; and in the third he criticises the Point 2 of the first ground of appeal: the breach of the principles of inter partes date of the disciplinary proceedings and the proceedings, equality of arms and the prosecution obligation to state reasons.

17. It is common ground that the appellant was the subject of formal criminal proceed- ings, at least after the contested decision First ground of appeal was adopted on 22 June 1995.

19. He maintains that it would be to on whom it has imposed disciplinary mea- restrict the scope of the fifth paragraph of sures if they are subsequently prosecuted in Article 88 and to add to its content to respect of the same acts. That would be assume that the criminal proceedings must quite contrary to the principles of sound already be pending during the disciplinary administration and legal certainty. proceedings. The wording of the Staff Regulations merely provides that the crim- inal proceedings must be initiated against the official; there is no further requirement that the two sets of proceedings be con- current. 22. If an official is prosecuted after the disciplinary proceedings have been closed and it is found that in reality the facts with which the official is charged are not 20. An official who is removed from his established, in other words if new facts post would be deprived of all his rights, come to light, the official may apply for the even if it emerged during the criminal disciplinary proceedings to be reopened proceedings that in reality the acts in pursuant to Article 11 of Annex IX to the respect of which a disciplinary measure Staff Regulations. 4 had been imposed were not established. Where the Staff Regulations refer to a 'final decision [being] taken' 3 they refer to a general concept [legal situation], which the appointing authority can also determine after it has taken a decision. Thus any previous measure can only be of a provi- sional nature and the legal situation must — Assessment be reviewed and the decision withdrawn if appropriate.

24. The overall coherence of Article 88 removing him from his post was adopted. also suggests a different interpretation from There is nothing to suggest that 'prosecu- that indicated by the appellant. The fifth ted' must necessarily be taken to mean that paragraph does not state 'if criminal pro- proceedings are pending before a criminal ceedings are undertaken' but '[w]here, court. Rather, a prosecution is initiated as however, the official is prosecuted'. That soon as inquiries are commenced. provision must be placed in the context of the third and fourth paragraphs. It thus follows that the prosecution must have been commenced within the period of four months provided for in the third paragraph or, where that period has elapsed, in the course of the disciplinary proceedings, because otherwise the final decision could 26. The Commission contends that a dis- not be stayed pursuant to the fifth para- tinction must be drawn between mere graph. That correlation between the para- criminal inquiries and a prosecution. The graphs confirms the necessity for both sets inquiries do not set the prosecution in of proceedings to be simultaneous. That motion but are made purely with a view also follows from the concept of a 'final' to gathering information. It is frequently decision marking the end of the 'provi- the case that criminal inquiries are not sional' suspension from duties. A final followed by a prosecution. decision imposing a disciplinary measure cannot retroactively become a mere provi- sional measure as a result of a prosecution which is not commenced until after the decision has been taken.

folgt' ('criminal proceedings' [before a the Court of First Instance establishes that court]). 6It may be concluded from these no criminal proceedings had been initiated differing terms that the concept of 'Straf- against the applicant on the date on which verfahren' in the fifth paragraph of Arti- the contested decision was adopted, are cle 88 must be given a broader interpreta- decisive. tion and encompasses, in addition to purely criminal proceedings, measures of inquiry. If the fifth paragraph of Article 88 is placed in its overall context, however, it is clear that, as regards the objective, there is no difference between that provision and the second paragraph of Article 7 of Annex IX. It would make no sense to have a different rule in the same Staff Regulations. The fifth 29. The conditions laid down in the fifth paragraph of Article 88 provides that in the paragraph of Article 88 are therefore not event of such proceedings a final decision is satisfied, since even the fact that criminal to be taken only 'after a final verdict has proceedings were subsequently initiated been reached by the court hearing the does not alter the situation, as I have case'. 7It follows clearly from 'final verdict' demonstrated above. The appointing that here, too, only court proceedings can authority and the Court of First Instance be meant, since inquiries or investigations therefore did not misinterpret the fifth lead only, where appropriate, to the initia- paragraph of Article 88 and, accordingly, tion of a prosecution, not to a verdict. there is no further need to examine the other complaints put forward in the con- text of the first ground of appeal.

— Point 1 of the first ground of appeal: tion. The purpose of those provisions is to Misinterpretation of the consideration ensure that the administrative authority of protection underlying the fifth para- which is required, where necessary, to graph of Article 88 of the Staff Reg- adopt a disciplinary decision is fully aware ulations of the facts alleged against the official which are also the subject-matter of crim- inal proceedings. As the Court of First Instance itself observes, that rule is justi- fied, in particular, by the difference in the — Arguments of the parties scope of the controls 'exercised by the administrative authorities and courts, on the one hand, and the criminal authorities and courts, on the other, since the latter normally have greater powers of control than the former'. 9 31. The appellant criticises the findings of the Court of First Instance in paragraph 34 of the judgment. The Court stated:

8 — Abstract of the judgment in Case T-74/96 (cited in footnote 9 — Abstract of the judgment in Case T-74/96 (cited in footnote 2), at I-A-132. 2), at I-A-132.

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the wording of the fifth paragraph of 37. If the appellant's submission were fol- Article 88 that the disciplinary proceedings lowed that would mean that the disciplin- and the criminal proceedings must relate to ary authority could rely on complete and the same facts. That is also the Commis- accurate facts only when any pending sion's argument. criminal proceedings had been concluded. The inference is that in purely disciplinary proceedings the facts can never be suffi- ciently established. That conclusion cannot be accepted. Although a criminal court enjoys more extensive powers of investiga- tion than the Disciplinary Board, the pos- 35. The Commission further contends that sibility of carrying out inquiries referred to even if the fifth paragraph of Article 88 in Annex IX to the Staff Regulations shows were to be interpreted in the manner that the power of investigation is suffi- advocated by the appellant that argument ciently wide to enable the facts to be would be irrelevant in the present case. As established in disciplinary proceedings with the Court of First Instance observed, the sufficient precision for a decision imposing evidence before it showed that on the date a disciplinary measure to be taken. on which the contested disciplinary deci- sion was adopted no criminal proceedings for the purpose of the fifth paragraph of Article 88 had been initiated against the applicant. Accordingly, those provisions are not applicable at all here.

— Arguments of the parties 40. In the light of all those circumstances, it is clear that the real meaning and purpose of the fifth paragraph of Article 88 is that an official must not be placed at a dis- advantage in criminal proceedings. It is also reasonable, therefore, that the person seek- 41. The appellant claims that the Court of ing a stay of the disciplinary proceedings First Instance incorrectly considers that he should be expected to provide appropriate must identify the matters forming the basis facts and reasons. In that regard, the of both sets of proceedings. conclusion which the Court of First Instance reaches in paragraph 38 of the judgment is also well founded. That para- graph reads: 42. He contends that he is not required to 'state the reasons for which a decision taken by the appointing authority in respect of each of those matters was such as to affect his position in any subsequent crim- 'In so far as the applicant was at that time inal proceedings' 11 (here the appellant is the subject of inquiries liable to lead to referring to paragraphs 38 and 41 of the criminal proceedings, however, he should contested judgment). He contends that it is be allowed, in accordance with the ratio sufficient that the matters forming the legis of the fifth paragraph of Article 88 of subject-matter of the criminal proceedings the Staff Regulations, to show specifically and the disciplinary proceedings are shown that a final decision on his case was capable to be the same and that there is no need to of affecting his position in any subsequent provide further details. criminal proceedings to which the inquiry being carried out at the same time as the disciplinary proceedings might lead and which related to the same matters. It is therefore incumbent on the applicant to 43. The appellant claims that since he had identify those matters precisely and to state no access to the file at that stage of the the reasons for which a decision taken by criminal proceedings, if it were necessary to the appointing authority in respect of each follow the reasoning of the Court of First of those matters was such as to affect his Instance, the fifth paragraph of Article 88 position in any subsequent criminal pro- would in the majority of cases, if not ceedings'. 10 systematically, be inoperative.

46. The Commission further observes that since the purpose of the fifth paragraph of '... It is only where such criminal proceed- Article 88 is not to affect the official's ings have been initiated that the matters to position in criminal proceedings, it is which they relate can be identified and logical that the administration cannot be compared with the matters in respect of satisfied with mere assertions on the part of which the disciplinary proceedings have the official but that it should expect him to been instituted so that it can be determined specify what the facts giving rise to both whether they are the same'. 12 sets of proceedings consist of and to explain why a decision by the appointing authority in respect of those facts could affect his 12 — Abstract of the judgment in Case T-74/96 (cited in footnote position in the criminal proceedings. 2), at I-A-133.

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51. Considering that the criminal proceed- ings in Belgium had been pending, as the Court of First Instance states, since 4 Jan- uary 1996, 13 but that Mr Tzoanos only provided written answers to the questions put by the Court in September 1997 (the hearing did not take place until November 1997), it is difficult to see why even at the end of 1997 Mr Tzoanos still had no information about the criminal proceedings initiated against him. 54. It follows from all the foregoing that the fifth paragraph of Article 88 was nei- 13 — Judgment in Case T-74/96, cited in footnote 1, paragraphs ther misapplied by the appointing authority 36 and 41. nor incorrectly interpreted in law by the

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The Court of First Those details were not even known on the Instance concludes that Mr Tzoanos cannot day of the hearing before the Court of First escape all responsibility in that field by Instance, on 13 November 1997. As a disputing that he acted in that capacity. The general rule the complaint is filed by the responsibility attributed to him neverthe- appointing authority, which is then natu- less relates specifically to the powers of rally aware of the same facts. In the present authorising officer for payments.

before it. There was no need for it to stay fact that he had not acted in that capacity. the proceedings or to reserve judgment. Only misconduct coming within the scope That is also confirmed by the rule in of his responsibility could be attributed to Article 185 of the EC Treaty that actions him. The Commission, however ascribed to brought before the Community judicature him, as Head of Unit XXIII.A.3, responsi- are not to have suspensory effect. Even if bility for breaches which in reality were the foregoing considerations are not fol- attributable to the Director-General.

57. The Commission contends, on the held responsible qua authorising officer for other hand, that the way in which the payments, but first considered (from para- appellant refers to the judgment gives a graph 187) what tasks had been entrusted false impression, since he picks out just one to him. It then determined the extent of the particular passage from the entire argu- responsibilities which the Commission had ment. The findings of the Court of First ascribed to him in the contested discipli- Instance are not based on a finding that the nary decision. It proceeded to examine in Commission did not found the applicant's detail Mr Tzoanos's arguments in relation responsibility on his capacity as authorising to the responsibilities imputed to him by officer for payments. The Court of First the Commission in connection with the Instance stated, independently of the ques- monitoring of the budgetary and financial tion concerning the duties of authorising aspects of the projects. At paragraph 202 of officer for payments, that in his capacity as the judgment it reached the conclusion that head of that unit Mr Tzoanos was under an the Unit had been entrusted with certain obligation to check the validity of requests tasks which also encompassed budgetary for payment, so that he was personally and financial monitoring. The Court of responsible where a payment proved to be First Instance further held that those tasks unjustified. The Commission also points were not properly carried out and that in out that the existence of that obligation is a any event the misconduct established fell finding of fact by the Court of First within the responsibilities of the official in Instance and is therefore not open to charge of the Unit, at the very least because challenge. he had not shown that he did everything to carry out those tasks. The Court of First Instance concluded that Mr Tzoanos could not claim that the fact that he had not authorised payments exempted him from any responsibility. Only after carrying out 58. Furthermore, the Commission only this detailed examination, which cannot be (incorrectly) described Mr Tzoanos as faulted, did the Court of First Instance also authorising officer for payments in one observe that in the present proceedings the document, the decision rejecting his com- Commission did not base the applicant's plaint. Elsewhere he is consistently referred responsibility on his capacity as authorising to as Head of Unit. officer for payments.

to challenge the findings of fact of the the decision. It was also untrue that he had Court of First Instance relating to a matter been able to acquaint himself with all the for which the appellant was responsible. facts on which the decision was based. That point may be left there, however, since the second ground of appeal is in any event unfounded, since the Court of First Instance none the less drew the necessary and proper conclusions from the fact that Mr Tzoanos was not authorising officer for payments, because it based its decision on the actual, and not merely formal, respon- 62. The Commission did indeed file certain sibilities which he exercised within the documents when requested to do so by the Unit. Court of First Instance but did not include the majority of the budgetary and financial documents. The appellant might possibly have found in other documents evidence to support his defence and his arguments. It follows from Solvay v Commission that the rights of the defence which the applicant enjoys during the administrative procedure Third ground of appeal (the principles of would be excessively restricted in relation inter partes proceedings, equality of arms to the powers of the Commission, 'which and the obligation to state relevant reasons) would then act as both the authority notifying the objections and the deciding authority, while having more detailed knowledge of the case-file than the defence'. 14 First complaint

64. As regards the other documents whose the decision was based. He had also had production Mr Tzoanos had requested, the sufficient time to submit his observations Commission points out that neither the on those documents. The Court of First Disciplinary Board nor the appointing Instance then ascertained whether other authority had carried out a selection of findings would have been established if the the documents. applicant had had access to documents other than those communicated to him during the course of the disciplinary pro- ceedings. The Court of First Instance observed that in those circumstances it 65. The Commission maintains that it would be necessary to accept that there follows from the Solvay judgment that it had been a breach of the rights of the is necessary to determine and consider in defence if the documents which the appli- each case whether the non-disclosure of cant sought had shown that he had no certain documents may have influenced the responsibility for budgetary or financial proceedings and the content of the decision matters. However, only documents in exis- to the applicant's disadvantage. The Court tence, that is to say communicated, were of First Instance also considered those sufficient for the Court of First Instance to matters in the present case and reached find, without erring in law, that the appli- the conclusion that the right of access to cant was responsible. None of the docu- other documents could not influence the ments not communicated to the appellant findings made, since they were based on would therefore have enabled him to deny documents to which the appellant also had responsibility. For that reason, too, no error had access. That is a finding of fact by the in the judgment can be established. Court of First Instance which cannot be challenged on appeal.

68. The appellant criticises the Court of First Instance for having substituted itself for the Commission and having, in respect of certain projects, itself formulated the allegations against him which the Commis- sion had not precisely formulated.

71. The Court of First Instance goes on to state that the Commission specified the allegations in its decision expressly reject- ing the complaint.

— Assessment

72. Also, as regards the third project — 69. That argument must be rejected as BD G — the Court of First Instance states unfounded. As regards the first project — that it can be inferred from the report of IFTO — the Court of First Instance refers DG XX, to which the disciplinary decision at paragraph 266 of the judgment to the refers, that the irregularities attributable to report of DG XX, in the absence of further Mr Tzoanos are two in number. They are information in the contested decision. That then specified. The Court of First Instance report, to which the decision refers, con- then demonstrates in detail that those tains two specific allegations relating to the allegations can in fact be formulated applicant. against the applicant.

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