C-273/99

OPINION OF MR RUIZ-JARABO — CASE C-273/99 P

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 19 October 2000 1

1. Mr Connolly, a former Commission Directorate D, which dealt with mone- official, is appealing against the judgment tary affairs in the Directorate-General of the Court of First Instance of 19 May for Economic and Financial Affairs. 1999, 2which dismissed his application for annulment of the Commission decision of 27 September 1995 suspending him from his post with effect from 3 October 1995 and withholding one half of his salary. — On 24 April 1995 he applied, under Article 40 of the Staff Regulations, 3 for three months unpaid leave on personal grounds commencing on 3 July 1995. The Commission granted him leave by decision of 2 June 1995 and, by a further decision of 27 Sep- tember 1995, agreed that he should be reinstated in his post on 4 October 1. Background 1995.

— Whilst on leave, Mr Connolly pub- 2. The facts held not to be in dispute in the lished a book entitled The Rotten judgment at first instance are, in summary, Heart of Europe — The Dirty War the following: for Europe's Money without requesting prior permission as required by the second paragraph of Article 17 of the Staff Regulations. Early in September 1995, specifically on 4 and 10 Septem-

3 —Regulation (EEC, Euratom, ECSC) No 259/68 of the — The appellant was a grade A 4 official Council of 29 February 1968 laying down the Staff and Head of Unit 3, 'EMS: National Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and and Community Monetary Policies' in instituting special measures temporarily applicable to offi- cials of the Commission (OJ, English Special Edition 1968, Series I, p. 30). That regulation, which made numerous substantial amendments to Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 (OJ, English 1 — Original language: Spanish. Special Edition 1959-1962, p. 135), has itself been amended on numerous occasions (as at March 1999, no fewer than 2 — Case T-203/95 Connolly v Commission [1999] ECR-SCI-A- 80 amendments). 83 and II-443.

— At the subsequent hearing on 26 Sep- — On 27 February 1996 the Commission tember 1995 he refused to answer any informed Mr Connolly that his com-

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OPINION OF MR RUIZ-JARABO — CASE C-273/99 P

plaint had been dismissed by implied 4. At the hearing before the Court of First decision. However, he had already Instance, Mr Connolly stated that follow- made an application to the Court of ing the adoption of the decision removing First Instance, which gave rise to Case him from his post, which would be dealt T-203/95. with in Case T-163/96, 4the only outstand- ing issue in Case T-203/95 was the decision suspending him from duty. The Court of First Instance took formal notice that the appellant was discontinuing the proceed- ings in so far as they concerned (i) annul- ment of the appointing authority's decision 3. By his application Mr Connolly sought to bring disciplinary proceedings against not only an order that the Commission him and to refer the matter to the Dis- should pay the costs but also: ciplinary Board and (ii) his application for damages and for an order that the judg- ment should be published.

defective statement of reasons which failed obligations imposed by the Staff Regula- to explain why the facts complained of tions have actually been infringed but constituted serious misconduct, the Court merely requires it to state the grounds on of First Instance held that the decision at which it is alleged that an official has issue was not restricted to finding that the committed serious misconduct. book had been written and published without the prior permission required by Article 17 of the Staff Regulations but also provided detailed reasons as to why the alleged infringement was so serious. The decision specified the appellant's grade and duties within the Directorate-General for Economic and Financial Affairs; it referred 8. For those reasons, which are set out in to the controversial wording of the title of paragraphs 47 to 49 of the judgment under the book, mentioned that The Times had appeal, the Court of First Instance consid- published extracts from the book, thus ered that the appointing authority's deci- highlighting the fact that the book had sion to suspend Mr Connolly pending the been heavily publicised and promoted; and outcome of the disciplinary proceedings it drew attention to the fact that the book brought against him was sufficiently well expressed a fundamental disagreement with founded and rejected his first plea in law. the Commission's policy, which it was the applicant's responsibility to implement.

permission under Article 17 of the Staff Connolly reproduces in his appeal the Regulations did not establish that there had claims already made at first instance, been any breach of the principle of equal namely, that the Court of Justice should treatment, since it concerned a different (i) annul the decision of 27 September to situation from that of the appellant. Even if suspend him, the decision of 6 September it were assumed that such a practice had to bring disciplinary proceedings against existed in respect of material which had a him, and the decision of 4 October to refer bearing on the work of the Communities, the matter to the Disciplinary Board; (ii) the Court considered it sufficient, as is clear order the Commission to pay him from the judgment under appeal, that the BEF 750 000 by way of compensation for gravity of the official's alleged misconduct material and non-material damage sus- lay not only in his failure to obtain prior tained by him following the press campaign permission to publish the book but also in a and defamatory statements to which he had combination of circumstances particular to been subjected and (iii) order that the his case, such as the contents of the book, operative part of the judgment be published the publicity given to it and the possibility at the Commission's expense in The Times, that his conduct was also in breach of The Daily Telegraph and The Financial Articles 11 and 12 of the Staff Regulations. Times.

His argument that the appointing authority 11. The Commission has lodged an objec- did not suspend another official who had tion of inadmissibility regarding the claim published defamatory works whilst in for damages and the request for publication active employment also failed on the of the judgment in certain newspapers, to ground of insufficient evidence. which the appellant has not replied.

(b) Inadequate statement of reasons and breach of the principle of the inalter- ability of measures. The same fate must befall those pleas in law which the appellant withdrew during the proceedings before the Court of First Instance. I take the view, therefore, that

5 — Case C-354/92 P Eppe v Commission [1993] ECR I-7027, (c) Breach of the rules relating to the paragraph 13. 6 — Order of 17 September 1996 in Case C-19/95 P San Marco burden of proof and of the audi v Commission (1996] ECR I-4435, paragraphs 47 and 49. alteram partem rule.

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18. Thus, provided that the requirements 17. To my mind there is no basis for of the first paragraph of Article 88 of the interpreting those articles in the way pro- Staff Regulations are met, the appointing posed by the appellant. Article 25 7pro- authority may suspend the official with vides that any decision adversely affecting immediate effect, giving a less extensive an official is to state the grounds on which and less detailed statement of reasons than it is based. The first paragraph of Arti- is required where, for example, one of the cle 88 provides that where an allegation of disciplinary measures laid down in Arti- serious misconduct is made against an cle 86(2) of the Staff Regulations is official by the appointing authority, either imposed, in which case the disciplinary of failing to carry out his official duties or procedure in Annex IX must be followed. of breaking the law, the authority may order that the official be suspended with immediate effect.

In accordance with the case-law of the Any interpretation of Article 88 must take Court of First Instance, a decision suspend- account of the following: in the first place, ing an official is a provisional measure the Staff Regulations do not treat suspen- which relies on the existence of allegations sion as a disciplinary measure but as an of serious misconduct and not of duly interim measure adopted pending the out- established misconduct. 9 come of disciplinary proceedings and, if

8 — Case T-219/96 Y v European Parliament [1998] ECR-SC I- 7 — As it stands in Regulation (Euratom, ECSC, EEC) A-429,II-1235, paragraph 29. No 1473/72 of the Council of 30 June 1972 amending 9 — Order of the President of the Court of First Instance in Case Regulation (EEC, Euratom, ECSC) No 259/68 (OJ, English T-211/98 R Willeme v Commission [1999] ECR-SC I-A-15, Special Edition 1972 (III), p. 703). II-57), paragraph 34.

22. I believe that this ground of appeal is based on an incorrect reading of the VI. The second ground of appeal judgment at first instance. The second recital in the preamble to the decision suspending Mr Connolly with immediate effect describes the conduct classified as an 21. The appellant submits in his appeal 1 0 infringement of Article 17 of the Staff that paragraph 49 of the judgment is Regulations, namely publishing a book, vitiated by inadequate reasoning and does extracts from which were published in not observe the principle of the inalterabil­ The Times newspaper, without the appoint­ ity of measures. He argues that, to provide ing authority's permission having been reasons for taking the decision to suspend previously requested or obtained. The third him with immediate effect, the appointing recital states that the book was a public authority alleged that he had infringed expression of Mr Connolly's fundamental Article 17 of the Staff Regulations by disagreement with Community policy and publishing a book which constituted an of his opposition to that policy, implemen­ unauthorised public expression of opinion tation of which was one of his duties. The and, in the alternative, that he had acted in fourth recital goes on to state that Mr breach of the obligations imposed on Connolly may also have failed to comply officials by Articles 11 and 12. In his with his obligations under Articles 11 and opinion, the fact that the allegation relating 12 of the Staff Regulations. to the second breach was expressed in conditional terms means that the facts alleged to be contrary to Articles 11 and

publishing or causing to be published infringement of Article 17. The first is that without the permission of the appointing Article 17 is infringed by the mere fact that authority any matter dealing with the work a text dealing with the work of the of the Communities, while Articles 11 and Communities is published without the 12 of the Regulations require an official, appointing authority's permission first hav- among other things, to carry out his duties ing been obtained. That is simply a ques- and conduct himself solely with the inter- tion of fact, whereas determining whether ests of the Communities in mind and to there has been a contravention of Arti- abstain from any action and, in particular, cles 11 and 12 requires value judgments to any public expression of opinion which be made, something it is not appropriate to might reflect on his position. do at the time when a decision of the kind referred to in Article 88 of the Staff Reg- ulations is taken. The second reason is that, as is stated in paragraph 49 of the judgment at first instance, Article 88 of the Staff Regulations does not require the appoint- ing authority to come to any final decision In paragraphs 47 to 49 of its judgment, the as to the existence of breaches of the Court of First Instance found that the obligations laid down in the Staff Regula- contested decision contained an adequate tions, but merely to set out the reasons why statement of reasons and went on to an allegation of serious misconduct has examine separately the infringement of been made against an official. Article 17 of the Staff Regulations, namely, publication of a book, extracts from which were published in The Times, without the appointing authority's permission having been previously requested or obtained, and the possibility that the appellant had also In my view, therefore, the Court of First acted in breach of the obligations imposed Instance did not distort the reasons given in on Community officials by Articles 11 and the contested decision and did not infringe 12 of the Staff Regulations, stating in the the principle of the inalterability of adopted last sentence of paragraph 48 that the measures. Consequently, this ground of decision drew attention to the fact that appeal is unfounded and must, therefore, the book expressed the appellant's funda- be rejected. mental disagreement with the Commis- sion's policy, implementation of which was, however, one of his duties.

He argues that, in his action for annulment, he was able to point out that the only In October 1999 the Court of Justice set sanction imposed on that official had been aside a judgment of the Court of First a reprimand, but that he did not have any Instance on the ground that the lower court further details since he had been prevented had erred in law by requiring the applicant from obtaining any other information to adduce evidence that the actions of about officials on whom sanctions had Commission officials had made it impossi- been imposed by the Commission. It was ble for it to engage in proper cooperation therefore incumbent on the defendant with its partners in a project. The Court of institution to demonstrate, in pursuance Justice considered that the applicant had of the audi alteram partem principle or the provided some evidence of interference by adversarial procedure, what its policy is Commission officials in the management of where an official in active employment the project, which was likely to have had an publishes any material without previously impact on its smooth running, and that, in having obtained the necessary permission. circumstances such as those, it was for the Commission to show that, notwithstanding the interference in question, the applicant continued to be able to manage the project in a satisfactory manner. 12

VIH. Conclusion

28. In the light of the foregoing I propose that the Court of Justice should:

(1) Dismiss the appeal.

(2) Order Mr Connolly to pay the costs pursuant to Article 69(2) of the Rules of Procedure.

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