C-274/99

— Whilst on leave, Mr Connolly pub- lished a book entitled The Rotten Heart of Europe — The Dirty War — The appellant was a grade A4 official for Europe's Money without requesting and Head of Unit 3, 'EMS: National and Community Monetary Policies' in Directorate D, which dealt with mone- 3 — Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff tary affairs in the Directorate-General Regulations of Officials and the Conditions of Employment for Economic and Financial Affairs. of Other Servants of the European Communities and 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 1 — Original language: Spanish. (EEC), 11 (EAECI of 18 December 1961 (OJ, English Special Edition 1959-1962, p. 135), has itself been amended 2 — Joined Cases T-34/96 and T-163/96 Connolly v Commission on numerous occasions (as at March 1999, no fewer than [1999| ECR-SC I-A-87 and II-463. 80 amendments).

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CONNOLLY V COMMISSION

•—· On 27 February 1996, the Commission against the Disciplinary Board's rea- informed Mr Connolly that his com- soned opinion and against the decision plaint had been dismissed by implied to remove him from his post. That decision. However, he had already complaint was expressly rejected by the made an application to the Court of Commission in a letter to Mr Connolly First Instance, which gave rise to Case dated 18 July 1996. T-203/95.

— On 7 December 1995 the Disciplinary Board delivered its opinion, in which it recommended that the disciplinary — On 13 March 1996 Mr Connolly measure prescribed by Article 86(2)(f) brought an action before the Court of of the Staff Regulations should be First Instance for annulment of the imposed on Mr Connolly, namely reasoned opinion of the Disciplinary removal from his post without with- Board (Case T-34/96) and, on 18 Octo- drawal of entitlement to retirement ber 1996, he brought a further action pension. in respect of the decision removing him from his post (Case T-163/96).

— On 9 January 1996, the appellant was heard by the appointing authority in accordance with the third paragraph of Article 7 of Annex IX to the Staff Regulations.

II. The appeal

4. By his first plea, comprising two parts Lastly, he considers that there has also been which I shall deal with together, the a breach of the obligation to balance the appellant claims essentially that the judg- various interests at stake before any restric- ment at first instance should be set aside on tion is placed on a fundamental right such the ground that Article 10 of the European as freedom of expression. Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter 'the Convention' or 'the ECHR') has been infringed. 6. As a preliminary point, the Commission contends that, if the appellant wishes to challenge the very lawfulness of the system set up by Article 17 of the Staff Regula- tions, rather than the Court of First Instan- 5. In the context of this plea, the appellant ce's interpretation of it, he should have sets out at considerable length his various lodged an objection of illegality in due complaints concerning the judgment under time, in accordance with Article 241 EC appeal. First, he submits that the Court of (formerly Article 184 of the EC Treaty). First Instance should have held that Arti- cles 12 and 17 of the Staff Regulations impose a system of prior censorship, which is in itself unacceptable in that it is contrary to the requirements of Article 10 of the ECHR, as interpreted by the European 7. For my part, I take the view that Court of Human Rights (hereinafter 'the although it is true that the complaints Court of Human Rights'). contained in the first plea may, by reason of their generality, be interpreted as chal- lenging the validity of the rules on the granting of permission laid down in Arti- cle 17 in the abstract, it may nevertheless be inferred from the very breadth of the Furthermore, those articles do not provide complaints that the actual method adopted the procedural and substantive safeguards by the Court of First Instance is being which, under Article 10, must go hand in challenged. There is no need, therefore, hand with any limitations imposed on the either to look further into the question fundamental rights which it protects, such concerning the appropriate legal procedure as the requirement that any restriction must for lodging an objection of illegality or to pursue a legitimate objective, must be ascertain whether the procedure followed prescribed by a legislative provision whose by the appellant amounted to lodging such application is foreseeable and must be an objection.

9. Freedom of expression is one of the fundamental pillars of any democracy. As the Court of Human Rights has stated in one of the finest passages found in its case- law: 'Freedom of expression constitutes one of the essential foundations of [a demo- 11. The Convention, whose cardinal cratic society], one of the basic conditions importance as a source for defining the for its progress and for the development of fundamental rights of the Community legal every man. Subject to paragraph 2 of order was recognised by the Court of Article 10, it is applicable not only to Justice long before the Maastricht reforms, "information" or "ideas" that are favour- has its own review mechanism, which, at ably received or regarded as inoffensive or present, essentially consists in bringing the as a matter of indifference, but also to those matter before the Court of Human Rights. that offend, shock or disturb the State or That Court uses, as did the Commission of any sector of the population. Such are the Human Rights which is no longer extant, demands of that pluralism, tolerance and its own method of interpreting the Con- broadmindedness without which there is no vention. Allow me to outline it. "democratic society"'. 4

10. It is evident that officials of the Eur- 12. As regards complaints based on Arti- opean Communities enjoy the right of cles 8 to 11 of the Convention, which are freedom of expression as it has been laid all structured in a similar way, the Court of down in the ECHR and that they may rely Human Rights usually examines certain on it before the Court of Justice as a general requirements successively. It analyses, in principle of Community law. That is clear the first place, whether the act giving rise to from, inter alia, Article 6(2) of the Treaty the application may be considered as inter- ference by the State with one of the rights and freedoms protected by the first para- 4 — Eur. Court H. R. Handyside v United Kingdom judgment of graph of each of those four provisions. If 7 December 1976, Series A no. 24, § 49. that is the case, the Court then considers

whether the interference can be justified which forms the basis of this plea, are to be under the second paragraph of those provi- found in the judgment of 19 May 1999. sions. To that end, it determines, first, whether the act or measure in question was pursuing one of the stated objectives — which, in the case of Article 10, include protection of the following interests: 14. It seems to me beyond doubt that the national security, territorial integrity or disciplinary measure imposed on the appel- public safety, prevention of disorder or lant, in so far as it is founded partly on his crime, protection of health, morals or the failure to obtain permission prior to pub- reputation or rights of others, prevention of lication, constitutes, in principle, an inter- disclosure of certain information and main- ference with his right to freedom of expres- tenance of the authority and impartiality of sion understood in the general sense. the judiciary — and, second, whether the act or measure was prescribed by a suffi- ciently clear law. Finally, if all those requirements are satisfied, the Court of Human Rights determines whether the 15. That interference is prescribed by law. interference was necessary in a democratic The second paragraph of Article 17 of the society. Staff Regulations — approved by a Coun- cil regulation — which makes publication of any matter dealing with the work of the Communities conditional upon obtaining permission, is indisputably a binding legal obligation. We are concerned, therefore, with an interpretative approach which does not impose any obligations distinct from those flowing from the Convention. It follows that simply using a different method does The provision also embodies an adequate not of itself constitute an infringement of degree of foreseeability so far as the the Convention, although the way in which disciplinary measure adopted was con- the appellant has worded this plea might cerned. The relative lack of precision of suggest that it does. In so far as the present the reference in the last sentence to 'the plea is seeking to challenge the Court of interests of the Communities' may be First Instance's use of certain canons of explained by the fact that the aim of the interpretation which differ from those used provision is to prevent conduct which may by the Court of Human Rights, it must be take many forms and that it is impossible to declared ineffective. condense all the hypothetical cases into one more concrete expression. I take the view, however, that the wording of the provision enabled the appellant to foresee, to a degree that was more than reasonable given the circumstances of the case, that, had he requested permission to publish The Rotten 13. In any event, it is my opinion that, Heart of Europe, it would have been contrary to the appellant's assertions, the refused. The judgment under appeal recog- analytical criteria, the alleged absence of nises that to be the case when it points out,

in paragraph 154, that one of the grounds 16. Nor do I believe that there can be any for making the decision to remove Mr serious doubt either that the Commission, Connolly from his post was that he 'could in imposing the disciplinary measure, was not have failed to be aware that he would pursuing a legitimate objective or that the be refused permission on the same grounds objective was compatible with the excep- as those on which permission had pre- tions provided for in Article 10(2) of the viously been refused in respect of articles of Convention. Although those restrictions similar content'. are set out exhaustively, there is none the less a general reference to 'the protection of the reputation or the rights of others', which, without any doubt, encompasses a Community institution's rights in relation to the reputation of its members and the loyalty of its employees. The Court of First Instance made a clear statement to that effect in paragraph 150 of its judgment, holding that 'the requirement that permis- sion be obtained prior to publication cor- responds to the legitimate aim of ensuring that material dealing with the work of the Like the appellant, I turn, by way of Communities does not undermine their illustration, to the judgment of the Court interests and, in particular, as in the present of Human Rights in Wingrove v United case, the reputation and image of one of the Kingdom. 5On that occasion the Court had institutions'. to consider whether the refusal of a dis- tribution licence for a video, which was considered to be blasphemous, interfered with the right to freedom of expression upheld in Article 10 of the Convention. It appears from the judgment that English law defined the offence of blasphemy in the 17. Furthermore, the Court of Human following terms: 'Every publication is said Rights has somewhat softened its approach to be blasphemous which contains any when assessing whether an objective is contemptuous, reviling, scurrilous or ludi- legitimate, analysing a breach of the Con- crous matter relating to God, Jesus Christ vention by reference to, in particular, or the Bible, or the formularies of the whether it is necessary in a democratic Church of England as by law established.' 6 society. It is sufficient to turn once again to The imprecision of that definition did not Wingrove, in which the Court of Human hamper the Court of Human Rights in Rights held that the offence of blasphemy, forming a view as to foreseeability. On the which was by its definition discriminatory contrary, it acknowledged that the national in that it was limited to protecting the authorities needed sufficient flexibility to Anglican church and its beliefs, pursued an enable them to assess whether certain facts aim which undoubtedly corresponded to fell within the definition of the offence. the 'protection of the rights of others' within the meaning of Article 10(2). 7 5 — Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions, 1996-V, p. 1957. 6 — § 27. 7 — § 48 to § 51 of the judgment in Wingrove.

19. The appellant complains that by fail- First, unless I am mistaken, the Court of ing, in the judgment under appeal, to Human Rights has never accepted the view balance the various interests at stake the that a body which is a public authority may Court of First Instance erred in law. For the not legitimately limit a fundamental free- reasons set out above, the plea that the lack dom in order to protect its reputation. The of any express weighing of those interests opposite seems to be the case. In the case of amounts to a breach of the general princi- Thorgeir Thorgeirson v Iceland, 8the Court ple of protection of freedom of expression of Human Rights acknowledged that an cannot be accepted. As I have said, what is action for defamation brought by the police at issue here is the interpretative method against a journalist who had accused them and not any substantive condition govern- of brutality was pursuing the legitimate aim ing the conformity of the disputed acts with of protecting the reputation of others. It did the Convention. It is therefore not surpris- not attach any significance to the fact that ing that the Court of Human Rights has the authority seeking the imposition of a never found a breach of the Convention penalty was also the authority whose based on the sole ground that the national reputation was to be protected. Thus, in authorities omitted to carry out a specific its judgment of 26 February 2000 in exercise of that nature. Fuentes Bobo v Spain, 9 the Court of Human Rights acknowledged that the dis- ciplinary measure imposed by a public radio and television broadcasting authority on one of its employees for having made insulting remarks about its managers had a 20. Rather, the Court of Human Rights, legitimate aim in that it was seeking to when considering the question of 'necessity protect the reputation of others. in a democratic society', analyses whether the interference is based on relevant and adequate grounds and whether it is propor- tionate to the legitimate aim pursued. I shall confine myself to observing that in the contested judgment the Court of First Instance proceeded in almost exactly that Furthermore, as the defendant has pointed way. Paragraph 154 summarises the rea- out, the Commission, in punishing Mr sons for which the appointing authority considered that the second paragraph of Article 17 of the Staff Regulations had been 8 — Judgment of 25 June 1992, Series A no. 239, § 58. infringed, namely that the appellant had 9 — Application No 39293/98, published only in French. not fulfilled the requirement of seeking

permission prior to publication, that he infringements, including that of Article 12 could not have been unaware that, had he of the Staff Regulations. The Court's over- done so, permission would have been all assessment is found, however, in the refused, and that publication of the book context of the sixth plea for annulment put had caused serious harm to the interests of forward at first instance. the Communities, in particular to the Commission's image and reputation. These reasons are clearly relevant and, further- more, were considered adequate by the Court of First Instance since it stated, in paragraph 155, that nothing in the decision 22. It is thus clear that the Court of First removing Mr Connolly from his post Instance, when considering whether the suggested that a breach of Article 17 would disciplinary measure of removal from post, have been found if the Communities' so far as it was based on Article 17 of the interests had not been adversely affected. Staff Regulations, was compatible with the That finding, which is expressed in a way requirements of freedom of expression, reflecting the role that the Court of First took account of relevant and adequate Instance has to play, is particularly signifi- reasons and rightly found that the measure cant in the present context. It can be seen was proportionate. The appellant contends, from it that a failure to comply with the nevertheless, that the Court of First Instan- obligation laid down in the second para- ce's assessment of the necessity of the graph of Article 17 of the Staff Regulations measure is not legally valid.

Communities. In other words, permission is the rule and refusal the exception. 21. Moreover, in paragraphs 152 and 153 Furthermore, in this context, which is of its judgment, the Court of First Instance exceptional, the verb 'to prejudice' must considered in the abstract whether the rules not be understood as 'to have an effect on' laid down in the second paragraph of or 'to affect', but as nothing less than 'to Article 17 are proportionate. It may not

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annulment brought by a Commission offi- 25. I must start by saying that I share the cial in respect of a decision refusing him appellant's aversion to rules which, more or permission to publish the text of a lecture, less directly, entail the general imposition of the Court of First Instance held that 'in a pre-publication censorship. In my opinion, democratic society founded on respect for censorship may be justified only in those fundamental rights, the public expression exceptional cases in which the misuse of by an official of points of view which differ freedom of expression may give rise to from those of the institution for which he serious prejudice — serious in the sense of works cannot, in itself, be regarded as being intolerable from society's point of jeopardising the Communities' interests'. 11 view — which is, moreover, irreparable. I The Court of Human Rights has, on many am thinking of situations in which minors occasions, recognised the power of judicial need to be protected from images or other bodies to rely on their case-law to expound publications capable of interfering with the the concept of 'applicable l a w ' . 1 2 normal development of their personality or in which the dissemination of certain private or confidential information should be prohibited.

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CONNOLLY V COMMISSION

On the contrary, the mechanism at issue is Observer and Guardian v United King- preventive and is justified by the special dom, 16 that 'the fact that the present case relationship of trust between employer and involves prior restraint calls for special employee, in particular where the employee scrutiny by the Court'. 17 In addition, in is carrying out duties of a public nature, as the latter judgment the Court of Human is the case here. The Court of Human Rights had declared 'for the avoidance of Rights has recognised, specifically in the doubt' that Article 10 does not of itself two main cases relied on by the appellant in prohibit all pre-publication restrictions. 18 support of his claims, namely Vogt v Germany 13 and Wille v Liechtenstein 14 that the duties and responsibilities of public officials assume particular significance in relation to Article 10(2) of the ECHR, which justifies allowing the competent authorities greater latitude in determining 27. Referring to Observer and Guardian v whether a penalty is necessary.15 United Kingdom, the appellant contends that the Court of Human Rights requires that any system of prior restraint must be amenable to effective judicial review, including a requirement of expeditiousness which Community law and practice are unable to fulfil.

Moreover, the plea merely repeats the Second plea in law: it was wrong in law to argument developed before the Court of fail to take account of the fact that officials First Instance and does not undermine the on unpaid leave are not required to obtain validity of the conclusion reached by that permission to publish a text court in holding that it may be inferred from Article 35 of the Staff Regulations that, when on unpaid leave, an official does not lose his status as an official. He there- fore remains subject to the obligations 29. The appellant claims that the obliga- borne by every official, in the absence of tion laid down in the second paragraph of express provision to the contrary. Article 17 of the Staff Regulations applies only to officials in active employment and not to those who are taking unpaid leave on personal grounds. He also submits that, by not allowing him to call witnesses to testify that his proposed interpretation The second plea must therefore be rejected reflected the prevailing practice in the in its entirety. Commission's Directorate- General II, the Court of First Instance distorted the evi- dence.

33. Therefore, the third plea in law must also be rejected. 32. In this plea, the appellant reiterates submissions which he made before the Court of First Instance in the context of his second plea for annulment and which were properly rejected. In paragraph 108 of the judgment under appeal, the Court of First Instance stated correctly that the Fourth plea in law: errors in the classifica- prohibition contained in the second para- tion and examination of the charges against graph of Article 11 of the Staff Regulations Mr Connolly is objective and extends to all types of payment, of whatever kind. It cannot be denied that royalties constitute considera- tion for personal creative effort, for which 34. In the first part of the fourth plea, the reason they must not be confused with appellant alleges that the Court of First income produced by, for example, invest- Instance's classification of the charges ments in property or securities. against him was not consistent with that used in the disciplinary proceedings, with the result that the basis of the investigation was irregular. Specifically, the Court of First Instance found, in paragraph 125 of the contested judgment, that the book at issue contained numerous 'frequently There has, moreover, been no interference insulting' remarks about senior members with the appellant's right to property since of the Commission's staff and about the no claim has been laid to the sums he institution itself, something which was not received from the sale of his book but, even complained of by the appointing authority if the appellant's spurious argument were in its report to the Disciplinary Board. accepted and it were conceded that such interference had occurred, it would be warranted on the ground that Article 11 pursues the legitimate aim of ensuring the independence of public servants and would 35. Although it is true that the Court of be entirely proportionate to that objective. First Instance did not use exactly the same That is the reasoning in paragraphs 110 terms as were employed in the appointing and 111 of the judgment under appeal. authority's report to the Disciplinary

Board, the fact remains that, in point 25 of of its officials were regarded as a breach of that document, the appointing authority the duty of loyalty, freedom of expression found that 'Mr Connolly makes certain as laid down in Article 10 of the Conven- derogatory and unsubstantiated attacks on tion would become a dead letter. Finally, Commissioners and other members of the Mr Connolly's duties did not involve carry- Commission's staff in such a way as to ing out Community policy but, more mod- reflect on his position and to bring the erately, as stated in the Disciplinary Board's Commission into disrepute contrary to his opinion, involved 'monitoring monetary obligations under Article 12.' Even though policy in the Member States and analysing the expression 'insulting statements' may progress towards economic and monetary be perceived to be a little more serious than union'. 'derogatory attacks liable to bring [the Commission] into disrepute', the slight semantic discrepancy, if discrepancy there be, is not sufficient to vitiate the arguments relied on by the Court of First Instance to show that the appointing authority was entitled to treat Mr Connolly's conduct as a breach of his duty of loyalty under Arti- cle 12 of the Staff Regulations. 38. All those complaints are unfounded. First, it is clear from the report to the Disciplinary Board that one of the facts complained of was that the appellant had committed a breach of the general duty of discretion with regard to facts and infor- mation connected with the performance of 36. The first part of this plea is thus his duties, laid down in the first paragraph unfounded. of Article 17. That duty encompasses a fortiori expressions of dissent relating to those facts and information. In any event, it is apparent from the documents before the Court that that charge was clearly explained to the Disciplinary Board, the body responsible for the investigative stage 37. In the second part of the plea, the of the proceedings, and that Mr Connolly appellant criticises the Court of First had an opportunity to defend himself. As to Instance for saying, in paragraph 128 of the limits which may be imposed on free- its judgment, that the book at issue publicly dom of expression, I refer to the remarks expressed 'the applicant's fundamental made in the course of my analysis of the opposition to the Commission's policy, first ground of appeal. Finally, the assess- which it was his responsibility to imple- ment of what Mr Connolly's substantive ment'. That statement was borrowed from duties comprise is a question of fact which the Commission but was not to be found cannot be examined in an appeal. However, anywhere in the charges set out by the it is clear even from the appellant's pre- appointing authority in its report to the ferred description of his duties that, in Disciplinary Board. Furthermore, if any performing them, he did actually play a expression of dissent from the policy of a role in implementing the Commission's Community institution on the part of one policy.

39. In the third part of the fourth plea, the ceedings and refer the matter back to the appellant states that the Court of First appointing authority so that it might hear Instance erred in finding that the Disciplin- the appellant's views on them. The appel- ary Board and the appointing authority had lant submits that the Court of First Instance not dropped the charge that he had contra- erred in law in holding that the charges vened Article 12 of the Staff Regulations. against him included not only formal According to the appellant, it is clear from infringements of Articles 11, 12 and 17 of the attitude adopted by the Commission in the Staff Regulations but also breaches its defence that the charge had been drop- relating to the contents of the book. In ped. particular, the Court of First Instance was wrong to rely on arguments concerning the defamatory nature of the book in response to allegations relating to the charge of publishing an opinion which was at odds It need only be pointed out, without with the Commission's policy. accepting the convoluted inferences which the appellant's legal adviser draws from the views expressed by the Commission in the proceedings, that in any event it is not for 42. This plea reproduces the arguments the Commission to define how the disci- advanced by the appellant before the Court plinary procedure is to be presented to the of First Instance, which that court duly court examining its legality. considered in paragraph 40 et seq. of its judgment without, in my view, committing any error which it is appropriate to exam- ine in appeal proceedings. The Court of First Instance's concern was to refute the appellant's argument that it was inap- 40. I therefore propose that the fourth plea propriate to include any charge relating to in law should be rejected as being inad- the contents of the book among the matters missible in part and, for the rest, unfoun- complained of and it did so in relation to ded. the allegation that the appellant had brought his office into disrepute. Once the contents of the book were included amongst those matters, the exact classifica- tion at law of the statements it contains could be developed as the case progressed without any breach of the right to a fair Fifth plea in law: the judgment ens in its hearing. Furthermore, the observation reasoning as regards the classification of made by Mr Connolly before the Disciplin- the charges against the appellant ary Board referred specifically to charges based on Article 12 and cannot therefore serve to support the appellant's contention that there was confusion in the Court of 41. Mr Connolly claims that at the appro- First Instance. priate time he stated in writing that, if the Disciplinary Board intended to take into account allegations of substantive infringe- ments of Article 12 of the Staff Regula- 43. Accordingly, the fifth plea must also be tions, it should stay the disciplinary pro- rejected as manifestly unfounded.

45. Suffice it to say, as the Court of First Instance does in paragraph 97 of its judgment, that the reasoned opinion of the Disciplinary Board, under the heading 'II — Explanations given by Mr Connolly in the company of his adviser, Mr Van Seventh plea in law: error of assessment Gehuchten', contains Mr Connolly's consisting in holding that the appellant, at avowal of his fundamental disagreement his final meeting with the appointing with the Commission's policy, expressed in authority, neither claimed that the reasoned his book. That disagreement was, further- opinion was based on charges which should more, patent and well known and the book have been regarded as new nor applied for merely constituted an expression of it, as the disciplinary proceedings to be reopened may be inferred from the passage quoted by the Court of First Instance. Therefore, it was a question not of adducing evidence which had not been established during the 48. Mr Connolly challenges the Court of adversarial stage of the proceedings but of First Instance's finding in paragraph 47 of illustrating, by means of a quotation from its judgment that, in the course of the the book giving rise to the dispute, a fact hearing before the appointing authority on which the Court of First Instance, in its 9 January 1996, he neither contended that absolute discretion with regard to facts, the charges on which the Disciplinary considered to be well known and was Board's reasoned opinion was founded entitled to accept as proven. were new nor applied for the disciplinary proceedings to be reopened in accordance with Article 11 of Annex IX to the Staff Regulations. According to the appellant, it 46. The second part of the plea challenges is clear from the minutes of that meeting the accuracy of the findings made by the that during it his representative handed to

50. Accordingly, the seventh plea in law 53. Being of no effect, the eighth plea in must also be rejected. law cannot therefore be accepted.

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Ninth plea in law: errors in the taking and mony, he would have to have given a appraisal of evidence adduced to show that sufficiently clear indication that the evi- there were procedural irregularities before dence was relevant and likely to be of use. the Disciplinary Board

55. By this plea, the appellant is merely 58. This is a further ground of appeal that seeking to submit questions relating to the is immaterial in that, even if it were taken taking and appraisal of evidence to the into account, it would not form a sufficient scrutiny of the Court of Justice. Such basis for setting aside the judgment under matters are not admissible in an appeal. appeal so far as the alleged misuse of As regards the alleged error concerning the powers is concerned. I shall merely observe refusal to take witness evidence which Mr that, in paragraph 174 of the contested Connolly sought to adduce in order to judgment, the Court of First Instance held prove that the Disciplinary Board had not that the memorandum in question did not been impartial, it need only be pointed specifically concern Mr Connolly's dismis- out — as the Commission has done — sal and that it did not therefore establish that, for Mr Connolly to persuade the the irregularity complained of. Having Court of First Instance to take oral testi- found that the memorandum was not

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CONNOLLY V COMMISSION

62. Therefore, the eleventh plea in law must be rejected. 60. By this plea the appellant asserts that, in paragraphs 172 to 175 of the judgment under appeal, the Court of First Instance failed to reply to certain arguments capable of establishing that the disciplinary pro- ceedings were invalidated by misuse of powers. These included complaints relating Twelfth plea in law: misapplication of rules to the existence of 'parallel proceedings', of evidence relating to presumptions and of 'the failure to reply to the question con- inductive logic cerning the exact scope of the disciplinary proceedings in relation to Articles 11, 12 and 17 of the Staff Regulations', 'the 63. The appellant complains that the rea- absence of a logical connection between soning of the Court of First Instance is the premisses and the conclusions drawn in flawed where, in paragraph 155 of the relation to the disciplinary proceedings', the fact that 'the Commission maintained in its pleadings that the Disciplinary Board 19 — See, as to the interpretation or Article 6(1) of the ECHR, was not even obliged to read the contested the judgment of the Court of Human Rights of 19 April 1994 in Van de Hurk v Netherlands, Series A no. 288), book' and to 'the deliberate and provoca- § 61. tive appointment of the Secretary-General 20 — See also the judgment of the Court of Human Rights of 9 December 1994, Ruiz Torija v Spain, Series A no. 303-A, as Chairman of the Disciplinary Board'. § 30.

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64. In my opinion, the appellant believes he can discern an error of logic because he has read the passage in question incorrectly and taken it out of context. It is clear from paragraph 140 of the judgment under appeal that Mr Connolly complained that the system of prior permission gave rise to Thirteenth plea in law. defective reasoning 'unlimited censorship', contrary to Arti- of the judgment under appeal cle 10 of the ECHR. The Court of First Instance set out a reasoned rejection of that argument in paragraph 152, recalling that permission is refused only exceptionally and that refusal may be justified only where the publication concerned is liable to 66. By his last plea, the appellant asserts prejudice the interests of the Communities. that it must be inferred from his other It went on to say (paragraph 154) that the grounds of appeal that the charges against decision dismissing Mr Connolly was him have not been proved. Therefore, he based, amongst other things, on the fact contends, the analysis of whether the that his behaviour caused serious prejudice disciplinary measure was proportionate, to the interests of the Communities, and, in which the Court of First Instance opens particular, to the reputation and image of with the statement in paragraph 166 that the Commission. It concluded (paragraph 'the truth of the allegations against the 155) that there was nothing to suggest that, applicant has been established', is invalid.

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Moreover, by failing to take account of to the lack of relevance of the evidence evidence of essential importance, in that no offered. order was made for production of the memorandum of 28 July 1995 on the calculation of salary reductions in cases of suspension, the Court of First Instance's conclusion that there was no misuse of 68. Accordingly, the thirteenth plea in law powers (paragraph 175) is vitiated by must also be rejected as manifestly unfoun- defective reasoning. ded.