C-340/00

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OPINION OF MR RUIZ-JARABO — CASE C-340/00 P

regional level in the Monetary Union of the 9. After consulting several colleagues, Mr European Union'. 3 Mr Cwik attached to Ravasio informed the respondent on his request a summary and a detailed 20 April 1998 that it would be inappropri- outline of his speech, together with an ate to publish his article. annex.

10. Mr Cwik then amended his article in accordance with some of the criticisms 5. On 26 October 1997, Mr Ravasio made about the first version by one of the granted permission but noted: 'This doesn't people consulted, and he applied again for have much to do with economics. More approval on 5 June 1998. classic presentation please. Pay attention to the risks of fine-tuning.'

11. After further consultation, on 10 July 1998 the Director-General again refused 6. On 30 October 1997, Mr Cwik gave his permission on the ground that the article lecture. presented 'a point of view which is not that of the Commission, even though the latter has not adopted an official policy on the matter.' He added:

7. In February 1998, the conference orga- nisers requested the text of his lecture so that it could be published together with 'I recognise the importance of engaging in those of the other speakers. internal discussions reflecting the variety of economic policy options. However, when we go outside the institution, it would be better to present a united front....

The contested judgment

15. The contested judgment upholds the '... possible conflicts of interest between an claim for annulment on the ground that the official and his institution over a publica- second paragraph of Article 17 of the Staff tion are not confined to cases in which the Regulations had been wrongly interpreted official publicly dissents from a policy of and wrongly applied. the institution, since the latter may have an interest in preserving some room for man- œuvre before it adopts a definitive view. Obviously, the fact that the complainant expressed a clear view in writing on the question [as to whether economic and 16. As regards the decision adopted by the monetary union called for territorial differ- Director-General, the Court of First entiation as regards fiscal and wage policies Instance held that merely establishing that ("fine-tuning")] may have the effect, pre- there is a difference in the opinions of an cisely, of restricting that room for man- official and his institution does not justify a oeuvre. Even if he were to make clear that finding that the interests of the Community his view is purely a personal one, the reader have been prejudiced. On the contrary, might nevertheless, in spite of that caveat, freedom of expression requires that people associate the view of an official working in must be permitted to hold opinions which that sector with that of his institution, differ from the official line. Furthermore, precisely because the latter does not have a the Director-General's interpretation would view. render nugatory the second paragraph of

17. The Court of First Instance observed that the ruling dismissing the complaint included a further ground for refusal, namely that the risk of an official's opinion 21. Second, the Commission complains being mistaken for that of the institution that the grounds on which the judgment for which he works could restrict the of the Court of First Instance is based are latter's room for manœuvre when it came insufficient. to adopt a position on fine-tuning. The Court of First Instance considered this assessment to be manifestly unfounded on the grounds that the Commission, despite its claim not to have an official position, had already stated publicly and clearly its views on the contentious issue in rather Examination of the appeal negative terms; that the author, who was acting in a personal capacity, did not hold a managerial post; and that the article was aimed at a readership consisting of specia- lists who were in all probability well- informed about the Commission's views. First plea in law: the second paragraph of Article 17 of the Staff Regulations was interpreted incorrectly

18. The Court of First Instance held that there had been a manifest error of assess- ment and annulled the contested decision 22. In the appellant's submission, the Court without examining the other pleas in law. of First Instance exceeded the limits of its power of review and gave an unduly restrictive interpretation of the second paragraph of Article 17 of the Staff Reg- ulations.

The grounds of appeal

This plea in law is supported by several 19. The Commission has put forward two arguments, three of which I have singled grounds of appeal. out for analysis below.

24. In the appellant's opinion, to require the administrative authority to demon- strate, where permission is to be refused, that publication of the text would pose a 27. Having said that, it is my view that, definite risk to the interests of the Com- when an administrative authority exercises munity could result in institutions having to its discretion in such a way as to prohibit grant permission in cases where such a risk publication of a text, it is not that the is impossible to prove and then taking damage must be real and imminent but that disciplinary action against the author once there must at least be a definite risk of the damage has materialised. serious harm. This interpretation is sup- ported by the wording of the second paragraph of Article 17 of the Staff Reg- ulations which provides that permission may be refused only in exceptional cases — which, in practice, does not sit easily with a 25. I should like to make two preliminary claim based merely on an abstract or observations. It is by no means clear either hypothetical risk —, read in conjunction that the Court of First Instance did express, with the necessary limitations set out in in the general terms claimed by the appel- Article 10(2) of the European Convention lant, an opinion about the nature of the risk on Human Rights ('the Convention'). 7

4 — Joined Cases T-34/96 and T-163/96 [1999] ECR-SC I-A-87 6 — Case C-274/99 P [2001] ECR I-1611 ('Connolly'). and II-463. 7 — Which must always be interpreted restrictively (judgment in 5 — Paragraph 153. Connolly, paragraph 41).

28. According to the Court of Human nator as to the substance of fundamental Rights, the adjective 'necessary' involves, rights 11 and that there is nothing to for the purposes of Article 10(2), a 'press- preclude the European Union, like the ing social need' and, although '[t]he con- parties to the Convention, from providing tracting States have a certain margin of itself with a higher level of protection. appreciation in assessing whether such a need exists', the interference must be 'pro- portionate to the legitimate aim pursued' and 'the reasons adduced by the national authorities to justify it' must be 'relevant and sufficient'. 8 30. A study of the methodology used by the administrative authority to decide whether it would be appropriate to refuse permis- sion under the second paragraph of Arti- cle 17 of the Staff Regulations reveals two conceptual stages. The first stage consists in 29. It is true that the Court of Human choosing the criteria by reference to which Rights, which does not consider prior the circumstances of each particular case restraint procedures to be contrary to the must be considered, while the second Convention, 9also believes that a purely entails considering the circumstances them- abstract risk of harm may justify limitation selves. of the right to freedom of expression. Accordingly, in Worm v Austria, 10 when analysing whether it was compatible with the Convention to impose a penalty on a journalist for infringing legislation provid- ing for the punishment of those who seek to influence the outcome of proceedings that 31. I repeat that the applicable criteria, or are sub judice, the European Court of test if preferred, is, generally speaking, that Human Rights accepted that the Austrian there must be a real risk of serious harm. courts were not required to establish that Accordingly, it is not sufficient to include there was more than an abstract risk of any type of possible or remote risk. In other harm in order to impose a penalty. words, the free expression of ideas and information by citizens, which is one of the fundamental values in a democratic society, would be sacrificed for the sake of an unqualified fear of harm to the public interest. This situation would be intolerable It is equally true, however, that the Con- and incompatible with the essence of the vention acts as the lowest common denomi- principle of proportionality. The use of the adjective 'fundamental' to describe a right implies that it bears the principal assets of a 8 — See, in particular, Vogt v Germany, judgment of 26 Sep- tember 1995, Series A No 323, paragraph 52. 9 — They do, however, call for careful scrutiny. See Observer 11 — Under Article 53 of the Convention, 'Nothing in this and Guardian v United Kingdom, judgment of 26 Novem- Convention shall be construed as limiting or derogating ber 1991, Series A No 216, paragraph 60, and Wingrove v from any of the human rights and fundamental freedoms United Kingdom, judgment of 25 November 1996, Reports which may be ensured under the laws of any High of Judgments and Decisions 1996-V, paragraph 58 in fine. Contracting Parry or under any other agreement to which 10 — Reports of Judgments and Decisions 1997-V. it is a Party.'

34. The Court of Justice has held that the purpose of the prior authorisation proce- 32. I now arrive at the second of the dure is to allow the institution to keep itself hypothetical stages outlined above. Whe- informed of the views which its officials or ther there is a definite risk of significant other employees are proposing to express in harm may be assessed only by reference to writing about the work of the Communities factors which are equally definite and' so as to satisfy itself that they are conduct- sufficiently objective in nature. This ing themselves with the interests of the requirement, which follows from the actual Communities in mind and not in a way that definition of the notion of definite risk, also would adversely reflect on their position. 12 demonstrates the need for every decision of Disloyal criticisms and statements which an administrative authority to be amenable seek to insult or offend do not meet these to judicial review. An effective judicial requirements and break the relationship of review cannot take place if the factors on trust which must exist between employer which the administration based the reasons and employee. for its decision are unknown. Those factors must be objective if a third party is to be able to express an opinion about them.

35. Turning to the case before the Court, the Director-General refused permission to publish solely on the ground that when the Commission's services present themselves In addition, as regards the evidence used to to the outside world they are required to assess the legality of a decision, the objec- express a uniform point of view. tive factors in question must be expressly set out in the written decision or, at the very least, be common knowledge. 12 — Judgment in Connolly, cited above, paragraph 54.

39. The decision in which the complaint procedure culminated cited another reason 37. To accept the reasoning put forward by justifying the refusal of permission, namely, the Director-General would be to strike at that publication of the article would limit the very heart of the freedom of expression the Commission's room for manœuvre to which officials and other employees of when it came to adopt an official position the European Communities are entitled, 13 on the contentious issue. The Court of First even in areas falling within the scope of the Instance analysed several factors and con- activities of the Community institutions. 14 cluded that it was not reasonable for the While the expression of opinions might be Commission to fear that its room for permitted, it would be subject to the manoeuvre might be limited. guidelines laid down by the system or the hierarchy; in other words, it would lack freedom. As early as 1794, Immanuel Kant warned that officials must also be accorded the right publicly to exercise their intelli- gence because, as members of civic society, they have an unlimited right to serve their In this instance, although, hypothetically reason, to speak as individuals and to make speaking, perception of the risk is regarded proposals which would improve the run- 15 — Kant, I., What is Enlightenment? Advocate General E Mancini quoted a similar extract at point 5 of his 13 —Judgment in Case C-100/88 Oyowe and Traore v Com- Opinion in Case 338/82 Albertini and Montagini v mission [1989] ECR 4285, paragraph 16. Commission [1984] ECR 2123. 14 — Judgment in Connolly, cited above, paragraph 43. 16 — Ibid.

43. As to the terms themselves, suffice it to 41. By its second argument in support of recall that the first reason was held to be the first plea in law, the Commission immaterial and the second insufficient. It is complains that the judgment at first perhaps worth examining the administra­ instance failed to recognise the administra­ tive authority's discretion in relation to the tive authority's discretion, particularly in latter reason alone. It was for the authority relation to the technical content of the to prove that publication might limit the disputed text and to the risk of prejudicing room for manœuvre which the Commission the Community's interests. required in order to adopt a definite position on a specific matter, and not for the court considering the legality of the decision to prove the contrary. A mere assertion that such a risk existed is mani- festly insufficient and the Court of First Instance was entitled to confine itself to stating as much. Since the administrative In this instance, the administrative author­ authority failed to base its assertion on ity had decided that publication would be objective factors which proved satisfacto- inappropriate on account of the economic rily that there was a definite risk, the issue and political context of monetary union of its discretion does not even arise. The and of the content of the article, in which administration cannot complain that its Mr Cwik expressed his views about a very discretion was restricted when it failed to sensitive subject in relation to which the exercise that discretion or did so in a Commission had expressly decided to manifestly unsatisfactory manner, as is the reserve its position. case here.

44. Finally, the appellant appears to claim In the appellant's opinion, those factors are to have a certain amount of scope to assess not decisive and they insert additional the technical content of an article for which conditions into the second paragraph of permission to publish has been requested. Article 17 of the Staff Regulations. Suffice it to say that the second paragraph of Article 17 of the Staff Regulations does not grant the administration any powers whatsoever to examine the quality of a work with a view to deciding whether or not it is suitable for publication. Any qualitative judgment about a work which is to be published by an individual in a personal capacity is wholly immaterial for 47. The Court of First Instance did not these purposes. 17 include any additional requirements for refusing publication; rather, it examined, as it had a duty to do, 18 the specific circumstances of the case. Strictly speaking, the appellant's complaints could be held to be inadmissible on the ground that, even if they were accepted, the manifestly insuffi- 45. The second argument must therefore be cient assertion that publication of the dismissed. article would prejudice the Commission's room for manœuvre when it came to adopt a definite position would not be upheld. In any event, the complaints do not reveal any manifest error of assessment by the Court of First Instance, for which reason, fac- 46. The Commission goes on to challenge tually speaking, they cannot be used as a the factors which the Court of First ground to set aside the judgment. Instance examined at paragraph 66 of the contested judgment before ruling inadmis- sible the fear that publication of the article would reduce the institution's room for manoeuvre, namely that the Commission, despite allegedly having not adopted an official position, had already expressed an opinion about the contentious issue; that the author of the article did not hold a 48. By way of a final point, the Commis- managerial post; and that the article was sion claims that, contrary to the statement addressed to a specialist readership. made at paragraph 57 of the contested judgment, the public expression by an official of points of view which differ from 17 — In Albertini and Montagini, cited in footnote 15, the Court accepted the contrary argument. However, it should be those of the institution for which he works noted that in that case the Court's judgment concerned the can and, in cases such as the one before the special rules for publication applicable to officials attached to the Communities' scientific and technical services (Article 94 of the Staff Regulations), and it appears that it was understood that the authors were expressing their views in an official capacity. In addition, the dispute was 18 — In fact, the Court of First Instance went further than it was not analysed in the light of the fundamental right to required to do, since, as I have already explained, it could freedom of expression. In any event, that case must now be have just confined- itself to stating that the reasons regarded as superseded. advanced by the Commission lacked sufficient foundation.

51. In the Commission's opinion, the rea- soning in the contested judgment is inade- quate in that it fails to consider important arguments which were put forward in the pleadings and at the hearing at first 53. Consequently, the alleged lack of rea- instance, and which are also set out at soning, which would only have been mate- paragraph 43 of the contested judgment. rial to the argumentum iuris, did not occur; Specifically, no response was made to the nor was there a manifest error of assess- argument that it was necessary to analyse ment as to the facts. This ground of appeal the contested decision in the light of the must therefore be dismissed. sensitive economic and political situation in which it was adopted, namely the imple- mentation of economic and monetary

19 — Judgment in Connolly v Commission, cited above, para- 54. The appellant seeks to identify two graph 43 in fine. other instances of lack of reasoning in the

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contested judgment. First of all, it claims As to the claim that the preventive function that the Court of First Instance failed to of the authorisation procedure was not indicate why the fact that permission had taken into account, I refer to my observa- been given for the speech to be made at the tions at point 33 above. conference meant that any reasonable fears regarding publication of the text of that speech had been dispelled; and second, it claims that the Court of First Instance did not explain the reasons why it disregarded the preventive function of the second 56. The second plea in law is therefore paragraph of Article 17 of the Staff Reg- manifestly unfounded. ulations.