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Judgment of the Court (First Chamber) of 15 March 1967. - Max Gutmann v Commission of the EAEC. - Joined cases 18 and 35-65. European Court reports French edition Page 00075 Dutch edition Page 00074 German edition Page 00080 Italian edition Page 00068 English special edition Page 00061 Danish special edition Page 00335 Greek special edition Page 00487 Portuguese special edition Page 00551

Summary Parties Subject of the case Grounds Decision on costs Operative part

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OFFICIALS - DISCIPLINARY MEASURES - DISCIPLINARY PROCEEDINGS - CRITERIA FOR INITIATING SUCH PROCEEDINGS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 86 )

DISCIPLINARY PROCEEDINGS MUST BE BASED NOT ON GENERAL COMPLAINTS CAPABLE OF REFERRING TO AN INDETERMINATE AND UNVERIFIABLE NUMBER OF REPREHENSIBLE MATTERS, BUT RATHER ON FACTS WHICH ARE SUFFICIENTLY CLEARLY DEFINED TO MAKE IT POSSIBLE TO DISTINGUISH THEM FROM OTHER GROUNDS OF COMPLAINT .

IN JOINED CASES 18 AND 35/65

MAX GUTMANN, AN OFFICIAL OF THE EAEC, REPRESENTED BY ERNEST ARENDT, AVOCAT-AVOUE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, MAURICE PRELLE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SECRETARIAT OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES,

DEFENDANT,

APPLICATION FOR JUDGMENT TO BE GIVEN, AT THE PRESENT STAGE OF THE PROCEEDINGS, ON THE APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF THE COMMISSION OF THE EAEC OF 20 AND 21 JANUARY 1965 AND 13 MAY 1965 REGARDING THE CONTINUANCE AND SUSPENSION OF FRESH DISCIPLINARY PROCEEDINGS AND ON CLAIMS FOR COMPENSATION FOR AN ALLEGED WRONGFUL ACT OR OMISSION AFFECTING THE APPLICANT;

P . 65

THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF 20 AND 21 JANUARY 1965 AND OF THE DECISION OF 13 MAY 1965

THE APPLICANT COMPLAINS THAT THE DECISION OF 20 AND 21 JANUARY 1965, WHICH ORDERED A FRESH DISCIPLINARY INQUIRY TO BE HELD CONCERNING HIM, VIOLATED THE PRINCIPLE NON BIS IN IDEM .

ACCORDING TO A ' MEMORANDUM ' ADDRESSED TO THE APPLICANT BY MR RITTER ON 17 JUNE 1964, THE APPLICANT WAS INFORMED THAT, AS HE APPEARED ' TO HAVE MISUSED THE FACILITIES OF THE DEPARTMENT ' AND FOLLOWING ' INVESTIGATIONS, SOME OF WHICH APPEAR INCONCLUSIVE ', VARIOUS COMPLAINTS HAD BEEN MADE AGAINST HIM WITH A VIEW TO DISCIPLINARY PROCEEDINGS ( FILE A 504/64 ). THESE PROCEEDINGS RESULTED IN A DECISION OF 3 JULY 1964 TO ISSUE A REPRIMAND FOR CHARGING TO THE COMMUNITY THE EXPENSE OF REPAIRS FOR A CAMERA BELONGING TO HIM AND OF PRIVATE TELEPHONE CALLS . THIS DECISION MAKES NO MENTION OF ANY RESERVATION CONCERNING ANY OTHER MISUSE OF THE FACILITIES OF THE DEPARTMENT OR, IN SO FAR AS THIS WOULD HAVE BEEN PROPER, CONCERNING ANY ADDITIONAL INQUIRY .

AS REGARDS ALL THE ALLEGATIONS OF ' MISUSE OF THE FACILITIES OF THE DEPARTMENT ' KNOWN TO THE COMMISSION AT 3 JULY 1964, THIS DECISION THEREFORE IMPLIES THE FINAL SETTLEMENT OF THE DISCIPLINARY ACTION CONCERNING THE MATTERS ALLEGED AGAINST MR GUTMANN . HOWEVER ON 30 SEPTEMBER 1964 THE COMMISSION ORDERED A FURTHER INQUIRY TO BE HELD ' ON THE GROUND OF CERTAIN IRREGULARITIES WHICH HAVE BEEN FOUND ' AND A ' COMPLAINT LODGED BY A HEAD OF DIVISION ', WITHOUT SPECIFYING WHETHER THESE WERE NEW FACTORS . MOREOVER, THIS INFORMATION IS NOT CONTAINED IN THE CONTESTED DECISION OF 20 AND 21 JANUARY 1965, WHICH MERELY STATES THAT ' IT IS APPROPRIATE TO CONTINUE THE INQUIRY AT THE DISCIPLINARY LEVEL '.

IT IS THUS IMPORTANT TO ASCERTAIN WHETHER THE ACTIONS FOR WHICH MR GUTMANN WAS CRITICIZED AFTER 3 JULY 1964 CONCERN THE MISUSE OF THE FACILITIES OF THE DEPARTMENT REFERRED TO AT THE BEGINNING OF THE EARLIER DISCIPLINARY INQUIRY WHICH TERMINATED IN THE REPRIMAND, OR WHETHER THE COMMISSION CONSIDERS THAT THEY AMOUNT TO A NEW FACTOR WHICH CAME TO LIGHT AFTER THE DECISION OF 3 JULY 1964 TO ISSUE A REPRIMAND . IN ORDER TO ANSWER THIS QUESTION, THE COURT MUST BE ABLE TO FIND AN OPPORTUNITY TO EXERCISE ITS POWER OF REVIEW IN A COMPARISON BETWEEN THE PARTICULARS OF THE CONTESTED DECISION AND THOSE RESULTING FROM THE PRODUCTION OF THE COMPLETE FILE CONCERNING THE EARLIER DISCIPLINARY PROCEEDINGS . TO THIS END ON 3 FEBRUARY 1966 THE COURT REQUESTED THE COMMISSION TO PRODUCE ' THE WHOLE OF THE DISCIPLINARY FILE '. AS IT WAS ANXIOUS TO OFFER THE COMMISSION A FRESH OPPORTUNITY TO COMPLETE THIS FILE, THE COURT REQUESTED THE COMMISSION, IN ITS JUDGMENT OF 5 MAY 1966, TO PRODUCE ... ' ALL THE ITEMS MISSING FROM THE FILE, IN PARTICULAR ALL THE DOCUMENTS AND MINUTES REFERRED TO IN THE RITTER MEMORANDUM OF 17 JUNE 1964, ( ESPECIALLY THE DOCUMENTS ESTABLISHING THE NATURE OF THE " INCONCLUSIVE " INVESTIGATIONS ) AND THE ' COMPLAINT LODGED BY A HEAD OF DIVISION ... ' REFERRED TO IN THE DECISION OF 30 SEPTEMBER 1964 . HOWEVER, NEITHER IN THE TERMS OF THE CONTESTED DECISION NOR IN THE ITEMS IN THE FILE SUBMITTED TO IT HAS THE COURT BEEN ABLE TO FIND ANY ASSURANCE THAT THE PRINCIPLE NON BIS IN IDEM HAS BEEN RESPECTED .

P . 66

FIRST, THE CONTESTED DECISION IS SILENT ON THE NATURE OF THE COMPLAINTS AND DOES NOT EVEN SPECIFY THE SUBJECT-MATTER OF THE DISCIPLINARY INQUIRY WHICH IT PRESCRIBES . IF IN ORDER TO ASCERTAIN THE SUBJECT-MATTER, IT WAS NECESSARY TO REFER TO THE DECISION OF 30 SEPTEMBER 1964, THIS WOULD ONLY BE TO FIND THAT THE NEW COMPLAINTS WERE BASED, FIRST, ON A ' COMPLAINT LODGED BY A HEAD OF DIVISION ' AND, SECONDLY, AS ' CERTAIN IRREGULARITIES WHICH HAVE BEEN ESTABLISHED '.

AS REGARDS THE ' COMPLAINT LODGED BY A HEAD OF DIVISION ', THIS IS NOTHING MORE THAN A NOTE FROM MR GRASS, DATED 15 SEPTEMBER, WHICH MERELY REPORTS GOSSIP BY THE WIVES OF OFFICIALS AND, AS ACKNOWLEDGED BY THE COMMISSION, DOES NOT REFER TO ANY ACTION TAKEN BY THE APPLICANTS . THIS COMPLAINT WAS THEREFORE IMPROPERLY USED AS A BASIS OF A FURTHER DISCIPLINARY INQUIRY .

AS REGARDS THE ' CERTAIN IRREGULARITIES ' FOR WHICH MR GUTMANN IS CRITICIZED, NEITHER THE CONTESTED DECISION, NOR THE DECISION OF 30 SEPTEMBER 1964, NOR ANY ITEM IN THE FILE ALLOW THEM TO BE CLEARLY DISTINGUISHED FROM THE MISUSE OF THE FACILITIES OF THE DEPARTMENT, WHICH GIVE RISE TO THE FIRST DISCIPLINARY PROCEEDINGS WHICH TERMINATED UPON THE ISSUE OF THE REPRIMAND . IN THE LIGHT OF THE FACTS OF THIS CASE, THE POSSIBILITY CANNOT BE EXCLUDED THAT TWO DISCIPLINARY PROCEEDINGS HAVE BEEN INITIATED ON THE BASIS OF THE SAME SET OF FACTS KNOWN TO THE COMMISSION AT THE OPENING OF THE EARLIER PROCEEDINGS, AND FOUNDED ON THE SAME COMPLAINT . DESPITE THE OPPORTUNITIES GIVEN TO THE COMMISSION TO GIVE DETAILS OF THE REASONS FOR THE FRESH DISCIPLINARY INQUIRY, AND TO DISTINGUISH THEM FROM THOSE GIVEN FOR THE EARLIER PROCEEDINGS, THE VAGUE TERMS OF THE CONTESTED DECISION OF 20 AND 21 JANUARY 1965 RENDERS THE COURT UNABLE TO EXERCISE ITS POWER OF REVIEW . THE POSITION WOULD HAVE BEEN DIFFERENT IF THE TWO DISCIPLINARY PROCEEDINGS HAD BEEN BASED, NOT ON GENERAL COMPLAINTS CAPABLE OF REFERRING TO AN INDETERMINATE AND UNVERIFIABLE NUMBER OF REPREHENSIBLE MATTERS, BUT RATHER ON FACTS WHICH ARE THEMSELVES SUFFICIENTLY CLEARLY DEFINED TO MAKE IT POSSIBLE TO DISTINGUISH THEM FROM ALL OTHER EARLIER OR LATER GROUNDS OF COMPLAINT .

P . 67

AS A RESULT, THE DECISION OF 20 AND 21 JANUARY 1965 AND THE DECISION OF 13 MAY 1965 WHICH IS BASED THEREON, MUST BE ANNULLED .

THE CONCLUSIONS SEEKING THE REMOVAL OF VARIOUS DOCUMENTS FROM THE APPLICANT'S PERSONAL FILE

CONCLUSIONS SEEKING THE REMOVAL FROM THE APPLICANT'S PERSONAL FILE OF DOCUMENTS CONCERNING THE DECISIONS ANNULLED BY THE PRESENT OR THE PRECEDING JUDGMENT ARE IMPLIED IN THE PRESENT APPLICATION FOR ANNULMENT AND THEREFORE CANNOT GIVE RISE TO AN OBJECTION OF INADMISSIBILITY ON THE GROUND THAT THEY ARE OUT OF TIME . IT IS INCUMBENT UPON THE ADMINISTRATION TO TAKE THE MEASURES REQUIRED BY THE ANNULMENT OF ITS DECISIONS . HOWEVER, AS IT IS THE FRESH DISCIPLINARY INQUIRY WHICH IS CONCERNED, THE APPLICANT CAN ONLY CLAIM THE REMOVAL FROM HIS PERSONAL FILE OF THE DOCUMENTS CONCERNING THESE SECOND DISCIPLINARY PROCEEDINGS, THAT IS TO SAY, THOSE SUBSEQUENT TO THE DECISION OF 3 JULY 1964 TO ISSUE A REPRIMAND .

THE CLAIMS FOR DAMAGES OR OTHER FORMS OF COMPENSATION

AS A RESULT OF THE PRESENT JUDGMENT AND THAT OF 5 MAY 1966, THE DAMAGE ALLEGED BY THE APPLICANT, INCLUDING THE NON-MATERIAL DAMAGE, HAS BEEN SUFFICIENTLY MADE GOOD . THERE IS THUS NO REASON TO AWARD FINANCIAL COMPENSATION OR TO GIVE SPECIAL PUBLICITY TO THESE JUDGMENTS .

AS THE DEFENDANT HAS BEEN UNSUCCESSFUL IN THE MAIN PART OF ITS CONCLUSIONS, UNDER ARTICLE 69 OF THE RULES OF PROCEDURE IT MUST BE ORDERED TO PAY THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE COMMISSION OF 20 AND 21 JANUARY 1965 ORDERING AN INQUIRY TO BE HELD ' AT THE DISCIPLINARY LEVEL ' AND THE DECISION OF THE COMMISSION OF 13 MAY 1965, ACCORDING TO WHICH NO DECISION WAS TO BE GIVEN AT THE DISCIPLINARY LEVEL UNTIL DELIVERY OF JUDGMENT BY THE COURT ON THE FIRST APPLICATION FOR ANNULMENT;

2 . DECLARES THAT THE CONCLUSIONS SEEKING THE REMOVAL OF VARIOUS DOCUMENTS FROM THE APPLICANT'S PERSONAL FILE HAVE NOW NO PURPOSE;

4 . ORDERS THE COMMISSION TO PAY THE COSTS .