JUDGMENT OF 18. 10. 1976 — CASE 128/75 MR N. v COMMISSION

In Case 128/75,

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, H. Kutscher, President of the Court, who was present as a Judge at the oral procedure, and M. Sørensen, Judge, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments of the parties put forward during the written procedure may be summarized as follows:

I — Facts and procedure

1. The applicant entered the service of the former High Authority of the European Coal and Steel Community in 1963 as a member of the local staff employed as a locksmith. In 1970 he was transferred to Brussels and assigned to a post of locksmith in the maintenance workshop of the Commission's buildings. On 1 January 1972 he was appointed probationer in Grade D 1 and assigned to a post as head of the section dealing with maintenance of locks and metal work. The first report on the probationary period made on 16 May 1972, while recognizing that the quality of the work done by the applicant was ‘very good’, described him as an ‘irritating official by reason of his tendency to cause complications with considerations irrelevant to the work and frequently matters of pure invention’; as a result of this assessment the applicant's probationary period was extended for three months. On 1 October 1972 the applicant was established. The tasks assigned to the applicant involved being in charge of the labour made available to the Commission by a Brussels company, ‘X’, with which the Commission had contracts to this purpose. In letters written to his superiors from 1972 onwards the applicant made numerous criticisms of the company X which he said was sending insufficiently qualified workmen to the Commission.

2. On 25 March 1974 Mr B, the director of this company, sent a letter to the Director-General for Personnel and Administration of the Commission suggesting that he should ‘intervene in the situation which has arisen in Mr N.'s workshop where our locksmiths are working’. This letter contained the following statements: In a memorandum dated 17 April 1974, the assistant of the Director-General: Informed the applicant of the existence of the abovementioned letter and certain details of its contents but stressed that in the absence of the Director-General he had no authority to forward a copy of the letter to the applicant; Stated that the Director-General had asked the head of division concerned to hear the parties; Requested the applicant to forward to him for the Director-General's attention “a brief written report on the working relations which you have with the locksmiths in question”. On 19 April 1974 the applicant sent the assitant a letter asking him to forward a photocopy of the letter from Mr B. He enclosed with his letter a number of statements made by workers of the company X who were under the orders of the applicant praising him and in particular the way in which he treated his subordinates. By letter dated 28 May 1974 the Director-General for Personnel and Administration of the Commission sent the applicant's lawyer a copy of the letter of 25 March 1974 and informed him that an internal inquiry was in progress regarding the matters alleged against the applicant. The applicant's lawyer replied by letter dated 24 June 1974: Requesting that Article 24 of the Staff Regulations be applied on behalf of the applicant “in view of the serious, defamatory and mendacious accusations by Mr B.” and expressing the applicant's desire to be “informed … of all steps or formalities relating to him”; Giving detailed refutations of Mr B. s accusations and in turn making strong criticisms of Mr B.; Requesting the Director-General to give him a personal interview as soon as the inquiry was finished.

“Mr N. has been exceeding his duties for a long time. His constant interference in our relations with our workmen in regard to wages, due dismisals, number of hours worked etc. are unacceptable to us. I think it is no exaggeration to say that our men are terrorized and in any event our work force which is very valuable is in danger of breaking up as a result of the bad atmosphere at work …

The impression is obtained that in throwing his weight about in all directions Mr N. is trying to destroy our work force for reasons best known to himself alone. I think that our statements can be confirmed by an impartial inquiry and that the situation has been known for a long time to Mr N.'s immediate superiors. Is it not possible to take measures to change this state of affairs? Both our interests and those of the Commission require something to be done about the matter.”

3. On 17 December 1974 the applicant sent the appointing authority a request under Article 90 of the Staff Regulations: Pointing out that at a meeting on 8 October 1974 representatives of the administration, including the said Director-General, informed the applicant's advocate that no decision would be taken in the case in question; Requesting the Commission: “To ensure that Article 24 of the Staff Regulations is respected”; To inform the applicant of the results of the inquiry, to pursue it and to inform the applicant “officially and fully of the particulars in the file”; To take a decision with regard to the applicant “clearing him of the accusations” made by Mr. B. By memorandum in reply dated 24 February 1975 the Director-General for Personnel and Administration informed the applicant that: At the meeting on 8 October 1974 the applicants lawyer had been informed that the letter from Mr B. had “received no publicity”; “The whole matter had been treated confidentially”; It had been decided “not to pursue the matter’ with the result that it would not involve any adverse consequences for the applicant; In these circumstances there was no need to pursue the inquiry. Further the memorandum reminded the applicant that he had never complied with the instructions of his superiors to supply them with ‘weekly reports on the services of the company (X)’.

4. On 22 May 1975 the applicant submitted to the Commission under Article 90 of the Staff Regulations a complaint directed against the memorandum of 24 February 1975, requesting the Commission on the one hand to take a decision agreeing to the request of 17 December 1974 and on the other to grant the applicant ‘just compensation for the non-material and material damage’ suffered by him arising from the fact that the Commission did not assist him as provided for in Article 24 of the Staff Regulations. The applicant stated that the accusations made against him were known to the workmen in the metalwork and locksmith workshop and to his colleagues and immediate superiors. The fact that no action had been taken with regard to the said accusations did not suffice to repair the ‘damaging situation’ which they had caused since the inquiry was not conducted in the presence of the parties and the applicant had not been informed of its results. The Commission did not reply to the complaint.

5. On 22 December 1975 the applicant brought the present action.

II — Conclusions of the parties

The applicant claims that the Court should:

1) Declare null and void the implied rejection by the opposite party of the applicant's complaint made on 22 May 1975;

2) Rule that the opposite party must, after acknowledging that the accusations made by the manager of the firm (X) … against the applicant are baseless, bring such acknowledgement to the notice of all the authorities and officials affected by the notes exchanged concerning this matter;

3) Order the opposite party to pay to the applicant the sum of FB 100000 by way of damages for the non-material and material damage resulting from the matters referred to under paragraph 1 of the present application, providing always that the applicant reserves the right to amend the said sum in the course of the proceedings;

4) Order the opposite party to bear the costs.

The Commission claims that the Court should:

Declare the present action inadmissible and in any event unfounded and dismiss it in its entirety;

Order the applicant to bear the costs.

III — Submissions and arguments of the parties

1. Admissibility

A —. The applicant states in his application that the objective of the action is inter alia‘the annulment of a letter which partly repeats the defamatory statements’ without however identifying the letter in question or repeating this point in his claims. The Commission states that this request is inadmissible. It is not possible reliably to identify the letter referred to by the applicant. Assuming that it is the note of 17 April 1974 it must be observed that this is not an act adversely affecting the applicant. The applicant in reply says that this is the note in question which ‘will be properly answered’ in a judgment allowing the applicant's claims.

B —. The Commission considers that the second head of the claims is likewise inadmissible on the ground that on the one hand assessment of the applicant's conduct is within the administration's discretion and on the other hand the said head is ‘outside the ambit of the dispute between the applicant and the Commission’. The applicant restricts himself to observing that the Commission does not contest the admissibility of the first and third heads of claim which contain the main objectives of the action.

2. Substance

The applicant states that he has always tried to protect the interests of the Commission in particular vis-à-vis the company X; these efforts have earned him the unjustified reputation of having a difficult character.

Article 24 of the Staff Regulations requires the institutions to protect their officials against unjustified accusations by third parties and this obligation arises likewise under the general principle, described in German law as ‘Fürsorgepflicht’, that institutions are required to look after the material and non-material well-being of officials. In the present case the Commission should therefore have verified whether the accusations of Mr B. were well founded and if they were not the applicant's good name should have been vindicated by removing all trace of the accusations. The Commission seems to have held an inquiry but has not notified the results to the applicant. The results could not have been unfavourable to the applicant since no disciplinary procedure has been instituted against him.

The Commission's failure to clarify the matter has exposed the applicant to difficulties in particular with regard to the maintenance of discipline and has left him in a precarious position.

The Commission in answer says that the letter from Mr B. must be looked at in the general light of the previous conduct of the applicant as it emerges in particular from the critical remarks with regard to him in the reports on his probationary period. The applicant always insisted that the Commission should employ local staff instead of an external work force. The differences of view on this, which was in no way a matter for the applicant, led to friction between the applicant on the one hand and his superiors and the company X on the other. Further in spite of repeated instructions given to him in this respect, the applicant had never made weekly reports on the work in the sector of which he was in charge. This neglect prevented the administration from being in possession of the facts enabling it to judge the conduct of the company X, which was criticized constantly by the applicant before his superiors and colleagues and the workmen of this company but against which the Commission had no serious complaints.

Following the letter from Mr B., the Director-General for Personnel and Administration had instructed the Director for General Services and Office Equipment to conduct an internal inquiry. This inquiry had involved hearing the applicant and Mr B. The applicant had however refused to supply any supplementary information to facilitate the conduct of the inquiry. At the meeting on 8 October 1974 representatives of the administration had stated to the applicant's lawyer that the inquiry could be regarded as closed having regard to the steps taken by the administration and the applicant's attitude and no account would be taken of the said letter with the result that the applicant would in no way be adversely affected. This outcome appeared satisfactory to the applicant's lawyer.

Action for annulment

The interpretation of the first paragraph of Article 24 of the Staff Regulations sought by the applicant is too wide. This provision, as appears from the use of the word ‘assist’ which has a different meaning from ‘protect’, is intended to cover only the case where the official has himself already taken the initiative to defend himself against threats, insults and the like, of which he has been the object. Article 24 therefore does not apply in the present case since the applicant has not informed the Commission that he has proceeded against Mr B. and in any event has not asked the Commission to assist him in an action of this nature.

Assuming that this interpretation is arguable the action is none the less unfounded. The discretion which the Commission had entitled it to refuse to comply with the applicant's request. First the accusations made against the applicant by Mr B. cannot be regarded as serious since they do not directly impugn his honesty and his ability but only his conduct as against workers of the company X. Further the case has not had any publicity. Finally the applicant's conduct is at the origin of the complaints made against him. The Commission refers to the judgments given by the Court on 8 July 1965 in Case 83/63, Krawczynski [1965] ECR 623 and on 11 July 1974 in Case 53/72, Guillot [1974] ECR 791.

The Commission took all due measures to ascertain whether the accusations were well founded.

The Commission satisfied the applicant's request to inform him of the results of the inquiry by notifying the applicant that the inquiry had been concluded and that there would be no adverse consequences for him. Further it had not been in a position formally to reject the criticisms made by Mr B. since they were only the clumsy and exaggerated expression of real difficulties and the applicant had refused to supply the necessary supplementary information.

In brief the Commission had acted in the best interests of the applicant by giving him a reply with little detail.

The action for damages

The applicant has not adduced the slightest evidence to establish the existence of material damage. There is no non-material damage because the administration has refrained from impugning in any way the applicant's good character and has avoided all publicity other than what was strictly necessary.

Further, as appears from the statement in connexion with the action for annulment, the Commission has committed no wrongful act or omission.

The applicant in reply says that the observations of the Commission on his relations with his superiors and in particular on the fact that he ‘had not continued to make the numerous useless reports on the unhappy situation in the locksmith's department’ were irrelevant to the action.

Article 24 of the Staff Regulations cannot be accepted as meaning on the one hand that an institution is free from any obligation even when it is to the institution that defamatory accusations have been made against one of its officials and on the other hand that in such a case the official is required to bring the matter before the national courts with the assistance of the institution where necessary. In the present case the Commission was involved, as a result of its action or negligence, in the defamation in question originating from an undertaking connected with the administration by a contract to supply services.

Although the Commission has refrained ‘from giving… any foundation’ to this defamation it has neglected to take all proper measures to put a definite end to it; thus there was a wrongful omission.

The damage arises from the fact that the Commission's attitude unjustifiably lessens the applicant's career prospects.

The Commission replies that in its defence it has refrained from any allegation of fact in respect of the applicant which it has not been able to support with a document. Further the facts to which it has referred, in particular the applicant's persistent refusal to comply with certain orders of his superiors, are not unrelated to the present case.

It follows from the second paragraph of Article 24 of the Staff Regulations that the Communities are not required to compensate damage caused to one of their officials except where he has been unable to obtain compensation from the person causing the damage.

The file shows clearly that the Commission has even gone beyond its obligations under the regulations and that it cannot be reproached for failure to act or negligence and even less for ‘being involved’ in the accusations made against the applicant. Moreover the latter has not specified what measures would have completely satisfied him.

When the written procedure was concluded, on hearing the Judge-Rapporteur and the views of the Advocate-General the Court (Second Chamber) decided to open the oral procedure without preparatory inquiry.

The parties put forward oral observations at the hearing on 16 September 1976.

The Advocate-General delivered his opinion at the hearing on 30 September 1976.

Law

1. The present case has its origin in a letter of 25 March 1974 sent to the Commission by the director of a Brussels locksmith undertaking which, under a contract with the Commission, made available to the Commission a work force for maintenance and repair work coordinated and controlled by the applicant.

2. This letter accused the applicant of ‘terrorizing’ the workmen and ‘trying to destroy’ the work force made available to the Community administration and the Commission was invited to ‘change this state of affairs’.

3. The Commission, after conducting an inquiry with the discretion required by the circumstances, informed the applicant of the accusations made against him but assured him that they would involve him in no consequences.

4. The applicant, not satisfied with this attitude and relying on the allegedly insulting and defamatory nature of the letter, made a complaint to the Commission under Article 90 of the Staff Regulations to the effect that the Commission should ‘ensure respect for Article 24 of the Staff Regulations’, inform the applicant of the results of the inquiry into the facts in question, pursue the inquiry and inform the applicant ‘officially and fully of the particulars in the file’, take a decision ‘clearing him of the accusations’ made in the abovementioned letter and grant him ‘just compensation for the non-material and material damage’ suffered by him arising from the fact that the Commission had omitted to afford him the assistance provided for in Article 24.

5. The applicant claims in his application (1) the annulment of the implied rejection of the abovementioned complaint, (2) that the Court should require the Commission to acknowledge ‘that the accusations… are baseless’ and should bring such acknowledgement to the notice of all persons having knowledge of the dispute, and (3) order the Commission to pay damages.

6. The observations of the applicant in his reply must be understood as meaning that he does not intend to maintain the second claim with the result that it is not necessary to rule on the objection of inadmissibility made by the Commission with regard to this claim.

7. Complaint is made that the Commission has to the prejudice of the applicant disregarded the obligation to assist him under the first paragraph of Article 24 of the Staff Regulations which provides: ‘The Community shall assist any official in its service, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances … to which he … is subjected by reason of his position or duties’.

8. It is alleged that the Commission has not taken the measures necessary to re-establish the applicant's good character which the letter in question seriously impugned.

9. This letter was in fact such as to question the applicant's integrity in the performance of his duties and to discredit him in the eyes of his superiors.

10. Article 24 requires that where there are serious accusations as to the integrity of an official in carrying out his duties, the administration should take all necessary steps to establish whether the accusations are justified and where they are not should refute them and do everything possible to restore the good name of the official concerned.

11. The argument of the Commission that the obligation to assist applies only where the official injured has himself taken the initiative in pursuing the person responsible for the attacks against him cannot be accepted.

12. In the light of these considerations it is necessary to inquire whether in the present case the Commission has complied with its obligations.

13. It is established that following the letter in question the Commission instituted an inquiry conducted so as to avoid any publicity and leading to the decision of the administration notified in writing to the applicant ‘not to pursue’ the matter raised in the said letter, which thus would ‘not involve any adverse consequences’ for him.

14. Such a decision clearly means refuting the accusations made against the applicant and re-establishing his reputation in relation to the performance of his duties.

15. If the Commission had found the accusations justified, if only in substance, it would necessarily have had to draw the consequences in respect of the applicant.

16. Nevertheless the applicant complains that the Commission has conducted the inquiry in a questionable manner and in particular has not confronted him with the writer of the letter and further has omitted ‘to clarify the matter’ by notifying him of the results of the inquiry.

17. First it was for the Commission to decide whether it was appropriate or not to bring the accuser and accused together to clarify as far as possible the facts in question.

18. The applicant cannot complain that the Commission has not expressed the results of the inquiry more clearly since by his conduct he has himself prevented the Commission from giving a ruling with full knowledge of the matter.

19. He has constantly refused to comply with the repeated request of his superiors to make weekly reports on the activity of the work force supplied to the Commission by the undertaking in question albeit one of the causes of differences between the undertaking and the applicant was precisely the fact that the applicant regarded the work force as insufficiently qualified.

20. Since in these circumstances the Commission has fully satisfied the obligations which it had with regard to the applicant, all the claims in the action must be dismissed.

Costs

21. The applicant has failed in his submissions.

22. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

23. Nevertheless under Article 70 of the Rules of Procedure the costs incurred by the institutions in applications by servants of the Communities shall be borne by them.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application as unfounded;

2 Orders the parties to bear their own costs.