BIB.ORDER
C-65/99 P(R)61999O00650020.000118591187820CJORDER OF 25. 3. 1999 — CASE C-65/99 P(R)
WILLEME v COMMISSION
Order of the Ppresident of the Court
25 March 1999(*)
In Case C-65/99 P(R),
Claude Willeme, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson SARL, 30 Rue de Cessange,
appellant,APPEAL against the order of the President of the Court of First Instance of the European Communities of 10 February 1999 in Case T-211/98 R Willeme v Commission [1999] ECRSC II-57, seeking to have that order set aside and requesting adjudication of the application submitted at first instance,
the other party to the proceedings being:Commission of the European Communities, represented by G. Valscsia, Principal Legal Adviser, and J. Currall, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant at first instance,THE PRESIDENT OF THE COURT,
after hearing Advocate General Léger,
makes the following
Order
1By application lodged at the Court Registry on 25 February 1999, Mr Willeme brought an appeal pursuant to Article 168a of the EC Treaty and the second paragraph of Article 50 of the EC Statute of the Court of Justice against the order of the President of the Court of First Instance of 10 February 1999 in Case T-211/98 R Willeme v Commission [1999] ECRSC II-57 (hereinafter the ‘order under appeal’) dismissing the application for suspension of the operation of the appointing authority's decision of 16 December 1998 to suspend the appellant with immediate effect and to withhold from his remuneration an amount equal to half his basic salary (hereinafter ‘the contested decision’).
2By document lodged at the Court Registry on 9 March 1999, the Commission submitted its written observations.
Legislative background, facts and procedure
3The legislative background to the case and the facts are set out in the order under appeal in the following terms:
‘1.The first to fourth paragraphs of Article 88 of the Staff Regulations of Officials of the European Communities (hereinafter “the Staff Regulations”) provide as follows:“Where an allegation of serious misconduct is made against an official by the appointing authority, whether this amounts to failure to carry out his official duties or to a breach of law, the authority may order that he be suspended forthwith.
The decision that an official be suspended shall specify whether he is to continue to receive his remuneration during the period of suspension or what part thereof is to be withheld: the part withheld shall not be more than half the official's basic salary.
A final decision shall be taken within four months from the date when the decision that an official be suspended came into force. Where no decision has been taken by the end of four months, the official shall again receive his full remuneration.
Where no disciplinary action has been taken in respect of an official, or no other measure than a written warning, reprimand or deferment of advancement to a higher step has been ordered, or if no final decision has been taken within the period specified in the preceding paragraph, the official concerned shall be entitled to reimbursement of the amount of remuneration withheld.”
2Mr Willeme is an official in grade A 3; he is head of the “external security” unit of the Commission's Security Bureau and also acts as Deputy to the Director of the Security Bureau.3In the course of an investigation by the Unit on Coordination of Fraud Prevention (hereinafter “the UCFP”) in connection with the “Consultancy and temporary staff contracts/ECHO” case, it was found that Mr Willeme's wife had been recruited by Perry Lux Informatie, a company based in Luxembourg, for the period between 1 January 1994 and 31 December 1994. That information came to light during inspections carried out at the company's premises in March and May 1998.4The UCFP then sought to establish the circumstances in which the contract of employment had been concluded and implemented, having particular regard to any connection with the case under investigation.5To that end Mr Willeme and his wife were interviewed by representatives of the UCFP on 7 October 1998.6During those interviews Mrs Willeme confirmed that she had been hired by Perry Lux Informatie for the whole of 1994, subject to a six-month trial period. As a “technical administrative assistant” she was to carry out work of a legal nature in the sphere of humanitarian action. She also stated that she had terminated the contract at the end of the trial period, on 30 June 1994.7On 8 October 1998 the UCFP interviewed Mr Desmet, who was responsible for the Perry Lux Informatie employees who provided services on behalf of the Commission under an ECHO contract. Mr Desmet stated that during the first two weeks of January 1994 Mrs Willeme had been working in the budgetary unit for which he was responsible.8According to the report drawn up by the UCFP on 4 December 1998, it was established that:“3.1...
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... For two weeks at the beginning of 1994, [Mrs Willeme] worked in the external budgetary unit coming within ECHO in the context of one of the contracts in issue being investigated under the above reference.
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... [Mrs Willeme] was paid a gross monthly salary of BFR 97500 by Perry Lux until the end of the six-month trial period provided for in the contract.
...
3.2.The conditions under which [Mrs Willeme] was placed at the Commission's disposal by Perry Lux might be investigated for the purpose of ascertaining whether Mr Willeme has properly carried out his professional duties with reference to the various applicable provisions of the Staff Regulations.”9This report was passed to Mr Smidt, Director-General of the Directorate-General for Personnel and Administration of the Commission (DG IX), in accordance with Article 21 of Commission Decision C (1998) 2049/5 of 14 July 1998 on investigations carried out by [the UCFP].10By letter of 16 December 1998 the Director-General of DG IX informed Mr Willeme that he had decided, in the light of the information provided by the UCFP, to initiate disciplinary proceedings against him. That letter states:“The complaints against you at this stage concern the breach of your duties under the Staff Regulations, in particular your duties of independence and loyalty and your duty to refrain from any act which might reflect on your position, as laid down in Articles 11 to 14 of the Staff Regulations.
Owing to the nature of the allegations against you, I have decided to suspend you from your duties and, during the period of that suspension, to withhold an amount equal to half your basic salary, in accordance with the second paragraph of Article 88 of the Staff Regulations.”
11Enclosed with that letter was the [contested] decision, dated 16 December 1998, adopted by the Director-General of DG IX acting in his capacity as appointing authority. According to that decision, “it is apparent from the evidence gathered by the UCFP that [the appellant's wife] was able to benefit from that contract owing to the duties which [the appellant] carried out in the Security Bureau”. Furthermore, “Mr Willeme is accused of failing to comply with the first paragraph of Article 11 of the Staff Regulations, which provides that an official is to carry out his duties and conduct himself solely with the interests of the Communities in mind; the first paragraph of Article 12 of the Staff Regulations, which provides that an official is to abstain from any action which may reflect on his position; and Article 13 of the Staff Regulations, which provides that if the spouse of an official is in gainful employment, the official is to inform the appointing authority”. Lastly, “whereas, owing to the gravity of the allegations against him, it is necessary to remove Claude Willeme temporarily from the service and therefore to suspend him from his duties and during the period of suspension withhold an amount equal to half his basic salary, as provided for in the second paragraph of Article 88 of the Staff Regulations”, the appointing authority decided that “Claude Willeme is suspended from his duties” and that “an amount equal to half his basic salary shall be withheld from his remuneration” (Article 1 of the [contested] decision). This decision took immediate effect (Article 2 of the [contested] decision).’
4On 24 December 1998 Mr Willeme submitted a complaint, within the meaning of Article 90(2) of the Staff Regulations, against the contested decision, seeking to have it annulled and to be awarded compensation for the damage suffered; pursuant to Article 91(4) of the Staff Regulations, he also brought an action to the same effect before the Court of First Instance.
5In a separate document, which was registered at the Registry of the Court of First Instance on the same date, he also applied for suspension of operation of the contested decision.
The order under appeal
6In the order under appeal the President of the Court of First Instance dismissed the application for interim measures after considering the appellant's arguments purporting to establish a prima facie case and the urgency of the measure applied for.
7As regards the question of a prima facie case, the President of the Court of First Instance first observed that Article 88 of the Staff Regulations provides that an official may be suspended by the appointing authority ‘[w]hcrc an allegation of serious misconduct is made’ against him. Since the appellant submitted that Article 88 had been infringed, it was necessary to verify that the misconduct of which the appellant was accused by the appointing authority was not ‘clearly unfounded’ (paragraphs 29 and 30 of the order under appeal).
8The President of the Court of First Instance concluded from the appellant's own account and from the facts set out in the UCFP report that the appointing authority had not at first sight committed a manifest error of assessment in stating that the appellant's wife had been able to benefit from her contract owing to the duties performed by the appellant or in inferring from the facts brought to its knowledge that the appellant had failed to fulfil his obligations under the first paragraph of Article 11 and the first paragraph of Article 12 of the Staff Regulations (paragraphs 31 and 32 of the order under appeal).
9He therefore concluded that the appointing authority was entitled to take the view, based on an evaluation of the particular circumstances of the case taken as a whole, that the gravity of the situation warranted the suspension of the appellant from his duties and the withholding of his remuneration pursuant to Article 88 of the Staff Regulations (paragraph 33 of the order under appeal).
10According to the order under appeal, the appellant had provided no evidence that, prima facie, his rights of defence had been infringed. Article 88 of the Staff Regulations does not provide for the official's views to be heard beforehand, since the decision to suspend him is a provisional measure requiring allegations of serious misconduct, not duly established misconduct (paragraph 34 of the order under appeal).
11As regards the alleged urgency, the President of the Court of First Instance considered separately the damage arising from the withholding of the appellant's remuneration, on the one hand, and, on the other, the damage purportedly caused to his career and the nonmaterial damage.
12As regards the damage arising from the withholding of the appellant's remuneration, it is apparent from the findings at first instance that the remuneration which the appellant received after the relevant part had been withheld allowed him to meet all the expenditure necessary to satisfy his needs and those of his family until his financial position had been resolved (paragraphs 37 to 41 of the order under appeal).
13As regards the other types of damage relied on, it was held that ‘even assuming that they are established, they were an unavoidable and direct consequence of the appointing authority's decision to suspend the official on the express basis of Article 88 of the Staff Regulations’. It follows, according to the order under appeal, that the suspension of operation of a decision adopted pursuant to Article 88 of the Staff Regulations may be ordered only in so far as it is found that, in addition to damage of that nature, there is a solid prima facie case and that the balance of interest inclines towards the party seeking the measure. That was not the position in this case, since ‘the condition relating to a prima facie case was not satisfied’ (paragraph 42 of the order under appeal).
14In any event, according to paragraph 43 of the order under appeal, suspension of operation of the contested decision would be no more capable of allowing the appellant's career to resume its normal course or of restoring his and his family's reputation and honour than the subsequent annulment of that decision or the possibility that by the close of the disciplinary procedure the competent authorities would have been unable to furnish sufficient evidence to prove that disciplinary action was justified.
15It was finally held that it was not the contested decision itself, but the disciplinary procedure initiated against the appellant that had prevented his promotion to the post of Director of the Security Bureau (paragraph 44 of the order under appeal).
Arguments of the parties
16In support of his appeal the appellant alleges breach of procedure and infringement of Community law in that, in appraising the grounds for interim relief, the order failed accurately to assess the facts and points of law, thus erring in law.
Breach of procedure
17As regards, first, the plea alleging breach of procedure, the appellant maintains that the court hearing an application for interim measures has no jurisdiction to reach a decision without first hearing the parties.
18Article 105(1) of the Rules of Procedure of the Court of First Instance, which provides that ‘[t]he application shall be served on the opposite party, and the President of the Court of First Instance shall prescribe a short period within which that party may submit written or oral observations’, does not confer on the court hearing the application for interim measures the right to reach a decision without hearing the parties. The appellant maintains that ‘the scope of [that provision] relates solely to the right conferred by the President of the [Court of First Instance] on the defendant to submit written or oral observations’.
19The appellant argues that the oral procedure is the embodiment of a general principle of procedural law, as is apparent from Article 18 of the EC Statute of the Court of Justice. He maintains that the President of the Court of First Instance should at the very least have first consulted the parties, by analogy with the procedure provided for in Article 120 of the Rules of Procedure of the Court of Justice.
20The Commission contends that both the Rules of Procedure of the Court of First Instance and those of the Court of Justice make provision, sometimes expressly and sometimes by implication, for a decision to be taken without an oral stage. It refers, in particular, to the second sentence of Article 105(2) and Article 111 of the Rules of Procedure of the Court of First Instance.
Infringement of Community law
21The alleged infringement of Community law on which the appellant relies concerns the assessment as to the existence of a prima facie case and of urgency.
A prima facie case
22As concerns the assessment as to whether there was a prima facie case, the appellant acknowledges at the outset that he failed to make the declaration provided for in Article 13 of the Staff Regulations, but emphasises a number of considerations: the contract of employment concluded by his wife was a private matter, protected by Article F(2) of the Treaty on European Union, and the appellant was not guilty of making a false statement and had no special interest in doing so; interpretation of Article 13 should focus not on its wording, but on its purpose, which is to preserve the independence of officials and their loyalty to the institution which employs them. The appellant refers to a number of particular facts of the present case and concludes that failure to comply with Article 13 did not in itself substantiate an allegation of serious misconduct justifying immediate adoption of the contested decision.
23The Commission points out that Article 13 of the Staff Regulations must be interpreted in the same way as Article 12 thereof, which requires officials to declare any outside activity exercised by the official in person. Case-law confirms that the mere fact of failing to declare such outside activities constitutes an infringement (Case T-74/96 Tzoanos v Commission [1998] ECRSC I-I-129 and II-343, paragraph 66). If the occupational activity of a spouse were deemed a private matter, Article 13 would be deprived of its content. In any event, Article 13 was not cited by itself in the contested decision but in conjunction with Articles 11 and 12 of the Staff Regulations, since failure to report the spouse's activity may give the impression of favours being traded.
24The appellant maintains that neither the first paragraph of Article 11 nor the first paragraph of Article 12 of the Staff Regulations have any bearing on the facts of the case, since his wife did not secure her contract as a result of his post. The UCFP report did not identify any misconduct on his part in the performance of his duties or establish any link between his activities and the contract concluded by his wife; it merely suggested that those matters be further investigated.
25The conclusion which the President of the Court of First Instance reaches in paragraph 33 of the order under appeal therefore proceeds from an incorrect assessment of the facts and, accordingly, constitutes an error of law, in so far as that assessment justifies the application of Article 88 of the Staff Regulations.
26The President of the Court of First Instance also erred in failing to consider whether the pleas in support of the application for annulment might at first sight be regarded as well founded. Those pleas alleged that the appointing authority failed to state the reasons on which the contested decision was based; that there had been a breach of the appellant's rights of defence; that the contested decision was disproportionate to any fault on the part of the appellant; and that the interest of the service did not make it indispensable that the appellant be excluded from his place of work forthwith, having regard to his past performance.
27The appellant maintains that he cannot be accused of serious misconduct, since an infringement of Article 13 of the Staff Regulations cannot be classed as such. It was necessary to establish that he was facing an accusation sufficiently serious to compromise the performance of his duties and represent a threat to the service. Furthermore, a decision to withhold half his remuneration should only have been taken if the facts alleged had been sufficiently serious to justify his removal.
28Lastly, the appellant states that to dismiss his appeal on the basis of the assessment as to the existence of a prima facie case would be to prejudge his case for annulment of the contested decision on substantive grounds and annulment of any subsequent disciplinary measures.
29The Commission points out that the contested decision is itself provisional, being based not on established facts but on allegations. The President of the Court of First Instance was therefore perfectly entitled to consider whether the faults ‘alleged’ against the appellant appeared to be manifestly unfounded.
30The Commission submits that suspension must be based on serious allegations, especially where the maximum possible part of the remuneration is withheld, but the order under appeal confirms that there was no reason to consider that the allegations were not serious. The Commission points out that the appellant is a senior official, responsible inter alia for ensuring that others comply with their obligations.
31Lastly, the appellant maintains that there has been a flagrant breach of his rights of defence, since his views were not heard before the contested decision was adopted on the basis of Article 88 of the Staff Regulations and particularly bearing in mind that the Commission was under no obligation to act so quickly.
32The Commission contends that the appointing authority is under no obligation to hear the views of the person concerned before adopting a measure suspending an official, because that does not constitute disciplinary action.
Urgency
33As regards urgency, the appellant begins by describing in general terms the delicate financial position in which he found himself.
34As regards the alleged nonmaterial damage, the appellant points out that by classifying such damage, in paragraph 42 of the order under appeal, as the ‘unavoidable and direct consequence’ of the contested decision, the President of the Court of First Instance precludes an application for suspension of operation of a decision suspending an official, adopted on the basis of the first paragraph of Article 88 of the Staff Regulations, which constitutes a breach of his right to an effective judicial remedy.
35The appellant also argues that paragraph 42 of the order under appeal contains an error of law in that it implies that urgency depended on the existence of a solid prima facie case and on the balance of interests inclining in favour of the appellant. This was to misconstrue the conditions governing the admissibility of an application for interim measures, each of which has its own content and function.
36Contrary to paragraph 43 of the order under appeal, the appellant also maintains that if operation of the contested decision were suspended, that would clearly indicate that the application for interim measures was not manifestly unfounded and the appellant and his family would not be discredited.
37Lastly, the appellant criticises paragraph 44 of the order under appeal, arguing that, as matters stand, the damage indisputably results from the contested decision itself, which produces an effect independently of any subsequent decision imposing a disciplinary measure, a fortiori if, at the close of the disciplinary procedure, no disciplinary action, or only a ‘minor’ measure, is taken.
38In reply to those arguments concerning the findings at first instance in respect of the condition of urgency, the Commission submits three principal observations.
39First, the Commission wonders whether the Court can be requested in an appeal, even an appeal relating to interim measures, to consider the question of the extent of damage, which is a question of fact.
40Next, the Commission contends that the appellant distorts the reasoning set out in paragraph 42 of the order under appeal. According to the Commission, the President of the Court of First Instance considered together the existence of a prima facie case and urgency principally in order to ascertain the direction in which the balance of interests inclined, an exercise perfectly capable of entailing an assessment, albeit summary, of the probable outcome of the action on the substance.
41As regards, last, the findings set out in paragraph 43 of the order under appeal, the Commission maintains that, in finding that the supposed damage to the appellant's career was the result of the disciplinary procedure, not of the decision to suspend the appellant, the President of the Court of First Instance was simply stating the truth. The appointing authority could only preclude the appellant's candidature for the post in question, where appropriate, by taking account of the existence of the disciplinary procedure.
42The Commission concludes by observing that, even supposing that some aspect of the order under appeal did call for criticism, which is not the case, it must none the less be upheld if it is supported by other grounds. The Commission considers that this applies particularly to the assessment of urgency.
43Since the parties' written observations contain all the information which the Court needs to determine the appeal, there is no need to hear oral argument.
Findings
44It should be pointed out at the outset that under Article 168a of the Treaty and Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law and may lie on the grounds of lack of competence of the Court of First Instance, or a breach of procedure before it which adversely affects the interests of the appellant, or infringement of Community law by the Court of First Instance.
45Those provisions also apply to appeals brought under the second paragraph of Article 50 of the EC Statute of the Court of Justice (orders in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 18, and Case C-286/96 P(R) SCKandFNKv Commission [1996] ECR I-4971, paragraph 44).
46Furthermore, the Court of Justice does not in principle have jurisdiction to examine evidence which the Court of First Instance has accepted in support of its findings or assessments of the facts (order in Case C-159/98 P(R) Government of the Netherlands Antilles v Council [1998] ECR I-4147, paragraph 68).
The alleged breach of procedure
47As regards the first plea in support of the appeal, alleging breach of procedure, it should be pointed out at the outset that the question whether to hear oral argument from the parties is a matter which falls within the discretion of the court dealing with the application for interim measures (order in Case C-393/96 P(R) Antonissen v Council and Commission [1997] ECR I-441, paragraph 22).
48In the present case it is expressly stated in paragraph 16 of the order under appeal that the President of the Court of First Instance considered that he had all the information necessary to determine the application for interim measures and that there was no need first to hear oral argument from the parties.
49It does not avail the appellant to rely on the first paragraph of Article 18 of the EC Statute of the Court of Justice, which provides that ‘[t]he procedure before the Court shall consist of two parts: written and oral’.
50The first paragraph of Article 36 of that Statute, which, pursuant to the first paragraph of Article 46 thereof, is applicable to the procedure before the Court of First Instance, provides that in the case of, inter alia, applications for suspension of operation, as provided for in Article 185 of the Treaty, the President may adjudicate ‘by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in this Statute and which shall be laid down in the rules of procedure’.
51In that context, pursuant to Article 105(1) of the Rules of Procedure of the Court of First Instance, the President may prescribe a period ‘within which [the opposite] party may submit written or oral observations’.
52It follows that the President of the Court of First Instance was competent to adjudicate without first hearing the parties.
53That conclusion is supported, moreover, by the second subparagraph of Article 105(2) of the Rules of Procedure of the Court of First Instance, which provides that the President of the Court of First Instance may grant an application for interim measures even before the observations of the opposite party have been submitted.
54This plea must therefore be rejected.
The infringement of Community law
55It is necessary, first, to examine the grounds of appeal relating to the assessment of urgency at first instance. The Court shall consider in turn the financial damage, the damage to the appellant's career and the nonmaterial damage, as taken into consideration by the President of the Court of First Instance.
56As regards, first, the financial damage which the appellant purports to have suffered owing to the withholding of half of his remuneration, it follows from the findings of fact made at first instance that the net amount which the appellant receives should normally enable him to meet all the expenditure necessary to satisfy his needs and those of his family until his financial situation is resolved in application of the Staff Regulations.
57For the reasons set out in paragraphs 44 to 46 of the present order, the findings concerning the appellant's financial situation cannot be reviewed in an appeal.
58As regards, next, the damage caused to the appellant's career, the assertions set out in paragraph 37 of this order do not call in question the finding in paragraph 44 of the order under appeal that the damage is to be attributed to the disciplinary procedure initiated against the appellant, not to the contested decision.
59It was therefore quite correct to hold, in substance, that suspension of operation of the contested decision was not capable of remedying the damage to the appellant's career.
60Lastly, as regards the nonmaterial damage allegedly incurred owing to the effects of the contested decision on the appellant's reputation within the Commission and its consequences for his wife and son, it is quite clear, first, that as was correctly observed in paragraph 42 of the order under appeal, that is an unavoidable and direct consequence of the contested decision.
61Second, as is apparent from paragraph 43 of the order under appeal, the President of the Court of First Instance did not rule out the possibility that suspension of operation of the contested decision might remedy nonmaterial damage of that type. He observed, however, that such a measure would be no more capable of providing such a remedy than the forthcoming ruling on the substance.
62Consequently, the President of the Court of First Instance properly concluded, as regards the nonmaterial damage, that the condition relating to urgency was not met, in so far as the purpose of the procedure for interim measures is not to ensure that the damage is made good but to ensure that the judgment on the substance of the case takes full effect. For the purpose of attaining that objective, the measures sought must be urgent in so far as, in order to avoid serious and irreparable harm to the appellant's interests, they must be made and produce their effects before a decision is reached in the main action (order in Antonissen v Council and Commission, paragraph 27).
63Since the considerations set out in paragraph 43 of the order under appeal sufficiently support, separately and independently of the examination of the prima facie case, the conclusion that the condition of urgency was not satisfied in relation to the alleged nonmaterial damage, the reasoning in paragraph 42 of the order devoted to the prima facie case and the balancing of interests is superfluous.
64Consequently, since the grounds of appeal relating to a prima facie case do not call in question the lack of urgency of the measures sought they cannot form grounds for setting aside, even partially, the order under appeal (orders in SCK and FNK v Commission, paragraph 31, and in Case C-248/97 P(R) Chaves Fonseca Fenão v Office for Harmonisation in the Internal Market [1997] ECR I-4729, paragraph 18). Accordingly, there is no need to examine them.
65It should be added, however, that, as expressly stated in paragraph 35 of the order under appeal, contrary to what the appellant asserts, neither the prima facie assessment made at first instance nor that implied by this order prejudges the outcome of the main action.
66In the light of all the foregoing considerations, the appeal must be dismissed.
Costs
67Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded the Court is to make a decision as to costs. Article 69(2) of those Rules provides, moreover, that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.
68Since the Commission did not request that the appellant be ordered to pay the costs, each party must bear its own costs.
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
- 1.The appeal is dismissed.
- 2.Each of the parties shall bear its own costs.