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Guiding principles
Parties
Reasons for decision
Cost decision
tenor

keywords


1. Community law - principles - fundamental rights - freedom of expression - restrictions - narrow interpretation

(Article 6 (2) EU; European Convention on Human Rights, Article 10 (2))

2. Civil servants - Rights and duties - Freedom of expression - Exercise - Limits - Protection of the rights of others - Relationship of trust between an institution and its civil servants - Administrative discretion - Scope - Judicial review

(European Convention on Human Rights, Article 10 (2); Staff Regulations, Articles 11, 12 and 17)

3. Officials - Rights and duties - Freedom of expression - Exercise - Limits - Protection of the rights of others - Publication of texts relating to the activities of the Communities - Limitation in the form of prior consent - Refusal of consent - Requirements - Judicial review

(European Convention on Human Rights, Article 10 (2); Staff Regulations, Article 17 (2))

4. Officials - rights and obligations - Officials on leave for personal reasons - No effect

(Staff Regulations, Article 35)

5. Appeal - Grounds - Mere repetition of the grounds and arguments put forward before the General Court - Inadmissibility

(EC Statute of the Court of Justice, Article 51)

6. Appeal - Grounds - Incorrect assessment of the facts - Inadmissibility - Review of the assessment of the evidence by the Court of Justice - Exclusion except in the case of falsification - Burden of proof and presentation of evidence

(Article 225 EC; EC Statute of the Court of Justice, Article 51)

7. Officials - Disciplinary Code - Procedure before the Disciplinary Board - Investigation - Oral presentation of the report by the reporter - Admissibility

(Staff Regulations, Annex IX, Article 3)

8. Procedure - Reasons for the judgment - Annulment judgment - Scope

(EC Statute of the Court of Justice, Article 51)

Guiding principles


1. Fundamental rights are among the general principles of law which the Court of Justice must ensure that they are respected. In doing so, the Court of Justice is guided by the constitutional traditions common to the member states and by the references made by the international treaties on the protection of human rights which the member states were involved in or to which they have acceded. The European Convention on Human Rights is of particular importance here.

These principles have been included in Article 6 (2) EU.

According to the legal system of the Court of Human Rights, freedom of expression is one of the essential foundations of a democratic society and one of the most important prerequisites for its progress and for the realization of every individual. According to Article 10 (2) of the European Convention on Human Rights, it applies not only to information "and ideas which are approved or which are considered harmless or irrelevant, but also to any information and ideas that offend, upset or disturb others.

The right to freedom of expression may be subject to the restrictions set out in Article 10, paragraph 2, of the Convention, which must, however, be interpreted strictly. The adjective "indispensable" within the meaning of Article 10 (2) means an imperative societal need, and while Member States have some discretion in deciding whether such a need exists, the interference must be proportionate to the legitimate aim pursued, and the grounds relied on by national authorities to justify it must be accurate and sufficient, and any prior qualification must be subject to specific scrutiny.

Furthermore, the restrictions must be provided for in legal norms that are formulated so precisely that the persons concerned can organize their behavior, if necessary after obtaining expert advice.

(see paras 37-42)

2. Officials and servants of the European Communities enjoy the right to freedom of expression, including in matters covered by the activities of the institutions of the Community. This right includes the freedom to express, orally or in writing, views which differ from those represented by the Community body for which they are employed or which represent minority opinions towards them.

In a democratic society, however, it is also legitimate to subject officials to obligations because of their position, as provided for in Articles 11 and 12 of the Statute. Such obligations are mainly designed to maintain the relationship of trust that must exist between the Community institution and its officials or servants. The extent of these obligations depends on the nature of the office the person concerned is exercising or the position he occupies in the service hierarchy.

Special restrictions on the exercise of the right to freedom of expression can in principle be justified by the legitimate purpose of protecting the rights of others within the meaning of Article 10 paragraph 2 ECHR, in the present case the rights of institutions entrusted with tasks in the general interest the citizens must be able to count on if they are properly fulfilled.

The provisions regulating the duties and responsibilities of the European civil service pursue this aim. Therefore, an official may not, in writing or orally, violate his obligations under Articles 11, 12 and 17 of the Staff Regulations vis-à-vis the Community institution he is to serve, as this would destroy the relationship of trust that binds him to that Community institution and would therefore later make it difficult or impossible for him to carry out the tasks assigned to him in cooperation with the official.

In exercising its control, the Community judicature must examine, on the basis of all the circumstances of the case in question, whether there is an appropriate balance between the fundamental right of the individual to freedom of expression and the legitimate interest of the Community body to ensure that its officials and other servants respect their duties and working in their responsibility is respected. In this context, the duties and responsibilities within the meaning of Article 10, Paragraph 2 of the Convention, when it comes to the freedom of expression of civil servants, are of particular importance, which justifies giving the administration a certain margin of maneuver in assessing the question It is up to us whether the reprimanded interference is in proportion to the legitimate aim pursued.

(see paras 43-49)

3. According to Article 17 (2) of the Staff Regulations, the publication of texts relating to the activities of the Communities requires consent. This consent may only be withheld if the planned publication is likely to prejudice the interests of the communities ". In this case, which is listed as the only ground for refusal in a Council regulation, it is about protecting ... the rights of others" which, according to Article 10 paragraph 2 of the European Convention on Human Rights as interpreted by the Court of Human Rights, justifies a restriction of freedom of expression The restriction in question does not violate the fundamental right to freedom of expression just because it takes the form of prior consent. Article 17 (2) of the Staff Regulations clearly sets out the principle of consent, which can only be withheld in exceptional cases. Since this provision allows the organs to refuse consent to publication, and thus creates the possibility of serious interference with the freedom of expression, which is one of the essential fundamental rights of a democratic society, it must be interpreted narrowly and with strict observance of certain conditions, such as the presence of an imperative social need to apply the right relationship to the legitimate purpose pursued and the existence of appropriate and sufficient reasons on which the organ refers in the negative decision. Consent to publication can therefore only be refused if the publication is likely to cause serious damage to the interests of the communities.

Since this rule applies only to publications relating to the activities of the Communities, it is only intended to enable the institution to be aware of the written opinions expressed by its officials or servants in relation to that activity and to reflect the relationship of trust that exists between an employer and his servants must exist in particular when they perform high-level tasks of a public nature.

A decision refusing consent is open to legal appeal under Articles 90 and 91 of the Staff Regulations and is subject to effective judicial review which enables the Community Courts to assess whether the Appointing Authority has jurisdiction under Article 17 (2) of the Statute in strict compliance with the limits that apply to any interference with the freedom of expression. In this context, when applying Article 17 (2) of the Staff Regulations, the Appointing Authority must weigh up the various interests involved, taking into account in particular the extent to which the interests of the Communities are prejudiced.

(see paras 51-57)

4. It is clear from the wording of Article 35 of the Staff Regulations that an official who is on leave for personal reasons does not lose his status as an official for the period in which he is in that service position. He is thus still subject to the obligations that apply to all civil servants, unless expressly stated otherwise.

(see para. 69)

5. In the context of an appeal, a ground of appeal which in fact only seeks to reconsider the action brought before the Court of First Instance is inadmissible since, under Article 51 of the Statute of the Court of Justice, this does not fall within the jurisdiction of the Court of Justice.

(see para. 76)

6. Findings of fact and the appraisal of the evidence presented to the court by the court are not subject to review by the Court of Justice as part of an appeal, provided that neither the evidence has been falsified nor general legal principles or procedural rules on the burden of proof and the taking of evidence have been violated.

Regarding the rules for the burden of proof and the taking of evidence, it should be noted in general that in order to convince the court of the truth of an allegation by a party or at least to induce it to take evidence directly, it is not sufficient to state certain facts in support of an allegation; rather, objective, coherent and consistent evidence must be presented that these facts are true or that their existence is likely.

(see paras 83, 100, 113-114)

7. With regard to the need to draw up a written report to the Disciplinary Board, Article 3 of Annex IX of the Statute only regulates the tasks of the rapporteur, without prescribing special formalities for their fulfillment, such as the submission of a written report or the submission of such a report the parties. It is therefore not excluded that the rapporteur can present an oral report to the other members of the Disciplinary Board.

(see paragraph 112)

8. The obligation on the General Court to give reasons for its decisions does not mean that it has to go into detail on every argument put forward by the appellant, especially if it was not sufficiently clear and precise and did not rely on appropriate evidence.

(see para. 121)

Parties


In Case C-274/99 P

Bernard Connolly, former official of the Commission of the European Communities, residing in London, United Kingdom, represented by: J. Sambon and P.-P. van Gehuchten, avocats, address for service in Luxembourg,

Appellant,

concerning an appeal against the judgment of the Court of First Instance of the European Communities (First Chamber) of May 19, 1999 in cases T-34/96 and T-163/96 (Connolly v Commission, ECR 1999, IA-87 and II-463) due to the annulment of this judgment,

other party to the proceedings:

Commission of the European Communities, represented by G. Valsesia and J. Currall, acting as Agents, assisted by D. Waelbroeck, avocat, with an address for service in Luxembourg,

Defendant in the first instance,

he let

THE COURT OF JUSTICE

composed of G. C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet (Rapporteur) and V. Skouris, D. A. O. Edward, J.-P. Puissochet, P. Jann, L. Sevón and R. Schintgen and the judge N. Colneric,

Advocate General: D. Ruiz-Jarabo Colomer

Chancellor: R. Grass

based on the report of the meeting,

after hearing the parties to the proceedings at the meeting on September 12, 2000,

after hearing the Opinion of the Advocate General at the sitting on 19 October 2000,

the following

judgment

Reasons for decision


1 In an appeal lodged at the Registry of the Court of Justice on July 20, 1999, the appellant has an appeal against the judgment of the Court of Justice under Article 49 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice Instance of 19 May 1999 in Cases T-34/96 and T-163/96 (Connolly v Commission, ECR 1999 ECR, IA-87 and II-463, hereinafter referred to as the judgment under appeal), by which the General Court his action for the annulment of the Disciplinary Board's opinion of 7 December 1995 and the decision of the Appointing Authority of 16 January 1996 declaring his removal from the service without depriving his pension entitlement (hereinafter: decision on removal from service), and turned down for damages.

legal framework

2 Article 11 of the Staff Regulations of Officials of the European Communities (hereinafter: the Staff Regulations) reads:

In the exercise of his office and in his conduct, the civil servant must be guided exclusively by the interests of the communities; he may not request or take instructions from any government, authority, organization or person outside his body.

The civil servant may not accept titles, decorations, decorations, perks, rewards and gifts or allowances of any kind from any government or any other agency outside his or her body, except for services prior to his appointment or for services during special leave to serve of military service or other civic services, provided that they are granted in connection with the performance of such services. "

3 Article 12 of the Staff Regulations provides:

The civil servant must refrain from any act, in particular any public expression of opinion, which could be detrimental to the reputation of his office.

...

If the civil servant wishes to pursue a secondary activity for remuneration or without remuneration or if he wishes to take on an assignment outside the communities, he must obtain the approval of the appointing authority. This consent must be refused if the activity or the assignment could affect the independence of the official or the activities of the communities. "

4 Article 17 (2) of the Staff Regulations reads:

The official may not publish or have published texts relating to the activities of the Communities, either alone or in collaboration with third parties, without the consent of the appointing authority. Approval may only be withheld if the planned publication is likely to harm the interests of the communities. "

facts

5 The facts are set out in the judgment under appeal as follows:

1 At the material time, the applicant was a Commission official at Grade A4, Step 3, and Head of Unit 3, EMS, National and Community Monetary Policy in Directorate D, Monetary Affairs of Directorate-General for Economic and Financial Affairs (DG II) ...

2 Since 1991 the applicant has submitted three drafts of essays on the application of currency theories, the development of the European monetary system and the monetary impact of the White Paper on the Future of Europe, the publication of which he has given prior consent within the meaning of Article 17 (2) of the Staff Regulations of Officials of the European Communities ... has been refused.

3 On April 24, 1995, the applicant requested leave for personal reasons for a period of three months from 3July 1995, citing the reasons for the request that he intended to a) help his son prepare for entry into a UK university during the school holidays; b) allow his father to spend some time with his family and c) to spend time reflecting on topics of economic theory and politics and re-establishing one's relationship with literature. The Commission granted him this leave by decision of 2 June 1995.

4 By letter of 18 August 1995, the applicant applied to the Commission for his reuse after the end of his leave for personal reasons. By decision of 27 September 1995, the Commission ordered his re-use in his post from 4 October 1995.

5 During his leave for personal reasons, the applicant published a book entitled: The rotten heart of Europe. The dirty was for Europe's money without having applied for approval beforehand.

6 At the beginning of September, from September 4 to 10, 1995, a number of articles about this book appeared in the European and especially the British press.

7 By letter of 6 September 1995, the Director-General for Personnel and Administration, in his capacity as appointing authority, informed the applicant of his decision to institute disciplinary proceedings against him for breach of Articles 11, 12 and 17 of the Staff Regulations and summoned him under Article 87 of the Statute to a prior hearing.

8 An initial hearing took place on 12 September 1995, at which the applicant submitted a written statement that he would not answer any question as long as he was unaware of the individual misconduct alleged.

9 By letter of 13 September, the Appointing Authority informed the applicant that the misconduct alleged against him resulted from the publication of his book, an extract from it in The Times newspaper and his statements in an interview published in that newspaper for which no prior consent was given had been granted; it invited him to re-hear these facts in view of his obligations under Articles 11, 12 and 17 of the Statute.

10 At his second hearing, on 26 September 1995, the applicant refused to answer the questions put to him and submitted a written statement stating that he was entitled to publish a book without prior consent because he was on vacation for personal reasons have found. The appearance of excerpts from his book in the press goes back to the editor and some of the statements reproduced in the interview were wrongly ascribed to him. Finally, in the light of the press statements by the President and the Commission spokesman concerning him, the disciplinary proceedings against him are not objective and the confidentiality of the proceedings is not respected.

11 On 27 September 1995 the appointing authority decided to suspend the applicant pursuant to Article 88 of the Staff Regulations and to retain half of his basic salary during the period of suspension.

12 On 4 October 1995 the Managing Authority decided to refer the matter to the Disciplinary Board in accordance with Article 1 of Annex IX to the Staff Regulations ('Annex IX').

...