In Case C-166/95 P-R,
Commission of the European Communities, represented by Dimitrios Gouloussis, of its Legal Service, acting as Agent, and by Benoît Cambier, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
appellant,
APPLICATION for suspension of the operation of the judgment of the Court of First Instance of the European Communities of 28 March 1995 in Case T-12/94 between Frédéric Daffix and the Commission of the European Communities,
the other party to the proceedings being:
Frédéric Daffix, an official of the Commission of the European Communities, residing in Brussels, represented by Georges Vandersanden and Laure Levi, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue Glesener,
THE PRESIDENT OF THE COURT
makes the following
Order
1 By an application lodged at the Court Registry on 30 May 1995, the Commission of the European Communities, pursuant to Article 49 of the EC Statute of the Court of Justice and the corresponding provisions of the ECSC and EAEC Statutes, brought an appeal against the judgment of 28 March 1995 in Case T-12/94 by which the Court of First Instance annulled the Commission' s decision of 18 March 1993 removing Mr Daffix from his post.
2 By a separate document lodged at the Court Registry on the same day, the Commission, pursuant to Article 53 of the EC Statute and the corresponding provisions of the ECSC and the EAEC Statutes and Articles 83 and 118 of the Rules of Procedure, made an application for interim relief in the form of suspension of the operation of the contested judgment.
3 The applicant before the Court of First Instance lodged written observations on the application for interim relief on 26 June 1995. Since the parties' written submissions contained all the information necessary for the Court to rule on the application for interim measures, it was not deemed necessary to hear oral argument from the parties.
4 As a preliminary point, it is necessary briefly to review the background of the dispute as it appears from the contested judgment.
5 In March 1991, the Commission initiated disciplinary proceedings pursuant to the second paragraph of Article 87 of the Staff Regulations of Officials of the European Communities against Mr Daffix, an official in Grade B 3 in Directorate-General X, Information, Communication and Culture.
6 The official was accused of having made out three order forms to SA Newscom, a subcontractor of the Commission responsible for managing the studios in the basement of the Berlaymont Building in Brussels, with a view to obtaining cash advances from that undertaking amounting to a total of BFR 450 000 for services allegedly ordered from Ms Régine Lombaerts, an outside supplier, whose existence still remains uncertain, and of having in fact kept that money. It was also alleged that Mr Daffix had forged the signature of the competent assistant head of unit in Directorate-General X on two of those order forms.
7 Having regard to a report from the appointing authority and after hearing Mr Daffix and the evidence of officials on several occasions, the Disciplinary Board, in its opinion of 18 February 1993, considered that it had not been proven that the order forms had been falsified by Mr Daffix and that, despite various contradictions both in his statements and between his statements and those of the witnesses, it could not rule out the possibility that the money in question had in fact been paid to the supplier indicated by Mr Daffix. The Disciplinary Board nevertheless concluded that, by failing to verify the identity and bona fides of that supplier beforehand, Mr Daffix was guilty of a serious breach of his obligations as an official of the European Communities. Accordingly, the Disciplinary Board recommended that the appointing authority downgrade him to Grade B 5, Step 1.
8 After hearing Mr Daffix, the appointing authority decided, on 18 March 1993, to remove him from his post, without reducing or withdrawing his entitlement to retirement pension, on the following grounds:
"Mr Daffix admitted at the hearing of 10 April 1991 having completed the three order forms, one of which he signed personally per pro his immediate superior without his superior having given any instructions to this effect.
Mr Daffix denied at that same hearing having forged the signature of his immediate superior on the other two order forms.
Mr Daffix used the three order forms in order to obtain payment in cash of the abovementioned sum from Newscom without having any instructions whatsoever in that respect.
Mr Daffix' s statements, on the one hand, concerning the payment to a person outside the institution of the sum he had obtained from Newscom and, on the other, as to the identity of that person, were inconsistent and often contradictory, so that they could not be taken into consideration, in particular in the light of the other statements obtained in the course of the disciplinary procedure.
It may therefore properly be concluded that Mr Daffix kept the sum of BFR 450 000 which he received in cash from Newscom.
That conclusion is, moreover, corroborated by the statement made by Mr Daffix himself at the hearing on 22 July 1991.
Mr Daffix himself admitted before the Disciplinary Board that he had in fact made that statement on 22 July 1991, even though he subsequently refused to sign the record of the hearing.
The conduct with which Mr Daffix is charged constitutes an extremely serious breach of his obligations, which calls into question the very foundations of the relationship of mutual trust which must exist between the institution and each member of its staff and such conduct justifies the imposition of a disciplinary measure more severe than that recommended by the Disciplinary Board".
9 Reference is made to paragraphs 1 to 23 of the contested judgment for a fuller account of the facts of the case.
10 By application lodged at the Registry of the Court of First Instance on 18 January 1994, Mr Daffix brought an action for the annulment of the decision of 18 March 1993 removing him from his post as a disciplinary measure.
11 In its judgment, the Court of First Instance held that a plea that the statement of the reasons for the contested act was inadequate made in the reply was admissible. Referring to the importance which attaches, in general, to the duty of the Community institutions to state reasons for decisions taken in the exercise of their powers, the Court of First Instance considered that it involved a question of public policy which could, as such, in any event, be examined by the Community judicature of its own motion.
12 The Court of First Instance next considered whether the decision at issue was duly reasoned, having observed that, according to consistent case-law, the requirement that a decision adversely affecting a person should state the reasons on which it was based was intended to provide the person concerned with details sufficient to allow him to ascertain whether the decision was well founded and to enable the Court to review its legality.
13 In that respect, the Court of First Instance found that the decision did not specify sufficiently the acts which Mr Daffix was found to have committed which led the appointing authority to impose upon him the penalty of removal from his post, and noted, in particular, that the decision gave no indication as to whether the ground of complaint concerning the falsification of the order forms constituted a proven fact. It added that the appointing authority could not simply rebut Mr Daffix' s statements to the effect that he had passed the sum at issue to a third person, without expressly stating the reasons for which the evidence put forward by him did not, in its opinion, substantiate his statements. The Court of First Instance held it necessary for the acts which Mr Daffix was found to have committed to be specified particularly because the Disciplinary Board had, for its part, considered, on the one hand, that the falsification of the order forms by Mr Daffix had not been proven and, on the other, that it was unable to rule out the possibility that Mr Daffix had paid the sum in question to Régine Lombaerts.
14 Moreover, the Court of First Instance observed that the decision did not contain any ground which sufficiently specified the reasons for which the appointing authority adopted a more severe penalty than that proposed by the Disciplinary Board.
15 The Court of First Instance therefore found that the grounds given for the contested decision did not enable it to carry out a proper review of the legality of that decision and, in order to ensure full compliance with the principle that the rights of the defence must be protected in disciplinary proceedings, precluded any possibility for the appointing authority to regularize the decision during the course of those proceedings.
16 Accordingly, the Court of First Instance annulled the contested decision on the ground that the statement of reasons was inadequate.
17 As regards the present application for suspension of the operation of the judgment, it should be pointed out that, according to Article 53 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes, an appeal against a judgment of the Court of First Instance does not have suspensory effect. However, under Articles 185 and 186 of the EC Treaty and the corresponding provisions of the ECSC and EAEC Treaties, the Court of Justice may, if it considers that circumstances so require, order the suspension of the operation of the contested judgment.
18 Under Article 83(2) of the Rules of Procedure, a decision ordering suspension, pursuant to the aforementioned provisions, is subject to the existence of circumstances giving rise to urgency and pleas of fact and law establishing a prima facie case for the grant of suspension.
19 The Court has consistently held that urgency must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim protection.
20 As regards the condition relating to urgency, the Commission simply alleges that "the measure applied for is urgent because of the serious disturbance which would arise from the reinstatement of Mr Daffix and the serious risks which the institution would run if it reinstated an official whose integrity is at present the subject of discussion and who is the subject of serious and convergent suspicions which have been confirmed by an admission on the part of the official". No argument is put forward in support of those statements.
21 It must therefore be held that the application for interim measures does not contain any argument to substantiate the risk of serious and irreparable damage which would be suffered by the Commission during the proceedings before the Court if Mr Daffix were reinstated in the Commission' s service.
22 Accordingly, the condition with respect to urgency laid down by Article 83(2) of the Rules of Procedure has not been satisfied. There is therefore no need to consider whether the pleas of fact and law put forward by the Commission may prima facie justify the grant of the suspension requested.
23 It follows that the application for interim measures must be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
1. The application for interim measures is dismissed;
2. The costs are reserved.
Luxembourg, 6 July 1995.
