HvJ EG, 11-07-2006, nr. C-432/04

The Commission argues that Article 213(2) EC applies to the breach by Members of that institution of the obligations arising from their office. A Commissioner who does not act in the general interest or who allows himself to be guided by considerations dictated by a personal or private interest, whether it be pecuniary or otherwise, is in breach of those obligations.

As that is the nature of the breach which Mrs Cresson is alleged to have committed, the proper basis of the order and penalty sought, namely that she be deprived in whole or in part of her right to a pension or other benefits in its stead, is Article 213(2) EC.

Mrs Cresson maintains that that provision cannot constitute the legal basis of the proceedings before the Court.

In the first place, Article 216 EC provides that a breach by a Member of the Commission of the obligations referred to in the first and second subparagraphs of Article 213(2) EC which occurs during his term of office can, save as regards the acceptance of outside activities, be punished only by compulsory retirement.

Inasmuch as the Commission alleges that such a breach arose in Mrs Cresson's case, it has no entitlement to bring proceedings seeking an order to deprive her of her right to a pension or other benefits in its stead. Neither Article 213(2) EC, nor any other provision of Community law, provides for a penalty of that kind.

In the second place, the third subparagraph of Article 213(2) EC applies where a Member of the Commission has acted in breach of his obligations of integrity and discretion by agreeing to undertake certain outside activities, either during his term of office or after he has ceased to carry out his duties. In such a case, the penalty laid down is either, where the activity is carried out during the term of office of the Member of the Commission, compulsory retirement in accordance with Article 216 EC, or, where the activity is undertaken after the expiry of his term of office, deprivation of his right to a pension or other benefits in its stead.

As Mrs Cresson is not alleged to have acted in breach of the prohibition on undertaking outside activities, the provisions of the third subparagraph of Article 213(2) EC do not apply to her.

In order to determine whether the Commission was correct to base its application on Article 213(2) EC, it is necessary to consider the wording of that provision.

Article 213(2) contains three subparagraphs, which set out the principal obligations and prohibitions to which the Members of the Commission are subject.

The first subparagraph requires Members, in the general interest of the Community, to be completely independent in the performance of their duties.

The second subparagraph defines that obligation of independence, by providing that it is to apply to a Member's relationship with any government and any other body.

The third subparagraph starts by prohibiting Members of the Commission from engaging in any other occupation during their term of office.

That subparagraph goes on to specify, in general terms, the manner in which the Members of the Commission are to carry out their duties. Thus, they must respect the obligations arising from their office as a Member of the Commission. Those obligations include, in particular, the duties of integrity and discretion as regards the acceptance, following their term of office, of certain appointments or benefits. As that type of duty is mentioned only by way of example, the obligations referred to in that subparagraph cannot, contrary to what Mrs Cresson maintains, be limited to a prohibition on engaging in additional activities during the term of office of the Member of the Commission and to the duties of integrity and discretion when an appointment is accepted on expiry of that term.

As there is nothing in the third subparagraph which restricts the concept of ‘obligations arising from [a Commissioner's office]’, that expression falls to be broadly construed. Having regard to the importance of the responsibilities assigned to them, it is important, as the Advocate General stated in point 74 of his Opinion, that the Members of the Commission observe the highest standards of conduct. That concept therefore falls to be understood as extending, not only to the obligations of integrity and discretion expressly referred to in the third subparagraph of Article 213(2) EC, but also to all of the duties which arise from the office of Member of the Commission, which include the obligation laid down in the first subparagraph of Article 213(2) EC to be completely independent and to act in the general interest of the Community.

It is therefore the duty of Members of the Commission to ensure that the general interest of the Community takes precedence at all times, not only over national interests, but also over personal interests.

While the Members of the Commission are thus under an obligation to conduct themselves in a manner which is beyond reproach, it does not, however, follow that the slightest deviation from those standards falls to be censured under Article 213(2) EC. A breach of a certain degree of gravity is required.

The third subparagraph of Article 213(2) EC permits the Court to impose a penalty where there is a breach of the obligations arising from the office of Member of the Commission, in the form of compulsory retirement or the deprivation of his right to a pension or other benefits in its stead. The penalty of compulsory retirement will apply only where a breach has arisen, and continues, during the term of office of the Member of the Commission in question. By contrast, he may be deprived of the right to a pension or other benefits in its stead whether the breach occurs during or after his term of office. As there is no provision as to the extent of the deprivation of the right to a pension or other benefits in its stead, it is open to the Court to order deprivation in whole or in part thereof, depending on the degree of gravity of the breach.

Accordingly, and contrary to what Mrs Cresson contends, the fact that a term of office of a Member of the Commission has expired and that he can no longer be the subject of compulsory retirement cannot prevent the Member of Commission the being punished in respect of a breach which occurred during his term of office, but is discovered or established once this has expired.

It follows that Article 213(2) EC, which forms the basis of the proceedings before the Court in this case seeking a declaration that Mrs Cresson has acted in breach of her obligations under that provision and an order that she be deprived in whole or part of her right to a pension or other benefits in its stead, constitutes a correct legal basis.

Mrs Cresson argues that procedural rules and various rights, in particular the rights of the defence, have not been complied with. As a result, the lawfulness of both the administrative procedure before the Commission and the proceedings before the Court have been undermined and the Court should declare the action inadmissible.

As regards Mrs Cresson's first plea in defence, based on the alleged lack of competence of the Director-General for Personnel and Administration to instigate administrative investigations on the basis of IDOC reports and to initiate the administrative procedure, it must he held in the first place that, as the Commission rightly argues, the administrative investigations in question were instituted before IDOC was established.

With respect, in the second place, to the initiation of the administrative procedure, this was implemented when the statement of complaints was sent to Mrs Cresson. That statement was decided on, not by the Director-General for Personnel and Administration, but by the Commission itself. It is therefore the latter, and not the Director-General, which was responsible for initiating the administrative procedure.

The first plea in defence is accordingly unfounded.

As regards the initiation of proceedings under Article 213(2) EC, that provision does not specify any time-limit. However, the periods available to the Commission in that context are not unlimited. In the absence of any provisions in that regard, that institution must not indefinitely delay the exercise of its powers, in order to comply with the fundamental requirement of legal certainty (see Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission[2002] ECR I-7869, paragraph 140, and Joined Cases C-346/03 and C-529/03 Atzeni and Others[2006] ECR I-0000, paragraph 61) and in order not make it more difficult for the defendants to refute the Commission's arguments, and not to infringe the rights of the defence (see, to that effect, Case C-96/89 Commission v Netherlands[1991] ECR I-2461, paragraph 16).

In the present case, the conduct of which Mrs Cresson is accused goes back to 1995, as Mr Berthelot was appointed in September and Mr Riedinger was offered the opportunity to enter into contracts during the same year. The first investigation report drawn up in that regard was the work of the Committee of Independent Experts and is dated March 1999. Investigation reports were then lodged by OLAF and IDOC between 1999 and 2002. The Commission waited for the last of those reports to be submitted before initiating a procedure against Mrs Cresson.

Since Article 213(2) EC had never been used to initiate a procedure against a Member of the Commission on the ground of her conduct during her term of office, the Commission was entitled to believe it necessary to display particular vigilance. In such circumstances, the decision to initiate an administrative procedure relating to Mrs Cresson in January 2003 by issuing a statement of complaints and the sending of that statement to her in May that year do not appear unreasonable. Moreover, Mrs Cresson has not put forward any evidence to show that the duration of the procedure before the Commission had an impact on the way in which she organised her defence.

Mrs Cresson criticises the Commission for having allowed the overlapping of a number of functions which are the responsibility of separate authorities, thereby infringing the right to a fair hearing. According to Mrs Cresson, that overlapping of functions by the Commission prevented it from being sufficiently impartial in its role as a disciplinary authority.

This plea must however be rejected, as the Commission has no power to make a finding of a breach of the obligations arising from the office of Member of the Commission. It is clear from Article 213(2) EC that all that the Commission may do is bring proceedings before the Court where it is thought that a Member of the Commission has acted in breach of his obligations. It is for the Court to decide whether a Member of the Commission has acted in breach of the obligations arising from his office and to impose a penalty on him.

The next plea, relating to the pressure applied by the Parliament on the Commission, which prevented the latter from acting impartially, is also without foundation.

Whatever the pressures to which the Commission may have been subject, it is for the Court to give a ruling in the matter on the basis of all the documents in the case which have been lodged before it.

Accordingly, the claim that pressure was put on the Commission does not constitute a relevant argument.

As regards Mrs Cresson's submissions relating to various breaches of procedural rules and an infringement of the right of access to two levels of jurisdiction, these seek to establish the existence of irregularities or procedural deficiencies affecting the rights of the defence in particular, and are liable to call into question the subject-matter of the proceedings before the Court and its consideration of the case.

Mrs Cresson first of all raises infringements of the rules laid down in the decision of 19 February 2002 establishing IDOC. The administrative investigations in question were, according to her, not carried out in compliance with those rules.

However, it must be held that those inquiries began, and were almost fully completed before IDOC was created. As regards Mr Riedinger, the administrative investigations undertaken were completed before that date, because they gave rise to a report which was submitted on 8 August 2001. As regards Mr Berthelot, the investigations were concluded by a report which was submitted three days after the date of IDOC's creation, that is to say 22 February 2002.

Mrs Cresson also challenges the validity of OLAF's investigations, on which DG ADMIN and then IDOC relied when they carried out their own additional administrative investigations.

In that regard, without it being necessary to consider Mrs Cresson's claims relating to formal irregularities in the investigation procedure followed by OLAF, it must be held that DG ADMIN carried out its own investigations and prepared its reports independently and that those reports were adopted by IDOC on its creation. The statement of complaints took those reports as a basis, and not the reports which OLAF may have drawn up.

The question next arises whether, notwithstanding the lack of detailed rules governing the proceedings referred to in Article 213(2) EC, the rights of the defence have been complied with.

Observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. The Court has consistently held that, in order to respect the principle of the right to be heard, the person against whom an administrative procedure has been initiated must be afforded the opportunity, during that procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of Community law (see Case 234/84 Belgium v Commission[1986] ECR 2263, paragraph 27).

It should therefore be determined whether Mrs Cresson was informed in sufficient time of the complaints made against her and whether she had the opportunity of being heard.

The action brought against Mrs Cresson on the basis of Article 213(2) EC was preceded by an administrative procedure initiated by the Commission on the basis of prior administrative investigations.

The documents lodged with the Court show that during the administrative investigations Mrs Cresson was contacted on a number of occasions by the responsible departments and that she submitted her observations by letters of 24 September, 22 October and 17 December 2001.

The administrative procedure was initiated by the sending to Mrs Cresson, on 6 May 2003, of the statement of complaints. Mrs Cresson had access to her file and was invited to submit her observations. She was allowed a period of over four months in which to reply to the statement. Mrs Cresson submitted her observations in writing on 30 September 2003 and orally on 30 June 2004. The Commission decided to bring proceedings before the Court on 19 July 2004.

The conduct of the administrative procedure reveals nothing that might have infringed the rights of the defence.

On the contrary, it appears that, by sending Mrs Cresson a statement of complaints setting out all of the facts complained of and a legal analysis of those facts, by giving her access to her file, by inviting her to submit her observations within a period of at least two months and in allowing her to be heard, the Commission followed a procedure with complies with the rights of the defence.

As regards the proceedings brought before the Court, Mrs Cresson argues that no legal remedy will be available to her in the event of the Court deciding to impose a penalty on her. She contends that such a lack of a legal remedy constitutes an infringement of the fundamental rights of the defence and the right to effective judicial protection. She observes that a European official may, by contrast, challenge a decision of the Appointing Authority before the Court of First Instance and then bring an appeal before the Court of Justice.

Reference should be made in this regard to Article 2(1) of Protocol No 7 to the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which provides that everyone convicted of a criminal offence by a court or tribunal has the right to have his conviction or sentence reviewed by a higher court or tribunal. Even if it be accepted that that provision applies to proceedings based on Article 213(2) EC, it is sufficient to point out that Article 2(2) of that Protocol states that that right may be subject to exceptions in cases, inter alia, where the person concerned was tried in the first instance by the highest court or tribunal.

It follows that the fact that no appeal may be brought against the Court's decision does not constitute in any way a deficiency which contravenes the rights of Members of the Commission to effective judicial protection and does not, in the present case, invalidate the proceedings before the Court.

It follows from the above that all of the pleas raised in Mrs Cresson's defence which relate to procedural matters and to compliance with various rights, in particular the rights of the defence, must be rejected.

Mrs Cresson maintains that, as the Commission claimed damages in the criminal proceedings, the principle according to which disciplinary proceedings must await the outcome of the criminal trial is applicable. It follows that where the conduct complained of in the criminal and disciplinary proceedings is the same, the findings of the criminal court are binding on the disciplinary authorities. That rule can be established from Case T-307/01 François v Commission[2004] ECR II-1669, paragraphs 73 to 75. In the present case, the conduct complained of in both sets of proceedings is the same, that is to say primarily a failure to have regard to the rules governing Mr Berthelot's appointment and the terms under which he worked, to the detriment of the general interest of the Communities.

Mrs Cresson contends that the Chambre du conseil of the Tribunal de première instance de Bruxelles held that there was no ground for referring the case to the trial court, following its adoption of the views of the public prosecutor that either the facts alleged were not proved or Mrs Cresson's involvement in those matters was not established. The decision not to refer the case for trial rendered the Commission's action devoid of purpose and content.

The Commission also considers that the principle according to which disciplinary proceedings must await the outcome of the criminal trial applies in Community law, but it draws different conclusions from it. It means, first, that where disciplinary proceedings are initiated at the same time as criminal proceedings and on the basis of the same facts, the disciplinary proceedings must be suspended pending the result of the criminal proceedings and, secondly, that the disciplinary authority is bound by the findings of fact made by the criminal court. However, in this case, the conduct complained of in the criminal proceedings and that complained of in the disciplinary proceedings is different. The criminal court considered the possibility of guilt on Mrs Cresson's part on the basis, in particular, of fraud and a misuse of funds. The task of the Court is to determine whether Mrs Cresson has acted in breach of the obligations arising from her office by displaying favouritism or gross negligence. Consequently, the Court is not bound by the findings of the criminal court or by its decision not to refer the case for trial.

Disciplinary proceedings involving an official or servant of the Communities, such as those which gave rise to the judgment in François v Commission, and proceedings involving a Member of the Commission are not subject to the same rules. The former are governed by the Staff Regulations of Officials of the European Communities and the latter by a discrete procedure under Article 213(2) EC. Accordingly, solutions applied in the former cannot necessarily be transposed to the latter.

In Mrs Cresson's case, the criminal proceedings resulted in an investigation from 1999 to 2004 of the complaints made against her.

In so far as the findings made in the course of those proceedings relate to facts which are the same as those investigated in the context of the procedure referred to in Article 213(2) EC, and those findings are put to the Court in the documents which are before it, they may be taken into account by it in its examination of the conduct of which Mrs Cresson is accused for the purposes of that article.

However, the Court is not bound by the legal characterisation of the facts made in the context of the criminal proceedings and it is for the Court, exercising its discretion to the full, to investigate whether the conduct complained of in proceedings brought under Article 213(2) EC constitutes a breach of the obligations arising from the office of Member of the Commission.

The decision of the Chambre du conseil of the Tribunal de première instance de Bruxelles that there was no evidence of criminal conduct on Mrs Cresson's part cannot therefore bind the Court.

As regards the only charge initially sustained by the public prosecutor, namely that involving the mission orders relating to fictitious missions drawn up in Mr Berthelot's name, the findings arising from the criminal investigations and adopted by the public prosecutor in his submissions may be taken into account by the Court, but cannot, however, be binding upon it.

With respect to Mr Berthelot's appointment, the findings set out in the public prosecutor's submissions that Mr Berthelot's curriculum vitae was similar to that of other visiting scientists appointed by the Commission and that members of the Commission's staff were regularly seconded to the Cabinets of Members of the institution or added to the staff officially allocated to a Cabinet, are also relevant and may be taken into consideration by the Court.

By contrast, the conclusion which is drawn by the public prosecutor from those points, namely that Mr Berthelot's appointment was lawful, in that it did not infringe any rule laid down by the Commission, constitutes an appraisal of the facts. Such an appraisal is based on a consideration and interpretation of the Community rules, in particular those relating to the appointment of visiting scientists, which are not binding on the Court.

According to the Commission, the files relating to Mr Berthelot and Mr Riedinger show that Mrs Cresson acted in breach of the obligations arising from her office as a Member of the Commission by displaying favouritism or gross negligence.

Mrs Cresson argues that Mr Berthelot was lawfully appointed and emphasises that his appointment was effected by the administration. A Member of the Commission cannot be deemed to have been kept informed of all of the administrative aspects of an appointment procedure. Mr Riedinger's file is, for its part, empty.

The cases involving Mr Berthelot and Mr Riedinger, which are set out in paragraphs 10 to 26 of this judgment, should be considered separately.