Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal framework

Article 1

Members of staff shall conduct themselves in the discharge of their duties and outside working hours in a manner befitting the international character of the Bank and their duties.

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Article 4

Members of staff shall devote their working activities to the service of the Bank. Except with prior permission of the Bank, they shall not:

(a) engage in any professional activity outside the Bank, particularly of a commercial nature, nor hold any post or appointment either permanent, temporary, occasional, paid or unpaid;

(b) act in any advisory capacity, paid or unpaid;

(c) hold a seat on any Board of Directors or any Management Committee.

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Article 5

Members of staff shall declare their family circumstances once yearly, and whenever there in any change in them, together with, where appropriate, mention of their spouse's profession and any post or appointment in which the latter is gainfully employed.

In the event of marriage between two members of staff working in the same division, one of them will be transferred to another division.

Relations between the Bank and the members of its staff shall, in principle, be governed by individual contracts in conjunction with these Staff Regulations. The Staff Regulations shall be an integral part of these contracts.

The following disciplinary measures may, depending upon individual cases, be taken against members of staff who fail to fulfil their obligations to the Bank:

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(3) summary dismissal for grave misconduct, with or without severance grant.

Disputes of any nature between the Bank and individual members of staff shall be brought before the Court of Justice of the European Communities.

The general principles common to the laws of the Member States of the Bank shall apply to individual contracts concluded under these Regulations in conformity with Article 13.

The Court of Justice of the European Communities shall have jurisdiction in any dispute between the Communities and any person to whom these Staff Regulations apply regarding the legality of an act adversely affecting such person within the meaning of Article 90(2). In disputes of a financial character the Court of Justice shall have unlimited jurisdiction.

Facts of the case and procedure before the Court of First Instance

- a fax instructing Crédit Andorrà to transfer the sum of FRF 20 000 to the account of Skit-Ball SARL, bearing the letterhead World Escape - Mon de l'Evasió and stating Yasse Bernard - Administrator under the heading Sender;

- a fax having the same format, sender, date and signature as the one above, sent to an exhibition hall concerning the participation of Mon de l'Evasió in a trade fair;

- a fax of 7 November 1996 concerning the sending of 12 books, headed World Escape - Mon de l'Evasió and stating Yasse Bernard - Mon de l'Evasió SL under the heading Sender; and

- a reference to Crédit Andorrà recommending Mr Hautem and Mr Yasse as customers.

The judgment under appeal

68 As regards [the applicant's] capacity as a founder member of Mon de l'Evasió, holding 16% of the shares, it does not constitute proof that he was engaged in a commercial activity. As the Bank acknowledged at the hearing, being a founder member is not the same as being an administrator and it is thus necessary to ascertain whether the applicant did in fact participate in the company's activities.

69 As regards the reference to his connection with the Bank, it should be pointed out that, contrary to what is stated in the contested decision and argued by the defendant in its pleadings, it has not been established that the applicant appropriated documents belonging to the Bank or took advantage of his connection with the Bank in a manner contrary to the Staff Regulations of the Bank. Admittedly, in his letter sent by fax on 28 October 1996, Mr Ingargiola describes the applicant as the person in charge of the computer section of the Bank. However, Mr Ingargiola himself acknowledged in his statement to Interseco that on the only occasion on which they met the applicant had told him that he was employed as a messenger at the Bank. Mr Ingargiola also stated: Mr Yasse made himself out to be someone important in the finance department, whereas I made an assumption about Mr Hautem's post. That is, his wife had said that her husband did something with computers.

70 As regards the use of the Bank's equipment for commercial purposes, the applicant merely collaborated with Mr Yasse in drafting the four documents found on Mr Yasse's computer. Contrary to what the Bank contends, that participation in such a use by Mr Yasse of his office computer cannot be characterised as systematic use for commercial purposes. Likewise, the mere fact that the applicant participated in creating those documents, even though it may be regarded as assisting in the exercise of a commercial activity, cannot be classified as engaging in a professional activity of a commercial nature within the meaning of Article 4 of the Staff Regulations of the Bank. Last, and contrary to what is stated in the contested decision, the applicant's conduct could not have given the impression that the Bank was involved in his activities. The documents in question were not sent to their recipients by the applicant and none of them bears his signature.

71 As regards the inferences to be drawn from Mr Ingargiola's letter sent by fax on 28 October 1996, it should be observed that the applicant himself did indeed acknowledge that he had participated in the commercial transaction complained of by Mr Ingargiola: however, Mr Ingargiola informed Interseco that Mr Yasse and Mrs Hautem had presented themselves as [the] owners of Mon de l'Evasió, that they had a promotion project for a Skit-Ball stand and that they had bought one. He stated that he had only met the applicant once and that on that occasion the applicant had said that his wife dealt with matters in Mon de l'Evasió with Mr Yasse. Mr Ingargiola also said that he had the impression that the applicant had nothing to do with Mon de l'Evasió. Consequently, the letter from Mr Ingargiola faxed on 28 October 1996 cannot constitute sufficient proof that the applicant had engaged in a professional activity of a commercial nature.

72 As regards Mr Ingargiola's letter of 19 November 1996 withdrawing his complaint, it should be pointed out that, as far as the applicant is concerned, its content is confirmed by, and consistent with, the abovementioned statements of Mr Ingargiola. Nor has the Bank adduced any evidence to the contrary.

73 As regards the letter of 27 September 1996 attributed to the applicant, ... even supposing that it was written and signed by Mrs Hautem, [it] does indeed confirm that the applicant participated in [the] commercial transaction [relating to the Skit-Ball stand]. However, it is not of such a kind as to establish that the applicant engaged in a professional activity of a commercial nature.

74 It should further be pointed out that neither the documents attached to Mr Ingargiola's letter sent by fax on 28 October 1996, namely the letter of 6 September 1996 from Mr Yasse and cheque No 6 555 542, signed by Mr Yasse, nor the documents annexed by the Bank to its rejoinder, namely the faxes of 24 September and 2 October 1996, both signed by Mr Yasse, in any way establish that the applicant was engaged in commercial activities.

75 It follows from all the foregoing that the evidence adduced by the Bank, considered as a whole, shows that the applicant, as he himself has acknowledged, occasionally assisted both his wife and Mr Yasse in the exercise of a commercial activity and that he participated in a commercial transaction - namely, the purchase of a Skit-Ball stand by Mon de l'Evasió. Owing to its occasional nature and its limited scope, however, that collaboration on the applicant's part cannot be classified as engagement in a professional activity of a commercial nature within the meaning of Article 4 of the Staff Regulations of the Bank. Likewise, it has not been proved that the applicant relied on his connection with the Bank, that he involved the Bank or that he personally used the Bank's equipment.

76 It follows that the Bank made a manifest error in assessing the facts. Accordingly, the application must be upheld and the contested decision annulled, without there being any need to consider the complaint relating to the applicant's failure to declare his wife's activity within Mon de l'Evasió or the other pleas put forward in support of the present action for annulment.

77 Since, pursuant to Article 41 of the Staff Regulations of the Bank, the Court has jurisdiction in disputes of any nature between the Bank and individual members of staff, it is necessary to apply, by analogy, the rule laid down in Article 91(1) of the Staff Regulations of Officials of the European Communities that the Court has unlimited jurisdiction in disputes of a financial character. The Bank must therefore be ordered to pay the applicant the arrears of remuneration which he should had received since his dismissal.

1. Annull[ed] the decision of the European Investment Bank of 31 January 1997, whereby the applicant was dismissed without loss of severance grant;

2. Order[ed] the European Investment Bank to pay the applicant the arrears of remuneration which he should have received since his dismissal.

The appeal

- set aside paragraphs 1 and 2 of the operative part of the judgment under appeal, and

- order Mr Hautem to bear his own costs.

- primarily, declare the appeal inadmissible or, in the alternative, declare it unfounded,

- uphold paragraphs 1 and 2 of the operative part of the judgment under appeal, and

- order the Bank to pay the costs of both sets of proceedings.

First plea in law

- it incorrectly held that the acts carried out by Mr Hautem could not be regarded as a form of professional activity of a commercial nature within the meaning of Article 4 of the Staff Regulations of the Bank (first branch);

- it incorrectly held that Mr Hautem had not involved the Bank in the exercise of that activity and that he had not therefore infringed the obligation to conduct himself as required by Article 1 of the Staff Regulations of the Bank (second branch);

- it incorrectly held that Mr Hautem had not made improper use of the Bank's equipment and that he had not therefore infringed the obligation to conduct himself as required by Article 1 of the Staff Regulations of the Bank (third branch);

- it incorrectly refused to attach importance to Mr Hautem's conduct and thus rejected the complaints against him by the Bank (fourth branch), and

- it incorrectly refused to attach importance to Mr Hautem's failure to declare the commercial activity carried out by his wife in the Principality of Andorra, contrary to Article 5 of the Staff Regulations of the Bank (fifth branch).

First branch

Arguments of the parties

Findings of the Court

Admissibility

Substance

Second branch

Arguments of the parties

Findings of the Court

Third branch

Arguments of the parties

Findings of the Court

Fourth branch

Arguments of the parties

Findings of the Court

Fifth branch

Arguments of the parties

Findings of the Court

Second plea in law

Arguments of the parties

Findings of the Court

Admissibility

Substance

Costs