JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

14 July 2000

Case T-82/99

Michael Cwik

v

Commission of the European Communities

‛Officials — Permission to publish — Article 17, second paragraph, of the Staff Regulations — Interests of the Communities — Manifest error of assessment’

Full text in French   II-713

Application for:

annulment of the Commission's decision of 10 July 1998 refusing the applicant permission to publish the text of a lecture that he had given on 30 October 1997.

Held:

Commission's decision of 10 July 1998 refusing the applicant permission to publish the text of a lecture that he had given on 30 October 1997 annulled. Commission to pay the costs in their entirety.

Summary

1. Community law — Principles — Fundamental rights — Freedom of expression — Restrictions on the exercise of fundamental rights justified on grounds of general interest — Community official requesting permission to publish

   (Treaty on European Union, Art. F(2) (now, after amendment, Art. 6(2), EU); European Convention on Human Rights, Art. 10; Staff Regulations, Art. 17, second para.)

2. Officials — Rights and obligations — Freedom of expression — Request for permission to publish — Publication liable to prejudice the interests of the Communities — Expression of a point of view different from that of the institution

   (Staff Regulations, Art. 17, second para.)

1.  Freedom of expression, enshrined in Article 10 of the European Convention on Human Rights, is one of the fundamental rights which, as the Court of Justice has consistently held and as is reaffirmed by the preamble to the Single European Act and by Article F(2) of the Treaty on European Union (now, after amendment, Article 6(2) EU), are protected in the Community legal order and apply inter alia to Community officials. However, fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the latter in fact correspond to objectives of general interest and do not constitute, in relation to the objective pursued, a disproportionate and intolerable interference in a democratic society, which infringes upon the very substance of the rights safeguarded.

   Considered in the light of those principles, the second paragraph of Article 17 of the Staff Regulations gives expression to the permanent need to strike a fair balance between ensuring that a fundamental right may be exercised and protecting a legitimate objective of general interest. Hence, that objective may justify restricting the exercise of such a right only if the actual circumstances require it and only in so far as necessary. According to that provision, an official is obliged to request permission to publish an article but the obligation is limited to articles dealing with the work of the Communities and permission may be refused only ‘where the proposed publication is liable to prejudice the interests of the Communities’.

   (see paras 50 to 52)

   See: C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, para. 16; C-404/92 P X v Commission [1994] I-4737, para. 18; T-273/94 N v Commission [1997] ECRSC I-A-97 and II-289, para. 73; T-183/96 E v ESC [ 1998] ECRSC I-A-67 and II-159, para. 41; C-235/92 P Montecatini v Commission [1999] ECR I-4539, para. 137

2.  In a democratic society founded on respect for fundamental rights, the fact that an official publicly expresses points of view different from those of the institution for which he works cannot, in itself, be regarded as liable to prejudice the interests of the Communities for the purposes of the second paragraph of Article 17 of the Staff Regulations. Clearly, the purpose of freedom of expression is precisely to enable expression to be given to opinions which differ from those held at an official level. To accept that freedom of expression could be restricted merely because the opinion at issue differs from the position adopted by the institutions would be to negate the purpose of that fundamental right. Likewise, the second paragraph of Article 17 of the Staff Regulations would be rendered nugatory, since, as is apparent from its wording, it clearly lays down the principle on which permission for publication is granted, specifically providing that such permission is to be refused only where the proposed publication is liable to prejudice the interests of the Communities.

   Consequently, the mere fact that there is a difference of opinion between an official and his institution does not justify refusing a request under the second paragraph of Article 17 of the Staff Regulations for permission to publish, in so far as there is no evidence that making that difference public would be liable to prejudice the interests of the Communities.

   (see paras 57 to 60)