Commissioner Cresson, malfeasance and Case C-432/04

The Court of Justice has found for the first time ever that a member of the European Commission acted improperly during the course of her tenure in its judgment in Case C-432/04 Commission v. Edith Cresson.

The case was brought by the Commission itself on the basis of Article 213 EC and Article 126 EA against Mrs Edith Cresson who was a member of the Commission from January 24th 1995 to September 8th 1999. The Commission alleged that Mrs Cresson had improperly appointed a close acquaintance, Mr Berthelot, as her personal adviser and had sought to offer consultancy contracts to a lawyer friend, Mr Riedinger. The Commission also requested that Mrs Cresson be deprived of her pension rights.

The Court found that Mrs Cresson had indeed acted improperly in the case of Mr Berthelot and that his appointment as a personal adviser was a sham: He had been appointed as a "visitng scientist" by a Commission department for which she was responsible when in fact he was working exclusively for her as an "adviser". In her defense, Mrs Cresson claimed that she personally had not appointed Mr Berthelot but that the Commission itself had. The Court rejected that line of argument stating that the appointment was made at her personal and express request after she had been fully informed that Mr Berthelot could not be officially appointed as an adviser to her (he was past the mandatory retirement age of 65).

The Court however dismissed the action in respect of Mr Riedinger because although contracts had been offered to him, they appeared to be relevant to the work of the Commission.

The Court did not impose any financial penalty on Mrs Cresson and did not deprive her of any pension rights holding that the finding of breach of her duties was punishment enough.

A couple of procedural points are worth mentioning.
First, the initiation of administrative proceedings took place in January 2003 several years after the facts and some time after investigation reports had been filed in 1999 and 2002. The Court found that such a delay was justified and did not vitiate the legal proceedings. It pointed out that Article 213(2) EC contains specifies no time limit and had never been used before to initiate a procedure against a Commissioner on the ground of her conduct in office. As a result, the Commission was entitled to proceed slowly and cautiously. (An old case had been brought many years ago concerning Commissioner Borschette who became physically incapacitated as a result of illness: That case did not involve any sort of malfeasance. Also, more recently, the Council brought proceedings against Mr Bangemann in Case C-290/99 Council v. Bangemann for malfeasance but that case was subsequently dropped.) Moreover, Mrs Cresson had not shown that the lapse of time had affected the way she could defend herself (see Case C-96/89 Commission v. Netherlands).
Second, Mrs Cresson had asked for the oral procedure to be reopened after the Advocate general had delivered his opinion. The Court declined that request because it considered that all Mrs Cresson wanted to do was comment on the opinion and not present a new fact or argue a point which turned out to be decisive but which had not been sufficiently argued before (see Case C-210/03 Swedish Match).

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