JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

10 June 2004

Case T-307/01

Jean-Paul François

v

Commission of the European Communities

(Officials – Disciplinary measures – Relegation in step – Contract for guarding the Commission buildings – Reasonable period – Criminal proceedings – Action for compensation)

Full text in French II - 0000

Application:         first, for annulment of the Commission’s decision of 5 April 2001 imposing on the applicant the disciplinary measure of relegation in step and, second, for damages in compensation for the material and non-material harm which the applicant considers that he suffered.

Held:         The Commission’s decision of 5 April 2001 imposing on the applicant the disciplinary measure of relegation in step is annulled. The Commission is ordered to pay the applicant damages of EUR 8  000 in respect of the non-material damage suffered by him. The Commission is ordered to pay all the costs.

Summary

1.     Officials – Disciplinary measures – Disciplinary proceedings – Time-limits prescribed by Article 7 of Annex IX – Administration’s obligation to act within a reasonable time – Breach – Consequences

(Staff Regulations, Annex IX, Art. 7)

2.     Officials – Disciplinary measures – Initiation of disciplinary proceedings – Limitation period – None – Administration’s obligation to act within a reasonable time – Breach – Consequences

(Staff Regulations, Arts 86 to 89; Annex IX)

3.     Officials – Disciplinary measures – Disciplinary proceedings – Initiation of disciplinary and criminal proceedings at the same time and in relation to the same matters – Administration’s obligation not to give a final decision on the official’s position until the criminal court has reached its final verdict

(Staff Regulations, Art. 88, fifth para.; Annex IX, Art. 7, second para.)

4.     Officials – Disciplinary measures – Disciplinary proceedings – Initiation of disciplinary and criminal proceedings at the same time and in relation to the same matters – Purpose of suspending disciplinary proceedings – Obligation to respect the findings of the criminal court – Possibility of characterising them in the light of the concept of a disciplinary offence

(Staff Regulations, Art. 88, fifth para.)

5.     Officials – Rights and obligations – Unlawful use of a guarding contract to engage a colleague assigned to administrative tasks – Widespread practice which is not inherently fraudulent – No notification or distancing – Breach of obligations under the Staff Regulations – None in the case of a category B official

(Staff Regulations, Art. 11)

6.     Officials – Actions – Action for damages – Annulment of the contested measure not providing adequate compensation for non-material damage – Non-material harm caused by improper disciplinary proceedings

(Staff Regulations, Art. 91)

1.     While it is true that the strict time-limits set in Article 7 of Annex IX to the Staff Regulations for the conduct of disciplinary proceedings are not mandatory, they do constitute rules of sound administration the purpose of which is to avoid, in the interests both of the administration and of officials, unjustified delay in adopting the decision terminating the disciplinary proceedings. Disciplinary authorities are therefore under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable period following the previous step. Failure to observe such a period, which can be assessed only in the light of the specific circumstances of the case, may result in the measure adopted after the expiry of the period being declared void.

(see para. 47)

See: 13/69 Van Eick v Commission [1970] ECR 3; 228/83 F v Commission [1985] ECR 275; 175/86 and 209/86 M v Council [1988] ECR 1891; T-26/89 de Compte v Parliament [1991] ECR II-781, para. 88; T-549/93 D v Commission [1995] ECR-SC I-A-13 and II-43, para. 25; T-197/00 Onidi v Commission [2002] ECR-SC I-A-69 and II-325, para. 91

2.     Even in the absence of a limitation period provided for in Articles 86 to 89 of the Staff Regulations and in Annex IX thereto, disciplinary authorities are, from the time when the administration becomes aware of facts and conduct which are liable to constitute breaches of an official’s obligations under the Staff Regulations, under an obligation to ensure that proceedings intended to result in a disciplinary measure are initiated within a reasonable period. Failure to observe such a period, which depends on the specific circumstances of the case, may render any disciplinary proceedings initiated with undue delay by the administration unlawful and, accordingly, may result in the annulment of the disciplinary measure adopted at the conclusion of those proceedings.

The principle of legal certainty is undermined if the administration delays unduly the initiation of disciplinary proceedings. Both the assessment by the administration of the facts and conduct liable to constitute a disciplinary offence and the exercise by the official of his rights as the defendant may prove particularly difficult if a substantial period of time has elapsed between the time when those facts and that conduct took place and the start of the disciplinary inquiry.

(see paras 48-49)

See: C-270/99 P Z v Parliament [2001] ECR I-9197, paras 43 and 44; T-78/02 Voigt v ECB [2003] ECR-SC I-A-165 and II-839, para. 64; de Compte v Parliament, cited above, para. 88; D v Commission, cited above, para. 25

3.     The fifth paragraph of Article 88 of the Staff Regulations precludes the appointing authority from giving a final decision on the disciplinary aspect of the case involving the official concerned by adjudicating on facts which are at the same time in issue in criminal proceedings, so long as the decision given by the criminal court seised has not become final. That article does not, therefore, confer any discretion on the appointing authority, unlike the second paragraph of Article 7 of Annex IX to the Staff Regulations, under which, in the event of criminal proceedings, the Disciplinary Board may decide not to deliver its opinion until after the court has given its decision.

(see para. 59)

See: T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129 and II-343, paras 32 and 33; T-166/02 Pessoa e Costa v Commission [2003] ECR-SC I-A-89 and II-471, para. 45

4.     The fifth paragraph of Article 88 of the Staff Regulations has a twofold rationale. Firstly, that article is intended to ensure that the position of the official in question is not affected in any criminal proceedings instituted against him on the basis of facts which are also the subject-matter of disciplinary proceedings within his institution. Secondly, suspension of the disciplinary proceedings pending the conclusion of the criminal proceedings makes it possible to take into consideration, in those disciplinary proceedings, the findings of fact made by the criminal court when its verdict has become final. The fifth paragraph of Article 88 of the Staff Regulations establishes the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial, a rule which is justified, in particular, by the fact that the national criminal courts have greater investigative powers than the appointing authority. Consequently, where the same facts may constitute both a criminal offence and a breach of the official’s obligations under the Staff Regulations, the administration is bound by the findings of fact made by the criminal court in the criminal proceedings. Once that court has established the existence of the facts in the case, the administration can then undertake their legal characterisation in the light of the concept of a disciplinary offence, ascertaining, in particular, whether they constitute breaches of obligations under the Staff Regulations.

(see para. 75)

See: T-23/00 A v Commission [2000] ECR-SC I-A-263 and II-1211, paras 35 and 37

5.     It is unreasonable to accuse an official in category B, whose duties, according to Article 5(1) of the Staff Regulations, are executive duties, and not administrative duties which correspond to those assigned to officials in category A, of failing to comply with his obligations under the Staff Regulations merely by virtue of not having reported that a colleague carrying out purely administrative tasks was being paid by the company awarded the guarding contract, or of not having distanced himself from the practice in the appropriate way, when that practice had been organised by the various Commission departments, was widespread, had been instigated by the hierarchy of the institution and, although irregular, was not inherently fraudulent.

(see paras 92-93)

6.     Save in special circumstances, the annulment of the decision contested by an official is in itself appropriate and, in principle, adequate compensation for the non-material damage suffered by the applicant.

However, where, in the course of disciplinary proceedings, the various administrative decisions and opinions presented made accusations against the applicant which proved to be incorrect, the institution initiated the disciplinary proceedings in breach of the principle that a reasonable period should be observed, and the disciplinary proceedings, furthermore, continued for a period of almost three years until the measure was adopted and were not suspended pending the conclusion of the criminal proceedings against the applicant, that set of circumstances must be regarded as having caused injury to the applicant’s reputation, disrupted his private life and placed him in a state of prolonged uncertainty, causing non-material damage which is not adequately compensated for by the annulment of the contested decision, since that annulment cannot nullify that damage retroactively.

(see para. 110)

See: T-165/89 Plug v Commission [1992] ECR II-367, para. 118; T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897, para. 82; T-89/01 Willeme v Commission [2002] ECR-SC I-A-153 and II-803, para. 97