Case T‑766/22

Maria Canel Ferreiro

v

Council of the European Union

Judgment of the General Court (Tenth Chamber, Extended Composition) of 29 May 2024

(Civil service – Officials – Disciplinary proceedings – Disciplinary penalty – Reprimand – Acts contrary to the dignity of the civil service – Articles 12 and 21 of the Staff Regulations – Competence of the author of the act – Obligation to state reasons – Principle of good administration – Impartiality – Article 41 of the Charter of Fundamental Rights)

1. Actions brought by officials – Act adversely affecting an official – Meaning – Preparatory act – Report of an administrative investigation – Not included

   (Staff Regulations, Arts 90 and 91)

   (see paragraphs 22-24)

2. Actions brought by officials – Pleas in law – Plea alleging illegalities vitiating the complaint procedure – Admissibility – Plea well founded – Consequences

   (Staff Regulations, Arts 90 and 91)

   (see paragraphs 30-32)

3. Actions brought by officials – Prior administrative complaint – Decision of the administration – Compliance with the principle of sound administration – Requirement for impartiality – Scope – Adoption of the decision by the author of the contested act – Admissibility

   (Charter of Fundamental Rights of the European Union, Art. 41(1); Staff Regulations, Arts 90 and 91)

   (see paragraphs 54-59)

4. Officials – Decision adversely affecting an official – Disciplinary penalty – Obligation to state reasons – Scope – Insufficient information on the facts complained of – Inadmissibility

   (Art. 296 TFEU; Staff Regulations, Art. 25 and Annex IX, Art. 9)

   (see paragraphs 63-83)

Résumé

Hearing an action brought by an official of the Council of the European Union, the General Court, ruling in extended composition, annuls the Council’s decision imposing on that official the disciplinary penalty of a reprimand.

On this occasion, the Court is ruling, first, on the novel question of whether the decision imposing a disciplinary penalty and the decision rejecting the complaint against that penalty may be taken by one and the same person. Secondly, its judgment aims to resolve the divergence in the case-law concerning the order in which the Court deals with pleas directed, independently, against the decision adopted following a complaint.

In the present case, following an administrative investigation concerning the applicant, the appointing authority found that the applicant had used abusive and aggressive language towards her immediate superior, accusing the latter of harassment, and imposed on her the disciplinary penalty in question. The applicant lodged a complaint against that decision, which was, however, rejected by the appointing authority. Consequently, the applicant brought an action before the Court seeking, inter alia, annulment of the decision imposing the reprimand on her and the decision rejecting the complaint.

Findings of the Court

As a preliminary point, the Court recalls that an applicant must be able to seek a review by the EU Courts of the legality of the decision rejecting his or her complaint, where he or she raises a plea relating specifically to the complaint procedure. If the applicant were entitled to challenge only the original decision, any possibility of a challenge concerning the pre-litigation procedure would be excluded. He or she would thus be deprived of the benefit of a procedure which seeks to permit and encourage an amicable settlement to the dispute which has arisen between the official and the administration and to require the authority having control over that official to reconsider its decision, in compliance with the rules, in the light of any objections which that official may make. In those circumstances, the Court considers that it is appropriate to examine, first of all, the plea alleging illegality in the adoption of the decision rejecting the complaint, before ruling on the pleas directed against the decision which was the subject of the complaint. If the Court annuls the decision rejecting the complaint, it is for the administration to re-examine the complaint while ensuring the proper conduct of the pre-litigation procedure. In such circumstances, the claims directed against the initial decision should be dismissed as inadmissible, because they are premature, since that decision cannot be subject to review by the Court unless it has first been re-examined in the context of a properly conducted pre-litigation procedure.

As regards the person having competence to adopt the decision rejecting the complaint, the Court observes, first, that Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) in no way requires that an authority other than the appointing authority which adopted the act adversely affecting an official should hear and determine the complaint lodged against that act. On the contrary, the Court holds that it is clear that the EU legislature envisaged a situation in which that authority takes a decision adversely affecting the official and then decides on the complaint lodged against it.

Secondly, as regards the actual nature of the complaint procedure, it does not constitute an appeal procedure, but rather is intended to compel the authority having control over the official to reconsider its decision in the light of any objections which that official may make.

Accordingly, in the light of the nature of the complaint procedure, the Court states that it cannot be concluded that there has been an infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union, guaranteeing the right to have one’s affairs handled impartially by the institutions of the European Union, by reason only of the fact that the decision rejecting the complaint was taken, in accordance with the Council’s internal organisational rules, by the same person who had adopted the decision which was the subject of that complaint.

As to the scope of the obligation to state the reasons for a decision adversely affecting an official, the Court adds that it is intended, on the one hand, to provide the persons concerned with sufficient details to enable them to assess whether the decision was well founded and whether it would be expedient to bring legal proceedings before the EU Courts and, on the other hand, to enable the EU Courts to review the legality of that decision. The sufficiency of the statement of reasons must be assessed in the light not just of its wording, but also of the factual and legal context in which the contested act was adopted.

In that regard, the Court notes that, in the present case, the account of the facts alleged by the appointing authority against the applicant simply reproduces in part a paragraph of the conclusions of the investigation report, which is merely a brief summary of the investigators’ reasoning set out in the earlier parts of that report. Cited out of context, that passage is not capable of precisely identifying the allegations made against the applicant.

Nor did the appointing authority provide the applicant with any explanations concerning the allegations against her in the decision rejecting the complaint, despite the applicant’s arguments alleging infringement of the obligation to state reasons, which she had raised in support of her complaint. That decision itself merely reproduces in part the wording of the same paragraph of the conclusions of the investigation report.

However, notwithstanding the various comments concerning the applicant’s inappropriate communication throughout her collaboration with her immediate superior, the Court states that it is not objectively apparent from the investigation report which element formed the basis of the investigators’ conclusions concerning the infringement of the Staff Regulations. Consequently, even though the applicant was not entirely unaware of the context in which the contested decision was adopted, she rightly submits that the contested decision, read in conjunction with that investigation report, does not contain an adequate statement of reasons. The absence of information concerning the facts alleged against the applicant prevents the Court from reviewing the merits of the contested decision, which justifies its annulment.