Case T‑22/20

IB

v

European Union Intellectual Property Office

Judgment of the General Court (First Chamber), 13 October 2021

(Civil service – Officials – Disciplinary proceedings – Suspension of the invalidity procedure during the disciplinary proceedings – Removal from post – Invalidity procedure devoid of purpose following the official’s removal from his post – Action for annulment – Act adversely affecting an official – Admissibility – Principle of sound administration – Duty to have regard for the welfare of officials – Manifest error of assessment)

1. Actions brought by officials – Act adversely affecting an official – Definition – Acts producing binding legal effects – Definitive position regarding the outcome of an invalidity procedure – Inclusion

   (Staff Regulations, Arts 90 and 91)

   (see paragraphs 41-44, 48)

2. Officials – Duty of the administration to have regard for the welfare of officials – Scope – Obligation enhanced if the official’s health is affected – Limits – Imposition of a disciplinary penalty for events which cannot be attributed mainly to his or her state of health – Permissibility

   (Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 24)

   (see paragraphs 66-68, 73)

3. Officials – Social security – Insurance against the risk of accident and of occupational disease – Determination of the occupational origin of the disease – Procedure – Suspension, then discontinuance, of the procedure following the removal of the person concerned from their post – Not permissible – Obligation to pursue the procedure until its conclusion

   (Staff Regulations, Art. 59(4) and Annex IX, Art. 9(1)(h))

   (see paragraphs 69-76)

4. Officials – Disciplinary regime – Disciplinary proceedings – Submission to the Disciplinary Board of a report from the Appointing Authority – Subject matter

   (Staff Regulations, Annex IX, Art. 12(1))

   (see paragraph 103)

5. Officials – Disciplinary regime – Penalty – Good faith of the person concerned – Circumstance which does not preclude a disciplinary penalty

   (see paragraph 134)

6. Officials – Invalidity – Invalidity Committee – Composition – Doctor appointed by the official – Possibility of the official giving instructions to the doctor regarding the examination of the case – Excluded

   (Staff Regulations, Annex II, Art. 7)

   (see paragraphs 135, 136, 140)

7. Officials – Disciplinary regime – Penalty – Removal from post without loss of pension rights – Position on the scale of penalties

   (Staff Regulations, Annex IX, Art. 9(1)(h))

   (see paragraph 160)

Résumé

The applicant, IB, is a former official of the European Union Intellectual Property Office (EUIPO). In 2014, his medical situation was referred to the Invalidity Committee. It is apparent from that committee’s opinion that the applicant suffers from permanent invalidity, which it regarded as total and which prevented the applicant from carrying out his duties, and that his illness was a direct result of an accident at work which he had previously suffered.

As the Invalidity Committee’s opinion did not contain any statement of reasons enabling it to verify the lawfulness of the findings set out, EUIPO requested the European Anti-Fraud Office (OLAF) to open an investigation in order to understand the steps and actions undertaken by the Invalidity Committee in order to conclude that the applicant suffered from invalidity. During that investigation, EUIPO suspended the invalidity procedure.

In its report, OLAF concluded, inter alia, that the applicant had infringed his duty to act in good faith towards his institution because he tried to influence the doctors on the Invalidity Committee in his favour.

Following that report, EUIPO opened disciplinary proceedings against the applicant at the end of which it took a decision to impose the penalty of removing him from his post, without reduction of his pension rights (‘the contested decision'). In addition, EUIPO stated that the invalidity procedure had become devoid of purpose and was therefore closed.

The applicant brought an action before the General Court, which annuls the contested decision in so far as it definitively closes the invalidity procedure and rules on the question of whether the disciplinary penalty of removal from post, provided for in Article 9(1)(h) of Annex IX to the Staff Regulations of the European Union (‘the Staff Regulations'), can render devoid of purpose an invalidity procedure initiated when the official was still in the service of the institution.

Findings of the Court

The Court establishes, first of all, that a statement by the administration that a decision to remove an official from his or post renders the invalidity procedure devoid of purpose constitutes a definitive position regarding its outcome. Therefore, that implicit but unequivocal position on the invalidity procedure constitutes an act adversely affecting an official which produces legal effects that are binding on, and capable of affecting, directly and immediately, the applicant’s interests, by bringing about a distinct change in his or her legal position. Since, in the present case, the contested decision was in fact the subject of a prior complaint relating to those two aspects, namely the disciplinary proceedings and the invalidity procedure, the Court declares the applicant’s action for annulment admissible in so far as it concerns the definitive closure of the invalidity procedure.

Next, as regards the duty to have regard for the welfare of officials, the Court points out that the administration’s obligations arising from that duty are substantially enhanced where what is at issue is the situation of an official where it is established that his or her physical or mental health is, or may be, affected. In such circumstances, the administration must consider his or her requests with a particularly open mind. However, although it is conceivable that the duty to have regard for the welfare of officials may possibly, in some circumstances, lead the administration to reduce, or even remove, the penalty envisaged, consideration of the official’s interests, including his or her state of health, cannot, on the other hand, go as far as depriving the administration of the possibility of imposing a penalty, even the major penalty of removal from post, in a case in which the facts are exceptionally serious and cannot be attributed solely, or even principally, to the state of health of the official concerned.

In addition, the Court points out that there is no provision in the Staff Regulations stipulating that, where an invalidity procedure, initiated when the official was still in the service, has been suspended by the institution, that procedure cannot continue once the person concerned has left the service following a decision to remove him or her from their post. Accordingly, in the present case, the administration was not entitled to claim that the invalidity procedure, initiated when the official was in service, could not be continued owing to the fact that he has now been removed from his post. On the contrary, in order to comply with the obligations arising from the duty to have regard for the welfare of officials and from the principle of sound administration, EUIPO should have taken into consideration, during the invalidity procedure, the existence of disciplinary proceedings the outcome of which could possibly lead to the removal of the applicant from his post and, taking into account the applicant’s interests, should either have closed the invalidity procedure before adopting the decision to remove him from his post, or allowed it to be continued subsequently.

Finally, the Court rejects EUIPO’s argument that it was for the applicant to request the administration, within a reasonable period, to resume the invalidity procedure.

First, such an initiative should come from the institution, not from the applicant. Second, it is apparent from the general scheme of Article 59(4) of the Staff Regulations that, where it is the administration which initiates the invalidity procedure, by referring to the Invalidity Committee the case of any official whose sick leave totals more than 12 months in any period of three years, it is a fortiori for the administration to resume a suspended procedure and to close it.