JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

30 May 2002

Case T-197/00

Hubert Onidi

v

Commission of the European Communities

‛Officials — Disciplinary measures — Removal from post with reduction of pension entitlement — Activities falling within the realm of corruption — Right to a fair hearing — Principle of proportionality’

Full text in French   II-325

Application for:

annulment of the Commission's decision of 29 July 1999 imposing on the applicant the penalty of removal from post with a one-third reduction in his retirement pension entitlement, and of the Commission's letter of 27 July 1999 rejecting the applicant's request for the reopening of the disciplinary proceedings.

Held:

The action is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials — Actions — Prior administrative complaint — Time-limit for lodging a complaint — Calculation

   (Staff Regulations, Art. 90(2); Council Regulation No 1182/71, Art. 3(4))

2. Officials — Rights and obligations — Duty of loyalty — Concept — Scope

   (Staff Regulations, Art. 21)

3. Officials — Disciplinary measures — Disciplinary proceedings — Concurrent disciplinary and criminal proceedings — Official's obligation to provide the administration with sufficient information to enable it to compare the matters covered by the disciplinary proceedings and those covered by the criminal proceedings

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

4. Officials — Disciplinary measures — Initiation of disciplinary proceedings — Limitation period — None — Referral to the Disciplinary Board by the appointing authority — Time-limit — None — Obligation on the administration to act within a reasonable period

   (Staff Regulations, Annex IX)

5. Officials — Disciplinary measures — Disciplinary proceedings — Delivery of the opinion of the Disciplinary Board — Time-limits — Failure to observe — Time-limits not mandatory

   (Staff Regulations, Annex IX, Art. 7, first para.)

6. Officials — Disciplinary measures — Measure — Discretion of the appointing authority — Judicial review — Scope — Limits

   (Staff Regulations, Arts 86 to 89)

7. Officials — Decision adversely affecting an official — Disciplinary measure — Obligation to state grounds — Scope

   (Staff Regulations, Art. 25)

1.  As the Staff Regulations are an act of the Council, and in the absence of any specific rules relating to the time-limits referred to in Article 90, the rules applicable to the time-limit laid down by Article 90(2), which provides that the complaint must be lodged within three months, are contained in Article 3(4) of Regulation No 1182/71 determining the rules applicable to periods, dates and time-limits.

   (see paras 46-48)

   See: T-247/97 Lonuzzo-Murgantev Parliament [1998] ECRSC I-A-119 and II-317, para. 38

2.  Article 21 of the Staff Regulations establishes, over and above the particular obligations arising therefrom in connection with the performance of specific tasks entrusted to an official, an official's general duty of loyalty, by virtue of which he must abstain, in general, from any act which may reflect on the position of the institution and its authorities and on the respect due to them. Activities falling within the realm of corruption, complained of in a disciplinary decision, unquestionably constitute a failure to comply with that general duty of loyalty.

   (see para. 73)

   See: T-183/96 E v ESC [1998] ECRSC I-A-67 and II-159, para. 40

3.  It follows from the scheme of the fifth paragraph of Article 88 of the Staff Regulations that it is for the official concerned to provide the appointing authority with sufficient information to enable it to determine whether the matters of which he is accused in disciplinary proceedings are at the same time the subject of criminal proceedings against him. In order to meet that obligation, the official concerned must, as a rule, show that criminal proceedings were initiated against him while he was subject to disciplinary proceedings. It is only where such criminal proceedings have been initiated that the matters to which they relate can be identified and compared with the matters in respect of which the disciplinary proceedings were instituted, so that it can be determined whether they are the same.

   (see para. 81)

   See: T-74/96 Tzoanos v Commission [1998] ECRSC I-A-129 and II-343, para. 35, confirmed on appeal in C-191/98 P Tzoanos v Commission [1999] ECR I-8223

4.  The Staff Regulations do not provide for any limitation period for the initiation of disciplinary proceedings against an official accused of having failed to fulfil one of his obligations under those regulations. In any event, such a limitation period should have been fixed in advance by the Community legislature in order to fulfil its function of ensuring legal certainty. Nor do the Staff Regulations impose any time-limits for referral to the Disciplinary Board by the appointing authority. Nevertheless, the disciplinary authorities are under an obligation to conduct disciplinary proceedings promptly and to ensure that each step in those proceedings is taken within a reasonable period following the previous step.

   (see paras 88, 91)

   See: T-26/89 de Compte v Parliament [1991] ECR II-781, para. 68; T-549/93 D v Commission [1995] ECRSC I-A-13 and II-43, para. 25; T-24/98 and T-241/99 E v Commission [2001] ECRSC I-A-149 and II-681, para. 5

5.  The time-limits laid down in the first paragraph of Article 7 of Annex IX to the Staff Regulations are not mandatory, but constitute rules of sound administration, failure to comply with which may render the institution concerned liable for any harm caused to those concerned but does not in itself affect the validity of a disciplinary measure imposed after they have expired. Although it is true that exceeding those time-limits may entail the nullity of a measure adopted after their expiry, any exceeding of a time-limit cannot be penalised by automatic annulment. It is only in specific cases, where particular conditions are satisfied, that the validity of a disciplinary measure imposed following the expiry of a time-limit can be affected.

   (see para. 96)

   See : 13/69 Van Eick v Commission [ 1970] ECR 3, paras 3 to 7 ; 228/83 F. v Commission [1985] ECR 275, para. 30; 175/86 and 209/86 M. v Council [1988] ECR 1891, para. 16; T-242/97 Z v Parliament [1999] ECRSC I-A-77 and II-401, paras 40 and 41, confirmed on appeal in C 270/99 P Z v Parliament [2001] ECR I-9197

6.  The choice of the appropriate disciplinary measure is at the discretion of the appointing authority, once the facts alleged in support of the charge against the official have been established. The Community judicature cannot find fault with that choice unless the measure imposed is disproportionate to the facts found against the official. The determination of the measure to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances in each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures mentioned therein and the various kinds of breach of duty by officials and do not specify the extent to which the existence of aggravating or mitigating circumstances is to affect the choice of disciplinary measure. The review by the Community judicature is therefore limited to considering whether the weight given to aggravating or mitigating circumstances by the appointing authority was proportionate, bearing in mind that, when carrying out that review, the Community judicature cannot assume the role assigned to that authority as regards the value judgments made in that regard by the latter.

   (see paras 141-142)

   See: Van Eick v Commission, cited above, paras 24 and 25; 46/72 De Greef v Commission [1973] ECR 543, paras 44 to 46; F. v Commission, cited above, para. 34; 403/85 F. v Commission [1987] ECR 645, para. 26; M. v Council, cited above, para. 9; T-146/94 Williams v Court of Auditors [1996] ECRSC I-A-103 and II-329, paras 106, 107 and 108

7.  The purpose of the obligation under Article 25 of the Staff Regulations is, first, to provide the official concerned with sufficient information to determine whether or not the decision is well founded and, second, to make possible its judicial review. The question whether the statement of the grounds on which the act is based satisfies the requirements of the Staff Regulations must be assessed not only in the light of its wording but also in that of its context and all the relevant legal rules. Although the statement of the grounds for the appointing authority's decision must indicate precisely the allegations against the official and the considerations which led that authority to pronounce the chosen measure, it is not required to discuss all the matters of fact or of law which the official concerned raised during the proceedings.

   (see para. 156)

   See: T-144/96 Y v Parliament [1998] ECRSC I-A-405 and II-1153, para. 22; T-40/95 V v Commission [1998] ECRSC I-A-587 and II-1753, para. 36; T-34/96 and T-163/96 Connolly v Commission [1999] ECRSC I-A-87 and II-463, para. 93