61993B0021

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1. Applications for interim measures ° Suspension of operation ° Conditions for granting ° Prima facie case ° Disciplinary measure imposed by the appointing authority of greater severity than that proposed by the disciplinary board although based on the same assessment of the facts

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

2. Applications for interim measures ° Suspension of operation ° Conditions for granting ° Serious and irreparable damage ° Pecuniary damage ° Non-financial damage ° Balancing of all the interests involved ° Disciplinary measure imposed long after the alleged misconduct

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

1. For the purposes of suspending the operation of a decision imposing a penalty on an official as a disciplinary measure, the requirement of a prima facie case is satisfied where the appointing authority, without contradicting the assessment of the facts contained in the reasoned opinion of the disciplinary board, has imposed a more severe penalty than that proposed by that board and where ° although without prejudice to the question whether or not it is legal ° the characterization of the facts by the appointing authority in the contested decision at first sight causes the Court hearing the application for interim measures to entertain serious doubts.

2. As regards the precondition for suspension of the operation of a decision to be granted that there must be a risk that the person seeking suspension might suffer serious and irreparable damage, purely pecuniary damage cannot, in principle, be regarded as irreparable, or even difficult to repair, in so far as it may be the subject of financial compensation at a later stage. However, the Court hearing an application for interim measures must, having regard to the institution' s interest in enforcing the contested decision, examine the circumstances of each case and consider, on that basis, whether the decision is causing the applicant damage which could not be made good even if the decision were to be annulled in the main proceedings.

A decrease in an official' s monthly income of about 12%, resulting from his downgrading, cannot be regarded as constituting serious and irreparable damage since, if the application in the main proceedings were to be upheld, the applicant would recover the difference in salary resulting from his downgrading.

On the other hand, as regards the damage resulting both from the undermining of the applicant' s professional integrity and reputation and from the aggravation of his psychological state, it must be conceded that, in view of the fact that it was more than five years after misconduct which it describes as extremely serious and of which it had notice more than four years before commencement of the disciplinary proceedings that the appointing authority imposed a penalty on him, without being bound by any limitation period set for that purpose, the interests of the official would appear to outweigh those of the institution which imposed the penalty.

In Case T-21/93 R,

Carlos Afonso Camarinha Lobão Peixoto, an official of the Commission of the European Communities, represented by Américo Thomati, of the Lisbon Bar,

applicant,

v

Commission of the European Communities, represented by Ana Maria Alves Vieira, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for suspension of the operation of the decision of 27 November 1992 by which the Commission downgraded the applicant as a disciplinary measure, as provided for in Article 86(2) of the Staff Regulations of Officials of the European Communities,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts and procedure

1 By application lodged at the Registry of the Court of First Instance on 1 March 1993, the applicant brought an action under Article 91(4) of the Staff Regulations for annulment of the decision of 27 November 1992 by which the Commission downgraded him as a disciplinary measure, as provided for in Article 86(2) of the Staff Regulations of Officials of the European Communities,

2 By a separate document lodged at the Registry of the Court of First Instance on the same date, the applicant also sought, by way of interim measure pursuant to Article 91(4) of the Staff Regulations, suspension of the operation of the contested decision.

3 The Commission submitted its observations on 12 March 1993. The parties presented oral argument on 18 March 1993.

4 By order of 19 March 1993 the President of the Court of First Instance instructed the Commission to forward to the Court of First Instance a copy of the file on the disciplinary proceedings relating to the applicant.

5 Before the merits of the present application for interim measures are considered, it is appropriate to set out briefly the background to the dispute, as described in the parties' written and oral submissions and in the file on the disciplinary proceedings.

6 At the end of October 1987 the applicant, then a probationary official of the Commission, applied for and was allowed several days' leave to go to Portugal to deal with an urgent personal problem there. That problem was connected with his alleged participation in a drug-trafficking offence.

7 On his arrival in Lisbon on 2 November 1987 the applicant consulted a doctor. The doctor issued a certificate to the effect that he was unfit for work for an indefinite period. That certificate was sent to the Commission by the applicant' s wife and was received by the Commission on 12 November 1987.

8 On the afternoon of the same day, 2 November 1987, the applicant presented himself to the police authorities and was placed under arrest by virtue of a warrant issued that same day by the Judge of the Tribunal de Instrução Criminal, Lisbon. The following morning, the applicant was brought before that court, which ordered that he be remanded in custody as a preventive measure, without disclosure of that fact, on the ground that sufficient evidence was available for him to be charged with participation in the criminal offence of drug trafficking. He was kept in undisclosed custody for about three weeks. The file was forwarded to the police, with the following endorsement: "... the investigation branch should undertake urgent inquiries in order to establish whether the accused is involved in the events of this case or in events leading thereto; a report should be sent within the abovementioned period (eight days) regarding the circumstances of the accused' s undisclosed detention since he is employed by an EEC institution and the prolongation of his present situation, if not absolutely necessary, (might) cause irreparable damage".

9 In view of the applicant' s continuing absence, on 18 December 1987 the Commission sent a telegram to his home in Sacavém asking him to attend a second medical examination in Lisbon. The applicant, still in custody, did not present himself for the examination.

10 On 12 January 1988 the lawyer acting for the applicant asked the Tribunal de Instrução Criminal to inform the Commission that his client was being detained on remand, on a precautionary basis, and notice to that effect was given to the Commission press and information office in Lisbon on 22 January 1988.

11 By decision of the appointing authority of 24 February 1988, the applicant was suspended from duty under Article 88 of the Staff Regulations. On 26 March 1988, the Tribunal de Instrução Criminal, considering that preventive custody was unjustified, ordered the applicant' s immediate release, subject to the obligation to present himself on the first working day of the month, over a period of six months, at the Portuguese embassy or diplomatic representative office at his place of employment. By decision of 8 April 1988, the appointing authority ended the applicant' s suspension from duty with effect from 5 April 1988.

12 By judgment of the Fourth Chamber of the Tribunal de Instrução Criminal, Lisbon, of 14 May 1990, the applicant was fined ESC 100 000 and sentenced to four months' imprisonment for having participated, by "unwitting negligence", in a drug-trafficking offence. Having already served the term of imprisonment imposed on him, the applicant was released.

13 On 30 March 1992, the appointing authority decided to initiate disciplinary proceedings against the applicant for making false statements by explaining his absence from his duties on grounds of health, by means of a medical certificate, whereas he was in fact being detained at the behest of the Tribunal de Instrução Criminal, Lisbon.

14 On 2 October 1992, the disciplinary board issued a reasoned opinion to the effect that the applicant should be reprimanded pursuant to Article 86(2)(b) of the Staff Regulations. The disciplinary board considered that it had not been established that the medical certificate was sent to the Commission after the applicant was remanded in custody and that it was not therefore possible to accuse him of making false statements. However, by failing to discharge, between 18 December 1987 and 22 January 1988, his obligation to inform the institution of the reasons for his absence from his duties, the applicant had breached his obligations under the Staff Regulations, in particular those imposed by the second subparagraph of Article 59(1) of the Staff Regulations.

15 By decision of 27 November 1992, the appointing authority took the view that the applicant had committed a disciplinary offence by making false statements and downgraded him, as a penalty, from Grade B3, step 5, to Grade B4, step 5, with effect from 1 December 1992. In its decision, the appointing authority stated that, when preparing to send the medical certificate to the Commission, the applicant must have been aware that any absence from the service beyond the leave granted to him would not be attributable to health reasons and that he deliberately failed to inform the institution of the real reasons for his absence. The appointing authority also took the view that, at the end of the period for which he was held in undisclosed custody, the applicant should have informed the Commission that the medical certificate did not reflect the true position or, at the very least, made sure that the police had in fact informed the Commission of his detention. However, although the applicant learned on 18 December 1987 that the Commission had not been informed of his detention by the Portuguese authorities, he did not take any action until 12 January 1988 and thus knowingly led the Commission to believe that his absence was attributable to health grounds. The appointing authority adds that the applicant signed, and never disputed, the suspension decision of 24 February 1988, which itself accused him of concealing the fact that his absence was not attributable to his state of health. That fact ° which had not been taken into account by the disciplinary board in its reasoned opinion ° implies that breach of the obligation to inform the institution cannot be limited to the period from 12 December 1987 to 12 January 1988.

Law

16 By virtue of the combined provisions of Articles 185 and 186 of the EEC Treaty, applications to the Court of First Instance do not have suspensory effect. However, the Court may, if it considers that circumstances so require, order suspension of the operation of the contested measure or order the necessary interim measures.

17 Pursuant to Article 104(2) of the Rules of Procedure of the Court of First Instance, it is incumbent on the applicant to specify the circumstances justifying urgency and the matters of fact and of law constituting a prima facie case for the grant of the interim measure which he seeks.

Arguments of the parties

18 The applicant claims that, in addition to the adverse effects on his financial situation and on his career prospects, it is deeply humiliating for him vis-à-vis his colleagues and his superiors to have been downgraded as a disciplinary measure, causing him difficulties not only of a practical, but also of a psychological, nature. According to the applicant, his financial loss is due not only to the loss of remuneration directly caused by the disciplinary measure but also to the fact that, unlike his colleagues, he was not proposed for promotion to the next grade.

19 The applicant also considers that, although there was no proof of the false statements of which he was accused in the disciplinary procedure, the period that will elapse before the Court of First Instance gives judgment on his application for annulment in the main proceedings will further aggravate his psychological state, serious as it already is, since the adverse effects extend not only to his family life and financial situation but also his professional integrity and reputation.

20 The applicant considers that the contested decision, in so far as it disregards important evidential documents and is based on considerations which run counter to the evidence established in the disciplinary procedure, is vitiated by its failure duly to state the grounds on which it is based as well as by an infringement of the law.

21 The Commission, referring to settled case-law of the Court of First Instance, contends that the financial damage alleged by the applicant does not constitute serious or irreparable damage such as to justify the interim measures applied for since, if the application in the main proceedings were to be upheld, the applicant would be reimbursed for the difference in remuneration deriving from his downgrading. The defendant also considers that the damage alleged by the applicant on account of his non-promotion certainly does not derive from the contested decision and it asserts in that regard that since the applicant has never objected to the failure to promote him, either by complaining or by commencing proceedings, he cannot complain about any resultant financial damage now.

22 The Commission also contends that none of the pleas in law advanced by the applicant in the main proceedings is well founded. It considers that the decision gives an exhaustive indication of the factual and legal grounds which prompted the appointing authority to downgrade him as a disciplinary measure and of the reasons for which it did not follow the opinion of the disciplinary board and decided to impose, in view of the extreme gravity of the conduct imputed to the applicant, a more severe penalty than that proposed by the disciplinary board.

The existence of a prima facie case

23 It is apparent from the documents before the Court that the disciplinary board suggested a more moderate penalty than that which was subsequently imposed by the appointing authority, taking the view that it had not been established that the medical certificate was sent to the Commission after the applicant was remanded in custody on 2 November 1987, and that he could not therefore be accused of making false statements. In its decision, the appointing authority, without contradicting the assessment of the facts contained in the reasoned opinion of the disciplinary board, disregarded the latter' s interpretation, relying essentially, in so doing, on the fact that, when preparing to send the medical certificate to the Commission, the applicant must have been aware that any absence from the service beyond the leave granted to him would not be attributable to health reasons and that the applicant signed, and never disputed, the suspension decision of 24 February 1988, which itself accused him of attempting to conceal the fact that his absence was not attributable to his state of health.

24 At first sight, the appointing authority' s characterization of the facts in the contested decision ° without prejudice, at this stage, to the question of whether or not it is legal ° raises serious doubts.

25 None of the information available to the Court hearing this application for interim measures supports the inference that the applicant knew or should have known that he would immediately be arrested on voluntarily presenting himself on 2 November 1987 to the police authorities, particularly since the charge against him and the arrest warrant were not issued until that same date, 2 November 1987. Moreover, it does not seem that any conclusion can be drawn from the mere fact that the applicant did not contest the decision suspending him from duty: the suspension was lifted before expiry of the period within which he was entitled to challenge it.

26 It is also apparent from the order of the Tribunal de Instrução Criminal, Lisbon, mentioned in paragraph 8, that that court instructed the police to provide information as to the fact that the applicant had been remanded in undisclosed custody. It thus seems plausible that the applicant might have been convinced that such information had been imparted to the Commission and that it was not until 18 December 1987, the date of the telegram calling on him to present himself for a second medical examination, that he became aware that that was not the case. Furthermore, in view of the fact that the applicant was in preventive custody and that the end-of-year judicial vacation had commenced, it does not seem that it can be inferred from the fact that about three weeks elapsed before his lawyer asked the court to notify the Commission that the applicant was being held in custody that the latter deliberately intended to conceal from the Commission the true reasons for his absence from work.

27 It follows that the information available to the Court hearing this application at this stage of the proceedings is such as to provide a firm basis for the arguments advanced by the applicant in support of his application for annulment of the contested decision.

The risk of irreparable damage

28 It is settled law (see most recently the order of the President of the Court of First Instance in Case T-115/92 Hogan v Parliament [1993] ECR II-340) that damage of a purely pecuniary nature cannot in principle be regarded as irreparable, or even difficult to repair, if it can be the subject of financial compensation at a later stage. However, the Court hearing an application for interim measures must, having regard to the institution' s interest in enforcing the contested decision, examine the circumstances of each case and consider, on that basis, whether the decision is causing the applicant damage which could not be made good even if the decision were to be annulled in the main proceedings.

29 It must be emphasized, first, that the applicant alleges pecuniary damage resulting from his downgrading, which represents about 12% of his monthly income. Pecuniary damage of that extent, despite the difficulties that it might entail, does not constitute serious or irreparable damage since, if the application in the main proceedings is upheld, the applicant will recover the difference in salary resulting from his downgrading.

30 Secondly, the applicant alleges pecuniary damage resulting from his non-promotion in 1992. However, it must be borne in mind that, according to the applicant' s own submissions, his promotion, like that of all his colleagues, should have taken place in 1991, with effect from January 1992. It is apparent from the documents before the Court that the non-promotion of the applicant in any event antedates not only the disciplinary measure imposed on him but also the commencement of the disciplinary proceedings and that, consequently, the alleged damage has no connection whatsoever with the contested decision.

31 Finally, the applicant alleges damage through the undermining of his professional integrity and reputation and damage resulting from aggravation of his psychological state by reason of the profound humiliation he felt vis-à-vis his colleagues and his superiors.

32 It must be emphasized that the misconduct represented by the making of false statements, which gave rise to the disciplinary proceedings commenced against the applicant on 30 March 1992 and then to the penalty of downgrading, dates back to November 1987 and came to the notice of the appointing authority no later than 22 January 1988. More than four years and two months thus elapsed between disclosure of the misconduct and commencement of the disciplinary proceedings.

33 During that period, the applicant was remanded in preventive custody for about five months, from November 1987 to March 1988, then found guilty, as stated above, of having participated, by "unwitting negligence", in a drug-trafficking offence and was released because he had already served, whilst on remand, the term of imprisonment to which he had been sentenced.

34 Again during that period, the applicant was appointed a probationary official of the Commission, in Grade B3, with effect from 1 November 1988, on the basis of a probationary report ° his probationary period had been extended to take account of his absence whilst on remand ° which contained very favourable assessments from his superiors. Since then, the applicant has continued to perform his duties in Commission Directorate General DG XXI, Customs Union and Indirect Taxation.

35 It is true that the provisions of the Staff Regulations on the disciplinary rules applicable to Community officials in Articles 86 and 89 and Annex IX to the Staff Regulations do not lay down any limitation period for the commencement of disciplinary proceedings against officials accused of failing to discharge their obligations under the Staff Regulations. However, that does not mean that the Court hearing an application for interim measures should not take account of the time allowed to elapse between disclosure of the misconduct and commencement of the disciplinary proceedings relating to it, particularly in proceedings the purpose of which is to secure suspension of the operation of the contested decision.

36 It follows that the interests of the parties must be carefully weighed against each other.

37 It is common ground that the contested decision penalizes the applicant for misconduct, described as extremely serious, committed more than five years ago and known to the appointing authority for more than four years at the date of commencement of the disciplinary proceedings. Bearing in mind also that, pursuant to Article 91(4) of the Staff Regulations, the main proceedings are suspended until a decision rejecting the complaint is expressly taken or is implied, the effects of the contested measure may endure for a considerably longer period until the Court of First Instance gives its final decision. That fact is liable to affect the applicant appreciably, detracting from his professional integrity and reputation and possibly contributing to aggravation of his psychological state.

38 It is true that, since the damage is not of a financial nature, it is difficult for the Court to assess, in proceedings for interim measures, whether or not such damage would be irreparable or difficult to repair. But it must also be emphasized that, in view of the long period which has already elapsed since the misconduct with which the applicant is charged, the possibility of suspension of enforcement of the disciplinary measure until the Court of First Instance has given judgment in the main proceedings cannot adversely affect the internal organization of the defendant institution in any way. Moreover, such suspension does not involve any risk of damage for the Commission in view of the limited sum at issue and the fact that that sum will easily be recoverable in the event of the Court' s dismissing the application in the main proceedings (order of the President of the Court of Justice in Case 141/84 De Compte v Parliament [1984] ECR 2575).

39 It follows from the foregoing, having regard in particular to the pleas in fact and law advanced by the applicant in support of his application in the main proceedings, that it is appropriate to order suspension of the enforcement of the contested decision until the Court of First Instance has given judgment bringing those proceedings to a close.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The decision of 27 November 1992 downgrading the applicant as a disciplinary measure to Grade B4, step 5, is suspended until the Court of First Instance has given judgment bringing the proceedings to a close.

2. The costs are reserved.

Luxembourg, 5 April 1993.