JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

5 December 2002

Case T-277/01

Romuald Stevens

v

Commission of the European Communities

‛Officials — Disciplinary proceedings — Criminal conviction — Removal from post without loss of pension entitlements — Hearing provided for in the third paragraph of Article 7 of Annex IX to the Staff Regulations’

Full text in French   II-1273

Application for:

annulment of the Commission's decision of 14 December 2000 removing the applicant from his post without loss of his pension entitlements.

Held:

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

Summary

1. Officials — Disciplinary measures — Disciplinary proceedings — Appointing authority's decision imposing a disciplinary measure without first hearing the official concerned — Absence of prior hearing attributable to the official concerned — Whether lawful

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

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

   (Staff Regulations, Art. 25)

3. Officials — Disciplinary measures — Measure — Removal from post — Appointing authority's discretion — Review by the Court — Scope — Limits

   (Staff Regulations, Arts 86 to 89)

4. Officials — Disciplinary measures — Criminal conviction of the official concerned by a national court — Appointing authority's right to act on the basis of findings of fact made in the criminal court's final verdict

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

5. Officials — Disciplinary measures — Measure — Appointing authority's discretion — Appraisal of all the facts and circumstances peculiar to each individual case

   (Staff Regulations, Arts 86 and 89)

1.  The fact that, contrary to the third paragraph of Article 7 of Annex IX to the Staff Regulations, the official concerned was not heard by the appointing authority before it adopted its decision does not result in annulment of the decision imposing a disciplinary measure on him if that noncompliance was attributable to the official concerned himself. The appointing authority is not required to postpone that hearing indefinitely until the official concerned is able to attend. On the contrary, in the interests both of the official and of the administration, the decision terminating the disciplinary proceedings must not be delayed without justification. That is the purpose of the time-limit of one month laid down in the third paragraph of Article 7 of Annex IX to the Staff Regulations, which constitutes a ‘rule of sound administration’.

   (see para. 41)

   See: 13/69 Van Eick v Commission [1970] ECR 3, para. 4; C-270/99 P Z v Parliament 120011 ECR I-9197, para. 21; T-12/94 Daffix v Commission [1997] ECRSC I-A-453 and II-1197, paras 130 and 131; T-121/99 Irving v Commission [2000] ECRSC I-A-85 and II-357, para. 53

2.  The statement of the grounds for a decision adversely affecting a person must provide the person concerned with sufficient information to determine whether the decision is well founded and must allow the Community Court to review the legality of the decision.

   The question whether the statement of grounds for the appointing authority's decision imposing a disciplinary measure satisfies those requirements must be assessed in the light not only of its wording but also in that of its context and all the relevant legal rules. In that regard, although the Disciplinary Board and the appointing authority are required to set out the elements of fact and law forming the legal basis for their decisions and the considerations which led to their adoption, they are not required to discuss all the factual and legal points which were raised by the person concerned during the proceedings. If the appointing authority chooses the same disciplinary measure as that proposed by the Disciplinary Board, there is no need for a further statement of grounds as to the appropriateness of the measure.

   (see paras 70-71)

   See: C-188/96P Commission v V [1997] ECR I-6561, paras 26 to 29; T-144/96 Y v Parliament [1998] ECRSC I-A-405 and II-1153; T-34/96 and T-163/96 Connolly v Commission [1999] ECRSC I-A-87 and II-463, para. 93

3.  Once the truth of the allegations against an official has been established, it is for the appointing authority to choose the appropriate penalty. A decision removing an official from his post necessarily implies fine consideration on the part of the institution, in view of the serious consequences which arise from it. In that regard, the appointing authority has wide discretion and the Court's review is confined to ascertaining that the facts found are materially accurate, that there has been no manifest error in the assessment of the facts and that there has been no misuse of powers.

   (see para. 73)

   See: T-273/94 N v Commission [1997] ECRSC I-A-97 and II-289, para. 125

4.  The appointing authority is entitled to rely on the findings of fact in a criminal decision which has become final, even where the official in question disputes the correctness of those facts during the disciplinary proceedings. The fifth paragraph of Article 88 of the Staff Regulations, which establishes the principle that the disciplinary proceedings must await the outcome of the criminal proceedings, is justified in particular by the fact that the national criminal courts have greater investigative powers than the appointing authority. Thus, the authority may act on the basis of the findings of fact contained in a judgment in criminal proceedings which has become final.

   (see para. 76)

   See: T-74/96 Tzoanos v Commission [1998] ECRSC I-A-129 and II-343, para. 34: T-23/00 A v Commission (2000] ECRSC I-A-263 and II-1211. para. 37

5.  Since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the disciplinary measures and the various sorts of breach of duty for which they may be imposed and do not specify the extent to which the existence of aggravating or attenuating circumstances is to affect the choice of disciplinary measure, determination of the disciplinary measure to be imposed must be based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances in each individual case.

   (see para. 78)

   See: T-146/94 Williams v Court of Auditors [1996] ECRSC I-A-103 and II-329, para. 107