JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

1 April 2004

Case T-198/02

N

v

Commission of the European Communities

(Officials – Disciplinary measures – Removal from post without loss of pension rights – Statement of reasons – Rights of the defence – Proportionality – Failure to comply with the time-limits fixed by Article 7 of Annex IX to the Staff Regulations – Article 12, first paragraph, of the Staff Regulations)

Full text in French II - 0000

Application:         first, for annulment of the decision of the appointing authority of the Commission of 25 February 2002 imposing on the applicant the disciplinary measure of removal from post without withdrawal or reduction of entitlement to retirement pension in accordance with Article 86(2)(f) of the Staff Regulations of Officials of the European Communities and, second, for damages.

Held:         The Commission is ordered to pay the applicant the sum of EUR 700 as compensation for the non-material damage suffered by him. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay one sixth of the applicant’s costs of the present proceedings and the proceedings for interim relief. The applicant is ordered to bear five sixths of his costs of the present proceedings and the proceedings for interim relief.

Summary

1.     Officials – Disciplinary measures – Criminal proceedings instituted against the official concerned before a national court – Right of the appointing authority to rely on the findings of fact in the final decision of the criminal court

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

2.     Officials – Disciplinary measures – Sanction – Principle of proportionality – Concept – Discretion of the appointing authority – Judicial review – Limits

(Staff Regulations, Arts 86 to 89)

3.     Officials – Rights and obligations – Duty to avoid action of such a kind as to reflect on an official’s position – Scope

(Staff Regulations, Art. 12, first para.)

4.     Officials – Disciplinary measures – Disciplinary pemalty independent of criminal penalty

5.     Officials – Decision adversely affecting an official – Disciplinary measure – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.)

6.     Officials – Disciplinary measures – Disciplinary proceedings – Infringement of the rights of the defence – Effects

(Staff Regulations, Annex IX)

7.     Officials – Disciplinary measures – Sanction – Aggravating circumstances – Circumstances beyond the control of the official concerned – Precluded

(Staff Regulations, Annex IX)

8.     Officials – Disciplinary measures – Proceedings before the Disciplinary Board – Time-limits set by Article 7 of Annex IX – Not mandatory – Failure to comply – Effects

(Staff Regulations, Annex IX, Art. 7)

9.     Officials – Non-contractual liability of the institutions – Conditions – Administrative fault – Damage – Causal link

1.     In order to establish the truth of the facts on the basis of which it imposes a disciplinary sanction on an official, the appointing authority is entitled to rely on the findings of fact in a criminal decision which has become final.

(see paras 42-43)

See: 228/83 F v Commission [1985] ECR 275, para. 34; T-12/94 Daffix v Commission [1997] ECR-SC I‑A‑453 and II‑1197, para. 64; T-23/00 A v Commission [2000] ECR-SC I‑A‑263 and II‑1211, para. 37; T-277/01 Stevens v Commission [2002] ECR-SC I‑A‑253 and II‑1273, para. 76

2.     The application of the principle of proportionality in disciplinary matters has two aspects. First, the choice of the appropriate disciplinary measure is for the appointing authority where the truth of the facts alleged against the official is established, and the Court cannot criticise the choice of disciplinary measure by the appointing authority unless the measure imposed is disproportionate in comparison with those facts.

Second, the determination of the disciplinary 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. Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the disciplinary measures which they lay down and the various kinds of breach of duties 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 Court’s role is therefore limited to considering whether the weight given to aggravating or mitigating circumstances by the appointing authority was proportionate, and the Court cannot assume the role of the appointing authority as regards that authority’s value judgments in this matter.

(see paras 51-54)

See: 13/69 Van Eick v Commission [1970] ECR 3, paras 24 and 25; 46/72 De Greef v Commission [1973] ECR 543, paras 43 to 46; F v Commission, cited above, para. 34; 403/85 F v Commission [1987] ECR 645, para. 26; T-146/94 Williams v Court of Auditors [1996] ECR-SC I‑A‑103 and II‑329, paras 107 and 108; T-74/96 Tzoanos v Commission [1998] ECR-SC I‑A‑129 and II‑343, para. 352, confirmed by C-191/98 P Tzoanos v Commission [1999] ECR I‑8223

3.     The first paragraph of Article 12 of the Staff Regulations requires officials to abstain from any action which may reflect upon their position, and is intended to ensure that Community officials, in their conduct, present a dignified image in keeping with the particularly correct and respectable behaviour which one is entitled to expect from members of an international civil service.

(see para. 55)

See: T-273/94 N v Commission [1997] ECR-SC I‑A‑97 and II‑289, para. 127

4.     Criminal and disciplinary proceedings are separate from one another and pursue different aims, so that the appointing authority cannot be bound by the weight accorded to aggravating or mitigating circumstances by the criminal court. In addition, a disciplinary measure may be imposed even where the applicant is not found guilty of any criminal offence. Consequently, the fact that the same facts incur a disciplinary measure but not a criminal conviction does not show that the disciplinary measure is disproportionate or manifestly incorrect.

Criminal proceedings concern compliance with rules for the maintenance of law and order which are enacted in order to guarantee the proper working of society as a whole. Disciplinary proceedings, on the other hand, relate only to compliance with rules intended to guarantee the proper working of an institution. Because of their different purposes, those rules have different sanctions. Thus, although the same conduct may infringe both rules of criminal law and disciplinary rules, the disciplinary measure is appraised in relation to the disciplinary system, not the criminal sanction. The disciplinary authority cannot therefore be required to take account, when choosing the appropriate disciplinary measure, of the criminal sanctions imposed in criminal proceedings involving the same person.

(see paras 57-58, 98)

See: T-144/96 Y v Parliament [1998] ECR-SC I‑A‑405 and II‑1153, para. 38

5.     The obligation to state reasons laid down in Article 253 EC and in the second paragraph of Article 25 of the Staff Regulations constitutes an essential principle of Community law which is intended, firstly, to allow the person concerned to ascertain whether the decision is well founded and, secondly, to enable the Court to review its legality.

Furthermore, the statement of reasons for a measure must be considered with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question. Thus the grounds stated for a decision are sufficient if the measure was adopted in circumstances known to the official concerned which enable him to understand its scope.

If the penalty imposed by the appointing authority is more severe than that suggested by the Disciplinary Board, the decision must state in detail the reasons why the appointing authority has not followed the opinion of the Disciplinary Board.

The obligation incumbent on the appointing authority to state reasons also means that it is bound to mention the facts, law and considerations which have led it to adopt its decision. That obligation does not, however, mean that it is required to discuss all the issues of fact and law which the official concerned has raised during the proceedings.

(see paras 69-70, 95, 109)

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, para. 22; 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 16; 228/83 F v Commission, cited above, para. 35; T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II‑143, para. 73; Y v Parliament, cited above, para. 23; T-203/98 Tzikis v Commission [2000] ECR-SC I‑A‑91 and II‑393, para. 32; T-51/01 Fronia v Commission [2002] ECR‑SC I‑A‑43 and II‑187, para. 66; T-103/01 Cwik v Commission [2002] ECR‑SC I‑A‑229 and II‑1137, para. 63

6.     In connection with the rights of the defence, an official involved in disciplinary proceedings is generally entitled to comment on the documents used by the appointing authority. However, if he has not been given an opportunity to exercise that right, such a breach of the rights of the defence cannot result in the annulment of the penalty imposed on him unless the procedure might have had a different outcome without the irregularity.

(see para. 103)

See: 209 to 215 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, para. 47; C-142/87 Belgium v Commission [1990] ECR I‑959, para. 48; C-241/00 P Kish Glass v Commission [2001] ECR I‑7759, para. 36

7.     The aggravation of a disciplinary measure may not depend on a factor that is beyond the control of the person who is the subject of that measure and over which he has no influence, such as the publicity given to certain acts by the popular press. Basing the aggravation of a disciplinary measure on that would effectively make the penalty imposed by the appointing authority dependent on a purely fortuitous factor, and thus allow an arbitrary element to sway the decision.

(see para. 103)

8.     The period prescribed by Article 7 of Annex IX to the Staff Regulations is not a mandatory time-limit. It constitutes a rule of sound administration the purpose of which is to avoid, in the interests both of the administration and of officials, undue delay in adopting the decision terminating the disciplinary proceedings. It follows that the disciplinary authorities are obliged to conduct disciplinary proceedings diligently and to ensure that each procedural step is taken within a reasonable period following the previous step.

Failure to comply with that time-limit 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 it has expired. Article 7 of Annex IX to the Staff Regulations is intended to limit the period of uncertainty surrounding the administrative situation of the person who is the subject of disciplinary proceedings. It is only where particular conditions are satisfied, such as where the rights of the defence are breached, that exceeding that time-limit may entail the nullity of a measure adopted after its expiry.

(see paras 124-125, 135)

See: Van Eick v Commission, cited above, paras 3 to 7; 228/83 F v Commission, cited above, para. 30; 175/86 and 209/86 M v Council [1988] ECR 1891, para. 16; T-26/89 de Compte v Parliament [1991] ECR II‑781, para. 88; T-242/97 Z v Parliament [1999] ECR-SC I‑A‑77 and II‑401, paras 40 and 41, confirmed by C‑270/99 P Z v Parliament [2001] ECR I‑9197; T‑24/98 and T‑241/99 E v Commission [2001] ECR-SC I‑A‑149 and II‑681, paras 52 and 56; T-197/00 Onidi v Commission [2002] ECR-SC I‑A‑69 and II‑325, para. 96

9.     The Community can only be held liable for damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered.

(see para. 134)

See: C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, para. 42; T-36/93 Ojha v Commission [1995] ECR-SC I‑A‑161 and II‑497, para. 130; T-35/96 Rasmussen v Commission [1997] ECR-SC I‑A‑61 and II‑187, para. 82; T-142/95 Delvaux v Commission [1997] ECR-SC I‑A‑477 and II‑1247, para. 109