ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
5 May 2014
Case F‑27/14 R
DK
v
European External Action Service (EEAS)
(Civil service — Application for interim measures — Disciplinary proceedings — Removal from post — Application for suspension of operation of a measure)
Application: under Articles 278 TFEU and 157 EA and Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which DK seeks suspension of operation of the decision of 16 January 2014 by which the Administrative Director-General of the European External Action Service (EEAS), in his capacity as the appointing authority of the EEAS, removed him from his post without reduction of his entitlement to a pension, with effect from 1 February 2014.
Held: Operation of the decision of 16 January 2014 by which the European External Action Service removed DK from his post without reduction of his entitlement to a pension is suspended. The costs are reserved.
Summary
1. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Urgency — Application of the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial — Infringement of the principle — Serious and irreparable damage
(Art. 278 TFEU)
2. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Balancing of all the interests involved — Application for suspension of operation of a decision to remove an official from his post on disciplinary grounds for acts contrary to the financial interests of the Union — Outcome in the applicant’s favour because of the impossibility of proving the truth of the alleged facts and offences
(Art. 278 TFEU; Commission Decision 1999/352)
1. The purpose of interim proceedings is not to secure reparation of damage but to guarantee the full effectiveness of the judgment on the substance. In order that the latter objective may be attained, the measures sought must be urgent in the sense that, in order to avoid serious and irreparable damage to the applicant’s interests, they must be ordered and become effective even before the decision in the main proceedings.
In the present case, it must be observed, in view in particular of the pleas in law put forward in support of the claims for annulment, seeking a finding that the institution infringed both the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial and the presumption of innocence, that the interim measure sought — the suspension of operation of the contested decision to remove the applicant from his post — aims to achieve the same result as the main proceedings, so that the interim proceedings are not ancillary to the main proceedings to which they are an adjunct and, consequently, are not of an interim nature, which might, as such, provide grounds for dismissing the application for suspension of operation of the decision.
However, the factual and legal arguments put forward by the applicant raise doubts as to the lawfulness of the contested decision, particularly in the light of the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial. That being so, the judge hearing the application for interim relief may not, without being criticised for infringing that principle himself, dismiss on grounds of lack of urgency an application for suspension of operation of the contested decision, given that the very application for suspension of operation is indissociable from the implementation of that principle, at the very least until the General Court delivers its judgment in the main proceedings. The principle forms part of the fundamental right to a fair trial, protected both by the provisions of the Charter of Fundamental Rights of the European Union and by those of the European Convention for the Protection of Human Rights and Fundamental Freedoms to which the Charter refers in its preamble.
In other words, given that it appears, prima facie, to have been infringed, the protection of the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial may not be deferred, even provisionally, pending the decision of the court adjudicating on the substance, without causing serious and irreparable harm to the applicant, since, by definition, the outcome of the criminal trial might be seriously affected by the administrative authority’s view of the accuracy of the facts on which that trial is based.
(see paras 57-60)
See:
25 March 1999, C‑65/99 P(R) Willeme v Commission, para. 62; 26 June 2003, C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission, para. 142
29 June 1994, T‑146/94 R Williams v Court of Auditors, para. 23; 10 September 1999, T‑173/99 R Elkaïm and Mazuel v Commission, para. 25; 16 November 2012, T‑345/12 R Akzo Nobel and Others v Commission, para. 25 and the case-law cited therein
13 February 2014, F‑5/14 R CX v Commission, para. 80
2. Although failure to suspend operation of the contested decision removing an official from his post is likely to cause serious and irreparable damage to him, the grant of that suspension, on the other hand, is likely to cause harm to the institution, given the consequences necessarily resulting from the temporary reinstatement of an official considered to have adopted conduct incompatible with the performance of his duties and the dignity of his position. In such circumstances, it is for the judge hearing the application for interim relief to balance the interests involved.
The serious and irreparable damage suffered by the official must thus be balanced against the institution’s interest in not being required to maintain an employment relationship in a situation in which an official has been dismissed on disciplinary grounds.
In that regard, as is clear from the preamble to Decision 1999/352 establishing the European Anti-fraud Office (OLAF), the institutions and the Member States attach great importance to the protection of the financial interests of the European Union and to the fight against fraud and any other illegal activities to the detriment of those financial interests. Furthermore, it is acknowledged that public opinion is sensitive to the question of the protection of public funds and of the European taxpayer.
However, where there are grounds of complaint that are sufficiently sound and relevant to constitute a prima facie case at the interlocutory stage, and because it is therefore impossible to regard the alleged facts and offences as proven, maintaining the official in service is not likely to have a serious effect on the credibility of the institutions, and the confidence of the Member States and of the public in general in those institutions.
(see paras 63-66)
See:
Williams v Court of Auditors, para. 23
CX v Commission, para. 80