JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
18 March 2015
Case F‑27/14
DK
v
European External Action Service (EEAS)
(Civil service — EEAS staff — Official — Disciplinary proceedings — Removal from post without reduction of entitlement to a pension — Article 25 of Annex IX to the Staff Regulations — Pending criminal proceedings — Same facts before the appointing authority and the court hearing the criminal proceedings)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which DK seeks annulment of the decision of 16 January 2014 by which the chief operating officer of the European External Action Service (EEAS), acting as the appointing authority, imposed on him the penalty of removal from post without reduction of his entitlement to a pension, with effect from 1 February 2014.
Held: 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 annulled. The European External Action Service is to bear its own costs and is ordered to pay all the costs incurred by DK.
Summary
1. Officials — Disciplinary regime — Disciplinary proceedings — Disciplinary proceedings and criminal prosecution brought at the same time concerning the same facts — Obligation on the administration to take a final decision on the official’s case only after a final judgment has been handed down by the criminal court
(Staff Regulations, Annex IX, Art. 25)
2. Officials — Disciplinary regime — Disciplinary proceedings — Disciplinary proceedings and criminal prosecution brought at the same time concerning the same facts — Purpose of the suspension of the disciplinary proceedings — Obligation to respect the findings of fact made by the criminal court — Ability to undertake their classification in the light of the concept of a disciplinary offence
(Staff Regulations, Annex IX, Art. 25)
3. Officials — Disciplinary regime — Disciplinary proceedings — Disciplinary proceedings running alongside criminal proceedings — Obligation for the official to provide the administration with information allowing it to compare the facts covered by the disciplinary proceedings with those covered by the criminal proceedings
(Staff Regulations, Annex IX, Art. 25)
1. It is clear from Article 25 of Annex IX to the Staff Regulations that the appointing authority is precluded from taking a final decision on the disciplinary aspect of the case involving the official concerned by adjudicating on facts which are at the same time in issue in criminal proceedings so long as the decision given by the criminal court seised has not become final. Consequently, that article does not grant the appointing authority, which is responsible for taking a final decision on the case of an official against whom disciplinary proceedings have been instituted, any discretion as to whether or not to stay proceedings on the official’s case where he is being prosecuted before a criminal court.
(see para. 37)
See:
Judgments in Tzoanos v Commission, T‑74/96, EU:T:1998:58, paras 32 and 33; Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, para. 45; François v Commission, T‑307/01, EU:T:2004:180, para. 59, and Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, para. 341
2. Article 25 of Annex IX to the Staff Regulations has a twofold rationale. Firstly, that Article is intended to ensure that the position of the official in question is not affected in any criminal proceedings instituted against him on the basis of facts which are also the subject-matter of disciplinary proceedings within his institution. Second, suspension of the disciplinary proceedings pending the conclusion of the criminal proceedings makes it possible to take into consideration, in those disciplinary proceedings, the findings of fact made by the criminal court when its decision has become final. In fact, Article 25 of Annex IX to the Staff Regulations establishes the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial, a rule which is justified, in particular, by the fact that the national criminal courts have greater investigative powers than the appointing authority. Consequently, where the same facts may constitute both a criminal offence and a breach of the official’s obligations under the Staff Regulations, the administration is bound by the findings of fact made by the criminal court in the criminal proceedings. Once that court has established the existence of the facts in the case, the administration can then undertake their legal classification in the light of the concept of a disciplinary offence, ascertaining, in particular, whether they constitute breaches of obligations under the Staff Regulations.
It follows that the administration is precluded from taking a final decision on the disciplinary aspect of the case involving the official concerned so long as the decision of the criminal court seised has not become final. That is the case even where the criminal proceedings have taken almost ten years at first instance and the applicant has lodged an appeal. It is in the official’s best interest for the disciplinary proceedings to take account of the final decision of the criminal court hearing his appeal.
Moreover, the administration may not seek to rely on certain specific facts in isolation from a whole series possibly constituting criminal conduct in order to justify taking a final disciplinary decision while criminal proceedings on that conduct were still pending at the same time.
(see paras 38, 61, 66, 70, 74)
See:
Judgments in Tzoanos v Commission, EU:T:1998:58, para. 34; A v Commission, T‑23/00, EU:T:2000:273, para. 37; François v Commission, EU:T:2004:180, paras 73 and 75, and Franchet and Byk v Commission, EU:T:2008:257, para. 342
3. 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 a criminal prosecution against him. 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 have been instituted so that it can be determined whether they are the same.
(see para. 42)
See:
Judgment in Tzoanos v Commission, EU:T:1998:58, para. 35