JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

24 April 2013

Case F‑56/11

Giorgio Lebedef

v

European Commission

(Civil service — Officials — Disciplinary proceedings — Disciplinary measure — Downgrading)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Lebedef seeks annulment of the disciplinary decision of 6 July 2010 by which the European Commission imposed on him the penalty of downgrading him by two grades in the same function group.

Held:      The action is dismissed. Mr Lebedef is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Actions brought by officials — Time-limits — Claim barred by lapse of time — Inadmissibility of a plea directed against a disciplinary decision that has become final in the context of an action directed against a second disciplinary decision — Rejection — Effect of the similarity of the grounds of both decisions — No effect

(Staff Regulations, Arts 86(1), 90 and 91; Annex IX, Arts 9(3) and 22)

2.      Officials — Disciplinary measures — Penalty — Definition — Career development report — Not included — Loss of promotion points and blocking of a career at a particular grade — Included

(Staff Regulations, Art. 43; Annex IX, Art. 9)

3.      Officials — Disciplinary measures — Penalty — Aggravating circumstances — The extent to which the misconduct involves intentional actions — Scope

(Staff Regulations, Annex IX, Art. 10(c))

1.      An official is not entitled, in the context of an appeal against a disciplinary measure, to challenge the legality of another disciplinary decision taken earlier in respect of which the time-limit for bringing an appeal has expired. Where an act adversely affecting an official has not been challenged within the time-limit laid down for that purpose, it is not permissible for the person concerned to circumvent that time-limit by raising, in an appeal against a subsequent act having an adverse effect, a plea relating to that earlier act based merely on a reference to the earlier act in the subsequent act.

In that regard, it is clear from Article 86(1), read in conjunction with Article 90(2) of the Staff Regulations and Articles 9(3) and 22 of Annex IX to the Staff Regulations, that all disciplinary proceedings result in an independent act producing legal effects capable of affecting the interests of an official by bringing about a distinct change in his legal position, against which the actions provided for by the Staff Regulations may be brought. The fact that a penalty has been imposed on the same ground as an earlier penalty does not alter the independent nature of the acts in question.

Furthermore, to allow an official who has allowed the mandatory period laid down in Articles 90 and 91 of the Staff Regulations to expire without challenging a disciplinary measure taken against him under the procedure provided for by those articles to call into question its validity incidentally in an action brought against a subsequent disciplinary measure would be incompatible with the principles governing the legal remedies established by the Staff Regulations and would impair the stability of that system and the principle of legal certainty by which it is guided.

(see paras 34-36)

See:

15 November 2001, T‑142/00 Van Huffel v Commission, paragraph 35

2.      A career development report does not constitute a penalty within the meaning of Article 9 of Annex IX to the Staff Regulations but an appraisal of the ability, efficiency and conduct in the service of the official, in accordance with Article 43 of the Staff Regulations. Consequently, in the case of an official who has been penalised by downgrading in the context of disciplinary proceedings, by the loss of promotion to a higher grade and of promotion points and by blocking at a particular grade constitute effects inherent in that penalty.

(see paras 77-78)

3.      Misconduct taking the form of failure to alter behaviour following a disciplinary decision imposing a penalty on the official does indeed constitute misconduct involving intentional action and a clear case of insubordination on the part of the official concerned.

(see paras 86, 118)