JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
18 June 2015
Case F‑27/13
CX
v
European Commission
(Civil service — Disciplinary proceedings — Respective roles and powers of the Disciplinary Board and the appointing authority — Disciplinary penalty — Downgrading followed by a decision on promotion — Proportionality of the penalty)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CX essentially seeks, first, annulment of the decision of 5 June 2012 by which the European Commission imposed the penalty of downgrading from grade AD 9 to grade AD 8 and, second, an order that the Commission compensate him for the harm he considers he has suffered.
Held: The action is dismissed. CX is to bear his own costs and is ordered to pay the costs incurred by the European Commission.
Summary
1. Officials — Disciplinary measures — Procedure before the Disciplinary Board — Time-limits laid down in Annex IX of the Staff Regulations — Time-limits not mandatory — Rule of sound administration
(Staff Regulations, Annex IX, Art. 22(1))
2. Officials — Disciplinary measures — Respective roles and powers of the Disciplinary Board and the appointing authority — Assessment of whether the facts complained of are established
(Staff Regulations, Annex IX, Arts 18 and 25)
3. Officials — Disciplinary measures — Disciplinary proceedings — Time-limits — Administration’s duty to act within a reasonable time — Assessment
(Staff Regulations, Annex IX)
4. Officials — Disciplinary measures — Penalty — Downgrading — Relationship with a promotion decision taken subsequently in respect of the same official
(Staff Regulations, Arts 45 and 86)
5. Officials — Disciplinary measures — Penalty — Downgrading — Discretion of the appointing authority — Scope
(Staff Regulations, Annex IX, Art. 9)
1. The time-limit laid down by Article 22(1) of Annex IX to the Staff Regulations is not mandatory. The provision sets out a rule of sound administration the purpose of which is to avoid, in the interests both of the administration and of officials, unjustified delay in adopting the decision terminating disciplinary proceedings. Therefore, the disciplinary authorities are under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable period following the previous step. Failure to comply with that time-limit, which may be assessed only on the basis of the particular circumstances of the case, may result in the annulment of the step taken out of time, particularly where the rights of the defence have been infringed.
(see para. 38)
See:
Judgments in N v Commission, T‑198/02, EU:T:2004:101, para. 125, and François v Commission, T‑307/01, EU:T:2004:180, para. 47 and the case-law cited therein
2. The appointing authority may consider and assess the facts which are the subject of disciplinary proceedings in different terms from those used in the opinion of the Disciplinary Board, provided that it gives a detailed statement of the reasons for its decision to do so.
There is no provision of the Staff Regulations which states that the opinion of the Disciplinary Board is binding on the appointing authority when it comes to assessing whether the facts complained of are established. On the contrary, it follows from reading Article 18 in conjunction with Article 25 of Annex IX to the Staff Regulations that the opinion of the Disciplinary Board, which is an advisory body, does not bind the appointing authority in that regard.
Article 18 of Annex IX to the Staff Regulations does not provide that the opinion of the Disciplinary Board is binding on the appointing authority.
On the other hand, it follows from Article 25 of Annex IX to the Staff Regulations that the appointing authority is entitled to rely on the findings of fact in a criminal decision which has become final, even if the official in question disputes the correctness of those facts during the disciplinary proceedings. In other words, the legislature intended to restrict the powers of the appointing authority to assess whether the facts which are the subject of disciplinary proceedings are established in the specific case that criminal proceedings have been initiated in parallel for the same facts. However, the legislature did not provide that the appointing authority may not depart from some or all of the Disciplinary Board’s opinion.
The Disciplinary Board is not thereby deprived of its essential function as an advisory body, and the official concerned benefits from a fundamental safeguard, since the appointing authority is required to state the reasons for any decision to depart from the Disciplinary Board’s opinion, including in its assessment of the facts.
(see paras 54-58)
See:
Judgment in F. v Commission, 228/83, EU:C:1985:28, para. 16
Judgment in Stevens v Commission, T‑277/01, EU:T:2002:302, para. 76, and order in Di Rocco v ESC, T‑8/92, EU:T:1992:122, para. 28
Judgment in Bedin v Commission, F‑128/14, EU:F:2015:51, para. 30
3. It follows from the principle of sound administration that disciplinary authorities are under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable time following the previous step. The unreasonable duration of disciplinary proceedings may be the result both of the conduct of prior administrative investigations and of the disciplinary proceedings themselves. The reasonableness of the duration of the proceedings must be assessed in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.
(see para. 77)
See:
Judgment in A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paras 390 to 393
4. In the case of an official who has been the subject of decisions imposing on him the disciplinary penalty of downgrading and, subsequently, promoting him with retroactive effect, those decisions constitute two separate and independent administrative measures with two different legal bases, one based on Article 86 and the other on Article 45 of the Staff Regulations. Consequently, the two decisions serve different and conflicting purposes. In that regard there is no provision anywhere in the Staff Regulations that a disciplinary decision downgrading an official automatically takes precedence over a later promotion decision where the addressee of both decisions is the same official or other staff member.
Moreover, promotion is, by its very nature, a legal measure to which no prior or subsequent condition may be attached and which may not be limited in time. In the light in particular of Articles 4 and 6 of the Staff Regulations, it should be considered that the Staff Regulations do not permit the promotion of an official or other staff member pro tempore, from 1 January of one year to 1 July of the next, for example.
(see paras 95, 99, 100)
5. As regards the choice of disciplinary penalty to be imposed, under Article 9 of Annex IX to the Staff Regulations, the competent appointing authority does not have the power to penalise the official concerned by directly ‘classifying’ him in a particular grade, but only to downgrade him, either temporarily or permanently, from the grade which he actually holds at the time when the penalty is applied.
(see para. 101)