JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
11 September 2013
Case F‑126/11
José António de Brito Sequeira Carvalho
v
European Commission
(Civil service — Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary sanction — Reprimand — Article 25 of Annex IX to the Staff Regulations — Article 22a of the Staff Regulations)
Application: brought by Mr de Brito Sequiera Carvalho pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, principally seeking annulment of the European Commission’s decision, of 24 March 2011, to reprimand him, and an order requiring the Commission to compensate him for various heads of material and non-material damage.
Held: The application is dismissed. Mr de Brito Sequeira Carvalho is to bear his own costs and is ordered to pay those incurred by the European Commission.
Summary
1. Officials — Disciplinary measures — Investigation prior to initiation of disciplinary proceedings — Obligation to identify the person who conducted the investigation in the decision adopted at the conclusion of the proceedings imposing a penalty — None
(Staff Regulations, Annex IX, Art. 3)
2. Officials — Rights and obligations — Freedom of expression — Exercise — Limits — Dignity of position — Meaning — Allegations against another official contained in a complaint under Art. 90 of the Staff Regulations — Obligations of officials
(Staff Regulations, Arts 12 and 90)
3. Officials — Rights and obligations — Freedom of expression — Dissemination of facts giving rise to a presumption of the existence of possible illegal activity or serious failure to comply with obligations — Protection from disciplinary proceedings — Conditions
(Staff Regulations, Art. 22a)
4. Officials — Rights and obligations — Freedom of expression — Exercise — Limits — Dignity of position — Acts liable to reflect on an official’s position — Meaning — Dissemination of accusations regarding another official
(Staff Regulations, Art. 12, 22a, 22b and 24)
5. Officials — Disciplinary measures — Disciplinary proceedings — Observance of rights of defence — Imposition of a penalty relating to an email sent by the official — Administration’s obligation to provide a copy of the email — Limits
(Staff Regulations, Annex IX, Art. 2)
6. Officials — Rights and obligations — Acts liable to reflect on an official’s position — Scope — Infringing behaviour on the part of another official — No effect
(Staff Regulations, Art. 12)
7. Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary and criminal proceedings ongoing in relation to the same facts — Suspension of disciplinary proceedings — Applicability to criminal proceedings commenced by an official in relation to a colleague — None
(Staff Regulations, Annex IX, Art. 25)
8. Officials — Disciplinary measures — Disciplinary proceedings — Injury to the dignity of another official or member of staff — Requirement for a well-founded request for assistance to be made by the victim before proceedings are commenced — None
(Staff Regulations, Art. 24 and Annex IX)
9. Officials — Disciplinary measures — Investigation prior to initiation of disciplinary proceedings — Administration’s discretion — Scope
(Staff Regulations, Annex IX, Art. 3)
1. There is no provision of law requiring the administration to state, in a disciplinary measure, the identity of the person who carried out the administrative enquiries envisaged by Article 3 of Annex IX to the Staff Regulations.
(see para. 69)
2. An official is not entitled to use a request or complaint as a pretext for disseminating accusations about one of his colleagues. Even in exercising the rights granted by Article 90 of the Staff Regulations, in connection with requests or complaints addressed to the appointing authority, he is required show the restraint and moderation demanded by his duties of objectivity and impartiality, as well as respect for the dignity of the service, the reputation of individuals and the presumption of innocence.
Undoubtedly, where an official intends to challenge the lawfulness of an act, he is entitled to set out the grounds, grievances and arguments which he thinks necessary, and in doing so it may be that he criticises others. However, such criticism can only be justified by the need for the official to make his case if it is limited to what is necessary for that purpose.
(see paras 72-73, 87)
See:
13 January 2011, F‑77/09 Nijs v Court of Auditors, paras 70 and 73
3. Although Article 22a of the Staff Regulations provides protection to officials or other staff who alert their institution to conduct on the part of another official or member of staff which may constitute a serious failure to comply with the obligations of officials, that protection is subject to the officials or staff in question following the procedure set out in Article 22a. Indeed, in order to protect the professional reputation of the official or member of staff who is the subject of the information communicated to the institution, pending the disciplinary authority’s decision in relation to him, Article 22a contains a list of those to whom such information may be divulged.
(see para. 77)
4. An official infringes the duty to refrain from any action or behaviour which might reflect adversely upon his position, as set out in Article 12 of the Staff Regulations, if he utters, in public, serious insults which are capable of damaging the reputation of specific persons, not only because they include charges which may harm their individual dignity, but also because they include allegations of a kind which may damage their professional reputation.
Consequently, sending emails containing insults to persons not covered by the authorities mentioned in Articles 22a, 22b and 24 of the Staff Regulations constitutes a breach of Article 12 of the Staff Regulations in itself, regardless of whether the accusations are true.
The same applies to disseminating accusations concerning another official to senior Commission officials, in breach of Article 12 of the Staff Regulations. That Article is one of the concrete expressions of the obligation of loyalty that requires the official not only to refrain from conduct which may undermine the service or the respect due to the institution and its authorities, but also to conduct himself in a correct and respectable manner, particularly if he is in a high grade.
(see paras 85-86, 91)
See:
7 March 1996, T‑146/94 Williams v Court of Auditors, paras 66 and 67; 19 May 1999, T‑34/96 and T‑163/96 Connolly v Commission, paras 123, 124 and 127 to 130; 12 September 2000, T‑259/97 Teixeira Neves v Court of Justice, para. 29
8 November 2007, F‑40/05 Andreasen v Commission, para. 234; Nijs v Court of Auditors, para. 67; 5 December 2012, F‑88/09 and F‑48/10 Z v Court of Justice, para. 252, on appeal to the General Court in Case T‑88/13
5. While it is true that the rights of defence require the person concerned to be given a copy of any document on which the appointing authority intends to rely in adopting a disciplinary penalty, a failure to provide a copy of such a document will not lead to the annulment of the authority’s decision unless the complaints against the person concerned can only be proved by reference to that document.
In relation to a penalty imposed with regard to an email, where the official who is subject to the disciplinary proceedings is the author of the email and less than five years have passed since it was sent, the institution is entitled to assume that he has a copy and that it is not necessary to provide him with another.
(see paras 97, 127, 131)
See:
7 January 2004, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission, paras 68, 71 and 73 to 75
3 July 2001, T‑24/98 and T‑241/99 E v Commission, para. 92
6. One official cannot use behaviour of another which he considers to be wrongful, or even injurious to his dignity, as a pretext for infringing the duty of loyalty and respect for the dignity of his position which is laid down by Article 12 of the Staff Regulations.
(see para. 108)
7. The principle that disciplinary proceedings must await the outcome of a criminal trial, which is set out in Article 25 of Annex IX to the Staff Regulations, concerns the situation where an official is subject to parallel criminal proceedings arising out of the same facts as the disciplinary proceedings. It does not concern the situation where an official has brought criminal proceedings against one of his colleagues.
(see para. 113)
8. In relation to disciplinary proceedings relating to injury which an official may have caused to the dignity of another official or member of staff, the Staff Regulations do not contain any provision to the effect that the administration cannot commence such proceedings unless the person concerned has made a request for assistance which is well-founded.
(see para. 121)
9. It is clear from Article 3 of Annex IX to the Staff Regulations that the appointing authority must act on the basis of the investigation report when it decides whether to initiate disciplinary proceedings. This entails that an impartial investigation has been carried out, on an inter partes basis, into the reality of the alleged facts and the surrounding circumstances. Nevertheless, there is nothing to prevent the administration from carrying out such an investigation in the form of a simple examination of the facts which have been brought to its attention, without deciding to take further steps.
Equally, while the principle of good administration obliges the authority to examine all the relevant aspects of the case carefully and impartially, there is no provision that requires the investigation to be a search for both incriminating and exculpatory matters. The administration is not obliged to put itself in the place of the accused official and seek to identify any factor which might amount to a defence or reduce the penalty imposed.
(see paras 123-124)
See:
Z v Court of Justice, paras 266 and 268