JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 March 2012

Case F‑12/10

Petrus Kerstens

v

European Commission

(Civil service — Officials — Disciplinary proceedings — Referral to the Disciplinary Council by an authority not empowered to do so — Written warning — Duration of procedure — Rights of the defence and presumption of innocence — Reasonable time)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Kerstens seeks annulment of the Commission’s decision of 23 April 2009 imposing on him a disciplinary penalty in the form of a written warning.

Held: The action is dismissed. Mr Kerstens is to pay all the costs.

Summary

1.      Procedure — Application initiating proceedings — Reply — Formal requirements — Brief summary of the pleas in law on which the application is based

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Civil Service Tribunal, Arts 35(1)(e) and 41)

2.      Procedure — Res judicata — Scope — Second action relating to a separate individual decision adopted after that contested in the first action — Admissibility

3.      Officials — Disciplinary measures — Investigation carried out before disciplinary proceedings were initiated — Investigatory powers of the Investigation and Discipline Office of the Commission — Scope — Recommendation to the appointing authority to impose an administrative measure on the official concerned — Included

(Staff Regulations, Annex IX, Art. 3)

4.      Officials — Disciplinary measures — Initiation of disciplinary proceedings — Time-limit — Administration’s duty to act within a reasonable period — Non-observance — Consequences

(Staff Regulations, Annex IX, Art. 5)

5.      Officials — Disciplinary measures — Disciplinary proceedings — Time-limits — Administration’s duty to act within a reasonable period — Assessment — Non-observance — Special circumstances — Burden of proof

(Staff Regulations, Annex IX)

1.      Pursuant to Article 21 of the Statute of the Court of Justice and Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, an application must contain the pleas in law and the factual and legal arguments on which it is based. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Tribunal to decide the case, if appropriate, without other information in support. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for a plea to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. That interpretation of Article 35(1)(e) of the Rules of Procedure also covers the conditions of admissibility of the reply, which, according to Article 41 of the Rules of Procedure, is intended, with the rejoinder, to supplement the documents before the Tribunal.

(see para. 68)

See:

20 April 1999, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission, paras 39 and 40

13 September 2011, F‑100/09 Michail v Commission, para. 22

2.      The force of res judicata attaching to a judgment can constitute a bar to the admissibility of an action if the action which gave rise to the judgment in question was between the same parties, had the same subject-matter and was founded on the same grounds, those conditions necessarily being cumulative.

That is not the case where the second action concerns a separate individual decision adopted after the decision that was the subject of the first action. In those circumstances, the two actions cannot be considered to have the same subject-matter.

(see paras 85, 87)

See:

19 September 1985, 172/83 and 226/83 Hoogovens Groep v Commission, para. 9; 22 September 1988, 358/85 and 51/86 France v Parliament, para. 12

8 March 1990, T‑28/89 Maindiaux and Others v ESC, para. 23; 5 June 1996, T‑162/94 NMB France and Others v Commission, paras 37 and 38

3.      In its administrative investigation report preceding the appointing authority’s decision on whether or not to initiate disciplinary proceedings, the Investigation and Discipline Office of the Commission (IDOC) does not exceed its powers of investigation by formulating a recommendation to the appointing authority to adopt an administrative measure against an official.

In so far as IDOC and the appointing authority are two separate, independent bodies, IDOC is entitled to make incidental or supplementary recommendations. It is thus free, for example, to specify the type of disciplinary proceedings it advises should be initiated against the person concerned. Given that Article 3 of Annex IX to the Staff Regulations provides for the person concerned to be heard by the appointing authority on the basis of the investigation report drawn up by IDOC, the recommendations which IDOC considers it appropriate to make are necessarily included in that report before the person concerned is heard by the appointing authority under Article 3.

(see paras 94-95)

4.      While the Staff Regulations do not lay down any limitation period for initiating disciplinary proceedings, they do, however, lay down in Section 5 of Annex IX strict time-limits for the conduct of the disciplinary proceedings before the Disciplinary Board. Although those time-limits are not mandatory, they nevertheless set out a rule of sound administration, the purpose of which is to avoid, in the interest of both the administration and officials, an unreasonable delay in the adoption of the decision concluding the 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 observe such a period, which can be assessed only in the light of the specific circumstances of the case, may result in the measure being declared void.

That duty to act diligently and to observe the reasonable time requirement is also essential with regard to the institution of disciplinary proceedings, in particular in circumstances where and from the time when the administration becomes aware of facts and conduct which are liable to constitute breaches of an official’s obligations under the Staff Regulations. Even in the absence of a limitation period, the disciplinary authorities are under an obligation to ensure that proceedings likely to result in a penalty are instituted within a reasonable time.

Moreover, the principle of legal certainty would be undermined if the administration delayed unduly the initiation of disciplinary proceedings. In fact, both the assessment by the administration of the facts and conduct liable to constitute a disciplinary offence and the exercise by the official of his rights as the defendant may prove particularly difficult if a substantial period of time has elapsed between the time when those facts and that conduct took place and the start of the disciplinary inquiry. On the one hand, important witnesses and documents — whether in the defendant’s favour or otherwise — may have disappeared and, on the other, it becomes difficult for everyone concerned, including witnesses, to reconstruct faithfully their memories of the facts of the case and the circumstances in which they arose.

(see paras 124-126)

See:

17 October 1991, T‑26/89 de Compte v Parliament, para. 88; 26 January 1995, T‑549/93 D v Commission, para. 25; 10 June 2004, T‑307/01 François v Commission, para. 47

5.      The period to be taken into account in order to ascertain whether the duration of disciplinary proceedings is reasonable is not solely that commencing on the date of the decision to institute those proceedings. The question whether the disciplinary proceedings, once commenced, have been conducted with due diligence will be influenced by the length of the period between the occurrence of the alleged disciplinary offence and the decision to institute disciplinary proceedings.

The reasonableness of the length of the phase preceding the disciplinary proceedings and of the length of the proceedings proper is to be appraised 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. No specific factor is decisive. Each must be examined separately and then their cumulative effect evaluated. Some instances of delay attributable to the appointing authority may not appear unreasonable in isolation but are unreasonable when considered together. The requirements of procedural diligence do not, however, go further than those compatible with the principle of sound administration. Thus, even if it is possible that some stages of the phase preceding the institution of the disciplinary proceedings might have been conducted more speedily, the period would be reasonable if the accumulation of not unreasonable delays in each of those stages results in a period which, taken as a whole, could not be regarded as so unreasonable as to time-bar the disciplinary liability of the person concerned.

Where decisions taken by the appointing authority have caused proceedings to exceed the period that would normally be considered reasonable, it is for that authority to prove the existence of special circumstances of such a nature as to justify that delay.

(see paras 127-130, 143)

See:

13 January 2010, F‑124/05 and F‑96/06 A and G v Commission, paras 392 to 395