JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

15 October 2014

Case F‑107/13

José António de Brito Sequeira Carvalho

v

European Commission

(Civil service — Officials — Retired official — Disciplinary proceedings — Disciplinary measure — Pension deduction — Examination of the incriminating witness by the Disciplinary Board — Failure to hear the official concerned — Failure to respect the right to be heard)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr de Brito Sequeira Carvalho seeks, principally, annulment of the decision of the European Commission of 14 March 2013 imposing on him, for disciplinary reasons, a deduction of one third of his net monthly pension for a period of two years, as well as an order that the Commission compensate for the harm he claims to have suffered.

Held:      The decision of the European Commission of 14 March 2013 imposing on Mr de Brito Sequeira Carvalho, for disciplinary reasons, a deduction of one third of his net monthly pension for a period of two years is annulled. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr de Brito Sequeira Carvalho.

Summary

1.      Officials — Administration’s duty to have regard for the interests of officials — Limits — Interests of the service — Infringement as a result of the initiation of disciplinary proceedings — None

2.      Officials — Disciplinary measures — Obligation to conduct a preliminary or supplementary investigation — None

(Staff Regulations, Art. 86 and Annex IX, Arts 3 and 17)

3.      Officials — Disciplinary measures — Procedure before the Disciplinary Board — Observance of the right to a fair hearing and the right of each side to submit its case and to reply to the case of the other side

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Staff Regulations, Annex IX, Arts 4, 16(1) and 22, first para.)

4.      Officials — Disciplinary measures — Procedure before the appointing authority — Observance of the right to a fair hearing and the right of each side to submit its case and to reply to the case of the other side — None

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Staff Regulations, Annex IX, Art. 22, first para.)

5.      Officials — Disciplinary measures — Procedure before the Disciplinary Board — Hearing of official by the Disciplinary Board declared medically impossible — Application to defer the hearing — Justification for refusal to defer

(Staff Regulations, Annex IX)

1.      The requirements of the duty to have regard for the interests of officials cannot be interpreted as preventing the appointing authority from bringing disciplinary proceedings against an official. Such a decision is taken primarily in the interest that the institution has in uncovering and, where necessary, penalising breaches of an official’s obligations under the Staff Regulations.

In that regard, an official is not entitled to use a request or complaint as a pretext for disseminating accusations about one of his colleagues to third parties. 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. Moreover, if an official intends to alert his institution to the conduct of one of his colleagues, he must use the legal means available to him under Articles 22a, 22b or 24 of the Staff Regulations, instead of disseminating accusations about that colleague, which cannot fail to damage that person’s professional reputation. In disseminating such accusations to third parties, therefore, an official breaches his obligations under the Staff Regulations. In such circumstances, the appointing authority must take all the administrative measures necessary, including bringing disciplinary proceedings.

(see paras 76-78)

See:

judgment in Brendel v Commission, T‑55/03, EU:T:2004:316, para. 133

judgments in A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, para. 377; and de Brito Sequeira Carvalho v Commission, F‑126/11, EU:F:2013:126, paras 72 and 88

2.      The launching of a preliminary investigation under Article 86 of the Staff Regulations, or of a supplementary investigation under Article 17 of Annex IX to those Regulations, falls within the discretion of the appointing authority or Disciplinary Board. Those provisions do not require an investigation to be launched automatically, nor do they make it an obligation for the appointing authority to do so whenever there is a presumption of a breach of obligations under the Staff Regulations.

Moreover, while it is clear from Article 3 of Annex IX to the Staff Regulations that the appointing authority must exercise its disciplinary powers on the basis of an investigation report, there is nothing to prevent it 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.

(see paras 90, 91)

See:

judgment in de Brito Sequeira Carvalho v Commission, EU:F:2013:126, para. 123 and the case-law cited therein

3.      In the context of disciplinary proceedings as governed by the Staff Regulations, the right to be heard is implemented, for the purposes of the Charter of Fundamental Rights of the European Union, first, by Article 16(1) of Annex IX to the Staff Regulations, which states that the official concerned must be heard by the Disciplinary Board, and, second, by Article 4 of that Annex, which provides that if an official cannot, for objective reasons, be heard under the provisions of that Annex, he may be asked to comment in writing or may be represented by a person of his choice.

Moreover, observance of the right of each side to submit its case and to reply to the case of the other side in disciplinary proceedings, as part of an investigation, requires that the official in issue or his defender must be given the opportunity to attend hearings of witnesses and to ask them questions which he deems useful for his defence. Consequently, where the Disciplinary Board does not consider that it has sufficiently clear information on the facts complained of against the official concerned or the circumstances in which they arose, it must order an investigation in which each side can submit its case and reply to the case of the other side, under Article 17(1) of Annex IX to the Staff Regulations.

(see paras 100, 109)

See:

judgment in Connolly v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, para. 61

4.      As regards, specifically, the obligation for the appointing authority, once the Disciplinary Board has forwarded its opinion, to hear the official before taking its final decision on the matter, the fact that it did not hear the official concerned in accordance with the first paragraph of Article 22 of Annex IX to the Staff Regulations does not lead to the annulment of the decision imposing a disciplinary measure on him if that failure was attributable to the official himself.

In circumstances where the appointing authority’s hearing of the official concerned before its adoption of a decision imposing a disciplinary measure on him does not remedy the Disciplinary Board’s failure to hear him or, ipso jure, the failure to allow both parties to participate in the Disciplinary Board’s examination of an incriminating witness summoned by the appointing authority, it is appropriate to find that the right of the official concerned to be heard has not been observed.

(see paras 101, 122)

See:

judgment in Stevens v Commission, T‑277/01, EU:T:2002:302, para. 41 and the case-law cited therein

5.      Where an official has duly notified the Disciplinary Board in good time, supported by a medical certificate, that he is on a period of sick leave which includes the date scheduled for his hearing, it is for his institution to show, by means of another medical opinion or a substantial body of concordant evidence, that he is, on the contrary, able to attend that hearing or that there is, in reality, no objective reason for his absence.

That is not the case where the Disciplinary Board does not take any steps to check the accuracy or the exact scope of the medical evidence submitted by the official, or any measures to enable him to attend the hearing, in particular by deciding to defer it, at least once, to a suitable new date.

(see paras 111, 117)