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

15 April 2015

Case F‑96/13

Nikolaos Pipiliagkas

v

European Commission

(Civil service — Officials — Transfer in the interests of the service — Article 26 of the Staff Regulations — Rights of defence)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Pipiliagkas seeks, in particular, annulment of the decision of the appointing authority of the European Commission reassigning him by transfer, with effect from 1 January 2013, to the Shared Resources Directorate of the Directorate-General (DG) Mobility and Transport (‘DG Mobility’) in Brussels (Belgium).

Held:      The decision of the European Commission of 19 December 2012 reassigning Mr Pipiliagkas to the Shared Resources Directorate of the Directorate-General Mobility and Transport in Brussels (Belgium) with effect from 1 January 2013 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 Pipiliagkas.

Summary

1.      Judicial proceedings — Measures of organisation of procedure — Request lodged by an official to withdraw certain documents from the file claiming that they were not placed on his personal file — Rejection

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 137(2); Staff Regulations, Art. 26)

2.      Officials — Personal file — Documents to be included — Decision affecting the administrative status of an official — Concept — Communications from officials criticising the attitude of another official who was subsequently reassigned — Included

(Staff Regulations, Art. 26, first para., point (a))

3.      Officials — Decision affecting the administrative status of an official — Taking into account of information not in his personal file — Decisive influence — Annulment — Conditions

(Staff Regulations, Art. 26, second para., and Art. 90(1))

4.      Officials — Principles — Rights of the defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope

1.      Article 26 of the Staff Regulations prohibits an institution from using or citing against an official documents that should be included in his personal file but which are not mentioned in that file, so that a decision of the administration based on such documents must be annulled. However, that article does not in any way govern the validity of such documents in the context of judicial proceedings.

Moreover, excluding from such proceedings documents which have been communicated to the official would have the effect of preventing the Union judicature from examining any pleas raised before it which are based on those documents. In that regard, it would make no sense to remove from the proceedings documents which have been used in examining a plea after the hearing at which those very documents were considered in order to reach a decision on that plea. After all, such a step would be contrary to Article 137(2) of the Rules of Procedure of the General Court of the European Union, under which, in an appeal, the Registry of the Civil Service Tribunal must transmit the papers in the case at first instance to the Registry of the General Court.

(see paras 26, 27)

See:

Judgments in Rozand-Lambiotte v Commission, T‑96/95, EU:T:1997:25, para. 42, and de Brito Sequeira Carvalho v Commission, T‑40/07 P and T‑62/07 P, EU:T:2009:382, para. 99

2.      Article 26, first paragraph, (a) of the Staff Regulations does not, in itself, require the administration to place all documents of any sort relating to an official on his personal file. It thus draws a distinction between, on the one hand, ‘documents’ which must be included in the personal file only if they concern the administrative status of the official concerned, and ‘reports’ which must be included only if they relate to his ability, efficiency or conduct, and, on the other hand, all other documents relating to the official in question.

In referring to the above-mentioned reports, Article 26, first paragraph, (a) of the Staff Regulations means formal, ‘official’ documents relating to the ability, efficiency and conduct of officials. However, the personal file should also contain documents recording facts or factual particulars concerning the official’s conduct which will then be used for the adoption of a decision affecting his administrative status and career, such as an opinion in the form of a note containing an assessment of his ability and conduct, or existing documents containing any alleged complaints against him, or any documents capable of affecting his administrative status and career. However, Article 26 of the Staff Regulations in no way prohibits an institution from instigating an inquiry and drawing up a file for that purpose, and the only documents relating to that inquiry which have to be included in the official’s file are any decisions on disciplinary measures taken on the basis of that inquiry file.

Furthermore, mere emails are not, as a rule, regarded as reports within the meaning of Article 26, first paragraph, (a) of the Staff Regulations. Similarly, a note not drawn up by an administrative authority also cannot be regarded as a report within the meaning of that provision.

A document concerning an official’s administrative status and which is capable of having a decisive influence on a decision must, as a general rule, have been communicated to the official concerned before it is placed on his personal file. As regards more particularly a decision reassigning an official, despite the fact that it does not constitute a report relating to his ability, efficiency or conduct within the meaning of Article 26, emails or a note signed by officials and other staff criticising the attitude of the official in question must first be communicated to him and placed on his personal file, since they are capable of having a decisive influence on the decision whether or not to reassign him.

(see paras 42, 43, 46, 48)

See:

Judgment in Ojha v Commission, C‑294/95 P, EU:C:1996:434, para. 67

Judgments in Rozand-Lambiotte v Commission, EU:T:1997:25, para. 42; Apostolidis v Court of Justice, T‑86/97, EU:T:1998:71, para. 36; Ojha v Commission, T‑77/99, EU:T:2001:71, para. 57; Recalde Langarica v Commission, T‑344/99, EU:T:2001:237, para. 60; Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, para. 52, and de Brito Sequeira Carvalho v Commission, EU:T:2009:382, para. 96

Judgments in Bianchi v ETF, F‑38/06, EU:F:2007:117, paras 45 and 48, and Talvela v Commission, F‑43/06, EU:F:2007:162, paras 59 to 62

3.      The mere fact that certain documents were not placed on an official’s personal file is not such as to justify annulment of a decision adversely affecting him if they were in fact brought to his knowledge.

It is apparent from the second paragraph of Article 26 of the Staff Regulations that the prohibition on using against an official documents concerning his administrative status applies only to documents which were not previously communicated to him. It does not cover documents which, although brought to his knowledge, have not yet been placed on his personal file. In the event of the institution not placing such documents on the official’s personal file, it would always be open to the official to make a request to that effect under Article 90(1) of the Staff Regulations, and, in the event of rejection, to lodge an administrative complaint. But, in any case, the institution cannot be prevented from taking a decision in the interests of the service on the basis of documents that were previously communicated to the person concerned, simply on the ground that they were not put on his personal file.

(see para. 49)

See:

Judgment in Ojha v Commission, EU:C:1996:434, para. 68

Judgment in Recalde Langarica v Commission, EU:T:2001:237, para. 60

4.      The mere establishment that the official concerned knew of the factual matters on which a decision adversely affecting him is based cannot be regarded as sufficient evidence that he had the opportunity effectively to defend his interests prior to the adoption of that decision. In order for the observance of his right to a fair hearing to be ensured, the institution must still demonstrate, by any means, that it had previously enabled the official concerned to understand that the factual matters in question, although not placed on his personal file, were such as to justify a decision adversely affecting him. Furthermore, it follows from the principle of the rights of the defence, of which the right to be heard is an expression, that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make his views effectively known as to the truth and relevance of the facts and circumstances on which that decision may be based. In that regard, where an official’s superiors summon him to an interview, the administration must ensure that the official concerned is clearly informed of the planned measure and in particular of the subject of the interview, so that he can make his views effectively known before a decision adversely affecting him is adopted.

However, for an infringement of the right to be heard to result in the annulment of the decision adversely affecting the official it is also necessary to examine whether, had it not been for that irregularity, the outcome of the procedure might have been different. In the context of that examination, it is important to take account of all the circumstances of the case and, in particular, of the nature of the allegations and the scale of the procedural irregularities committed in relation to the guarantees which the official may have been given.

In that regard, where the decision adversely affecting the official is founded on allegations based on subjective value-judgments, which are therefore by their very nature liable to be changed, if the official had been heard before the decision was drawn up, he would have been able to make his views known and thus perhaps alter the assessments made of him.

(see paras 55, 57, 65, 66)

See:

Judgment in de Brito Sequeira Carvalho v Commission, EU:T:2009:382, para. 94

Judgments in Nastvogel v Council, F‑4/10, EU:F:2011:134, para. 94; Possanzini v Frontex, F‑124/11, EU:F:2013:137, para. 60; CH v Parliament, F‑129/12, EU:F:2013:203, para. 38; Delcroix v EEAS, F‑11/13, EU:F:2014:91, paras 35 and 42, and Tzikas v AFE, F‑120/13, EU:F:2014:197, point 55