JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

9 September 2010

Case T-17/08 P

Marta Andreasen

v

European Commission

(Appeal — Civil service — Commission accounting officer — Disciplinary procedure — Removal from post — Procedural safeguards — Effective judicial protection)

Appeal: against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 8 November 2007 in Case F-40/05 Andreasen v Commission [2007] ECR-SC I-A-1-337 and II-A-1-1859, seeking to have that judgment set aside.

Held: The appeal is dismissed. Ms Marta Andreasen is to bear her own costs and to pay those incurred by the European Commission in the present proceedings.

Summary

1.      Appeal — Jurisdiction of the General Court — Points of law — Review of the proportionality of a disciplinary measure — Scope

(Staff Regulations, Annex IX, Art. 10)

2.      Union law — Principles — Right to effective judicial protection — Enshrined in the European Convention on Human Rights — Reference to the Charter of Fundamental Rights of the European Union

(Arts 263 TFEU and 270 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

1.      The question of the proportionality of a disciplinary measure constitutes a point of law which is consequently subject to review by the appeal court in an appeal, provided that that review may be conducted without calling into question the findings and assessments of the facts made by the first court.

In the appeal, the purpose of the General Court’s review is, first, to examine to what extent the Civil Service Tribunal took into consideration, in a legally correct manner, the criteria set out in Article 10 of Annex IX to the Staff Regulations, and, second, to consider whether the Civil Service Tribunal responded to a sufficient legal standard to the arguments on which the applicant relied in seeking an assessment of the proportionality of the disciplinary measure imposed.

(see paras 93-94)

See: C‑252/97 P N v Commission [1998] ECR I‑4871, paras 58-64; C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paras 127 and 128; C‑359/01 P British Sugar v Commission [2004] ECR I‑4933, para. 47; judgment of 12 November 2009 in C-554/08 P Carbone-Lorraine v Commission, not published in the ECR, para. 71

2.      As a general principle of Union law, the right enshrined in Article 6(1) of the European Convention on Human Rights is applicable in a legal action against a decision of the Commission.

The principle of effective judicial protection is a general principle of Union law stemming from the constitutional traditions of the Member States, which has been enshrined in Articles 6 and 13 of that Convention, this principle having furthermore been affirmed by Article 47 of the Charter of fundamental rights of the European Union.

The judicial review conducted by the Union judicature in the context of an action for annulment under Article 263 TFEU or Article 270 TFEU allows a party sufficient and effective remedy before an independent and impartial tribunal within the meaning of Article 6(1) of the European Convention on Human Rights and the case-law of the European Court of Human Rights, and accordingly makes it possible, in any event, to rectify failures and inadequacies in a disciplinary procedure which preceded referral to the Civil Service Tribunal.

In that respect, the action for annulment before the Civil Service Tribunal enables that Tribunal to correct both factual and legal errors and to review the proportionality between the alleged wrongful conduct and the disputed disciplinary measure.

(see paras 141, 142, 145-146)

See: C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, para. 335; C‑385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I‑6155, paras 178 and 179 and the case-law cited therein; T‑351/01 Schneider Electric v Commission [2007] ECR II‑2237, para. 184