ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

13 February 2014

Case F‑5/14 R

CX

v

European Commission

(Civil service — Application for interim measures — Disciplinary proceedings — Removal from post — Application for suspension of operation of a measure)

Application:      under Articles 278 TFEU and 157 EA and Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which CX sought suspension of the operation of the decision of 16 October 2013 by which the European Commission removed him from his post, as a disciplinary measure, with effect from 1 November 2013. On the same day the applicant brought an action before the Tribunal seeking, primarily, annulment of that decision. The application in the main action was entered in the Register of the Tribunal as Case F‑5/14.

Held:      The application by CX for interim measures is dismissed. The costs are reserved.

Summary

1.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Prima facie examination of the pleas in law put forward in support of the main action

(Art. 278 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

2.      Application for interim measures — Conditions for admissibility — Application — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — Reference to all the annexes — Inadmissibility

(Statute of the Court of Justice, Art. 21, first para. and Annex I, Art. 7(3); Rules of Procedure of the Civil Service Tribunal, Arts 34 and 35)

3.      Officials — Disciplinary measures — Disciplinary proceedings — Time-limits — Obligation on the administration to act within a reasonable time — Assessment — Non-observance — Special circumstances — Burden of proof

(Staff Regulations, Annex IX, Art. 22)

4.      Officials — Disciplinary measures — Disciplinary proceedings — Time-limits — Obligation on the administration to act within a reasonable time — Non-observance — Consequences

(Staff Regulations, Annex IX, Art. 22)

5.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Balancing of all the interests involved — Protection of the financial interests of the European Union taking precedence over the interests of the applicant

(Art. 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2); Commission Decision 1999/352)

1.      In order to determine whether the condition for establishing a prima facie case is satisfied it is necessary, first, to carry out a prima facie examination of the substance of the complaints put forward by the applicant in support of the main action and therefore to ascertain whether at least one of them is so weighty that it cannot be discounted in the interlocutory proceedings.

(see para. 30)

See:

15 November 2007, T‑215/07 R Donnici v Parliament, para. 39 and the case-law cited

2.      Even though the body of an application, which complies, both in interlocutory proceedings and in the main proceedings, with the formal requirements laid down in Articles 34 and 35 of the Rules of Procedure of the Civil Service Tribunal, may be supported and supplemented, in regard to specific points, by references to documents appended thereto, the annexes have a purely evidential and instrumental function. The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application and the applicant must indicate in his application the specific complaints on which the Tribunal is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based.

Therefore, the judge hearing the application for interim measures must not take account of the pleas of fact and law set out in the application in the main action, annexed to the application for interim measures and to which the latter refers.

(see paras 31, 32)

See:

30 January 2007, T‑340/03 France Télécom v Commission, para. 167

2 July 2009, F‑49/08 Giannini v Commission, para. 86

3.      Although the time-limits laid down by Article 22 of Annex IX to the Staff Regulations and the time-limits for the conduct of disciplinary proceedings generally are not mandatory, they do constitute rules of sound administration the purpose of which is to avoid, in the interests both of the administration and of officials, unjustified delay in adopting the decision terminating 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. The 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.

The reasonableness of the duration of any proceedings must be assessed 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.

Where proceedings concerning an official exceed the period that would normally be considered reasonable, it is for the appointing authority to prove the existence of special circumstances of such a nature as to justify that delay.

(see paras 36, 37, 42, 44, 45)

See:

5 May 1983, 207/81 Ditterich v Commission, para. 26; 17 December 1998, C‑185/95 P Baustahlgewebe v Commission, para. 29 and the case-law cited

17 October 1991, T‑26/89 de Compte v Parliament, para. 88; 3 July 2001, T‑24/98 E v Commission, para. 52; 10 June 2004, T‑307/01 François v Commission, para. 48 and the case-law cited

4.      In the context of disciplinary proceedings, for a procedural irregularity to result in the annulment of a measure it must be the case that, had it not been for that irregularity, the outcome of the proceedings might have been different.

In that regard, infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken as the culmination of an administrative procedure vitiated by delay. It is only where the elapsing of an excessive period is likely to affect the content itself of the decision adopted as the culmination of the administrative procedure that failure to observe the reasonable time principle affects the validity of that administrative procedure.

In any event, although acts tainted by an irregularity of such obvious gravity that it cannot be tolerated by the Union’s legal system must be deemed not to have produced any legal effects, the gravity of the consequences attaching to a finding that a measure of a Union institution is non-existent means that, for reasons of legal certainty, such a finding may be reserved for quite extreme situations.

(see paras 40, 48, 50)

See:

21 March 1990, C‑142/87 Belgium v Commission, para. 48

23 April 2002, T‑372/00 Campolargo v Commission, para. 39

24 November 2010, T‑9/09 P Marcuccio v Commission, para 37 and the case-law cited

9 October 2013, F‑116/12 Wahlström v Frontex, para. 40

5.      As regards the balancing of the interests involved in the context of interlocutory proceedings, in the absence of grounds of complaint that are sufficiently sound and relevant to constitute a prima facie case at the interlocutory stage, maintaining in service an official who is alleged to have committed acts contrary to the financial interests of the European Union, although he was employed by the Union and was required to behave in a manner that was beyond reproach, is likely to have a serious effect on the credibility of the institutions, and the confidence of the States and of the public in general in those institutions. Consequently, assuming that serious and irreparable damage were found to exist, the interest of the institution concerned in not being required to maintain an employment relationship in a situation in which an official has been dismissed following disciplinary proceedings must take precedence over that official’s interest in obtaining suspension of the contested decision.

It is clear from the preamble to Decision 1999/352 establishing the European Anti-fraud Office (OLAF) that the institutions and the Member States attach great importance to the protection of the financial interests of the European Union and to the fight against fraud and any other illegal activities to the detriment of those financial interests. Furthermore, it is acknowledged that public opinion is sensitive to the question of the protection of public funds and of the European taxpayer.

(see paras 80, 81)

See:

14 August 2002, T‑198/02 R N v Commission, para 60