JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
18 March 2016
Case F‑23/15
Petrus Kerstens
v
European Commission
(Civil service — Officials — Obligations — Acts contrary to the dignity of the civil service — Dissemination of insulting remarks with regard to another official — Article 12 of the Staff Regulations — Disciplinary proceedings — Enquiry in the form of an examination of the facts — Reprimand — Article 9(1)(b) of Annex IX to the Staff Regulations — General implementing provisions — Procedural irregularity — Consequences of the irregularity)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Petrus Kerstens essentially seeks annulment of the decision of the European Commission of 15 April 2014 to impose on him the disciplinary penalty of a reprimand.
Held: The action is dismissed. Mr Petrus Kerstens is to bear his own costs and is ordered to pay the costs incurred by the European Commission.
Summary
1. Officials — Disciplinary measures — Measures applicable at the Commission — Enquiry preceding the initiation of disciplinary proceedings — Obligation to conduct an enquiry before initiating disciplinary proceedings — Scope
(Staff Regulations, Art. 110 and Annex IX, Art. 2)
2. Officials — Obligation of administration to provide assistance — Scope
(Staff Regulations, Art. 24 and Annex IX, Art. 10)
3. Officials — Rights and obligations — Acts liable to reflect adversely upon an official’s position — Insulting acts or utterances — Concept
(Staff Regulations, Art. 12)
4. Officials — Disciplinary measures — Penalty — Principle of proportionality — Concept — Discretion of the appointing authority — Judicial review — Limits
(Staff Regulations, Art. 86)
5. Officials — Rights and obligations — Acts liable to reflect adversely upon an official’s position — Insulting acts or utterances — Degree of publicity — Irrelevant
(Staff Regulations, Art. 86)
6. Officials — Disciplinary measures — Disciplinary proceedings — Time limits — Obligation on the administration to act within a reasonable time — Non-compliance — Consequences
(Staff Regulations, Annex IX, Section 5)
1. In the procedure applicable at the Commission concerning disciplinary matters, the requirement to conduct an administrative enquiry prior to initiating disciplinary proceedings stems from the general implementing provisions adopted by the Commission concerning the conduct of administrative enquiries and disciplinary proceedings. Consequently, where the Commission initiates disciplinary proceedings against an official without having conducted an administrative enquiry inculpating or exculpating him, and where it has drawn conclusions about the official without having given him the opportunity to state his opinion, it infringes its obligations under Articles 3(2) and 4(4) of those general implementing provisions.
(see paras 65, 82)
2. In order to ensure that Article 10 of Annex IX to the Staff Regulations is effective, the requirement that the severity of the penalty be commensurate with the seriousness of the misconduct is not just a safeguard for officials who have failed to fulfil their obligations, but also places an obligation on the appointing authority to impose a penalty which appropriately reflects the seriousness of the misconduct committed. Under Article 24 of the Staff Regulations, every institution is under an obligation to protect its officials against any threats, insulting or defamatory acts or utterances or any attacks to which they are subjected, including where they are the victims of attacks from other officials, provided that the facts in question are proven. That obligation involves not just a duty to act where such conduct is established, but also an obligation to prevent, as far as possible, such conduct from occurring in future, in accordance with the duty of care which governs relations between the institutions and their staff.
(see para. 105)
See:
Judgment of 26 January 1989 in Koutchoumoff v Commission, 224/87, EU:C:1989:38, para. 14
Judgment of 12 May 2011 in Missir Mamachi di Lusignano v Commission, F‑50/09, EU:F:2011:55, para. 220
3. Allegations undermining the personal and professional reputation of those concerned may be regarded as insulting acts or utterances and the form which those allegations take is irrelevant, since the concept covers both direct attacks and allegations made in a manner expressing doubt, indirectly, covertly or by way of insinuation.
(see para. 107)
See:
Judgment of 12 September 2000 in Teixeira Neves v Court of Justice, T‑259/97, EU:T:2000:208, paras 29 and 30
4. In order to assess whether the severity of a penalty is commensurate with the seriousness of the acts found to have been committed, the Union judicature must take into consideration the fact that the penalty is to be determined on the basis of an overall assessment by the appointing authority of all the concrete facts and matters appertaining to each individual case, bearing in mind that the Staff Regulations do not specify any fixed relationship between the penalties listed by them and the various types of misconduct on the part of officials, and do not state the extent to which aggravating or mitigating circumstances are to be taken into account in the choice of penalty. Consequently, the examination by the court is limited to the question whether the weight attached by the appointing authority to any aggravating or mitigating circumstances is proportionate, and in that examination it cannot substitute its own assessment for the value-judgments made by the appointing authority in that regard.
(see para. 109)
See:
Judgment of 22 May 2014 in BG v Ombudsman, T‑406/12 P, EU:T:2014:273, para. 64 and the case-law cited therein
5. The accusation that an official has committed an act which reflects adversely upon his position does not depend on the degree of publicity which his insulting acts have received.
(see para. 116)
See:
Judgment of 26 November 1991 in Williams v Court of Auditors, T‑146/89, EU:T:1991:61, para. 76
6. It follows from the principle of sound administration that 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 time following the previous step.
However, infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken as the culmination of disciplinary proceedings. It is only in exceptional circumstances where the passing of an excessive period is likely to affect the content itself of the decision adopted as the culmination of the disciplinary proceedings that failure to observe the reasonable time principle affects the validity of the disciplinary proceedings. That may be the case where the passing of an excessive period affects the ability of the persons concerned to defend themselves effectively, or where the passing of such a period creates for the person concerned a legitimate expectation that no disciplinary penalty will be imposed on him.
(see paras 131, 132)
See:
Judgment of 27 November 2001 in Z v Parliament, C‑270/99 P, EU:C:2001:639, para. 43
Judgment of 1 April 2004 in N v Commission, T‑198/02, EU:T:2004:101, para. 125 and the case-law cited therein
Judgments of 13 January 2011 in Nijs v Court of Auditors, F‑77/09, EU:F:2011:2, para. 146, and 8 March 2012 in Kerstens v Commission, F‑12/10, EU:F:2012:29, para. 124