Judgment of the General Court (Eighth Chamber) of 24 November 2021 –
CX v Commission
(Case T‑743/16 RENV II)
(Civil service – Officials – Disciplinary measure – Removal from post – OLAF investigation – Unauthorised and clandestine negotiation of a contract – Conflict of interests – Certification of a non-compliant invoice – Rights of the defence – Right to be heard – Repeated absence of the applicant and his lawyer from the disciplinary hearing – Legal certainty – Legitimate expectations – Proportionality – Reasonable time – Principle ne bis in idem – Manifest error of assessment – Obligation to state reasons)
1. Officials – Disciplinary measures – Penalty – Removal from post – Discretion of the appointing authority – Judicial review – Limits – Manifest error – Definition – Burden of proof
(Staff Regulations of Officials, Art. 86 and Annex IX, Art. 10)
(see paras 90-92, 355-357)
2. Officials – Disciplinary measures – Disciplinary proceedings – Failure to fulfil an obligation – No financial harm arising from the conduct or no profit for the person concerned – Irrelevant
(see paras 117, 157)
3. Officials – Rights and obligations – Duty of loyalty – Scope – Creation and continuation of a situation where there is a conflict of interests – Infringement
(Staff Regulations of Officials, Arts 11, 11a and 12)
(see paras 128-133)
4. EU budget – Financial regulation – Implementation of the budget – Prohibition on financial actors from taking any measures of implementation where there is a conflict of interests – Concept of conflict of interest – Sharing by an EU official of a commonality of interests with the founder of a company – Included
(Council Regulation No 1605/2002, Art. 52(2); Staff Regulations of Officials, Arts 11 and 12)
(see paras 148-152)
5. EU budget – Financial regulation – Implementation of the budget – Expenditure operations – Commitment of expenditure – Passing for payment of procurement contracts – Effect – Need to verify that the service has actually been provided in accordance with the applicable provisions
(Council Regulation No 1605/2002, Art. 52(2); Commission Regulation No 2342/2002, Art. 98)
(see para. 163)
6. Officials – Disciplinary measures – Procedure – Hearing of the official concerned by the appointing authority – Lack of attendance by the official concerned on the basis of a medical certificate – Presumption of incapacity to enter an appearance – Rebuttable – Burden of proof – Possibility for the official concerned to be represented or to submit written comments
(Charter of Fundamental Rights of the European Union, Arts 41(2)(a), 51(1) and 52(1); Staff Regulations of Officials, Annex IX, Arts 4 and 22(1))
(see paras 200-204, 211-213, 236, 237)
7. Officials – Acts of the administration – Presumption of validity – Non-existent act – Definition – Report by the European Anti-Fraud Office (OLAF) containing a clerical error as to the date when it was drawn up – Not included
(Art. 288 TFEU)
(see paras 247-251, 254, 255)
8. Officials – Disciplinary measures – Decision to open disciplinary proceedings – Request sent by the administration to the appointing authority, before the opening of the proceedings, drawing up a list of the allegations against the official concerned and noting the powers of that authority – Infringement of the right to the presumption of innocence – None
(Staff Regulations of Officials, Annex IX, Art. 22(2))
(see paras 290-292)
9. Officials – Disciplinary measures – Penalty – Decision by the appointing authority – Time limit for adoption – Non-compliance – Consequences
(Staff Regulations of Officials, Annex IX, Art. 22(1))
(see paras 339-349)
10. Officials – Disciplinary measures – Penalty – Discretion of the appointing authority – Assessment as a whole of different failures to fulfil obligations – Whether permissible
(see para. 364)
11. Officials – Disciplinary measures – Penalty – Mitigating circumstance – Successful career of the person concerned – Not included in the case of particularly serious misconduct
(Staff Regulations of Officials, Annex IX, Art. 10)
(see para. 367)
12. Officials – Disciplinary measures – Penalty – Mitigating circumstance–Long period of time since the alleged misconduct – Delay in discovery attributable to the conduct of the person concerned – Not included
(Staff Regulations of Officials, Annex IX, Art. 10)
(see paras 368-370, 404)
13. Judicial proceedings – Costs – Taxation of costs – Taxation not capable of taking place until after the decision closing the proceedings – Judgement delivered by the Civil Service Tribunal, set aside on appeal to the General Court and referred to another Chamber of that latter court – Taxation of all of the costs of the different sets of proceedings
(Rules of Procedure of the General Court, Arts 133 and 219)
(see paras 421, 422)
Operative part
The Court:
2. | | Orders CX to bear his own costs and to pay those of the European Commission relating to the present proceedings and to the proceedings in Cases F‑5/14 R, F‑5/14, T‑493/15 P, T‑743/16 RENV and C‑131/19 P. |