Case T‑693/16 P RENV-RX
(publication in extract form)
HG
v
European Commission
Judgment of the General Court (Fourth Chamber), 15 December 2021
(Appeal – Civil service – Officials – Posting to a third country – Family accommodation provided by the administration – Non-compliance with the obligation to reside there as a family – Disciplinary proceedings – Disciplinary penalty of deferment of advancement to a higher step – Making good any damage suffered by the Union – Article 22 of the Staff Regulations – Dismissal of the action on the merits – Setting aside on appeal – Judgment on appeal re-examined by the Court of Justice and set aside – Referral back to the General Court)
1. Officials – Rights and obligations – Duty of loyalty – Scope – Finding of failure to comply – Criteria for assessment – Reasons behind the official’s conduct – Included
(Staff Regulations of Officials, Art. 11)
(see paragraphs 93-98)
2. Actions brought by officials – Unlimited jurisdiction – Scope – Possibility to take account of an additional ground not in the contested act
(Staff Regulations of Officials, Arts 22, third para., and 91(1))
(see paragraphs 102, 104)
3. Officials – Recovery of overpayments – Scope – Benefit in kind granted to the official – Included
(Staff Regulations of Officials, Art. 85)
(see paragraph 109)
4. Officials – Recovery of overpayments – Limitation period – Reliance thereon by an official who has engaged in serious misconduct – Procedure for recovery of overpayments and procedure for making good damage suffered by the Union as a result of serious misconduct on the part of an official – Different conditions for application – Not permissible
(Staff Regulations of Officials, Arts 22 and 85)
(see paragraphs 112, 113)
5. Officials – Disciplinary measures – Disciplinary proceedings – Misconduct to be taken into account for the purposes of the disciplinary proceedings – Definition of the misconduct by the administration – Alteration of the extent or nature of the misconduct during the investigation stage – Whether permissible with regard to observance of the rights of the defence
(Staff Regulations of Officials, Annex IX, Arts 1 to 3 and 12(1) and (2))
(see paragraph 159)
6. Officials – Disciplinary measures – Procedure – Observance of the rights of the defence – Measures of inquiry implemented by the investigating services – Obligation for the administration to include those measures in the case file communicated to the Disciplinary Board and to the official concerned
(Charter of Fundamental Rights of the European Union, Art. 41(2)(b); Staff Regulations of Officials, Annex IX, Art. 13(1))
(see paragraph 163)
7. Officials – Disciplinary measures – Penalty – Discretion of the appointing authority – Opinion of the Disciplinary Board – Possibility for the opinion to be contested by the person concerned in an action directed against the decision imposing a penalty – Conditions – Taking into account, in the decision imposing a penalty, of the assessment made by the Disciplinary Board
(Staff Regulations of Officials, Annex IX, Arts 3 and 11 to 18)
(see paragraph 170)
8. Officials – Disciplinary measures – Respective roles and powers of the Disciplinary Board and the appointing authority – Disciplinary Board – Power to review the legality of the investigation procedure – None
(Staff Regulations of Officials, Annex IX, Arts 17 and 18)
(see paragraph 240)
9. Officials – Rights and obligations – Special and exceptional provisions applicable to officials serving in a third country – Provision of staff accommodation – Accommodation of a size proportional to the needs of the official’s family – Obligation to reside there as a family – Infringement – Serious misconduct – Damage suffered by the Union corresponding to the rent paid for the staff accommodation – Obligation of the official to make good that damage
(Staff Regulations of Officials, Arts 11 and 22 and Annex X, Art. 5(1))
(see paragraphs 295, 300, 302)
10. Officials – Disciplinary measures – Disciplinary proceedings – Time limits – Obligation on the administration to act within a reasonable period – Assessment
(Staff Regulations of Officials, Arts 22 and 85; Parliament and Council Regulation No 966/2012, Art. 81)
(see paragraphs 307-310)
11. Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Protection against disciplinary proceedings – Limits
(Staff Regulations of Officials, Art. 22a(1))
(see paragraph 315)
12. Actions brought by officials – Unlimited jurisdiction – Scope – Possibility of reducing the financial compensation required of an official for serious misconduct – Contribution of the institution to the occurrence in full of the damage suffered by it
(Staff Regulations of Officials, Arts 22, third para., and 91(1))
(see paragraphs 318, 319)
Résumé
The appellant, HG, served as an adviser in a delegation of the European Commission in a third country between 2008 and 2013. In that context, the Commission provided him, under certain conditions, with a staff apartment rented by it, corresponding to the needs of his family, from September 2008 for a period of two years.
However, the appellant occupied that apartment for only a few days during the week, without his family, which he justified on the basis of persistent family problems and internal flaws in the apartment, of which he informed the head of administration of the delegation in October 2008.
On conclusion of an investigation conducted by the European Anti-Fraud Office (OLAF), which recommended that the Commission initiate disciplinary proceedings against the appellant and recover from him the rent paid for the apartment, and, subsequently, of an investigation by the Investigation and Disciplinary Office of the Commission (IDOC), the Commission decided, in July 2014, to open such proceedings before the Disciplinary Board with a view to imposing a penalty for breach of a number of obligations under the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and with a view to having him reimburse the rent on the basis of Article 22 of the Staff Regulations, which concerns the making good by officials of damage suffered by the Union as a result of their actions. At the end of October 2014, the Disciplinary Board delivered an opinion, in which it proposed that the Commission recover from the appellant the rent paid for the months of January 2009 to August 2010 and impose on him a penalty of deferment of advancement to a higher step for a period of 18 months.
In February 2015, the appointing authority of the Commission adopted a decision (‘the decision at issue’) in line with the opinion of the Disciplinary Board.
After the appellant’s complaint against the decision at issue was rejected, he brought an action before the Civil Service Tribunal seeking, inter alia, the annulment of the decision at issue and, in the alternative, a reduction of the amount to be reimbursed to the Commission. The Civil Service Tribunal, however, dismissed that action. (1)
Following an appeal by the appellant, the General Court sets aside the judgment at first instance on the ground that the Civil Service Tribunal distorted the case file, committed errors of law and breached the obligation to state reasons. (2) However, ruling on the substance of the case, the Court upholds, in essence, the disciplinary penalty imposed by that judgment, whilst reducing the amount of the financial compensation owed to the Commission. In its judgment, the Court provides clarification regarding, inter alia, the scope of the duty of loyalty incumbent on officials, the conditions under which an official will incur financial liability for serious misconduct, and the rules governing disciplinary proceedings.
Findings of the General Court
As regards, first of all, the duty of loyalty which is imposed on officials under, inter alia, Article 11 of the Staff Regulations, the Court states that the assessment of the loyalty of a person is equivalent to the assessment of his or her conduct towards the entity or person to which or to whom that loyalty is due according to the context, and that, consequently, the reasons which led an official to engage in certain conduct are to be taken into account in determining whether he or she has been disloyal to the European Union. That being the case, the Court upholds the conclusion in the decision at issue finding a lack of loyalty on the part of the appellant, specifying that in the case of an official who has asked for staff accommodation of a size proportional to the needs of his or her family, the duty of loyalty requires him or her to occupy that accommodation with his or her family or to indicate that he or she is giving the accommodation up where persistent difficulties prevent his or her family, beyond a reasonable period, from moving into it.
Thus, the Court goes on to examine the potential financial liability of the appellant under Article 22 of the Staff Regulations, which provides that an official may be required to make good, in whole or in part, any damage suffered by the Union as a result of serious misconduct on his or her part in the course of or in connection with the performance of his or her duties.
It recalls, as a preliminary point, that the court ruling on the substance of a case may, where it exercises unlimited jurisdiction on the basis of Article 22 of the Staff Regulations, provide its own assessment and reasoning to establish the financial liability of an official and may add, on that basis, additional grounds not in the decision at issue.
Next, the Court upholds the classification of the appellant’s conduct, namely the prolonged unlawful use of his staff apartment, beyond a reasonable period, without in any way approaching the delegation with a view to handing it back, as serious misconduct capable of rendering him financially liable under Article 22 of the Staff Regulations. In addition, it holds that, throughout the lease period, the Union suffered damage corresponding to all the rental payments made for the family sized staff apartment allocated to the appellant without there being any justification for the rental of such an apartment and without it being possible for any utility whatsoever to be derived from it. The fact, relied on by the appellant, that the lease could not be terminated in the first year does not affect that finding.
However, exercising its unlimited jurisdiction, the Court finds that the Commission, represented in this case on site by the head of administration of the delegation, contributed to the occurrence in full of the damage suffered by it when it could have reduced the extent of that damage. With that in mind, the head of administration of the delegation should have required the appellant to leave his staff accommodation, instead of merely reminding him of the unlawful nature of his situation. Thus, and in the light of all the circumstances of the present case, the Court takes the view ex æquo et bono that the compensation, by the appellant, for the damage suffered by the Union must be reduced.
In so far as the appellant relies on the five-year limitation period provided for by Article 85 of the Staff Regulations in the event of a claim for recovery of overpayments and, in the alternative, the limitation period provided for in the Regulation on the general budget of the European Union, (3) the Court points out that, in order to recover a benefit in kind, such as the provision of a staff apartment, the institutions may, depending on the circumstances, either bring an action for recovery of overpayments under that provision or make use of the procedure laid down by Article 22 of the Staff Regulations, emphasising that the procedures laid down by those two provisions differ both in terms of their nature and in terms of the substantive conditions and the conditions for the adoption of the decisions in question. As the Commission, in the present case, has made use of the procedure laid down by Article 22 of the Staff Regulations, the five-year limitation period provided for by Article 85 of the Staff Regulations does not apply to it; nor, moreover, does the limitation period provided for in the Regulation on the general budget of the European Union. In the absence of a legal limitation period for the adoption of a decision under Article 22 of the Staff Regulations, the Commission was obliged, by virtue of the requirement of legal certainty, only to adopt the decision within a reasonable time, which it did, in the present case, in the light of all the circumstances specific to the case.
In addition, the Court refuses to recognise the appellant as having whistle-blower status for the purposes of Article 22a of the Staff Regulations by way of an extenuating circumstance in relation to his financial liability. Even though the appellant had, correctly, reported the fraudulent conduct of a colleague, he cannot rely on having whistle-blower status, assuming that such status could amount to an extenuating circumstance, since the facts alleged were already known and had nothing to do with the facts found against him.
As regards, lastly, the rules governing disciplinary proceedings, the Court recalls that the possible misconduct alleged against an official does not have to be crystallised as early as the investigation stage which precedes the disciplinary proceedings in the strict sense of that term, but that adjustments may be made in that regard during the investigation in the light of its progress. More specifically, in the event of disciplinary proceedings before the Disciplinary Board, the misconduct alleged against the official in question is defined in the report of the appointing authority accompanying the referral of the matter to the Disciplinary Board, which follows that investigation stage.
Contrary to the appellant’s assertions, it is for the appointing authority – and, where applicable, the court before which an action has been brought – to verify the lawfulness of the investigation procedure and thereafter of the disciplinary proceedings as a whole, and not the Disciplinary Board, which is obliged to review only whether the proceedings before it have been conducted properly. However, if the Disciplinary Board considers that the earlier investigation procedure is inadequate, it is for the Disciplinary Board to supplement that procedure with its own questions, or even an investigation in which each side can submit its case and reply to the case of the other side.
With regard to the investigating services’ measures of inquiry, the Court holds that it is necessary, for the purposes of the observance of the rights of the defence, for those measures to form part of the case file communicated to the Disciplinary Board and the person concerned, a fortiori where the appointing authority or the Disciplinary Board relies on the outcome of those measures.
Lastly, the Court specifies that in the case of an action seeking only the annulment of the final decision of the appointing authority imposing a penalty, the pleas in law and claims which the official concerned raises against assessments contained in the opinion of the Disciplinary Board preceding that decision are ineffective only inasmuch as the final decision clearly departs from those assessments or clearly does not take account of them.