Case T‑220/20

Petrus Kerstens

v

European Commission

 Judgment of the Court (Seventh Chamber), 20 October 2021

(Civil service – Officials – Disciplinary proceedings – Article 266 TFEU – Administrative investigations – Principle of sound administration – Principle of impartiality – Action for annulment and compensation)

1.      Fundamental rights – Charter of Fundamental Rights of the European Union – Right to good administration – Requirement of impartiality – Meaning – Existence of doubts over the appearances of impartiality concerning only one person within a collegiate body – Presumption of impartiality in the absence of evidence to the contrary

(Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Art. 41(1))

(see paragraphs 32-35)

2.      Officials – Disciplinary regime – Investigation preceding the initiation of disciplinary proceedings – Requirement of impartiality – Scope – Prior knowledge of facts by the investigator – Investigator having made the allegations giving rise to the proceedings – Existence of legitimate doubts regarding the impartiality of the investigator – Infringement of the requirement of impartiality

(Charter of Fundamental Rights of the European Union, Art. 41(1); Staff Regulations, Annex IX, Art. 3)

(see paragraphs 37-43)

Résumé

The applicant, Mr Petrus Kerstens, is a former European Commission official, against whom the Commission had initiated three sets of disciplinary proceedings on different dates and for various reasons.

By a decision closing the three sets of proceedings (‘the contested decision’), the appointing authority found that the applicant’s conduct constituted an infringement of Articles 11, 12 and 17 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

Following the dismissal of his complaint against the contested decision, the applicant brought an action before the General Court for annulment of that decision. In particular, he calls into question the impartiality of the single investigation procedure due to the three sets of disciplinary proceedings being grouped together and the participation in that investigation, as the person in charge of its conduct, of the person who had made the allegations examined in one of the sets of disciplinary proceedings.

The Court upholds the action and annuls the contested decision. In its judgment, the Court supplements its case-law on subjective impartiality and clarifies the concept of objective impartiality, both of which must be observed by the administration in disciplinary proceedings, in accordance with the principle of sound administration.

Findings of the Court

First of all, the Court recalls that the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, means that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union. It is, therefore, for the administration to examine carefully and impartially all the relevant aspects of the case before it and to gather all the factual and legal information necessary to exercise its discretion and to ensure the proper conduct and effectiveness of the procedures that it implements.

In that regard, the requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as the institution must offer sufficient guarantees to exclude any legitimate doubt in that regard. When examining the impartiality of a collegiate procedure, the fact that doubts over the appearances of impartiality concern only one person within the collegiate body is not necessarily decisive, bearing in mind that that person could have had a decisive influence during the deliberations.

As regards subjective impartiality, this is presumed in the absence of evidence to the contrary. As for objective impartiality, this is lacking where it is shown that, prior to the launch of the investigation, one of the investigators had knowledge of the relevant facts of the matter and that the institution concerned could have appointed as investigator a person with no prior knowledge of the facts, in order to thus avoid any legitimate doubt about his or her impartiality with regard to the other party.

Next, the Court considers that the situation at issue, characterised by the fact that the person in charge of the conduct of the single investigation opened for the three sets of proceedings is the same person who made the allegations behind one of the sets of proceedings, presents an objective risk that that person may have had a preconception or bias in relation to the applicant’s involvement in the matters of which he was accused, even before the investigation took place. In view, in particular, of that person’s role in the outcome of the investigation and the influence which she may have had on the content of the final investigation report, such a situation is likely to give rise to legitimate doubts in the applicant’s mind as to the objective impartiality of that investigation. Accordingly, the fact that the Commission did not organise the investigation procedure in a manner that offered him sufficient guarantees as to the objective impartiality of that procedure is capable of vitiating the disciplinary proceedings in their entirety.

Lastly, as regards the annulment of the contested decision, the Court recalls that a procedural irregularity can justify the annulment of an act only if, had it not been for such an irregularity, the outcome of the procedure might have been different. In the context of that examination, it is important to take account of all the circumstances of the case and, in particular, of the nature of the allegations and the scale of the procedural irregularities committed in relation to the guarantees which the official may have been given.

In that regard, the Court points out that the role played by the administrative investigation can have an impact on the disciplinary proceedings. It is on the basis of that investigation and of the hearing of the official concerned that the appointing authority assesses, first, whether or not it is necessary to initiate disciplinary proceedings, second, whether or not those proceedings must consist in the matter being referred to the Disciplinary Board and, third, where it initiates proceedings before the Disciplinary Board, the facts referred to that board. Therefore, it cannot be ruled out that, had the administrative investigation been conducted with all the guarantees of impartiality, it could have led to a different assessment of the facts and, thus, resulted in a different outcome. In those circumstances, it was legitimate for the applicant to harbour doubts about the objective impartiality of the investigation and, therefore, about the disciplinary proceedings concerning him.