JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

30 November 2009

Case F-80/08

Fritz Harald Wenig

v

Commission of the European Communities

(Civil service – Officials – Disciplinary proceedings – Suspension of an official – Withholding of remuneration – Allegation of serious misconduct – Rights of the defence – Competence – Failure to publish a delegation of power – Lack of competence of the author of the contested measure)

Application: brought under Articles 236 EC and 152 EA, in which Mr Wenig seeks annulment of the decision of 18 September 2008 whereby the Commission, in application of Articles 23 and 24 of Annex IX to the Staff Regulations of Officials of the European Communities, suspended him for an indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months. The applicant also, in a separate application, sought suspension of the operation of the contested decision.

Held: The decision of 18 September 2008 whereby the Commission, in application of Articles 23 and 24 of Annex IX to the Staff Regulations, suspended the applicant for an indefinite period and ordered that the sum of EUR 1 000 be withheld from his monthly salary for a maximum period of six months is annulled. The Commission is ordered to pay the costs of the main proceedings. Each party is ordered to bear its own costs in the interim measures proceedings.

Summary

1.      Officials – Actions – Interest in bringing proceedings – Retired official

(Staff Regulations, Annex IX, Art. 24(2))

2.      Officials – Disciplinary measures – Disciplinary proceedings

(Staff Regulations, Annex IX)

3.      Officials – Disciplinary measures – Penalty – Suspension

4.      Actions for annulment – Pleas in law – Plea of lack of competence of the author of a measure having adverse effects – Plea concerning a matter of public interest

5.      Officials – Appointing authority – Decision concerning the exercise of powers conferred on that authority

(Staff Regulations, Art. 2)

1.      In so far as a decision which suspended the applicant for an indefinite period and ordered that a sum be withheld from his remuneration for a maximum period of six months produced effects not only on his financial situation, but also on his reputation, the fact that it was implicitly but necessarily repealed when the applicant retired and that, even before the action was brought, the decision had lapsed in so far as it ordered that part of the applicant’s remuneration be withheld, since, in accordance with Article 24(2) of Annex IX to the Staff Regulations, the withholding of his remuneration had been limited to a period of six months, does not render the action devoid of purpose or remove the applicant’s interest in seeking annulment of the decision in its entirety.

(see paras 33-35)

See:

C-198/07 P Gordon v Commission [2008] ECR I‑10701, paras 44 and 45

2.      According to Article 6(1) of the European Convention for Human Rights, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. However, proceedings involving suspension and the withholding of remuneration are not judicial but administrative in nature, such that the Commission cannot be characterised as a ‘tribunal’ within the meaning of Article 6 of the Convention. Accordingly, compliance with the obligations which that article imposes on a ‘tribunal’ cannot be required of the Commission when it suspends an official and orders that sums be withheld from his remuneration.

(see paras 57-59)

See:

C-252/97 P N v Commission [1998] ECR I‑4871, para. 52

T-26/89 de Compte v Parliament [1991] ECR II‑781, para. 94; T-23/00 A v Commission [2000] ECR-SC I‑A‑263 and II‑1211, para. 24

3.      Review by the Community judicature of the merits of a measure ordering the suspension of an official can only be very limited, given the provisional nature of such a measure. The court must therefore confine itself to examining whether the allegations of serious misconduct are sufficiently probable and whether they are manifestly unfounded.

(see para. 67)

See:

T-211/98 R Willeme v Commission [1999] ECR-SC I‑A‑15 and II-57, para. 30

4.      A plea alleging that the author of a measure adversely affecting the applicant was not competent to adopt that measure is a plea concerning a matter of public interest which the Community judicature is bound in any event to examine of its own motion.

(see para. 83)

See:

C-210/98 P Salzgitter v Commission [2000] ECR I‑5843, para. 56

T-165/04 Vounakis v Commission [2006] ECR-SC I‑A‑2‑155 and II‑A‑2‑735, para. 30

F‑17/05 de Brito Sequeira Carvalho v Commission [2006] ECR-SC I‑A‑1‑149 and II‑A‑1‑577, para. 51; F-10/07 Botos v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 78

5.      Decisions determining the distribution of the powers conferred on the appointing authority are rules on the internal organisation of the institution. Neither the provisions of the Treaty nor those of the Staff Regulations, in particular Article 2, provide that the publication of such decisions is a condition of their entry into force and, accordingly, of their enforceability.

However, observance of the principle of legal certainty, whereby an act adopted by the public authorities cannot be enforced against individuals before they have had the opportunity to make themselves acquainted with it, requires that, even in the absence of any express written provision to that effect, decisions relating to the exercise of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment of Other Servants on the contracting authority be given adequate publicity according to the rules and forms which it is for the administration to determine.

The Commission itself endeavours, in principle, to ensure that publicity is given to decisions concerning the exercise of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority, since they are usually published in Administrative Notices. Moreover, the need for legal certainty requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them, since individuals must be able to ascertain unequivocally what their rights and obligations are. Lastly, the need to ensure that adequate publicity is given to decisions determining the allocation of the powers conferred by the Staff Regulations on the appointing authority and by the Conditions of Employment on the contracting authority also follows from the rules of sound administration in the management of the staff.

The obligation incumbent on the Commission to ensure adequate publicity for a decision suspending an official is particularly pressing where that power is transferred to a single person, that is, the Member of the Commission responsible for personnel, whereas it was previously vested in the highest authority of the Commission, namely the College of Commissioners. A measure adopted by a single person offers the official to whom it is addressed a lower degree of protection than is guaranteed by a measure issued by a collegiate authority, since, by virtue of the deliberations of its members, a collegiate authority is able to take a greater amount of relevant information into consideration.

(see paras 87, 89-91, 93, 94, 96)

See:

46/72 De Greef v Commission [1973] ECR 543, para. 18; 98/78 Racke [1979] ECR 69, para. 15; 99/78 Weingut Decker [1979] ECR 101, para. 3; C-158/06 ROM-projecten [2007] ECR I‑5103, para. 25; C-161/06 Skoma-Lux [2007] ECR I‑10841, paras 37 and 38

T-76/98 Hamptaux v Commission [1999] ECR-SC I‑A‑59 and II‑303, para. 23

F‑89/07 Kuchta v ECB [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 62