# C_2020247EN.01002501.xml

| 27.7.2020 | EN | Official Journal of the European Union | C 247/25 |
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27.7.2020

EN

Official Journal of the European Union

C 247/25

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Action brought on 8 May 2020 — CX v Commission

(Case T-280/20)

(2020/C 247/35)

Language of the case: French

Parties

Applicant: CX (represented by: É. Boigelot, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 28 June 2019 in file CMS 12/042, bearing the reference Ares(2019)4110741, to remove the applicant from his post under Article 9(1)(h) of Annex IX of the Staff Regulations, without reducing his pension rights; |
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annul the decision of 28 June 2019 in file CMS 12/042, bearing the reference Ares(2019)4110741, to remove the applicant from his post under Article 9(1)(h) of Annex IX of the Staff Regulations, without reducing his pension rights;

| — | annul the decision of 30 January 2020, bearing the reference Ares(2020)577152, notified that same day, by which the appointing authority rejected the applicant's complaint, which he had lodged on 28 September 2019, under the reference R/538/19, against the contested decision; |
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annul the decision of 30 January 2020, bearing the reference Ares(2020)577152, notified that same day, by which the appointing authority rejected the applicant's complaint, which he had lodged on 28 September 2019, under the reference R/538/19, against the contested decision;

| — | order the defendant to pay all the costs, in accordance with the rules of procedure of the General Court of the European Union. |
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order the defendant to pay all the costs, in accordance with the rules of procedure of the General Court of the European Union.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.

| 1. | First plea in law, refuting the accuracy of the facts adduced and alleging distortion of the evidence, manifest errors of assessment, insufficient reasoning and breach of the duty to state reasons. The applicant claims, inter alia, the distortion of the only piece of evidence against him in so far as the Appointing Authority alleges an ‘unauthorised price negotiation’ on the basis of a single email, even though its very wording shows that the applicant merely transmitted to the contractor, in full compliance with the framework contract, a clear and unequivocal instruction. That was far from being a ‘negotiation’, which would have required, at the very least, a series of discussions with a view to reaching an agreement with, potentially, waivers from both parties. The applicant adds that the exchanges between him and the contractor merely demonstrate that the work required to establish a final version of the questionnaire and related services is cooperative and repetitive and in no way constitutes a ‘negotiation’. The Appointing Authority thus drew conclusions from non-established facts and committed a manifest error of assessment. |
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1.

First plea in law, refuting the accuracy of the facts adduced and alleging distortion of the evidence, manifest errors of assessment, insufficient reasoning and breach of the duty to state reasons. The applicant claims, inter alia, the distortion of the only piece of evidence against him in so far as the Appointing Authority alleges an ‘unauthorised price negotiation’ on the basis of a single email, even though its very wording shows that the applicant merely transmitted to the contractor, in full compliance with the framework contract, a clear and unequivocal instruction. That was far from being a ‘negotiation’, which would have required, at the very least, a series of discussions with a view to reaching an agreement with, potentially, waivers from both parties. The applicant adds that the exchanges between him and the contractor merely demonstrate that the work required to establish a final version of the questionnaire and related services is cooperative and repetitive and in no way constitutes a ‘negotiation’. The Appointing Authority thus drew conclusions from non-established facts and committed a manifest error of assessment.

| 2. | Second plea in law, alleging a breach of the reasonable time principle, that an excessive length of time that has elapsed since the alleged facts and that the disciplinary liability is time barred. According to the applicant, the alleged facts date back to September 2001 and June 2003, respectively, that is to say 18 and 16 years before the date of the contested decision. The disciplinary proceedings were initiated on 7 February 2013, respectively 11 and 9 years after the date of the alleged facts. The applicant claims that the delay between the alleged facts and the contested decision is manifestly unreasonable. He adds that the length of time that has elapsed since the alleged facts should have led the Appointing Authority to reduce its disciplinary liability, or even declare that liability to be time-barred. |
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2.

Second plea in law, alleging a breach of the reasonable time principle, that an excessive length of time that has elapsed since the alleged facts and that the disciplinary liability is time barred. According to the applicant, the alleged facts date back to September 2001 and June 2003, respectively, that is to say 18 and 16 years before the date of the contested decision. The disciplinary proceedings were initiated on 7 February 2013, respectively 11 and 9 years after the date of the alleged facts. The applicant claims that the delay between the alleged facts and the contested decision is manifestly unreasonable. He adds that the length of time that has elapsed since the alleged facts should have led the Appointing Authority to reduce its disciplinary liability, or even declare that liability to be time-barred.

| 3. | Third plea in law, alleging breach of the rights of the defense and breach of the equality of arms. The applicant claims that the Commission did not accede to the numerous requests he has made since the start of proceedings in 2013, to disclose the documents he considered essential for his defense, namely, inter alia, all of his emails relating to the two complaints against him, the framework contract, the intermediate and final questionnaires of the survey in question and the relevant financial file. That amounts to a violation of the rights of the defense and a breach of the equality of arms. |
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3.

Third plea in law, alleging breach of the rights of the defense and breach of the equality of arms. The applicant claims that the Commission did not accede to the numerous requests he has made since the start of proceedings in 2013, to disclose the documents he considered essential for his defense, namely, inter alia, all of his emails relating to the two complaints against him, the framework contract, the intermediate and final questionnaires of the survey in question and the relevant financial file. That amounts to a violation of the rights of the defense and a breach of the equality of arms.

| 4. | Fourth plea in law, alleging formal and procedural errors and breach of the duty to investigate thoroughly for both incriminatory and exculpatory purposes. The applicant claims that on 16 April 2018, the Criminal Court of [confidential] (1) held that none of the alleged facts had been established and acquitted the applicant ‘of all the charges against him’ and it should be noted that that court ruled on exactly the same facts on which the contested decision is based. The applicant thus takes the view that by failing to transmit to the Disciplinary Board an essential piece of evidence such as a court decision, which has become final, acquitting the applicant completely, the Appointing Authority breached its obligation to communicate to the Disciplinary Board all relevant and useful documents for the establishment of its opinion and thus committed a procedural irregularity. |
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4.

Fourth plea in law, alleging formal and procedural errors and breach of the duty to investigate thoroughly for both incriminatory and exculpatory purposes. The applicant claims that on 16 April 2018, the Criminal Court of [confidential] (1) held that none of the alleged facts had been established and acquitted the applicant ‘of all the charges against him’ and it should be noted that that court ruled on exactly the same facts on which the contested decision is based. The applicant thus takes the view that by failing to transmit to the Disciplinary Board an essential piece of evidence such as a court decision, which has become final, acquitting the applicant completely, the Appointing Authority breached its obligation to communicate to the Disciplinary Board all relevant and useful documents for the establishment of its opinion and thus committed a procedural irregularity.

| 5. | Fifth plea in law, alleging breach of the presumption of innocence and the obligation to be impartial. According to the applicant, the Secretary General wrote to the Vice-Presidents of the Commission, to two Members of the Commission, to the Director-General he reports to, to the Director-General of Human Resources and to the Appointing Authority stating that the investigation ‘confirmed the conflict of interests and highlighted various irregularities on the part of the person concerned’, which constitutes a violation of the presumption of innocence and the obligation to be impartial. |
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5.

Fifth plea in law, alleging breach of the presumption of innocence and the obligation to be impartial. According to the applicant, the Secretary General wrote to the Vice-Presidents of the Commission, to two Members of the Commission, to the Director-General he reports to, to the Director-General of Human Resources and to the Appointing Authority stating that the investigation ‘confirmed the conflict of interests and highlighted various irregularities on the part of the person concerned’, which constitutes a violation of the presumption of innocence and the obligation to be impartial.

| 6. | Sixth plea in law, alleging the use of a document that should be considered legally non-existent, that that document does not exist and the breach of Article 1(1) of Annex IX to the Staff Regulations of the European Union (‘the Staff Regulations’). The applicant notes that OLAF never heard him on the relevant facts between 3 May 2011 and 18 April 2012, the date on which his report was sent, and that that breach of its obligation to hear the applicant before finalising its report must render that report legal non-existent. |
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6.

Sixth plea in law, alleging the use of a document that should be considered legally non-existent, that that document does not exist and the breach of Article 1(1) of Annex IX to the Staff Regulations of the European Union (‘the Staff Regulations’). The applicant notes that OLAF never heard him on the relevant facts between 3 May 2011 and 18 April 2012, the date on which his report was sent, and that that breach of its obligation to hear the applicant before finalising its report must render that report legal non-existent.

| 7. | Seventh plea in law, alleging breach of Article 10 of Annex IX to the Staff Regulations, of the principle of legal certainty, of the principle of proportionality and of legitimate expectations and a manifest error of assessment, in so far as the sanction is not commensurate to the alleged facts. The applicant claims in that regard that the sanction imposed by the Appointing Authority is manifestly disproportionate. According to him, the relative seriousness of the alleged facts should be taken into account since the disputed sum amounts to EUR 2000. In addition, excessive length of time that has elapsed since the alleged facts. The sanction imposed resulted in depriving the applicant's family of all resources and health insurance, which is manifestly disproportionate. |
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7.

Seventh plea in law, alleging breach of Article 10 of Annex IX to the Staff Regulations, of the principle of legal certainty, of the principle of proportionality and of legitimate expectations and a manifest error of assessment, in so far as the sanction is not commensurate to the alleged facts. The applicant claims in that regard that the sanction imposed by the Appointing Authority is manifestly disproportionate. According to him, the relative seriousness of the alleged facts should be taken into account since the disputed sum amounts to EUR 2000. In addition, excessive length of time that has elapsed since the alleged facts. The sanction imposed resulted in depriving the applicant's family of all resources and health insurance, which is manifestly disproportionate.

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(1)  Confidential information omitted.

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