# 62020TJ0121

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

6 October 2021 (
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(Civil service – Members of contract staff – OLAF investigation – Reimbursement of medical expenses – Disciplinary penalty – Termination of contract without notice – Article 10(h) of Annex IX to the Staff Regulations – Repeated misconduct – Article 27 of Annex IX to the Staff Regulations – Decision granting a request for the deletion from the personal file of all reference to an earlier penalty – Article 26 of the Staff Regulations – Impossibility of using against an official, and relying on against that official, a penalty, all reference to which has been deleted from the personal file)

In Case T‐121/20,

IP, represented by L. Levi, S. Rodrigues and J. Martins, lawyers,

IP

applicant,

v

European Commission, represented by M. Brauhoff and A.-C. Simon, acting as Agents,

European Commission

defendant,

APPLICATION based on Article 270 TFEU and seeking annulment of the Commission’s decision of 21 August 2019 to impose on the applicant the disciplinary penalty of termination without notice of his employment,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 May 2021,

gives the following

Judgment

Judgment

I. Background to the dispute

I.

Background to the dispute

| 1 | The applicant, IP, entered the service of the European Commission on 21 July 2008, initially as a member of the interim staff and then, with effect from 16 September 2008, as a contract staff member. In 2013, he was in function group I, grade 1, step 3. He has been on invalidity since 1 August 2018. |
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1

The applicant, IP, entered the service of the European Commission on 21 July 2008, initially as a member of the interim staff and then, with effect from 16 September 2008, as a contract staff member. In 2013, he was in function group I, grade 1, step 3. He has been on invalidity since 1 August 2018.

| 2 | By note of 13 December 2013, the European Parliament informed the European Anti-Fraud Office (OLAF) that, whilst conducting an internal audit, it had uncovered evidence suggesting, in its view, that a number of applications for reimbursement of medical expenses relating to treatment received at institutions located in Portugal were unlawful. Those applications had been lodged between January and August 2013 by A and by B, the sister of A, both of whom are officials at the Parliament. In that note, the Parliament suggested that checks be carried out to determine whether the applicant, who was named by A as his contact person in a personnel management database maintained by the Parliament, could also have committed similar unlawful acts. |
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2

By note of 13 December 2013, the European Parliament informed the European Anti-Fraud Office (OLAF) that, whilst conducting an internal audit, it had uncovered evidence suggesting, in its view, that a number of applications for reimbursement of medical expenses relating to treatment received at institutions located in Portugal were unlawful. Those applications had been lodged between January and August 2013 by A and by B, the sister of A, both of whom are officials at the Parliament. In that note, the Parliament suggested that checks be carried out to determine whether the applicant, who was named by A as his contact person in a personnel management database maintained by the Parliament, could also have committed similar unlawful acts.

| 3 | On 8 September 2014, OLAF decided to open an investigation into the applicant concerning allegedly unlawful applications for reimbursement of medical expenses. At the same time, OLAF decided to open two other investigations into A and B also concerning applications for reimbursement of medical expenses. |
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3

On 8 September 2014, OLAF decided to open an investigation into the applicant concerning allegedly unlawful applications for reimbursement of medical expenses. At the same time, OLAF decided to open two other investigations into A and B also concerning applications for reimbursement of medical expenses.

| 4 | On 21 December 2015, OLAF concluded the investigation by producing a final report. In its report, it stated that, over the period under investigation, the applicant had submitted to the Office for the Administration and Payment of Individual Entitlements (PMO) at the Commission applications for reimbursement based on four supporting documents that do not correspond to the actual expenses incurred. It took the view that the total amount of the sums unduly received came to EUR 5418. |
| --- | --- |

4

On 21 December 2015, OLAF concluded the investigation by producing a final report. In its report, it stated that, over the period under investigation, the applicant had submitted to the Office for the Administration and Payment of Individual Entitlements (PMO) at the Commission applications for reimbursement based on four supporting documents that do not correspond to the actual expenses incurred. It took the view that the total amount of the sums unduly received came to EUR 5418.

| 5 | OLAF sent its report to the Commission, recommending that the Commission open a disciplinary procedure in relation to the applicant and recover the sum of EUR 5418. It also informed the Commission that the report had been sent to the Portuguese judicial authorities for the purpose of any judicial follow-up. |
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5

OLAF sent its report to the Commission, recommending that the Commission open a disciplinary procedure in relation to the applicant and recover the sum of EUR 5418. It also informed the Commission that the report had been sent to the Portuguese judicial authorities for the purpose of any judicial follow-up.

| 6 | By note of 24 June 2016, the authority empowered to conclude contracts of employment (‘the AECE’) at the Commission mandated the Commission’s Investigation and Disciplinary Office (IDOC) to hear the applicant. |
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6

By note of 24 June 2016, the authority empowered to conclude contracts of employment (‘the AECE’) at the Commission mandated the Commission’s Investigation and Disciplinary Office (IDOC) to hear the applicant.

| 7 | On 25 July 2017, the AECE decided to commence a disciplinary procedure before the Disciplinary Board in relation to the applicant. |
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7

On 25 July 2017, the AECE decided to commence a disciplinary procedure before the Disciplinary Board in relation to the applicant.

| 8 | By an opinion of 16 April 2018, the Disciplinary Board recommended that the applicant’s employment be terminated without notice. |
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8

By an opinion of 16 April 2018, the Disciplinary Board recommended that the applicant’s employment be terminated without notice.

| 9 | Following the communication of OLAF’s report to the Portuguese judicial authorities, criminal proceedings were initiated in Portugal against the applicant. |
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9

Following the communication of OLAF’s report to the Portuguese judicial authorities, criminal proceedings were initiated in Portugal against the applicant.

| 10 | On 22 November 2018, the AECE decided to suspend the disciplinary procedure opened in relation to the applicant. |
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10

On 22 November 2018, the AECE decided to suspend the disciplinary procedure opened in relation to the applicant.

| 11 | On 21 May 2019, following the closure of the criminal proceedings initiated in Portugal, the applicant was summoned to a hearing before the AECE, which was composed of the Director-General of the Directorate-General for Human Resources and Security, the Director-General of the Directorate-General for Economic and Financial Affairs and the Deputy Director-General of the Directorate-General for Agriculture and Rural Development at the Commission (‘the tripartite AECE’). |
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11

On 21 May 2019, following the closure of the criminal proceedings initiated in Portugal, the applicant was summoned to a hearing before the AECE, which was composed of the Director-General of the Directorate-General for Human Resources and Security, the Director-General of the Directorate-General for Economic and Financial Affairs and the Deputy Director-General of the Directorate-General for Agriculture and Rural Development at the Commission (‘the tripartite AECE’).

| 12 | On 21 August 2019, the tripartite AECE adopted in respect of the applicant, pursuant to Articles 49 and 119 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), the disciplinary penalty of termination of his employment without notice (‘the contested decision’). |
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12

On 21 August 2019, the tripartite AECE adopted in respect of the applicant, pursuant to Articles 49 and 119 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), the disciplinary penalty of termination of his employment without notice (‘the contested decision’).

| 13 | In the contested decision, the tripartite AECE criticised the applicant for having submitted to the PMO two applications for reimbursement of medical expenses that did not correspond to the actual amounts paid or the treatment received (paragraph 12 of the contested decision). It classified those actions as ‘attempted fraud against the EU budget’, which, in its view, constituted particularly serious misconduct (paragraph 37 of the contested decision). Finally, it determined the penalty to be adopted in the light of the criteria laid down in Article 10 of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (paragraphs 37 to 50 of the contested decision). Applying Article 10(h) of Annex IX to the Staff Regulations, the tripartite AECE relied, vis-à-vis repeated misconduct, on the existence of a reprimand which the applicant had received on 19 November 2010. |
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13

In the contested decision, the tripartite AECE criticised the applicant for having submitted to the PMO two applications for reimbursement of medical expenses that did not correspond to the actual amounts paid or the treatment received (paragraph 12 of the contested decision). It classified those actions as ‘attempted fraud against the EU budget’, which, in its view, constituted particularly serious misconduct (paragraph 37 of the contested decision). Finally, it determined the penalty to be adopted in the light of the criteria laid down in Article 10 of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (paragraphs 37 to 50 of the contested decision). Applying Article 10(h) of Annex IX to the Staff Regulations, the tripartite AECE relied, vis-à-vis repeated misconduct, on the existence of a reprimand which the applicant had received on 19 November 2010.

| 14 | On 7 October 2019, the applicant submitted a complaint against the contested decision on the basis of Article 90(2) of the Staff Regulations. |
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14

On 7 October 2019, the applicant submitted a complaint against the contested decision on the basis of Article 90(2) of the Staff Regulations.

| 15 | By decision of 28 January 2020 (‘the decision rejecting the complaint’), the complaint was rejected by the Commission. |
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15

By decision of 28 January 2020 (‘the decision rejecting the complaint’), the complaint was rejected by the Commission.

II. Procedure and forms of order sought

II.

Procedure and forms of order sought

| 16 | By application lodged at the General Court Registry on 21 February 2020, the applicant brought the present action. |
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16

By application lodged at the General Court Registry on 21 February 2020, the applicant brought the present action.

| 17 | By separate document lodged at the Registry of the General Court on 4 March 2020, the applicant requested that he be granted anonymity pursuant to Article 66 of the Rules of Procedure of the General Court. By decision of 15 April 2020, the Court (Seventh Chamber) granted that request. |
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17

By separate document lodged at the Registry of the General Court on 4 March 2020, the applicant requested that he be granted anonymity pursuant to Article 66 of the Rules of Procedure of the General Court. By decision of 15 April 2020, the Court (Seventh Chamber) granted that request.

| 18 | Acting on a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, asking them to reply to some of them in writing and to others at the hearing. |
| --- | --- |

18

Acting on a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, asking them to reply to some of them in writing and to others at the hearing.

| 19 | The parties replied within the period prescribed. |
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19

The parties replied within the period prescribed.

| 20 | At the hearing on 10 May 2021, the parties presented oral argument and replied to the written and oral questions put by the Court. In addition, the applicant lodged a document and the Commission proposed to produce two documents. |
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20

At the hearing on 10 May 2021, the parties presented oral argument and replied to the written and oral questions put by the Court. In addition, the applicant lodged a document and the Commission proposed to produce two documents.

| 21 | In those circumstances, the President of the Seventh Chamber declared that the oral part of the procedure would be closed at a later date so as to allow the Commission to produce the documents mentioned in paragraph 20 above and to enable each of the parties to submit observations. |
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21

In those circumstances, the President of the Seventh Chamber declared that the oral part of the procedure would be closed at a later date so as to allow the Commission to produce the documents mentioned in paragraph 20 above and to enable each of the parties to submit observations.

| 22 | The Commission produced the documents mentioned and each of the parties submitted observations. |
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22

The Commission produced the documents mentioned and each of the parties submitted observations.

| 23 | The oral procedure was closed on 2 June 2021. |
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23

The oral procedure was closed on 2 June 2021.

| 24 | The applicant claims that the Court should:





  – | annul the contested decision and, in so far as necessary, the decision rejecting the complaint; |
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24

The applicant claims that the Court should:

–

annul the contested decision and, in so far as necessary, the decision rejecting the complaint;

| – | order the Commission to pay the costs. |
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–

order the Commission to pay the costs.

| 25 | The Commission contends that the Court should:





  – | dismiss the action; |
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25

The Commission contends that the Court should:

–

dismiss the action;

| – | order the applicant to pay the costs. |
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–

order the applicant to pay the costs.

III. Law

III.

Law

| 26 | Before examining the pleas in law relied on by the applicant, it is necessary to determine the subject matter of the action. |
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26

Before examining the pleas in law relied on by the applicant, it is necessary to determine the subject matter of the action.

A.
   
  The subject matter of the action

A.

The subject matter of the action

| 27 | As a preliminary point, it should be observed that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, claims for annulment formally directed against the rejection of a complaint have the effect of bringing before the Court the original measure against which the complaint was made where those claims have, as such, no independent content (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 25 October 2018, KF v SatCen, T‐286/15, EU:T:2018:718, paragraph 115). |
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27

As a preliminary point, it should be observed that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, claims for annulment formally directed against the rejection of a complaint have the effect of bringing before the Court the original measure against which the complaint was made where those claims have, as such, no independent content (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 25 October 2018, KF v SatCen, T‐286/15, EU:T:2018:718, paragraph 115).

| 28 | Claims for annulment formally directed against the rejection of a complaint have independent content when the scope of the rejection of the complaint differs from that of the original measure against which that complaint was made. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the operative part of the original decision. In such circumstances, the rejection of the complaint constitutes, as such, a measure subject to review by the judicature, which will regard it as an act adversely affecting the applicant that replaces, at least in part, the original measure (judgment of 21 May 2014, Mocová v Commission, T‐347/12 P, EU:T:2014:268, paragraph 34). |
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28

Claims for annulment formally directed against the rejection of a complaint have independent content when the scope of the rejection of the complaint differs from that of the original measure against which that complaint was made. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the operative part of the original decision. In such circumstances, the rejection of the complaint constitutes, as such, a measure subject to review by the judicature, which will regard it as an act adversely affecting the applicant that replaces, at least in part, the original measure (judgment of 21 May 2014, Mocová v Commission, T‐347/12 P, EU:T:2014:268, paragraph 34).

| 29 | Other than in those circumstances in which the rejection of the complaint constitutes an independent measure capable of forming the subject matter, as such, of an action for annulment, the statement of reasons contained in the decision rejecting the complaint, where it supplements or takes the place of the statement of reasons contained in the original measure, must be taken into consideration when examining the legality of that original measure. The statement of reasons for that decision is meant to mirror that of the original measure (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‐377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited). The legality of the original measure is thus, where appropriate, examined in the light, inter alia, of the grounds contained in the decision rejecting the complaint. |
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29

Other than in those circumstances in which the rejection of the complaint constitutes an independent measure capable of forming the subject matter, as such, of an action for annulment, the statement of reasons contained in the decision rejecting the complaint, where it supplements or takes the place of the statement of reasons contained in the original measure, must be taken into consideration when examining the legality of that original measure. The statement of reasons for that decision is meant to mirror that of the original measure (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‐377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited). The legality of the original measure is thus, where appropriate, examined in the light, inter alia, of the grounds contained in the decision rejecting the complaint.

| 30 | In the present case, since the scope of the decision rejecting the complaint does not differ from that of the contested decision, the action must be regarded as being directed solely against the contested decision. |
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30

In the present case, since the scope of the decision rejecting the complaint does not differ from that of the contested decision, the action must be regarded as being directed solely against the contested decision.

B.
   
  Examination of the pleas in law

B.

Examination of the pleas in law

| 31 | The applicant raises six pleas in law, alleging, first, failure to comply with the duty of due diligence and the duty of care; second, breach of the duty to state reasons; third, the unlawfulness of OLAF’s report; fourth, the unlawfulness of the opinion of the Disciplinary Board; fifth, failure to examine all the circumstances of the present case and breach of the principle that ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’; and, sixth, infringement of Article 10 of Annex IX to the Staff Regulations. |
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31

The applicant raises six pleas in law, alleging, first, failure to comply with the duty of due diligence and the duty of care; second, breach of the duty to state reasons; third, the unlawfulness of OLAF’s report; fourth, the unlawfulness of the opinion of the Disciplinary Board; fifth, failure to examine all the circumstances of the present case and breach of the principle that ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’; and, sixth, infringement of Article 10 of Annex IX to the Staff Regulations.

| 32 | Consideration must be given to the sixth plea in law and, in particular, the challenge raised by the applicant to the application, by the tripartite AECE, of the provisions of Article 10(h) of Annex IX to the Staff Regulations relating to repeated misconduct (see paragraph 13 above). |
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32

Consideration must be given to the sixth plea in law and, in particular, the challenge raised by the applicant to the application, by the tripartite AECE, of the provisions of Article 10(h) of Annex IX to the Staff Regulations relating to repeated misconduct (see paragraph 13 above).

| 33 | Under Article 10 of Annex IX to the Staff Regulations:
  ‘The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of:
  ...
  (h) whether the misconduct involves repeated action or behaviour,
  ...’ |
| --- | --- |

33

Under Article 10 of Annex IX to the Staff Regulations:

‘The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of:

...

(h) whether the misconduct involves repeated action or behaviour,

...’

| 34 | In that regard, in paragraph 45 of the contested decision, which is introduced by the heading ‘Misconduct involving repeated action or behaviour’, the tripartite AECE observed that the applicant had been the subject of a reprimand on 19 November 2010 (‘the first penalty’) for actions which were, in its view, comparable to those which he is alleged to have committed. It stated that those actions involved ‘asking a doctor to [invoice the applicant] for an amount of EUR 4.98 for a blood test performed on a cousin ... who suffers from heart disease [and] subsequently attempting on two occasions to obtain the reimbursement of that amount [via] the Commission’s services that authorise medical expenses’. The tripartite AECE added, in paragraph 46 of the contested decision, that, ‘even though that matter concerned a modest sum, [the applicant] had been penalised because of the manifestly fraudulent nature of his conduct’. |
| --- | --- |

34

In that regard, in paragraph 45 of the contested decision, which is introduced by the heading ‘Misconduct involving repeated action or behaviour’, the tripartite AECE observed that the applicant had been the subject of a reprimand on 19 November 2010 (‘the first penalty’) for actions which were, in its view, comparable to those which he is alleged to have committed. It stated that those actions involved ‘asking a doctor to [invoice the applicant] for an amount of EUR 4.98 for a blood test performed on a cousin ... who suffers from heart disease [and] subsequently attempting on two occasions to obtain the reimbursement of that amount [via] the Commission’s services that authorise medical expenses’. The tripartite AECE added, in paragraph 46 of the contested decision, that, ‘even though that matter concerned a modest sum, [the applicant] had been penalised because of the manifestly fraudulent nature of his conduct’.

| 35 | After pointing out, in paragraphs 47 and 48 of the contested decision, that, since a time limit is not laid down in Article 10(h) of Annex IX to the Staff Regulations, it was ‘free’ to take the first penalty into account, the tripartite AECE stated the following in paragraph 49 of the contested decision:
  ‘... the [tripartite] AECE finds that [the applicant] has committed acts similar to those which had formed the grounds for his reprimand some four years earlier. The [tripartite] AECE takes the view that [the applicant] has thus shown that he had not learned from the disciplinary penalty imposed in 2010 and that he had continued to put his personal interests before those of the institution.’ |
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35

After pointing out, in paragraphs 47 and 48 of the contested decision, that, since a time limit is not laid down in Article 10(h) of Annex IX to the Staff Regulations, it was ‘free’ to take the first penalty into account, the tripartite AECE stated the following in paragraph 49 of the contested decision:

‘... the [tripartite] AECE finds that [the applicant] has committed acts similar to those which had formed the grounds for his reprimand some four years earlier. The [tripartite] AECE takes the view that [the applicant] has thus shown that he had not learned from the disciplinary penalty imposed in 2010 and that he had continued to put his personal interests before those of the institution.’

| 36 | The applicant claims that the tripartite AECE should not have taken account of the first penalty vis-à-vis the issue of repeated misconduct, and that it did so in breach of Article 10(h) of Annex IX to the Staff Regulations. |
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36

The applicant claims that the tripartite AECE should not have taken account of the first penalty vis-à-vis the issue of repeated misconduct, and that it did so in breach of Article 10(h) of Annex IX to the Staff Regulations.

| 37 | In that regard, first, he argues that the tripartite AECE breached the principles of proportionality, good administration and reasonable notice. He points, first of all, to the modest sum which he had attempted to have reimbursed, as determined in the first disciplinary procedure against him, and, next, to the period of time that had elapsed between the two penalties. Finally, the applicant contests the similarity of the fact at issue in the two disciplinary procedures. |
| --- | --- |

37

In that regard, first, he argues that the tripartite AECE breached the principles of proportionality, good administration and reasonable notice. He points, first of all, to the modest sum which he had attempted to have reimbursed, as determined in the first disciplinary procedure against him, and, next, to the period of time that had elapsed between the two penalties. Finally, the applicant contests the similarity of the fact at issue in the two disciplinary procedures.

| 38 | Second, according to the applicant, reference to the first penalty could no longer exist in his personal file because he had made a request under Article 27 of Annex IX to the Staff Regulations for all reference to that penalty to be deleted from that file. |
| --- | --- |

38

Second, according to the applicant, reference to the first penalty could no longer exist in his personal file because he had made a request under Article 27 of Annex IX to the Staff Regulations for all reference to that penalty to be deleted from that file.

| 39 | Although the applicant’s request was granted, the Commission considers that such a fact cannot preclude account from being taken of that penalty vis-à-vis repeated misconduct. In its view, first, the application of the provisions of Article 10(h) of Annex IX to the Staff Regulations is not subject to any time limit and, second, the granting of the applicant’s request did not have the effect of removing the first penalty from his disciplinary file, since decisions imposing penalties are retained in an official’s disciplinary file for a period of 20 years. |
| --- | --- |

39

Although the applicant’s request was granted, the Commission considers that such a fact cannot preclude account from being taken of that penalty vis-à-vis repeated misconduct. In its view, first, the application of the provisions of Article 10(h) of Annex IX to the Staff Regulations is not subject to any time limit and, second, the granting of the applicant’s request did not have the effect of removing the first penalty from his disciplinary file, since decisions imposing penalties are retained in an official’s disciplinary file for a period of 20 years.

| 40 | In his reply to the measures of organisation of procedure adopted by the Court (see paragraph 18 above), the applicant states the following:
  ‘... the criterion of repeated misconduct implies the existence of an earlier penalty. However, having requested and obtained, on the basis of Article 27 of Annex IX to the Staff Regulations, the deletion of the [first penalty] from his personal file, the applicant is entitled to consider that such a penalty no longer exists ... and that, in any event, it can no longer be relied on against him by the administration (here: in the context of a new disciplinary procedure such as that at issue in the present case), a fortiori with a view to applying the criterion of repeated misconduct when determining the penalty commensurate with the seriousness of the misconduct, within the meaning of Article 10 of Annex IX to the Staff Regulations.’ |
| --- | --- |

40

In his reply to the measures of organisation of procedure adopted by the Court (see paragraph 18 above), the applicant states the following:

‘... the criterion of repeated misconduct implies the existence of an earlier penalty. However, having requested and obtained, on the basis of Article 27 of Annex IX to the Staff Regulations, the deletion of the [first penalty] from his personal file, the applicant is entitled to consider that such a penalty no longer exists ... and that, in any event, it can no longer be relied on against him by the administration (here: in the context of a new disciplinary procedure such as that at issue in the present case), a fortiori with a view to applying the criterion of repeated misconduct when determining the penalty commensurate with the seriousness of the misconduct, within the meaning of Article 10 of Annex IX to the Staff Regulations.’

| 41 | In its reply to the measures of organisation of procedure adopted by the Court (see paragraph 18 above), the Commission states the following:
  ‘4. With regard to the impact that the removal of the reference to the [first penalty] from the applicant’s personal file could have had on the contested decision in the context of these proceedings, if the applicant thus seeks to claim that that factor should have been taken into account with a view to mitigating the contested penalty, such an argument is admissible but unfounded ... The Commission has demonstrated that the removal of that reference does not have the effect of erasing the [first penalty] absolutely. Since the disciplinary file relating to that penalty is retained for 20 years, it could legitimately be taken into account for the purpose of applying Article 10(h) of Annex IX to the Staff Regulations.
  ...
  25. Pursuant to the sixth paragraph of Article 26 of the Staff Regulations, there is to be only one personal file for each official.
  26. The disciplinary file is different from the personal file. The first contains all documents relating to a particular disciplinary procedure. Those documents are retained in accordance with the retention periods set out [above]. They are available only to staff members [of the IDOC] and are not included in the personal file.
  27. Only the decision imposing a disciplinary penalty is included in the personal file, which complies with the sixth paragraph of Article 26 of the Staff Regulations. It is thus accessible in the secure electronic system used by the Commission for its human resources management ... only by members of staff who have access rights. It [is] kept in that file for [three] years (in the case of a written warning or reprimand) or [six] years, in the case of all the other penalties listed in Article 9(c) to (h) of Annex IX to the Staff Regulations.’ |
| --- | --- |

41

In its reply to the measures of organisation of procedure adopted by the Court (see paragraph 18 above), the Commission states the following:

‘4. With regard to the impact that the removal of the reference to the [first penalty] from the applicant’s personal file could have had on the contested decision in the context of these proceedings, if the applicant thus seeks to claim that that factor should have been taken into account with a view to mitigating the contested penalty, such an argument is admissible but unfounded ... The Commission has demonstrated that the removal of that reference does not have the effect of erasing the [first penalty] absolutely. Since the disciplinary file relating to that penalty is retained for 20 years, it could legitimately be taken into account for the purpose of applying Article 10(h) of Annex IX to the Staff Regulations.

...

25. Pursuant to the sixth paragraph of Article 26 of the Staff Regulations, there is to be only one personal file for each official.

26. The disciplinary file is different from the personal file. The first contains all documents relating to a particular disciplinary procedure. Those documents are retained in accordance with the retention periods set out [above]. They are available only to staff members [of the IDOC] and are not included in the personal file.

27. Only the decision imposing a disciplinary penalty is included in the personal file, which complies with the sixth paragraph of Article 26 of the Staff Regulations. It is thus accessible in the secure electronic system used by the Commission for its human resources management ... only by members of staff who have access rights. It [is] kept in that file for [three] years (in the case of a written warning or reprimand) or [six] years, in the case of all the other penalties listed in Article 9(c) to (h) of Annex IX to the Staff Regulations.’

| 42 | Consideration must now be given to the applicant’s complaint alleging that the tripartite AECE erred in law when it relied, vis-à-vis repeated misconduct, on the first penalty, even though it had granted the applicant’s request, submitted pursuant to Article 27 of Annex IX to the Staff Regulations, for all reference to that penalty to be deleted from his personal file. |
| --- | --- |

42

Consideration must now be given to the applicant’s complaint alleging that the tripartite AECE erred in law when it relied, vis-à-vis repeated misconduct, on the first penalty, even though it had granted the applicant’s request, submitted pursuant to Article 27 of Annex IX to the Staff Regulations, for all reference to that penalty to be deleted from his personal file.

| 43 | Under Article 27 of Annex IX to the Staff Regulations:
  ‘An official against whom a disciplinary penalty other than removal from post has been ordered may, after three years in the case of a written warning or reprimand or after six years in the case of any other penalty, submit a request for the deletion from his personal file of all reference to such measure. The Appointing Authority shall decide whether to grant this request.’ |
| --- | --- |

43

Under Article 27 of Annex IX to the Staff Regulations:

‘An official against whom a disciplinary penalty other than removal from post has been ordered may, after three years in the case of a written warning or reprimand or after six years in the case of any other penalty, submit a request for the deletion from his personal file of all reference to such measure. The Appointing Authority shall decide whether to grant this request.’

| 44 | In the present case, the applicant submitted, on 20 January 2014, a request based on Article 27 of Annex IX to the Staff Regulations for the deletion from his personal file of all reference to the first penalty. By decision of 28 February 2014, the Commission granted the applicant’s request. It thus deleted from the applicant’s personal file all reference to the first penalty. However, in the contested decision, the tripartite AECE relied on that penalty, vis-à-vis repeated misconduct, in determining the penalty that appeared to it to be appropriate to the actions which the applicant is alleged to have committed (see paragraph 13 above). |
| --- | --- |

44

In the present case, the applicant submitted, on 20 January 2014, a request based on Article 27 of Annex IX to the Staff Regulations for the deletion from his personal file of all reference to the first penalty. By decision of 28 February 2014, the Commission granted the applicant’s request. It thus deleted from the applicant’s personal file all reference to the first penalty. However, in the contested decision, the tripartite AECE relied on that penalty, vis-à-vis repeated misconduct, in determining the penalty that appeared to it to be appropriate to the actions which the applicant is alleged to have committed (see paragraph 13 above).

| 45 | It is therefore necessary to determine to what extent the administration can use or rely on, against an official, a decision imposing a penalty, all reference to which has been deleted from the personal file, in order to find there to be repeated misconduct. |
| --- | --- |

45

It is therefore necessary to determine to what extent the administration can use or rely on, against an official, a decision imposing a penalty, all reference to which has been deleted from the personal file, in order to find there to be repeated misconduct.

| 46 | As a preliminary point, it must be observed that Article 26 of the Staff Regulations on the personal file of officials applies to members of contract staff pursuant to Articles 11 and 81 of the CEOS. |
| --- | --- |

46

As a preliminary point, it must be observed that Article 26 of the Staff Regulations on the personal file of officials applies to members of contract staff pursuant to Articles 11 and 81 of the CEOS.

| 47 | Under point (a) of the first paragraph of Article 26 of the Staff Regulations, the personal file of an official is to contain ‘all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct’. |
| --- | --- |

47

Under point (a) of the first paragraph of Article 26 of the Staff Regulations, the personal file of an official is to contain ‘all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct’.

| 48 | It has thus been held that a decision imposing a penalty adopted in respect of an official must be attached to his or her personal file because that decision concerns that official’s administrative status (judgment of 2 April 1998, Apostolidis v Court of Justice, T‐86/97, EU:T:1998:71, paragraph 36). |
| --- | --- |

48

It has thus been held that a decision imposing a penalty adopted in respect of an official must be attached to his or her personal file because that decision concerns that official’s administrative status (judgment of 2 April 1998, Apostolidis v Court of Justice, T‐86/97, EU:T:1998:71, paragraph 36).

| 49 | It must be pointed out that such a decision has a decisive impact on an official’s administrative status when the disciplinary authority decides to take that decision as a basis, vis-à-vis repeated misconduct, in order to impose on the official, under the provisions of Article 10(h) of Annex IX to the Staff Regulations, a new and more severe disciplinary penalty. It follows from the foregoing that it must be contained in that official’s personal file. |
| --- | --- |

49

It must be pointed out that such a decision has a decisive impact on an official’s administrative status when the disciplinary authority decides to take that decision as a basis, vis-à-vis repeated misconduct, in order to impose on the official, under the provisions of Article 10(h) of Annex IX to the Staff Regulations, a new and more severe disciplinary penalty. It follows from the foregoing that it must be contained in that official’s personal file.

| 50 | In addition, it must be recalled that the second paragraph of Article 26 of the Staff Regulations provides that ‘documents shall be registered, numbered and filed in serial order’ in the personal file and that ‘the documents [concerning his administrative status] may not be used or cited by the institution against an official unless they were communicated to him before they were filed’. |
| --- | --- |

50

In addition, it must be recalled that the second paragraph of Article 26 of the Staff Regulations provides that ‘documents shall be registered, numbered and filed in serial order’ in the personal file and that ‘the documents [concerning his administrative status] may not be used or cited by the institution against an official unless they were communicated to him before they were filed’.

| 51 | That provision, which introduces a safeguard for the official as regards the actions that the administration could take against him or her, has a broad scope, since it applies to ‘all’ documents ‘concerning [the] administrative status’ of the official. |
| --- | --- |

51

That provision, which introduces a safeguard for the official as regards the actions that the administration could take against him or her, has a broad scope, since it applies to ‘all’ documents ‘concerning [the] administrative status’ of the official.

| 52 | The same is true of the seventh paragraph of Article 26 of the Staff Regulations, which provides that ‘an official’ is to have the right, ‘even after leaving the service’, to acquaint him or herself with ‘all the documents’ in his or her file and to take copies of them. |
| --- | --- |

52

The same is true of the seventh paragraph of Article 26 of the Staff Regulations, which provides that ‘an official’ is to have the right, ‘even after leaving the service’, to acquaint him or herself with ‘all the documents’ in his or her file and to take copies of them.

| 53 | Finally, it is made clear in the sixth paragraph of Article 26 of the Staff Regulations that there is to be ‘only one personal file for each official’; in the same way as the registration, numbering and filing in serial order of documents (see paragraph 50 above), that rule facilitates the official’s access to the documents that could be used or relied on against him or her by preventing those documents from being spread across multiple files. |
| --- | --- |

53

Finally, it is made clear in the sixth paragraph of Article 26 of the Staff Regulations that there is to be ‘only one personal file for each official’; in the same way as the registration, numbering and filing in serial order of documents (see paragraph 50 above), that rule facilitates the official’s access to the documents that could be used or relied on against him or her by preventing those documents from being spread across multiple files.

| 54 | As is clear from the considerations set out in paragraphs 47 to 53 above, Article 26 of the Staff Regulations provides for a series of safeguards intended to protect officials by preventing decisions adopted by the administration and affecting their administrative status from being based on matters the existence of which is recorded in documents not included in their personal file (see, to that effect, judgments of 28 June 1972, Brasseur v Parliament, 88/71, EU:C:1972:58, paragraphs 10 and 11, and of 2 April 1998, Apostolidis v Court of Justice, T‐86/97, EU:T:1998:71, paragraph 33). |
| --- | --- |

54

As is clear from the considerations set out in paragraphs 47 to 53 above, Article 26 of the Staff Regulations provides for a series of safeguards intended to protect officials by preventing decisions adopted by the administration and affecting their administrative status from being based on matters the existence of which is recorded in documents not included in their personal file (see, to that effect, judgments of 28 June 1972, Brasseur v Parliament, 88/71, EU:C:1972:58, paragraphs 10 and 11, and of 2 April 1998, Apostolidis v Court of Justice, T‐86/97, EU:T:1998:71, paragraph 33).

| 55 | In view of the crucial role played by the individual file in the protection of, and provision of information to, an official, it must be concluded that a decision imposing a penalty, even if it has previously been included in an official’s personal file, cannot be used or relied on against him or her if all reference to that decision has been deleted from that file. |
| --- | --- |

55

In view of the crucial role played by the individual file in the protection of, and provision of information to, an official, it must be concluded that a decision imposing a penalty, even if it has previously been included in an official’s personal file, cannot be used or relied on against him or her if all reference to that decision has been deleted from that file.

| 56 | It should be added that a decision based on matters not mentioned in the personal file is contrary to the safeguards provided for in the Staff Regulations (see, to that effect, judgment of 9 February 1994, Lacruz Bassols v Court of Justice, T‐109/92, EU:T:1994:16, paragraph 68 and the case-law cited). |
| --- | --- |

56

It should be added that a decision based on matters not mentioned in the personal file is contrary to the safeguards provided for in the Staff Regulations (see, to that effect, judgment of 9 February 1994, Lacruz Bassols v Court of Justice, T‐109/92, EU:T:1994:16, paragraph 68 and the case-law cited).

| 57 | Moreover, the right that would be afforded to the administration to rely on a decision imposing a penalty that has been removed from an official’s personal file in order to find there to be repeated misconduct for the purposes of Article 10 of Annex IX to the Staff Regulations would effectively render Article 27 of that annex nugatory in that respect. Article 27 of Annex IX to the Staff Regulations allows officials to request the removal of a decision imposing a penalty from their personal file and leaves to the administration the decision as to whether such a request should be granted. By relying on such a decision imposing a penalty which, however, it decided, exercising its broad discretion, to remove from an official’s personal file, the administration is, in reality, reincorporating that decision into that file. |
| --- | --- |

57

Moreover, the right that would be afforded to the administration to rely on a decision imposing a penalty that has been removed from an official’s personal file in order to find there to be repeated misconduct for the purposes of Article 10 of Annex IX to the Staff Regulations would effectively render Article 27 of that annex nugatory in that respect. Article 27 of Annex IX to the Staff Regulations allows officials to request the removal of a decision imposing a penalty from their personal file and leaves to the administration the decision as to whether such a request should be granted. By relying on such a decision imposing a penalty which, however, it decided, exercising its broad discretion, to remove from an official’s personal file, the administration is, in reality, reincorporating that decision into that file.

| 58 | Accordingly, a disciplinary authority which relies, vis-à-vis repeated misconduct, on a disciplinary penalty, all reference to which has been deleted from the personal file of the individual concerned, after a request submitted by that official under the provisions of Article 27 of Annex IX to the Staff Regulations was granted, infringes the rights which the Staff Regulations and, in particular, Article 26 thereof guarantee for officials. |
| --- | --- |

58

Accordingly, a disciplinary authority which relies, vis-à-vis repeated misconduct, on a disciplinary penalty, all reference to which has been deleted from the personal file of the individual concerned, after a request submitted by that official under the provisions of Article 27 of Annex IX to the Staff Regulations was granted, infringes the rights which the Staff Regulations and, in particular, Article 26 thereof guarantee for officials.

| 59 | It follows that the Commission, which took into account the first disciplinary penalty in order to determine the seriousness of the misconduct at issue and to impose the second disciplinary penalty, infringed Article 10(h) of Annex IX to the Staff Regulations, since that first penalty, all reference to which had been deleted from the applicant’s personal file, could no longer be used against him vis-à-vis repeated misconduct. |
| --- | --- |

59

It follows that the Commission, which took into account the first disciplinary penalty in order to determine the seriousness of the misconduct at issue and to impose the second disciplinary penalty, infringed Article 10(h) of Annex IX to the Staff Regulations, since that first penalty, all reference to which had been deleted from the applicant’s personal file, could no longer be used against him vis-à-vis repeated misconduct.

| 60 | The finding contained in paragraph 59 above cannot be called into question by the arguments put forward by the Commission. |
| --- | --- |

60

The finding contained in paragraph 59 above cannot be called into question by the arguments put forward by the Commission.

| 61 | In the first place, the Commission contends that some of the provisions of the Staff Regulations can be interpreted as meaning that a disciplinary penalty adopted against an official can be relied on against that official, even though all reference to its existence has been deleted from the official’s personal file, because a record of that penalty is retained in the disciplinary file. |
| --- | --- |

61

In the first place, the Commission contends that some of the provisions of the Staff Regulations can be interpreted as meaning that a disciplinary penalty adopted against an official can be relied on against that official, even though all reference to its existence has been deleted from the official’s personal file, because a record of that penalty is retained in the disciplinary file.

| 62 | In that regard, the Commission relies on the provisions of Article 86 of the Staff Regulations, as supplemented by Annex IX thereto. However, it does not explain how those provisions, read together, can support its arguments. |
| --- | --- |

62

In that regard, the Commission relies on the provisions of Article 86 of the Staff Regulations, as supplemented by Annex IX thereto. However, it does not explain how those provisions, read together, can support its arguments.

| 63 | The Commission also relies on the fact that a time limit is not stated in Article 10(h) of Annex IX to the Staff Regulations, as well as on the reference to the conduct of the official ‘throughout the course of his career’ in that article. |
| --- | --- |

63

The Commission also relies on the fact that a time limit is not stated in Article 10(h) of Annex IX to the Staff Regulations, as well as on the reference to the conduct of the official ‘throughout the course of his career’ in that article.

| 64 | It is true that, under the provisions invoked by the Commission in paragraph 63 above, the disciplinary authority has broad discretion to take into account an official’s past administrative status. |
| --- | --- |

64

It is true that, under the provisions invoked by the Commission in paragraph 63 above, the disciplinary authority has broad discretion to take into account an official’s past administrative status.

| 65 | However, those provisions do not refer to the official’s personal file. They do not therefore derogate from the rule, established under Article 26 of the Staff Regulations, that a decision imposing a penalty included in an official’s personal file cannot be used or relied on against that official where all reference to that decision has been deleted from that file (see paragraph 55 above). |
| --- | --- |

65

However, those provisions do not refer to the official’s personal file. They do not therefore derogate from the rule, established under Article 26 of the Staff Regulations, that a decision imposing a penalty included in an official’s personal file cannot be used or relied on against that official where all reference to that decision has been deleted from that file (see paragraph 55 above).

| 66 | Accordingly, the provisions relied on by the Commission cannot be construed as allowing the disciplinary authority to take into account an earlier penalty imposed on an official if, pursuant to the provisions of Article 27 of Annex IX to the Staff Regulations, all reference to that penalty has been deleted from that official’s personal file. |
| --- | --- |

66

Accordingly, the provisions relied on by the Commission cannot be construed as allowing the disciplinary authority to take into account an earlier penalty imposed on an official if, pursuant to the provisions of Article 27 of Annex IX to the Staff Regulations, all reference to that penalty has been deleted from that official’s personal file.

| 67 | Furthermore, the first paragraph of Article 26 of the Staff Regulations provides for the obligation to include in an official’s personal file all documents concerning his or her administrative status and all reports relating to his or her ability, efficiency and conduct. As for the sixth paragraph of Article 26 of the Staff Regulations, it lays down the obligation that there is to be only one personal file for each official. It should be added that the Staff Regulations and the CEOS make no reference to any file other than the official’s personal file, with the exception of the medical files mentioned in Article 26a of the Staff Regulations. |
| --- | --- |

67

Furthermore, the first paragraph of Article 26 of the Staff Regulations provides for the obligation to include in an official’s personal file all documents concerning his or her administrative status and all reports relating to his or her ability, efficiency and conduct. As for the sixth paragraph of Article 26 of the Staff Regulations, it lays down the obligation that there is to be only one personal file for each official. It should be added that the Staff Regulations and the CEOS make no reference to any file other than the official’s personal file, with the exception of the medical files mentioned in Article 26a of the Staff Regulations.

| 68 | The personal file is therefore by nature unique, which precludes the existence in any form whatsoever of any other set of documents that includes documents relating to an official’s administrative status (judgment of 11 October 1995, Baltsavias v Commission, T‐39/93 and T‐553/93, EU:T:1995:177, paragraph 38). |
| --- | --- |

68

The personal file is therefore by nature unique, which precludes the existence in any form whatsoever of any other set of documents that includes documents relating to an official’s administrative status (judgment of 11 October 1995, Baltsavias v Commission, T‐39/93 and T‐553/93, EU:T:1995:177, paragraph 38).

| 69 | It is true that the administration can create a file relating to an investigation and, as the case may be, to the disciplinary procedure related to that investigation, as is clear, inter alia, from the provisions of Article 13(1) of Annex IX to the Staff Regulations. However, such a file is created solely for the purposes of the procedure at issue (see, to that effect, judgments of 2 April 1998, Apostolidis v Court of Justice, T‐86/97, EU:T:1998:71, paragraph 36, and of 5 October 2009, de Brito Sequeira Carvalho and Commission v Commission and de Brito Sequeira Carvalho, T‐40/07 P and T‐62/07 P, EU:T:2009:382, paragraph 96). The items and the documents that it contains, including any decision imposing a penalty and closing that procedure, cannot therefore be used or relied on against an official outside that procedure, unless they are included in the personal file of that official. |
| --- | --- |

69

It is true that the administration can create a file relating to an investigation and, as the case may be, to the disciplinary procedure related to that investigation, as is clear, inter alia, from the provisions of Article 13(1) of Annex IX to the Staff Regulations. However, such a file is created solely for the purposes of the procedure at issue (see, to that effect, judgments of 2 April 1998, Apostolidis v Court of Justice, T‐86/97, EU:T:1998:71, paragraph 36, and of 5 October 2009, de Brito Sequeira Carvalho and Commission v Commission and de Brito Sequeira Carvalho, T‐40/07 P and T‐62/07 P, EU:T:2009:382, paragraph 96). The items and the documents that it contains, including any decision imposing a penalty and closing that procedure, cannot therefore be used or relied on against an official outside that procedure, unless they are included in the personal file of that official.

| 70 | It follows from the considerations set out in paragraphs 62 to 69 above that the Commission has no basis on which to argue that certain provisions of the Staff Regulations can be construed as meaning that a disciplinary penalty adopted against an official and kept in his or her disciplinary file may be relied on against that official, even though all reference to its existence has been deleted from the official’s personal file. |
| --- | --- |

70

It follows from the considerations set out in paragraphs 62 to 69 above that the Commission has no basis on which to argue that certain provisions of the Staff Regulations can be construed as meaning that a disciplinary penalty adopted against an official and kept in his or her disciplinary file may be relied on against that official, even though all reference to its existence has been deleted from the official’s personal file.

| 71 | In the second place, with a view to justifying the account taken of the first penalty vis-à-vis repeated misconduct, in the absence of any reference to that penalty in the applicant’s personal file, the Commission relies on the provisions of the ‘Common retention list for European Commission files’, which allow ‘disciplinary files to be retained for 20 years’. |
| --- | --- |

71

In the second place, with a view to justifying the account taken of the first penalty vis-à-vis repeated misconduct, in the absence of any reference to that penalty in the applicant’s personal file, the Commission relies on the provisions of the ‘Common retention list for European Commission files’, which allow ‘disciplinary files to be retained for 20 years’.

| 72 | The ‘Common retention list for European Commission files’ was adopted on the basis of Article 6 of the annex to the Rules of Procedure of the Commission, which is entitled ‘Provisions on document management’, and was adopted by the Commission decision of 23 January 2002 amending its Rules of Procedure (OJ 2002 L 21, p. 23). |
| --- | --- |

72

The ‘Common retention list for European Commission files’ was adopted on the basis of Article 6 of the annex to the Rules of Procedure of the Commission, which is entitled ‘Provisions on document management’, and was adopted by the Commission decision of 23 January 2002 amending its Rules of Procedure (OJ 2002 L 21, p. 23).

| 73 | Under Article 6, which is entitled ‘Storage’, of the annex to the Rules of Procedure of the Commission:
  ‘...
  The administrative rules and legal obligations shall determine the minimum period for which a document must be kept.
  Each Directorate-General or equivalent department shall determine its internal organisational structure for the storage of its files. The minimum storage period within its departments shall take account of a common list, drawn up in accordance with the implementing rules referred to in Article 12, for the whole of the Commission.’ |
| --- | --- |

73

Under Article 6, which is entitled ‘Storage’, of the annex to the Rules of Procedure of the Commission:

‘...

The administrative rules and legal obligations shall determine the minimum period for which a document must be kept.

Each Directorate-General or equivalent department shall determine its internal organisational structure for the storage of its files. The minimum storage period within its departments shall take account of a common list, drawn up in accordance with the implementing rules referred to in Article 12, for the whole of the Commission.’

| 74 | The ‘Common retention list for European Commission files’ takes the form of a table which stipulates the retention periods of various file types. Row 12.4.3 of that table, which is entitled ‘Disciplinary procedures’, provides for a 20-year retention period for decisions imposing disciplinary measures. |
| --- | --- |

74

The ‘Common retention list for European Commission files’ takes the form of a table which stipulates the retention periods of various file types. Row 12.4.3 of that table, which is entitled ‘Disciplinary procedures’, provides for a 20-year retention period for decisions imposing disciplinary measures.

| 75 | It follows from the considerations set out in paragraphs 72 to 74 above that there is a legal basis that allows decisions imposing disciplinary penalties to be retained for a period of 20 years. |
| --- | --- |

75

It follows from the considerations set out in paragraphs 72 to 74 above that there is a legal basis that allows decisions imposing disciplinary penalties to be retained for a period of 20 years.

| 76 | However, in the light of the principle of the hierarchy of rules (see, to that effect, judgment of 30 January 2008, Strack v Commission, T‐85/04, EU:T:2008:18, paragraphs 39 to 41), the ‘Common retention list for European Commission files’, because it simply introduces internal implementing rules for a decision adopted by the Commission (see paragraph 72 above), cannot call into question the previously interpreted provisions of the Staff Regulations (see paragraph 67 above), which is a regulation that, pursuant to Article 288 TFEU, is binding and of general application (see, to that effect, judgment of 14 April 2005, Belgium v Commission, C‐110/03, EU:C:2005:223, paragraph 33). |
| --- | --- |

76

However, in the light of the principle of the hierarchy of rules (see, to that effect, judgment of 30 January 2008, Strack v Commission, T‐85/04, EU:T:2008:18, paragraphs 39 to 41), the ‘Common retention list for European Commission files’, because it simply introduces internal implementing rules for a decision adopted by the Commission (see paragraph 72 above), cannot call into question the previously interpreted provisions of the Staff Regulations (see paragraph 67 above), which is a regulation that, pursuant to Article 288 TFEU, is binding and of general application (see, to that effect, judgment of 14 April 2005, Belgium v Commission, C‐110/03, EU:C:2005:223, paragraph 33).

| 77 | In addition, unlike the provisions of Article 26 of the Staff Regulations (see paragraphs 47 to 54 above), the purpose of the rules in question is not to lay down the conditions under which documents may be used or relied on against an official. As is clear from recital 3 of the annex to the Rules of Procedure of the Commission, those rules seek to ‘ensure that the Commission is able, at any time, to provide information on the matters for which it is accountable’, which means that the documents retained ‘preserve the institution’s memory, facilitate the exchange of information, provide proof of operations carried out and meet the department’s legal obligations’. Those rules cannot therefore permit the Commission to rely, vis-à-vis repeated misconduct, on a penalty previously imposed on an official, all reference to which has been deleted from the personal file of the individual concerned. |
| --- | --- |

77

In addition, unlike the provisions of Article 26 of the Staff Regulations (see paragraphs 47 to 54 above), the purpose of the rules in question is not to lay down the conditions under which documents may be used or relied on against an official. As is clear from recital 3 of the annex to the Rules of Procedure of the Commission, those rules seek to ‘ensure that the Commission is able, at any time, to provide information on the matters for which it is accountable’, which means that the documents retained ‘preserve the institution’s memory, facilitate the exchange of information, provide proof of operations carried out and meet the department’s legal obligations’. Those rules cannot therefore permit the Commission to rely, vis-à-vis repeated misconduct, on a penalty previously imposed on an official, all reference to which has been deleted from the personal file of the individual concerned.

| 78 | It follows from all the foregoing that the applicant’s complaint, by which he alleges that the tripartite AECE erred in law when it relied, vis-à-vis repeated misconduct, on the first penalty, even though the applicant’s request for all reference to that penalty to be deleted from his personal file had been granted, must be upheld. |
| --- | --- |

78

It follows from all the foregoing that the applicant’s complaint, by which he alleges that the tripartite AECE erred in law when it relied, vis-à-vis repeated misconduct, on the first penalty, even though the applicant’s request for all reference to that penalty to be deleted from his personal file had been granted, must be upheld.

| 79 | It must be observed that such an error in applying Article 10 of Annex IX to the Staff Regulations can entail the annulment of the contested decision. |
| --- | --- |

79

It must be observed that such an error in applying Article 10 of Annex IX to the Staff Regulations can entail the annulment of the contested decision.

| 80 | First, when it determined the penalty to be adopted in the light of the nine criteria referred to in Article 10 of Annex IX to the Staff Regulations, the tripartite AECE devoted 14 paragraphs of the contested decision (paragraphs 37 to 50) to the examination of those criteria. The criterion of repeated misconduct is the criterion to which the most in-depth consideration was given, with 5 of those 14 paragraphs relating to that criterion alone. |
| --- | --- |

80

First, when it determined the penalty to be adopted in the light of the nine criteria referred to in Article 10 of Annex IX to the Staff Regulations, the tripartite AECE devoted 14 paragraphs of the contested decision (paragraphs 37 to 50) to the examination of those criteria. The criterion of repeated misconduct is the criterion to which the most in-depth consideration was given, with 5 of those 14 paragraphs relating to that criterion alone.

| 81 | Second, it follows from one of the extracts cited in paragraph 34 above that the tripartite AECE took the view that the facts at issue in the two procedures were comparable, in view, inter alia, of the ‘manifestly fraudulent’ nature, in its opinion, of the actions which the applicant was alleged to have committed when the first penalty was adopted. In addition, it is clear from the extract cited in paragraph 35 above that that similarity and, therefore, the applicant’s repeated conduct despite the penalty which had previously been imposed on him were deemed by the tripartite AECE to be an aggravating factor that played a decisive role in the choice of the penalty. |
| --- | --- |

81

Second, it follows from one of the extracts cited in paragraph 34 above that the tripartite AECE took the view that the facts at issue in the two procedures were comparable, in view, inter alia, of the ‘manifestly fraudulent’ nature, in its opinion, of the actions which the applicant was alleged to have committed when the first penalty was adopted. In addition, it is clear from the extract cited in paragraph 35 above that that similarity and, therefore, the applicant’s repeated conduct despite the penalty which had previously been imposed on him were deemed by the tripartite AECE to be an aggravating factor that played a decisive role in the choice of the penalty.

| 82 | The account taken by the tripartite AECE of the first penalty therefore exercised a decisive influence over the choice of the penalty imposed. Accordingly, the error in law identified in paragraph 78 above, which prompted the tripartite AECE to take account, wrongly, of the first penalty vis-à-vis repeated misconduct, must result in the annulment of the contested decision. |
| --- | --- |

82

The account taken by the tripartite AECE of the first penalty therefore exercised a decisive influence over the choice of the penalty imposed. Accordingly, the error in law identified in paragraph 78 above, which prompted the tripartite AECE to take account, wrongly, of the first penalty vis-à-vis repeated misconduct, must result in the annulment of the contested decision.

| 83 | The contested decision must therefore be annulled without it being necessary, first, to examine the other complaints or the other pleas in law relied on by the applicant or, second, to rule on the admissibility of the documents produced by the parties at the hearing and after it (see paragraphs 20 to 22 above). |
| --- | --- |

83

The contested decision must therefore be annulled without it being necessary, first, to examine the other complaints or the other pleas in law relied on by the applicant or, second, to rule on the admissibility of the documents produced by the parties at the hearing and after it (see paragraphs 20 to 22 above).

Costs

Costs

| 84 | Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. |
| --- | --- |

84

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

| | On those grounds,
  THE GENERAL COURT (Seventh Chamber)
  hereby: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

| | 1. | Annuls the decision of the European Commission of 21 August 2019 to impose on IP the disciplinary penalty of termination without notice of his employment; |
| --- | --- | --- |

1.

1.

Annuls the decision of the European Commission of 21 August 2019 to impose on IP the disciplinary penalty of termination without notice of his employment;

Annuls the decision of the European Commission of 21 August 2019 to impose on IP the disciplinary penalty of termination without notice of his employment;

| | 2. | Orders the Commission to pay the costs. |
| --- | --- | --- |

2.

2.

Orders the Commission to pay the costs.

Orders the Commission to pay the costs.

| | da Silva Passos


  Reine


  Truchot


  Delivered in open court in Luxembourg on 6 October 2021.
  [Signatures] |
| --- | --- |

da Silva Passos

Reine

Truchot

Delivered in open court in Luxembourg on 6 October 2021.

[Signatures]

---

(
  *1
  )	Language of the case: French.

*1