Judgment — ECLI:EU:T:2004:180
Date: 2004-06-10
Language of the case: French
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Time-limits;General;Initiation of proceedings;Effect of criminal proceedings;Sufficient compensation provided by annulment of the act
Procedure: Action for damages - successful;Staff cases - successful

summary report dated 21 June 2000 containing the results of the in-depth inquiry conducted in the case in question. In that report, the detective superintendent of the Brussels police, Mr L., took the view, in the first place, that it had not been proved that the IMS/Group 4 tender had been altered; in the second place, that an annex materially amending the contract had been signed, but that, although the prior control procedure had not been fully complied with, Financial Control had nevertheless been informed of that annex before it was signed and, in the third place, that certain employees of the IMS/Group 4 company, whose services had been invoiced under the guarding contract, had performed for the Commission duties which had nothing to do with that contract, but that the Commission was fully aware of that abuse, which was widespread at the time. 66 In its notice of 1 March 1001 claiming damages as a civil party before the investigating judge, the Commission alleged that it had suffered harm as a result of a forgery of documents committed in connection with the invitation to tender, and as a result of the invoicing of services provided by persons who had not performed any tasks under the guarding contract. 67 In his application of 27 March 2001 for dismissal after indictment, the public prosecutor for Brussels concluded that there was insufficient evidence against the applicant and the other defendants, Mr Eveillard and Mr Alexandre, with regard, firstly, to the commission of forgery of public or private documents, secondly, to manipulations in connection with the invitation to tender, and, thirdly, to the existence of staff not assigned to perform the guarding contract, while nevertheless paid under that contract. 68 In its judgment of 6 August 2001, the Chamber for Indictments of the Cour d’appel de Bruxelles held, firstly, that the financial operations in question had in part been approved by the ACPC and that, moreover, they had received the agreement of Financial Control and, secondly, that the practices relating to the abuse of the guarding contract had taken place with the full knowledge of the Commission, whose agencies had organised and endorsed those practices. 69 In its order of 19 March 2002, the Tribunal de première instance de Bruxelles, sitting in chambers, held that there was no incriminating evidence for the constituent elements of the offences charged and that, in particular, the file did not contain the slightest evidence to suggest that the applicant, Mr Eveillard and Mr Alexandre had acted with any intent to defraud. 70 Finally, on 28 May 2002, the Chamber for Indictments of the Cour d’appel de Bruxelles gave a judgment declaring the appeal brought by the Commission on 2 April 2002 against the order of 19 March 2002 unfounded. In its judgment, the Cour d’appel de Bruxelles held that there was no incriminating evidence against the accused in respect of the charges relating to alteration of the tender, the adoption of the annex in question and the invoicing, under the guarding contract, of services unconnected with the performance of that contract. 71 It follows from all the foregoing that the conduct which was the subject‑matter of the criminal proceedings can be classified into three distinct groups: first, the conditions under which the guarding contract was awarded, and in particular the alleged manipulation of the tender which was ultimately successful; second, the drafting and conclusion of the annex amending the content of the contract and the failure to consult the ACPC in that regard and, third, the existence of persons paid under the guarding contract for services which were not connected with the tasks provided for in that contract. 72 The first of those groups of facts, relating to the alleged manipulation of the tender, coincided with the subject-matter of charge No 3 made against the applicant by the appointing authority by note of 23 September 1998. However, that charge was not subsequently upheld by the Disciplinary Board, which rejected it in its opinion of 9 March 2000. The second group of facts, relating to the conclusion of the annex in question and to the failure to consult the ACPC, was the subject‑matter of charges Nos 3 and 4, which were upheld against the applicant by the appointing authority in its decision imposing a disciplinary measure on 5 April 2001 and confirmed by the decision of 10 September 2001 rejecting the complaint made through official channels. Likewise, the third group of facts formed the basis of charge No 5, which was also upheld by the appointing authority against the applicant. 73 Consequently, it must be stated that the disciplinary proceedings brought against the applicant concerned the same facts as those which were the subject‑matter of the criminal proceedings. Since the conditions for the application of the fifth paragraph of Article 88 of the Staff Regulations were fulfilled, the Commission was therefore precluded from taking a final decision in the disciplinary proceedings concerning the official so long as no final verdict had been reached by the criminal courts. 74 That conclusion cannot be invalidated by the Commission’s argument that, on the one hand, the respective legal characterisations of the facts in question were different in the criminal proceedings and in the disciplinary proceedings and that, on the other hand, the negligence and omissions specifically alleged against the applicant in the disciplinary proceedings did not constitute a criminal offence for which punishment could be imposed in criminal proceedings brought before the Belgian courts. 75 The Commission’s view is based on a misreading of the fifth paragraph of Article 88 of the Staff Regulations. It should be pointed out that that provision has a twofold rationale. Firstly, that article is intended to ensure that the position of the official in question is not affected in any criminal proceedings instituted against him on the basis of facts which are also the subject‑matter of disciplinary proceedings within his institution (judgment in Tzoanos v Commission, paragraph 34). Secondly, suspension of the disciplinary proceedings pending the conclusion of the criminal proceedings makes it possible to take into consideration, in those disciplinary proceedings, the findings of fact made by the criminal court when its verdict has become final. It must be borne in mind, for that purpose, that the fifth paragraph of Article 88 of the Staff Regulations establishes the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial, a rule which is justified, in particular, by the fact that the national criminal courts have greater investigative powers than the appointing authority (judgment in Case T‑23/00 A v Commission [2000] ECR‑SC I‑A‑263 and II‑1211, paragraph 37). Consequently, where the same facts may constitute both a criminal offence and a breach of the official’s obligations under the Staff Regulations, the administration is bound by the findings of fact made by the criminal court in the criminal proceedings. Once that court has established the existence of the facts in the case, the administration can then undertake their legal characterisation in the light of the concept of a disciplinary offence, ascertaining, in particular, whether they constitute breaches of obligations under the Staff Regulations (see, to that effect, judgment in A v Commission, cited above, paragraph 35). 76 Finally, the Commission’s argument that suspension of the disciplinary proceedings would have considerably delayed their progress, and therefore the final decision in the applicant’s case, cannot be accepted. Since the Commission waited more than five and a half years before initiating disciplinary proceedings against the applicant, it could not rely on the risk of a possible delay in order to justify its decision not to await the conclusion of the judicial proceedings before taking its final decision in the applicant’s case from the disciplinary point of view. Moreover, the applicant did in fact, on several occasions, request suspension of the disciplinary proceedings. Since the verdicts of the Belgian criminal courts were favourable to dismissal in the applicant’s favour, those requests for suspension were by no means attributable to delaying tactics on the part of the applicant, who had every interest in ensuring that the disciplinary proceedings took account of any final verdict of the criminal court which declared that the charges brought against him were unfounded. 77 It must therefore be held that the Commission infringed the fifth paragraph of Article 88 of the Staff Regulations by adopting a disciplinary measure against the applicant without awaiting the final verdict of the criminal court, and the applicant’s ground of challenge must accordingly be upheld. 78 It follows from all the foregoing that the Commission infringed the procedural rules, the rights of the defence and principles of legal certainty and sound administration. Accordingly, the first plea in law must be declared well founded, without there being any need to examine the other grounds of challenge put forward by the applicant. B – The second plea in law, alleging manifest error of assessment of the facts alleged against the applicant 1. Charge No 4: failure to consult the ACPC Arguments of the parties 79 The applicant submits that it is not disputed that he did prepare the consultation note relating to the annex in question and addressed to the ACPC, and that that note was initialled by Mr Eveillard and signed by Mr De Haan. That note became lost in the Security Office’s archives and therefore, for reasons completely beyond the applicant’s control, did not reach its addressee. Once that note was found, the applicant informed his superiors of the need to send it, even belatedly; it was with full knowledge of the facts that his superiors did not see fit to send that note to the ACPC and it was not for the applicant to act against their decisions. 80 The Commission contends that it is established that the annex in question was not submitted to the ACPC for an opinion, that the applicant has not shown that he informed his superiors in an appropriate manner of the obligation to consult the ACPC and that he should have confirmed his warnings in writing. With regard to the applicant’s assertions that it was not for him to act against the decisions of his superiors, the Commission recalls the wording of the third paragraph of Article 21 of the Staff Regulations and points out that the case‑law concerning that article confirms that an official may not rely on the possible responsibility of his superiors in order to evade his own (judgment in Tzoanos v Commission, paragraphs 188 et seq.). Findings of the Court 81 Under Article 68 of the Regulation implementing the Financial Regulation, prior consultation of the ACPC on the annex in question was mandatory in this case, since that annex amended substantively the financial conditions of the guarding contract. It should be noted, in that regard, that the specific charge against the applicant was that he failed to inform his superiors in an appropriate manner of the obligation to consult the ACPC. 82 It must be observed that Mr Eveillard, the applicant’s superior, confirmed before the Disciplinary Board that he had been informed by the applicant that it was necessary to consult the ACPC on the agreement supplementary to the guarding contract. Likewise, the Commission does not dispute the fact that, in November 1992, the applicant prepared a consultation note relating to the annex to the contract, for the attention of the ACPC, and that that note was initialled by Mr Eveillard and signed by Mr De Haan. It is also common ground that that note became lost in the Security Office’s archives. Nor is it disputed that the decision not to send that consultation note to the ACPC, once the note was found, was taken by Mr De Haan and Mr Eveillard, the applicant’s superiors. 83 In the light of the foregoing, the Commission’s argument that the applicant should have put his warnings in writing and that, having not done so, he shared his superiors’ responsibility for not consulting the ACPC cannot be upheld in the circumstances of this case. Since the applicant informed his superiors by word of mouth of the obligation to consult, forwarded the contract together with its annexes to Financial Control and prepared the consultation note addressed to the ACPC, the charge that he failed to inform his superiors in an appropriate manner, based on the mere fact that he did not do so in writing, cannot be upheld against him. 84 Moreover, as regards the failure to consult the ACPC retrospectively at the time when the consultation note was found, in January 1993, it must be observed that the practical effect of such a belated consultation would have been no more than limited. Not only was the guarding contract already being performed, but, on 27 January 1993, following Financial Control’s refusal to countersign a payment order, Annex 3 to the contract had been signed, annulling, with effect from 1 February 1993, the provisions of Annex 1 concerning the adjustment clause relating to fluctuations in the exchange rate of the ecu against the Belgian franc. 85 Consequently, charge No 4, concerning failure to forward to the ACPC the consultation note relating to the supplementary agreement in question, is unfounded. 2. Charge No 5: abuse of the security contract Arguments of the parties 86 With regard to charge No 5, concerning abuse of the guarding contract, in particular so far as concerns the engagement of Mr Burlet to carry out administrative duties even though he was paid by the company awarded the contract, the applicant submits that that practice was common at the time, that the Commission hierarchy was aware of it and that, in the final analysis, it was organised and endorsed by the Commission itself. The applicant had not in any way taken on responsibility for engaging Mr Burlet, which in any case was not part of his duties, which were limited to drawing up the documents for settling the invoices of the company awarded the contract. 87 The Commission points out that the applicant is criticised for his tolerance of, or even involvement in, abuse of the guarding contract, a circumstance which the applicant has not disputed, and not for being responsible for engaging staff, including Mr Burlet. It is that knowledge of the facts, coupled with the failure to report them and to distance himself from them in appropriate ways, which is the subject‑matter of charge No 5. With regard to the applicant’s argument concerning the absence of any direct involvement on his part in the management of the guarding contract, the Commission contends that his job as head of the Security Office’s finance unit did not relieve him of any responsibility in that regard and that, on the contrary, he was, on that basis, all the more obliged to inform his superiors of the abuse of that contract. The fact that such practices were ‘common’ at the time, which the Commission disputes, neither rids the conduct in question of its illegal character nor exempts the applicant from his specific responsibility in that regard. Findings of the Court 88 It must be stated at the outset that the practices in question did not consist in using the guarding contract in order to remunerate fraudulently persons who had not provided any service for the Commission, but in engaging, under that contract, persons required to carry out real tasks within the Commission, those tasks being different, however, from those provided for in the guarding contract. 89 The various documents in the file show that the engagement of staff to carry out administrative tasks in connection with the performance of the guarding contract was a common practice at the time and that it was generally known about within the Commission. The decision adopting the disciplinary measure thus considered the circumstance that ‘the Security Office’s practice at the time was not unusual’ to be extenuating with regard to the applicant. The summary report drawn up on 21 June 2000 by the detective superintendent of the Central Bureau for the Suppression of Corruption of the Brussels criminal investigation department, Mr L., following the inquiry conducted by the Brussels criminal investigation department, noted in that regard (page 10) that ‘[that alleged abuse of the contract] was apparently carried on with the full knowledge of everyone, and even to general satisfaction’ and that ‘[i]t was therefore the European Commission’s agencies themselves which organised and endorsed that practice’. The successive decisions of the Belgian criminal courts also proved that that practice had been organised and endorsed by the agencies of the Commission. 90 The existence and general acceptance of such a practice within the Commission are also confirmed by the letter of 5 October 1987 from Mr Hay, the Commission’s Director‑General for Personnel and Administration at the time, to Mr De Haan. The subject of that letter was the division of responsibilities between the Security Office and the Directorate‑General for Personnel and Administration and it made reference to a meeting of the Security Board on 23 July 1987. That letter stated: ‘The Security Board [had] adopted the principle that “Intergarde staff undertaking guarding or security duties or mixed duties [would] be placed under the authority and management of the Security Office. Only staff having purely administrative duties would come under the [Directorate‑General for Personnel and Administration]. A separate contract could, if necessary, be considered for that category of staff”. In that regard, Mr Hay, after noting that ‘almost all guarding staff [were undertaking] administrative and security duties [at the time], although the proportion [was] variable depending on the posting and/or building’, and that, on the other hand, ‘staff with purely administrative duties were very few in number’, pointed out that ‘it [seemed to him] inappropriate to draw up separate contracts which would make budgetary management more cumbersome and could, in the long term, be a source of demarcation disputes if the duties of one or other of those employees were to change, becoming more administrative or supervisory in nature’. 91 It is clear from the foregoing that the practice of engaging staff to carry out administrative duties under the guarding contract was not only known to the Commission and not unusual, as the decision of 5 April 2001 points out, but had been organised and endorsed by the relevant directorates-general of the Commission and was part of their personnel management policy, designed to overcome the chronic shortage of in‑house staff assigned to them, in order to fulfil the functions allocated to the various Commission departments. 92 It is unreasonable to accuse an official in category B, whose duties, according to Article 5(1) of the Staff Regulations, are executive duties, and not administrative duties, which correspond to those assigned to officials in category A, of failing to comply with his obligations under the Staff Regulations merely by virtue of not having reported that a colleague was being paid by the company awarded the guarding contract, a practice which had been organised by the various Commission departments, was widespread, had been instigated by the hierarchy of the institution and which, although irregular, was not inherently fraudulent. 93 In the light of those circumstances, and in particular of the fact that the applicant did not participate directly in the implementation of such a practice or in the engagement of Mr Burlet, it must be concluded that the appointing authority cannot uphold against the applicant a charge based on the mere fact of not having reported that Mr Burlet, his colleague, had performed purely administrative duties for three months while being paid by the company awarded the guarding contract, or of not having distanced himself from that practice in the appropriate ways. 94 Consequently, charge No 5, concerning abuse of the guarding contract, is unfounded. 3. Charge No 1: professional misconduct consisting of grave negligence as regards compliance with the rules of financial management Arguments of the parties 95 The applicant points out that the audit report by Mr De Moor established that only certain errors arising from defective management were noteworthy. The applicant asserts that he never had to suffer the slightest critical remark from his superiors and that, on the contrary, they congratulated him on numerous occasions, as is attested by the periodic staff reports on him. 96 The Commission contends that the applicant has not disputed the truth of charge No 1. The staff reports cited by the applicant were not intended to assess or characterise the facts forming the basis of the disciplinary proceedings. Findings of the Court 97 Charge No 1, concerning professional misconduct and grave negligence as regards compliance with the rules of financial management, in particular in the drawing up and performance of the guarding contract with IMS/Group 4, is not a separate charge and refers to the applicant’s involvement in drawing up the annex in question and in failing to consult the ACPC. Consequently, it must be concluded that the considerations put forward in support of that charge have no separate existence independent of those upon which charges Nos 3 and 4 are based. 4. Charge No 6: infringement by the applicant of the first paragraph of Article 11 of the Staff Regulations, by virtue of not having carried out his duties solely with the interests of the Community in mind Arguments of the parties 98 The applicant disputes the appointing authority’s argument that he did not carry out his duties solely with the interests of the Communities in mind, inasmuch as he did not warn his superiors of the consequences of failure to consult the ACPC. 99 The Commission contends that the agreement supplementary to the guarding contract harmed the interests of the Communities and that the applicant does not dispute that circumstance. Findings of the Court 100 This charge makes reference to the same conduct as that covered by charges Nos 1, 3 and 4 and, in particular, to the consequences of the irregularities alleged to have been committed by the applicant, notably the drawing up of the annex in question and the failure to consult the ACPC. Consequently, this charge is not self-contained and independent of charges Nos 1, 3 et 4. 101 It follows from all the foregoing that the second plea in law must also be declared unfounded, without there being any need to rule on the merits of charge No 3 since the disciplinary measure contained in the contested decision is single and indivisible and the measure is based on the charges upheld in that decision, taken as a whole (see, to that effect, judgments in Case T‑21/01 Zavvos v Commission [2002] ECR‑SC I-A-101 and II-483, paragraph 316, and Case T‑89/01 Willeme v Commission [2002] ECR‑SC I-A-153 and II‑803, paragraph 83). 102 Accordingly, without there being any need to rule on the other pleas in law relied on by the applicant, the present action must be declared well founded and the contested decision must be annulled. II – Claim for compensation Arguments of the parties 103 The applicant claims to have suffered considerable non-material damage on account of the development of this case, in particular as a result of the harassment which he suffered from 1992 onwards from certain investigators and as a result of the serious accusations made against him, which were circulated both inside and outside the institution, undermining his reputation and honour. The climate of suspicion thus created by the authority, he claims, disrupted his social and family life. He also experienced health problems resulting from the stress caused by that situation. Despite the thorough inquiries carried out by the Brussels prosecuting authorities, the Commission did not hesitate to act in a dilatory manner in order to delay the outcome of the criminal proceedings, which subsequently cleared the applicant completely. 104 With regard to the quantification of that damage, the applicant proposes an amount assessed on an equitable basis at EUR 37 500. The applicant also refers to the error made by the Commission in imposing a disciplinary measure on him and to the fact that he was obliged to lodge a complaint under Article 90(2) of the Staff Regulations against the decision refusing to promote him to Grade B 2. He points out that, in connection with the various proceedings, he has had to pay lawyer’s fees provisionally estimated at EUR 7 736.81. 105 In that regard, the Commission denies, in essence, that the inquiry conducted in this case can be described as harassment and contends that the alleged defamation of the applicant and his health problems stem, assuming they are proved, from the fact that, by not complying with his obligations under the Staff Regulations he ran the risk of disciplinary proceedings. As to the complaint lodged by the applicant against the decision refusing him promotion, the Commission submits that those proceedings have no bearing on the present case. Finally, the Commission concludes that the damage is not established and that there are no grounds for compensation. So far as the duration of the inquiry is concerned, the Commission points out that the Staff Regulations do not provide for any limitation period for the initiation of disciplinary proceedings and that, although, at the start of disciplinary proceedings, the appointing authority must presume that the person concerned is innocent, it may abandon that presumption once the facts alleged against him have been established. 106 In any event, the Commission states that it abides by its compensation offer of EUR 500 for non‑material damage, in order to make up for the prolonged uncertainty which the applicant experienced between the date of the last Disciplinary Board opinion and the date of the final disciplinary decision. Findings of the Court 107 According to settled case-law, for the Communities to be rendered liable it must be proved that the alleged conduct of the institution is illegal, that the damage is genuine and that there is a causal link between the conduct in question and the damage alleged (judgments in Case T‑3/92 Latham v Commission [1994] ECR‑SC I‑A‑23 and II‑83, paragraph 63; Case T‑589/93 Ryan‑Sheridan v EFILWC [1996] ECR‑SC I‑A‑27 and II‑77, paragraph 141; Case T‑140/97 Hautem v EIB [1999] ECR‑SC I‑A‑171 and II‑897, paragraph 83, and Willeme v Commission, cited above, paragraph 94). 108 With regard to the first condition – the illegality of the institution’s conduct – the Court has held in this case that the Commission committed several infringements of the Staff Regulations and breaches of the principles governing disciplinary proceedings, which were manifested in the disputed decision of 5 April 2001. That conduct on the part of the Commission appears to constitute an administrative fault of such a kind as to render it liable. Consequently, at this stage, it is necessary to examine whether the damage alleged is genuine and whether there is a causal link between the alleged conduct of the Commission and that damage. 109 With regard, in the first place, to the material damage, the applicant did not specify either its content or its extent in his pleadings. He merely made reference to the lawyer’s fees borne by him in connection with the various proceedings, to the misapplication of the disciplinary measure and to the fact that he was obliged to lodge a complaint against a decision refusing him promotion. So far as the lawyer’s fees are concerned, the fees relate to the conduct of the criminal proceedings and cannot be reimbursed in the present case in the absence of a causal link between that alleged damage and the fault committed by the Commission. As regards, in general, the financial consequences of applying the disciplinary measure, and in particular the loss of income inherent in the decision imposing relegation in step, it is sufficient to point out that, under Article 233 EC, the Commission is required to take the necessary measures to comply with this judgment. Finally, with regard to the damage alleged by the applicant in connection with the refusal of promotion, it is not relevant to the present proceedings. 110 So far as the non‑material damage is concerned, it is settled case-law that, save in special circumstances, the annulment of the decision contested by an official is in itself appropriate and, in principle, adequate compensation for the non‑material damage suffered by the applicant (judgments in Case T‑165/89 Plug v Commission [1992] ECR II‑367, paragraph 118; Hautem v EIB, cited above, paragraph 82, and Willeme v Commission, paragraph 97). Nevertheless, it must be pointed out that in this case the various administrative decisions and opinions forming part of the disciplinary proceedings made accusations against the applicant which proved to be incorrect. Moreover, the Commission initiated the disciplinary proceedings in breach of the principle that a reasonable period should be observed, the disciplinary proceedings having, furthermore, continued for a period of almost three years until the measure was adopted. Finally, the Commission did not suspend the disciplinary proceedings pending the conclusion of the criminal proceedings against the applicant. That set of circumstances caused injury to the applicant’s reputation, disrupted his private life and placed him in a state of prolonged uncertainty. Those circumstances constitute non‑material damage for which compensation must be made. In that regard, that damage cannot be considered to be adequately compensated for by the annulment of the contested decision. That annulment cannot have the effect, in the particular circumstances of this case, of nullifying retroactively the non‑material damage suffered by the applicant. 111 Consequently, the Commission must be ordered to pay to the applicant compensation for the non‑material damage suffered by him. The Court considers that the amount of EUR 500 offered to the applicant by the Commission is not sufficient to compensate appropriately for the non‑material damage suffered. In the light of the circumstances of the case, the Court hereby fixes the amount of that compensation, on an equitable basis, at EUR 8 000. Costs 112 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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, in accordance with the form of order to that effect sought by the applicant, be ordered to bear all the costs. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Annuls the Commission’s decision of 5 April 2001 imposing on the applicant the disciplinary measure of relegation in step; 2. Orders the Commission to pay to the applicant an amount of EUR 8 000 by way of compensation for the non‑material damage suffered by him; 3. Orders the Commission to bear all the costs. Lindh García-Valdecasas Cooke Delivered in open court in Luxembourg on 10 June 2004. H. Jung P. Lindh Registrar President 1 – Language of the case: French.