Judgment — ECLI:EU:T:2003:73
Date: 2003-03-13
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Act adversely affecting the official;Rights of the defence and procedural guarantees;Individual decisions;Presumption of innocence;Procedure;Obligations of the administration
Procedure: Staff cases - inadmissible;Staff cases - successful

SUMMARY - CASE T-166/02 
Summary 
1. Officials - Actions - Act adversely affecting an official - Definition -
Preparatory act - Initiation of disciplinary proceedings - Inadmissible 
(Staff Regulations, Art. 91) 
2. Officials - Disciplinary measures - Disciplinary proceedings - Concurrent 
criminal proceedings - Effect on the initiation of disciplinary proceedings relating 
to the same matters - None 
(Staff Regulations, Art. 88, fifth para.) 
3. Officials - Disciplinary measures - Disciplinary proceedings - Rights of the 
defence must be observed - Initiation of disciplinary proceedings in relation to 
matters which are the subject of charges in criminal proceedings brought by the 
public prosecutor in a Member State - Breach of the principle of the presumption 
of innocence - None 
(Staff Regulations, Art. 87, second para.) 
4. Officials - Disciplinary rules - Disciplinary proceedings - Hearing of the 
official concerned by the appointing authority - Hearing prior to notification of the 
official concerned of the appointing authority's decision to institute proceedings 
against him - Obligation — None 
(Staff Regulations, Art. 87, second para; Annex IX, Art. 4, second para.) 
5. Officials - Principle of sound administration — Duty of the administration to 
have regard for the welfare of officials - Initiation of disciplinary proceedings 
against an official who is the subject in a Member State of criminal proceedings 
calling into question his integrity - Breach - None 
6. Officials - Decision adversely affecting an official - Obligation to state reasons 
- Scope 
(Staff Regulations, Art. 25, second para.) 
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PESSOA E COSTA v COMMISSION 
1. Only acts or decisions producing binding legal consequences likely directly and 
immediately to affect the applicant's interests by significantly changing his legal 
situation constitute acts adversely affecting an official within the meaning of 
Article 91 of the Staff Regulations and may be the subject of an action for 
annulment. Such is not the position as regards a decision instituting disciplinary 
proceedings against an official. The decision of the appointing authority is only a 
preparatory procedural stage. It does not prejudge the administration's final position 
and cannot, therefore, be regarded as an act adversely affecting an official within 
the meaning of Article 91 of the Staff Regulations. Consequently, it cannot be 
contested indirectly in an action against a final disciplinary decision adversely 
affecting the official, or in an action against an act adversely affecting the official 
which is based on that decision. 
(see paras 35-37) 
See: T-29/93 Calvo Alonso-Cortés v Commission [19931 ECR II-1389, para. 43; T-586/93 
Kotzonis v ESC (19951 ECR II-665. paras 28 and 29; T-562/93 Obst v Commission 
[1995] ECR-SC I-A-247 and II-737. para. 23 
2. The fifth paragraph of Article 88 of the Staff Regulations prevents the appointing 
authority from definitively settling the disciplinary position of an official who is the 
subject of criminal proceedings for the same matters by adjudicating on those 
matters, as long as the decision handed down by the criminal court has not become 
final. However, the existence of criminal proceedings at national level does not 
prevent the appointing authority from instituting concurrent disciplinary proceedings 
relating to the same matters. 
(see paras 45-46) 
See: T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129 and II-343. para. 34 
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SUMMARY - CASE T-166/02 
3. The principle of the presumption of innocence, which any person may rely on so 
long as his guilt has not been proven, cannot be considered to have been breached 
simply because the appointing authority has decided to institute disciplinary 
proceedings relating to the same matters as those of which the official is accused in 
criminal proceedings brought by the public prosecutor in a Member State. That 
principle could be held to have been breached only where there is evidence to show 
that the authority had decided, from the very outset of the disciplinary proceedings, 
to impose a disciplinary sanction on the official in any event, regardless of the 
explanations he provides and the outcome of the criminal proceedings pending in the 
Member State. 
(see paras 55-56) 
See: T-21/01 Zavvos v Commission [2002] ECR-SC I-A-101 and II-483, para. 341 
4. Under Article 87 of the Staff Regulations an official is to be heard before the 
appointing authority imposes a written warning or a reprimand, or, where the 
appointing authority is minded to impose a more serious measure, before it initiates 
the disciplinary procedure provided for in Annex IX to the Staff Regulations by 
submitting a report to the Disciplinary Board. However, the requirement that an 
official must be heard before the appointing authority decides to initiate disciplinary 
proceedings against him cannot be inferred from the wording of Article 87 of the 
Staff Regulations or from the fundamental right to be heard by the Community 
institutions enjoyed by every person during proceedings brought against him which 
are likely to result in an act adversely affecting him. 
(see para. 58) 
See: T-183/96Æ v ESC [1998] ECR-SC I-A-67 and II-159, para. 27 
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PESSOA E COSTA v COMMISSION 
5. Where the appointing authority, having been informed that criminal proceedings 
which are likely to cast doubt on his integrity have been brought against an official 
in a Member State, decides to initiate disciplinary proceedings against him, it 
breaches neither the principle of sound administration nor its duty to have regard 
for the welfare of officials. 
From the time when it receives that information, the authority has a duty to initiate 
such proceedings, since it is required in the interest of the Communities to take the 
necessary steps to satisfy itself of the irreproachable nature of the official's 
professional conduct, despite the fact that the initiation of disciplinary proceedings 
places the official in a situation of apprehension and uncertainty, particularly as to 
his professional future. 
(see paras 64, 66) 
6. The requirement to give a statement of the reasons on which a decision is based 
is intended, first, to provide the person concerned with the necessary information 
to allow him to ascertain whether or not the decision is well founded and, second, 
to enable the Community judicature to review the legality of the decision. In a 
matter where the appointing authority has a wide discretion, the statement of reasons 
must state the main considerations which influenced the administration's decision, 
in order to enable the person concerned to ascertain the matters relied upon to 
justify the measure adopted and to enable the Community judicature to review that 
decision. 
This is why, where the administration takes a decision refusing to grant an 
application for transfer by an official, it must state the main considerations justifying 
its refusal and, on that basis, show how it has balanced the interests involved, as it 
is required to do when taking such a measure, so that it can be ascertained whether. 
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SUMMARY - CASET-166/02 
in weighing that balance, it remained within proper limits and did not use its 
discretion in a manifestly wrong way. 
(see paras 74-75, 77) 
See: 176/82 Nebe v Commission [1983] ECR 2475, para. 21; T-13/95 Kyrpitsis v ESC 
[1996] ECR-SC I-A-167 and II-503, para. 74; T-86/97 Apostolidis v Court of Justice 
[1998] ECR-SC I-A-167 and II-521, para. 73 
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