JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
18 June 2015
Case F‑5/14
CX
v
European Commission
(Civil service — Officials — Disciplinary penalty — Removal from post — Failure by the appointing authority to hear the official concerned — Failure to uphold the right to be heard)
Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CX seeks, first, annulment of the decision of 16 October 2013 by which the European Commission imposed the penalty of removal from his post without reducing pro tempore his pension entitlement, and, second, an order that the Commission compensate him for the harm he considers he has suffered.
Held:      The decision of 16 October 2013 by which the European Commission imposed the penalty of removal from his post on CX without reducing pro tempore his pension entitlement is annulled. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by CX, including those of the interim proceedings in Case F‑5/14 R.
Summary
1.      Officials — Disciplinary measures — Disciplinary proceedings — Decision of the appointing authority imposing a disciplinary penalty without first hearing the official concerned — Failure to hear the official attributable to the person himself — Lawfulness — Infringement of the right to be heard — None — Judicial review
(Charter of Fundamental Rights of the European Union, Arts 41(2)(a), 51(1) and 52(1); Staff Regulations, Annex IX, Arts 4 and 22(1)
2.      Officials — Disciplinary measures — Procedure before the Disciplinary Board — Hearing of official by the Disciplinary Board declared medically impossible — Obligation for the official concerned to produce a medical certificate mentioning his inability to attend the hearing — None
(Staff Regulations, Annex IX)
3.      Officials — Disciplinary measures — Procedure before the Disciplinary Board — Hearing of official by the Disciplinary Board declared medically impossible — Application to defer the hearing — Justification for refusal to defer
(Staff Regulations, Annex IX)
1.      Article 41(2)(a) of the Charter of Fundamental Rights of the European Union provides that every person has the right to be heard before any individual measure which would affect him or her adversely is taken. In disciplinary proceedings as governed by the Staff Regulations, the right to be heard is implemented, for the purposes of Article 51(1) of the Charter, first, in particular by Article 22(1) of Annex IX to the Staff Regulations, and, second, by Article 4 of that Annex. In disciplinary matters, the appointing authority’s duty to hear the person concerned is to be interpreted strictly in particular because of the serious penalties to which disciplinary proceedings may lead.
However, the fact that the person concerned was not heard in accordance with Article 22(1) of Annex IX to the Staff Regulations does not lead to the annulment of the decision imposing a disciplinary penalty on him if that failure was attributable to the person himself. The appointing authority is not required to defer the date of the hearing indefinitely until such time as the person is able to attend. On the contrary, in the interests of both the official and the administration, the adoption of a decision concluding the disciplinary proceedings cannot be delayed without justification. That is, moreover, the purpose of the time limit of two months provided for in Article 22(1) of Annex IX to the Staff Regulations, which constitutes a ‘rule of sound administration’.
Furthermore, in order to assess the lawfulness of a decision of the appointing authority to adopt a disciplinary penalty without hearing the official concerned where he has produced a medical certificate providing valid grounds for his absence, it is for the Union judicature to ascertain whether the evidence provided in that regard by the administration shows that the failure to hear the official was attributable to the official himself.
(see paras 61-65)
See:
Judgments in Van Eick v Commission, 35/67, EU:C:1968:39, and Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, para. 42
Judgment in Stevens v Commission, T‑277/01, EU:T:2002:302, paras 41 and 42 and the case-law cited therein
Judgment in de Brito Sequeira Carvalho v Commission, F‑107/13, EU:F:2014:232, paras 100 and 111
2.      There is no provision of the Staff Regulations or, more particularly, of Annex IX to those Regulations, which requires an official invited to appear at a disciplinary hearing before the appointing authority to ensure that any medical certificate stating the reasons for his inability to attend that hearing includes an express reference to the fact that he is prohibited from going out and is unable to travel. Consequently, the absence of such a reference does not, in itself, lead to the conclusion that the official’s state of health is such that he is able to appear before the appointing authority to defend his rights in disciplinary proceedings initiated against him.
(see para. 74)
3.      Where an official has duly and properly informed the appointing authority, by means of a medical certificate, that he is unable to appear before that tripartite authority or to produce written observations, it is for the appointing authority to show, by means of another medical opinion or a substantial body of concordant evidence, that he was, on the contrary, able to attend that hearing and put his case effectively.
(see paras 75, 76)
See:
Judgment in de Brito Sequeira Carvalho v Commission, EU:F:2014:232, para. 111