JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
30 June 2015
Case F‑129/14
Pierre Dybman
v
European External Action Service (EEAS)
(Civil service — EEAS staff — Officials — Disciplinary proceedings — Disciplinary penalty — Criminal proceedings in progress at the time of the adoption of the disciplinary penalty — Identical facts submitted to the appointing authority and to the criminal court — Breach of Article 25 of Annex IX to the Staff Regulations)
Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Dybman seeks annulment of the decision of 16 January 2014 by which the chief operating officer of the European External Action Service (EEAS), acting as the appointing authority, imposed on him the penalty of removal from post without reduction of his entitlement to a pension, with effect from 1 February 2014.
Held:      The decision of 16 January 2014 by which the European External Action Service removed Mr Dybman from his post without reduction of his entitlement to a pension is annulled. The European External Action Service is to bear its own costs and is ordered to pay the costs incurred by Mr Dybman.
Summary
1.      Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary proceedings and criminal prosecution brought at the same time concerning the same facts — Purpose of the suspension of the disciplinary proceedings — Obligation to respect the findings of fact made by the criminal court — Possibility to characterise them in the light of the concept of a disciplinary offence
(Staff Regulations, Annex IX, Art. 25)
2.      Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary proceedings running alongside criminal proceedings — Obligation on the administration to take a final decision on the official’s situation after a final verdict has been reached by the criminal court — Limits
(Staff Regulations, Annex IX, Art. 25)
1.      Article 25 of Annex IX to the Staff Regulations 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. 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. In fact, Article 25 of Annex IX to the Staff Regulations establishes the principle that disciplinary proceedings 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. 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 classification in the light of the concept of a disciplinary offence, ascertaining, in particular, whether they constitute breaches of obligations under the Staff Regulations.
However, the assessment made of the facts by the criminal court may differ from that made by the appointing authority in the disciplinary proceedings, in so far as each assessment corresponds to separate legal classifications which are independent of each other. In any event, requiring the assessment of the facts by the criminal court and the appointing authority to be identical would be tantamount to imposing an additional condition not provided for in Article 25.
It follows that the appointing authority is precluded from taking a final decision on the situation of the official concerned, from the disciplinary point of view, so long as the decision of the criminal court concerned has not become final. Otherwise, even though the criminal court had not yet ruled on the truth of the facts, they would, however, be regarded by the administrative authority as already established, placing the staff member concerned in a more difficult situation than if such a decision had not been taken by the administrative authority.
Furthermore, the principle that disciplinary proceedings must await the outcome of the criminal trial must be interpreted restrictively where that principle is to be applied simply in the context of investigations, even before criminal proceedings under national law are initiated.
(see paras 35, 36, 53, 55, 59)
See:
Judgments of 19 March 1998 in Tzoanos v Commission, T‑74/96, EU:T:1998:58, para. 34; 21 November 2000 in A v Commission, T‑23/00, EU:T:2000:273, para. 37; 10 June 2004 in François v Commission, T‑307/01, EU:T:2004:180, paras 73 and 75, and 8 July 2008 in Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, para. 342
Judgments of 17 July 2012 in BG v Ombudsman, F‑54/11, EU:F:2012:114, and 18 March 2015 in DK v EEAS, F‑27/14, EU:F:2015:12, paras 38, 49, 66 and 70
2.      In disciplinary matters, even though it may at first sight appear regrettable that the existence of a criminal prosecution initiated a number of years previously by the national courts on the same facts as those which are the subject of disciplinary proceedings brought against an official prevents the appointing authority, pursuant to Article 25 of Annex IX to the Staff Regulations, from taking a final decision on the administrative situation of the official concerned, the appointing authority still has to demonstrate that the national criminal prosecution in progress is taking a disproportionate amount of time for the complexity of the case or compared with the duration of proceedings of a similar difficulty. In any event, it is in the official’s best interest for the disciplinary proceedings to take account of the final decision of the criminal court if he is acquitted.
(see para. 66)
See:
Judgment of 18 March 2015 in DK v EEAS, EU:F:2015:12, para. 74