JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

12 September 2000

Case T-259/97

Rui Teixeira Neves

v

Court of Justice of the European Communities

‛Officials — Duty of loyalty and duty to avoid action of such a kind as to reflect on an official's position — Principle of separation of powers — Freedom to belong to a trade union — Disciplinary rules — Penalty’

Full text in Portuguese II-773

Application for:

first, annulment of the decision of the Court of Justice of 20 January 1997 imposing on the applicant the disciplinary measure of relegation in step and, second, an order that the defendant make good the nonmaterial damage claimed to have been caused by that decision.

Held:

The application is dismissed. The parties shall bear their own costs.

Summary

Officials — Disciplinary rules — Disciplinary proceedings — Period within which the appointing authority is to adopt its decision as prescribed in the third paragraph of Article 7 of Annex IX to the Staff Regulations — Obligation of the administration to act within a reasonable time — Nonobservance — Consequences — Liability incurred by the institution — Assessment of reasonable time — Taking into account of the time which has elapsed between one procedural step and the subsequent step

Officials — Disciplinary rules — Disciplinary proceedings — Hearing of the official concerned by the appointing authority — Hearing prior to the appointing authority's decision to refer the matter to the Disciplinary Board — Purpose — Obligation to inform the person concerned of the facts of which he is accused — Scope

Officials — Rights and obligations — General duty of loyalty — Duty owed to the institution composed of the Court of Justice and the Court of First Instance — Action of such a kind as to reflect on an official's position — Insults relating to the activity of the members of an institution — Honour of those members impugned

Not only imputations likely to be detrimental to the dignity of the persons to whom they refer as such but also allegations of such a kind as to cast discredit on their professional honour constitute serious insults which impugn the honour of those persons. The form of the allegations does not matter; both direct attacks and allegations made in a manner expressing doubt, indirectly, covertly, by way of insinuation or referring to a person not expressly mentioned but who can be identified are covered. (see paras 29, 30 and 47) See: T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paras 76 and 80; T-146/94 Williams v Court of Auditors [1996] ECRSC I-A-103 and II-329, paras 66 and 67; C-156/96 P Williams v Court of Auditors [1997] ECR I-329, paras 21 and 22

The general duty of loyalty deriving from Articles 11, first paragraph, 12, first paragraph, and 21, first paragraph, of the Staff Regulations is binding on every official vis-à-vis not only his superiors but also the institution to which be belongs. From an administrative point of view, the Court of Justice and the Court of First Instance form a single institution. It follows that the institution to which an official of the Court of Justice belongs and to which he must show loyalty includes both the Court of Justice and the Court of First Instance. Accordingly, the conduct of an official of the Court of Justice, in so far as it impugns the honour and consideration of the Court of First Instance, constitutes a breach of Articles 11, first paragraph, 12, first paragraph, and 21, first paragraph, of the Staff Regulations. Furthermore, it clearly cannot be claimed that the dissemination of insults in regard to members of the Court of First Instance, in the exercise of their judicial functions, does not harm the reputation of the Community and consequently its interests. Nor does it matter, in order for there to be a breach of the professional duties laid down in the Staff Regulations, that the assertions of the official concerned related to the activity of the members of a Community institution. It is sufficient that they impugned the honour of the persons concerned. The professional duties laid down in the Staff Regulations include the official's duty to refrain from any public expression of opinion that may reflect on his position. Insults expressed publicly by an official, and impugning the honour of the persons to whom they refer, in themselves reflect on the position of the official for the purposes of the first paragraph of Article 12 of the Staff Regulations. (see paras 44 to 47) See: T-146/89 Williams v Court of Auditors, cited above, paras 72, 76 and 80; T-146/94 Williams v Court of Auditors, cited above, para. 66; C-156/96 Williams v Court of Auditors, cited above, paras 21 and 22

An official of the Court of Justice cannot rely on the principles of the separation of powers, equal treatment for officials of the different institutions and the impartiality of the court as against the disciplinary powers of the appointing authority in regard to him and as against the jurisdiction of the Court of First Instance to review the legality of a disciplinary measure imposed on him for abuse directed at the institution. First, there is no confusion contrary to the principle of the separation of powers between the Court of First Instance, in the exercise of its judicial functions, and the Court's personnel administration, since the members of the Court of First Instance cannot, directly or indirectly, either exercise or solicit the exercise of disciplinary powers as against officials of the Court for acts connected with the proceedings. It follows from Articles 3(2) and 6(3) of the Decision of the Court of Justice of 25 January 1995 on the exercise of the powers conferred by the Staff Regulations on the appointing authority that the decision to initiate disciplinary proceedings falls within the exclusive competence of the Administrative Committee - for officials in Category A and the LA Service - and that of the Registrar of the Court of Justice - for officials in Categories B, C and D. There is no hierarchical relationship between the members of the Court of First Instance and the Administrative Committee or the Registrar. Next, there is no difference in treatment between officials of the Court and officials of the other Community institutions. The dissemination of insulting statements concerning the members of the Court of First Instance, in so far as it is detrimental to the interest of the Community and the dignity of the European civil service, constitutes, for any official, a breach of the professional duties laid down in Articles 11, first paragraph, 12, first paragraph, and 21, first paragraph, of the Staff Regulations. Last, it follows from an analysis of the law applicable to the international civil service and of the constitutional law of certain Member States that the principle of the impartiality of the court is not absolute. Certain requirements in the general interest, and in particular the requirement to protect the autonomy of certain institutions, may require the introduction of restrictions on its application. The protection of the autonomy of the Community Courts requires that all disciplinary matters relating to officials of the Court of First Instance and the Court of Justice, including those relating to the dissemination of statements which are insulting to members of those organs, in the exercise of their duties, are outside the jurisdiction of the national courts. (see paras 49 to 51)

Unlike the hearing provided for in the first paragraph of Article 87 of the Staff Regulations, the hearing provided for in the second paragraph of that article is intended solely to allow the appointing authority to assess, prima facie, the materiality and the gravity of the facts of which the official concerned is accused, in the light of the explanations which he provides, and to form an opinion as to whether it is appropriate to refer the matter to the Disciplinary Board with a view to the adoption of a disciplinary measure, should that be necessary. Having regard to that function of the preliminary hearing, and in the absence of any provision in the Staff Regulations requiring the appointing authority to transmit to the official concerned the documents which at that stage of the proceedings constitute his disciplinary file, the appointing authority cannot be required, in the absence of a request by the official concerned, to communicate to the latter the full text of the request to open disciplinary proceedings against him. It is sufficient that the official concerned is clearly informed of all the facts which are alleged against him in that request and of the provisions of the Staff Regulations relied on as against him. (see paras 66 to 67)

The duty to avoid action of such a kind as to reflect on his position is binding on an official in all circumstances. It follows that an official cannot use the exercise of his freedom to belong to a trade union as a pretext for breaching his professional duties with impunity. However, certain circumstances may justify a less rigorous interpretation of the official's duty to show discretion. That is so, in particular, where the official exercises his right to freedom of expression for the purpose of a general staff meeting. In that case, the official cannot be considered to have failed to meet that requirement unless he uses seriously insulting language or language which seriously undermines the respect due to the persons to whom the language is directed. (see paras 94 to 96) See: T-146/94 Williams v Court of Auditors, cited above, para. 68; C-150/98 P ESC v E [1999] ECR I-8877, para. 15

Where the truth of the facts alleged against an official is established, it is for the appointing authority to choose the appropriate disciplinary measure to be imposed. The Community judicature may substitute its assessment for that of the authority, only in the event of manifest error or misuse of powers. (see para. 108) See: T-12/94 Daffix v Commission [1991] ECRSC I-A-453 and II-1197, para. 63