JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

16 May 2000

Case T-121/99

Sean Irving

v

Commission of the European Communities

‛Officials — Disciplinary measures — Removal from post — Time-limits for proceedings — Rights of the defence’

Full text in English II-357

Application for:

annulment of the decisions of the Commission of 16 July 1998 removing the applicant from his post and of 26 February 1999 rejecting the complaint lodged by the applicant against the first decision.

Held:

Application dismissed. Each party is to bear its own costs.

Summary

Officials — Disciplinary measures — Disciplinary proceedings — Prior hearing of the person concerned by the appointing authority — Purpose — Obligation to communicate the file to the person concerned before that hearing — None in the absence of a request by the person concerned

Officials — Disciplinary measures — Disciplinary proceedings — Right of official to financial assistance with legal fees during proceedings — None — Payment at the end of the proceedings by the institution of costs incurred by the official on his own initiative — Conditions

Officials — Disciplinary measures — Disciplinary proceedings — Hearing of the person concerned before the adoption by the appointing authority of the decision closing the proceedings — Time-limit f or invitation to the hearing not set in the Staff Regulations — Presumption that officials know the Staff Regulations — Presumption of awareness that hearing will be held shortly after receipt by the person concerned of the reasoned opinion of the Disciplinary Board

The purpose of the third paragraph of Article 88 of the Staff Regulations is to prevent an official subject to disciplinary proceedings from being deprived of his remuneration for over four months without his case being decided. That time-limit of four months is therefore mandatory only to the extent that, following its expiry, the official once again becomes entitled to payment of his full remuneration and to payment of the amounts withheld from his salary. On the other hand, the fact that the appointing authority has not reached a final decision on the case of the official concerned within the period prescribed for that purpose cannot, as such, result in the unlawfulness of the decision closing the disciplinary proceedings against him. (see para. 49) See: T-549/93 D v Commission [1995] ECRSC I-A-13 and II-43, paras 32 and 33; and T-219/96 Y v Parliament [1998] ECRSC I-A-429 and II-1235, paras 33 and 42

As the third paragraph of Article 7 of Annex IX to the Staff Regulations does not lay down any time-limit for summoning the official concerned to the hearing preceding the adoption by the appointing authority of its decision closing the disciplinary proceedings brought against that official, and as all officials are presumed to know the Staff Regulations, of which Annex IX is an integral part, that official must have been aware, from the moment he received the reasoned opinion of the Disciplinary Board, that his hearing by the appointing authority was imminent and that it was therefore necessary to prepare as soon as possible his defence, for the hearing, against the complaints with which that opinion was concerned. His late receipt of the letter calling on him to attend that hearing cannot therefore affect the preparation of his defence for that hearing. (see paras 67 and 72) See: Daffix v Commission, cited above, para. 116

There is no provision in the Staff Regulations entitling an official subject to disciplinary proceedings to obtain from the Commission during such proceedings financial assistance to enable him to meet his legal fees incurred in the course of the proceedings. It follows from Article 10 of Annex IX to the Staff Regulations that the payment by the Commission of expenses incurred by an official on his own initiative in the course of disciplinary proceedings, and legal fees in particular, can only be made on conclusion of such proceedings and, moreover, is only possible if no disciplinary measure or only a minor disciplinary measure is imposed at the end of the proceedings. (see para. 82)

The purpose of the hearing provided for in the second paragraph of Article 87 of the Staff Regulations is to enable the appointing authority to assess the seriousness of the matters of which the official concerned is accused in the light of the explanations provided by the official and to decide whether disciplinary measures should be imposed on him and whether or not it is necessary to refer the case to the Disciplinary Board before adopting such a measure. Having regard to the purpose of this preliminary hearing and in the absence of any provision of the Staff Regulations obliging the appointing authority automatically to allow the official concerned access to his disciplinary file at this stage in proceedings, the appointing authority cannot be obliged, in the absence of any request by the person concerned, to communicate the documents making up the file at that stage to that person before the matter has been referred to the Disciplinary Board. (see paras 94 and 95) See: 255/83 and 256/83 R v Commission [1985] ECR 2473, para. 17; T-183/96 E v ESC [1998] ECRSC I-A-67 and II-159, para. 25