JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 January 2011

Case F-77/09

Bart Nijs

v

Court of Auditors of the European Union

(Civil service — Officials — Disciplinary measures — Disciplinary proceedings — Articles 22a and 22b of the Staff Regulations — Impartiality — Reasonable time)

Application: brought under Articles 236 EC and 152 EA, by which Mr Nijs seeks, as his main claim, annulment, first, of the decision of 15 January 2009 removing him from his post and, second, of the European Court of Auditors’ decision 81-2007 of 20 September 2007 conferring certain powers of the appointing authority on an ad hoc committee, and, third, of all the preparatory decisions adopted by that ad hoc committee; in the alternative, the applicant asks the Tribunal to ‘hold’ that the penalty of removal from post was disproportionate.

Held: The action is dismissed. The applicant is to bear his own costs and the costs of the Court of Auditors.

Summary

1. Officials — Actions — Jurisdiction of the Civil Service Tribunal — Limits

(Arts 266 TFEU and 270 TFEU; Statute of the Court of Justice, Annex I, Art. 1)

2. Officials — Rights and obligations — Freedom of expression — Disclosure of facts which give rise to a presumption of the existence of possible illegal activity or serious failure to comply with obligations — Protection against disciplinary action — Conditions

(Staff Regulations, Arts 22a(1) and 22b(1))

3. Officials — Disciplinary measures — Disciplinary proceedings — Recourse to an ad hoc appointing authority composed of members of an institution, in this case, the Court of Auditors — Lawfulness

(Art. 247(2) EC)

4. Officials — Disciplinary measures — Disciplinary proceedings — Obligation on the administration to exercise its disciplinary powers with care and impartiality

5. Officials — Actions — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility

(Staff Regulations, Arts 90 and 91)

6. Officials — Disciplinary measures — Penalty — Discretion of the appointing authority — Judicial review — Scope — Limits

(Staff Regulations, Arts 17, 17a and 86 to 89)

7. Officials — Disciplinary measures — Disciplinary proceedings — Time-limits — Obligation on the administration to act within a reasonable time — Assessment

(Staff Regulations, Annex IX)

1. The Civil Service Tribunal has no jurisdiction to revise a disciplinary penalty or to rule that such a penalty is disproportionate and instruct the administrative authority to impose a different one. It is for the person imposing the penalty, where appropriate, under Article 266 TFEU, to take the necessary measures to comply with any judgment ordering annulment.

(see para. 55)

2. Article 22b(1) of the Staff Regulations refers to the first subparagraph of Article 22a(1) of the Staff Regulations for the definition of information disclosure of which will not give rise to disciplinary penalties; those two provisions relate only to the communication of specific facts initial analysis of which may have led the official communicating them to presume the existence of illegal activity or a serious failure to comply with obligations.

The disclosure referred to in those articles is protected from disciplinary penalties only if it fulfils that condition and is carried out with the forbearance required by the duties of objectivity and impartiality, respect for a person’s position, respect for the honour of persons and the presumption of innocence.

The protection of Article 22b(1) may not apply to officials guilty of failures to comply with obligations such as the breach of the obligation to show the greatest prudence and restraint when giving any publicity to allegations falling within the remit of the European Anti-Fraud Office (OLAF).

(see paras 65, 66, 70, 80)

See:

2 May 2007, F-23/05 Giraudy v Commission, para. 162

3. An ad hoc appointing authority made up of Members of the Court of Auditors, offers every guarantee of equal treatment in disciplinary proceedings because those members are required to offer every guarantee of independence and impartiality and fulfil that requirement throughout their term of office. The code of conduct of Members of the Court of Auditors also provides that they are to avoid any situation liable to give rise to a conflict of interests.

Moreover, any administrative authority is under an obligation, particularly as regards disciplinary matters, to respect the principle of impartiality.

(see para. 102)

See:

29 September 2009, F-125/07 Hau v Parliament, para. 27 and case-law cited

4. The administration must exercise its disciplinary powers with care and impartiality.

The task of the official responsible for the administrative inquiry necessarily requires him to establish the relevant facts and circumstances and thus to assess them to determine their relevance, and to assess the probative value of the evidence likely to be relied on in disciplinary proceedings. That power of assessment varies, for its part, according to the nature of the disciplinary offences for which a penalty is liable to be imposed and the investigations they require. The checks carried out by the official responsible for the inquiry require him to make an assessment of matters which may constitute an attack on the respect for a person’s position, which is an important duty for every official, in order to highlight, if necessary, the relevant matters. To prohibit him from making an assessment would prevent any administrative inquiry into such facts.

(see paras 110, 115, 118)

5. In order to safeguard the objective of the pre-contentious procedure, which is to allow the administration to review its decision and thus secure an extrajudicial settlement of disputes, it has been held that the rule of correspondence between the complaint and the action can apply only where the judicial action alters the relief sought in the complaint or its cause of action, and the concept of ‘cause of action’ must be given a broad interpretation as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality. Consequently, and subject to pleas alleging illegality and to grounds raising a public-policy issue, the cause of action of the dispute will normally be altered, and the action therefore inadmissible on the ground that it fails to observe the correspondence rule, only where the applicant, who criticises in his complaint solely the formal validity of the act adversely affecting him, including in its procedural aspects, raises substantive pleas in the application, or in the opposite case where the applicant, after having disputed in the complaint only the substantive legality of the act adversely affecting him, submits an application containing pleas relating to the formal validity of that act, including in its procedural aspects.

(see para. 129)

See:

1 July 2010, F-45/07 Mandt v Parliament, paras 110, 119 and 120

6. The disciplinary measures put in place by the Staff Regulations do not establish a fixed relationship between the penalty and the failure to fulfil obligations. Thus, where it is established that the facts of which the official is accused took place, the choice of the appropriate disciplinary penalty falls to the appointing authority and the European Union judicature may not substitute its assessment for that of that authority unless there has been a manifest error or misuse of powers.

The institutions are entitled to expect officials of a certain grade to act with discernment and circumspection. Accordingly, an official who is the author of defamatory documents, which he has disclosed extensively, is responsible for two flagrant breaches of Articles 17 and 17a of the Staff Regulations. The compulsory resignation of such an official is therefore not disproportionate.

(see paras 131, 132, 135)

See:

18 December 1997, T-12/94 Daffix v Commission, paras 63 and 89; 12 September 2000, T-259/97 Teixeira Neves v Court of Justice, para. 108

7. It follows from the principle of sound administration that disciplinary authorities are under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable time following the previous step. The question whether the disciplinary proceedings, once commenced, have been conducted with due diligence will be influenced by the length of the period between the occurrence of the alleged disciplinary offence and the decision to institute disciplinary proceedings.

However, breach of the principle that steps should be taken within a reasonable time does not, in general, justify annulment of the decision taken following an administrative procedure. It is only where the excessive lapse of time is such as to have an effect on the actual content of the decision adopted on conclusion of the administrative procedure that the failure to respect the principle that steps should be taken within a reasonable time affects the validity of the administrative procedure. This may be the case precisely in procedures leading to penalties, where the excessive lapse of time affect the capacity of the persons concerned to defend themselves effectively.

(see paras 141, 146)

See:

13 December 2000, C-39/00 P SGA v Commission, para. 44

13 January 2004, T-67/01 JCB Service v Commission, paras 36 and 40 and case-law cited

13 January 2001, F-124/05 and F-96/06 A and G v Commission, paras 390 and 392