It is clear from Article 25 of Annex IX to the Staff Regulations that the appointing authority is precluded from taking a final decision on the disciplinary aspect of the case involving the official concerned by adjudicating on facts which are at the same time in issue in criminal proceedings so long as the decision given by the criminal court seised has not become final. Consequently, that article does not grant the appointing authority, which is responsible for taking a final decision on the case of an official against whom disciplinary proceedings have been instituted, any discretion as to whether or not to stay proceedings on the official’s case where he is being prosecuted before a criminal court.

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. Second, 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 decision has become final. In fact, Article 25 of Annex IX to the Staff Regulations establishes the principle that disciplinary proceedings arising out of a criminal offence 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.

It follows that the administration is precluded from taking a final decision on the disciplinary aspect of the case involving the official concerned so long as the decision of the criminal court seised has not become final. That is the case even where the criminal proceedings have taken almost ten years at first instance and the applicant has lodged an appeal. It is in the official’s best interest for the disciplinary proceedings to take account of the final decision of the criminal court hearing his appeal.

Moreover, the administration may not seek to rely on certain specific facts in isolation from a whole series possibly constituting criminal conduct in order to justify taking a final disciplinary decision while criminal proceedings on that conduct were still pending at the same time.

(see paras 38, 61, 66, 70, 74)

Judgments in Tzoanos v Commission, EU:T:1998:58, para. 34; A v Commission, T‑23/00, EU:T:2000:273, para. 37; François v Commission, EU:T:2004:180, paras 73 and 75, and Franchet and Byk v Commission, EU:T:2008:257, para. 342