JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 June 2013

Charles Dieter Goetz

v

European Union Committee of the Regions

‛Civil service — Officials — Non-contractual liability — Actions for damages — Admissibility — Point from which period to institute proceedings starts to run — OLAF investigation — Administrative investigation — Disciplinary proceedings before the Disciplinary Board — Obligation of the administration to act with due diligence — Length of disciplinary proceedings — Liability arising from the initiation of disciplinary proceedings which conclude without a sanction being imposed’

Application:

by Mr Goetz pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, essentially seeking an order for the Committee of the Regions to pay compensation firstly, in respect, of non-material loss which he claims to have suffered as a result of being left, for an excessive period of time, in a state of uncertainty due to accusations having been made against him, secondly, in respect of non-material loss he claims to have suffered by reason of mistakes and failures to act on the part of the Committee of the Regions in the conduct of administrative and disciplinary procedures relating to him, and thirdly, in respect of material loss which he claims to have suffered by reason of being required to take early retirement.

Held:

The application is dismissed. Mr Goetz is to bear his own costs and is ordered to pay those incurred by the Committee of the Regions.

Summary

Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary and criminal proceedings ongoing at the same time in relation to the same facts — Suspension of disciplinary proceedings — Justification — Official requesting that the disciplinary proceedings await the decision of the court — Lawfulness

Where a head of loss is truly intended to indemnify the claimant, in the sense that it represents compensation for loss alleged to have been caused by a blameworthy act or omission which, in the absence of any legal effect, could not be regarded as an act adversely affecting the person concerned, the claim to relief is admissible only if that relief has previously been sought, initially in a request for compensation made to the administration within a reasonable period (that period being considered to run from the time when the alleged loss was actually suffered), and subsequently in a complaint against the decision rejecting that request, within the time-limits laid down by Article 90(2) of the Staff Regulations. In this regard, although a reasonable period is to be determined in light of the particular circumstances of the case, especially the importance of the dispute to the person concerned, the complexity of the matter and the conduct of the parties, a point of reference may be provided by the limitation period of five years laid down in relation to non-contractual liability by Article 46 of the Statute of the Court of Justice of the European Union, even though that period is not applicable to disputes between the European Union and its staff. (see paras 95-96) See: 19 April 2007, C‑282/05 P Holcim (Deutschland) v Commission, para. 33; 17 July 2008, C‑51/05 P Commission v Cantina sociale di Dolianova and Others, para. 63 5 October 2004, T‑144/02 Eagle and Others v Commission, para. 71 2 May 2007, F‑23/05 Giraudy v Commission, para. 69

Actions for compensation for damage caused by an institution to an official or other member of staff, brought on the basis of Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, are subject to more particular and specific rules than those deriving from the general principles which govern the non-contractual liability of the European Union under Article 268 and the second paragraph of Article 340 TFEU. It follows from the Staff Regulations that, unlike any other individual, an official or other member of the European Union’s staff is connected to the institution to which he belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. Accordingly, when it acts in its capacity as employer, the European Union has a greater degree of responsibility, which is manifested in an obligation to compensate its staff in respect of loss caused by any unlawful conduct of the European Union in its capacity as employer, and in the context of European civil service litigation it is not necessary, in order to establish non-contractual liability on the part of an institution, to demonstrate a sufficiently serious breach, or manifest and serious disregard of the limits of its discretion. (see para. 98) See: 16 December 2010, T‑143/09 P Commission v Petrilli, para. 46 and the case-law cited; 12 July 2012, T‑308/10 P Commission v Nanopoulos, paras 103 and 104

Where an official claims to have suffered non-material loss as a result of the excessive length of disciplinary proceedings, the fact that the loss relied on was not complete on the date of institution of the proceedings does not render his claim for compensation inadmissible. If it were otherwise, the administration could prevent any liability arising by reason of the excessive length of proceedings by keeping them open indefinitely. (see para. 122) See: 11 April 2006, T‑394/03 Angeletti v Commission

The administration is obliged to act with due diligence when dealing with an individual’s position. This obligation is a general principle of European Union law and the Court has to ensure that it is observed. It is reiterated as an element of the right to good administration in Article 41(1) of the Charter of Fundamental Rights of the European Union, breach of which gives rise to liability on the part of the European Union. Where it appears that the administration has failed to act with due diligence, it is incumbent on it to establish that there are specific circumstances justifying its conduct. In this regard, in disciplinary matters the appointing authority or, depending on the circumstances, the European Anti-Fraud Office (OLAF) is obliged to act with due diligence from the point in time when it becomes aware of facts and conduct which may constitute a breach of the obligations imposed on officials by the Staff Regulations, in considering whether an investigation should be opened, and, where applicable, in conducting that investigation and (in relation to the authority) the disciplinary proceedings. In particular, in relation to disciplinary proceedings the authority must ensure that every step it takes is taken within a reasonable time of the last. In considering whether a lack of due diligence on the part of the administration has made it difficult for the official concerned to exercise his rights of defence, thus justifying, in the same way as a limitation period does, the annulment of the sanction imposed at the conclusion of the proceedings, it is necessary to take into account the period from the occurrence of the events at issue to the time when the appointing authority or OLAF became aware of them. By contrast, that period has no relevance in considering whether the authority or OLAF has caused loss to a person by keeping him in a state of anxiety as a result of his being suspected of having breached the duties imposed by the Staff Regulations. Such loss must be compensated because, in a case of that kind, provided that nothing had come to the attention of the authority or OLAF which might have shown that the official concerned had committed a breach, neither of them can be criticised for having kept the official in a position of uncertainty for an excessive period, by reason of a lack of due diligence. (see paras 123, 125-127) See: 21 September 2006, C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, para. 35 Angeletti v Commission, para. 162 13 January 2010, F‑124/05 and F‑96/06 A and G v Commission, para. 395; 8 March 2012, F‑12/10 Kerstens v Commission, paras 124 to 126

Where the appointing authority chooses to open an internal administrative enquiry, in addition to the investigation conducted by OLAF, this will inevitably lengthen the disciplinary period. None the less, the fact of an internal administrative enquiry cannot be treated as rendering the period excessive as a matter of principle. Where the facts in question are of some complexity, or where the administration does not have the necessary expertise to determine whether certain practices, particularly in the sphere of finance, constitute irregularities, it may be necessary for the appointing authority to engage third parties to clarify the effect of the actions identified by OLAF in its investigation report. (see paras 135-136)

Annex IX to the Staff Regulations does not lay down any time limit for the appointing authority, once it has decided to initiate disciplinary proceedings before the disciplinary board, to send its report to the board. In any event, the periods set out in Annex IX of the Staff Regulations are not mandatory, and longer periods may be necessary in order to carry out an assessment of the facts which is sufficiently comprehensive, and which ensures that the person concerned is given all the safeguards intended by the Staff Regulations. (see para. 141) See: 18 December 1997, T‑12/94 Daffix v Commission, paras 130 and 131; 10 June 2004, T‑307/01 François v Commission, para. 47

A plea based on a wish to grant a request made by an official, against whom both disciplinary proceedings and proceedings before a national court were ongoing, to await the decision of the national authorities, would appear to provide a valid reason for the suspension of disciplinary proceedings, and thus the prolongation of the disciplinary period. It is true that Article 25 of Annex IX to the Staff Regulations does not require the disciplinary board to suspend its proceedings. First, under that Article the fact of a parallel criminal prosecution does not prevent the disciplinary proceedings from continuing, but only prevents the appointing authority from taking a final decision. Secondly, the administration is only obliged to suspend disciplinary proceedings if the official demonstrates that he is subject to criminal prosecution. This entails that the public mechanism for imposing punishment has been engaged, and thus cannot include an enquiry or judicial investigation, but presupposes that criminal proceedings have been instituted. Nevertheless, the fact that the disciplinary board is not required to suspend disciplinary proceedings does not mean that it is not justified in deciding to suspend such proceedings. In determining whether such a suspension was appropriate, the facts and matters to be taken into account are limited to those that were at the disposal of the authority or disciplinary body when it made the decision. By contrast, it would not seem that reasons connected with the complexity of the matter, the number of witnesses to be questioned, or the need to take other preparatory steps determined by the disciplinary board, would justify the suspension of disciplinary proceedings, or the consequent delay, but that at most, they should lead the disciplinary board to devote greater resources to the matter. Similarly, the summer holiday period does not provide a justification for suspending disciplinary proceedings. (see paras 147, 150-153) See: 17 July 2012, F‑54/11 BG v Médiateur, para. 70

Although Article 3 of Annex IX to the Staff Regulations provides that, on conclusion of the OLAF investigation, it is for the appointing authority, and not OLAF, to decide whether to institute disciplinary proceedings, and, subsequently, to decide whether it is appropriate to impose a penalty, it cannot be inferred from these provisions that the authority can bring an OLAF investigation to an end. This would call the independence of OLAF investigations, as set out in Article 3 of Decision 1999/352, establishing OLAF, into question. (see para. 159)

An internal audit report of an institution, which is directed to the analysis of the functioning of a department and not the acts of an individual, and which, accordingly, does not relate to the unlawfulness of an act adversely affecting an official, does not constitute an act adversely affecting an official in relation to which, in order for any application to be admissible, the official would need to make a complaint within the period of three months laid down by Article 90(2) of the Staff Regulations. (see para. 170)