EN
ReportsofCases
ECLI:EU:F:2011 :2 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Second Ch amber)
13 January 2011
Case F-77/09
Bart Ni js
v
Court of Auditors of the European Un ion
(Civil service — Officials — Disciplinary me asures — Disciplinary proceedings — Articles 22a and 22b 
of the Staff Regulations — Impartiality — Reasonable time)
Application:brought u nder Articles 236 E C and 152 E A, by which M r Nijs seeks, as his main claim, 
annulment, first, of the decision o f 15 January 2009 r emoving him from h is post and, 
second, of the European C ourt of Au ditors’ decision 81 -2007 o f 20 September 2007 
conferring certain powers of the appointing authority on a n ad h oc committee, and, 
third, of all th e preparatory decisions ad opted by th at ad h oc committee; in th e 
alternative, the applicant asks th e Tribunal to ‘hold’ that the pe nalty 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 Au ditors.
Summ ary
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 o f expression — Disclosure of facts wh ich 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 o f 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
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5. Officials — Actions — Prior administrative complaint — Correspondence between complaint and 
action — Same subject-matter and legal basis — Submissions and arguments not made i n the 
complaint but closely related to it — Admissibility
(Staff Regulations, Arts 90 a nd 91)
6. Officials — Disciplinary m easures — 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 r easonable time — Assess ment
(Staff Regulations, Annex IX)
1. The Civil Service Tribunal has no j urisdiction to revise a di sciplinary pe nalty or to rule that such a 
penalty is disproportionate and instruct the administrative authority to impose a di fferent one. It is for 
the pe rson i mposing th e pe nalty, where appropriate, under Article 266 TFEU, to take th e 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 o f information di sclosure of which will no t give ri se to di sciplinary 
penalties; those two provisions relate on ly to th e communication o f specific facts initial analysis of 
which m ay have led th e official communicating them t o presume th e existence of illegal activity or a 
serious failure to comply with obligations.
The disclosure referred to in those articles is protected from di sciplinary pe nalties on ly if it fulfils that 
condition a nd is carried out with th e forbearance required by the duties of objectivity and impartiality, 
respect for a pe rson’s position, respect for the honour of persons and the presumption o f innocence.
The protection o f Article 22b(1) may no t apply to officials guilty of failures to comply with obligations 
such as the breach of the obligation t o show th e greatest prudence and restraint when giving any 
publicity to allegations falling within the remit of the European Anti-Fraud Office (O LAF).
(see paras 65, 66, 70, 80)
See:
2 May 2007 , F-23/05 G iraudy v C omm ission, para. 162
3. An ad h oc appointing authority m ade up of M embers of the Court of Au ditors, offers eve ry 
guarantee o f equal treatment in disciplinary proceedings because those mem bers are required to offer 
every guarantee o f independence and impartiality and fulfil that requirement throughout their term of 
office. The code of conduct of Members of the Court of Au ditors also provides that they are to avoid 
any situation liable to give ri se to a c onflict of interests.
Moreover, any ad ministrative a uthority 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 H au v P arliament, para. 27 a nd case-law cited
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4. The administration m ust exercise its disciplinary powers with care and impartiality.
The task of the official responsible for the ad ministrative inquiry necessarily requires him to establish 
the relevant facts and circumstances and th us to assess th em t o determine th eir relevance, and to 
assess th e probative v alue of the ev idence likely to be relied on i n di sciplinary proceedings. That 
power of assessment varies, for its part, according to the nature of the disciplinary offences for which 
a pe nalty is liable to be imposed and th e investigations they require. The checks carried out by the 
official responsible for th e inquiry require him t o m ake a n assessment of matters which m ay 
constitute an attack on th e respect for a pe rson’s position, which is an important duty for eve ry 
official, in order to highlight, i f necessary, the relevant matters. To prohibit him from m aking an 
assessment would prevent any administrative inquiry into such facts.
(see paras 110 , 115 , 118 )
5. In order to safeguard th e objective o f th e pre-contentious procedure, which is to allow th e 
administration t o review its decision a nd th us secure an extrajudicial settlement of disputes, it has 
been held that the rule of correspondence between the complaint and the action c an apply on ly where 
the judicial action a lters the relief sought in th e complaint or its cause of action, and th e concept of 
‘cause of action’ must be given a b road interpretation a s the applicant’s challenge to th e substantive 
legality of the contested decision o r, in th e alternative, the challenge to its procedural legality. 
Consequently, and subject to pleas alleging illegality and to grounds rai sing a p ublic-policy issue, the 
cause of action o f the dispute will no rmally be altered, and th e action th erefore inadmissible on th e 
ground that it fails to observe th e correspondence rule, only where the applicant, who criticises in his 
complaint solely th e formal validity of the act ad versely affecting him, including in its procedural 
aspects, raises substantive p leas in th e application, or in th e opposite case where the applicant, after 
having di sputed in th e complaint on ly th e substantive legality of the act ad versely affecting him, 
submits an application c ontaining pleas relating to th e formal validity of that act, including in its 
procedural aspects.
(see para. 129 )
See:
1 July 2010 , F-45/07 M andt v P arliament, paras 110, 119 a nd 120
6. The disciplinary me asures put in place by the Staff Regulations do no t establish a f ixed relationship 
between th e pe nalty and th e failure to fulfil obligations. Thus, where it is established th at the facts of 
which th e official is accused took place, the choice of the appropriate disciplinary pe nalty falls to th e 
appointing authority and the European Union judicature may no t substitute its assessment for that of 
that authority unless th ere has been a m anifest error or misuse of powers.
The institutions ar e entitled to expect officials of a c ertain grade to act with di scernment 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 a nd 17a of the Staff 
Regulations. The compulsory resignation o f such an official is therefore no t disproportionate.
(see paras 131 , 132 , 135 )
See:
18 December 1997 , T-12/94 D affix v C omm ission, paras 63 a nd 89; 12 September 2000 , T-259/97 T eixeira Neves v 
Court of Justice, para. 108
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7. It follows from th e principle of sound ad ministration th at disciplinary authorities are under an 
obligation t o conduct disciplinary proceedings with d ue diligence and to ensure that each procedural 
step i s taken w ithin a r easonable time f ollowing th e previous step. The question w hether th e 
disciplinary proceedings, once comme nced, have b een 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 th at steps should be taken within a r easonable time d oes no t, in 
general, justify annulment of the decision t aken following an ad ministrative p rocedure. It is on ly 
where the excessive lapse of time i s such as to have a n effect on th e actual content of the decision 
adopted on c onclusion o f the ad ministrative p rocedure that the failure to respect the principle that 
steps should be taken within a r easonable time a ffects the validity of the ad ministrative p rocedure. 
This may be the case precisely in procedures leading to pe nalties, 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 C omm ission, para. 44
13 January 2004 , T-67/01 JCB Service v C omm ission, paras 36 a nd 40 a nd case-law cited
13 January 2001 , F-124/05 a nd F-96/06 A and G v C omm ission, paras 390 a nd 392