Opinion of Mr Advocate General Jacobs delivered on 22 March 2001. - Z v European Parliament. - Appeal - Officials - Disciplinary proceedings - Failure to comply with the time-limits laid down in Article 7 of Annex IX to the Staff Regulations of Officials of the European Communities. - Case C-270/99 P.



European Court reports 2001 Page I-09197



Opinion of the Advocate-General

1. This is an appeal against a judgment of the Court of First Instance dismissing a claim that a decision of the European Parliament to downgrade the applicant on disciplinary grounds should be annulled.

2. Before the Court of First Instance the applicant argued that the decision was void, inter alia because it had been taken outside the time-limits laid down in the first and third paragraphs of Article 7 of Annex IX to the Staff Regulations.

3. The essential legal issue in the appeal is whether a failure to comply with those time-limits, or a failure to conduct proceedings within a reasonable time, may affect the validity of a disciplinary sanction imposed pursuant to the Staff Regulations.

The relevant legislative provisions

4. Annex IX to the Staff Regulations of Officials of the European Communities lays down rules for the conduct of disciplinary proceedings. Those proceedings are divided into three stages.

5. First, the appointing authority examines the facts complained of and draws up a report which is communicated to the chairman of the Disciplinary Board. The appointing authority may hold an inquiry in order to establish the facts before drawing up its report. Secondly, the matter is considered by the Disciplinary Board. The chairman of the Board appoints one of its members to present a general report on the case. If the Board considers that it needs further information concerning the complaint or the circumstances in which it arose, it may conduct an inquiry. Having established the facts, the Board delivers a reasoned opinion to the appointing authority on what would be an appropriate disciplinary measure. Thirdly, the appointing authority decides - having regard to the reasoned opinion - what disciplinary measure, if any, to impose on the official.

6. Time-limits for the conduct of disciplinary proceedings are laid down in Article 7 of Annex IX. That provision reads as follows:

After consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, the Disciplinary Board shall, by majority vote, deliver a reasoned opinion [on] the disciplinary measure appropriate to the facts complained of and transmit the opinion to the appointing authority and to the official concerned within one month of the date on which the matter was referred to the Board. The time-limit shall be three months where an inquiry has been held on the instructions of the Board.

...

The appointing authority shall take its decision within one month; it shall first hear the official concerned.

The factual and procedural background

7. The factual and procedural background to the case, as it appears from the judgment under appeal, may be summarised as follows.

8. Mr Z (hereinafter: the appellant) entered the service of the European Parliament in 1977. During the period which is in issue in these proceedings (1988 to 1995), he was employed within Directorate-General I (registry and general services) of the European Parliament where he was in charge of the members' mail service. He was appointed principal clerical officer in grade C 1 with effect from 1 May 1989.

9. In 1993 an employee in the service headed by the appellant, submitted a complaint to the management of the Parliament registry alleging, among other things, that the appellant was guilty of sexual harassment. After investigating that complaint, the director-general of the registry concluded, in a note of 16 September 1993, that there was insufficient proof of the allegations made.

10. A further complaint was submitted in December 1994 to the president of the Staff Committee of the European Parliament. In that complaint, three officials working in the registry made a number of allegations concerning the appellant's professional behaviour. By a note dated 27 January 1995, the secretary-general of the Parliament requested the director of personnel to examine those allegations in the course of an administrative inquiry.

11. The inquiry report of 2 June 1995, which also covered the complaint lodged in 1993, stated that the examination had revealed that the appellant was guilty of:

- abusive behaviour towards employees under his authority;

- sexual harassment;

- dealing in second-hand cars without prior authorisation and use of Parliament facilities, such as telephone and garage, for that purpose;

- inadequate organisation of the members' mail service;

- removal of items of mail.

On that basis, the report recommended that disciplinary proceedings be commenced against the appellant. In accordance with Article 87 of the Staff Regulations, he was informed of the content of the report and he was heard by the appointing authority on 7 July 1995. The minutes of the hearing were communicated to him. He submitted written observations on 20 July 1995.

12. On 31 August 1995, the appointing authority decided to commence disciplinary proceedings against the appellant and to refer the matter to the Disciplinary Board. At the same time, the appellant was suspended pursuant to Article 88 of the Staff Regulations, but without any reduction of his salary.

13. On the same day, the decision of the appointing authority was referred to the Disciplinary Board. In a letter to the Disciplinary Board dated 11 December 1995 the appellant commented on the inquiry report of 2 June 1995. The Disciplinary Board heard witness statements in the presence of the appellant's legal representative on 18 December 1995, 31 January 1996, 5 March 1996 and 23 April 1996. The appellant and his legal representative were heard by the Disciplinary Board on 25 July 1996.

14. The Disciplinary Board submitted its reasoned opinion to the appointing authority on 3 September 1996. That opinion, which is cited in the judgment under appeal, found that there was sufficient proof of a number of the allegations made against the appellant including the allegations of abusive behaviour, sexual harassment, use of facilities for dealing in second-hand cars and inadequate organisation of the members' mail service. On that basis, the Board recommended that the appellant be removed from his post pursuant to Article 86(2)(f) of the Staff Regulations, albeit without any reduction in his entitlement to retirement pension.

15. After hearing the appellant in accordance with Article 7 of Annex IX to the Staff Regulation on 3 October 1996, the appointing authority decided, on 28 October 1996, to downgrade the appellant from grade C 1, step 4 to grade C 5, step 1. The appellant was notified of that decision (hereinafter: the contested decision) by letter dated 28 October. In that letter, the appointing authority explained that it had taken into account a number of mitigating circumstances - notably that the functions the appellant had been required to perform vastly exceeded his grade and abilities and that his staff reports had been positive although his superiors had been aware of at least some of the problems in the members' mail service - and that it was owing to those circumstances that it had decided to downgrade rather than to dismiss him.

16. The contested decision came to the knowledge of the appellant on 30 October 1996. On 30 January 1997, he made a formal complaint against that decision which was rejected by the appointing authority in a letter dated 20 May 1997.

17. It is clear from those facts, and common ground between the parties, that the disciplinary procedure exceeded the time-limits laid down in Article 7 of Annex IX to the Staff Regulations. The Disciplinary Board took approximately 12 months (from 31 August 1995 to 3 September 1996) to deliver its reasoned opinion; that is 9 months longer than the period laid down in the first paragraph of Article 7. The appointing authority adopted the contested decision 1 month and 25 days after it received the reasoned opinion; that is 25 days after the expiry of the time-limit laid down in the third paragraph of Article 7.

18. It may be added that following the contested decision the appellant was transferred to a different service within the Parliament administration, and that he did not object to that step.

The judgment under appeal

19. The appellant challenged the decision of the appointing authority of 28 October 1996 before the Court of First Instance. In those proceedings he relied on a number of arguments, one of which was that the decision was unlawful because it was taken outside the time-limits laid down in Article 7 of Annex IX.

20. The Court of First Instance dismissed all of those arguments.

21. With regard to the question of delay, the Court of First Instance referred, on the one hand, to the judgments of the Court of Justice in Van Eick v Commission, F. v Commission and M. v Council and, on the other hand, to its own judgments in De Compte v Parliament, D. v Commission and Daffix v Commission. Relying on those authorities, the Court of First Instance held that: According to the case-law of the Court [of Justice] ..., the time-limits laid down in Article 7 of Annex IX are not mandatory but constitute rules of sound administration with the result that a failure to observe those time-limits may render the institution liable for any damage caused to those concerned, but cannot of itself affect the validity of a disciplinary sanction imposed after their expiry. ... Whilst the Court of First Instance has held ... that a failure to comply with those time-limits may result in the decision being declared void, that case-law cannot be interpreted as penalising every failure to comply with time-limits by automatic annulment. ... It follows from the foregoing that only the fulfilment of a set of specific conditions can, in specific cases, affect the validity of a disciplinary measure imposed after expiry of a time-limit.

22. The Court of First Instance held, without spelling out what those specific conditions might be, that it was not justified to annul the contested decision. The appellant's argument had been limited to showing that the time-limits in Article 7 of Annex IX had not been respected, and the Parliament had argued - without being contradicted by the appellant - that the procedure had been highly complex and delayed by the hearing of a large number of witnesses. Moreover, the appellant had been suspended without any reduction in his salary pending the administrative procedure and he had, following his transfer, been given the opportunity to start a new career in a different service.

The appeal

23. In the appeal, the appellant claims that the Court of Justice should annul the judgment of the Court of First Instance on the grounds that that Court erred in law in holding that the contested decision was not void and declare the contested decision void.

24. The appellant relies on a single plea in support of that claim but advances several distinct arguments. For the purpose of analysis, those arguments may be divided into three points. The appellant considers that the Court of First Instance should have declared the contested decision void on the grounds that, first, it was taken outside the time-limits laid down in Article 7 of Annex IX to the Staff Regulations, secondly, the Parliament violated the principles of diligence and good administration which apply in disciplinary proceedings and, thirdly, the Parliament had also acted in breach of Article 6(1) of the European Convention on Human Rights which entitles everyone to a determination of their civil rights and obligations within a reasonable time. In connection with those arguments, the appellant asserts that the Court of First Instance failed to examine the particular circumstances of the case in order to determine whether the decision of the appointing authority was, in the light of its own case-law concerning delay in disciplinary proceedings, void.

25. The European Parliament replies to the appellant's first argument that it follows clearly from the case-law of the Court of Justice that a violation of the time-limits laid down in Article 7 of Annex IX cannot lead to annulment of a decision, and that there were, in any event, no particular circumstances to justify the annulment of the contested decision. As regards the second argument, the Parliament maintains that in so far as the applicant seeks to invoke the principles of diligence and good administration as a separate argument, that argument is inadmissible in the absence of any specific legal grounds to support it. The appellant's argument based on a failure to examine the particular circumstances of the case is also inadmissible since it amounts to a request for a reassessment of findings of fact made by the Court of First Instance. Finally, the Parliament maintains that Article 6 of the European Convention on Human Rights is inapplicable in disciplinary proceedings conducted under the Staff Regulations.

Admissibility

26. The appellant contends, in his second argument, that the Court of First Instance erred in law by failing to annul the contested decision on the grounds that the Parliament did not conduct the disciplinary proceedings against him within a reasonable time as required by the principles of diligence and good administration, and that the Court of First Instance failed to examine the specific circumstances of the case.

27. I consider that those arguments are, contrary to the Parliament's assertions, admissible.

28. First, the appellant's basic contention is that the Court of First Instance failed to draw the correct legal consequences from the delay which occurred in the disciplinary procedure directed against him. I consider that he is entitled to support that contention by seeking to categorise the delay as an infringement of different rules or principles. The absence of a separate and detailed explanation of how each of those rules or principles is infringed cannot, in my view, render those arguments inadmissible.

29. Secondly, appeals to the Court of Justice are, in accordance with Article 225 of the Treaty and Article 51 of the Statute of the Court of Justice, confined to points of law. While the Court of Justice may intervene if the Court of First Instance wrongly applied Community law by, for example, applying the wrong legal test to an issue or by basing its legal conclusions on insufficient reasoning, it cannot review primary findings of fact made by the Court of First Instance. The Court of Justice can, however, review the legal assessment, or qualification, of the primary facts on which a judgment of the Court of First Instance is based. Where the Court of First Instance determines that - in the light of the various steps taken by the Parliament in the course of the disciplinary procedure leading to the adoption of the contested decision - the conditions for annulment set out in its own case-law are not fulfilled, that determination is, in my view, a legal assessment which is reviewable by this Court.

Substance

30. The appellant contends that the Court of First Instance erred in law by holding that the contested decision was not void although it was, first, taken outside the time-limits laid down in Article 7 of Annex IX to the Staff Regulations, secondly, in breach of the principles of diligence and good administration which require that disciplinary proceedings be conducted within a reasonable time and, third, in breach of Article 6(1) of the European Convention on Human Rights.

31. It is useful to consider those three arguments separately.

Article 7 of Annex IX to the Staff Regulations

32. Article 7 of Annex IX to the Staff Regulations gives the Disciplinary Board a period of one month (extended to three months where there is an inquiry) within which to deliver its reasoned opinion, and confers on the appointing authority a further period of one month within which to take its decision. The Staff Regulations do not explicitly provide for the legal consequences of a breach of those time-limits, and it has been left to the Community judicature to resolve the issue.

33. The case-law of the Court of Justice and the Court of First Instance makes it clear that the time-limits in Article 7 of Annex IX are not mandatory. The fact that a decision is taken outside one or both of those time-limits is not therefore sufficient in itself to affect the validity of that decision.

34. I fully agree with that case-law.

35. Disciplinary proceedings should, in the interest of the affected members of staff and the Community administration itself, be completed as swiftly as possible. Speed is however not all. Decisions about disciplinary matters often have serious implications for the members of staff. It is therefore important that those decisions be based on correct and relevant facts, and that the affected individuals be afforded all the procedural guarantees intended by the Staff Regulations. It would not be possible to comply fully with those requirements if no decision could ever be taken after the expiry of the periods laid down in Article 7 of Annex IX to the Staff Regulations. A disciplinary procedure might take longer, in particular, where the administration has to consider complex and numerous allegations, where it is necessary to hear several witnesses in order to establish the facts or where the official has been unable to attend meetings due to illness.

36. The appellant claims that that view is contrary to the Court's case-law in other fields according to which time-limits must be interpreted strictly for reasons of legal certainty and equality of treatment.

37. I cannot accept that argument. The case-law cited by the appellant is concerned with the commencement of legal proceedings before the Court of Justice and the Court of First Instance. As the Parliament points out, that case-law cannot be applied by analogy to time-limits in disciplinary proceedings. It is true that a strict application of the time-limits laid down in Article 7 of Annex IX would enable members of staff to predict the maximum waiting period for a decision. That would not however enhance legal certainty or equality of treatment, because the time-constraints imposed on the administration would increase the risk of legally flawed decisions.

38. I would therefore reject the appellant's first argument. The Court of First Instance did not err in law by holding that the contested decision was not void on the sole ground that it was taken outside the time-limit laid down in Article 7 of Annex IX to the Staff Regulations.

The principles of good administration and the duty to conduct proceedings within a reasonable time

39. The appellant contends that the Court of First Instance erred in law by failing to annul the contested decision on the ground that the Parliament did not conduct the disciplinary proceedings against him within a reasonable time as required by the principles of diligence and good administration.

40. It must be recognised, as a starting-point for consideration of the appellant's argument, that slow administration is bad administration. There is no doubt that the principles of good administration require the Community administration, in all procedures which may lead to the adoption of a measure adversely affecting the interests of one or more individuals, to avoid undue delay and to ensure that each step in the procedure is carried out within a reasonable time following the previous step. It may be noted in that regard that the Committee of Ministers of the Council of Europe has recognised that the obligation to take administrative decisions within a reasonable time is one of the basic principles which should guide the exercise of discretionary administrative powers, and that the European Ombudsman has pointed out that avoidable delay is contrary to the principles of good administration. Moreover the Charter of fundamental rights of the European Union, while itself not legally binding, proclaims a generally recognised principle in stating in Article 41(1) that Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

41. The obligation to conduct proceedings within a reasonable time is moreover of particular importance in disciplinary proceedings since those subject to such proceedings may lose some or all of their income while suspended and will be in a state of uncertainty about their continued employment within the administration while the proceedings are pending.

42. It is therefore not surprising that the Court of First Instance has held that there is an obligation to conduct disciplinary proceedings within a reasonable time. Thus, in De Compte v Parliament the applicant argued that a disciplinary sanction should be annulled because the decision imposing it had been taken outside the time-limits laid down in the first and third paragraphs of Article 7 of Annex IX to the Staff Regulations. The Court of First Instance held that [A]lthough those time-limits are not mandatory, ... it follows from the importance attached by the Community legislature to 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 period following the previous step.

43. There is also support for the existence of an obligation to conduct disciplinary proceedings within a reasonable time in the case-law of the Court of Justice. The judgment of the Court of First Instance in De Compte was the subject of an appeal to the Court of Justice. In contrast to the Court of First Instance, the Court of Justice did not rule explicitly that there was an obligation to conduct disciplinary proceedings within a reasonable time. However, it noted without disapproval that the Court of First Instance had recognised the principle that each procedural step must be taken within a reasonable period following the previous step, and it held on that basis that the Court of First Instance had not erred in law by finding that the procedure conducted against the appellant had followed, in principle, the normal course.

44. Given that there is a duty to conduct administrative proceedings within a reasonable time, the question therefore arises what remedies should be made available in situations where the administration fails to fulfil that duty.

45. The Community judicature has already considered that question in a number of areas of Community law. In most of those areas, the Courts have taken the view that while delay in administrative proceedings may be relevant for determining whether the Community administration has violated the principles of legal certainty and legitimate expectations or infringed the rights of defence of the persons concerned, it cannot of itself justify the annulment of administrative decisions.

46. Thus, in Picciolo v Commission the Court of Justice held that whilst a failure by the Community administration to draw up a periodic staff report within the time-limits laid down in the Staff Regulations is capable, in certain cases, of giving the official concerned a right to a remedy, such delay cannot in any circumstances affect the validity of the periodic report. Considering an allegation that the Commission had failed in its duty to act within a reasonable time in administrative proceedings relating to competition policy, the Court of First Instance ruled in Limburgse Vinyl Maatschappij v Commission that [w]here it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the Community judicature in the context of an action based on Article 178 and the second paragraph of Article 215 of the Treaty. The case of Oliveira v Commission concerned a claim that the Commission had failed to implement a judgment of the Community judicature within a reasonable time. After finding that there had not been undue delay, the Court of First Instance held that [i]n any event, in annulment proceedings, even an unreasonable period cannot in itself render the contested decision unlawful and thus justify its annulment for breach of the principle of legal certainty. A delay in the process of complying with a judgment is not liable in itself to affect the validity of the measure at issue since, if the measure were annulled merely because it was belated, it would be impossible to adopt a valid measure: the measure intended to replace the annulled measure could not be less belated than the one it replaced.

47. The Court of First Instance has however taken a different view in cases concerning disciplinary proceedings pursuant to the Staff Regulations. In De Compte v Parliament, it held that it follows from the importance attached by the Community legislature to 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 period following the previous step. Failure to comply with that period (which can be assessed only in the light of the specific circumstances of the case) may not only render the institution liable, but may also result in the measure adopted after the expiry of the period being declared void. That judgment was confirmed by the Court of First Instance in D. v Commission and Daffix v Commission. In the judgment under appeal, and similarly in Irving v Commission, the Court of First Instance refined its position, holding that its own case-law cannot be interpreted as penalising every failure to comply with time-limits by automatic annulment and that only the fulfilment of a set of specific conditions can, in specific cases, affect the validity of a disciplinary measure imposed after expiry of a time-limit.

48. That case-law of the Court of First Instance is not, as alleged by the Parliament, contrary to the case-law of the Court of Justice. In Van Eick v Commission the Court of Justice considered a claim that a disciplinary measure taken outside the time-limits in Article 7 of Annex IX to the Staff Regulations should be annulled. It rejected that claim on the grounds that the time-limit laid down by [Article 7 of Annex IX] cannot be regarded as a mandatory period of limitation the failure to observe which entails the nullity of the measures adopted after its expiry. That ruling was confirmed in F. v Commission and M. v Council. In the latter case, the Court held that the fact that the time-limit of one month [laid down in Article 7 of Annex IX to the Staff Regulations] was exceeded does not in any way affect the validity of the contested decision. The Court of Justice did not by those statements exclude the possibility that the principles of diligence and good administration, on which the case-law of the Court of First Instance is based, can lead to the annulment of a decision independently of a violation of the time-limits laid down in Article 7 of Annex IX. Indeed, it appears that that possibility was not considered by or even raised before the Court of Justice in those cases.

49. In my view, the Court of Justice should not accept that a failure in the duty to conduct proceedings within a reasonable time, based on the principles of good administration, may of itself affect the validity of a disciplinary measure adopted pursuant to the Staff Regulations.

50. There is, as I have explained above, a clearly discernible pattern in the case-law of the Community judicature suggesting that delay cannot of itself lead to the annulment of administrative decisions. There are to my mind no compelling reasons to adopt a different approach in the context of disciplinary proceedings.

51. I am encouraged in that view by a survey of the laws of the Member States. While disciplinary sanctions imposed on civil servants may be annulled solely on grounds of delay in some legal systems, such as those of Belgium, the Netherlands and Spain, the prevailing view is that delay is not an independent source of invalidity.

52. Victims of slow administration are moreover, in my view, protected adequately by other Community law remedies than the action for annulment.

53. A Community institution which fails to conduct disciplinary proceedings within the time-limits laid down in Article 7 of Annex IX or which fails to take procedural steps within a reasonable time may, according to settled case-law, be liable for any loss caused to those concerned. A person who has been the subject of a lengthy disciplinary procedure might therefore depending on the circumstances be entitled to compensation for lost income, for missed opportunities of promotion, and perhaps for non-material harm such as the uncertainty and anxiety caused by the delay. In the present case, however, no such question arises since no claim for damages has been made.

54. Moreover, it is a general rule in Community staff law that whenever an institution takes a decision concerning the situation of an official ... it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the individual concerned. Undue delay which has occurred in the course of a disciplinary procedure is, in my view, one of the considerations which the appointing authority should take into account when it decides what sanction to impose.

55. I consider for those reasons that a failure to conduct disciplinary proceedings within a reasonable time - as required by the principles of good administration - cannot of itself result in the decision being declared void. Delay might however affect the validity of a decision if, for example, it prevented the affected person from defending himself effectively, or if it gave the affected person a legitimate expectation that no - or a reduced - disciplinary sanction would be imposed. In such circumstances, it would be open to the Community courts to annul the decision on the grounds that it breached the principle of the rights of defence or the principle of respect for legitimate expectations.

56. In the present case, there are no grounds for considering that the delay affected the appellant's ability to exercise his right of defence, or that it gave rise to any legitimate expectation.

57. It may be added that the appellant did not, in any event, suffer significant harm as a result of the delay. He received full pay during the whole period of his suspension and therefore did not suffer any loss of income; the sanction imposed upon him by the appointing authority of the Parliament was significantly less severe than the sanction recommended by the Disciplinary Board in its reasoned opinion of 3 September 1996; and he was transferred thus enabling him to start a new career in a different service.

58. I would, for those reasons, reject the appellant's second argument.

Article 6(1) of the European Convention on Human Rights

59. Article 6(1) of the European Convention on Human Rights provides, in so far as is relevant, that:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

60. The appellant contends that the Parliament did not adopt the contested decision within a reasonable time and thus violated Article 6(1) of the Convention. By failing to annul that decision, the Court of First Instance therefore erred in law.

61. It appears from the recent case-law of the European Court of Human Rights, in particular the judgments in Pellegrin v France, Launikari v Finland and Kepka v Poland, that disputes concerning disciplinary measures imposed on civil servants do not fall wholly outside the scope of Article 6(1) of the Convention. Contrary to the Parliament, I consider therefore that the Court should not dismiss the appellant's argument on the ground that Article 6 of the Convention does not apply to what are strictly disciplinary matters within the public service.

62. It is however clear both from the wording of Article 6(1) and from the case-law of the European Court of Human Rights that that provision is concerned with delay in judicial proceedings. Disciplinary proceedings pursuant to the staff regulations are administrative rather than judicial in nature. It follows that delay in such proceedings cannot constitute a breach of Article 6(1) of the Convention.

63. I would therefore reject the appellant's third argument.

Conclusion

64. In the light of all the foregoing observations, I am of the opinion that the Court of Justice should:

(1) dismiss the appeal;

(2) order the appellant to pay the costs.