JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

10 June 2016

HI

v

European Commission

‛Civil service — Officials — Article 11 of the Staff Regulations — Duty of loyalty — Article 11a — Conflict of interests — Official responsible for monitoring a project funded by the European Union — Family connection between that official and an employee recruited for the purposes of the project by the company responsible for that project — Disciplinary proceedings — Disciplinary penalty — Downgrading — Lawfulness of the composition of the Disciplinary Board — Obligation to state reasons — Duration of the proceedings — Reasonable time — Infringement of the rights of the defence — Ne bis in idem principle — Manifest error of assessment — Commensurate nature of the disciplinary penalty — Mitigating circumstances’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which HI seeks annulment of the decision of the appointing authority of the European Commission, of 10 December 2014, imposing on him, by way of disciplinary penalty, a downgrading in the same function group of two grades, together with an order for the Commission to compensate him for non-material damage he claims to have suffered by reason of the duration of the proceedings.

Held:

The application is dismissed. HI shall bear his own costs and is ordered to bear the costs incurred by the European Commission.

Summary

Officials — Disciplinary measures — Penalty — Aggravating circumstances — Failure on the part of the official concerned to appreciate the seriousness of the facts complained of — Included

Officials — Disciplinary measures — Disciplinary proceedings — Hearing of the official concerned by the appointing authority — Hearing prior to the decision of the appointing authority to refer the matter to the Disciplinary Board — Purpose — Obligation to inform the official concerned as to the facts complained of — Scope

In Article 86 and Annex IX, which concern the disciplinary system applicable to European Union officials, the Staff Regulations do not provide for any limitation period with regard to the initiation of disciplinary proceedings against an official accused of having failed to fulfil one of his obligations under the Staff Regulations. However, the institution or, in some cases, the European Anti-Fraud Office (OLAF) is required 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 of officials and other members of staff in considering whether an investigation should be opened, and subsequently in conducting any such investigation and, where applicable, the disciplinary proceedings. Thus, in relation to investigation proceedings, the question of whether they were commenced within a reasonable time is assessed in the event that and from the point in time when the administration becomes aware of facts and conduct which might constitute infringements of the obligations of an official under the Staff Regulations. In this regard, there is no specific provision of EU law concerning the duration of investigations carried out by OLAF. Accordingly, it is for the EU courts to assess whether OLAF acted within a reasonable time and, for the purposes of examining that question, they must take account of the importance of the dispute to the person concerned, the complexity of the matter and the conduct of the parties. In any event, the appointing authority cannot be criticised for waiting for the outcome of the OLAF investigation before deciding to consider opening disciplinary proceedings against the person concerned. In relation to the duration of disciplinary proceedings under the Staff Regulations themselves, the time-limits set out to govern the course of disciplinary proceedings from a temporal point of view are not mandatory, but constitute primarily a rule of sound administration whereby the institution is required to conduct the disciplinary proceedings diligently and act in such a way that each procedural step is taken within a reasonable time following the previous step. Thus, in assessing what is a reasonable time for the conduct of disciplinary proceedings, the EU courts must only take the time elapsing between one procedural step and the next into account and this assessment is independent of the total duration of the disciplinary proceedings. (see paras 107-109, 112, 113, 116, 118, 121) See: Judgment of 26 January 1995 in D v Commission, T‑549/93, EU:T:1995:15, para. 25, and judgment of 10 June 2004 in François v Commission, T‑307/01, EU:T:2004:180, para. 48 Judgments of 8 March 2012 in Kerstens v Commission, F‑12/10, EU:F:2012:29, paras 122, 124 and 125 and the case-law cited therein; 19 June 2013 in Goetz v Committee of the Regions, F‑89/11, EU:F:2013:83, para. 126; 30 April 2014 in López Cejudo v Commission, F‑28/13, EU:F:2014:55, paras 88, 90 and 97, and 17 March 2015 in AX v ECB, F‑73/13, EU:F:2015:9, paras 173 to 175 and the case-law cited therein.

With a view to the hearing under Article 3 of Annex IX to the Staff Regulations, the official must be clearly informed of all the facts which, in the notice of hearing, are complained of, and of the provisions of the Staff Regulations invoked against him. In this regard, the purpose of initiating disciplinary proceedings, combined with a hearing of the person concerned, is to enable the appointing authority to examine the accuracy and gravity of the facts alleged against the official concerned and to hear him in that regard, in accordance with Article 86 and Annex IX of the Staff Regulations, in order to form an opinion, firstly, as to whether it is appropriate either to conclude the proceedings without further action or to impose a disciplinary penalty on the official and, secondly, where relevant, as to whether or not it is necessary, before imposing that disciplinary penalty, to send the official before the Disciplinary Board, in accordance with the procedure laid down in Annex IX to the Staff Regulations. If, after hearing the person concerned, the appointing authority decides to refer the matter to the Disciplinary Board, by sending it the report referred to in Article 12 of Annex IX to the Staff Regulations, then the official concerned can infer, given the wording of Article 11 of that annex, that the authority did not consider it appropriate to impose a disciplinary penalty without consulting the Disciplinary Board, in the form of a simple written warning or reprimand, but that, on the contrary, it considered that the seriousness of the facts complained of made it necessary to refer the matter to the Disciplinary Board, with a view to the possible imposition of one of the penalties referred to in Article 9 of Annex IX to the Staff Regulations. Furthermore, the report of the appointing authority, adopted after hearing the official concerned, is only intended to set out the facts, with regard in particular to developments at the hearing, and to relate them to the obligations or provisions of the Staff Regulations which the official is alleged to have infringed. Article 12 of Annex IX nevertheless does not require and must not be interpreted as requiring the appointing authority, at that initial stage of the proceedings, to specify, when referring the matter to the Disciplinary Board, which of the penalties set out in Article 9 of Annex IX to the Staff Regulations it considers appropriate to impose in the particular case. On the contrary, the appointing authority’s report to the Disciplinary Board is not intended to anticipate the inter partes argument which is to take place between the person concerned and the appointing authority before the Disciplinary Board. The effect of imposing such an obligation on the appointing authority would be to prejudge the case of the official concerned, thus undermining both the neutrality of the inter partes argument and the independence of the Disciplinary Board in formulating its recommendation as to the disciplinary penalty it considers appropriate. (see paras 128-132) See: Judgments of 12 September 2000 in Teixeira Neves v Court of Justice, T‑259/97, EU:T:2000:208, para. 67, and 13 March 2003 in Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, para. 36

Since it is not inconceivable that the appointing authority may not recognise the potential complaint arising from certain facts until after the matter has been referred to the Disciplinary Board, it must be regarded as inherent in the inter partes procedure before the Disciplinary Board, and subsequently before the tripartite appointing authority, that certain circumstances may prove to be aggravating or mitigating at any time during the disciplinary proceedings and cannot be definitively and exhaustively stated by the appointing authority alone in its report to the Disciplinary Board. (see para. 135) See: Judgment of 19 March 1998 in Tzoanos v Commission, T‑74/96, EU:T:1998:58, para. 58

It is inherent in disciplinary proceedings that a failure to comply with several obligations or provisions of the Staff Regulations may give rise to the imposition by the appointing authority of a single disciplinary penalty which takes account of the combined seriousness of those failures. Accordingly, the fact that the authority has done so cannot constitute an infringement of the ne bis in idem principle, which is restated in Article 9(3) of Annex IX to the Staff Regulations. (see para. 141)

The Disciplinary Board has a consultative function and, accordingly, the appointing authority is not bound by the opinion of the Disciplinary Board, in particular with regard to its findings of fact. Accordingly, the authority may, in the decision adopted at the conclusion of the disciplinary proceedings, depart from the findings of fact made by the Disciplinary Board in its reasoned opinion, provided that it gives a detailed statement of the reasons justifying the different assessment ultimately made in that decision. If the assessment of facts made by the Disciplinary Board in its reasoned opinion were binding on the appointing authority, that interpretation of disciplinary proceedings under the Staff Regulations would render the Disciplinary Board a decision-making body such that its nature as a consultative body would be lost, and the appointing authority would potentially be prevented from adopting a different disciplinary penalty from that proposed by the Disciplinary Board, to which the Staff Regulations assign a merely consultative function. Furthermore, that interpretation would deprive the provision, contained in Article 18 of Annex IX to the Staff Regulations, for any member of the Disciplinary Board to attach a divergent view to the opinion adopted by the majority of members of the Board, of any practical effect. (see paras 147, 148) See: Judgments of 17 March 2015 in AX v ECB, F‑73/13, EU:F:2015:9, para. 244, and 3 June 2015 in Bedin v Commission, F‑128/14, EU:F:2015:51, paras 29 and 30

Where a further measure of inquiry discloses a new fact complained of or a new circumstance in which the facts complained of arose, or any other factor liable substantially to alter the assessment of the real nature, extent or seriousness of the facts complained of, thereby altering the content of the report submitted to the Disciplinary Board by the appointing authority, that authority is effectively obliged, under Article 28 of Annex IX to the Staff Regulations, read in the light of the higher principle of law that the rights of the defence must be observed, to reopen the disciplinary proceedings by submitting a fresh report to the Disciplinary Board. (see para. 149) See: Judgment of 26 January 1995 in D v Commission, T‑549/93, EU:T:1995:15, para. 49

Articles 11, 12, 12b and 17a of the Staff Regulations constitute specific expressions of the fundamental duty of loyalty and cooperation owed by an official to the European Union and to his superiors. That duty includes, first and foremost, an obligation on the official to refrain from conduct likely to prejudice the dignity and respect due to the European Union. Amongst other things, the official must accordingly conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between the European Union and himself may at all times be maintained. Those provisions ultimately constitute the pillars of the professional ethics of the European civil service. Those rules, which express the duties and responsibilities incumbent on the European civil service, find their justification in the tasks of general interest for which the European Union is responsible, which require that the citizens of the European Union and the Member States can have confidence in the institutions ensuring, through the agency of their officials and other members of staff, that those tasks are properly carried out. Thus, such obligations are intended primarily to preserve the relationship of trust which must exist between the European Union and its officials and other members of staff. Having regard to the importance of the relationship of trust existing between the European Union and the official, so far as concerns both the internal operation of the European Union and its external image, and given the general wording of Articles 11, 12, 12b and 17a of the Staff Regulations, those provisions cover any circumstance or conduct which, in the light of his grade and functions and of the specific circumstances of the case, must reasonably be understood by the official as being such as to appear to third parties as liable to give rise to confusion as regards the interests pursued by the European Union which he is supposed to serve. Accordingly, in their conduct, officials and other members of staff of the European Union must present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of staff of an international public organisation. (see paras 187-190) See: Judgment of 6 March 2001 in Connolly v Commission, C‑274/99 P, EU:C:2001:127, paras 44 and 46 Judgment of 7 March 1996 in Williams v Court of Auditors, T‑146/94, EU:T:1996:34, para. 65 Judgments of 8 November 2007 in Andreasen v Commission, F‑40/05, EU:F:2007:189, para. 233 and the case-law cited therein; 23 October 2013 in Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paras 61 to 63; 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, para. 123, and 17 March 2015 in AX v ECB, F‑73/13, EU:F:2015:9, paras 210 and 232

It is apparent from the express wording of Article 11a of the Staff Regulations that an official must not, in the performance of his duties, deal with any matter in which, directly or indirectly, he has any personal interest such as to impair his independence, in particular, family and financial interests, and that, if it falls to him to deal with such a matter, he must immediately inform the appointing authority, which will take the appropriate measures. Finally, Article 11a(3) of the Staff Regulations provides, amongst other things, that the official may not keep any interest in undertakings which are subject to the authority of the institution to which he belongs of such kind or magnitude as might impair his independence in the performance of his duties. In this regard, in assessing whether a conflict of interest exists, the fact of professional or family relationships between an official and a third party cannot, in principle, automatically mean that the independence of that official is impaired, or appears to be impaired, wherever it falls to the official to decide a matter in which the third party is involved. However, since it is for the appointing authority to assess the reality of any conflict of interest, Article 11a of the Staff Regulations does not permit officials and other members of staff themselves to make such an assessment; on the contrary it requires them to declare to their management the presence of a member of their family, particularly an ascendant, descendant or other close relative, within an external entity maintaining direct relations with that institution which are within the scope of their duties. In this regard, while Article 11a of the Staff Regulations imposes a declaratory obligation on the official concerned, the presence within the institution concerned of a family member of a person external to the institution does not prevent that person external to the institution from carrying out a professional activity within a company which is subject to the authority of the institution in question. Similarly, it does not prevent a family member of an official or other member of staff of the European Union from applying for admission to a competition or a for post where the selection process involves a competition selection board or selection panel, subject nevertheless, where the official concerned has a seat on that selection board or panel, to the declaratory obligation incumbent on that official under Article 11a of the Staff Regulations and the specific declaratory obligation incumbent on the applicant, aspiring to enter the service of the European Union, under Article 27 of the Staff Regulations. (see paras 193-196) See: Judgments of 19 May 1999 in Connolly v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, para. 168; 3 February 2005 in Mancini v Commission, T‑137/03, EU:T:2005:33, para. 33 and 12 July 2005 in De Bry v Commission, T‑157/04, EU:T:2005:281, para. 35 Order of 25 February 2014 in García Dominguez v Commission, F‑155/12, EU:F:2014:24, para. 34; judgments of 30 April 2014 in López Cejudo v Commission, F‑28/13, EU:F:2014:55, para. 62, and 22 September 2015 in Gioria v Commission, F‑82/14, EU:F:2015:108, para. 36

The duration of the disciplinary proceedings does not appear among the matters set out in Article 10 of Annex IX to the Staff Regulations and is not relevant in determining the disciplinary penalty which, pursuant to that article, must be commensurate with the seriousness of the misconduct. Accordingly, this matter is not to be regarded as constituting a mitigating factor. (see para. 200)

Omissions which may have been made by the superiors of an official against whom disciplinary proceedings are initiated cannot justify the failings alleged against that official, who remains responsible for his conduct. (see para. 202) See: Judgment of 11 July 1985 in R. v Commission in 255/83 and 256/83, EU:C:1985:324, para. 44 Judgment of 4 May 1999 in Z v Parliament, T‑242/97, EU:T:1999:92, para. 115 Judgment of 17 March 2015 in AX v ECB, F‑73/13, EU:F:2015:9, para. 222

The independence of officials in relation to third parties, which Articles 11 and 11a of the Staff Regulations, amongst others, seek to protect, must not be assessed solely from a subjective point of view. It also requires them to avoid, particularly in the management of public funding, any conduct liable to impair the image of the institutions, on an objective view, and to undermine the confidence which the institutions should inspire in the public. Accordingly, under Article 10(b) of Annex IX to the Staff Regulations, the institution may take into account, as an aggravating factor, the risk to which the official’s conduct exposed the integrity, reputation or interests of the institution, without being required to demonstrate whether and how many persons external to the institution were aware of the conduct of the official concerned which is at issue. (see para. 204) See: Judgment of 28 March 2012 in BD v Commission, F‑36/11, EU:F:2012:49, para. 80

In disciplinary proceedings, the responsibility of the official concerned must be considered individually and separately, that is to say without reference to any lawfulness or unlawfulness of the decision taken, or the failure to take a decision, with respect to other members of staff. Thus, a member of staff may not effectively rely on the fact that disciplinary proceedings involving the Disciplinary Board have not been initiated against another official or that a less severe penalty was imposed on that other official in respect of acts similar to those of which he is accused, in order to challenge the disciplinary penalty which has been imposed on him. (see para. 205) See: Judgment of 4 July 1985 in Williams v Court of Auditors, 134/84, EU:C:1985:297, para. 14 Judgment of 17 March 2015 in AX v ECB, F‑73/13, EU:F:2015:9, para. 123 and the case-law cited therein

Since the reports procedure and disciplinary proceedings are distinct procedures which do not have the same purpose, the issue of promotion of the official concerned has no relevance in determining the disciplinary penalty which should be imposed at the conclusion of disciplinary proceedings. (see para. 206)