JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

2 April 1998

Case T-86/97

Rèa Apostolidis

v

Court of Justice of the European Communities

‛Officials — Suspension of promotion procedure — Disciplinary proceedings’

Full text in French II-521

Application for:

annulment of the decision of the Court of Justice of 11 July 1996 suspending the procedure for filling one of the three positions declared vacant by vacancy notice CJ 91/95, as confirmed by the decision of 10 December 1996 expressly rejecting the complaint lodged by the applicant against the first decision, for the destruction of an alleged parallel file and for payment of BFR 1000000 by way of compensation for the nonmaterial damage suffered.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant is a Grade A 6 official of the Court of Justice assigned to Unit A of the Research and Documentation Division.

From 1992 onwards certain officials of the Court received abusive letters and malicious telephone calls and suffered damage to some of their property, all of which was perpetrated anonymously. At the request of the Registrar of the Court of Justice of 11 October 1995, the Deputy Registrar initiated an investigation of those acts. The statements of the victims interviewed during that investigation tended to implicate the applicant.

On 14 February 1996 the Court published vacancy notice C J 91/95 in which it declared vacant three principal administrator posts (at Grade A 5/A 4) in the ‘Research and Documentation’ Division. The applicant, who was eligible for promotion, applied for one of those posts. The Director of the Library, Research and Documentation Directorate proposed that the applicant, Mr R. and Ms S. should be appointed by means of promotion.

By decision of 28 June 1996 the Registrar of the Court, in his capacity as the appointing authority, agreed to the promotion of Mr R. and Ms S. but suspended the procedure for filling the third position pending further inquiries into the matters in which the applicant was implicated. On 3 July 1996, he informed the applicant orally of the grounds for that suspension.

By memorandum of 11 July 1996 (the decision of 11 July 1996), the Registrar informed the applicant as follows: ‘I have agreed to the appointment of Mr R. and Ms S. to two of the three posts declared vacant. However, the procedure for filling the third principal administrator post is suspended, for the reasons I gave you at our discussion on 3 July 1996’.

On 12 September 1996 the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’), requesting annulment of the decision of 11 July 1996. In addition, she sought the complete destruction, under the supervision of the Court of First Instance, of a parallel file concerning her, which she alleged was kept by the Court of Justice, and payment of BFR 1000000 by way of compensation for the nonmaterial damage caused by the decision of 11 July 1996.

On 25 October 1996, the Deputy Registrar sent the Registrar the conclusions he had drawn from the investigation, in which he considered that ‘everything goes to support the conclusion that [the applicant] is responsible for all the actions complained of by our colleagues’. On the same day, he sent the applicant a memorandum setting out the results of the investigation, together with copies of the most important of the relevant documents. Under the cover of a memorandum of 10 December 1996, the applicant sent all those documents to the Complaints Committee, stating that those were the documents which in her complaint she had called a ‘parallel file’.

By decision of 10 December 1996 the Complaints Committee rejected the applicant's complaint on the following grounds: first, that since the appointing authority was not required to act on a vacant post notice, it was a fortiori entitled to suspend a procedure for filling a post where investigations were being carried out into the conduct of the person concerned and, second, that the file in question in the complaint was the file of the inquiries into the actions perpetrated anonymously and not a file covered by Article 26 of the Staff Regulations.

On 7 March 1997 the Registrar asked the Administrative Committee of the Court to take disciplinary proceedings against the applicant in its capacity of the appointing authority. After the present case had been brought, the Administrative Committee of the Court of Justice, as the appointing authority, decided on 14 July 1997 to impose the disciplinary measure of a written warning provided for by Article 86(2)(a) of the Staff Regulations. On 22 October 1997 the applicant lodged a complaint against that decision under Article 90(2) of the Staff Regulations.

Admissibility

An action for annulment brought by an official against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for lack of any challenge by legal action within the prescribed time-limits. If the confirmed decision has not become final, the person concerned is entitled to contest either the confirmed decision or the confirmatory decision, or both (paragraph 21).

See: C-480/93 P Zunis Holding and Others v Commission [1996] ECR I-1, para. 14; T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723, para. 25

In the present case, on 12 September 1996 the applicant lodged a complaint against the decision of 11 July 1996. Inasmuch as at 12 September 1996 the time-limit of three months laid down by Article 90(2) of the Staff Regulations for submitting a complaint against the decision of 28 June 1996 had not yet expired, the applicant was entitled to direct her complaint against the confirmatory decision of 11 July 1996 or against that of 28 June 1996. As, moreover, the action was brought before the Court of First Instance within three months of notification to the applicant of the decision expressly rejecting her complaint, in accordance with Article 91(3) of the Staff Regulations, the claim for annulment is admissible (paragraph 22).

The defendant's argument that the action was premature must also be rejected (paragraphs 23 and 24).

Substance of the claim for annulment

The first plea: infringement of Article 26 of the Statute

The puipose of Article 26 of the Staff Regulations concerning personal files is to ensure that decisions taken by the appointing authority concerning the administrative status and career of the official concerned are not based on matters concerning his conduct which are not included in his personal file and have not been communicated to him (paragraph 33).

See: C-294/95 P Ojha v Commission [1996] ECR I-5863, para. 57

None the less, Article 26 of the Staff Regulations does not in any sense prohibit an institution from opening an investigation and creating a file for that purpose. The only documents relating to an investigation which concern the administrative status of a particular official and which must therefore be placed on his file are any decisions imposing a disciplinary measure taken on the basis of the investigation file (paragraph 36).

The second plea: breach of Articles 6 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

Article 6 of the ECHR cannot be relied upon in the context of disciplinary proceedings. That conclusion is all the more compelling where, as in the circumstances of this case, the decision taken cannot even be described as a disciplinary measure. The applicant's argument alleging breach of Article 6 of the ECHR must therefore be rejected (paragraph 45).

See: T-26/89 De Compte v Parliament [1991] ECR II-781, para. 94; T-273/94 N v Commission [1997] ECRSC II-289, para. 95

The argument that there was a breach of Article 10 of the ECHR, in that the applicant did not have access to the alleged parallel file, must also be dismissed since the defendant was required to communicate the contents of the investigation file to the applicant only in connection with the disciplinary proceedings and not with the adoption of the contested decision, which, moreover, cannot even be described as a disciplinary measure (paragraph 46).

Finally, there can be no question of any breach of the presumption of innocence since the contested decision merely suspended the decision as to possible promotion of the applicant in order that an investigation might be conducted into the truth of the matters complained of by some officials and her involvement in those matters (paragraph 47).

The third plea: absence of any legal basis for the decision of 11 July 1996 and breach of the principle of equal treatment

Where the procedure for promoting an official is part of the procedure for filling a post declared vacant and in so far as the appointing authority is not obliged to carry through a procedure for filling such a post if there are objective reasons justifying such a decision, the appointing authority must be considered competent also to suspend such a procedure for objective reasons (paragraph 54).

See: T-562/93 Obst v Commission [1995] ECRSC II-737, para. 35; T-41 /95 Moat v Commission [1996] ECRSC II-939, para. 38; T-35/96 Rasmussen v Commission [1997] ECRSC II-187, para. 60

The appointing authority's decision to suspend the procedure for filling the third post was based on an objective reason, namely the appointing authority's intention to investigate certain events which had occurred within the institution and in which the applicant was implicated (paragraph 59).

There is a breach of the principle of equal treatment where two categories of person whose factual and legal circumstances disclose no essential difference are treated differently or where situations which are different are treated in an identical manner (paragraph 61).

See: T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53, para. 68; T-207/95 Ibarra Gill v Commission [1997] ECRSC II-31. para. 68

There exists an objective difference between the applicant's situation and that of the two other officials promoted as a result of the decision of 28 June 1996, such as to justify the difference in treatment. Unlike the applicant, the two other officials who were promoted had not been implicated in the acts into which an investigation had been opened on 11 October 1995 (paragraph 62).

The fourth plea: contradictory reasoning vitiating the decision rejecting the complaint of 10 December 1996

The decision rejecting her complaint did not charge the applicant with the acts perpetrated anonymously within the defendant institution. On the contrary, since the statements made by those who had suffered those acts tended to implicate the applicant, the appointing authority decided to suspend the procedure for filling the post concerned pending the results of an investigation to be carried out which was to enlighten it as to her actual involvement (paragraph 67).

The applicant's argument that the decision rejecting her complaint contained contradictory reasoning, because it accepted the anonymity of the facts giving rise to the investigation carried out, while inculpating her in order to justify suspending the procedure for filling the third post, must accordingly be rejected (paragraph 68).

The fifth plea: absence of a statement of the reasons for the decision of 11 July 1996

The requirement to give a statement of the reasons on which a decision is based is intended, first, to provide the person concerned with the necessary information to allow him to ascertain whether or not the decision is well founded and, second, to enable the Community judicature to review the legality of the decision. In order to assess whether a statement of the reasons for a decision is sufficient, it must be placed in the context in which that decision was adopted (paragraph 73).

See: C-350/88 Delacre and Others v Commission [1990] ECR I-395, para. 16; T-26/90 Finsider v Commission [1992] ECR II-1789, para. 72; T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 33; T-158/94 Brunagelv Parliament [1996] ECRSC II-1131, para. 106; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC II-155, para. 33

The reference in the decision of 11 July 1996 to the discussion on 3 July 1996 provided the applicant with sufficient information to enable her to ascertain whether or not the appointing authority's decision to suspend the procedure for filling the third post was well founded. Furthermore, the Court of First Instance finds that the statement of reasons was further supplemented by the decision expressly rejecting her complaint (paragraph 76).

Vie sixth plea: misuse of powers or abuse of procedure

There is misuse of powers, of which abuse of procedure is merely one form, only if it is proved that the appointing authority, in adopting the contested act, was pursuing an objective other than that pursued by the rales in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act in question was adopted for purposes other than those stated (paragraph 84).

See: T-192/94 Maurissen v Court of Auditors [1996] ECRSC II-1229, para. 75; Rasmussen v Commission, cited above, para. 70

There is nothing in the documents before the Court to indicate that the defendant misused its powers (paragraph 85).

The seventh plea: manifest error of assessment

This plea is based on the same matters as the first, third and sixth pleas and must accordingly be rejected on the same grounds (paragraph 90).

The claim seeking destruction of documents constituting a parallel file

The Community judicature is not entitled, when exercising the judicial review of legality entrusted to it by Article 91 of the Staff Regulations, to issue directions to the administration. Accordingly an application for the Court to order destruction of the documents constituting an alleged ‘parallel file’ must be dismissed as inadmissible (paragraphs 92 and 93).

See: T-3/92 Latham v Commission [1994] ECRSC II-83, para. 27

The claim for compensation for nonmaterial damage

Consideration of the pleas advanced in support of the application for annulment of the decisions of 11 July and 10 December 1996 has disclosed no illegality. The claim for compensation must accordingly be rejected (paragraph 96).

Operative part:

The application is dismissed