JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

12 July 2012

European Commission

v

Fotios Nanopoulos

‛Appeal — Civil service — Officials — Duty to provide assistance — Article 24 of the Staff Regulations — Non-contractual liability — Articles 90 and 91 of the Staff Regulations — Damages claim to be submitted within a reasonable time — Time-limit for reply — Institution of disciplinary proceedings — Criterion requiring a ‘sufficiently serious breach’ — Personal data leaked to the press — Failure to assign tasks corresponding to an official’s grade — Amount of damages’

Appeal:

against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 11 May 2010 in Case F‑30/08 Nanopoulos v Commission [2010] ECR-SC, seeking, first, to have that judgment set aside and, secondly, if the judgment is to be upheld, to have the exact amount of damages set.

Held:

The appeal is dismissed. The European Commission is to bear its own costs and pay the costs incurred by Mr Nanopoulos in the appeal proceedings.

Summary

Officials — Administration’s obligation to provide assistance — Possibility for the official to initiate proceedings before the national court against the person who caused the damage prior to receiving a response from the administration to his request for assistance — Need for the official to establish with the administration the implications of the duty of discretion for proceedings initiated by him

Officials — Non-contractual liability of the institutions — Conditions — Compensation for harm caused to an official or other staff member — Administration’s duty to have regard for the welfare of officials — Scope

See the text of the decision. (see para. 63)

The delay in adopting an express decision is not in itself a measure which may be subject to annulment; however, such delay constitutes conduct on the part of the administration which may, depending on the circumstances of each case, cause non-material damage to the person concerned for which the institution may incur liability. The date on which the decision is adopted is by no means a secondary factor in that regard; it may be of decisive importance to the official requesting assistance. Consequently, even where an express decision is taken in response to a request for assistance submitted pursuant to Article 24 of the Staff Regulations and that decision has not been contested within the period prescribed by Articles 90 and 91 of the Staff Regulations, a claim for compensation may still be lodged inasmuch as, irrespective of the decision adopted, it is based on the allegedly wrongful conduct of the administration consisting in its delayed adoption of that decision. (see paras 67, 68)

The appointing authority’s decision to institute disciplinary proceedings is merely a preparatory procedural step. It does not prejudge the final position to be adopted by the administration and thus cannot be regarded as an act adversely affecting an official within the meaning of Article 91 of the Staff Regulations. It may therefore be challenged only incidentally in an action brought against a final disciplinary decision adversely affecting an official. (see para. 85) See: T‑48/05 Franchet and Byk v Commission [2008] ECR II‑1585, para. 340

Although the decision to institute disciplinary proceedings cannot in itself be the subject of an action for annulment, it might, however, form the basis of the institution’s non-contractual liability where a decision is taken to close the disciplinary proceedings. Thus, disciplinary proceedings which have been instituted improperly may result in damage to the official who is subject to those proceedings so that where the proceedings are closed without further action, the official may have an interest in invoking the possible unlawfulness of the decision to initiate those proceedings as part of an action for damages. However, in order to obtain compensation for the damage resulting from the institution of disciplinary proceedings, the official concerned must first observe the two-stage pre-litigation procedure laid down by the provisions of Articles 90 and 91 of the Staff Regulations. (see paras 86, 96)

The principle of the presumption of innocence, which constitutes a fundamental right set forth in Article 6(2) of the European Convention on Human Rights (‘ECHR’) and in Article 48(1) of the Charter of Fundamental Rights of the European Union, confers rights on individuals which are enforced by the Union judicature. According to the case-law of the European Court of Human Rights, Article 6(2) of the ECHR governs criminal proceedings in their entirety, irrespective of the outcome of the prosecution, and not solely the examination of the merits of the charge. That provision guarantees that no one will be described or treated as guilty of an offence before his guilt has been established by a court. Accordingly, it requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged. The presumption of innocence is undermined by statements or decisions which reflect the sentiment that the person is guilty, which encourage the public to believe in his guilt or which prejudge the assessment of the facts by the competent court. Thus, while the principle of the presumption of innocence enshrined in Article 6(2) of the European Convention on Human Rights is one of the elements of a fair criminal trial that is required by Article 6(1) of the ECHR, it is not limited to a procedural guarantee in criminal matters: its scope is wider and requires that no representative of the State declare that a person is guilty of an offence before his guilt has been established by a court. The presumption of innocence may be undermined not only by a judge or a court but also by other public authorities. (see paras 90-92) See: T‑193/04 Tillack v Commission [2006] ECR II‑3995, para. 121; Franchet and Byk v Commission, paras 209 to 211

The institution of disciplinary proceedings in itself does not undermine the presumption of innocence. The decision to institute disciplinary proceedings is, after all, deemed to be confidential and is not brought to the attention of the public. Accordingly, the decision regarding proceedings, which are ultimately closed without further action, cannot in itself confer on an official concerned by those proceedings an interest in invoking that decision in an action for compensation. (see paras 93, 94) See: T‑12/94 Daffix v Commission [1997] ECR-SC I‑A‑453 and II‑1197, para. 76; T‑21/01 Zavvos v Commission [2002] ECR-SC I‑A‑101 and II‑483, para. 341; T‑166/02 Pessoa e Costa v Commission [2003] ECR-SC I‑A‑89 and II‑471, paras 55 and 56

See the text of the decision. (see para. 97) See: C‑583/08 P Gogos v Commission [2010] ECR I‑4469, para. 30

Disputes involving the civil service under Article 236 EC and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, are governed by particular and special rules that differ from those arising from the general principles on the non-contractual liability of the Union under Article 235 EC and the second paragraph of Article 288 EC. It is clear from the Staff Regulations in particular that, unlike any other individual, an official or other member of the Union’s staff is connected to the institution to which he belongs by a legal relationship of employment 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. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their officials in order to guarantee to the public that tasks in the public interest entrusted to the institutions are performed effectively. It follows that where the Union acts as employer it is subject to increased liability, in the form of the duty to make reparation for damage caused to its staff by any unlawful act committed in its role as employer. (see para. 103) See: T‑143/09 P Commission v Petrilli [2010] ECR-SC, para. 46 and case-law cited

Where the administration receives a request for assistance, it enjoys broad discretion regarding the choice of the ways and means of applying Article 24 of the Staff Regulations. When faced with serious and unfounded accusations concerning the professional integrity of an official in carrying out his duties, it must refute those accusations and do everything possible to restore the good name of the official concerned. In particular, the administration must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case. In this regard, while the sole objective of the period for replying to a request prescribed by Article 90 of the Staff Regulations is to ensure that the administration’s failure to respond does not become an obstacle to the means of obtaining redress, and while it is not a period for replying which, in the context of a request for assistance made under Article 24 of the Staff Regulations, should in itself be regarded as reasonable, the administration’s diligence and alacrity must be assessed, on a case-by-case basis, in the light of the circumstances of the case. However, where a request for assistance by an official follows the publication of press articles concerning him, the risks of being time-barred associated with the existence of short time-limits for bringing proceedings before some national courts in relation to violations of the press laws do not constitute a criterion for assessing whether the administration has replied to that request with the alacrity and diligence required. As the administration enjoys broad discretion regarding the choice of measures to be taken to reply to a request made on the basis of Article 24 of the Staff Regulations, assistance in the form of a press release, for example, or a right of reply from the administration employing the official directly mentioned in the published article may be sufficient. (see paras 111, 117, 120, 121) See: T‑183/95 Carraro v Commission [1998] ECR-SC I‑A‑123 and II‑329, paras 31 and 33; T‑144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, paras 97 and 98

Pending the reply from the administration to a request for assistance made pursuant to Article 24 of the Staff Regulations, the official is not prevented from instituting, if he so wishes, proceedings concerning violations of press laws before a national court. It falls to the official to initiate proceedings, in accordance with Article 24, second paragraph, in fine, of the Staff Regulations, against those responsible for the damage he considers himself to have suffered and, with a view to preparing such an action, to discuss with the administration the details of the manner in which his duty to exercise discretion imposed on him by Article 17 of the Staff Regulations is to be performed. (see para. 122) See: T‑59/92 Caronna v Commission [1993] ECR II‑1129, para. 37; T‑223/95 Ronchi v Commission [1997] ECR-SC I‑A‑321 and II‑879, para. 60

The purpose of a decision instituting disciplinary proceedings against an official is to enable the appointing authority to examine the truth and gravity of the facts alleged against the official concerned and to hear him in that regard, in accordance with Article 87 of the Staff Regulations, in order to form an opinion, on the one hand, as to whether it is appropriate either to close the disciplinary proceedings without further action or to adopt a disciplinary measure against the official and, on the other hand, where appropriate, as to whether or not it is necessary, before adopting such a measure, to send him before the Disciplinary Board in accordance with the procedure laid down in Annex IX to the Staff Regulations. Admittedly, such a decision necessarily entails careful consideration on the part of the institution which must have regard to the serious and irrevocable consequences likely to arise from it. The institution has wide discretion in that respect and the judicial review is limited to ascertaining whether the facts taken into account by the administration in order to institute the proceedings are materially accurate and whether there has been any manifest error in the assessment of the facts held against the official concerned and any misuse of powers. However, in order to safeguard the rights of the official concerned, the appointing authority must have sufficiently precise and relevant evidence before instituting disciplinary proceedings. (see paras 149, 150, 152) See: T‑273/94 N v Commission [1997] ECR-SC I‑A‑97 and II‑289, para. 125; T‑203/98 Tzikis v Commission [2000] ECR-SC I‑A‑91 and II‑393, para. 50; Pessoa e Costa v Commission, para. 36; T‑203/03 Rasmussen v Commission [2005] ECR-SC I‑A‑279 and II‑1287, para. 41; Franchet and Byk v Commission, para. 352

No provision of the Staff Regulations, not even the decision establishing the Investigation and Disciplinary Office of the Commission (IDOC), expressly requires the administration to carry out an administrative inquiry before instituting disciplinary proceedings. (see para. 151)