JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Full Court)

13 January 2010

Joined Cases F-124/05 and F-96/06

A and G

v

European Commission

(Civil service – Officials – Actions for annulment – No need to adjudicate – Application for compensation – Admissibility – Privileges and immunities – Waiver of immunity from legal proceedings – Confidentiality of the investigations conducted by OLAF – Investigations by IDOC – Access to documents of a medical nature – Access to the personal file – Disciplinary proceedings – Reasonable time)

Applications: brought under Articles 236 EC and 152 EA, in which, in Case F-124/05, the applicant seeks, first, annulment of the decision of the Commission of 28 February 2005 rejecting his request of 22 October 2004 for the termination of the disciplinary proceedings brought against him by the decision of 16 January 2004 and, second, an order that the Commission pay to him damages and interest; in Case F-96/06, the same applicant seeks an order that the Commission pay him damages and interest by reason of various wrongful acts that it allegedly committed.

Held: There is no further need to adjudicate on the forms of order sought by the applicant in the application registered as Case F-124/05 A v Commission. The Commission is ordered to pay to the applicant the sum of EUR 30 000 in compensation for the non-material damage he suffered. The Commission is ordered to bear its own costs and half of the applicant’s costs relating to the applications registered as Cases F-124/05 A v Commission and F-96/06 G v Commission. The applicant is ordered to bear half of his costs relating to the actions registered as Cases F-124/05 A v Commission and F-96/06 G v Commission.

Summary

1. Officials – Actions for damages – Claim for compensation for non-material damage caused by the excessive duration of disciplinary proceedings

(Staff Regulations, Art. 73)

2. Officials – Social security – Insurance against the risk of accident and of occupational disease – Lump-sum compensation under the scheme laid down in the Staff Regulations – Claim for further compensation based on an error of such a kind as to render the institution liable – Conditions

(Staff Regulations, Art. 73)

3. Officials – Social security – Insurance against the risk of accident and of occupational disease – Invalidity – Degree of invalidity – Fixed by the Medical Committee

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 19(3))

4. Officials – Disciplinary measures – Investigation prior to the initiation of disciplinary proceedings

(Staff Regulations, Annex IX)

5. Officials – Actions – Prior administrative complaint – Complaints based on the same pleas in law but with legally distinct subject-matter – Lawfulness

(Staff Regulations, Arts 90 and 91)

6. Non-contractual liability – Conditions – Unlawfulness – Injury – Causal link

(Art. 340, second para., TFEU)

7. Officials – Actions – Act adversely affecting an official – Definition – Decision waiving the immunity of an official or member of staff – Included

(Protocol on the Privileges and Immunities of the European Communities, Art. 12; Staff Regulations, Arts 90 and 91)

8. Officials – Social security – Insurance against the risk of accident and of occupational disease – Establishing whether a disease results from an official's occupation

(Staff Regulations, Art. 73)

9. Officials – Social security – Insurance against the risk of accident and of occupational disease – Finding that a disease is occupational

(Staff Regulations, Arts 26 and 73; Rules on insurance against the risk of accident and of occupational disease, Art. 21)

10. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(Staff Regulations, Art. 26; European Parliament and Council Regulation No 1049/2001, Art. 4(2))

11. Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – Reference to an application lodged by the applicant in another case before the same court – Inadmissibility – Exceptions

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1))

12. Officials – Disciplinary measures – Decision to institute disciplinary proceedings

(Staff Regulations, Annex IX)

13. Officials – Disciplinary measures – Institution of disciplinary proceedings – Discretion of the appointing authority

(Staff Regulations, Annex IX)

14. Officials – Administration's duty to have regard for the interests of officials – Limits

15. Officials – Disciplinary measures – Disciplinary proceedings – Time-limits

(Staff Regulations, Annex IX)

1. All disciplinary proceedings place the official concerned in a situation of uncertainty about his professional future, inevitably causing him some degree of stress and anxiety. If that uncertainty persists for an inordinate period, the intensity of the stress and anxiety caused to the official goes beyond the level of what may be considered justifiable. Hence, the excessive duration of disciplinary proceedings is to be taken as giving rise to a presumption that the person concerned has suffered non-material damage. In that respect, it is necessary to distinguish between on the one hand the non-material damage caused to any official or member of staff, irrespective of any illness, and on the other hand the harm that may have been caused by mental illness – or the aggravation of such an illness – as a consequence of the excessive length of those proceedings. For that reason, a claim for compensation for the first type of damage is admissible irrespective of the state of any procedure also commenced by the official under Article 73 of the Staff Regulations. On the other hand, an official’s claim for compensation for the material damage and non-material harm caused to him by an occupational disease is not generally admissible until the procedure commenced under Article 73 of the Staff Regulations has been concluded.

(see paras 147, 149-151)

See:

F-23/05 Giraudy v Commission [2007] ECR-SC I-A-1-121 and II-A-1-657, paras 197 to 202

2. An action by which an official seeks compensation for the damage which he claims to have suffered as a result of his occupational disease and which he has lodged before the procedure commenced under Article 73 of the Staff Regulations has been concluded is generally premature, since it is not possible, at the stage at which the legal proceedings are brought, to assess the appropriate compensation to which the official may be entitled. In most cases, a medical report is required in order to establish a causal link between working conditions and the claimed prejudice and to assess the prejudice itself, so that it would make no sense, and indeed may even be impossible, for the courts to determine the causal link and the prejudice before the procedure commenced under Article 73 of the Staff Regulations has been concluded.

However, it cannot automatically be deduced from the fact that the medical procedure has not been concluded that an action for damages and interest on account of a wrongful act allegedly committed by an institution is premature. For reasons of economy of procedure, a principle which requires a balancing of the various factors involved in each case, the court may take into consideration, inter alia, the fact that, in a given case, a medical report is not necessary to assess the non-material damage suffered.

(see paras 153, 154, 156, 158)

See:

T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, paras 94 and 95; T-57/99 Nardone v Commission [2008] ECR-SC I-A-2-83 and II-A-2-505, paras 56 and 57

3. The second subparagraph of Article 19(3) of the Rules on insurance against the risk of accident and of occupational disease, which provides that where it is impossible to define the degree of invalidity after medical treatment is terminated, the report of the Medical Committee must specify a deadline for reviewing the insured party’s case, must necessarily be interpreted restrictively. If the Medical Committee were able repeatedly to defer the deadline for reviewing the insured party’s case, some insured parties would never be paid the lump sum provided for in Article 73 of the Staff Regulations during their lifetime. Moreover, a broad interpretation of that provision would disregard the concept of consolidation as defined in Article 19(3) of the Insurance Rules, under which the consequences of the accident or occupational disease are considered consolidated where they have stabilised or will diminish only very slowly and in a very limited way. The concept of consolidation therefore does not preclude all change in the patient’s condition but implies stabilisation or very slow change.

(see para. 161)

4. An institution enjoys a wide margin of discretion with regard to the opening and conduct of administrative investigations, subject to there being reasonable suspicion of the commission of a disciplinary offence.

(see paras 173, 188)

5. An official is at liberty to rely on the same plea, the same argument or the same fact in support of several complaints which are legally distinct as regards their subject-matter.

(see para. 205)

See:

T-253/06 P Chassagne v Commission [2008] ECR-SC I-B-1-43 and II-B-1-295, para. 149

6. It is for the applicant, in an action for damages, to establish that the conditions on which the European Union incurs non-contractual liability are satisfied. The strict application of that rule may be mitigated, however, where a harmful event may have been the result of a number of different causes and where the defendant institution has adduced no evidence enabling it to be established to which of those causes the event was imputable, although it was best placed to provide evidence in that respect, so that the uncertainty which remains must be construed against it.

(see para. 213)

See:

T-48/05 Franchet and Byk v Commission [2008] ECR II-1585, paras 182 and 183

7. The immunity from legal proceedings provided for by Article 12 of the Protocol on the Privileges and Immunities of the European Communities protects officials and members of staff from prosecution by the authorities of the Member States for acts performed in their official capacity. Hence, a decision to waive the immunity of an official or member of staff alters his legal situation, simply because it removes that protection, re-establishing his status as a person who is subject to the general law of the Member States and thus laying him open, without the necessity for any intermediary rule, to measures, inter alia those ordering detention and the bringing of legal proceedings, imposed by the general law.

The discretion left to the national authorities, following the waiver of immunity, as regards the resumption or discontinuance of proceedings brought against an official or member of staff has no bearing on the fact that his legal situation is directly affected, since the effects attached to the decision to waive immunity are restricted to the removal of the protection he enjoyed on account of his status as an official or member of staff, which does not involve any additional implementing measure.

It follows that the decision by which an institution waives the immunity from legal proceedings enjoyed by an official or member of staff constitutes an act adversely affecting him.

(see paras 231-233)

See:

T-345/05 Mote v Parliament [2008] ECR II-2849, paras 34 and 35

8. The purpose of an administrative inquiry conducted in connection with Article 73 of the Staff Regulations is to obtain, in an objective manner, all the particulars necessary to determine whether a disease has resulted from an official’s occupation and the circumstances in which it arose. In a case in which the working conditions of the official concerned are central to concerns about the occupational origin of his illness, the inquiry must include a thorough and objective analysis of his working conditions as well as of his illness as such.

(see para. 263)

See:

T-48/01 Vainker v Parliament [2004] ECR-SC I-A-51 and II-197, para. 129

9. Article 26 of the Staff Regulations provides for the creation of a personal file for each official containing all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct, together with any comments by the official on such documents. Documents may not be used or cited by the institution against an official unless they were communicated to him before they were filed. The purpose of those provisions is to guarantee the official’s right to defend himself.

As regards access to documents of a medical nature in the context of a procedure for recognition of an occupational disease, the Rules on insurance against the risk of accident and of occupational disease established a special procedure for the full medical report on which the decision which the appointing authority proposes to take is based to be transmitted to a doctor appointed by the official, if the official so requests and after notification of the proposed decision as provided for in Article 21 of the Insurance Rules, and for recourse to a medical committee of which that doctor is a member.

Respect for the official’s rights requires that he be granted a means of access to documents of a medical nature. That possibility afforded to the official must, however, be reconciled with the requirements of medical confidentiality which make every doctor the judge of whether he can inform the persons whom he is treating or examining of the nature of the illnesses from which they may be suffering. By providing for indirect access to documents of a medical nature through the interposition of a medical examiner appointed by the official, the Insurance Rules reconcile the rights of the official with the requirements of medical confidentiality.

Respect for the official’s rights requires that he be granted a means of access not only to documents of a medical nature but also to the factual findings on which the decision to be adopted under Article 73 of the Staff Regulations is based. Hence, documents relating to the findings of fact concerning an incident at work which may serve as a basis for the procedure for the recognition of the existence of an accident at work or an occupational disease within the meaning of the Insurance Rules must also be recognised as being of a medical nature.

It is indispensable that the full medical report, which the official may ask to be communicated to the doctor of his choice and which must be communicated to the members of the Medical Committee provided for by the Insurance Rules, should include any report drawn up following the administrative inquiry. Thus, if he has submitted the appropriate request, the official can, through a doctor chosen by him, decide his position regarding the findings contained in the report drawn up following the inquiry and assess whether it is appropriate to request that the Medical Committee give its opinion.

Moreover, the fact that certain documents are of a medical nature does not mean that such documents may not, in an appropriate case, also affect the official’s administrative status. If that is the case then those documents must appear in the personal file of the person concerned.

Hence, in the first place, the file which serves as a basis for the doctor appointed by the institution or the Medical Committee to appraise the occupational nature of a disease is of a medical nature and, accordingly, may be consulted only indirectly through the interposition of a doctor appointed by the official; and, in the second place, factors of an administrative nature which may appear in that file and have an influence on the administrative status of the official must also appear in the personal file where, pursuant to Article 26 of the Staff Regulations, the official may consult them directly.

All the documents submitted to the doctor appointed by the institution or to the Medical Committee thus come within the scheme for which the Insurance Rules provide. It is therefore necessary to place some of them in the official’s personal file, making it possible for him to acquaint himself with them, only where those documents are used for the appraisal or alteration of the official’s administrative status by the administration to which he belongs.

(see paras 275-282)

See:

88/71 Brasseur v Parliament [1972] ECR 499, para. 11; 140/86 Strack v Commission [1987] ECR 3939, paras 7, 9, 10, para. 11 and the case-law cited therein, and paras 12 and 13; C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paras 20 to 22, 24 and 25

T-154/89 Vidrányi v Commission [1990] ECR II-445, paras 33 to 36; Vainker v Parliament, paras 136 and 137

10. It is clear from the very title of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the third indent of Article 4(2) of which permits the institutions to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, that the scope of that Regulation relates to public access to Parliament, Council and Commission documents. The rights of an official or other staff member who requests communication of a document affecting his administrative status are not the same as those of a member of the public requesting access to the documents of an institution. The rights of officials and other staff members derive from the special provisions of Article 26 of the Staff Regulations, which place specific obligations on the institutions in order to guarantee the rights of the defence of the person concerned. Officials therefore enjoy a special right, based on Article 26 of the Staff Regulations. Moreover, a request from an official is liable, where applicable, to fall within the scope of special provisions regarding the civil service, dealing with access to specific types of document, such as documents of a medical nature. The exception mentioned in the third indent of Article 4(2) of Regulation No 1049/2001 does not therefore prevent the application of the provisions laid down in Article 26 of the Staff Regulations.

(see paras 289, 291-296)

11. The purpose of Article 44(1) of the Rules of Procedure of the General Court is to enable the judge to rule on the grounds of claim with sufficient accuracy. That provision must not, however, be interpreted in such a way that it would impose a formalistic approach on the parties that would only render cumbersome the judicial proceedings.

A plea in an application before the Civil Service Tribunal which refers to all of the pleas in another application by the same applicant before that Tribunal may therefore be deemed admissible, in view of the particular circumstances of a case, where the two related cases have been joined, since the purpose of that reference is to enable the applicant to avoid repeating lengthy arguments and providing again annexes running to several hundreds of pages.

(see paras 314-318)

See:

T-318/01 Othman v Council and Commission [2009] ECR II-1627, para. 57

12. Since the legality of a measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted, any information which came to light in the course of disciplinary proceedings after adoption of the decision to institute those proceedings cannot affect the legality of that decision, given that the very purpose of the investigation was to determine whether the initial suspicions were warranted. Furthermore, given the object and purpose of disciplinary proceedings, it is not necessary that the conduct alleged against the person concerned be proven for the initiation of disciplinary proceedings to be valid. The purpose of disciplinary proceedings is precisely to elucidate the conduct alleged against the person concerned.

(see paras 351, 360)

See:

15/76 and 16/76 France v Commission [1979] ECR 321, para. 7

Giraudy v Commission, para. 145

13. The fact that disciplinary proceedings have been terminated without a disciplinary measure being taken against the official in question cannot prevent the court from carrying out a review of the legality of the decision to bring disciplinary proceedings against the person concerned. Indeed, there would be a risk of arbitrariness if it were accepted that the appointing authority has absolute and unlimited powers to bring disciplinary proceedings against an official and then to terminate them without adopting disciplinary measures, without the official involved having the possibility, at the appropriate time, of contesting the decision to institute the proceedings in the absence of any penalty against which he could bring an action. There must therefore be a legal limitation on the discretion of the appointing authority when it decides to institute disciplinary proceedings. That limitation must be subject to review by the courts.

Furthermore, there would remain a risk of arbitrariness if the possible situations in which a decision instituting disciplinary proceedings against an official was unlawful were confined to those involving a misuse of powers. The appointing authority must therefore be considered to exercise its powers unlawfully not only if a misuse of powers is proven but also in the absence of sufficiently precise and relevant evidence suggesting that the person concerned has committed a disciplinary offence.

Given that the appointing authority has a wide discretion and the limitations that should be placed on it, judicial review must be limited to ascertaining that the evidence taken into consideration by the administration when instituting disciplinary proceedings was properly established, that there has been no manifest error in the assessment of the facts and that there has been no misuse of powers.

(see paras 352-354, 365-367)

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; Franchet and Byk v Commission, para. 352

14. The duty to have regard for the interests of officials reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and public servants. That duty implies in particular that when the appointing authority takes a decision concerning the position 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 official concerned.

The requirements of the duty to have due regard to the welfare of officials cannot be interpreted as of themselves preventing the appointing authority from bringing disciplinary proceedings against an official. Such a decision is taken primarily in the interest that the institution has in uncovering and, where necessary, penalising breaches of an official’s obligations under the Staff Regulations. Hence, an institution cannot be held to have committed any breach of its duty to have regard for the interests of its officials simply by instituting disciplinary proceedings against an official.

(see paras 376-378)

See:

T-133/89 Burban v Parliament [1990] ECR II-245, para. 27; T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I-A-115 and II-623, para. 147

15. It follows from the principle of 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 time following the previous step. That duty to act diligently and to observe the reasonable time requirement is also essential with regard to the institution of disciplinary proceedings, in particular in circumstances where and from the time when the administration becomes aware of facts and conduct which are liable to constitute breaches of an official’s obligations under the Staff Regulations

The unreasonable duration of disciplinary proceedings may be the result both of the conduct of prior administrative investigations and of the disciplinary proceedings themselves. The period to be taken into account in order to ascertain whether the duration of disciplinary proceedings is reasonable is not solely that commencing on the date of the decision to institute those proceedings. The question whether the disciplinary proceedings, once commenced, have been 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.

The reasonableness of the duration of the proceedings must be assessed in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities. No specific factor is decisive. Each must be examined separately and then their cumulative effect evaluated. Some instances of delay attributable to the appointing authority may not appear unreasonable in isolation but are unreasonable when considered together. The requirements of procedural diligence do not, however, go further than those compatible with the principle of sound administration.

Where decisions taken by the appointing authority have caused proceedings to exceed the period that would normally be considered reasonable, it is for that authority to prove the existence of special circumstances of such a nature as to justify that delay.

(see paras 390-395)

See:

C-185/95 P Baustahlgewerbe v Commission [1998] ECR I-8417, para. 29 and the case-law cited therein; 207/81 Ditterich v Commission [1983] ECR 1359, para. 26

T-307/01 François v Commission [2004] ECR II-1669, para. 47

F-40/05 Andreasen v Commission [2007] ECR-SC I-A-1-337 and II-A-1-1859, para. 194 and the case-law cited therein, on appeal before the General Court of the European Union, Case T-17/08 P