JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 October 2015

AQ

v

European Commission

‛Civil service — Officials — Regulation No 45/2001 — Processing of personal data obtained for private purposes — Administrative investigation — Disciplinary proceedings — Rights of the defence — Duty to state reasons — Disciplinary penalty — Proportionality’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which AQ seeks, first, annulment of the decision of the appointing authority of the European Commission, of 19 March 2014, rejecting his complaint and, in so far as necessary, annulment of the decision of 6 September 2013 imposing the disciplinary penalty of a reprimand on him and, secondly, an order that the Commission pay him the sum of EUR 5000, assessed on an equitable basis, by way of damages.

Held:

The action is dismissed. AQ is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Disciplinary measures — Disciplinary proceedings — Initiation of disciplinary proceedings — Duty of the administration to notify the official of the evidence in the files before initiating disciplinary proceedings — Condition — Legitimate interests of confidentiality to be respected

Officials — Disciplinary measures — Disciplinary proceedings — Observance of the rights of the defence — Administrative investigation — Duty of the administration to notify the official of the evidence in the files during the investigation — None

Officials — Duty of the administration duty to have regard for the welfare of officials — Obligation to communicate with an official in a language of which he has a thorough command — Scope

While it is incumbent on the institutions, by virtue of the duty to have regard to the welfare of officials, to communicate with an official in a language of which he has a thorough command, Article 41(4) of the Charter of Fundamental Rights of the European Union cannot be read as meaning that any decision communicated by an EU institution to one of its officials must be written in the official’s chosen language. Indeed, that provision only applies to relations between the institutions and their personnel where such personnel correspond with the institutions purely as EU citizens and not in their capacity as officials or other servants. Accordingly, it does not assist an official to rely on the provision referred to above where he has been able, during an administrative investigation and disciplinary proceedings, to express himself in his preferred language, and where he had sufficient time to ask to be heard in another language in the disciplinary proceedings. Equally, there is no breach of Article 6(3)(a) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides, amongst other things, that everyone charged with a criminal offence has the right to be informed in a language which he understands of the nature and cause of the accusation against him, since that provision applies only to criminal matters. (see paras 58, 61, 62) See: Judgment of 8 May 2008 in Weiss und Partner, C‑14/07, EU:C:2008:264, paragraph 57 Orders of 7 October 2009 in Marcuccio v Commission, F‑122/07, EU:F:2009:134, paragraphs 63 and 65, and Marcuccio v Commission, F‑3/08, EU:F:2009:135, paragraphs 31 and 33

It is apparent from Article 2 of Annex IX to the Staff Regulations, which refers to Article 1 of that Annex, that, during an administrative investigation, the person concerned must rapidly be informed of his involvement provided that is not harmful to the proper conduct of the investigation. There is no infringement by the appointing authority of Article 2 of Annex IX to the Staff Regulations, or of the rights of the defence of an official in relation to an administrative investigation, where the official is informed of the initiation of the investigation and receives the investigation report. This goes beyond the obligation imposed on that authority by Article 2 of Annex IX to the Staff Regulations, which provides only for the conclusions of the investigation report to be communicated to the person concerned. Furthermore, it is only at the end of the administrative investigation that the person concerned can request the documents directly related to the allegations made against him. (see paras 67-71)

While it is true that Article 3 of Annex IX to the Staff Regulations requires the appointing authority to notify the official concerned of all evidence in the files prior to his hearing before deciding whether to initiate disciplinary proceedings, the fact remains that, when the administration gives a person access to a file concerning him, it is also required, under Article 41(2)(b) of the Charter of Fundamental Rights of the European Union, to respect the legitimate interests of confidentiality. To the extent that the investigators have made available to the official concerned, at the beginning of the administrative investigation procedure, information concerning him appearing in an email sent by another official to the Investigation and Disciplinary Office of the Commission, the fact that the email itself is only provided after the hearing is not liable to infringe the official’s rights of the defence. (see paras 73, 79, 80)

Article 8 of the Charter of Fundamental Rights of the European Union as well as Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Union institutions and bodies and on the free movement of such data, which grant legally protected rights to persons, apply to the processing of personal data by, inter alia, EU institutions in the course of activities which are wholly or partly within the scope of EU law. It is within that framework that Article 49 of Regulation No 45/2001 provides for disciplinary penalties to be imposed on officials or other servants in the event of failure to comply with their obligations pursuant to that regulation, whether such failure is intentional or negligent. An official who holds himself out to be the ‘recipient’ of personal data within the meaning of Regulation No 45/2001 in order to obtain such data from a person, is subject both to Article 8 of the Charter of Fundamental Rights of the European Union and to the provisions of Regulation No 45/2001, including the obligation imposed by Article 4(1)(b) of that regulation, under which personal data must be collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. (see paras 88, 90)

The statement of reasons for a decision adversely affecting an official must be such as to allow the Tribunal to review the legality of the decision and to provide the person concerned with the information necessary to enable him to ascertain whether or not the decision was well founded. The question whether the statement of reasons for the appointing authority’s decision imposing a penalty meets those requirements must be assessed having regard not only to its wording, but also to its context and to all the legal rules governing the matter in question. In this regard, although the appointing authority must indicate precisely the allegations against the official and the considerations which led it to adopt the chosen penalty, there is no requirement that it should cover all the matters of fact or of law which the official concerned raised during the proceedings. (see paras 112, 113) See: Judgments of 8 November 2007 in Andreasen v Commission, F‑40/05, EU:F:2007:189, paragraph 260, and 17 July 2012 in BG v European Ombudsman, F‑54/11, EU:F:2012:114, paragraph 96, confirmed on appeal by judgment of 22 May 2014 in BG v European Ombudsman, T‑406/12 P, EU:T:2014:273