JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

17 February 1998

Case T-183/96

E

v

Economic and Social Committee of the European Communities

‛Officials — Freedom of expression in relation to hierarchical superiors — Duty of loyalty and obligation to uphold the dignity of the service — Disciplinary measure — Relegation in step — Principle of proportionality’

Full text in Spanish II-159

Application for:

annulment of the decision of the Secretary-General of the Economic and Social Committee imposing on the applicant the disciplinary measure of relegation in step.

Decision:

Annulment.

Abstract of the Judgment

In 1986 the applicant was employed by the Economic and Social Committee of the European Communities (ESC) as a Grade C 5 probationary official, as a Spanish-language typist. In 1987 she was appointed a Grade C 3 secretary/shorthand typist.

Since then there have been increasing relational and administrative problems between the applicant and the ESC authorities, as a result of which the applicant has been transferred to different departments on numerous occasions.

Between 1987 and May 1993 the applicant was assigned a series of different tasks. From 3 June 1993 until November 1994 she was assigned to the Directorate-General for Operations, ‘communication’ directorate, and from November 1994 to the ‘translation and publication’ directorate. Finally, in 1996, the applicant tendered her resignation.

On 30 November 1994 the applicant's former Director in the ‘communication’ directorate sent her, in connection with the procedure for drawing up her staff report for the period 1 September 1992 to 31 August 1994, a ‘draft staff report’.

By letter of 7 December 1994 the applicant formulated a number of objections to the proposed assessment. By letter of 16 December 1994 she sent the reporting officer the draft report, together with the following observations:

‘I want to do proper secretarial work, which I have never been given the opportunity to do at the ESC since entering the service in 1986.

I consider that I am capable of such work, since in addition to my qualifications as a secretary and shorthand typist I have two university diplomas as a Spanish-language teacher, which I enclose with diis memorandum and which show that I am perfectly familiar with that language. My knowledge of French is excellent and cannot be judged by [the reporting officer], since his own knowledge of that language is inadequate. His notes were strewn with spelling mistakes and he had to draft them several times because he was unsure of how to draft them. ...

Since I was first assigned to the communication directorate [the reporting officer] has marginalised me and has never given me secretarial work to do.

On the rare occasions when he gave me something to do it consisted of photocopying, sending a fax or going to documentation to ask for a document; only very occasionally did he dictate anything for me to type in Spanish or French. ...

For the abovementioned reasons, [the reporting officer] has no basis on which to support his assessment. How, and on the basis of what criteria, can he judge work which he has never given me, which he is not familiar with and which does not exist in the communication directorate, which in reality is an artificial and empty directorate without substance or functions?

During the period when I was assigned to the directorate I was the victim of insults on the part [of the reporting officer] : unbeknown to me he sent a defamatory note to Mr [X.] on 28 March 1994 demanding that I be dismissed and leading to my post being removed from the list of posts.

The staff report drawn up by [the reporting officer] constitutes an abusive and defamatory personal attack full of false allegations ...’

On 9 January 1995 the applicant acknowledged receipt of her definitive staff report, which was adopted by the reporting officer on 20 December 1994. The report was accompanied by a memorandum in which the reporting officer deplored the judgments formulated by the applicant in her letter of 16 December 1994. At the foot of the memorandum were the following references: ‘sent 21.12.1994: on leave; sent 4.1.1995: on leave; sent 5.1.1995: on leave; sent 6.1.1995: on leave’. That memorandum was challenged by the applicant by memorandum of 10 January 1995 to the reporting officer, with a copy to the officer dealing with her appeal, in which she reiterated the observations referred to above and, for the rest, expressed the following views:

‘Kindly refrain from taking note of my absences on leave, which are none of your business and are not within your competence.

Similarly, I would ask you to have respect for me and to confine yourself strictly to the provisions laid down in the Staff Regulations and the rules in force. Stop defaming me and subjecting me to abuse and insults.

Article 57 of the Staf f Regulations grant officials the right to annual leave authorised by their immediate superior: in my case, that immediate superior is certainly not you. Do not exceed your powers.

The reference in your memorandum of 20 December 1994 (paragraph 4.a.3.) to regular work is a nonsense, since you have never assigned me either duties or a regular task. I have been marginalised ever since I was posted to this department and improperly replaced by a typist from the Spanish pool who, on your instructions, usurped my work and my post ...’

By memorandum of 21 February 1995 the applicant was informed that owing to the content of her memorandum of 10 January 1994 disciplinary proceedings had been initiated against her. The applicant was interviewed on 6 March 1995. During the interview she presented a statement in which she denied having acted in breach of the Staff Regulations of Officials of the European Communities (Staff Regulations) and declared that Article 87 of the Staff Regulations had not been complied with and that the memorandum of 21 February 1995 did not contain an adequate statement of reasons.

On 29 March 1995 the appointing authority decided to refer the matter to the Disciplinary Board.

On 9 November 1995 the Disciplinary Board adopted an opinion in which it proposed that the measure of deferment of advancement to a higher step should be imposed on the applicant. That opinion was notified to the applicant on 30 November 1995 and the applicant was again interviewed on 18 December 1995.

On 18 January 1996 the appointing authority decided to impose on the applicant, on the ground that she had acted in breach of Articles 12 and 21 of the Staff Regulations, the disciplinary measure of relegation in step from Step 5 to Step 2 of Grade 3 and that that measure should be noted in her personal file. The decision also set out a course of conduct which the applicant had followed in 1991, 1992 and 1994 which was deemed disrespectful, in order to demonstrate the habitual nature of the conduct complained of in the present case.

It was stated in the decision that it would have effect in law upon being notified to the applicant but that its economic consequences were to be deferred until 29 February 1996 inclusive.

On 22 April the applicant submitted a complaint against the disciplinary measure. That complaint was rejected by letter of 14 August 1996.

Law

First plea in law, alleging breach of a substantial procedural requirement

Pursuant to the second paragraph of Article 87 of the Staff Regulations an official is to be heard before the appointing authority initiates the disciplinary procedure before the Disciplinary Board provided for in Annex IX to the Staff Regulations. That procedure must be opened where the appointing authority is minded to impose a more serious measure than a written warning or a reprimand. Where, on the other hand, it contemplates imposing a written warning or a reprimand it may do so without consulting the Disciplinary Board, although it must ensure that the official is heard before the measure is decided (paragraph 23).

Where the appointing authority refers the matter to the Disciplinary Board the official concerned is entitled, pursuant to the second paragraph of Article 4 of Annex IX to the Staff Regulations, to be heard by the Board (paragraph 24).

In the present case the ESC respected the right to be heard provided for in Article 87 of the Staff Regulations and in Annex IX thereto. The purpose of the hearing provided for in the second paragraph of Article 87 of the Staff Regulations is to permit the appointing authority to assess the seriousness of the matters of which the official concerned is accused in the light of the explanations offered by the official. Where, following that hearing, he is found guilty of conduct which may justify measures more severe than censure or a reprimand, the matter must be referred to the Disciplinary Board and the official has the benefits of the guarantees laid down in Annex IX to the Staff Regulations (paragraphs 25 and 26).

See: 255/83 and 256/83 R. v Commission [1985] ECR 2473, paras 20 and 21

The applicant cannot claim that she should have been heard before the appointing authority, by memorandum of 21 February 1995, informed her of its decision to initiate a procedure against her. The requirement for such a hearing is not to be inferred from the wording of Article 87 of the Staff Regulations or from the fundamental right to be heard by the Community institutions enjoyed by every person against whom procedures which are liable to culminate in a measure adversely affecting him are initiated (paragraph 27).

See: T-450/93 Lisrestal and Others v Commission [1994] ECR II-1177, para. 42

Second plea in law, alleging manifest errors in law and an abuse of powers

The first paragraph of Article 12 of the Staff Regulations prohibits in general any act which may reflect on an official's position and, in particular, any public expression of opinion which may reflect on his position. If, therefore, an internal memorandum from an official is an act which reflects on an official's position it constitutes a breach of Article 12 of the Staff Regulations, without its being necessary to consider the extent to which it was made public. It follows that the applicant's argument that her observations could not be classified as a breach of the first paragraph of Article 12 of the Staff Regulations on the ground that they were not made public cannot be upheld (paragraph 38).

See: T-146/89 Williams v Cour! of Auditors [1991] ECR II-1293, para. 76

The puipose of the first paragraph of Article 12 of the Staff Regulations is to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service. In the present case the memorandum of 10 January 1995 is distinguished by an aggressive tone and therefore lacks the necessary decorum. The administration was quite right to take the view that the memorandum in question constituted a breach of the applicant's duty to abstain from conduct which might reflect on her position (paragraph 39).

See: T-146/94 Williams v Court of Auditors [1996] ECRSC II-329, para. 65

Observance of the duty to assist and tender advice to his superiors laid down in Article 21 is required not only in the performance of specific tasks entrusted to an official but extends to the whole relationship between the official and the institution. By virtue of that duty, therefore, the official must abstain, in general, from any act which may reflect on the position of the institution and its authorities and on the respect due to them. A number of the assertions which the applicant made in the memorandum of 10 January 1995 reflected on the position of the reporting officer and the respect due to him (paragraph 40).

See: Williams v Court of Auditors [1991], cited above, para. 72

While it is true that freedom of expression is a fundamental right which is also enjoyed by Community officials, it is equally tme that Articles 12 and 21 of the Staff Regulations do not constitute a bar to the freedom of expression of those officials but, rather, place reasonable limits on the exercise of that right, in the interest of the service. Consequently, when the applicant made use of her right under the second paragraph of Article 43 of the Staff Regulations to make any comments which she considered relevant on the periodical report which had just been communicated to her, it was incumbent on her to exercise that right in a manner compatible with Articles 12 and 21 of the Staff Regulations (paragraph 41).

See: C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, para. 16

mrd plea in law, alleging manifest errors of fact

Since observance of tlie duty of loyalty is required not only in the performance of specific tasks entrusted to an official but extends to the whole relationship between the official and the institution and its authorities, the applicant cannot claim that Article 21 of the Staff Regulations does not apply to her relationship with her former superior (paragraph 47).

Nor does the fact that the staff report drawn up by that former superior was late in being communicated to the applicant exempt her from her obligation to abstain from conduct which may reflect on the position of the institution and its authorities and on respect for them. The obligation to conduct oneself in a manner befitting the service must be observed irrespective of whether the authorities of the institution observe the rules governing officials' staff reports. Where an official wishes to take action in respect of a breach of those rules by the institution Articles 25, 90 and 91 of the Staff Regulations provide effective means of doing so (paragraph 48).

Fourth plea in law, alleging breach of the principle of proportionality

It is for the disciplinary authority to choose the appropriate penalty and it must base its choice on a comprehensive assessment of the particular facts and the aggravating or extenuating circumstances peculiar to the case. None the less, it is for the Court to ascertain whether the penalty chosen is disproportionate in relation to the facts as found in the decision (paragraph 58).

See: T-26/89 De Compte v Parliament [1991] ECR II-781, paras 220 to 222; Williams v Court of Auditors [1991], cited above, para. 83

Where, as in the present case, the fact attributable to the applicant is that when she used her right to communicate her observations on the staff report she employed a tone and expressions which cannot be reconciled with the obligations relating to the dignity of the post and respect for the authorities of the institution, it was manifestly disproportionate to impose on her the penalty of relegation by several steps. That is a serious measure which is rarely imposed on officials and which, in order to be proportionate, must correspond to facts much more serious than those of the present case (paragraphs 59 and 60).

Operative part:

The decision of the Economic and Social Committee of 18 January 1996 imposing on the applicant the disciplinary measure of relegation in step is annulled.