JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 November 2007

Case F-40/05

Marta Andreasen

v

Commission of the European Communities

(Civil service – Officials – Disciplinary measures – Disciplinary proceedings – Removal from post – Disciplinary Board – Composition – Application of new provisions over time – Article 6 of the European Convention on Human Rights – Observance of time-limits for disciplinary proceedings – Ne bis in idem – Proportionality – Statement of reasons)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Andreasen seeks, in particular, annulment of the Commission’s decision of 13 October 2004 to remove her from her post without loss of pension entitlements.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Disciplinary measures – Disciplinary proceedings – Legality – Judicial review – Limits

(Staff Regulations, Annex IX)

2. Community law – Principles – Right to effective judicial protection

(EU Charter of Fundamental Rights, Art. 47)

3. Officials – Disciplinary measures – Disciplinary proceedings – Plea based on Article 6 of the European Convention on Human Rights irrelevant

(Staff Regulations, Annex IX)

4. Officials – Disciplinary measures – Disciplinary proceedings – Entry into force of new rules applicable to the Disciplinary Board

(Staff Regulations, Annex IX, Arts 5(1) and (4) and 6(5))

5. Officials – Disciplinary measures – Ne bis in idem principle – Suspension

(Staff Regulations, Annex IX, Arts 9(3), 23(1) and 24(2))

6. Officials – Disciplinary measures – Disciplinary proceedings – Time-limit set for deciding on the situation of a suspended official

(Staff Regulations, Annex IX, Art. 24(2))

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

(Staff Regulations, Annex IX, Arts 18 and 22(1))

8. Officials – Disciplinary measures – Penalty – Removal from post

9. Officials – Rights and obligations – Freedom of expression – Exercise – Limits – Dignity of office – Duty of loyalty

(Staff Regulations, Arts 11, 12, first para., and 21)

10. Officials – Rights and obligations – Official participation in scientific meetings

11. Community law – Principles – Fundamental rights – Freedom of expression – Restrictions justified in the public interest

(Staff Regulations, Art. 17, second para.)

12. Officials – Decision adversely affecting an official – Disciplinary measure – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.)

1. Under the Staff Regulations the appointing authority and the Disciplinary Board have exclusive responsibility for initiating disciplinary proceedings. The regulations on disciplinary measures make no provision for a rehearing of the disciplinary proceedings by the Tribunal of its own motion and independently of the pleas validly put forward by the applicant. Even in disciplinary matters, therefore, review by the Community judicature in an action for annulment is confined to ascertaining, solely in the light of the pleas put forward, the legality of the disciplinary proceedings and the reality, scope and gravity of the facts established by the appointing authority for the purposes of the contested disciplinary measure.

(see para. 111)

See:

T-242/97 Z v Parliament [1999] ECR-SC I‑A‑77 and II‑401, para. 19

2. Fundamental rights form an integral part of the general principles of law the observance of which the Community judicature ensures. That observance derives from the constitutional traditions common to the Member States and from the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention on Human Rights is of particular importance here.

The right to an independent and impartial tribunal constitutes such a fundamental right. Individuals are entitled to effective judicial protection of the rights they derive from the Community legal order. That entitlement is also enshrined in Articles 6 and 13 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights.

(see paras 122, 124)

See:

222/84 Johnston [1986] ECR 1651, para. 18; C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, para. 39; C‑112/00 Schmidberger [2003] ECR I-5659, para. 71; C-263/02 P Commission v Jégo‑Quéré [2004] ECR I‑3425, para. 29; C-540/03 Parliament v Council [2006] ECR I‑5769, para. 35; C-229/05 P PKK and KNK v Council [2007] ECR I‑439, para. 76; C-432/05 Unibet [2007] ECR I‑2271, para. 37

3. According to Article 6(1) of the European Convention on Human Rights, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

A plea based on Article 6(1) of the European Convention on Human Rights against the penalty imposed under the Staff Regulations at the end of disciplinary proceedings brought against an official has to be dismissed.

First, such a penalty manifestly does not have the characteristics of the determination of a criminal charge within the meaning of Article 6(1) of the European Convention on Human Rights.

Second, it is evident from the case-law of the European Court of Human Rights that a disciplinary decision adopted by an administrative authority is not necessarily subject to the requirements laid down in that provision, which merely requires that it must be possible to submit such a decision for review before a tribunal fulfilling the stipulated conditions.

(see paras 125-127)

See:

T-26/89 De Compte v Parliament [1991] ECR II‑781, para. 94

4. Articles 5 to 8 of Annex IX to the version of the Staff Regulations which came into force on 1 May 2004 made certain changes to the establishment and composition of the Disciplinary Board. Applying them to a Disciplinary Board established before that date to decide on the case of an official facing disciplinary proceedings would not just concern the future effects of a situation which arose under the earlier legislation, but would necessarily be tantamount to making them have a retroactive effect.

In view of the principles which, according to consistent case-law, govern the temporal effects of provisions of Community law, and in the absence of any particulars, even implicitly, in the new rules which permit the inference that they are intended to apply retroactively, they must be considered to contain no obligation to review the establishment and composition of a Disciplinary Board established before they came into force.

(see paras 159, 171)

5. The suspension measure which may be applied to an official who is the subject of disciplinary proceedings is of a provisional nature and is not a disciplinary measure as such, so that it has nothing to do with the application of the ne bis in idem principle expressly laid down in the provisions of the Staff Regulations concerning disciplinary measures for officials.

(see paras 181-183)

See:

C-308/04 P SGL Carbon v Commission [2006] ECR I‑5977, para. 26

T-333/99 X v ECB [2001] ECR II‑3021, paras 149 and 151

6. In providing that the situation of a suspended official must be definitively settled within six months of the date on which the suspension takes effect, and that if no decision is taken within that period, the official concerned is entitled to again receive full remuneration, the aim of Article 24(2) of Annex IX to the Staff Regulations, in the version that came into force on 1 May 2004, is to prevent an official subject to disciplinary proceedings from being deprived of his remuneration for over six months without his case being decided. That time-limit is mandatory only to the extent that, following its expiry, the official once again becomes entitled to payment of his full remuneration. However, the fact that the appointing authority has not reached a definitive decision on the case of the official in question within the time-limit does not, in itself, lead to the conclusion that the decision closing the disciplinary proceedings against him is unlawful.

(see paras 189-190)

See:

T-549/93 D v Commission [1995] ECR-SC I‑A‑13 and II‑43, paras 32 and 33; T‑121/99 Irving v Commission [2000] ECR-SC I‑A‑85 and II‑357, para. 49

7. While it is true that the time-limits set for the conduct of disciplinary proceedings are not mandatory, they do constitute rules of sound administration the purpose of which is to avoid, in the interests both of the administration and of officials, unjustified delay in adopting the decision at the end of the disciplinary proceedings. Disciplinary authorities are therefore under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable period following the previous step. Failure to observe such a period, which can be assessed only in the light of the specific circumstances of the case, may result in the measure adopted after the expiry of the period being declared void, under both the previous version of the Staff Regulations and the version in force since 1 May 2004.

(see paras 194-195)

See:

13/69 Van Eick v Commission [1970] ECR 3, para. 4; 228/83 F v Commission [1985] ECR 275, para. 30; 175/86 and 209/86 M v Council [1988] ECR 1891, para. 16

De Compte v Parliament, para. 88; D v Commission, para. 25; T-197/00 Onidi v Commission [2002] ECR‑SC I‑A‑69 and II‑325, para. 91; T-307/01 François v Commission [2004] ECR II‑1669, para. 47

8. A decision removing an official from his post necessarily implies fine consideration on the part of the institution, in view of the serious and irrevocable consequences which arise from it. In that regard, the institution has wide discretion and the Court’s review is confined to ascertaining that the facts found are materially accurate and that there has been no manifest error in the assessment of the facts.

(see para. 220)

See:

T-141/97 Yasse v EIB [1999] ECR-SC I‑A‑177 and II‑929, para. 63

9. The first paragraph of Article 12 of the Staff Regulations (in the version in force until 30 April 2004) is intended to ensure that Community officials, in their conduct, present a dignified image in keeping with the particularly correct and respectable behaviour which one is entitled to expect from members of an international civil service. It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official’s position for the purposes of that provision. The first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty requiring an official not just to refrain from conduct likely to prejudice the dignity and respect due to the institution and its authorities, but also to conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained. Article 12 of the Staff Regulations does not constitute a bar to freedom of expression, which is a fundamental right enjoyed by Community officials, but imposes reasonable limits on the exercise of that right in the interest of the service.

Not only imputations likely to be detrimental to the dignity of the persons to whom they refer as such but also allegations of such a kind as to cast discredit on their professional honour have been regarded as serious insults which impugn the honour of those persons pursuant to the first paragraph of Article 12 of the Staff Regulations. The form of the allegations does not matter; both direct attacks and allegations made in a manner expressing doubt, indirectly, covertly, by way of insinuation or referring to a person not expressly mentioned but who can be identified are covered .

In that respect, the sending by an official of notes which, by their very nature, impugn the dignity of his position constitutes on its own an infringement of the obligation laid down in the first paragraph of Article 12 of the Staff Regulations, regardless of the publicity that might have been given to those notes.

(see paras 233-235)

See:

T-146/89 Williams v Court of Auditors [1991] ECR II-1293, para. 76; T-273/94 N v Commission [1997] ECR-SC I‑A‑97 and II‑289, paras 126 to 129; T-183/96 E v ESC [1998] ECR-SC I‑A‑67 and II‑159, paras 38, 39 and 41; T-34/96 and T-163/96 Connolly v Commission [1999] ECR-SC I‑A‑87 and II‑463, paras 123, 124 and 129; T-259/97 Teixeira Neves v Court of Justice [2000] ECR‑SC I‑A‑169 and II‑773, paras 29, 30 and 47

10. It is for the superior authority alone to decide, in complete freedom, whether it is appropriate to allow staff to participate in their official capacity in scientific meetings.

(see para. 250)

See:

338/82 Albertini and Montagnani v Commission [1984] ECR 2123, para. 32

11. The right to freedom of expression laid down in Article 10 of the European Convention on Human Rights constitutes a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy. None the less, the right to freedom of expression does not appear to be an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected. Considered in the light of those principles, the second paragraph of Article 17 of the Staff Regulations (in the version in force until 30 April 2004), on the publication by officials of matters dealing with the work of the Communities, cannot be regarded as imposing an unwarranted restriction on an official’s freedom of expression.

First, the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, the reputation and image of one of the institutions. Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect. Prior permission is required only when the material that the official wishes to publish, or to have published, deals with the work of the Communities. There is also no absolute prohibition on publication. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, and provides that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities.

(see paras 251-252)

See:

Connolly v Commission, paras 148 and 149 to 152

12. The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review.

The question whether the statement of reasons for a decision by the appointing authority imposing a disciplinary measure on an official satisfies those requirements must be considered with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question. Although the appointing authority must indicate precisely the allegations against the official and the considerations which led it to adopt the chosen measure, there is no requirement that it should cover all the matters of fact or of law which the official concerned raised during the proceedings. If the appointing authority chooses the same disciplinary measure as that proposed by the Disciplinary Board, there is no need for a further statement of grounds as to the appropriateness of the measure.

(see paras 259-260)

See:

C-188/96 P Commission v V [1997] ECR I‑6561, paras 26 to 29

T-12/94 Daffix v Commission [1995] ECR-SC I‑A‑71 and II‑233, para. 33; T‑144/96 Y v Parliament [1998] ECR-SC I‑A‑405 and II‑1153, para. 27; Connolly v Commission, para. 93; Onidi v Commission, para. 156; T-277/01 Stevens v Commission [2002] ECR-SC I‑A‑253 and II‑1273, paras 70 and 71