JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

22 May 2014

BG

v

European Ombudsman

‛Appeal — Civil service — Officials — Disciplinary measures — Penalty of removal from post without loss of entitlement to a retirement pension — Preliminary investigation pending before a national court when the decision ordering removal from the post was adopted — Equal treatment — Prohibition on dismissal during maternity leave’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 17 July 2012 in Case F‑54/11 BG v Ombudsman [2012] ECR-SC, seeking to have that judgment set aside.

Held:

The appeal is dismissed. BG is to bear her own costs and is ordered to pay those incurred by the European Ombudsman in the present proceedings.

Summary

Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and cause of action — Pleas and arguments not made in the complaint but seeking to challenge the validity of the reasoning set out in the response to the complaint — Admissibility

Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and cause of action — Pleas and arguments not made in the complaint but closely related to it — Admissibility — Plea of substantive legality or procedural legality — Condition not sufficient to establish that plea is admissible

In actions brought by officials, claims before the Union judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Union judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it. In order to assess whether heads of claim are based on the same matters as those raised in the complaint, the Union judicature may not base its decision solely on the fact that a plea in law seeks to challenge the substantive legality or, alternatively, the procedural legality of a contested measure. A contrary interpretation of the rule that the application must correspond to the complaint could allow an applicant to rely, for the first time before the Union judicature, on a plea in law completely unconnected with those relied on in the complaint, where those pleas, taken together, relate either to the substantive legality or to the procedural legality of the measure in question. In those circumstances, the appointing authority would be apprised, in the complaint, of only some of the allegations against the administration. Not being in a position to know with sufficient certainty the complaints or requests of the person concerned, the appointing authority could not therefore seek an amicable settlement. Furthermore, the fact that pleas in law contained in the application and the complaint seek to challenge the substantive or, alternatively, procedural legality of a measure does not, in itself, prove that those pleas may be regarded as being closely linked. The concepts of substantive legality and procedural legality are too broad and abstract, in view of the precise purpose of the head of claim in question, to ensure that such a link may exist between pleas based exclusively on one or other of those concepts. (see paras 31, 33-35) See: T‑476/11 P Commission v Moschonaki [2013] ECR-SC, paras 73, 75 and 77 to 79 and the case-law cited therein

If the complainant is apprised of the reasoning for the act adversely affecting him through the response to his complaint, or if the reasoning for that response substantially alters or supplements the reasoning contained in that act, any plea in law put forward for the first time in the application and seeking to challenge the validity of the reasoning set out in the response to the complaint must be deemed admissible since, in such situations, the official concerned has not been placed in a position to have precise and definitive knowledge of the reasons underlying the act adversely affecting him. However, that exception to the rule that the application must correspond to the complaint is to be interpreted restrictively. It should not be applied in a situation where the response to the complaint does not substantially alter or supplement the original reasoning for the contested decision, which the official concerned learned for the first time when he read the response to his complaint, but contains information unrelated to the reasons properly so called justifying the contested decision. Assuming the official concerned received that information through the response to his complaint, he should have lodged a supplementary complaint in order to find out the truth, accuracy and details of the information in question, instead of applying directly to the courts of the Union. (see paras 40-42) See: T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, paras 73 and 74; Commission v Moschonaki, para. 86

In order to assess whether a disciplinary penalty is proportionate to the seriousness of the offences found to have been committed, the Union judicature must take into consideration the fact that the penalty is to be determined on the basis of an overall assessment by the appointing authority of all the concrete facts and matters appertaining to each individual case, bearing in mind that the Staff Regulations do not specify any fixed relationship between the penalties listed by them and the various types of misconduct on the part of officials, and do not state the extent to which aggravating or mitigating circumstances are to be taken into account in the choice of penalty. Consequently, the examination by the first instance court is limited to a consideration of the question whether the weight attached by the appointing authority to such aggravating or mitigating circumstances was proportionate, on the understanding that, in that examination, the court cannot substitute its own value judgments for those of the appointing authority. (see para. 64) See: T-197/00 Onidi v Commission [2002] ECR-SC I-A-69 and II-325, para. 142 and the case-law cited therein