JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

17 July 2012

Case F‑54/11

BG

v

European Ombudsman

(Civil service — Disciplinary proceedings — Disciplinary measure — Removal from post — Existence of a preliminary investigation before the national criminal courts at the time of adoption of the decision to remove the applicant from her post — Equal treatment for men and women — Prohibition of the dismissal of a pregnant worker during the period from the beginning of pregnancy to the end of maternity leave)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BG seeks, first, annulment of the decision of the European Ombudsman to impose on her the penalty of dismissal without loss of pension rights and, secondly, compensation for the damage she claims to have suffered as a result of that decision.

Held: The action is dismissed. The applicant is to pay her own costs and is ordered to pay those incurred by the European Ombudsman.

Summary

1. Officials — Actions — Prior administrative complaint — Consistency between a complaint and the action which follows — Review by European Union Courts of their own motion — Scope of the rule

(Staff Regulations, Arts 90 and 91)

2. Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary proceedings and criminal prosecution brought at the same time concerning the same facts — Purpose of suspending disciplinary proceedings — Obligation to observe the findings of fact made by the criminal court — Adoption of a disciplinary penalty before the criminal proceedings are concluded on the basis of facts admitted by the official — Lawfulness

(Staff Regulations, Annex IX, Art. 25)

3. Officials — Actions — Act adversely affecting an official — Definition — Decision ordering the suspension of an official — Unlawfulness — Consequences for the disciplinary measure — None

(Staff Regulations, Arts 90 and 91)

4. Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary Board — Composition

(Staff Regulations, Annex IX, Art. 5(1))

5. Officials — Decision adversely affecting an official — Disciplinary measure — Obligation to state reasons — Scope

(Staff Regulations, Annex IX, Art. 25)

6. Officials — Disciplinary measures — Penalty — Discretion of the appointing authority — Scope

(Staff Regulations, Annex IX, Art. 10)

7. EU law — Principles — Right to effective judicial protection — Unlimited jurisdiction in reviewing a disciplinary measure

(Charter of Fundamental Rights of the European Union, Art. 47)

8. Officials — Disciplinary measures — Penalty — Mitigating circumstance — Misconduct not involving repeated action or behaviour — Not included

(Staff Regulations, Annex IX, Art. 10(h))

9. Officials — Protection of health and safety — Officials at work who are pregnant, have recently given birth or are breastfeeding — Prohibition of dismissal — Exception — Removal following disciplinary proceedings

(Staff Regulations, Art. 47; Council Directive 92/85, Art. 10)

1. The question of consistency between the complaint and the application is a matter of public policy to be considered by the court of its own motion. However, that rule can apply only where the judicial action alters the relief sought in the complaint or its cause of action. The concept of ‘cause of action’ must be given a broad interpretation. In particular, as regards claims for annulment, the ‘cause of action of the dispute’ must be understood as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality, a distinction which has been recognised in the case‑law.

(see paras 57, 58)

See:

11 July 2007, F‑7/06 B v Commission, para. 26 and the case-law cited therein; 1 July 2010, F‑40/09 Časta v Commission, para. 83 and the case-law cited therein

2. Suspension of disciplinary proceedings pending the conclusion of criminal proceedings, as provided for in Article 25 of Annex IX to the Staff Regulations, has a twofold rationale.

First, it is intended to ensure that the position of the official in question is not affected in any criminal prosecution brought against him on the basis of facts which are also the subject matter of disciplinary proceedings within his institution.

Secondly, such suspension makes it possible to take into consideration, in the disciplinary proceedings, the findings of fact made by the criminal court when its verdict has become final. Consequently, where the same facts may constitute both a criminal offence and a breach of the official’s obligations under the Staff Regulations, the administration is bound by the findings of fact made by the criminal court in the criminal proceedings. Once that court has established the existence of the facts in the case, the administration can then undertake their legal classification in the light of the concept of a disciplinary offence, ascertaining, in particular, whether they constitute breaches of obligations under the Staff Regulations.

Furthermore, it is for the official concerned to provide the appointing authority with sufficient information to enable it to determine whether the matters of which he is accused in disciplinary proceedings are at the same time the subject of a criminal prosecution against him. In order to meet that obligation the official concerned has, as a rule, to show that a criminal prosecution was brought against him while he was the subject of disciplinary proceedings.

As regards the principle, laid down in Article 25 of Annex IX to the Staff Regulations, that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial, where that principle must be applied in the context of mere investigations before a criminal prosecution has been brought, it must be interpreted narrowly if it is not to deprive the disciplinary proceedings of all effectiveness. In particular, that principle cannot prevent the administration from adopting a disciplinary measure where it bases itself on facts which, at the time its decision was adopted, were not contested by the official concerned.

(see paras 60-63, 71, 74)

See:

19 March 1998, T‑74/96 Tzoanos v Commission, paras 34 and 38; 30 May 2002, T‑197/00 Onidi v Commission, para. 81; 10 June 2004, T‑307/01 François v Commission, para. 75

13 January 2010, F‑124/05 and F‑96/06 A and G v Commission, para. 323

3. A decision to suspend an official is an act adversely affecting him, which may form the subject matter of an action for annulment under the conditions laid down in Articles 90 and 91 of the Staff Regulations.

However, such a decision constitutes not an essential procedural measure, preparatory to the final decision setting out the penalty to be imposed, but an autonomous decision which the appointing authority may adopt and the application of which is subject to an allegation of serious misconduct. It follows that any defect in the suspension decision would have no effect on the validity of the disciplinary decision.

(see paras 82, 83)

See:

19 May 1999, T‑203/95 Connolly v Commission, paras 33 and 36; 16 December 2004, T‑120/01 and T‑300/01 De Nicola v EIB, para. 113

4. Article 5(1) of Annex IX to the Staff Regulations, by confining itself to providing that at least one member of the disciplinary board must be chosen from outside the institution concerned, does not in any way preclude the majority, or even all, of the members of the disciplinary board from being chosen from outside the institution.

(see para. 87)

5. The statement of the reasons on which a decision adversely affecting a person is based must allow the Court to exercise its power of review as to the legality of the decision and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded.

The question whether the statement of reasons of 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 that regard, although the disciplinary board and the appointing authority are required to state the issues of fact and law which constitute the legal basis of their decisions and the considerations which led them to adopt them, they are not required to discuss all the issues of fact and law which have been raised by the interested party during the proceedings.

Moreover, if the penalty imposed by the appointing authority is more severe than that suggested by the disciplinary board, the decision must clearly state the reasons which led the appointing authority to depart from the opinion issued by the disciplinary board.

(see paras 96-98)

See:

29 January 1985, 228/83 F. v Commission, para. 35

19 May 1999, T‑34/96 and T‑163/96 Connolly v Commission, para. 93 and the case‑law cited therein; 5 December 2002, T‑277/01 Stevens v Commission, para. 71 and the case-law cited therein

6. The penalty to be imposed 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, since the Staff Regulations do not specify any fixed relationship between the disciplinary measures 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.

(see para. 116)

7. Observance of the principle of effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights of the European Union does not mean that, in a procedure of an administrative nature, a penalty may not be imposed first by an administrative authority. This assumes, however, that the decision of an administrative authority which does not itself meet the conditions laid down in that article is subject to subsequent review by a ‘judicial body that has full jurisdiction’.

In that regard, in order to be classified as a judicial body that has full jurisdiction, a judicial body must inter alia have jurisdiction to examine all questions of fact and law relevant to the dispute before it, which means, in the case of a disciplinary measure, that it should in particular have the power to determine the proportionality between the misconduct and the penalty, without confining itself to seeking out errors of assessment or misuse of powers.

(see para. 117)

See:

15 May 2012, T‑184/11 P Nijs v Court of Auditors, paras 85 and 86

8. Article 10(h) of Annex IX to the Staff Regulations states that, to determine the seriousness of the misconduct, the appointing authority must take into account whether the misconduct involves repeated action or behaviour, so that any repeated action might justify an increase in the penalty. However, the fact that there has been no repeated action is not in itself a mitigating circumstance, since in principle an official is required to refrain from any action or behaviour which might reflect adversely upon his position.

(see para. 127)

See:

30 November 2011, T‑208/06 Quinn Barlo and Others v Commission, paras 255 and 264

9. Article 10 of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding cannot be interpreted to mean that it prohibits any dismissal of a pregnant worker. A dismissal decision taken during the period from the beginning of pregnancy to the end of the maternity leave for reasons unconnected with the pregnancy is not contrary to Article 10 of Directive 92/85, provided that the employer gives substantiated grounds for dismissal in writing and that the dismissal of the person concerned is permitted under the relevant national legislation and/or practice, in accordance with Article 10(1) and (2) of that directive.

In that regard, although the Staff Regulations contain no specific provision laying down an express exception to the prohibition laid down in Article 10 of the directive, they must be interpreted as allowing such an exception in Article 47(e), which provides for the possibility, purely by way of an exception, that an official’s service may be terminated where a removal decision is adopted following disciplinary proceedings.

(see paras 139, 142)

See:

11 November 2010, C‑232/09 Danosa, para. 63