JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

18 March 2016

Petrus Kerstens

v

European Commission

‛Civil service — Officials — Obligations — Acts contrary to the dignity of the civil service — Dissemination of insulting remarks with regard to another official — Article 12 of the Staff Regulations — Disciplinary proceedings — Enquiry in the form of an examination of the facts — Reprimand — Article 9(1)(b) of Annex IX to the Staff Regulations — General implementing provisions — Procedural irregularity — Consequences of the irregularity’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Petrus Kerstens essentially seeks annulment of the decision of the European Commission of 15 April 2014 to impose on him the disciplinary penalty of a reprimand.

Held:

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

Summary

In the procedure applicable at the Commission concerning disciplinary matters, the requirement to conduct an administrative enquiry prior to initiating disciplinary proceedings stems from the general implementing provisions adopted by the Commission concerning the conduct of administrative enquiries and disciplinary proceedings. Consequently, where the Commission initiates disciplinary proceedings against an official without having conducted an administrative enquiry inculpating or exculpating him, and where it has drawn conclusions about the official without having given him the opportunity to state his opinion, it infringes its obligations under Articles 3(2) and 4(4) of those general implementing provisions. (see paras 65, 82)

In order to ensure that Article 10 of Annex IX to the Staff Regulations is effective, the requirement that the severity of the penalty be commensurate with the seriousness of the misconduct is not just a safeguard for officials who have failed to fulfil their obligations, but also places an obligation on the appointing authority to impose a penalty which appropriately reflects the seriousness of the misconduct committed. Under Article 24 of the Staff Regulations, every institution is under an obligation to protect its officials against any threats, insulting or defamatory acts or utterances or any attacks to which they are subjected, including where they are the victims of attacks from other officials, provided that the facts in question are proven. That obligation involves not just a duty to act where such conduct is established, but also an obligation to prevent, as far as possible, such conduct from occurring in future, in accordance with the duty of care which governs relations between the institutions and their staff. (see para. 105) See: Judgment of 26 January 1989 in Koutchoumoff v Commission, 224/87, EU:C:1989:38, para. 14 Judgment of 12 May 2011 in Missir Mamachi di Lusignano v Commission, F‑50/09, EU:F:2011:55, para. 220

Allegations undermining the personal and professional reputation of those concerned may be regarded as insulting acts or utterances and the form which those allegations take is irrelevant, since the concept covers both direct attacks and allegations made in a manner expressing doubt, indirectly, covertly or by way of insinuation. (see para. 107) See: Judgment of 12 September 2000 in Teixeira Neves v Court of Justice, T‑259/97, EU:T:2000:208, paras 29 and 30

In order to assess whether the severity of a penalty is commensurate with the seriousness of the acts 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 court is limited to the question whether the weight attached by the appointing authority to any aggravating or mitigating circumstances is proportionate, and in that examination it cannot substitute its own assessment for the value-judgments made by the appointing authority in that regard. (see para. 109) See: Judgment of 22 May 2014 in BG v Ombudsman, T‑406/12 P, EU:T:2014:273, para. 64 and the case-law cited therein

The accusation that an official has committed an act which reflects adversely upon his position does not depend on the degree of publicity which his insulting acts have received. (see para. 116) See: Judgment of 26 November 1991 in Williams v Court of Auditors, T‑146/89, EU:T:1991:61, para. 76