JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

5 December 2012

Joined Cases F‑88/09 and F‑48/10

Z

v

Court of Justice of the European Union

(Civil service — Officials — Reassignment — Interests of the service — Rule that an official’s post should correspond to his grade — Rights of the defence — Psychological harassment — Article 12 of the Staff Regulations — Duty to have regard for the welfare of officials — Principle of sound administration — Disciplinary proceedings — Disciplinary penalty — Written warning — Rights of the defence and adversarial principle)

Application: Action brought under, first, Articles 236 EC and 152 EA and, second, Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106 thereof, whereby Z seeks, primarily, annulment of, respectively, the decision of 18 December 2008 reassigning her and the decision of 10 July 2009 imposing a written warning on her.

Held: The actions in Joined Cases F‑88/09 and F‑48/10 are dismissed. In Case F‑88/09, Z is to bear three quarters of her own costs and, in Case F‑48/10, Z is to bear her own costs and is ordered to pay the costs incurred by the Court of Justice. In Case F‑88/09, the Court of Justice is to bear its own costs and is ordered to pay one quarter of the costs incurred by Z.

Summary

1. Officials — Organisation of departments — Assignment of staff — Administration’s discretion — Scope — Judicial review — Limits — Right of the official to perform specific duties — None

(Staff Regulations, Art. 7)

2. Officials — Organisation of departments — Assignment of staff — Reassignment of an official in the interests of the service on account of difficulties in relationships — Misuse of powers — None

(Staff Regulations, Art. 7(1)

3. Officials — Organisation of departments — Assignment of staff — Reassignment — Compliance with the principle of assignment to an equivalent post — Scope — Taking into account of the duties referred to in the competition in which the official concerned was successful — Limits

(Staff Regulations, Art. 7; Annex I)

4. Officials — Principles — Rights of the defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope — Application to reassignment measures

(Charter of Fundamental Rights of the European Union, Art. 41(2))

5. Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the action — Same subject-matter and cause of action

(Staff Regulations, Arts 90 and 91)

6. Officials — Rights and obligations — Freedom of expression — Disclosure of facts giving rise to a presumption of the existence of illegal activity or serious failure to comply with obligations — Protection against disciplinary proceedings — Conditions

(Staff Regulations, Arts 22a and 22b)

7. Officials — Rights and obligations — Obligation to act independently and with integrity — Risk of a conflict of interest in the event of the existence of professional relations between an official required to rule on a case and a third party involved in the case — None

(Staff Regulations, Art. 11a)

8. Officials — Reassignment — Administration’s duty to have regard for the welfare of officials — Principle of sound administration — Reconciliation with the interests of the service

(Staff Regulations, Art. 24)

9. Officials — Rights and obligations — Freedom of expression — Exercise — Limits — Dignity of duties — Acts which might adversely affect the dignity of duties — Concept — Reporting of allegedly illegal activity — Obligations of officials

(Staff Regulations, Art. 12)

10. Officials — Rights and obligations — Respect for the dignity of duties — Scope — Reporting of facts of alleged psychological harassment — Public dissemination liable to discredit the alleged wrongdoer — Not permissible

(Staff Regulations, Arts 12 and 22a)

11. Officials — Disciplinary measures — Investigation prior to the initiation of disciplinary proceedings — Administration’s discretion — Scope

(Staff Regulations, Art. 86; Annex IX, Arts 1, 2(1) and 3)

12. Officials — Disciplinary measures — Disciplinary proceedings — Hearing of the official concerned by the appointing authority — Obligation to draft minutes — Scope

1. In view of the wide discretion which the institutions enjoy when organising their services according to the tasks entrusted to them and when assigning, in the light of those tasks, the staff available to them, provided that such assignment is effected in the interest of the service and complies with the rule requiring correspondence between grade and post, review by the Courts of the European Union of compliance with the condition relating to the interest of the service must be confined to ascertaining whether the appointing authority remained within reasonable and unimpeachable limits and did not use its discretion in a manifestly incorrect manner.

Consequently, provided that a reassignment measure is in the interest of the service and complies with the rule requiring correspondence between grade and post, it is not for the Courts of the European Union to determine whether other measures would have been more appropriate. While it cannot be denied that the administration has every interest in assigning its officials to posts which accord with their particular aptitudes and their personal preferences, an official cannot be recognised as having a right to perform specific duties.

(see paras 121-22, 202)

See:

21 June 1984, 69/83 Lux v Court of Auditors, para. 17; 7 March 1990, C‑116/88 and C‑149/88 Hecq v Commission, para. 11

18 June 1992, T‑49/91 Turner v Commission, para. 34; 16 December 1993, T‑80/92 Turner v Commission, para. 53; 28 May 1998, T‑78/96 and T‑170/96 W v Commission, para. 105; 12 December 2000, T‑233/99 Dejaiffe v OHIM, para. 53; 21 September 2004, T‑325/02 Soubies v Commission, para. 50

2. Where difficulties in relationships cause tensions damaging to the proper functioning of the service, they may justify, specifically in the interest of the service, the transfer of an official, without there being any need to determine the identity of the person responsible for the incidents at issue or the degree of truth of the accusations made by one party or the other.

In that regard, the fact that an official possesses high qualities or that a service has a high staff turnover does not mean that the official concerned cannot be the subject of a reassignment measure, since, while it cannot be denied that the administration has every interest in assigning an official to a post corresponding to his abilities and his aspirations, other considerations, related in particular to the need to ensure the peaceful functioning of the service, may, subject to compliance with the rule requiring correspondence between grade and post, lead the administration to assign an official to another post. That is particularly so as, if the official concerned has performed well in one post, the administration may expect that he will do equally well in a different post that might be entrusted to him.

Furthermore, where a reassignment measure has not been deemed to be contrary to the interest of the service, there can be no question of a misuse of powers. The concept of misuse of powers has a precisely defined scope, which refers to a situation where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving an end other than that stated or of evading a procedure specifically prescribed in the relevant provisions for dealing with the circumstances of the case.

(see paras 123, 127, 155-56, 201, 311-12)

See:

14 July 1983, 176/82 Nebe v Commission, para. 25; 5 June 2003, C‑121/01 P O’Hannrachain v Parliament, para. 46

10 July 1992, T‑59/91 and T‑79/91 Eppe v Commission, para. 57; 11 June 1996, T‑118/95 Anacoreta Correia v Commission, para. 25; W v Commission, para. 91; 17 November 1998, T‑131/97 Gómez de Enterría y Sanchez v Parliament, para. 62; 6 July 1999, T‑112/06 and T‑115/96 Séché v Commission, para. 139; 6 March 2001, T‑100/00 Campoli v Commission, paras 62 to 63; 14 October 2004, T‑389/02 Sandini v Court of Justice, para. 123; 7 February 2007, T‑339/03 Clotuche v Commission, para. 71; 7 February 2007, T‑118/04 and T‑134/04 Caló v Commission, paras 99, 115 to 116

25 January 2007, F‑55/06 de Albuquerque v Commission, paras 60 and 61 and the case-law cited

3. The rule that the post should correspond to the grade entails solely, in the event of a change in the responsibilities entrusted to an official, a comparison between his present responsibilities and his grade. Thus, an actual reduction of the responsibilities of an official does not breach the rule that the post should correspond to the grade unless his new responsibilities, taken together, fall clearly short of those corresponding to his grade and post, taking account of their character, their importance and their scope, irrespective of the way on which the new responsibilities are perceived by the official concerned.

That finding is not called into question by the fact that the applicant’s new duties had no connection with her former duties, by the notice of the competition to which she was admitted or by Annex I to the Staff Regulations or again by the fact that officials performing similar duties to hers have lower grades. In the event of a change in the duties entrusted to an official, the principle that his post should correspond to his grade entails a comparison, not between his present and previous duties, but between his present duties and his grade. In that regard, it may be inferred from the wide discretion which the institutions enjoy when assigning the officials available to them that the duties referred to in a competition notice are necessarily mentioned by way of information, provided that the rule that the post should correspond to the grade is observed.

Likewise, the same or similar duties may be performed by persons in different grades, as is apparent from Annex I to the Staff Regulations, which provides, for most of the duties set out therein, that they may be performed by officials in different grades. Thus, there is a breach of the rule that the post should correspond to the grade only where the duties performed, taken as a whole, fall far short of those corresponding to the grade and post of the official concerned.

(see paras 131, 135-36, 138)

See:

Eppe v Commission, para. 49; 16 April 2002, T‑51/01 Fronia v Commission, para. 53; Clotuche v Commission, para. 91 and the case-law cited

4. Since a reassignment measure which is not shown not to have been taken in the interest of the service is not part of a procedure initiated against the official concerned, it cannot automatically be inferred from the fact that an act affects an official’s position under the Staff Regulations that the rights of the defence are applicable, without taking into account the nature of the procedure initiated against him.

However, the rights of the defence, while being more extensive, certainly cover the procedural right of every person to be heard before an individual measure which would affect him adversely is taken, as set out in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union.

None the less, where there has been a breach of the right to be heard, and also more broadly of the rights of the defence, it is necessary, in order for the plea to be able to result in annulment of the contested decision, that, in the absence of that irregularity, the outcome of the procedure might have been different. In that regard, where the official concerned himself recognises that he is in a position of open dispute with his immediate superior, the administration may lawfully consider that there is no need to hear him on the actual existence of that dispute before taking any reassignment measure which it is entitled to take, in the interest of the service, on account of that dispute. Any explanations of the circumstances of the case that the official might have given before the adoption of the reassignment decision could not have had the effect of altering the administration’s decision.

(see paras 144, 146, 149, 299)

See:

24 October 1996, C‑32/95 P Commission v Lisrestal and Others, para. 21; 9 November 2006, C‑344/05 P Commission v De Bry, para. 37

27 November 1997, T‑290/94 Kaysersberg v Commission para. 108; 3 July 2001, T‑24/98 and T‑241/99 E v Commission, para. 93; 16 March 2004, T‑11/03 Afari v ECB, para. 90; 17 October 2006, T‑406/04 Bonnet v Court of Justice, para. 76

11 September 2008, F‑51/07 Bui Van v Commission, para. 81; 30 November 2009, F‑80/08 Wenig v Commission, para. 48

12 May 2010, T‑491/08 P Bui Van v Commission, para. 24

5. The correspondence rule can apply only where the submissions presented during the judicial action do not seek the same relief as that sought in the complaint or where the heads of claim in the judicial action are not based on the same causes of action as those in the complaint, in particular where a complaint submitted in the judicial stage is based on assertions and factual considerations which are not apparent from the file relating to the administrative case.

(see para. 170)

See:

1 July 2010, F‑45/07 Mandt v Parliament, para. 119

6. Although Article 22a of the Staff Regulations affords protection to officials or other servants who disclose to their institution information about the conduct of another official or servant liable to constitute a serious failure to comply with his obligations, that protection assumes that the ‘whistleblowing’ officials or members of staff have themselves complied with the procedure laid down in Articles 22a and 22b of the Staff Regulations, which is intended to preserve the professional reputation of the official or member of staff referred to in the information communicated to the institution until such time as the disciplinary authority has given its ruling. Articles 22a and 22b of the Staff Regulations to not offer officials who have recourse to those provisions protection against any decision capable of adversely affecting them, but only against harmful conduct and decisions adopted owing to the disclosure covered by the procedure laid down in those provisions.

Accordingly, an official who, rather than have recourse to the procedure laid down in Article 22b of the Staff Regulations, has decided to disclose his allegations to all the staff in his unit cannot benefit from the protection provided for in Article 22a of the Staff Regulations.

(see paras 184, 253)

See:

24 February 2010, F‑2/09 Menghi v ENISA, para. 139; 13 January 2011, F‑77/09 Nijs v Court of Auditors, para. 62

7. In the absence of any evidence of a conflict of interests, the existence of a professional relationship between the Registrar of the Court of Justice and the spouse of a third party, or indeed with the third party himself, cannot suffice to mean that his independence was compromised solely because he was required to give a ruling on a case indirectly concerning that third party. Likewise, the fact that the Registrar, in his capacity as appointing authority, decided to award and extend the contracts of employment of that third party, and also to impose a disciplinary penalty on an official who had sent an e-mail to the staff of the institution concerning that alleged conflict of interests, does not constitute proof that the professional relationship between that third party and the Registrar exceeded the normal framework or that the Registrar adopted a decision reassigning the official in question with the intention of punishing him for having disclosed the existence of alleged favourable treatment of the third party.

(see paras 190, 281)

See:

11 September 2002, T‑89/01 Willeme v Commission para. 58; 12 March 2008, T‑100/04 Giannini v Commission, para. 224

8. While the administration’s duty to have regard for the welfare of its staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the public authority and civil service employees, the requirements associated with that duty cannot prevent the appointing authority from adopting the reassignment measures which it deems necessary in the interest of the service. Accordingly, an official cannot take issue with the administration, on the basis of the duty of sound administration or the duty to have regard for the welfare of servants, for having adopted a reassignment decision in order to prevent a difficult relationship within the unit of the official concerned from deteriorating further.

(see para. 200)

See:

25 November 1976, 123/75 Küster v Parliament, para. 10

13 December 1990, T‑20/89 Moritz v Commission, para. 39; W v Commission, para. 95; 26 November 2002, T‑103/01 Cwik v Commission, para. 52

9. An official who publicly expresses serious insults, in so far as they adversely affect the reputation of the persons concerned, not only on account of imputations liable to harm their dignity as human beings, but also on account of allegations of such a type as to discredit their professional reputation, fails to fulfil the duty to refrain from any action or behaviour which might reflect adversely on his position, as provided for in Article 12 of the Staff Regulations. The form employed is irrelevant, since 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.

Although freedom of expression is a fundamental right which the Courts of the European Union must ensure is respected and which includes the right of officials and members of staff of the European Union to express constructive criticism, orally or in writing, the exercise of that right is limited, in particular, by Article 12 of the Staff Regulations.

Subsequently, in order to determine whether accusations made by an official remained within the bounds of freedom of expression, it is appropriate to weigh up, on the one hand, the factors capable of characterising an attack on dignity, namely the gravity of the accusations, the form which they assumed and the mode of distribution used and, on the other, the context in which the accusations were made, whether it was impossible to use other means of expression less harmful to the dignity of the person concerned and whether the criticism was constructive, which requires that the criticism may reasonably be seen to be well founded, that it is made in the interest of the service and that it does not exceed what is necessary in order to be understood.

As regards the disclosure by an official of an activity alleged to be unlawful, the official is required to act with the reservation and moderation dictated by the duties of objectivity and impartiality, and also to respect the dignity of the office, the honour of individuals and the presumption of innocence. That is not the case where, rather than make use of the legal channels available to him, pursuant to Articles 22a and 22b of the Staff Regulations, the official sent e-mails to all the staff in his unit containing serious accusations undermining the honour and the professional reputation of a number of officials.

(see paras 242, 246-47, 251-52)

See:

13 December 1989, C‑100/88 Oyowe and Traore v Commission, para. 16; 6 March 2001, C‑274/99 P Connolly v Commission, paras 43 to 49

7 March 1996, T‑146/94 Williams v Court of Auditors, paras 66 to 67; 12 September 2000, T‑259/97 Teixeira Neves v Court of Justice, paras 29, 30 and 47; 28 October 2004, T‑76/03 Meister v OHIM, paras 157 and 159

8 November 2007, F‑40/05 Andreasen v Commission, para. 234; Nijs v Court of Auditors, paras 67, 70 and 73

10. It may be that an official finds it necessary, especially where his superiors have not reacted to his complaints, to denounce in public acts of psychological harassment which he has suffered, without such conduct being reprehensible in the light of Article 12 of the Staff Regulations, even where the public disclosure of such acts is in itself such as to discredit the person responsible for the alleged harassment, and indeed the administration.

That is not the case, however, where in describing that conduct or those criticisms the official concerned, by the tone or the content of his statements, does more than describe the framework in which the alleged acts of harassment took place, the circle of persons involved and the context that made it possible.

That is particularly so since the procedure laid down in Article 22a of the Staff Regulations is not especially appropriate for situations of psychological harassment properly so-called, which call for specific measures on the part of the administration.

(see paras 257-58)

11. Under Article 86 of the Staff Regulations, the appointing authority has a wide discretion to decide whether, in the light of the evidence brought to his notice, it is appropriate to open an administrative investigation to verify whether there has been a failure by an official to comply with his obligations under the Staff Regulations. Accordingly, unless that discretion is to be called into question, another official who has made allegations of a failure to comply with obligations under the Staff Regulations cannot rely on the sole fact that the appointing authority did not deem it appropriate to initiate an administrative investigation in response to those allegations as a basis for his argument that the appointing authority lacked objectivity in taking a disciplinary measure against him.

Conversely, where an administrative investigation is initiated, while it follows from Article 3 of Annex IX to the Staff Regulations that the appointing authority must act on the basis of an investigation report, which requires that it carries out an impartial and inter partes investigation in order to establish the reality of the alleged facts and the circumstances in which they took place, no applicable provision requires that that investigation must be conducted on an adversarial basis.

Admittedly, the principle of sound administration requires that the appointing authority examine carefully and impartially all the relevant elements of the case before it, but the administration is not required to stand in the shoes of the official being investigated in order to seek in his stead every item of evidence capable of exonerating him or of mitigating the penalty that may be adopted.

However, it follows from Articles 1 and 2(1) of Annex IX to the Staff Regulations, read together, that the official concerned must have been put in a position to submit his observations on the facts relating to him, after the investigation, but before the conclusions relating to him were drawn by the appointing authority.

(see paras 266-67, 270, 285)

See:

11 July 1968, 35/67 Van Eick v Commission; 14 February 1989, 247/87 Star Fruit v Commission, para. 11

18 December 1997, T‑12/94 Daffix v Commission, para. 104; 20 March 2002, T‑31/99 ABB Asea Brown Boveri v Commission, para. 99

12. In a situation in which the administration is required to take minutes of a hearing, namely where there is a specific rule to that effect, when the administration intends to rely on what was said during that hearing or when the person concerned requests, no later than the time when the meeting commences, that minutes be taken, the administration is required to transcribe in writing only the essential part and not everything that was said during the hearing.

(see para. 305)