JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

11 April 2016

FU

v

European Commission

‛Civil service — Disciplinary proceedings — Disciplinary Board — Member of the temporary staff of the Court of Auditors appointed as a probationary official of the Commission — Change in place of employment — Failure to declare change in place of employment to the administration of the Court of Auditors — Simultaneous applications for allowance for resettlement in the home country and installation allowance in Brussels — Application for reimbursement of removal expenses from Luxembourg to the home country — OLAF enquiry — Disciplinary penalty — Classification in a lower function group without downgrading — Article 25 of Annex IX to the Staff Regulations — Manifest error of assessment — Failure to comply with the adversarial principle — New fact — Obligation to reopen the disciplinary proceedings — Proportionality of the penalty — Procedural time limit’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which FU seeks annulment of the decision of 3 June 2014 by which the appointing authority of the European Commission imposed on him the penalty of classification in a lower function group without downgrading, with effect from 1 July 2014.

Held:

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

Summary

Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary and criminal proceedings conducted in parallel on the basis of the same facts — Obligation on the administration to take a final decision on the official’s case only after a final verdict has been reached by the criminal court, and to observe the findings of fact made by that court — Obligation on the official to provide the administration with sufficient information to be able to compare the matters covered by the disciplinary proceedings with those in the criminal proceedings

Article 25 of Annex IX to the Staff Regulations precludes the appointing authority from giving a final decision on the disciplinary aspect of the case involving the official concerned by adjudicating on facts which are at the same time in issue in criminal proceedings, so long as the decision given by the criminal court seised has not become final. Consequently, that article does not grant the appointing authority, which is responsible for taking a final decision on the case of an official against whom disciplinary proceedings have been instituted, any discretion as to whether or not to stay proceedings on the official’s case where he is being prosecuted before a criminal court. Article 25 of Annex IX to the Staff Regulations has a twofold rationale. Firstly, that Article is intended to ensure that the position of the official in question is not affected in any criminal proceedings instituted against him on the basis of facts which are also the subject-matter of disciplinary proceedings within his institution. Second, suspension of the disciplinary proceedings pending the conclusion of the criminal proceedings makes it possible to take into consideration, in those disciplinary proceedings, the findings of fact made by the criminal court when its decision has become final. In fact, Article 25 of Annex IX to the Staff Regulations establishes the principle that disciplinary proceedings must await the outcome of the criminal trial, a rule which is justified, in particular, by the fact that the national criminal courts have greater investigative powers than the appointing authority. 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. It is only where such criminal proceedings have been initiated that the matters to which they relate can be identified and compared with the matters in respect of which the disciplinary proceedings have been instituted so that it can be determined whether they are the same. (see paras 66-70) See: Judgments of 19 March 1998 in Tzoanos v Commission, T‑74/96, EU:T:1998:58, paras 32 to 34; 21 November 2000 in A v Commission, T‑23/00, EU:T:2000:273, para. 37; 30 May 2002 in Onidi v Commission, T‑197/00, EU:T:2002:135, para. 81; 13 March 2003 in Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, para. 45; 10 June 2004 in François v Commission, T‑307/01, EU:T:2004:180, para. 75, and 8 July 2008 in Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paras 341 and 342

It is clear from reading Article 20 of the Staff Regulations in conjunction with Article 9(1) of Annex VII to the Staff Regulations, applicable to temporary staff pursuant to Article 22 of the Conditions of Employment of Other Servants, that a staff member who is required to transfer his residence in order to reside in the place where he is employed or at no greater distance therefrom as is compatible with the proper performance of his duties will be reimbursed removal expenses if he has not been reimbursed in respect of the same expenses from another source. That change of residence may thus occur when a temporary staff member or official takes up his duties and moves from his place of origin to his place of employment, or if there is a subsequent change in his place of employment, which may be because a temporary staff member of a particular institution is appointed as a probationary official of another institution, resulting in his being required to transfer his residence to his new place of employment. (see para. 90)

According to Annex IX to the Staff Regulations, and more particularly Article 28 thereof, the appointing authority is not under any obligation to reopen disciplinary proceedings by referring a case back to the Disciplinary Board, since that provision allows the appointing authority to decide whether or not to reopen proceedings on its own initiative or on application by the official concerned. (see para. 109)

According to Article 10 of Annex IX to the Staff Regulations, the disciplinary penalty imposed must be commensurate with the seriousness of the misconduct. The same article also sets out the criteria which the appointing authority must take into account when deciding upon the penalty to be imposed. As regards the assessment of the gravity of the breaches found by the Disciplinary Board against an official and the choice of the penalty which appears, in the light of those breaches, to be the most fitting, these matters fall, as a rule, within the wide discretion of the appointing authority, unless the penalty imposed is disproportionate in relation to the facts shown. Thus, that authority has the power to reach a different assessment of the official’s responsibility than that reached by the Disciplinary Board, and subsequently to choose the disciplinary penalty which it considers adequate in order to penalise the disciplinary faults upheld. In order to assess whether a disciplinary penalty is proportionate to the seriousness of the offences found to have been committed, the Civil Service Tribunal 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 of first instance 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 paras 120-122) See: Judgment of 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, paras 91 and 93