JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

16 July 1998

Case T-144/96

Y

v

European Parliament

‛Officials — Criminal conviction — Disciplinary measure — Removal from post — Statement of reasons — Duty to have regard for the welfare of officials’

Full text in French II-1153

Application for:

annulment of a disciplinary decision of the Parliament of 19 January 1996 removing the applicant.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant has been an official of the European Parliament at Grade D 3 as an office messenger in Brussels since December 1987.

At the material time he had been incapacitated for work since 1 January 1993.

On 6 June 1994 the Court of First Instance, Brussels, found him guilty of indecent assault and rape of a minor and sentenced him to five years' deprivai of the exercise of certain civil and/or civic rights and two years' imprisonment (suspended as to that part of the sentence exceeding the time spent in custody pending trial), provided that he submit to supervision by a probation officer and follow a course of psychotherapy.

On 5 January 1995, the appointing authority decided to hear the applicant with a view to commencing disciplinary proceedings under Article 87 of the Regulations and Rules applicable to officials and other servants of the European Community (the Staff Regulations). The applicant was heard on 17 January 1995.

On 28 July 1995, the Disciplinary Board, which was seised by letter of 17 February 1995 from the Secretary-General of the Parliament, issued a unanimous opinion in which it found that the acts committed by the applicant seriously compromised the dignity of his office, of the European civil service and of the European Parliament and amounted to a breach of his obligations under the Staff Regulations, particularly the first paragraph of Article 12 and Articles 27 and 28. On those grounds, the Disciplinary Board proposed that the applicant be removed from his post without his right to a retirement pension being terminated.

By decision of the appointing authority of 19 January 1996, the applicant was removed from his post but retained his retirement pension rights.

By letter of 5 March 1996, the applicant submitted a complaint against the decision to remove him from his post. That complaint was rejected by letter of 17 June 1996.

Substance

The plea alleging breach of the obligation to provide a statement of reasons

In this case, the reasons provided both in the contested decision and in the opinion from the Disciplinary Board were manifestly sufficient to enable the applicant to judge whether the disciplinary measure imposed on him was justified and whether it was appropriate to bring an action, and to enable the Community judicature to exercise its power of review (paragraph 23).

Plea alleging manifest error of assessment

Once the facts alleged against an official have been shown to be true, it is for the appointing authority to choose the appropriate measure and the Court of First Instance cannot substitute its assessment for that of the appointing authority unless there has been manifest error or a misuse of powers. Since Articles 86 to 89 of the Staff Regulations do not provide for fixed relationships between the disciplinary measures set out therein and the different types of breach of obligations and do not specify the extent to which aggravating or mitigating circumstances come into play in choosing the measure, the determination of the measure to be imposed must be based on an overall assessment by the appointing authority of all the facts and circumstances specific to each individual case. In particular, a decision ordering removal from post necessarily calls for scrupulous consideration by the institution in view of the serious consequences of such a decision. In that connection, the institution enjoys a large measure of discretion and judicial review is limited to ascertaining whether the facts on which the decision is based are materially accurate and whether there has been any manifest error in assessment of the facts and any misuse of powers (paragraph 34).

See: 228/83 F v Commission [1985] ECR 275, para. 34; 403/85 F v Commission [1987] ECR 645, para. 18; T-26/89 de Compte v Parliament [1991] ECR II-781, para. 220; T-146/94 Williams v Court of Auditors [1996] ECRSC II-329, paras 107 to 108; T-273/94 N v Commission [1997] ECRSC II-289, para. 125

In this case, given that the facts alleged against the applicant have been established in a judgment having the force of res judicata, and in view of the seriousness of the offences committed, the measure imposed by the appointing authority is not disproportionate (paragraphs 35 and 36).

In particular, the applicant's argument that the appointing authority is bound by the finding of the Belgian criminal court that there were mitigating circumstances is rejected. Criminal and disciplinary proceedings are separate from one another and pursue different aims, so that the appointing authority cannot be bound by the weight accorded to aggravating or mitigating circumstances by the criminal court. In addition, a disciplinary measure may be imposed even where the applicant is not found guilty of any criminal offence (paragraph 38).

Plea alleging breach of the duty to have regard for the welfare of officials

The duty of the administration to have regard for the welfare of its staff reflects the balance of mutual rights and obligations established by the Staff Regulations in the relationship between public authority and civil servants. One of the consequences of that duty is that when the authority takes a decision concerning the situation of an official, it should take into consideration all factors capable of influencing its decision and in so doing should take into account not only the interests of the service but also those of the official concerned. However, the protection of the rights and interests of officials must always be subject to compliance with the legal rules in force (paragraph 48).

See: Joined Cases T-33/89 and T-74/89 [1993] ECR II-249, para. 96

Although the duty to have regard to the welfare of officials may in certain circumstances lead the appointing authority to refrain from imposing the disciplinary measure envisaged or to impose a less severe measure, the requirement that the official's interests, including his state of health, are to be taken into account cannot extend to the point of depriving that authority of the possibility of imposing a disciplinary measure, even removal from post, where the facts are exceptionally serious and cannot be attributed exclusively or even chiefly to the state of health of the official concerned (paragraph 50).

Plea alleging infringement of the rights of defence

The applicant claims that the disciplinary decision of 19 January 1996 infringes his rights of defence and does not comply with the obligation to provide a statement of reasons because it refers to his ‘subsequent attitude’ without specifying in what way it was negative and that the appointing authority reached its decision on the basis of general considerations which were not substantiated by specific facts (paragraph 54).

The expression ‘subsequent attitude’ refers to the fact that, during the criminal and disciplinary proceedings, the applicant did not appreciate the seriousness of the offences committed. Set in its context, that expression is perfectly comprehensible and is sufficiently precise to enable the applicant to exercise his rights of defence (paragraph 56).

That plea is therefore dismissed as unfounded.

Operative part:

The application is dismissed.