JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

28 June 1996

Case T-500/93

Y

v

Court of Justice of the European Communities

‛Officials — Actions for annulment — Disciplinary proceedings — Right to a fair hearing — Evidence of witnesses — ‘Legitimate response’ — Defence of justification — Mitigating circumstances — Statement of reasons — Actions for damages — Nonmaterial damage’

Full text in Portuguese II-977

Application for:

annulment of the decision of the Court of Justice of 28 September 1992 deferring the applicant's advancement to a higher step for two years as a disciplinary measure and for compensation for the nonmaterial damage claimed to have been suffered by the applicant.

Decision:

Decision annulled and remainder of application dismissed.

Abstract of the Judgment

The applicant, an official in Grade LA 6 at the Court of Justice, was employed as a lawyer-linguist in one of the language divisions of the Translation Directorate.

By memoranda of 4 March, 15 April and 8 May 1991, the Director of Translation requested the opening of disciplinary proceedings against the applicant. By memorandum of 3 July 1991, the President of the Court of Justice referred the matter to the Disciplinary Board with a view to the opening of disciplinary proceedings against the applicant.

The Disciplinary Board found that the applicant (i) in the course of an altercation on 7 February 1991 accused his Head of Division ‘publicly and in a loud voice of having committed several crimes of fraud or corruption’ and (ii) ‘reiterated and enlarged upon those accusations, adding expressions offensive for both his Head of Division and the Director of Translation, in his observations on his staff report for the period from 1 January 1989 to 31 December 1990’. The Disciplinary Board considered that the tone and language used by the applicant were unacceptable and further found that the applicant had never denied the truth of the charges against him.

The Disciplinary Board also rejected the applicant's requests for certain witnesses to be heard with evidence of mitigating circumstances in his favour and for a confrontation to be held between him and his Head of Division. On 15 September 1992, the Disciplinary Board proposed that he should be reprimanded as a disciplinary measure.

By decision of 28 September 1992, the appointing authority deferred the applicant's advancement to a higher step for two years as a disciplinary measure. On 11 January 1993, the applicant submitted a complaint against that decision. The complaint was rejected.

The claim for annulment

Infringement of the right to a fair hearing

Since the truth of the charges found against the applicant is not denied, it must be considered whether the Disciplinary Board's refusal to accede to his request that witnesses called by him should give evidence may have infringed his right to a fair hearing, in so far as such evidence might have made it possible to establish circumstances either rendering the conduct with which he was charged totally legitimate (defence of justification, legitimate response) or mitigating its wrongfulness in the context of the disciplinary rules governing officials of the European Communities (paragraph 42).

Whilst the second paragraph of Article 4 of Annex IX to the Staff Regulations of Officials of the European Communities provides that an official charged may call witnesses, it is none the less for the Disciplinary Board to assess whether the proposed evidence is relevant to the subject-matter of the proceedings and whether it is necessary to hear the witnesses called (paragraph 43).

See: 35/67 Van Eick v Commission [1968] ECR 329

In view of the questions which the applicant wished to put to the witnesses, the Disciplinary Board cannot be considered to have exercised its discretion wrongly when it considered that those questions were irrelevant or superfluous for the puipose of enabling it to deliver its opinion, since the documents in the disciplinary proceedings contained sufficient evidence, both concerning the charges against the applicant and in support of his arguments in defence. One of those questions did, however, concern the charges made against the applicant in the disciplinary proceedings brought against him. In excluding that evidence, the Disciplinary Board stated that it was not necessary to inquire into that point since the contradictions between the versions given by the only two persons present - the applicant and his Head of Division - would make it impossible to reconstitute the exact sequence of events and since it was not denied that at the end of the altercation the applicant had accused his Head of Division of having committed several crimes of fraud or corruption (paragraphs 45 to 48).

The first reason given by the Disciplinary Board for excluding the evidence was that the charges against the applicant were not contested; the evidence he wished to call related, however, not to whether he had or had not made such accusations against his Head of Division - and he admits that he did - but to facts immediately prior to those accusations or forming part of the overall context in which he made them, in particular to the provocation and intimidation to which he claimed to have been subjected by his Head of Division and which would thus have been a mitigating factor in his favour. Consequently, while the contradictions between the versions given by the two main protagonists in the incident — the applicant and his Head of Division — might possibly have constituted grounds for considering a confrontation between the two to be superfluous, it could not be used by the Disciplinary Board as a reason for casting doubt on the relevance of hearing evidence from a witness whose office was next to that of the Head of Division, where the incident started (paragraphs 50 and 51).

Nor could the second reason given for rejecting the applicant's request for evidence to be heard - relating to the nature of the accusations against him, which, in the Disciplinary Board's view, were clear from the other documents in the file — justify that rejection in so far as those accusations necessarily involved matters separate from those related to the incident of 7 February 1991. In giving that reason for refusing to hear the witness whom the applicant wished to be called the Disciplinary Board may have been implicitly referring to the appointing authority's power of assessment and comprehensive appraisal with regard to the gravity of the conduct held to be a disciplinary offence and to the choice of the disciplinary measure to impose; that power may only be used, however, if it is applied to all the material facts and to the aggravating or mitigating factors specific to each case, which was impossible in this instance since the Disciplinary Board failed to inquire, prior to its comprehensive appraisal, into the truth and nature of essential facts and circumstances which the applicant claimed would have mitigated his responsibility for his conduct on 7 February 1991. Not having carried out a sufficiently complete inquiry to provide the applicant with all the safeguards intended by the Staff Regulations, the Disciplinary Board was not in a position to exercise, in full possession of the facts, the comprehensive power of appraisal enjoyed by the disciplinary authority in such matters (paragraph 52).

See: 403/85 F v Commission [1987] ECR 645, paras 16, 26 and 30; T-26/89 De Compte v Parliament Į1991] ECR II-781, para. 221

Finally, the irregularity of the Disciplinary Board's failure to hear the witness whom the applicant wished to be called cannot be cured by the fact that the Board accepted, in a general way, that there were mitigating factors in the applicant's favour, by finding that his Head of Division had adopted a provocative attitude and that certain of his allegations concerning the internal operation of the service were not unfounded. Since, by accepting such mitigating factors in the applicant's favour, the Disciplinary Board considered that his responsibility was ‘greatly mitigated’ and since it therefore proposed that he should be reprimanded as a disciplinary measure, it is not impossible that if it had heard the evidence which the applicant wished to be called it might have found that the provocation to which he had been exposed during the incident on 7 February 1991 was of such a kind and degree that his responsibility in that incident should be considered yet further mitigated (paragraph 53).

Whilst the appointing authority has in principle the power, distinct from that exercised by the Disciplinary Board in the same regard, to assess the extent to which the applicant's responsibility is mitigated and subsequently to choose the disciplinary measure which it considers appropriate for the disciplinary offences found against him, its determination of the measure to be imposed must nevertheless be based on a comprehensive appraisal of all the material facts and the aggravating or mitigating factors specific to the case. Since it did not have the evidence on the incident on 7 February 1991 which the applicant had wished to call, the appointing authority did not have all the factual evidence necessary to determine the proper degree of partial mitigation of responsibility in the light of the mitigating factors relied on by the applicant in relation to that incident. The appointing authority therefore could not decide to impose a more serious disciplinary measure on the applicant (paragraph 56).

See: 46/72 De Greef v Commission [1973] ECR 543, at p. 556; 228/83 F v Commission [1985] ECR 275; 403/85 F v Commission, cited above, paras 18 and 26; De Compte v Parliament, cited above, paras 220 and 221

The claims for compensation

Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case it is for the person concerned to submit to the appointing authority, within the prescribed time-limits, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (paragraph 64).

See: T-36/93 Ojtia v Commission [1995] ECRSC II-497

However, where there is a direct link between an action for annulment and an action for damages, the action for damages is admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the request (paragraph 66).

See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841; Ojha v Commission, cited above

With regard to the nonmaterial damage which the applicant claims to have suffered as a result of pressure, threats and intimidation by his Head of Division, and of the alleged failure of the administration to put an end thereto, the claims for compensation relate not to damage arising solely out of the single act whose annulment is sought here but from a series of wrongful acts and omissions alleged to have been committed by the defendant institution. The administrative procedure preceding the introduction of those claims for compensation should therefore necessarily have commenced with a request by the applicant for the appointing authority to compensate the alleged nonmaterial damage (paragraph 68).

See: Cámara Alloisio and Others v Commission, cited above; T-54/92 Schneider v Commission [1994] ECRSC II-887; T-79/92 Ditterich v Commission [1994] ECRSC II-907

The claim for the nonmaterial damage alleged to have arisen from the fact that the time-limit for the disciplinary proceedings was exceeded, whilst directly linked to the claim for annulment, must none the less be dismissed as inadmissible since it was first made in the reply, contrary to Article 48(2) of the Rules of Procedure (paragraph 69).

See: T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249

Operative part:

The decision of the Court of Justice of 28 September 1992 deferring the applicant's advancement in step for two years as a disciplinary measure is annulled.

The remainder of the application is dismissed.