JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

18 June 1996

Case T-293/94

Juana de la Cruz Vela Palacios

v

Economie and Social Committee of the European Communities

‛Officials — Admissibility — Act adversely affecting an official — Intermediate assessment report — Duty of loyalty and cooperation — Disciplinary measure’

Full text in French II-893

Application for:

annulment of the decisions of the Secretary General of the Economic and Social Committee of 6 December 1993 and 22 June 1994 reprimanding the applicant by way of a disciplinary measure and rejecting the complaint against that measure, and annulment or withdrawal of the assessment report of 5 July 1993 drawn up by the applicant's former superior.

Decision:

Partial annulment.

Abstract of the Judgment

On 26 October 1993, the applicant, an official of the Economic and Social Committee of the European Communities (ESC), refused to acknowledge receipt of a note of 4 October 1993 addressed to her by the Secretary General of the ESC, informing her of an ‘assessment note’ of 5 July 1993 on the quality of her work drawn up by her former superior. The note of 4 October 1993 gave the applicant 20 days in which to make any comments on the ‘assessment note’. The applicant did not avail herself of that opportunity and the Secretary General of the ESC therefore informed her by letter of 17 December 1993 that the ‘assessment note’ would be placed on her personal file to be taken into consideration by the new reporting officer, should he find it necessary to do so, when preparing the next periodic report.

In view, inter alia, of the applicant's refusal to acknowledge receipt of the note of 4 October 1993, disciplinary proceedings were initiated. On 16 November 1993, the applicant was heard. On 18 November 1993, counsel for the applicant submitted written observations, which were rejected by the ESC as being out of time. On 6 December 1993, the Secretary General of the ESC reprimanded the applicant by way of a disciplinary measure. That decision, notified on 14 December 1993, was the subject of a complaint submitted on 11 March 1994 and rejected on 22 June 1994.

Admissibility

The Court notes that only acts producing binding legal consequences likely to have a direct and immediate effect on the applicant's interests by significantly changing his or her legal situation may be the subject of an action for annulment. In the present case, the intermediate nature of the contested report, reflected inter alia by the fact that its content did not have to be taken into consideration by the reporting officer preparing the next report unless he found it necessary to do so, means that it could not have a direct and immediate effect on the applicant's interests. Moreover, it is not for the Court to issue directions to the Community institutions. It therefore has no authority to order that the report at issue be removed from the applicant's personal file. However, in so far as the applicant is seeking to have that report removed from her personal file, her complaint and action constitute an application for the annulment of the defendant's act in deciding to place the report on the applicant's personal file. That decision constitutes a definitive act on the part of the administration, the legality of which may be reviewed by the Court (paragraphs 22 to 24).

See: T-558/93 Diichs v Commission [1994] ECRSC II-837, para. 36; T-586/93 Kotzonis v ESC [1995] ECRSC II-203, para. 28; T-496/93 Allo v Commission [1995] ECRSC II-405, paras 31 and 32

Substance

The inclusion of the report in the applicant's personal file

Subparagraph (a) of the first paragraph of Article 26 of the Staff Regulations provides that the personal file of an official is to contain all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct. The purpose of that provision is to guarantee an official's right to a fair hearing by ensuring that decisions taken by the administration affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file. In the present case, the report at issue may serve as a basis for drawing up the applicant's next periodic report. In the light of the abovementioned principle, the defendant institution is therefore required to place that report on the applicant's personal file (paragraphs 36 to 38).

See: T-82/89 Marcato v Commission [1990] ECR II-735, para. 78; T-547/93 Lopes v Court of Justice [1996] ECRSC II-185, para. 80

The disciplinary measure

The Court notes that in cases where a disciplinary measure is imposed on an official, the statement of the reasons for the decision must specify the acts which the official is found to have committed and the considerations which have led the appointing authority to impose a particular penalty. In the present case, the disciplinary decision cites only the applicant's refusal to acknowledge receipt of the note designed to pass on the intermediate assessment report (paragraphs 40 to 41).

See: T-12/94 Dąffix v Commission [1995] ECRSC II-233, para. 33

The purpose of the third paragraph of Article 26 of the Staff Regulations is to ensure that officials actually receive all documents concerning them. In refusing to acknowledge receipt of the document at issue, the applicant was not failing to comply with a requirement under the Staff Regulations but was merely, at most, forgoing a right, conduct which cannot have an adverse effect on the proper functioning of the administration (paragraph 42).

The first paragraph of Article 11 and the first paragraph of Article 21 of the Staff Regulations state that all officials owe a duty of loyalty and cooperation to the institution to which they belong and to their superiors. The duty of loyalty includes an obligation on the part of the official to refrain from any conduct detrimental to the dignity of and the respect due to the institution and its authorities. In the present case, the disloyal attitude the applicant is alleged to have shown must be assessed in the light of the fact that it was not the normal administrative practice of the institution to issue documents such as that with which she was confronted. In view of the exceptional nature of the defendant institution's action with regard to the applicant, her refusal cannot be described as conduct detrimental to the dignity of and the respect due to the institution and its authorities (paragraph 43).

See: T-146/89 Williams v Court of Auditors [1991] ECR II-1293, para.72

Operative part:

The decision of the Economic and Social Committee of 6 December 1993 reprimanding the applicant by way of a disciplinary measure, and the decision of the Economic and Social Committee of 22 June 1994 rejecting the applicant's complaint against the decision of 6 December 1993, are annulled.

The remainder of the application is dismissed.