WRITTEN QUESTION E-1468/98

by Rosemarie Wemheuer (PSE) to the Commission

(13 May 1998)

Subject: Responsibility and civil liability of civil servants

Under Article 73 of the EC's Financial Regulation, authorizing officers who, when establishing entitlements to be recovered or issuing recovery orders, entering into a commitment or expenditure or signing a payment order do so without complying with the Financial Regulation, render themselves liable to disciplinary action and, where appropriate, to payment of compensation. The same applies if they omit to draw up a document establishing a debt or if they neglect to issue recovery orders or are late in issuing them. Similar liability is established in Article 74 for financial controllers and in Article 75 for accounting officers. Under Article 22 of the Staff Regulations, officials may be required to make good, in whole or in part, any damage suffered by the Communities as a result of serious misconduct on their part in the course of or in connection with the performance of their duties.

1. In how many cases has the Commission made use of these legal powers in the last ten years (giving separate figures for each legal basis)?

2. What amounts have flowed back into the Community budget in this way?

3. In how many cases has disciplinary responsibility as well as financial liability been invoked?

4. On what principles does the Commission act, and in particular what role does it allot to the various grades of fault (action with intent, serious negligence, negligence and minor negligence)?

5. How are the departments responsible for imposing these penalties informed of the circumstances which incur the liability of an official? What role is played in this by the Financial Controller and the Court of Justice?

6. What are the rules for the enforcement of the above-mentioned standards and their uniform application to all officials regardless of their rank or position?

7. Am I right in assuming that, in claiming compensation in such cases, the relevant department acts with complete independence and without fear or favour?

Answer given by Mr Liikanen on behalf of the Commission

(7 July 1998)

During the last ten years, Article 22 of the Staff Regulations and Articles 73, 74 and 75 of the Financial Regulation(1) have not been used as a basis for recovering amounts for the Community budget from Commission officials and other members of staff. The Commission has used the redress procedures available in the Belgian courts, bringing partie civile proceedings and subsequently actions for damages in the civil courts.

Articles 87, 88 and 89 of the Staff Regulations acknowledge that there are varying degrees of seriousness in misconduct leading to disciplinary measures, but they do not lay down the criteria to be taken into account in order to determine the seriousness. This leaves the appointing authority with room for discretion.

The Financial Controller has no specific role in such cases, but he must act in accordance with the Financial Regulation, and in particular Articles 28, 29, 36, 37, 38, 39 and 47.

The facts are reported to the appointing authority in different ways: through the immediate superior, an inquiry by the Inspectorate-General, the Directorate for the Coordination of Fraud Prevention (UCLAF) or the judicial authorities, or any other legally admissible way; defence rights are always respected. The Honourable Member's attention is drawn to the new second paragraph of Article 76 as it will appear following the 7th round of amendments to the Financial Regulation(2). It provides that "all relevant data or information, including any reports and withholdings of approval by the financial controller, shall be communicated to the authority empowered to initiate the procedure concerning disciplinary and financial responsibility".

The financial controller and the accounting officer are required to report to the Director-General in question and/or the appointing authority any information giving grounds for action under Articles 73-75 of the Financial Regulation and Articles 22, 87, 88 and 89 of the Staff Regulations.

The rules governing the disciplinary procedure are contained in Title VI, Disciplinary measures (Articles 86 to 89) and Annex IX, Disciplinary proceedings, of the Staff Regulations and Articles 49, 50, and 50(a) of the Conditions of Employment of Other Servants in the case of temporary staff and Articles 76 and 77 in the case of auxiliary staff.

The answer to the Honourable Member's last question is yes.

(1) OJ L 356, 31.12.1977.

(2) COM(97) 542 final.