#Doc001* - Andreasen vs. EU Commission - JUDGEMENTI have not been able to source this authoratitive Document on the internet in English however the French version can be accessed if you
CLICK HEREThis Document Is It Seems:
THE FULL JUDGEMENT
In the case brought by Marta Andreasen
in Appeal against
The EUropean Commissioners.
You will note the jugement makes the case clear, or would seem to, that Ms.A. did not acquit her duties in line with her Job description and duties as an accountant withing The EU Commission and would seem to indicate that she failed to complete the report that was the basis of her job.
It would seem that Ms.A. was sufficiently incompetent that THEJUDGMENT OF THE COURT OF PUBLIC SERVICE OF THE EUROPEAN UNION (Second Chamber) - not only found against her but made it very clear she had lost her case awarding costs to be paid in full by the parties to the case!
You can make your own conclusion as to how damning you find the Judgement based on reading the entire document below:
JUDGMENT THE COURT OF PUBLIC SERVICE OF THE EUROPEAN UNION (Second Chamber)8 November 2007 (*)
"Public service - Officials - Disciplinary - Disciplinary proceedings - Penalty revocation - Disciplinary Board - Composition - Application of new provisions in time - Article 6 of the European Convention on Human Rights - Respect deadlines of the disciplinary proceedings - Non bis in idem - Proportionality - Motivation "
In the case F 40/05,
APPLICATION brought under Articles 236 EC and 152 EA,
Marta Andreasen, a former official of the Commission of the European Communities, residing in Barcelona (Spain), represented by J. Leclère and J.-M. Verlaine, lawyers,
applicant,
against
the European Commission, represented by MM. J. Currall and G. Wilms, acting as agents, defendant,
THE COURT (Second Chamber),
composed of Mr. S. Van Raepenbusch (Chair), Ms. I. Boruta, Mr. H. Kanninen (Rapporteur), Judges,
Clerk: Mr. S. Boni, director,
seeing the written procedure and following the hearing on 23 November 2006,
offers the following
Judgment
1 By application filed at the Registry of the Court of First Instance of the European Communities on 6 June 2005, Ms. Andreasen asked, notably, for the annulment of the decision of 13 October 2004 by which the European Commission pronounced her dismissal without reducing her pension rights (the decision).
Legal Framework
I - Provisions in force until 30 April 2004
A - Rights and obligations of officials
2 Under Article 11, first paragraph of the Staff of the European Communities, in the version in force until 30 April 2004 (hereinafter the "old statute"), "the staff member must be fulfil their duties and conduct themselves solely with the interests of communities, not to seek or accept instructions from any government authority, organization or person outside their institution.
3 Article 12, first paragraph, the former statute provided that "the official must refrain from any action and, in particular, any public expression of opinions that could undermine the dignity of their function.
4 Article 12, third paragraph, the former statute reads as follows: "If the official is to engage in an outside activity, paid or unpaid, or complete an assignment outside the Communities, they must request authorization from the appointing authority. Such permission is refused either if the assignment is likely to undermine the independence of the official or prejudice the work of the Communities."
5 Article 17, first and second paragraphs of the former statute was as follows: "An official shall exercise the utmost discretion in all matters regarding facts and information coming to their attention in the course of or in connection with the performance of their duties; they shall not, in any form whatsoever, make public any document or information to any person not authorised to be made aware of it. They remain subject to this requirement after leaving the service.
The official must not publish or cause to be published, alone or in collaboration, any text dealing with the work of Communities without the authorization of the appointing authority. This authorization may be refused if the publication is likely to prejudice the interests of the Communities."
6 Under Article 21 of the former statute:
"The official, whatever their rank, shall assist and advise their superiors and is responsible for carrying out the tasks entrusted to them. The official responsible for running a service is accountable to their leaders for the authority conferred on them and execution of orders given by them. [...]
In the event that they consider a received order to be flawed, or if they believe that its execution may result in serious drawbacks, the official must express this, as required in writing, to his supervisor. If it is confirmed in writing, officials must implement it unless this is contrary to criminal law or safety standards."
B – Disciplinary
7 Under Article 86 of the former statute:
"1. Any breach of the obligations to which the officer or former officer is required under this statute, whether intentionally or negligently, shall expose them to disciplinary action.
2. Disciplinary sanctions are:
a) written warning;
b) reprimand;
c) the temporary suspension of the step;
d) the lowering of the step;
e) demotion;
f) removal and, where appropriate, reduction or abolition of the right to retirement pension, although the consequences of this measure shall not affect the rights of civil servants;
g) if the officer has left the service, the total or partial loss, temporarily or permanently, of the right to pension, although the effects of this measure shall not affect the rights of the official.
3. The same fault can give rise to more than one disciplinary measure. "
8 Article 87, second paragraph of the old statute provided that "the other sanctions are imposed by the appointing authority after the disciplinary procedure laid down in Annex IX [c]; this procedure is initiated by the authority vested with the power of appointment, after hearing ".
9 Under Article 88 of the former statute:
"In cases of serious misconduct against an official by the appointing authority, whether a failure to perform its duties or a criminal offence, this can immediately cause the suspension of the author of the misconduct.
The decision suspending the official must specify whether the person retains, for the time they are suspended, the benefit of their remuneration or determine the proportion of the restraint they suffer and cannot exceed half of their basic salary.
The situation of the suspended official should be finally resolved within four months from the date on which the suspension took effect. Where no decision is reached after four months, the person again receives the full remuneration.
[...] "
C - Disciplinary Board
10 Under Article 9 of the former statute:
"1. There shall be established:
a) at each institution:
[...]
- A disciplinary board or several boards of discipline, if the number of officials in places of employment makes it necessary;
[...]
2. The composition and procedures of these bodies are determined by each institution in accordance with the provisions of Annex II.
[...] "
11 Article 4 of Annex II to the former statutes provides, inter alia, that the disciplinary councils are composed of a chairman and four members."
12 Under Article 5, paragraph 1 of Annex II to the former statute:
"The appointing authority designates the presidents of the disciplinary councils each year. They may not, under any circumstances, combine those functions with those of member of the joint commission or committee of reports.
The appointing authority also provides for each board a list containing, if possible, the names of two officials from each grade in each category.
At the same time, the Staff Committee shall transmit to the appointing authority a list of similar nature. "
13 Article 5, paragraph 2, of Annex II to the old statute provided that "the members of the Disciplinary Board shall be of a rank no lower than the official whose case is submitted to the council. "
14 Article 5, paragraph 3, subsections 1 and 2 of Annex II to the former statute stated that "in the five days of the formation of the Disciplinary Board, the official charged may reject one of Board members, except the President; in the same period, members of the Disciplinary Board may claim legitimate excuses. "
15 Article 6, paragraph 1 of Annex II to the old statute provided that "the members of the Disciplinary Board exercise their mandate with full independence."
D - Disciplinary proceedings
16 According to Article 1 of Annex IX of the former statute, "the Disciplinary Board is activated by a report from the appointing authority, which must clearly state the facts and, if necessary, the circumstances in which they were committed; this report is forwarded to the Chairman of the Disciplinary Board, who brings it to the attention of the members of this council and the accused official. "
II - in effect from 1 May 2004
A - Disciplinary
17 Under Article 86 of the Staff Statute of the European Communities, as amended by Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ L 124, p. 1), which entered into force on 1 May 2004 (the "new statute"):
"1. Any breach of the obligations to which the officer or former officer is required under this statute, whether intentionally or negligently, exposes them to disciplinary action.
[...]
3. The rules, procedures and disciplinary measures and the rules and procedures governing administrative investigations are set out in Annex IX. "
B - Disciplinary proceedings
18 Article 3 of Annex IX of the new statute provides that:
"Based on the investigative report, after having communicated all the evidence to the official concerned and after hearing, the appointing authority may:
[...]
c) in case of failure to comply with obligations under Article 86 of the statute,
i) decide to initiate disciplinary proceedings under section 4 of this annex, or
ii) decide to initiate disciplinary proceedings before the Disciplinary Board. "
19 Under Article 5 of Annex IX of the new statute:
"1. A Disciplinary Board, hereinafter referred to as 'council', is established in each institution. At least one member of the board, who may be the chairman, is chosen from outside the institution.
2. The council is composed of a chairman and four members, who may be replaced by alternate members, for cases involving an official of a grade up to AD 13, the council sitting with two additional members belonging to the same function group and at the same grade as the official subject of disciplinary proceedings.
[...]
4. Board members and their alternates are appointed from among officials of grade AD 16 in activity for cases involving officials of grade AD 16 or AD 15.
[...] "
20 Under Article 6 of Annex IX of the new statute:
"1. The appointing authority and the Staff Committee shall each appoint, at the same time, two permanent members and two alternates.
2. The chairman and his deputy are appointed by the appointing authority.
3. The chairman, members and alternates are appointed for a period of three years. However, institutions may provide that members and alternates are appointed for a shorter duration, at least equal to one year.
[...]
5. Within five days after the formation of the council, the official concerned has the right to challenge a member of the board. The institution also has the right to challenge a member of the board.
At the same time, board members may ask to be excused from duty for legitimate reasons and shall withdraw if they are in conflict of interest.
The Chairman of the Board shall, where appropriate, draw new lots to replace the members appointed in accordance with paragraph 4. "
21 Article 8, paragraph 1 of Annex IX of the new statute provides that "the chairman and members of the Board shall be completely independent in the exercise of their functions".
22 Under Article 9 of Annex IX of the new statute:
"1. The appointing authority may impose one of the following sanctions:
[...]
h) revocation with, if necessary, the reduction pro tempore of the pension or withholding, for a fixed period, of the amount of invalidated allocation; the effects of this measure shall not affect the rights of the official. If such a reduction is effected, however, the income of the former official cannot be below the minimum subsistence set out in Article 6 of Annex VIII of this statute, plus, where appropriate, family allowances.
[...]
3. The same fault can give rise to more than one disciplinary measure. "
23 According to Article 10 of Annex IX of the new statute:
"The disciplinary sanction imposed is proportionate to the seriousness of the misconduct. To determine the seriousness of the misconduct and decide on disciplinary sanction to be imposed, it is taken into account:
a) the nature of the misconduct and the circumstances in which it was committed;
b) the extent of damage to the integrity, reputation or interests of the institutions due to misconduct;
c) the degree of intent or negligence in misconduct;
d) the motives behind the official's fault;
e) grade and seniority,
f) the degree of personal responsibility for civil servants;
g) the level of duties and responsibilities of civil servants;
h) the recurrence of the act or misconduct;
i) the conduct of the officer throughout their career. "
24 According to Article 12, paragraph 1 of Annex IX of the new statute, "the council receives a report from the appointing authority, which must clearly state the facts and, where appropriate, the circumstances in which they were committed, including any aggravating or mitigating circumstances."
25 Under Article 18 of Annex IX of the new statute, it is expected that, "on sight of the documents before the council and given the written or verbal declarations possible, and the results of the survey on which it was conducted, the board shall deliver, by a majority, reasoned opinion upon the facts complained of and, where appropriate, upon the sanction to which the facts should give rise; this opinion is signed by all members of the board; each member may adjoin to the opinion a divergent opinion; the council forwards the notice to the appointing authority and the official concerned within two months from the date of receipt of the report of the appointing authority, provided that this period is appropriate to the complexity of the matter; when the survey is conducted at the initiative of the council, the period is four months if it matches the complexity of the case."
26 Article 22, paragraph 1 of Annex IX of the new statute provides that "after hearing the official, the appointing authority takes its decision in accordance with Articles 9 and 10 of this annex, within two months from receipt of the notice board; this decision must be substantiated."
27 Article 24 of Annex IX of the new statute reads as follows:
"1. The decision suspending the official must specify whether, during the suspension period, the person retains full remuneration or if their salary is docked by an amount that should be determined by the same decision. The amount paid to the official may in no case be less than the minimum subsistence set by Article 6 of Annex VIII of this statute, plus any family allowances payable.
2. The situation of a suspended official must be definitively settled within six months from the date on which the suspension took effect. Where no decision is reached within the deadline of six months, the person receives again full remuneration, subject to paragraph 3.
3. The deduction can be maintained beyond the period of six months referred to in paragraph 2, when the official is prosecuted for the same facts and is detained because of these lawsuits. In this case, the officer does not receive full of remuneration until the court has ordered the release.
4. When the final decision does not include any penalty or sanction of a written warning, reprimand or suspension of the temporary step, the person is entitled to reimbursement of deductions from their salary under paragraph 1, plus, in the absence of punishment, compound interest at the rate specified in Article 12 of Annex XII."
Facts at the origin of the dispute
28 The applicant has a degree in accounting and economics. In 2001, she submitted her application for the vacant post of Director of the “Budgetary Execution” Directorate of the Directorate General (DG) “Budget” of the Commission.
29 The vacancy notice published in the Official Journal of the European Union of 29 May 2001 (OJ C 154 A, p. 1) indicated that the post included the accounting function of the Commission.
30 According to the terms of this notice:
"One of the essential tasks will be, as an accountant of the Commission, to ensure proper management of the Commission’s accounts and enforcement in conformity with accounting principles presently in force in international and public organizations. They will also be responsible for contacts with the Court of Auditors [of the European Communities] under the [statement of assurance] and the financial report. To ensure the implementation of payments, they will have contacts with the banking network and coordinate the bidding for the selection of banks of the Commission. A solid management experience of a large number of staff and financial management or accounting is required."
31 On 11 December 2001, the Commission appointed her to the post of Director of the Directorate for the Execution of the budget of DG Budget in Brussels, with effect from 1st January 2002. By decision of 10 January 2002, she was designated as accounting officer, also with effect from 1 January 2002.
32 On January 18 2002, a meeting was held between Mr. Director General of DG Budget, the applicant and other officials of the same DG, to discuss the objectives of the modernization program of accounts. Among them, it was expected that the applicant prepare and present a paper on modernization of accounts (hereinafter the "communication"). In this regard, it was understood that an item entitled "Communication on the modernization of the accounting system" would be put on the agenda of a meeting of the Commission scheduled for 27 March 2002. The communication was to be ready by that date.
33 In a letter to MM, dated 13 February 2002, she denounced the weaknesses and inconsistencies discovered by her in the accounts of the Communities, in particular the unreliability of the system to manage the finances.
34 At the end of February 2002, noting that he had not received a preliminary draft of communication, MM proposed to postpone the discussion until a meeting to be held in May 2002.
35 The applicant, considering that a meeting in May would be too late, suggested that the first version of the communication should be discussed at the end of April 2002. However, as there was insufficient time to prepare for a meeting in May, the cabinet of Mme Schreyer, a member of the Commission, gave instructions that this point of the agenda be deferred until the second semester.
36 The applicant received a letter, dated 5 March 2002, from M.L.C., a director at the Court of Auditors, in view of a meeting with them to be held the following day, on the lack of a reliable accounting system.
37 In March 2002 the applicant requested from Mme Schreyer the organisation of a meeting to express her views on the unreliability of the Commission's accounts established for the year 2001.
38 A meeting was held in the vicinity of 18 March 2002 between Mme Schreyer, GM and the applicant. According to the Commission, the purpose of the meeting was to follow the progress of the communication.
39 On 20 March 2002, she asked MM that a cash audit be carried out by the Internal Audit Service (hereinafter the "SAI"). By note of 8 April 2002, MM agreed to this suggestion. The Director General of the SAI agreed to the audit by email of 11 April 2002 and gave confirmation by a note addressed to Mr. and dated 14 May 2002.
40 By a note on 5 April 2002, she sent MM a draft communication.
41 On 8 April 2002, the contents of the note of April 5 2002 were discussed at the regular meeting of the directors of DG Budget.
42 In conclusion to the discussion of 8 April 2002, MM asked the applicant to add new elements to the draft notice.
43 On April 15 2002, she sent a note to Mme Schreyer, in which she insinuated that MM had demonstrated inaction, that the person charged with carrying out the requested audit was not independent and where she stated that she would not now sign any document until an independent audit of cash was directed by the Court of Auditors and a reliable accounting system was in place.
44 On April 16 2002, she sent a new note to Mme Schreyer, entitled "The Accounting System", presented as following the meeting of 18 March 2002. It was attached to the draft communication sent to MM on April 5 2002.
45 On April 19 2002, she wrote another note, again intended for Mme Schreyer, under which she accepted that the audit be conducted by the IAS and renounced the signing of official documents, on condition at all times that she was not found responsible for any anomalies.
46 On April 22 2002, she attended the regular meeting of the directors of DG Budget.
47 On the same April 22 2002, MM sent her a note in response to that of April 16 2002, sent to Mme Schreyer by the complainant. First, it reminded her that it was good administrative practice to submit any document to (MM) and not directly to Mme Schreyer. Secondly, the note from MM contained several suggestions to enable the applicant to continue the development of communication.
48 On the same 22 April 2002, (Ms Andreasen) sent a note to all Directors General of the Commission, informing them of imperfections in the accounting system.
49 In a handwritten note addressed to MG, chef de cabinet to Mme Schreyer, MM expressed exasperation in these terms:
"It's the straw that breaks the camel's back. It anticipates a decision by the Commissioner on a project that has not been discussed, and that does not support the Director General, not to mention the picture painted of the situation ... "
50 On April 25 2002, the applicant sent a note to MM, suggesting that the Court of Auditors, the financial controller and the SAI had expressed concern about the reliability of the accounting system in previous years.
51 By a note on 26 April 2002, MM addressed all general managers, to respond to the note that had been sent by the applicant on April 22. He asked them to consider this note as null and void.
52 On the same 26 April 2002, a meeting was held between Schreyer and the applicant.
53 On 29 April 2002, MG sent a note to all chefs de cabinet of the Commissioners. Attached was the letter dated April 26 by which MM had responded to the note she sent to all general managers, and said that Mme Schreyer fully endorsed the contents of the letter from MM.
54 On April 30 2002, the applicant sent a new note to Mme Schreyer in which she again shared her concerns about the accounting system, indicating however that an audit would be conducted by the IAS. The applicant specified that she would sign documents only on the conditions specified in her letter dated April 19.
55 On 7 May 2002, Mme Schreyer sent a note to the applicant, in which she expressed her disapproval of the way in which (the applicant) was acting. In the note, she invited the applicant to a meeting to be held the following day.
56 On the same May 7 2002, the applicant sent a letter to the Chairman and two Vice-Chairmen of the Commission, in which she mentioned, firstly, the risk of fraud and error introduced by the accounting system; secondly, the lack of audit over the past ten years; and stressed, finally, that she had asked her superiors that an audit be conducted by the IAS.
57 On May 13 2002 a meeting took place between GM and the applicant, to finalize the draft notice.
58 On the same 13 May 2002, the applicant met with MR, Director General of DG Personnel and Administration. According to the Commission, it had indicated to her that sending a note to the president and two vice-chairmen of the Commission was incorrect and that it was difficult to imagine that a commissioner could continue to work with an official who adopts such behaviour.
59 On May 14 2002, Mme Schreyer was informed of the sending of the note from the applicant to the president and two vice-chairmen of the Commission.
60 On that same May 14 2002, MG informed several members of the Commission about the work already undertaken within the institution, before 2002, to modernise its accounts.
61 On May 15 2002, Mme Schreyer sent the applicant a new note expressing her surprise to have learned of the note that the applicant had sent to the president and two vice-chairmen of the Commission and of not having been kept informed at the meeting on May 8. Mme Schreyer also reminded the applicant that she had still not received the expected communication on accounting modernization.
62 On the same 15 May 2002, the applicant replied to Mme Schreyer that she had omitted to submit to her the memorandum sent to the president and two vice-chairmen of the Commission. She also gave explanations about the delay in sending communication. The draft notice was attached to the letter.
63 By note on 16 May 2002, MM told the applicant that he had to cancel the meeting scheduled on May 15, having not received any draft communication on the evening of May 14 as had been agreed at their meeting on May 13. He also noted that the draft notice attached to the note sent to Mme Schreyer on May 15 had changed little since the submission of the draft on April 5; the items discussed at the meeting on 13 May had not been taken into account.
64 On the same May 16 2002, electronically, and on May 17 following a written note, the applicant replied to MM that she had introduced his comments into the draft communication.
65 The applicant sent a letter, dated 22 May 2002, to the President of the Court of Auditors and to the members of this institution with the responsibility of the report on the annual accounts. The contents of the letter included the bulk of the note addressed to the President and Vice-Presidents of the Commission. An additional allegation contained therein, however, that "it [was] also unacceptable that the Director General budget supports a new Financial Regulation which increases the risk of error and fraud whereas it disrespects (her) proposals of accountancy reform.”
66 On the same May 22 2002, the Commission took the decision to withdraw her accounting function at the institution.
67 Also on May 22 2002, Mme Schreyer sent a letter to the applicant outlining the unacceptability of the different notes of the latter and also that her behaviour was contrary to the dignity of her office. Mme Schreyer also noted that the criticism of MM was unfounded and reminded her that she had still not received a draft communication. Mme Schreyer concluded that the time had come to relieve the applicant of her accounting functions and summoned her to a meeting on 23 May 2002 in the presence of Mr Kinnock, vice-chairman of the Commission.
68 By note dated 23 May 2002, the applicant responded to Ms. Schreyer, saying that the accounting functions could lead to voicing criticism, such as by informing the Court of Auditors.
69 During the meeting on 23 May 2002, it was brought to the attention of the applicant that she would not be accountable to the Commission any longer and that, given the deterioration of relations between her, Mme Schreyer and MM, the Commission should assign her to another job corresponding to her grade, by virtue of Article 7 of the old statute.
70 On May 24 2002, Mme Schreyer wrote and signed a note to the attention of the applicant, designed formally to inform her of the decision to withdraw the function of accounting officer, effective the same day.
71 On the same 24 May 2002, the applicant wrote a letter to several members of the European Parliament in terms comparable to those letters sent to President and Vice-Presidents of the Commission and the president and members of the Court of Auditors, calling for an investigation to be carried out by a parliamentary committee. In that letter, she noted, moreover, that the intention of Mme Schreyer was to promote an accounting system that would increase the risk of fraud.
72 Mme Schreyer, informed of the letter the same day, sent a memo to members of the Parliament who had been recipients of the letter, in response to accusations by the applicant.
73 Mme Schreyer also convened in her office on May 24 2002, to discuss the note addressed to parliamentarians.
74 By e-mail of 27 May 2002, Mme Schreyer reminded the applicant that any external at DG Budget should be authorized in advance by MM.
75 A meeting between Ms. Schreyer and the applicant was held on 27 May 2002 to notify the decision to withdraw the function of the Commission's accounting function and to remind her of the duty to refrain from any external communication at the Commission without prior authorization from MM.
76 On May 28 2002, the applicant wrote, electronically, to members of the Commission. On the one hand, she challenged the decision by the Commission against her and, secondly, she stated that reform of the accounting system being followed by MM and Mme Schreyer had the effect of making the system even more vulnerable.
77 On the same May 28 2002, the President of the Court of Auditors sent Mme Schreyer a letter he had sent the same day to Mme T., a member of Parliament and Chairperson of the Committee on Budgetary Control, about an article published on 23 May 2002 in the magazine European Voice and the note of the applicant to the Court of Auditors. He indicated to Mme Schreyer that the Court of Auditors was informed of problems and mentioned that it had not conducted a specific audit yet.
78 In a note of 29 May 2002, Mme Schreyer told the applicant that she was making unsubstantiated accusations and urged her to withdraw or to produce evidence within 48 hours.
79 On May 30 2002, the applicant replied to the note of 29 May electronically.
80 On May 31 2002, Mme Schreyer sent the applicant a note in response to that of May 7 that she had sent to the president and two vice-chairmen of the Commission.
81 With effect from 3 June 2002, the applicant was transferred to DG Personnel and Administration as Senior Advisor.
82 On 6 June 2002, the applicant sent an email to a group of European parliamentarians of Spanish nationality in which she reported that the new accounting system resulted in increased risk of fraud and demanded to be heard by Parliament. She also indicated that she had identified many anomalies, she had informed her superiors of the situation and possible solutions and, in response, her office had been withdrawn by Mr Kinnock and Mme Schreyer.
83 On June 10 2002, the new Director General of the applicant, MR, sent a note in which he ordered her not to make public statements without prior authorization. This order was again notified by letter of 1 August 2002.
84 In a note from Mr Kinnock on 2 July 2002, she was informed of the disciplinary proceedings against her and the reasons which led to them. It was also specified that, in accordance with Article 87 of the former statute, MC, Director General of the Office of Official Publications of the European Communities, was appointed to hear (the proceedings).
85 On July 23 2002, a new note from Mr Kinnock told her she would be heard by MC upon the possibility of suspending her from her new position, in accordance with Article 88 of the former statute.
86 On 1st August 2002, the applicant was in London, giving an interview to a news programme on BBC Radio and then attending a press conference in an annex of the British Parliament in Westminster.
87 On the morning of 2 August 2002, two officials of the Office of Investigation and Disciplinary Commission (IDOC) visited the office of the applicant to submit a note requesting a hearing on 7 August 2002, with a view to possible suspension. The applicant refused to accept the note and was no longer in her office in the afternoon when an IDOC officer tried again to deliver the note.
88 The Commission then tried to send notification of the invitation to the applicant in Barcelona, the city where she is domiciled, via a messaging service and notary. Both ways failed.
89 On August 23 2002, MC sought to contact the applicant electronically on return from vacation. The next day, she replied to MC that, having been appointed by Mr Kinnock, he was not impartial and that she would accept a hearing that public and in the presence of journalists.
90 In an email dated 26 August 2002, the applicant gave MC her opinion on the possibility of suspension, arguing that such suspension was possible only in cases of misconduct.
91 By note from Mr Kinnock, on the same 26 August 2002, the subject of the disciplinary procedure was expanded, given new objections sent to the applicant (her absence from duty on 1 August without authorisation and public statements without authorization). By that note, MC was given the remit to conduct the hearing of the applicant upon these two new complaints as well.
92 On 27 August 2002, MC gave Mr Kinnock a note in which he gave his opinion on the suspension of the applicant.
93 On 28 August 2002, the Commission adopted the decision to suspend the applicant from office. A note was also sent the same day to her, informing her of her suspension and her rights and obligations for the duration of the suspension.
94 On 22 September 2002, the applicaznt sent an email to a group of European parliamentarians of Spanish nationality, to which she attached copies of an e-mail dated 6 June 2002, which was also addressed to these same parliamentarians.
95 On October 3 2002, the applicant gave another interview to the BBC.
96 On 19 November 2002, the applicant was heard under the disciplinary procedure, as provided for in Article 87 of the former statute.
97 On 23 April 2003, MC delivered his first report, which concluded that the applicant had breached her statutory obligations.
98 In a memo from Mr Kinnock to MC, on 6 November 2003, new complaints were made against the complainant. As a result of this note, a new hearing of the applicant was held on 19 February 2004.
99 On 3 March 2004, MC issued a second report in which he reached conclusions similar to those he presented in the first report, the subject of his note of 23 April 2003.
100 In March 2004, the Commission decided to establish a disciplinary board.
101 On April 6 2004, the Disciplinary Board was summoned by the appointing authority (hereinafter the "appointing authority"). The opinion of the Disciplinary Board was given on 10 September 2004.
102 Previously, the applicant had submitted, on 5 August 2004, a complaint about the appointing authority to challenge the application of the new statute to the disciplinary proceedings initiated against her. The appointing authority had rejected the complaint by decision of 30 August 2004.
103 Through the decision, the applicant was relieved of her position without loss of pension rights, following the recommendations of the Disciplinary Board.
104 On 12 November 2004 the applicant brought a claim under Article 90, paragraph 2, of the new statute, against the decision.
105 On 15 March 2005, the appointing authority rejected that claim.
Proceedings and conclusions of the parties
106 The present action was originally recorded at the Registry of the Court of First Instance under number T 219/05.
107 By order of 15 December 2005, the Court of First Instance, pursuant to article 3, paragraph 3 of Decision 2004/752/EC, Euratom, 2 November 2004 establishing the Civil Service Tribunal European Union (OJ L 333, p. 7), referred this matter to the Tribunal. The appeal was registered at the latter under number F 40/05.
108 By letter of 14 July 2006, the Tribunal asked the Commission, under Article 64, paragraph 3, subsection d) of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to the Tribunal, under Article 3, paragraph 4, of decision 2004/752, until the entry into force of the Rules of Procedure of the latter, to produce all documents or decisions relating to the establishment of the Disciplinary Board before the case of the applicant. By letter received by the Registry of the Court on September 15 2004, the Commission complied with that request.
109 The applicant claims that the Tribunal:
- Primarily:
- Annul the decision and, therefore, return her functionary job with the same rank and grade;
- Order the Commission to pay compensation equivalent to the sum of wages owed since the taking effect of the decision, up to the date of the ruling by the Tribunal, for the financial loss suffered by her, namely 12 300 euros per month;
- Order the Commission to pay a sum of 1,000,000 euros as compensation for moral damage suffered;
- Alternative:
- If extraordinarily, the Court should consider that there is no reason to grant her application, order the Commission to pay a lump sum equivalent to the sum of:
- All of her wages to fall until the age of 65 years (official pension age);
- The contribution corresponding to its pension funds;
- 1,000,000 euros in compensation for moral damage.
- Order the Commission to pay a sum of 12,000 euros in costs incurred by her and not included in costs;
- Order the Commission to pay all the costs and expenses.
110 The Commission contends that the Court:
- Reject the application;
- Decide on an appropriate order as to costs.
In law
I – On the application for annulment
111 Firstly, it should be noted that the former statute, just as the new statute, gives the appointing authority and the disciplinary board exclusive responsibility for implementing a disciplinary procedure. Nothing in the disciplinary regime as established by the former statute, as by the new statute, allows that such a procedure may be repeated by the Tribunal on its own initiative and regardless of the means validly raised by the applicant. Even with regard to disciplinary matters, the control of legality exerted by the Community judge within the framework of the dispute in cancellation is thus limited to check, with the only regard being the legality of the course of the disciplinary proceedings as well as the reality, the range and the gravity of the facts retained by the AIPN for purposes of the attacked disciplinary action (see, in effect, the Court of First Instance of 4 May 1999,
Z / Parliament, T 242/97, SC p. 77 and IA II 401, paragraph 19).
112 In light of these considerations it is necessary to examine how the applicant supports her appeal. She presents nine pleas, which are divided into two distinct groups.
113 Under the first group of pleas against the disciplinary procedure, the applicant alleges violation of Article 6, paragraph 1, of the European Convention on Human Rights and Fundamental Freedoms (hereinafter "ECHR") and in any event, the violation of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute.
114 In the second group of pleas against the decision, the applicant alleges violation of articles 9, 10, 22 and 24 of Annex IX of the new statute and Article 6 of the ECHR.
A - The first group of resources
115 It is necessary to consider on the one hand, the plea of violation of Article 6, paragraph 1 of the ECHR and then, on the other hand, alleged breach of Article 8 Paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute.
1. The plea alleging breach of Article 6, paragraph 1 of the ECHR
a) Arguments of the parties
116 The applicant claims, relying, in part, on the EU Treaty, the Charter of Fundamental Rights of the European Union, the draft European constitutional treaty, and secondly, on the jurisprudence of the Court of Justice of European Communities, the European Court of Human Rights and Administrative Tribunal of the International Labor Organization, that the human rights recognized by the ECHR are binding on the EU and its institutions.
117 The applicant also indicates that the European Court of Human Rights submits disciplinary procedures to compliance with the fundamental principles enshrined in the ECHR. To support this assertion, she refers to the opinion of the European Commission of Human Rights in the case “Juhel e.a.c. France”, report of 1 July 1998.
118 The applicant states that, moreover, the national laws of Member States integrate the disciplinary proceedings in certain fundamental principles enshrined in the ECHR.
119 Continuing her argument, the applicant believes it is therefore legitimate to require impartiality and fairness throughout the disciplinary procedure, especially since when it has to decide disciplinary action against the members of its staff, the Commission should be considered a real jurisdiction subject to the principles of the ECHR.
120 The applicant states that, in this case, the college of commissioners who took the decision was made up of all European Commissioners, including Mme Schreyer and Mr Kinnock, who are at the root of the charges against her. She concludes that her accusers are also her judges, the decision was taken in violation of Article 6, paragraph 1 of the ECHR.
121 The Commission stresses that in case law, the disciplinary proceedings before it are not judicial, but administrative, it cannot be described as a "court" within the meaning of Article 6 of the ECHR and therefore this article would not apply to this case. In the system, compliance with Article 6, paragraph 1 of the ECHR would be guaranteed by the possibility of appeal to the Court. So the proceedings before the latter should be conducted in accordance with Article 6 of the ECHR.
b) Findings of the Court
122 The Court has consistently held that fundamental rights form an integral part of the general principles of law which the Court ensures. To this end, the latter is inspired by the constitutional traditions common to the Member States as well as information provided by international instruments concerning the protection of human rights, with which Member States have cooperated or acceded. The ECHR in this context has a special significance (judgments of the Court of 12 June 2003, Schmidberger, C 112/00, Rec. I p. 5659, paragraph 71 of 27 June 2006, Parliament / Council, C 540/03, Rec. I p. 5769, paragraph 35 and 18 January 2007, PKK and KNK / Council, P C 229/05, not yet reported, paragraph 76).
123 Furthermore, Article 6, paragraph 2, EU provides:
"The Union respects the fundamental rights as guaranteed by the ECHR [...] And as they result from the constitutional traditions common to the Member States as general principles of Community law."
124 The right to an independent and impartial tribunal is such a fundamental right. Indeed, individuals should have access to effective judicial protection of the rights they derive from the legal community. This right has been enshrined in Articles 6 and 13 of the ECHR (see judgments of the Court of 15 May 1986, Johnston, 222/84, Rec. P. 1651, paragraph 18; of 25 July 2002, Unión de Pequeños Agricultores / Council, C 50/00 ECR. I-p. 6677, paragraph 39 and April 1, 2004, Commission / Jégo-Quéré, C 263/02 ECR. I p. 3425, paragraph 29) and reaffirmed Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ C 364, p. 1) (Court ruling of 13 March 2007, Unibet, C 432/05, not yet reported, paragraph 37).
125 Under Article 6, paragraph 1 of the ECHR, everyone has the right to have their case put to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which will decide either disputes about their rights and obligations of a civil nature, or the merits of any criminal charge against them.
126 In the first place, it should be noted that the revocation of an official as a disciplinary measure does not identify the characteristics of a decision on a criminal charge within the meaning of Article 6 paragraph 1 of the ECHR (see, Eur. DH, decision Falero Linde v. Spain, 21 June 2000, see also Court of First Instance of 17 October 1991 Account / Parliament, T 26 / 89, Rec. II p. 781, paragraph 94).
127 Secondly, with regard to disputes on a right or duty to civilian objects, it is not necessary to rule on the applicability of Article 6, paragraph 1 of the ECHR to disciplinary proceedings both former statute as the new statute. It must indeed be noted that results from the jurisprudence of the European Court of Human Rights that the initial decision on such disputes is not necessarily subject to the requirements of that provision. Just such a decision could be subject to control by means of an appeal before a court within the terms of that provision (see, in this sense, Eur. ECtHR, Le Compte, Van Leuven and De Meyere of 23 June 1981, Series A, No. 43, item 51). However, in this case, the applicant has not argued that an appeal to the Court does not exercise such a right to an independent and impartial tribunal.
128 This conclusion cannot be challenged by the opinion of the European Commission of Human Rights based on the report relied on by the applicant in paragraph 117 above. Indeed, the considerations presented in this report on the implementation of Article 6, paragraph 1 of the ECHR before the regional council of the doctors of the Ile-de-France and the disciplinary section of the National Council similarly are not relevant here, since the cases reviewed in this report were cases where the appeal before the French Council of State, which was the only legal recourse open against the decisions of the disciplinary section of the National Order of Physicians, was not an "appropriate" and "effective" action (see paragraph 44 of that report by the European Commission of Human Rights which refers to paragraph 38 of the judgment of the ECHR of 20 May 1998, Gautrin eac France, Reports of Judgments and Decisions, 1998 III). However, in this case, unlike the case before the European Commission of Human Rights, matters of law as much as questions of fact may be considered by the Tribunal.
129 It follows that the applicant cannot support, under Article 6, paragraph 1 of the ECHR, that the Disciplinary Board and the College of Commissioners have lacked independence and impartiality, under the meaning of that provision.
130 The plea of violation of Article 6, paragraph 1 of the ECHR should therefore be dismissed as unfounded.
2. The pleas alleging breach of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute
131 Before assessing the merits of these submissions, it is necessary to consider their admissibility.
a) The admissibility of allegations of breach of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute
Arguments of the parties
132 According to the Commission, the applicant has argued in her complaint, neither that the institution should have to take the opportunity to challenge members of the Disciplinary Board, with the option to withdraw, Article 6, paragraph 5, of Annex IX of the new statute, nor that, in violation of Article 5, paragraph 4, of this Annex, members of the Disciplinary Board should have been grade AD 16. Therefore, these services should be declared inadmissible.
133 The Commission also maintains in its rejoinder that the applicant's claim, that Annex IX of the new statute on the formation and training of the Disciplinary Board should be fully applied in this case, is inadmissible because it has not been invoked in the claim.
134 The Commission adds that the question of the applicability in time of the provisions of Annex IX of the new statute had been raised only in the applicant's claim of 5 August 2004 and not that of 12 November 2004. In the first claim, the applicant challenged the decision by the appointing authority to implement the new statute insofar as they were, according to the applicant, less favourable for it than the provisions of the old statute.
135 The complainant said that from reading the complaint of 12 November 2004, it is clear that all the elements contained in its application would be specifically mentioned. She applies in particular, the lack of impartiality of members of the Disciplinary Board.
Findings of the Court
136 The objections to admissibility made by the Commission are based in large part on the same reasoning. They must therefore be considered together.
137 It should first be recalled that the rule of concordance between the complaint and request, pre subsequent demands, under penalty of inadmissibility, a grievance pending before the Court has already been in the pre-litigation procedure, so that the appointing authority has been able to hear criticism that the person makes against the decision (Court of First Instance of 7 July 2004, Schmitt / AER, T 175/03, SC p . IA 211 and II 939, paragraph 42, and the cases cited).
138 This rule is justified by the purpose of the procedure, which is designed to enable an amicable settlement of disputes arising between staff and administration (Court ruling of 14 March 1989, Del Amo Martinez / Parliament , 133/88, Rec. P. 689, paragraph 9; Court of First Instance of 29 March 1990, Alexandrakis / Commission, T 57/89, Rec. II p. 143, paragraph 8). The appointing authority must be clearly informed of the complaints raised by the claimant to be able to propose a possible settlement.
139 It follows that, in actions by officials, the findings presented in front of the Community judge may only contain chief disputes based on the same cause as chief disputes alleged in the complaint, given that these chief disputes can be developed, in front of the Community judge, by the presentation of arguments which do not necessarily appear in the complaint, but which are closely related (judgments of the Court of 20 May 1987, Geist / Commission, 242 / 85 Rec. P. 2181, paragraph 9 of 26 January 1989 Koutchoumoff / Commission, 224/87, Rec. P. 99, item 10, and Del Amo Martinez / Parliament, paragraph 10).
140 In this case, even if the complaint of 12 November 2004 does not specifically mention article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute, it must be noted that the applicant has contested this claim, albeit in general terms, the disciplinary proceedings, including its impartiality in an area that can be understood as encompassing the points covered by the above provisions. The fact that the decision rejecting the claim does not respond specifically to these critical elements, because of the generality of the argument advanced in its claim, does not mean that in this case the argument based on the above provisions, developed in the request and reply, is linked closely to the pleas and arguments raised in the complaint. Moreover, the decision rejecting the claim made specific reference to Article 6, paragraph 5, of Annex IX of the new statute, the appointing authority considers that the applicant has implicitly acknowledged the impartiality of the composition of the board discipline as she did not use her right to challenge, under that provision.
141 On the question of the applicability in time of the new statute, it is important to note that it is intrinsically linked to the review of the legality of the constitution of the Disciplinary Board. Moreover, even though the issue was not addressed explicitly in the complaint of 12 November 2004 and in response to it, the item was discussed by the parties during previous phases of the appeal.
142 On this last aspect, it should indeed be noted from the file that the claims of both parties during the various stages of the procedure were vague, in part, about their position on the question of whether the the old or new statute should apply. As pointed out by the Commission, the applicant has in her claim of 5 August 2004, criticized the application of the new statute. In addition, the Commission, in its reply of 30 August 2004 to this claim, defended the applicability of those provisions by not clearly distinguishing between the procedural and substantive rules. In addition, in its defence, the Commission relied both on the provisions of the old and new statute as regards the formation of the Disciplinary Board.
143 It follows that the pleas of the violation of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute are admissible.
b) The merits of the allegations of violation of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute
Arguments of the parties
144 The applicant submits that from 1 May 2004, the Disciplinary Board was validly constituted under the provisions of the new statute. Therefore, the new provisions are applicable in this case, the Commission should have a Disciplinary Board in accordance with the provisions of the old and new statute, or transfer the case to a board constituted under the provisions of new statute after entry into force. The complainant adds that in the response of 30
August 2004 to its claim of 5 August 2004, the Commission itself was of the view that the new provisions apply in this case.
145 The applicant states that all members of the Disciplinary Board, except one, were of a rank equivalent to her own, in violation of Article 5, paragraph 4 of Annex IX of the new statute. The applicant is a grade A * 15 (corresponding to grade AD 15 since 1 May 2006); members of the Disciplinary Board should have been at grade A * 16 (grade renamed AD 16 since 1 May 2006).
146 Moreover, while Article 6 of Annex IX of the new statute provides that the Commission and members of the Disciplinary Board are to take steps to avoid possible conflicts of interest, neither the Commission nor the members of the Disciplinary Board would have made use of it.
147 In addition, the Commission chose to compose the Disciplinary Board with members of the institution and not outsiders, and Article 5, paragraph 1 of Annex IX of the new statute would give it the faculty to ensure the impartiality of that body. Indeed, only the Chairman of the Disciplinary Board would have been a person external to the Commission, which is not a coincidence because the president did not vote.
148 Finally, the applicant considers that the conditions of impartiality and independence required by Article 8, paragraph 1 of Annex IX of the new statute were not met under the disciplinary procedure. According to the applicant, the fact is that all members of the Disciplinary Board knew the accounting problems highlighted by her, therefore affecting the independence and impartiality of the Board.
149 The Commission argues that as the Disciplinary Board was appointed before 1 May 2004, only the provisions of the old statute should be applied with regard to the constitution and the formation of the council.
150 The Commission notes, moreover, that nothing and no case law supports the idea that members of the Disciplinary Board shall be chosen from outside the institution. Moreover, under Article 5, paragraph 1 of Annex IX of the new statute, it would suffice if the President is a person outside the institution for the disciplinary board to be properly constituted. Moreover, the argument would run that Article 5, paragraph 4 of Annex IX of the new statutes provide that members of the Disciplinary Board, with the exception of the President, shall be chosen among officials of grade AD 15 or 16.
151 In addition, the Commission said that at the time of the establishment of the Disciplinary Board, the provisions of Article 5 of Annex II to the old statute applied, under which members of the Disciplinary Board should be a grade at least equal to that of the official whose case was submitted to the council. Moreover, the applicant never argued during the first meetings of the Disciplinary Board that members should be chosen from outside the institution or that their grade did not meet statutory requirements.
152 Regarding the complaint alleging lack of impartiality of the Disciplinary Board, the Commission stresses that the applicant has no concrete arguments to support her argument and said that she could not prove the existence of any conflict of interest that would have affected the impartiality of the Board.
Findings of the Court
153 The consideration of the merits of the argument, alleging breach of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute requires that we first determine whether these provisions, and not the provisions of the old statute applied in this case.
154 It appears from the pleadings and in particular the opinion of the Disciplinary Board that the question of applicability of the new statute was discussed at the disciplinary proceedings, including the applicant contesting the application of certain procedural provisions of the new statute. The Disciplinary Board and the appointing authority implemented the decision in part with the former statute and, in part, with the provisions of Annex IX of the new statute after the entry into force them. Regarding the formation and composition of the Disciplinary Board, the provisions of the old statute have been implemented.
155 Articles 5 to 8 of Annex IX of the new Regulations on Disciplinary Board, have made some changes to the constitution and composition of the Disciplinary Board. The provisions of the new statute, of which violation is alleged by the complainant, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX, contain rules that are different from those partially under the provisions of Annex II to the old statute applied in this case.
156 Thus, while the old statute contains no similar provision, Article 5, paragraph 1 of Annex IX of the new statute provides that a member of the board at least, who may be the chairman, should be chosen from outside the institution. According to paragraph 4 of the same article, board members are appointed from among officials of grade AD 16 in activity for cases involving officials of grade AD 16 or AD 15, while Article 5, paragraph 2, second paragraph of Annex II to the old statute provided that the members of the Disciplinary Board should be a grade at least equal to that of the official whose case was submitted to the council. Finally, Article 6, paragraph 5, of Annex IX of the new statute introduced the provision that not only officials but also the institution have the right to challenge a member of the board.
157 With regard to article 8, paragraph 1 of Annex IX of the new statute, its provision on the independence of the Disciplinary Board is essentially identical to that of Article 6, the first paragraph of Annex II to the former statute. Moreover, it is clear from paragraph 7 of the "Procedure" in the opinion of the Disciplinary Board that the council has applied the new provision.
158 To determine the applicability in time of Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute, the time of creation of the Disciplinary Board must first be located, in relation to the entry into force of these provisions and, in general, the provisions on the formation and composition of the Disciplinary Board.
159 By virtue of its Article 2, Regulation No 723/2004 entered into force on 1 May 2004. This regulation has made several changes to provisions governing disciplinary proceedings, as reflected in the explanatory provisions of the old statute and new statute under the "legal framework" of the above. However, this regulation has no transitional provision on the issue of its possible application to disciplinary proceedings under way or more specifically to the Disciplinary Board made prior to its entry into force.
160 In this case, the disciplinary proceedings against the applicant were opened on 2 July 2002. Moreover, it is clear from the documentation submitted by the Commission to the Court at the request of it, that MR summoned, on 12 March 2004, MCV engaged for the year 2004 as chairman of the Disciplinary Board, to open a report against the applicant, of the proceedings before the Disciplinary Board. In addition, on 22 March 2004, the lots were drawn for members of the board of discipline from the lists set out on 4 September 2003, by the appointing authority and the Staff Committee. It is clear from the minutes of the draw that two people, including MC, were excluded from this draw because of their involvement in the case. Later, she challenged one person and another was abandoned. They were replaced by two others. The complementary draw took place on 2 April 2004. The Disciplinary Board was summoned by the appointing authority on 6 April 2004. It held its first meeting on 21 April, and meetings were held in May, June and September 2004. The Advisory Board was composed on 10 September 2004. The disciplinary procedure was completed on 13 October 2004 by the decision.
161 From all these facts, it appears that, to consider the applicant's case, the Disciplinary Board was established before 1 May 2004. Before that date, the only applicable rules were therefore those of the former statute.
162 It is now appropriate to consider whether the disciplinary board should change its composition after 1 May 2004 for its constitution and comply with the provisions of the new statute.
163 It is necessary, first of all, to remember that, as a generally accepted principle, a new regulation applies immediately, excepting exemptions, not only to situations arising, but also to the future effects of situations arising under the regime of the previous regulations (see, in effect, the Court of 9 December 1965, Singer, 44/65, Rec. p. 1191; 15 February 1978, Bauche and Delquignies, 96/77, Rec. p. 383, paragraph 48; 16 May 1979, Tomadini, 84/78, Rec. P. 1801, paragraph 21; 5 February 1981, P. / Commission, 40/79, Rec. P. 361, paragraph 12; 10 July 1986, Licata / CES, 270/84, Rec. p. 2305, paragraph 31; 14 January 1987, Germany / Commission, 278/84, Rec. p. 1, paragraph 36 and 29 January 2002, Pokrzeptowicz - Meyer, C 162/00, Rec. I p. 1049, paragraph 50; order of June 13 2006, Echouikh, C 336/05, Rec. I p. 5223, paragraph 54; Case, 30 November 2006 , And Le Dour Balabanis v Commission F 77/05, not yet reported, paragraph 39).
164 It is also settled law that the rules of procedure are generally intended to apply to all proceedings pending at the time they enter into force, unlike the substantive rules that are usually interpreted as not covering, in principle, situations existing before their entry into force (see, in effect, the Court of 12 November 1981, Salumi Others, 212/80 to 217/80, Rec. p. 2735, paragraph 9; July 6 1993 TB Control (Rotterdam) and JCT Benelux, C C 122/91 and 121/91, Rec. I p. 3873, paragraph 22; of 7 September 1999, De Haan, C 61/98, Rec. P. I 5003, paragraph 13; of 14 November 2002, Ilumitrónica, C 251/00, Rec. I p. 10433, paragraph 29 and 23 February 2006, Molenbergnatie, C 201/04, Rec. I p. 2049, paragraph 31 ). Regarding the rules of substantive law, case law also specifies that these must be interpreted, to ensure compliance with the principles of legal certainty and protection of legitimacy, as being aimed at situations existing before their entry into force only insofar as it belongs clearly to their terms, finalities or economy, that such an effect must be allotted to them (Salumi judgment, paragraph 9; Court of First Instance of 3 May 2007 Saxony / Commission, T 357/02, not yet reported, paragraph 94).
165 It should be noted that the application of new provisions on the formation and composition of the Disciplinary Board, such as those in question, may result in disciplinary proceedings before a disciplinary board appointed before the entry into force of these new provisions must be restarted. It is therefore not only to implement immediately a new rule that part of the disciplinary proceedings follow the entry into force of new provisions.
166 Such an application of the provisions of the new statute relating to the constitution and the composition of the disciplinary board, coming into effect subsequently to the constitution of the disciplinary board which had rule on the case of applicant, would not relate to only the future effects of a situation born under the regime of the old rules, but would necessarily amount to causing a retroactive effect with these provisions. Indeed, the starting point of the range of the provisions of the new statute, on this assumption, would be inevitably fixed at a date former to their coming into effect, namely that of the constitution of the disciplinary board.
167 In light of the foregoing, it is therefore necessary to ascertain whether the provisions of Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute was intended to apply retroactively. To this end, we must focus not only on their wording, but also their content and in particular the objective pursued, and, if necessary, upon whether the legitimate expectations of those concerned are duly respected (see, in effect, Saxony /, paragraph 108).
168 In this regard, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute do not contain indications, even implicitly , to enable consideration that they had been intended to apply retroactively. Admittedly, the replacement of the provisions of the old statute as regards composition of the disciplinary board could implicitly indicate that the legislature considered the old rules old inappropriate. However, that fact alone cannot be regarded as sufficient to conclude that the new statute was intended to apply retroactively.
169 In effect, it should be reflected upon that the implementation of new rules on criteria for selecting members of a disciplinary board and the right to challenge them could have a significant impact on the success of disciplinary proceedings already pending before the board, particularly with regard to time limits under the provisions relating to disciplinary procedures.
170 In addition, it should be noted that the fact relied on by the applicant, that the Commission was aware of the future evolution of the statutory provisions in regard to the composition of boards of discipline at the time of establishing the council to decide on her case, could alter this conclusion. Indeed, at the time of the final constitution of the Disciplinary Board, on 2 April 2004, only the provisions of the old statute applied. Thus, unless the Disciplinary Board was established before the entry into force of the new statute for the sole purpose of circumventing the provisions of the new statute, which the applicant does not establish, it should be considered that the board was properly constituted under the rules of composition of the former statute. It should be noted, moreover, that the applicant herself had initially claimed the provisions of the old statute.
171 In conclusion, it is appropriate to consider that the provisions of Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute had not been intended to apply retroactively in the silence of the legislature on the modalities of such an application.
172 Moreover, assuming that the applicant was basing herself on the provisions of the old statute to challenge the constitution and composition of the Disciplinary Board, it should be considered that the Disciplinary Board was constituted in compliance with these provisions.
173 Firstly, regarding the complaint alleging that the appointing authority should have used the opportunity to nominate persons outside the institution, as provided in Article 5 paragraph 1 of Annex IX the new statute, it suffices to note that the provisions of the old statute did not require one or more members of the Disciplinary Board to be appointed from persons outside the institution.
174 Secondly, the applicant's assertion that the disciplinary board should be composed of members of grade A * 16 (grade renamed AD 16 since 1 May 2006) is irrelevant, since Article 5, second subparagraph of paragraph 2 of Annex II to the old statute provided that the members of the Disciplinary Board should be a grade at least equal to that of the official whose case was submitted to the council, that is to say, in this case, grade A * 15 (grade renamed AD 15 since 1 May 2006).
175 Thirdly, as regards the criticism of the complainant that the Commission did not exercise the option offered by Article 6, paragraph 5, of Annex IX of the new statute to challenge the board members, it should be noted that Article 5 paragraph 3 of Annex II to the former statute did not foresee such a possibility.
176 Fourthly, the applicant also reproaches members of the Disciplinary Board for not withdrawing from their duties. However, the record shows that two members withdrew.
177 Finally, it must be considered that the applicant brings no evidence that members of the Disciplinary Board did not exercise their mandate in full independence. She merely asserts, in her complaint, that "the impartiality and independence required by Article 8 [, paragraph 1,] of Annex IX of the [new] statute [...] stating that 'the President and board members have complete independence in carrying out their duties' have not been met under the procedures for suspension and revocation conducted by the Commission against [it]. " Moreover, the argument raised in the reply that all members of the Disciplinary Board, whose functions were highly involved in the management of EU funds since they were all responsible for their respective budgets, is not to show they were not likely to exercise or have not exercised their function as a member of the board with complete independence and impartiality.
178 From all this, it follows that the applicant is not entitled to claim that the Commission has violated the provisions of article 8, paragraph 1, Article 5, paragraphs 1 and 4, and Article 6, paragraph 5, of Annex IX of the new statute in the constitution of the Disciplinary Board.
B – On the second group of means
1. The first plea, alleging breach of Article 9, paragraph 3 of Annex IX of the new statute and the principle of non bis in idem
a) Arguments of the parties
179 The applicant submits that the same fault can give rise to more than one disciplinary measure. In this case, the reasons for the suspension are the same as those behind her dismissal; she contends that the penalty of dismissal constitutes a second punishment based on the same facts, directly contrary to Article 9, paragraph 3 of Annex IX of the new statute.
180 The Commission said that the plea of violation of Article 9, paragraph 3 of Annex IX of the new statute is inadmissible, since it has not been raised in the complaint. On the merits, then, the Commission maintains that the suspension is an interim measure, does not preclude the issuance of a disciplinary action, such as revocation.
b) Findings of the Court
181 It should first be recalled that Article 9, paragraph 3 of Annex IX of the new statute provides that "[a] same fault can give rise to more than one disciplinary." This provision, which was already in Article 86, paragraph 3, of the former statute, is in fact a general principle of law binding regardless of any text (see, in effect, of the Court of 29 June 2006, SGL Carbon v Commission, C 308/04 ECR. I p. 5977, paragraph 26; Court of First Instance of 18 October 2001, X / ECB, T 333/99, Rec. II 3021, item 149).
182 In this case, the applicant has had successively, on 28 August 2002, a measure of suspension without a pay cut, on the basis of Article 88 of the old statute, then, on October 13 2004, a measure of dismissal on the basis of Article 86 and Annex IX of the new statute.
183 It is clear from the content of article 88 of the former statute, as a measure of this, suspension is provisional and is not, as such, disciplinary action. On the one hand, the first paragraph of that article provided that the appointing authority could suspend the staff member solely on the basis of an allegation of misconduct by the appointing authority to a staff member. On the other hand, the third paragraph of that article stated that "the situation of the suspended official [should] be finally resolved within four months from the date on which the suspension [had] taken effect. [...]. " The suspension is therefore not relevant to the application of the principle in question (see, in effect, X / ECB, paragraph 151). Furthermore, it should be added that the provisional nature of the suspension also follows the provisions of Article 23, paragraph 1 and Article 24, paragraph 2 of Annex IX of the new statute.
184 It is only by the decision of 13 October 2004 that the appointing authority put an end to open disciplinary proceedings against the applicant and delivered to the latter a penalty, under Article 9 of Annex IX of the new statute.
185 The first appeal must therefore be dismissed as unfounded, without any need to rule on its admissibility.
2. The second plea, alleging breach of Article 24 of Annex IX of the new statute and Article 6 of the ECHR
a) Arguments of the parties
186 The applicant states, based on Article 24 of Annex IX of the new statute, which provides that the state of a suspended official must be definitively settled within six months from the date on which the suspension took effect, and Article 6 of the ECHR, which provides that each person should have his case heard within a reasonable time, that the decision was taken more than 26 months after the suspension, leaving a precarious situation regarding her future within the European Communities.
187 The Commission claims that the plea of violation of Article 24 of Annex IX of the new statute and Article 6 of the ECHR is inadmissible because it was not raised in the complaint. It argues, moreover, that Article 24 of Annex IX of the new statute should not be interpreted as meaning that a suspension cannot exceed six months. In addition, whether the duration of the disciplinary proceedings was unreasonable, it should consider the procedure step by step, taking into account the circumstances of the case. However, for the Commission, not only can the applicant not demonstrate what stage lasted an inordinate amount of time, but moreover, there was no undue delay to deplore at any stage of the proceedings. The Commission points out, moreover, that Article 6 of the ECHR is not applicable, disciplinary proceedings are administrative in nature.
b) Findings of the Court
188 Under Article 24, paragraph 2 of Annex IX of the new statute, "the situation of the suspended official must be definitively settled within six months from the date of effective suspension; when no decision is reached by the deadline of six months, the person receives full payment [...]. "
189 To examine the scope of the six-month period provided for in Article 24, paragraph 2 of Annex IX of the new statute, it is necessary to put this paragraph in context. The first paragraph of Article 24 requires the appointing authority to specify in the suspension if the officer involved retains, for the time they are suspended, the benefit of their remuneration or determine the proportion of the restraint they suffer. The second paragraph provides that the situation of a suspended official must be definitively settled within six months from the date on which the suspension takes effect. Where no decision is reached within six months, the person receives again the full remuneration. In addition, the fourth paragraph states that they are entitled to reimbursement of deductions from their salary if the final decision does not include any penalty or sanction of a written warning, reprimand or suspension of advancement of level.
190 It is clear from the context in which the second paragraph of Article 24 of Annex IX of the new statute is written, that this provision is intended to prevent a staff member subject to disciplinary proceedings being deprived of pay for more than six months without a decision on their case. It follows that the time foreseen is only conclusive in that, after disposal, an official recovers the benefit of their full remuneration, as provided for in the second paragraph of Article 24 (see, in this sense, Judgments of the Court of First Instance of 26 January 1995, D / Commission, T 549/93, SC p. 13 and IA II 43, paragraphs 32 and 33 and 16 May 2000, Irving / Commission, T 121/99, SC p. 85 and IA II 357, paragraph 49). However, the fact that the appointing authority has not definitively ruled on the case of the official concerned within the period in question does not in itself lead to the conclusion that the illegality of the decision terminating the disciplinary proceedings brought against it (Irving judgment /, paragraph 49).
191 In this case, the applicant continued to receive her salary during her suspension. It is therefore not justified in asking annulment of the decision on the grounds that it was adopted more than six months after August 28 2002, the date of taking effect of the decision of the Commission to suspend her from office.
192 Regarding the allegation of violation of Article 6 of the ECHR, it is enough to recall, as reflected in paragraphs 126 to 128 of this judgment, above, that the applicant can not usefully call upon the compliance, by the disciplinary authority, of the reasonable delay imposed by this article.
193 Assuming that the applicant had also intended to call upon the non-observance of a reasonable delay between the suspension and the contested decision, which does not necessarily rely on Article 24 of Annex IX of the new statute and Article 6 of the ECHR, it should be noted that the new statute provides deadlines for the procedure before the Disciplinary Board (Article 18 of Annex IX) and taking the final decision by the appointing authority after receiving the opinion of the Disciplinary Board (Article 22, paragraph 1 of Annex IX). The former statute also contained deadlines for these same stages of the procedure (Article 7 of Annex IX). However, neither the statute nor former statute provides deadlines for the other stages of the disciplinary procedure or total duration of the proceedings.
194 It is clear from jurisprudence that the timeframe stipulated by Article 7 of Annex IX of the former statute, although not conclusive, does however enunciate a rule of good administration, of which the goal was to avoid, in the interest of the administration as much as of the civil servants, an unjustified delay in the adoption of the decision which put an end to the disciplinary proceedings (see, in effect, the Court of 4 February 1970, Van Eick v Commission 13/69, Rec. P. 3, paragraph 4, of 29 January 1985, F. / Commission, 228/83, Rec. P. 275, paragraph 30 and 19 April 1988, Mr. v Council 175/86 and 209/86, Rec. p. 1891, paragraph 16; judgment De Compte / Parliament, paragraph 88, and the Court of First Instance of 10 June 2004, François / Commission, T 307/01, Rec. II 1669, paragraph 47). It resulted from this that the disciplinary authorities had the obligation to carry out the disciplinary proceedings promptly and to act so that each act of continuation intervenes within a reasonable delay compared to the preceding act (Case D /, paragraph 25, and the Court of First Instance of 30 May 2002, Onidi / Commission, T 197/00, SC p. 69 and IA II 325, paragraph 91). The non-observance of the deadline, which could not be evaluated in light of the circumstances of the case, could lead to the annulment of the act taken out of time (judgment De Compte/ Parliament, paragraph 88; D / , Paragraph 25, and Francois /, paragraph 47).
195 The modifications made to the provisions of appendix IX by the new statute are not such as the requirement of the respect of a reasonable delay, released by above mentioned jurisprudence, would not be essential any more under the regime of the new provisions.
196 In this case, it is first necessary to note that the applicant is limited to contest the period of 26 months between the effective date of the decision to suspend the date of her dismissal, without identifying the procedural disciplinary steps that were not completed within a reasonable time.
197 It is then necessary to consider, first, whether the deadlines laid down in Article 18 and Article 22, paragraph 1 of Annex IX of the new statute were outdated and, secondly, if a reasonable timescale was respected.
198 Article 18 of appendix IX of the new statute lays out that “the council transmits the opinion to the Appointing authority and the civil servant concerned within two month as from the date of reception of the report of the Appointing authority, in so far as this time is adapted to the complexity of the file when an investigation was carried out on the initiative of the council, the time is four months in so far as it is adapted to the complexity of the case”.
199 Secondly, Article 22 paragraph 1 of Annex IX of the new statute states that "after hearing the official, the Appointing authority takes its decision in accordance with Articles 9 and 10 of this annex, within two months from receipt of the opinion of the board."
200 In this case, the Disciplinary Board was summoned by the appointing authority on 6 April 2004. The first meeting of the Disciplinary Board, at which the applicant was heard, was held on 21 April. On 7 May 2004, hearings were held with the applicant and the appointing authority. On June 1, 2004, the Disciplinary Board met. Then, witnesses were heard by the disciplinary board on the following September 9. The Disciplinary Board delivered its opinion on 10 September 2004, five months and four days after the referral. The hearing of the complainant took place on 29 September 2004 and the appointing authority adopted the decision on 13 October, one month and three days after the Disciplinary Board's opinion.
201 It must be considered that the five months and four days between the referral to the disciplinary board of the Commission advises the appointing authority is significantly longer than the two-month period provided for in Article 18 of the Annex IX of the new statute. This article states that this period of two months may be adjusted depending on the complexity of the case.
202 To justify the delay of more than five months, the Commission notes that, at the request of the parties, witnesses were heard by the Disciplinary Board. Their hearing was to take place on 8 and 9 July 2004. However, the applicant requested postponement of the hearings. After the Disciplinary Board suggested the dates of 26 and 27 July 2004, the applicant did not accept. When the Disciplinary Board proposed 9 September as another date for the hearing, she said she did not plan to be present. The Commission stresses that, after these attempts to report, the date of 9 September 2004 was maintained to hear witnesses; the report of the Disciplinary Board was drafted the next day.
203 These facts, reported in the opinion of the Disciplinary Board, have not been challenged by the applicant, or in her pleadings or in court. Thus, given on the one hand the nature of the case examined in this case by the Disciplinary Board and, secondly, the fact that the extension of the duration of the proceedings beforehand was incumbent in part upon the applicant, this timescale cannot be blamed upon the Commission.
204 As regards respect of the period of two months under article 22 of Annex IX of the new statute, to separate the receipt by the appointing authority in the opinion of the Disciplinary Board and the adoption by it of the sanction, it suffices to note that in this case, the appointing authority adopted the decision to revoke one month and three days after the Disciplinary Board communicated its opinion.
205 Finally, regarding the period between the initiation of disciplinary proceedings, by note from Mr Kinnock, on 2 July 2002, and referral to the Disciplinary Board on 6 April 2004, it is necessary to observe, firstly, that the applcant continued to commit acts which were reproached during the disciplinary procedure. On 22 September 2002, notably, the applicant a group of European parliamentarians of Spanish nationality, then on the following October 3 she gave an interview to the BBC. Moreover, after the first report of MC was made, namely on 23 April 2003, Mr Kinnock wrote a note, dated 6 November 2003, as part of new claims against the applicant upon facts which arose after the establishment of this first report, which gave rise to a new hearing of the applicant on 19 February 2004. MRC had to prepare a second report, which he did on 3 March 2004, a few weeks before referral to the Disciplinary Board.
206 It should be noted, secondly, that the applicant does not dispute that the actions for which she was later reproached occurred not only after July 2, 2002 but equally after August 28, 2002, the effective date of the suspension measure.. Certainly, several months elapsed between the notes of Mr Kinnock, on 2 July 2002 and 6 November 2003, citing grievances directed against the applicant, and the reports of MC, made on 23 April 2003 and 3 March 2004. However, given the circumstances of the case and the fact that two reports had to be written by MC, the applicant can not argue that the Commission failed to comply with a reasonable timescale.
207 It follows from the above, without any need to rule on its admissibility, that the second appeal must be dismissed as unfounded.
3. The third plea, alleging breach of Article 22 of Annex IX of the new statute
a) Arguments of the parties
208 Citing Article 22 of Annex IX of the new statute which provides that the disciplinary decision must be substantiated, the applicant considers that the decision is not based on any valid reasons, the facts are extremely varied, inconsistent and do not reflect any reality likely to justify a sanction of revocation.
209 Firstly, regarding the alleged defamatory statements, the applicant contends that it is not proven by the Commission that it has been held in defamation, in public or in private, in respect of Mme Schreyer and MM. Secondly, the applicant would never have been opposed to the Commission's policy. She adds that she simply described in general terms the problems faced by the accounting system of the institution. Thirdly, as regards the concealment of information during her recruitment, she says that from her first contact with the Commission, she referred to her suspension from the Organisation for Economic Cooperation and Development (OECD). The applicant also notes that it is precisely the reason for the suspension, namely the fight allegedly conducted within the OECD for more budget transparency, which led the Commission to recruit. In any event, the Commission could not have been unaware of her suspension from the OECD, which had been publicised in the media. Fourthly, for her alleged disobedience to her superiors, the applicant argued that the measures taken to denounce and attempt to resolve the problems in the accounts were in her dual capacity as director of management performance and accounting of the Commission and therefore were in compliance with Article 21 of the new statute. Fifthly, on the failure regarding her obligation to discretion, the applicant maintains that her accounting function led her to express her criticisms to the Court of Auditors and Parliament, the two institutions responsible for auditing the accounts. Sixthly, concerning her absence on 1 August 2002, she notes that she was at that time deprived of any activity, and that furthermore, it would not be serious to criticise an official so high in rank and grade, for an absence of one day. Finally, regarding public statements, the applicant would have only made answers in connection to the public charges of the Commission.
210 The Commission argues, firstly, that beyond the allegations concerning the alleged lack of reasons for the decision, the applicant appears to be advancing a plea of alleged errors of assessment.
211 In the second place, regarding the reasons which led to the revocation of the applicant, the Commission argues, firstly, that the notes sent by the complainant to the Court of Auditors and members of Parliament explaining that the reform of the accounting system as envisaged by MM and Mme Schreyer would increase the risk of error and facilitate fraud, were indeed defamatory statements or, at least, insulting, undermining the honour of these people, in violation of articles 11 and 12 of the former statute.
212 Secondly, regarding the opposition of the applicant to the policy of the Commission, it should be recalled that, in the opinion of the Disciplinary Board, the conduct of the complainant contravened, on this point, article 11 of the old statute since it exceeded the simple expression of divergent points of view from those of the institution. The Commission adds that this was not a separate complaint from that relating to the defamatory remarks or insulting the applicant.
213 Thirdly, as for the concealment of information by the applicant during her recruitment, the Commission considers that she has failed to fulfil her obligation of honesty by not revealing the suspension which she received at the OECD. According to the Commission, the opinion of the Disciplinary Board definitively established that the applicant did not declare the suspension she had received whilst in her previous functions. It is for the applicant to show that this view contains manifest errors of assessment. In addition, despite having contacted the OECD, the Commission stresses that the suspension of the applicant was not reported by it.
214 Fourthly, with regard to the refusal to follow the instructions of her superiors, breach of the obligation of confidentiality that applies to all officials and the unauthorised public statements, the Commission notes that the applicant repeatedly ignored instructions from her superiors by making statements to officials of external institutions or to the press without the permission of those superiors, as required.
215 Fifthly, the Commission noted that it was not alleged that the applicant had expressed concerns about the accounting system of the institution but had expressed them outside the framework that it was proper for her as an official. This complaint does not relate, according to the Commission, to violation of Article 17 of the former statute but to that of Articles 11 and 12.
216 Sixthly, regarding the absence of 1 August 2002, the Commission recalled that the applicant was active until August 28 following the effective date of the suspension and that therefore her absence on 1 August 2002, introduced without a request for leave to that effect, was irregular.
217 Finally, regarding public statements, the Commission stresses that the applicant does not prove that the Disciplinary Board erred in finding clearly that she had made unauthorised public statements. In addition, the affirmation of the complainant that she had contacted the press after having been the victim of malicious statements from the Commission fails in both fact and law.
b) Findings of the Court
218 Firstly, it is important to note that, in her complaint, the applicant formally alleges, based on Article 22 of Annex IX of the new statute, the lack of reasons for the contested decision. In its defence, the Commission stresses that it is in fact alleged manifest errors of assessment that are raised by the applicant. In her reply, the applicant states that not only are the facts invoked by the Commission incorrect but also that the decision is not sufficiently substantiated. Even if the applicant's pleadings are not disputes about the facts and appreciation of the facts as distinct from that based on the lack of motivation and contain a common thread in these different ways, the arguments of the applicant may also be understood as criticising some points on the materiality and the assessment of facts upon which she is charged. So under these three complaints that the arguments of the parties must be considered.
219 It should be considered, together and primarily, the complaints alleging that the materiality of certain facts is not established and the error of assessment by the appointing authority.
On the materiality and the error of assessment of the facts alleged against the applicant
220 According to case law, a decision imposing a sanction of dismissal implies necessarily delicate considerations on the part of the institution, given the serious and irreversible consequences arising therefrom. The institution has in this respect a broad discretion and judicial review is limited to verifying the accuracy of the facts and the absence of manifest error of assessment of the facts (Case Court of First Instance of 28 September 1999, Yasser / EIB, T 141/97, p. IA SC 177 and II 929, paragraph 63).
221 In this case, it is first necessary to note that in its report to the Disciplinary Board, before 6 April 2004, the appointing authority retained the following allegations upon the applicant:
- Matters defamatory and insulting towards MM, Mme Schreyer and MG, thus compromising their honour in violation of articles 11 and 12 of the former statute;
- Concealment, during her recruitment by the Commission, of the suspension of her functions within the OECD, in violation of Article 12 of the former statute;
- Repeated non-respect of instructions from her superiors in violation of Article 21 of the former statute;
- Breach of her duty of discretion in addressing directly, without the authorization of her superiors, the President and members of the Court of Auditors, members of Parliament and the general public, in violation of Article 17 of the former statute;
- Absence without permission on 1 August 2002 in violation of Article 60 of the former statute;
- Public statements without permission and repeatedly, in spite of clear and repeated violation of articles 11, 12 and 21 of the former statute;
- Participation in public events organized by others as an advocate without prior permission from the appointing authority, in violation of articles 12, 17 and 21 of the former statute.
222 In its opinion of 10 September 2004, the Disciplinary Board considered that the merits of those complaints had been demonstrated by the appointing authority. After hearing the applicant and carrying out the assessment of the case, the appointing authority concluded in the decision that she "[had] repeatedly and knowingly acted in violation of the obligations arising from Articles 11, 12, 17 and 21 of the [former] statute "(" had repeatedly and knowingly acted in disregard of the obligations set out in the Articles 11, 12, 17 and 21 of the Staff Regulations ").
223 It must next be seen, given the records of the applicant, that she does not dispute the materiality of the facts in regard to the allegation of concealment of her suspension from the OECD when she was recruited to the Commission. As for other complaints, she actually raises the error committed by the appointing authority in the evaluation of facts which he is charged.
224 Consequently, it is necessary, on the one hand, to check if the appointing authority could indeed consider the concealment of the suspension of applicant from the OECD as established at the time when it made the contested decision and, on the other hand, to examine whether the appointing authority did not make a glaring error in the appreciation of the other objections.
- On the concealment of information in recruitment
225 It is undisputed that the appointing authority does not have direct proof that the applicant, during her recruitment, concealed the suspension from which she was then subject within the OECD. The appointing authority has, however, built on the reasoning conducted by the Disciplinary Board, from a body of evidence, to infer the existence of this concealment.
226 It follows, indeed, the decision that, in essence, the appointing authority concluded that she had hidden, during her recruitment, her suspension from duty within the OECD, owing to the fact that, firstly, the curriculum vitae which she had submitted to the Commission did not indicate the suspension which she was serving within this organization. The wording even suggests that she worked there when she applied to the Commission. The same is true of the application which does not mention the suspension, despite the declaration signed by the applicant that she had provided all information sincerely and completely. Secondly, the applicant did not declare the suspension at any moment during recruitment interviews with Mme Schreyer, MM and the external consultant involved in the recruitment procedure. In this regard, the applicant’s argument that she informed MM orally of the suspension is contradicted by the fact he was reluctant to recruit the applicant and would have certainly indicated the suspension to the appointing authority if he had been informed. Admittedly, the appointing authority was informed of the difficulties encountered in her work within the OECD, but none of the officials of this institution contacted by MM would have revealed the suspension.
227 In its defence, the Commission also argues that the applicant’s reliance on the fact that some newspapers had reported the suspension of her functions within the OECD, tends to confirm that she remains unable to prove she declared that suspension to the Commission. It also stresses that the applicant does not attempt in her pleadings to challenge the presentation of facts by the Disciplinary Board, in its opinion of 10 September 2004. In addition, the Commission, citing the transcript of the interview that she gave to the BBC on 3 October 2002, notes that she expressly stated that she had not informed the Commission of the suspension to which she was subject within the OECD.
228 To determine whether this is sufficient to establish that the applicant has concealed certain information to the Commission in her recruitment, it should be noted, firstly, that the Tribunal is unable to check the contents of the curriculum vitae and the application form filled in by the applicant, not having these documents.
229 It should however be noted that the applicant can in no way refute the Commission's assertions about these documents. In addition, it is important to note that, neither in her complaint, nor in her reply, does the applicant contest the version of facts as reported by the Disciplinary Board. In particular, she does not respond to the Commission's argument that MM, reluctant to recruit her, would not have hesitated to inform the appointing authority of the suspension to which the applicant was subject within the OECD, if he had been informed. Similarly, the applicant does not comment on the content of her interview with the BBC on 3 October 2002. It should be noted finally that, in her pleadings, she stresses the shortcomings of the recruitment procedure in that the Commission did not take the initiative to learn, but does not demonstrate that she actually informed the Commission of her suspension.
230 From all these considerations, it follows that the appointing authority was entitled to consider that the applicant had hidden, during her recruitment by the Commission, the suspension to which she was subject within the OECD.
231 This conclusion cannot be invalidated by the applicant’s argument that the initial contacts between her and the Commission were directed through her private address in Barcelona and show that the institution knew she was no longer in OECD, which is based in Paris. Indeed, one can not deduce, from this circumstance, the fact that she informed the Commission of her suspension from the OECD.
- On the ignorance of the duties of loyalty and discretion because of certain statements made by the applicant
232 It is worth recalling that Article 11, paragraph 1, of the former statute provided that the officer should carry out their duties and conduct themselves solely with the interests of the Communities. Article 12, paragraph 1, of the former statute stated that the official should refrain from any action and, in particular, any public expression of opinion which may affect their position.
233 The jurisprudence that Article 12, paragraph 1, of the former statute of officials was to ensure that the officials present, in their behaviour, an image of dignity with the conduct particularly proper and respectable as is reasonable to expect of members of the international civil service. It follows, in particular, that insults expressed publicly by an official and damaging the honour of those to whom they refer, in themselves constitute an infringement of the dignity of the office under this provision. Article 12, first paragraph, of the former statute was, like articles 11 and 21, one of the specific terms of the obligation of loyalty, which requires the officer not only to refrain from conduct against the dignity of the office and respect due to the institution and its authorities, but also to demonstrate, especially if they have an elevated grade, behaviour above all suspicion, so that the bonds of trust between the institution and themselves are still preserved (judgments of the Court of First Instance of 15 May 1997 N / Commission, T 273/94, SC p. 97 and IA II 289, paragraphs 126 to 129, and 19 May 1999, Connolly v Commission, T 34/96 and T 163/96, SC p. 87 and IA II 463, points 123 and 124). According to case law, Article 12 of the former statute was not an obstacle to freedom of expression, which is a fundamental right enjoyed by officials, but imposes reasonable limits on the exercise of this right in the interests of the service (judgments of the Court of First Instance of 17 February 1998, E / CES, T 183/96, SC p. 67 and IA II 159, paragraph 41, and Connolly v Commission, paragraph 129).
234 It also follows from jurisprudence that serious detrimental insults to the honour of persons covered are not only likely to harm the dignity of such persons, as such, but are also allegations of a nature to discredit their professional reputation. The form of such claims does not matter: direct attacks are covered, as well as allegations made in dubitative, indirect, disguised form by way of insinuation or aiming at a person not expressly mentioned, but whose identification is made possible (Case the Court of First Instance of 12 September 2000, Teixeira Neves / Court of Justice, T 259/97, p. IA SC 169 and II 773, paragraphs 29, 30 and 47).
235 It should also be recalled that the sending of notes by an official which, by their nature, affect the dignity of their position is in itself a violation of the obligation under Article 12, first paragraph of the former statute, regardless of the publicity that has been given to such notes (see judgments of the Court of First Instance of 26 November 1991, Williams / Court of Auditors, T 146/89, Rec. II 1293, paragraph 76, and E / CES, paragraphs 38 and 39).
236 In this case, the Disciplinary Board noted that on 15 April 2002, the applicant, bypassing MM, directly addressed herself to Mme Schreyer then, on the following April 22, to all the directors general of the Commission, to criticise the accounting system of the institution. In this regard, the Disciplinary Board found that even if the notes were sent outside the normal procedure, their content could be considered as falling under the responsibility of the applicant.
237 According to the Disciplinary Board, charges brought by the applicant in future notes certainly contravened, however, Articles 11 and 12 of the former statute. Thus, on 7 May 2002, without telling MM and Mme Schreyer, she sent a note to the president and two vice-chairmen of the Commission. She did the same on the following May 21, by contacting the president and some members of the Court of Auditors and May 24, by writing to some members of Parliament. According to these accusations, MM and Mme Schreyer were allegedly promoting a new financial regulation that would increase the risk of errors and fraud. The Disciplinary Board noted that these charges were repeated during a press conference held in London on 1st August 2002, a meeting with members of Parliament on 22 September 2002, and a public meeting in Dublin on 15 October 2002. The Disciplinary Board noted that the applicant, in doing so, also ignored the instructions of her superiors.
238 The Disciplinary Board also considered that the charge of "harassment" brought by the applicant against MG in the email of 6 June 2002 sent to some Spanish members of Parliament and at the press conference on 1 August 2002, emanated from a senior Commission official.
239 In the Disciplinary Board's opinion, the conduct of the applicant was inopportune and disproportionate. It is also observed that the independence attached to the office of the Commission's accounting concerns only the tasks under this function. According to the Disciplinary Board, the applicant was still obliged to respect the internal procedures of the Commission and the provisions of the old statute.
240 It is recalled that the assessment of the facts and presentations made by the Disciplinary Board, was approved by the appointing authority.
241 Secondly, it arises from the written pleadings that the applicant, in notes on 22 and 24 May 2002, has clearly cast blame upon Mme Schreyer and MM. Thus, in the letter dated 22 May 2002, addressed to the President and two members of the Court of Auditors, she wrote:
“The Director General of the Budget confirms, in his letter [JPM D(2) 75020] to the Directors General, my appreciation on the computer system while, contrary to my proposal, he postpones indefinitely the decision on implementation of ‘SAP’, and consequently the clarification and transparency in the management of funds.
It is also unacceptable that the Budget Director General promotes a new financial regulation that increases error and fraud risk, while he disrespects my proposals to reform the accounting, as outlined in my letter 45031 to Mme Schreyer, which are oriented to establish the necessary control environment.“
242 In the letter dated 24 May 2002, to some members of Parliament, the applicant said:
“All these measures I have requested with the objective of improving the control over the funds entrusted to the European Commission, and to eliminate or reduce to the minimum possible error and fraud risk. But the reaction of Mme Schreyer has been totally contrary to my proposals for clarification. She does not respect my proposal for a sound accounting reform and is promoting a new financial regulation that will increase the error and/or fraud risk in prejudice of European taxpayers. To achieve this, she has proposed to remove the Accounting Officer responsibility from me, to which I have expressed my absolute disagreement.“
243 The record of the press conference on 1 August 2002 similarly refers to the applicant’s accusation against MG.
244 From all the foregoing, it follows that the appointing authority could legitimately consider that the applicant has made remarks blaming Mme Schreyer, MM and MG, in violation of articles 11 and 12 of the former statute.
- The absence without leave on 1 August 2002, and about public appearances or without authorization
245 Regarding the absence of the applicant, without authorization, on 1 August 2002, it should be recalled that under Article 60 of the former statute, except in case of illness or accident, the official may not be absent without prior permission from their supervisor.
246 In this case, the Disciplinary Board noted that the applicant does not deny the fact of such absence. Before the Tribunal, she is limited essentially to arguing that this absence is not a serious irregularity. She also asserts that the suspension was announced on 23 July 2002 and that no work would have been asked for several weeks before 1 August 2002.
247 In this respect, it suffices to note the suspension of 28 August 2002 and that the note dated 23 July 2002 does nothing but evoke a possible future suspension. There is no evidence thus to conclude that the absence of 1 August 2002 would have been a permissible failure.
248 Therefore, the applicant cannot claim that the appointing authority has committed an error of assessment. The grade and rank the applicant cannot confirm this; Article 60 of the old statute did not distinguish between officials.
249 As regards the words or public appearances of the applicant, it should be noted, firstly, several statutory provisions. Article 12, third paragraph, of the former statute provided that if the official was to engage in an outside activity, paid or unpaid, or complete an assignment outside the Communities, they should seek permission from the appointing authority. Under Article 21, first paragraph, of the former statute, it was also stated that the official, whatever their rank, was required to assist and advise their superiors. Finally, under Article 17 of the former statute, the official was required to exercise the utmost discretion with regard to all facts and information that came to their attention in the course of or in connection with the exercise of their functions. They were not to communicate, in any form, to a person not qualified to be informed of it, any document or information not made public. They remained subject to this requirement after leaving the service. According to this article, the official should not publish or make, whether alone or in collaboration, any text dealing with the work of Communities without the permission of the appointing authority. This authorisation could be denied only if the publication was likely to prejudice the interests of the Communities.
250 According to jurisprudence, it belongs solely to the line authority to decide, with complete freedom, whether to allow the participation of its officials, in their official capacity, in scientific demonstrations (Court ruling of 17 May 1984 Albertini and Montagnani / Commission, 338/82, Rec. P. 2123, paragraph 32).
251 It is also the case that the right to freedom of expression, enshrined in Article 10 of the ECHR, constitutes a fundamental right, the respect of which Community judges ensure and which Community civil servants, in particular, enjoy. However, the right to freedom of expression is not an absolute, but may include restrictions, provided that they meet objectives of general interest pursued by the Community and do not constitute, in the pursuit of that aim, a disproportionate and intolerable interference which would undermine the very substance of the law and guaranteed. Considered in the light of these principles, Article 17, paragraph 2, of the former statute, on the publication by the officials of texts dealing with the work of the Communities, cannot be regarded as imposing an unjustified restriction on the freedom of expression of officials (judgment Connolly v Commission, paragraphs 148 and 149).
252 Firstly, the requirement envisaged by this article of a prior approval of publication answers the legitimate objective that a text relating to the work of the Communities cannot affect their interests, and in particular to the reputation and image of an institution. Secondly, Article 17, second paragraph, of the former statute is not a measure disproportionate to the objective of general interest that this article is intended to save. On the one hand, the prior approval of publication is required only when the text which the interested civil servant plans to publish, or to make publish, “is attached to the activity of the Communities”. On the other hand, there is no established absolute prohibition of publication. On the contrary, Article 17, second paragraph, last sentence, of the former statute clearly establishes the principle of granting the permission to publish, such permission being refused only if the publication in question
is likely to bring into play the interests of the Communities (Case Connolly v Commission, paragraphs 149 to 152).
253 In this case, the applicant has made remarks in public and made public appearances, such as on 1 August 2002 and September 25 2002 in London and 15 October 2002 in Dublin. She also participated in several conferences in 2003. The Disciplinary Board found that the applicant did not deny the absence of authorisation. In this regard, suffice it to say that the applicant did not provide evidence that would make it possible to consider she had obtained authorisation.
254 The same is true with regard to the finding by the Disciplinary Board on the publication on the Internet without authorisation, a summary of a conference held by the applicant.
255 Consequently, the applicant cannot claim that the appointing authority has committed a manifest error of assessment in finding that the allegations constitute misconduct under Article 12, the first and third paragraphs of Article 21 and, in relation to the publication on the Internet, Article 17, second paragraph of the old statute.
256 From the foregoing, it must be concluded, firstly, that the appointing authority could legally take it that the charges against the applicant were established and, secondly, it did not make a manifest error in its assessment.
257 It follows that the complaints alleging that the materiality of certain facts would not be established and the error of assessment by the appointing authority should be rejected.
On the absence of reasons for the decision
258 It must be recalled that under Article 22 of Annex IX of the new statute, "after hearing the official, the appointing authority takes its decision in accordance with Articles 9 and 10 of this annex, within two months from receipt of the notice board this decision must be substantiated."
259 It should also be noted that under the law, the motivation of an adverse decision is aimed, firstly, to provide the information necessary to determine whether or not the decision is with foundation and, secondly, to make the judicial review possible (Court ruling of 20 November 1997, Commission / V, C 188/96 ECR. I p. 6561, paragraphs 26 to 29; judgments Connolly v Commission, supra , 93, and the Court of First Instance of 5 December 2002, Stevens / Commission, T 277/01, p. IA SC 253 and II in 1273, paragraph 70).
260 The question of whether the reasoning of the decision, by the appointing authority imposing a sanction, meets these requirements should be assessed with regard not only to its wording but also the context and all the legal rules governing this area concerned (Case Onidi /, paragraph 156, and Stevens /, paragraph 71). In this regard, if the appointing authority must clearly state the facts charged to the official, as well as the considerations that led it to adopt the sanction chosen (Court of First Instance of 28 March 1995, Daffix / Commission, T 12/94 SC. P. 71 and IA II 233, paragraph 33), it is not required to discuss all issues of fact and law raised by the person during the procedure (see Connolly v Commission, paragraph 93; Onidi /, paragraph 156, and Stevens /, paragraph 71). If the appointing authority selects the same penalty as that proposed by the Disciplinary Board, which is the case here, there is no need for extra motivation on the appropriateness of the punishment (Case Tribunal Trial of 16 July 1998, Y / Parliament, T 144/96, p. IA SC 405 and II in 1153, paragraph 27, and Stevens /, paragraph 71).
261 It is clear from the wording of the decision that the Commission has met the requirements of Article 22 of Annex IX of the new statute. Indeed, the Commission stated with sufficient precision the facts and considerations that led it to impose the sanction chosen. Moreover, the complaints against the complainant clearly reflected the report by the appointing authority, the chairman of the Disciplinary Board and the opinion of the Disciplinary Board. In addition, the appointing authority followed the advice of the Disciplinary Board which contains a detailed analysis of the materiality and assessing the charges against the applicant.
262 Therefore, it must be concluded that the decision and the context in which it was adopted gave the applicant the necessary indications enabling her to know the reasons behind the decision. It follows that the allegation of lack of reasons for the decision is unfounded.
263 The applicant's complaints concerning, firstly, the materiality of facts against them and the manifest errors of assessment of the appointing authority and, secondly, on the grounds of the contested decision are without foundation; the the third plea must be dismissed in its entirety.
4. On the fourth plea, alleging breach of Article 10 of Annex IX of the new statute
a) Arguments of the parties
264 The applicant claims that the penalty of dismissal is disproportionate to the misconduct, in violation of Article 10 of Annex IX of the new statute. In support of that plea, she says, firstly, that no evidence has been reported by the Commission on the facts. Secondly, it is based on jurisprudence, that in cases where the facts were more severe, the sanctions imposed by the Commission were of lesser severity.
265 The Commission relies on the principle of the autonomy of disciplinary sanctions, stating that the existence of cases in which there was a lesser penalty is not a proof of a lack of proportionality. In this regard, the Commission states that, assuming that the comparisons are relevant, two allegations of dishonesty are against the complainant, unlike the cases cited by her and which she claims compare to her situation, which amply justified and proportionality of the penalty imposed.
b) Findings of the Court
266 According to Article 10 of Annex IX of the new statute, the disciplinary sanction imposed should be proportionate to the seriousness of the misconduct. The same article also sets out criteria which the appointing authority must take into account in determining the penalty.
267 It is in this legal framework that it is advisable to appreciate the arguments of the applicant, relative to an alleged violation of the respect of the proportionality of the sanction.
268 In the first place, it should be noted that in the decision, the appointing authority argued several aggravating circumstances included those in the list of criteria set out in Article 10 of Annex IX of the new statute. Firstly, the appointing authority notes that the applicant was an officer whose job included important responsibilities. Then, the appointing authority notes that the applicant has repeatedly violated the instructions of her superiors and internal procedures to the Commission. Moreover, according to the appointing authority, in public statements she has harmed the reputation of the Commission and several of its members, including some senior officials. In addition, the appointing authority considers that given the rank of the applicant and the repeated nature of her acts, they must be seen as intentional.
269 Finally, the opinion of the Disciplinary Board, whose analysis is shared by the appointing authority, said that although the actions of the applicant could partly reflect her legitimate concern about the reputation of the accounting system of the institution and financial risks that arise, the cumulative effect of her conduct would justify that the appointing authority considers the relationship of trust between the institution and her was irretrievably broken.
270 Secondly, it should be noted that the applicant argued, under Article 10 of Annex IX of the new statute, no mitigating circumstances, relating to her personal situation, to prove the disproportionate nature of the penalty of dismissal.
271 It follows from the foregoing that, on the one hand, the actions of the applicant constitute breaches of statutory obligations which she held. In addition, have regard to the gravity of the objections selected against the interested party, without it being established that the Commission would have omitted to take into account the criteria given in article 10 of appendix IX of the new statute, the inflicted sanction could not be regarded as being disproportionate. In this regard, it should be noted that the punishment did not involve any reduction of pension rights.
272 This conclusion cannot be challenged by the argument that the Commission has reserved a lot more favourable to officials who have committed acts yet more serious. Indeed, it must be recalled that, each disciplinary proceeding being autonomous, the applicant could not usefully call upon the fact that a lesser sanction was imposed upon other civil servants, to dispute the sanction of which she made herself the object (see Court ruling of 6 March 2001, Connolly v Commission, C 273/99 ECR. I p. 1575, paragraph 43; judgment De Compte / Parliament, paragraph 170).
273 Finally, with regard to the argument that the Commission has provided no evidence of facts, suffice it to note that this argument has already been examined in the third plea.
274 Accordingly, the plea of violation of the rule of proportionality of punishment must be rejected.
II - The claim for damages
A - Arguments of the parties
275 The applicant submits that the Commission owes her for material damage, as well as remuneration lost since the contested decision took effect, and expected future earnings to run until her retirement for the moral damage consisting of the repeated public allegations against her.
276 The Commission alleges that the claims are inadmissible insofar as the applicant did not mention them in her complaint. These requests would, in any event, be unfounded since the contested decision would not have to be cancelled.
B - Findings of the Court
277 The Court has consistently held that the claims for compensation of material or moral damage should be rejected as they have a close relationship with the claim for annulment which have themselves been rejected as either inadmissible or not based (judgments of the Court of First Instance of 5 February 1997, Gil Ibarra / Commission, T 207/95, SC p. 13 and IA II 31, paragraph 88, and N /, paragraph 159).
278 In this case, there is a link between the action for damages and the annulment. However, consideration of submissions in support of the annulment revealed no illegality committed by the Commission and therefore no fault likely to incur liability.
279 Therefore, without any need to rule on the admissibility of the claim for damages, this claim should be dismissed as unfounded.
280 It follows from the foregoing that the appeal must be dismissed in its entirety.
On costs
281 under section 122 of the Rules of Procedure, published in the Official Journal of the European Union of 29 August 2007 (OJ L 225, p. 1), the provisions of the Regulation for costs and legal fees only apply to cases brought before the Tribunal from the entry into force of the Rules of Procedure, 1 November 2007. The provisions of the Rules of Procedure of the Court of First Instance on the matter continue to apply mutatis mutandis to cases pending before the Tribunal before this date.
282 Under Article 87, paragraph 2 of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to pay the costs, if applied for. However, under article 88 of those rules in disputes between the Communities and their agents, the costs incurred by the institutions are to be borne by them. The applicant having failed in her appeal, it must be that each party bear its own costs.
For these reasons,
THE COURT (Second Chamber)
hereby judges:
1) The appeal is dismissed.
2) Each party shall bear its own costs.
Van Raepenbusch Boruta Kanninen
Delivered in open court in Luxembourg on 8 November 2007.
Registrar President
W. Hakenberg S. Van Raepenbusch
Table of Contents
Legal Framework
I - Provisions in force until 30 April 2004
A - Rights and obligations of officials
B - Disciplinary
C - Disciplinary Board
D - Disciplinary proceedings
II - in effect from 1 May 2004
A - Disciplinary
B - Disciplinary proceedings
Facts at the origin of the dispute
Proceedings and conclusions of the parties
In law
I - The application for annulment
A - The first group of resources
1. The plea alleging breach of Article 6, paragraph 1 of the ECHR
a) Arguments of the parties
b) Findings of the Court
2. The pleas alleging breach of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute
a) The admissibility of allegations of breach of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute
Arguments of the parties
Findings of the Court
b) The merits of the allegations of violation of article 8, paragraph 1, Article 5, paragraphs 1 and 4 and Article 6, paragraph 5, of Annex IX of the new statute
Arguments of the parties
Findings of the Court
B - The second group means
1. The first plea, alleging breach of Article 9, paragraph 3 of Annex IX of the new statute and the principle of non bis in idem
a) Arguments of the parties
b) Findings of the Court
2. The second plea, alleging breach of Article 24 of Annex IX of the new statute and Article 6 of the ECHR
a) Arguments of the parties
b) Findings of the Court
3. The third plea, alleging breach of Article 22 of Annex IX of the new statute
a) Arguments of the parties
b) Findings of the Court
On the materiality and the error of assessment of the facts alleged against the applicant
- On the concealment of information in recruitment
- On the ignorance of the duties of loyalty and discretion because of certain statements made by the applicant
- The absence without leave on 1 August 2002, and about public appearances or without authorization
The absence of reasons for the decision
4. The fourth plea, alleging breach of Article 10 of Annex IX of the new statute
a) Arguments of the parties
b) Findings of the Court
II - The claim for damages
A - Arguments of the parties
B - Findings of the Court
On costs
