Petrus Kerstens v European Commission (T-220/20)

Contents

Judgment of the General Court (Seventh Chamber)20 October 2021^note(Civil service — Officials — Disciplinary proceedings — Article 266 TFEU — Administrative investigations — Principle of sound administration — Principle of impartiality — Action for annulment and compensation)In Case T‑220/20,Petrus Kerstens, residing in La Forclaz (Switzerland), represented by C. Mourato, lawyer,vEuropean Commission, represented by B. Mongin and A.‑C. Simon, acting as Agents,THE GENERAL COURT (Seventh Chamber),composed of R. da Silva Passos, President, V. Valančius (Rapporteur) and L. Truchot, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure and further to the hearing on 22 April 2021,gives the following

Judgment

Background to the dispute

1The applicant, Mr Petrus Kerstens, is a former European Commission official. He worked in the ‘Office for the Administration and Payment of Individual Entitlements’ (PMO), where he was Head of Unit between 2003 and 2011, then as an adviser attached to the Directorate-General (DG) for Human Resources and Security. He has been retired since 1 April 2016.

2In the first place, on 20 July 2012, in the context of the resolution of a dispute between him and the Commission, the applicant wrote an internal memorandum, following which the Commission decided to initiate disciplinary proceedings with reference CMS 12/063, on the grounds that the memorandum contained remarks considered to be insulting. Those proceedings led to the adoption of the decision of 15 April 2014 imposing a reprimand on the applicant (‘the decision of 15 April 2014’).

3By the judgment of 18 March 2016, Kerstens v Commission (F‑23/15, EU:F:2016:65), the European Union Civil Service Tribunal dismissed the action brought against the decision of 15 April 2014.

4The applicant lodged an appeal against that judgment, which the Court upheld by its judgment of 14 February 2017, Kerstens v Commission (T‑270/16 P, not published, EU:T:2017:74).

5In that regard, the Court found, in paragraphs 62 to 70 of the judgment of 14 February 2017, Kerstens v Commission (T‑270/16 P, not published, EU:T:2017:74), that disciplinary proceedings CMS 12/063 had been opened without a prior administrative investigation being held, without the applicant being heard beforehand and without a report being duly drawn up on the conclusion of such an investigation, in disregard of the Commission’s obligations. In paragraphs 88 and 89 of that judgment, the Court concluded that the disciplinary proceedings, which should have been conducted by the appointing authority on the basis of such an investigation and a concluding report and after hearing the applicant, had been substantially vitiated by those failures, meaning that it could not be ruled out that the outcome of those proceedings would have been different had the rules governing them been complied with and had the applicant been heard. As a result, the Court annulled the decision of 15 April 2014.

6By a memorandum of 6 April 2017, the appointing authority informed the applicant that, in compliance with the judgment of 14 February 2017, Kerstens v Commission (T‑270/16 P, not published, EU:T:2017:74), it had instructed the Commission’s Investigation and Disciplinary Office (IDOC), first, to resume disciplinary proceedings CMS 12/063 ab initio with a new CMS number and, secondly, to withdraw the reprimand imposed on the applicant by the decision of 15 April 2014 from his personal file.

7On 18 April 2017, the applicant brought a complaint against the appointing authority’s memorandum of 6 April 2017.

8On 25 July 2017, the appointing authority dismissed that complaint.

9In the second place, on 7 September 2015, due to suspicions that confidential information had been disclosed to a recipient external to the institution, the appointing authority decided to open a new set of disciplinary proceedings against the applicant, with reference CMS 15/017. On 7 April 2016, the Disciplinary Board gave a reasoned opinion, in which it found that the applicant had not fulfilled his duty of loyalty and that a disciplinary sanction with financial consequences was justified. However, owing to an appeal brought by the applicant against the judgment of 18 March 2016, Kerstens v Commission (F‑23/15, EU:F:2016:65), the appointing authority decided to suspend those disciplinary proceedings pending the outcome of that appeal and informed the applicant thereof by a memorandum of 19 September 2016.

10By a memorandum of 27 March 2017, the Commission informed the applicant that, following the judgment of 14 February 2017, Kerstens v Commission (T‑270/16 P, not published, EU:T:2017:74), disciplinary proceedings CMS 15/017 had been resumed and that, since IDOC had not carried out an administrative investigation prior to hearing the applicant in accordance with Article 3 of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), it had instructed IDOC to resume those disciplinary proceedings at the stage where that irregularity, which was of the same type as that found by the Court in relation to the proceedings CMS 12/063, had occurred. The complaint brought by the applicant on 18 April 2017 against that memorandum was dismissed by the appointing authority on 25 July 2017.

11On 10 November 2017, the applicant brought an action for annulment of the memorandum of 27 March 2017 and also that of 6 April 2017 referred to in paragraph 6 above. By order of 26 June 2018, Kerstens v Commission (T‑757/17, not published, EU:T:2018:391), the Court held that the contested memoranda did not constitute acts adversely affecting an official as they should be classified as preparatory acts in the context of the disciplinary proceedings in progress. That order was confirmed on appeal by the order of 22 January 2019, Kerstens v Commission (C‑577/18 P, not published, EU:C:2019:129).

12In the third place, on 27 September 2016, the appointing authority opened separate disciplinary proceedings against the applicant, under reference CMS 16/009, in relation to ‘conduct not in keeping with the Staff Regulations’ adopted by him towards members of the administration in the context of disciplinary proceedings CMS 15/017.

13By a memorandum of 21 June 2017, IDOC sent the applicant the investigative mandates in proceedings CMS 15/017 (now CMS 17/009) and CMS 12/063 (now CMS 17/010). At the applicant’s request, his hearing in those proceedings and also in proceedings CMS 16/009 was postponed on several occasions. On 4 April 2018, IDOC sent the applicant a memorandum concerning the allegations made and invited him to submit his observations within ten days. The administrative investigation report was sent to DG Human Resources and Security on 1 August 2018. The applicant’s hearing took place on 28 January 2019.

14By a decision of 11 July 2019 (‘the contested decision’), closing proceedings CMS 16/009, CMS 17/009 and CMS 17/010, the appointing authority found that the applicant’s conduct constituted a failure to comply with Articles 11, 12 and 17 of the Staff Regulations. However, it decided not to open disciplinary proceedings against him but to address a warning to him under Article 3(1)(b) of Annex IX to the Staff Regulations.

15On 29 August 2019, the applicant lodged a complaint against that decision. That complaint was rejected by a decision of the appointing authority of 19 December 2019.

Procedure and forms of order sought

16By a document lodged at the Court Registry on 16 April 2020, the applicant brought the present action.

17The written part of the procedure was closed on 4 November 2020.

18On 30 November 2020, the applicant requested that a hearing be held pursuant to Article 106 of the Rules of Procedure of the General Court.

19On a proposal from the Judge-Rapporteur, the General Court (Seventh Chamber) allowed the applicant’s request and opened the oral part of the procedure.

20The parties’ oral argument and replies to the questions put by the Court were heard at the hearing of 22 April 2021.

21The applicant claims that the Court should:– annul the contested decision and the memorandum of 27 March 2017 from the appointing authority informing him of the resumption of proceedings CMS 15/017 (now CMS 17/009);– order the Commission to pay him compensation of EUR 30000 for the non-material damage which he allegedly suffered;– order the Commission to pay the costs.

22The Commission contends, in essence, that the Court should:– dismiss the action in its entirety;– order the applicant to pay the costs.

Law

The claim for annulment

23As a preliminary point, it must be recalled that, by the order of 26 June 2018, Kerstens v Commission (T‑757/17, not published, EU:T:2018:391), the Court already ruled that the memorandum of 27 March 2017 did not constitute an act adversely affecting an official. It must therefore be held that the claim for annulment of that memorandum is inadmissible.

24The applicant puts forward three pleas in law in support of his claim for annulment. In the first plea, he alleges that there was an infringement of Article 266 TFEU in that the Commission adopted inappropriate measures for enforcement of the judgment of 14 February 2017, Kerstens v Commission (T‑270/16 P, not published, EU:T:2017:74), with regard to the decision of 15 April 2014 which imposed a reprimand on him in disciplinary proceedings CMS 12/063 (now CMS 17/010) and an infringement of the principle non bis in idem. In a second plea, he alleges that there was an infringement of Article 266 TFEU, infringement of the principle of sound administration, including the obligation to treat cases fairly and impartially, infringement of the principle of presumption of innocence and a breach of the rights of the defence. Lastly, in a third plea, he alleges that there was an infringement of Article 266 TFEU, infringement of the procedural rules applicable to administrative investigations and disciplinary proceedings, a breach of the rights of the defence and infringement of the obligation to state reasons.

25The Court considers it appropriate to begin by examining the second plea.

26In the context of this plea, the applicant claims, in essence, that any new disciplinary proceedings must guarantee impartiality and fairness, as required by the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’). He states that there are two aspects to the principle of impartiality, one subjective and the other objective, meaning that the disciplinary authority is required, first, not to show bias or personal prejudice in its conduct and, secondly, to be objectively impartial by offering sufficient guarantees to exclude any legitimate doubt as to any possible bias.

27According to the applicant, the consequence of the disciplinary proceedings in the present case being resumed was that the same administrative authorities and same officials had to re-examine the files they had already dealt with, in breach of the principles referred to in paragraph 26 above.

28The applicant also argues that, by grouping together the three sets of disciplinary proceedings CMS 12/063 (now CMS 17/010), CMS 15/017 (now CMS 17/009) and CMS 16/009 into one single investigation, the appointing authority failed in its duty of objective impartiality. Grouping them together in this way reflects the appointing authority’s desire to exacerbate the charges against the applicant and have proceedings CMS 12/063 (now CMS 17/010) examined by a Disciplinary Board. According to the applicant, the three administrative investigations were conducted in different ways and it was only at the conclusion of those investigations that the three reports were combined as annexes to IDOC’s single final report.

29Lastly, the applicant states that the person in charge of the IDOC investigations for disciplinary proceedings CMS 12/063 (now CMS 17/010) and CMS 15/017 (now CMS 17/009) is the same person who made the allegations under investigation in the latter proceedings. He calls into question her subjective impartiality and also that of the Director-General of DG Human Resources and Security, who was involved in some of the proceedings relating to him. He also calls into question the impartial objectivity of the single investigation procedure given that that same person who had made the allegations participated in that investigation and was in charge of its conduct.

30The Commission maintains that the three sets of disciplinary proceedings relating to the applicant were grouped together for reasons of procedural economy. According to the Commission, in proceeding in that manner, IDOC and the appointing authority did not seek to aggravate the applicant’s situation or act to his detriment but, rather, allowed him to receive just one single warning in respect of all the matters underlying the three sets of proceedings.

31The Commission maintains, in relation to the issue of the impartiality of the person in charge of the investigations and that of the Director-General of DG Human Resources and Security, that the applicant is merely making insinuations and raising unverifiable concerns. According to the Commission, the same applies to the issue of the impartiality of the investigation procedure given that the person who made the allegations underlying proceedings CMS 15/017 (now CMS 17/009) participated in the investigation and was in charge of its conduct.

32It should be recalled that Article 41 of the Charter, which, pursuant to Article 6(1) TEU, has the same legal value as the Treaties, establishes the right to good administration. That right means, inter alia, that, under Article 41(1) of the Charter, every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.

33According to the case-law, it is for the administration, in accordance with the principle of sound administration, to examine carefully and impartially all the relevant aspects of the case before it and to gather all the factual and legal information necessary to exercise its discretion and to ensure the proper conduct and effectiveness of the procedures that it implements (see judgment of 26 September 2014, B&S Europe v Commission, T‑222/13, not published, EU:T:2014:837, paragraph 39 and the case-law cited).

34It must also be recalled that the requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as the institution must offer sufficient guarantees to exclude any legitimate doubt as to any possible bias (see judgment of 7 November 2019, ADDE v Parliament, T‑48/17, EU:T:2019:780, paragraph 43 and the case-law cited). When examining the impartiality of a collegiate procedure, the fact that doubts over the appearances of impartiality concern only one person within the collegiate body is not necessarily decisive, bearing in mind that that person could have had a decisive influence during the deliberations (judgment of 7 November 2019, ADDE v Parliament, T‑48/17, EU:T:2019:780, paragraph 58).

35As regards subjective impartiality, it is apparent from the case-law that this is presumed in the absence of evidence to the contrary (see judgment of 27 November 2018, Mouvement pour une Europe des nations et des libertés v Parliament, T‑829/16, EU:T:2018:840, paragraph 49 and the case-law cited).

36In that regard, it must be noted that, in the present case, the applicant has not submitted any evidence that would cast doubt on the subjective impartiality of the investigation procedure.

37As regards the objective impartiality of an investigation, it has already been recognised by the Court that this was lacking where it had been shown that, prior to the launch of the investigation, one of the investigators had knowledge of the relevant facts of the matter, having been personally consulted about it by a complainant, and where the institution concerned could have appointed as investigator a person with no prior knowledge of the facts, thus avoiding any legitimate doubt about his or her impartiality with regard to the other party (see, to that effect, judgment of 20 September 2019, UZ v Parliament, T‑47/18, under appeal, EU:T:2019:650, paragraphs 51 to 56).

38In the present case, it is not disputed that the person in charge of the conduct of the single investigation opened for the three sets of proceedings CMS 16/009, CMS 15/017 (now CMS 17/009) and CMS 12/063 (now CMS 17/010) was the same person who had made the allegations underlying proceedings CMS 15/017 (now CMS 17/009), namely, the Head of Unit HR IDOC 1.

39Furthermore, it has been established that the same person who made those allegations could have subsequently played an active role in the conduct of the investigation carried out in the context of proceedings CMS 15/017 (now CMS 17/009), in her capacity as the person responsible for managing the single investigation for the three sets of disciplinary proceedings. First, by a note of 21 June 2017, that person informed the applicant that she had received authority on 1 June 2017 to direct that investigation and appointed two investigators for that purpose. Secondly, the final investigation report was signed by her, which demonstrates her effective participation in the investigation.

40In that regard, the Commission acknowledged at the hearing that, even though there was no specific evidence to show that the person in question had played an active role, given that she was the person responsible for overseeing the investigation at issue and ensuring its quality and completeness, she had the ability to become involved on receipt of the proposal to hold an investigation.

41To the same effect, it has already been held that an investigator exercises his or her powers of investigation under the authority of the person in charge of the administrative investigation, who may give him or her instructions (judgment of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 70). It follows that the role of the person in charge of an administrative investigation is not merely a passive one and always affords that person the ability to become involved in an ongoing investigation.

42Therefore, it must be held that the situation at issue, in which the personal identity noted in paragraph 38 above is central, presented an objective risk that the person in charge of the conduct of the single investigation may have had a preconception or bias in relation to the applicant’s involvement in the matters of which he was accused in proceedings CMS 15/017 (now CMS 17/009) even before the investigation took place. In view, in particular, of that person’s role in the handling of the investigation and the influence which she may have had on the content of the final investigation report, it must be found that such a situation is likely to give rise to doubts in the applicant’s mind as to the objective impartiality of that investigation. In that regard, according to the case-law of the Court of Justice, the Court does not need to determine whether the person in charge of the single investigation was actually biased against the applicant, as it is sufficient for a legitimate doubt to arise which cannot be dispelled (see, to that effect, judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 37).

43In such circumstances, the applicant is justified in asserting that the Commission did not organise the investigation procedure carried out on the resumption of the three sets of disciplinary proceedings in a manner that offered him sufficient guarantees as to the objective impartiality of that procedure. That fact has the capability to vitiate the disciplinary proceedings in their entirety.

44However, according to settled case-law, a procedural irregularity can justify the annulment of an act only if, without such an irregularity, the outcome of the procedure might have been different (see, to that effect, judgment of 14 February 2017, Kerstens v Commission, T‑270/16 P, not published, EU:T:2017:74, paragraph 74 and the case-law cited).

45In the context of that examination, it is important to take account of all the circumstances of the case and, in particular, of the nature of the allegations and the scale of the procedural irregularities committed in relation to the guarantees which the official may have been given (judgment of 15 April 2015, Pipiliagkas v Commission, F‑96/13, EU:F:2015:29, paragraph 65).

46The disciplinary procedure laid down by Annex IX to the Staff Regulations provides for two distinct stages. The first stage consists of an impartial administrative investigation, initiated by a decision of the appointing authority, followed by the drafting of an investigation report and closed, after the person concerned has been heard on the facts alleged against him or her, by conclusions drawn from that report. The second stage comprises the disciplinary proceedings proper, initiated by the appointing authority on the basis of that investigation report, and consists either in disciplinary proceedings being initiated without the Disciplinary Board being consulted, or in the matter being referred to that board, on the basis of a report drawn up by the appointing authority in the light of the conclusions of the investigation and of the comments submitted by the person concerned in relation to that investigation.

47It follows that the administrative investigation plays an important role and can have an impact on the disciplinary proceedings. It is on the basis of that investigation and of the hearing of the official concerned that the appointing authority assesses, first, whether or not it is necessary to initiate disciplinary proceedings, secondly, whether or not those proceedings must, as the case may be, lead to the matter being referred to the Disciplinary Board and, thirdly, where it initiates proceedings before the Disciplinary Board, the facts to be referred to that board.

48Therefore, it cannot be ruled out that, had the administrative investigation been conducted with all the guarantees of impartiality, it would have led to a different assessment of the facts and, therefore, resulted in a different outcome (see, to that effect, judgment of 14 February 2017, Kerstens v Commission, T‑270/16 P, not published, EU:T:2017:74, paragraph 82).

49In those circumstances, it was legitimate for the applicant to harbour doubts about the objective impartiality of the investigation and, therefore, about the disciplinary proceedings concerning him.

50In the light of the foregoing, the second plea must be upheld and, accordingly, the contested decision must be annulled, without it being necessary to examine the other pleas relied on by the applicant.

The claim for damages

51The applicant claims that the Court should order the Commission to pay him compensation amounting to EUR 30000 for the non-material damage which he claims to have suffered. He argues that the three sets of disciplinary proceedings at issue, which have lasted almost eight, six and four years, have caused him stress and health problems. In addition, he submits that they have damaged his reputation and his respectability, whereas his career had previously been irreproachable.

52The Commission disputes the applicant’s arguments and contends that the claim for compensation should be dismissed.

53It should be recalled that, according to settled case-law regarding civil service matters, the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institution concerned, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (see, to that effect, judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 45 and the case-law cited). Those three conditions are cumulative, which means that if one of them is not satisfied, the European Union cannot be held non-contractually liable (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 78 and the case-law cited).

54It follows that, even if fault on the part of the institution, body, office or agency of the European Union is established, liability can actually arise only once the applicant manages to establish the fact and nature of the loss (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 79 and the case-law cited).

55It should also be recalled that, according to settled case-law, the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for any non-material damage which that measure may have caused (see, to that effect, judgments of 9 July 1987, Hochbaum and Rawes v Commission, 44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22, and of 9 November 2004, Montalto v Council, T‑116/03, EU:T:2004:325, paragraph 127 and the case-law cited).

56However, the annulment of an unlawful measure may in itself not constitute adequate compensation where the applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment (see judgment of 19 November 2009, Michail v Commission, T‑49/08 P, EU:T:2009:456, paragraph 88 and the case-law cited).

57In the present case, it must be found that the non-material damage alleged by the applicant is a direct result of the unlawfulness of the investigation procedure launched on the resumption of the three sets of disciplinary proceedings at issue.

58However, although the applicant claims that those proceedings caused him stress and health problems owing to their duration and damaged his reputation and his respectability, he has not submitted any specific evidence in support of his claims that is capable of establishing the existence of that damage.

59Therefore, the Court considers that the annulment of the contested decision will be adequate and sufficient compensation for any non-material damage which the applicant may have suffered.

60Accordingly, the claim for compensation must be dismissed.

61It follows from all the foregoing considerations that the action must be upheld in so far as it seeks annulment of the contested decision and must dismissed as to the remainder.

Costs

62Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.

63As the action has been successful in part, the Court makes an equitable assessment of the circumstances of the case and holds that the applicant should bear one-third of his own costs, with the rest of his costs being paid by the Commission, and that the Commission should bear its own costs.

Operative part

On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:

1.Annuls the decision of the European Commission of 11 July 2019 imposing a warning on Mr Petrus Kerstens;

2.Dismisses the action as to the remainder;

3.Orders the Commission to bear its own costs and to pay two-thirds of the costs incurred by Mr Kerstens.

Delivered in open court in Luxembourg on 20 October 2021.