C-270/99

Z v PARLIAMENT

OPINION OF ADVOCATE GENERAL JACOBS delivered on 22 March 2001 1

1. This is an appeal against a judgment of The relevant legislative provisions the Court of First Instance dismissing a claim that a decision of the European Parliament to downgrade the applicant on disciplinary grounds should be annulled. 2 4. Annex IX to the Staff Regulations of Officials of the European Communities lays down rules for the conduct of disciplinary proceedings. Those proceed- ings are divided into three stages.

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appointing authority decides — having The factual and procedural background regard to the reasoned opinion — what disciplinary measure, if any, to impose on the official. 8 7. The factual and procedural background to the case, as it appears from the judgment under appeal, may be summarised as fol- lows. 6. Time-limits for the conduct of disciplin- ary proceedings are laid down in Article 7 of Annex IX. That provision reads as follows: 8. Mr Z (hereinafter: 'the appellant') entered the service of the European Parlia- ment in 1977. During the period which is in issue in these proceedings (1988 to 1995), 'After consideration of the documents sub- he was employed within Directorate-Gen- mitted and having regard to any statements eral I (registry and general services) of the made orally or in writing by the official European Parliament where he was in concerned and by witnesses, and also to the charge of the members' mail service. He results of any inquiry undertaken, the was appointed principal clerical officer in Disciplinary Board shall, by majority vote, grade C 1 with effect from 1 May 1989. deliver a reasoned opinion [on] the disci- plinary measure appropriate to the facts complained of and transmit the opinion to the appointing authority and to the official concerned within one month of the date on which the matter was referred to the Board. 9. In 1993 an employee in the service The time-limit shall be three months where headed by the appellant, submitted a com- an inquiry has been held on the instructions plaint to the management of the Parliament of the Board. registry alleging, among other things, that the appellant was guilty of sexual harass- ment. After investigating that complaint, the director-general of the registry conclu- ded, in a note of 16 September 1993, that there was insufficient proof of the allega- tions made.

— inadequate organisation of the mem- bers' mail service; 14. The Disciplinary Board submitted its reasoned opinion to the appointing author- ity on 3 September 1996. That opinion, which is cited in the judgment under appeal, found that there was sufficient — removal of items of mail. proof of a number of the allegations made

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Z v PARLIAMENT

21. With regard to the question of delay, lant's argument had been limited to show- the Court of First Instance referred, on the ing that the time-limits in Article 7 of one hand, to the judgments of the Court of Annex IX had not been respected, and the Justice in Van Eick v Commission, F. v Parliament had argued — without being Commission and M. v Council 9 and, on the contradicted by the appellant — that the other hand, to its own judgments in De procedure had been highly complex and Compte v Parliament, D. v Commission delayed by the hearing of a large number of and Daffix v Commission. 10 Relying on witnesses. Moreover, the appellant had those authorities, the Court of First been suspended without any reduction in Instance held that: 'According to the case- his salary pending the administrative pro- law of the Court [of Justice]..., the time- cedure and he had, following his transfer, limits laid down in Article 7 of Annex IX been given the opportunity to start a new are not mandatory but constitute rules of career in a different service. 12 sound administration with the result that a failure to observe those time-limits may render the institution liable for any damage caused to those concerned, but cannot of itself affect the validity of a disciplinary sanction imposed after their expiry.... Whilst the Court of First Instance has held... that a failure to comply with those The appeal time-limits may result in the decision being declared void, that case-law cannot be interpreted as penalising every failure to comply with time-limits by automatic 23. In the appeal, the appellant claims that annulment.... It follows from the foregoing the Court of Justice should annul the that only the fulfilment of a set of specific judgment of the Court of First Instance on conditions can, in specific cases, affect the the grounds that that Court erred in law in validity of a disciplinary measure imposed holding that the contested decision was not after expiry of a time-limit.' 11 void and declare the contested decision void.

Annex IX to the Staff Regulations, sec- Admissibility ondly, the Parliament violated the princi- ples of diligence and good administration which apply in disciplinary proceedings and, thirdly, the Parliament had also acted in breach of Article 6(1) of the European 26. The appellant contends, in his second Convention on Human Rights which enti- argument, that the Court of First Instance tles everyone to a determination of their erred in law by failing to annul the civil rights and obligations within a reason- contested decision on the grounds that the able time. In connection with those argu- Parliament did not conduct the disciplinary ments, the appellant asserts that the Court proceedings against him within a reason- of First Instance failed to examine the able time as required by the principles of particular circumstances of the case in diligence and good administration, and that order to determine whether the decision the Court of First Instance failed to exam- of the appointing authority was, in the light ine the specific circumstances of the case. of its own case-law concerning delay in disciplinary proceedings, void.

27. I consider that those arguments are, contrary to the Parliament's assertions, admissible.

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of law. While the Court of Justice may conducted within a reasonable time and, intervene if the Court of First Instance third, in breach of Article 6(1) of the wrongly applied Community law by, for European Convention on Human Rights. example, applying the wrong legal test to an issue or by basing its legal conclusions on insufficient reasoning, 13 it cannot review primary findings of fact made by the Court of First Instance. The Court of 31. It is useful to consider those three Justice can, however, review the legal arguments separately. assessment, or qualification, of the primary facts on which a judgment of the Court of First Instance is based. 14 Where the Court of First Instance determines that — in the light of the various steps taken by the Parliament in the course of the disciplinary Article 7 of Annex IX to the Staff Regula- procedure leading to the adoption of the tions contested decision — the conditions for annulment set out in its own case-law are not fulfilled, that determination is, in my 32. Article 7 of Annex IX to the Staff view, a legal assessment which is review- Regulations gives the Disciplinary Board a able by this Court. period of one month (extended to three months where there is an inquiry) within which to deliver its reasoned opinion, and confers on the appointing authority a further period of one month within which to take its decision. The Staff Regulations do not explicitly provide for the legal Substance consequences of a breach of those time- limits, and it has been left to the Commu- nity judicature to resolve the issue.

34. I fully agree with that case-law. must be interpreted strictly for reasons of legal certainty and equality of treatment.

37. I cannot accept that argument. The case-law cited by the appellant is concerned with the commencement of legal proceed- 35. Disciplinary proceedings should, in the ings before the Court of Justice and the interest of the affected members of staff Court of First Instance. As the Parliament and the Community administration itself, points out, that case-law cannot be applied be completed as swiftly as possible. Speed is by analogy to time-limits in disciplinary however not all. Decisions about disciplin- proceedings. It is true that a strict applica- ary matters often have serious implications tion of the time-limits laid down in Arti- for the members of staff. It is therefore cle 7 of Annex IX would enable members important that those decisions be based on of staff to predict the maximum waiting correct and relevant facts, and that the period for a decision. That would not affected individuals be afforded all the however enhance legal certainty or equality procedural guarantees intended by the Staff of treatment, because the time-constraints Regulations. It would not be possible to imposed on the administration would comply fully with those requirements if no increase the risk of legally flawed decisions. decision could ever be taken after the expiry of the periods laid down in Article 7 of Annex IX to the Staff Regulations. A disciplinary procedure might take longer, in particular, where the administration has to 38. I would therefore reject the appellant's consider complex and numerous allega- first argument. The Court of First Instance tions, where it is necessary to hear several did not err in law by holding that the witnesses in order to establish the facts or contested decision was not void on the sole where the official has been unable to attend ground that it was taken outside the time- meetings due to illness. limit laid down in Article 7 of Annex IX to the Staff Regulations.

40. It must be recognised, as a starting- point for consideration of the appellant's argument, that slow administration is bad 41. The obligation to conduct proceedings administration. There is no doubt that the within a reasonable time is moreover of principles of good administration require particular importance in disciplinary pro- the Community administration, in all pro- ceedings since those subject to such pro- cedures which may lead to the adoption of ceedings may lose some or all of their a measure adversely affecting the interests income while suspended and will be in a of one or more individuals, to avoid undue state of uncertainty about their continued delay and to ensure that each step in the employment within the administration procedure is carried out within a reason- while the proceedings are pending. able time following the previous step. 17 It may be noted in that regard that the Committee of Ministers of the Council of Europe has recognised that the obligation to take administrative decisions within a reasonable time is one of the basic princi- ples which should guide the exercise of 42. It is therefore not surprising that the Court of First Instance has held that there is 17 — That applies in administrative proceedings relating to competition policy, see Case C-282/95 P Cuérin automo- an obligation to conduct disciplinary pro- biles v Commission [1997] ECR I-1503, paragraphs 37 and 38 of the judgment; Joined Cases T-213/95 and ceedings within a reasonable time. Thus, in T-18/96 SCK and FNK v Commission [1997] ECR 11-1739, paragraphs 55 and 56; Case T-228/97 Irish Sugar v Commission [1999] ECR II-2969, paragraph 276; in anti-dumping procedures, see Case 246/87 Continentale 18 — Recommendation No R (80) 2 of the Committee of Produkten-Gesellschaft [1989] ECR 1151, paragraph 8; Ministers Concerning the Exercise of Discretionary Powers and in procedures relating to payment of grants awarded by Administrative Authorities, adopted on I I March under the European Social Fund, see Joined Cases 1980, Section II 'Basic Principles', principle 5. T-180/96 and T-181/96 Mediocurso v Commission [1998] ECR II-3477, paragraph 6 1 ; Case T-182/96 Partex 19 — See the numerous decisions concerning 'avoidable delay' v Commission [1999] ECR II-2673, paragraph 177. See available at www.euro-ombudsman.eu.int: for example, furthermore on the dury to terminate the employment of Decision on complaint 632/97/PD against the European an official within a reasonable period after the expiry of his Commission, paragraph 1.1; Decision on complaint 88/99/ probationary period, Case 92/75 Van de Roy v Commis- BB against the European Parliament, paragraph 2.4. sion [1976] ECR 343. 20 — Done at Nice, 7 December 2000: OJ 2000 C 364, p. 1.

De Compte v Parliament 21 the applicant 44. Given that there is a duty to conduct argued that a disciplinary sanction should administrative proceedings within a reason- be annulled because the decision imposing able time, the question therefore arises it had been taken outside the time-limits what remedies should be made available laid down in the first and third paragraphs in situations where the administration fails of Article 7 of Annex IX to the Staff to fulfil that duty. Regulations. The Court of First Instance held that '[A]though those time-limits are not mandatory,... it follows from the importance attached by the Community legislature to sound administration that disciplinary authorities are under an obli- gation to conduct disciplinary proceedings with due diligence and to ensure that each 45. The Community judicature has already procedural step is taken within a reason- considered that question in a number of able period following the previous step'. 22 areas of Community law. In most of those areas, the Courts have taken the view that while delay in administrative proceedings may be relevant for determining whether the Community administration has violated the principles of legal certainty and legit- 43. There is also support for the existence imate expectations 26 or infringed the rights of an obligation to conduct disciplinary of defence of the persons concerned, it proceedings within a reasonable time in the cannot of itself justify the annulment of case-law of the Court of Justice. The administrative decisions. judgment of the Court of First Instance in De Compte was the subject of an appeal to the Court of Justice. 23 In contrast to the Court of First Instance, the Court of Justice did not rule explicitly that there was an obligation to conduct disciplinary proceed- ings within a reasonable time. However, it noted without disapproval that the Court of First Instance had recognised 'the prin- 46. Thus, in Picciolo v Commission 27 the ciple that each procedural step must be Court of Justice held that whilst a failure by taken within a reasonable period following the Community administration to draw up the previous step', 24 and it held on that a periodic staff report within the time- basis that the Court of First Instance had limits laid down in the Staff Regulations 'is not erred in law by finding that the capable, in certain cases, of giving the procedure conducted against the appellant official concerned a right to a remedy, such had followed, in principle, the normal delay cannot in any circumstances affect course. 25 the validity of the periodic report'. 28 Con-

sidering an allegation that the Commission 47. The Court of First Instance has how- had failed in its duty to act within a ever taken a different view in cases con- reasonable time in administrative proceed- cerning disciplinary proceedings pursuant ings relating to competition policy, the to the Staff Regulations. In De Compte v Court of First Instance ruled in Limburgse Parliament, it held that it 'follows from the Vinyl Maatschappij v Commission 29 that importance attached by the Community '[w]here it has not been established that the legislature to sound administration that undue delay has adversely affected the disciplinary authorities are under an obli- ability of the undertakings concerned to gation to conduct disciplinary proceedings defend themselves effectively, failure to with due diligence and to ensure that each comply with the principle that the Com- procedural step is taken within a reason- mission must act within a reasonable time able period following the previous step. cannot affect the validity of the adminis- Failure to comply with that period (which trative procedure and can therefore be can be assessed only in the light of the regarded only as a cause of damage capable specific circumstances of the case) may not of being relied on before the Community only render the institution liable, but may judicature in the context of an action based also result in the measure adopted after the on Article 178 and the second paragraph of expiry of the period being declared void.' 33 Article 215 of the Treaty'. 30 The case of That judgment was confirmed by the Court Oliveira v Commission 31 concerned a of First Instance in D. v Commission and claim that the Commission had failed to Daf f ix v Commission. 34 In the judgment implement a judgment of the Community under appeal, and similarly in Irving v judicature within a reasonable time. After Commission, the Court of First Instance finding that there had not been undue refined its position, holding that its own delay, the Court of First Instance held that case-law 'cannot be interpreted as penalis- ing every failure to comply with time-limits '[i]n any event, in annulment proceedings, by automatic annulment' and that 'only the even an unreasonable period cannot in fulfilment of a set of specific conditions itself render the contested decision unlaw- can, in specific cases, affect the validity of a ful and thus justify its annulment for breach disciplinary measure imposed after expiry of the principle of legal certainty.

of Justice. In Van Eick v Commission 3 6 the 29 — J o i n e d Cases T-305/94, T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-33J/94 [1999] ECR II-931. 30 — Paragraph 122 of the judgment. 33 — Case T-26/89, cited in note 10, paragraph 88 of the 31 — Case T-73/95 [1997] ECR II-381.

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Court of Justice considered a claim that a 50. There is, as I have explained above, 41 a disciplinary measure taken outside the clearly discernible pattern in the case-law time-limits in Article 7 of Annex IX to the of the Community judicature suggesting Staff Regulations should be annulled. It that delay cannot of itself lead to the rejected that claim on the grounds that 'the annulment of administrative decisions. time-limit laid down by [Article 7 of There are to my mind no compelling Annex IX] cannot be regarded as a man- reasons to adopt a different approach in datory period of limitation the failure to the context of disciplinary proceedings. observe which entails the nullity of the measures adopted after its expiry.' 37 That ruling was confirmed in F. v Commission 38 and M. v Council. 39 In the latter case, the Court held that 'the fact that the time-limit of one month [laid down in Article 7 of Annex IX to the Staff Regulations] was exceeded does not in any way affect the validity of the contested decision'. 40 The 51. I am encouraged in that view by a Court of Justice did not by those statements survey of the laws of the Member States. exclude the possibility that the principles of While disciplinary sanctions imposed on diligence and good administration, on civil servants may be annulled solely on which the case-law of the Court of First grounds of delay in some legal systems, Instance is based, can lead to the annul- such as those of Belgium, 42 the Nether- ment of a decision independently of a lands 4 3 and Spain, 44 the prevailing view is violation of the time-limits laid down in that delay is not an independent source of Article 7 of Annex IX. Indeed, it appears invalidity. that that possibility was not considered by or even raised before the Court of Justice in those cases.

53. A Community institution which fails to 55. I consider for those reasons that a conduct disciplinary proceedings within the failure to conduct disciplinary proceedings time-limits laid down in Article 7 of within a reasonable time — as required by Annex IX or which fails to take procedural the principles of good administration — steps within a reasonable time may, accord- cannot of itself result in the decision being ing to settled case-law, be liable for any loss declared void. Delay might however affect caused to those concerned. 46 A person who the validity of a decision if, for example, it has been the subject of a lengthy disciplin- prevented the affected person from defend- ary procedure might therefore depending ing himself effectively, or if it gave the on the circumstances be entitled to com- affected person a legitimate expectation pensation for lost income, for missed that no — or a reduced — disciplinary opportunities of promotion, and perhaps sanction would be imposed. In such cir- for non-material harm such as the uncer- cumstances, it would be open to the tainty and anxiety caused by the delay. In Community courts to annul the decision the present case, however, no such question on the grounds that it breached the princi- arises since no claim for damages has been ple of the rights of defence or the principle made. of respect for legitimate expectations.

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58. I would, for those reasons, reject the particular the judgments in Pellegrin v appellant's second argument. France, Launikari v Finland and Kepka v Poland, 48 that disputes concerning disci- plinary measures imposed on civil servants do not fall wholly outside the scope of Article 6(1) of the Convention. Contrary to the Parliament, I consider therefore that the Court should not dismiss the appellant's argument on the ground that 'Article 6 of Article 6(1) of the European Convention the Convention does not apply to what are on Human Rights strictly disciplinary matters within the public service'. 49

59. Article 6(1) of the European Conven- tion on Human Rights provides, in so far as is relevant, that: 62. It is however clear both from the wording of Article 6(1) and from the case- law of the European Court of Human Rights that that provision is concerned with delay in judicial proceedings. Disci- plinary proceedings pursuant to the staff 'In the determination of his civil rights and regulations are administrative rather than obligations or of any criminal charge judicial in nature. 50 It follows that delay in against him, everyone is entitled to a fair such proceedings cannot constitute a and public hearing within a reasonable breach of Article 6(1) of the Convention. time by an independent and impartial tribunal established by law'.

(2) order the appellant to pay the costs.

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