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Decision in case 152/2017/BKB on the decision by the Council of the European Union to declare inadmissible a complaint against staff disciplinary proceedings

Available languages: en
  • Case: 152/2017/BKB
    Opened on 14 Feb 2017 - Decision on 14 Feb 2017
  • Institution(s) concerned: Council of the European Union

The case concerned the decision by the Council of the European Union to declare inadmissible a complaint made by a former staff member against the decision to open disciplinary proceedings against him. The Ombudsman inquired into the issue and found no maladministration by the Council.

The background to the complaint

1. The complainant, a former official of the Council of the European Union (‘Council’), was removed from his post, following disciplinary proceedings, which had found him to have breached his obligations under the Staff Regulations.

2. Before being removed from his post, the complainant had filed a complaint under Article 90(2) of the Staff Regulations[1] against the decision of the Appointing Authority to initiate disciplinary proceedings against him.

3. The Council rejected the complainant’s complaint under Article 90(2) of the Staff Regulations as inadmissible.

4. Unsatisfied with this decision, the complainant turned to the Ombudsman in January 2017.

The inquiry

5. The Ombudsman opened an inquiry into the complaint that the Council was wrong to declare inadmissible the complaint under Article 90(2) of the Staff Regulations against the decision to open disciplinary proceedings against the complainant.

6. In the course of the inquiry, the Ombudsman’s inquiry team duly considered the information provided in the complaint. In particular, the inquiry team carried out a thorough analysis of the correspondence that had taken place between the Council and the complainant before the complainant turned to the Ombudsman.

Arguments made by the Council and the complainant

7. The Council noted Article 90(2) of the Staff Regulations sets out that “any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely”. According to the settled case-law[2], an “act adversely affecting” a staff member means a measure producing binding legal consequences liable to affect the staff member’s interest directly and immediately by significantly changing his or her legal situation.

8. The Council considered the complainant’s complaint under Article 90(2) of the Staff Regulations to be inadmissible because a decision to initiate disciplinary proceedings constitutes a preparatory procedural stage only and it does not prejudge the final decision of the administration. That decision did not immediately affect the complainant’s interest by changing his legal situation. The outcome of the disciplinary proceedings was at that time still unknown. 

9. In staff cases, measures the purpose of which is to prepare a decision, are not acts adversely affecting staff members within the meaning of Article 90(2) of the Staff Regulations, even if the staff member’s personal perception may be that s/he is adversely affected. More specifically, the purpose of a decision to initiate disciplinary proceedings is to assess the veracity and the gravity of the facts attributed to the staff member concerned and to hear him or her on the matter in order to make an informed decision whether to take disciplinary measures. A decision to initiate disciplinary proceedings can be challenged only incidentally in an action brought against the final disciplinary decision adversely affecting the staff member concerned, or in an action brought against another adversely affecting act drawing its motivation from the final disciplinary decision. Therefore, the decision to initiate disciplinary proceedings cannot be considered an act adversely affecting the official within the meaning of Article 90(2) of the Staff Regulations. The complainant’s complaint under Article 90(2) of the Staff Regulations was therefore inadmissible.

10.  The Council advised the complainant that should a final disciplinary decision affect him adversely, he would have the right to submit a complaint against that decision, in the context of which he could question the legality of the decision to initiate the disciplinary proceedings.

11.   The complainant argued, in summary, that the Council’s investigation against him was disproportionate, that it was initiated on the basis of “insignificant information” and hearsay, and that it was of a harassing, defamatory and discriminatory nature.

12.  The complainant argued that the Council proceedings should have been closed following the decision of the Belgian judicial authorities not to pursue the matter. He argued that the decision to initiate disciplinary proceedings against him affected him adversely in his everyday professional and private life.

The Ombudsman's assessment

13.  The Council has given the complainant a detailed explanation of why it considered his complaint under Article 90(2) of the Staff Regulations to be inadmissible.

14.  The Council was correct in concluding, on the basis of its detailed explanation, that the decision to initiate disciplinary proceedings is not an act adversely affecting the staff member, within the meaning of Article 90(2) of the Staff Regulations.

15.  None of the arguments put forward by the complainant in his complaint to the Ombudsman challenges the Council’s position that a decision to initiate disciplinary proceedings is not an act adversely affecting a staff member through a change of that staff member’s legal situation.

16.  The complainant does not appear to have made a complaint under Article 90(2) of the Staff Regulations against the final disciplinary decision to remove him from his post. Such a complaint would have been the appropriate way to challenge the Council’s procedure leading to that decision.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion[3]:

There was no maladministration by the Council of the European Union.

The complainant and the Council of the European Union will be informed of this decision.

 

Strasbourg, 14/02/2017

Tina Nilsson

Head of Inquiries - Unit 4

 

 

 

 

[1] Article 90(2) reads as follows:

“Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. The period shall start to run:

– on the date of publication of the act if it is a measure of a general nature;

– on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person; if, however, an act affecting a specified person also contains a complaint against another person, the period shall start to run in respect of that other person on the date on which he receives notification thereof but in no case later than the date of publication;

– on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request as provided for in paragraph 1.

The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.”

[2] Judgment of the Court of First Instance of 15 June 1994, Perez Jimenez v Commission, T-6/93, ECLI:EU:T:1994:63, paragraph 34 ; Judgment of the Court of First Instance of 22 March 1995, Kotzonis v Economic and Social Committee, T-586/93, ECLI:EU:T:1995;54, paragraph 28 and Judgment of the Court of First Instance of 19 October 1995, Obst v Commission,  T-562/93, [1995] ECR-SC I-A-00247, II-00737, paragraph 23

[3] Information on the review procedure can be found on the Ombudsman’s website: http://www.ombudsman.europa.eu/en/resources/otherdocument.faces/en/70669/html.bookmark