Case T‑569/16
OU
v
European Commission
(Civil service — Contract staff — Disciplinary proceedings — Suspension — Sums withheld from remuneration — Reprimand — Repayment — Article 24(4) of Annex IX to the Staff Regulations)
Summary — Judgment of the General Court (First Chamber), 26 April 2017
Officials — Disciplinary measures — Disciplinary proceedings — Sums withheld from the remuneration of a contractual agent in the context of suspension from his duties — Right to repayment of the sums withheld — Refusal justified by the gravity of the misconduct penalised — Refusal unfounded
(Staff Regulations, Annex IX, Art. 24(4))
Officials — Disciplinary measures — Penalty — Definition — Sums withheld from remuneration — Not included
Actions brought by officials — Unlimited jurisdiction — Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations — Concept — Action claiming repayment of the sums withheld from remuneration — Inclusion
(Staff Regulations, Art. 91(1))
Article 24(4) of Annex IX to the Staff Regulations provides that it is on the basis only of the penalty imposed in the decision closing disciplinary proceedings that it may be determined whether sums withheld from remuneration must be repaid, and the assessment of the gravity of the misconduct of the person concerned has no relevance in that regard.
The right to repayment of sums withheld is only available, under this provision, to staff on whom no penalty has been imposed, or on whom a written warning, a reprimand or a temporary deferment of advancement to a higher step has been imposed, on conclusion of disciplinary proceedings.
By refusing to repay to the applicant, on whom it had imposed a reprimand, sums withheld from his remuneration, the authority empowered to conclude contracts of employment (AECE) infringed Article 24(4) of Annex IX to the Staff Regulations.
(see paras 32, 38, 39)
Under Article 10 of Annex IX to the Staff Regulations, the disciplinary penalty imposed is to be commensurate with the seriousness of the misconduct. Nonetheless, sums withheld from remuneration do not constitute a disciplinary penalty, but only a temporary measure taken pending the conclusion of disciplinary proceedings and, as the case may be, adoption of a disciplinary penalty. Sums withheld from remuneration can therefore not be used by the administration to redress possible discrepancies between the gravity of a member of staff’s misconduct and the penalty imposed on him on conclusion of disciplinary proceedings.
(see para. 33)
Since a dispute concerning repayment of retentions made from a temporary servant’s remuneration pursuant to Article 24(4) of Annex IX to the Staff Regulations is of a financial character, the EU judicature has unlimited jurisdiction, pursuant to Article 91(1), second sentence, of the Staff Regulations.
(see para. 42)