The judgment of 14 February 2017 concerns a case that the Federation defended before the highest jurisdiction of the European legal order. It condemns the Commission for the Investigatory and Disciplinary Office's excesses.
That office, commonly known as IDOC, carries out administrative enquiries and prepares disciplinary procedures at the Appointing Authority's request. It is now clear that, in the case in question, the office failed to respect fundamental elements of its own procedures designed to guarantee defendants' rights. That is what the Court of Justice just ruled, in the appeal that the Commission lost.
Judgment T-270/16P particularly criticises the practice of launching legal proceedings without first having carried out a thorough administrative enquiry, as provided for in Annex IX to Staff Regulations. It also establishes that the defendants' rights had been disregarded.
In 2016 already, the Civil Service Tribunal had condemned the Commission's Administration for its failure to respect its duty of care during disciplinary proceedings carried out by the IDOC.
The Federation is pleased by this decision of the EU's Court of Justice on two counts.
First, the decision upholds the complaints of one of our members: the Federation, by supporting and taking on the battle of for one of our members wanted to remind the Administration of its duty to respect fundamental rights, the Staff Regulations and established case-law, as well as the General Implementing Provisions drawn up by the DG HR for IDOC to implement. The Administration must respect both general legal principles and the internal rules which derive from them and which provide the framework for its activities.
Second, the case-law established by judgment T-270/16P provides timely confirmation of why the Federation is justified in insisting on a thorough revision of the rules and practices concerning IDOC's activities.
It is vital and urgent for the DG HR to negotiate with social partners to revise the General Implementing Provisions for IDOC. The aim of that revision must be to guarantee the impartiality and the clarity of procedures, IDOC's independence and full respect for defendants' rights, whatever the hierarchical position or legal status of the person concerned.
The Administration could usefully take inspiration from the improved procedures introduced for OLAF and, in particular, the creation of a "procedural guarantees controller" and the introduction of a calendar for exchanges allowing colleagues concerned to be informed that a procedure has been launched in their regard, of its length, of the different steps and of the possibility to be assisted by a person of their choice.
The Federation is strongly opposed to any change to the General Implementing Provisions concerning IDOC that would have any aim other than providing a clear, independent and unbiased legal framework for investigation procedures.
The Federation urges all colleagues heard by IDOC since 2016 not to allow themselves to be intimidated or discouraged. Please contact us so that we can check whether there was any irregularity that could invalidate the procedure and, where appropriate, to denounce any failure to respect the rules.
You will never walk alone !