ACTIVITY REPORT OF
THE INVESTIGATION AND DISCIPLINARY OFFICE OF THE COMMISSION
(IDOC)
2008
IDOC in 2008
INQUIRY ACTIVITIES
What are they?
The administrative inquiries conducted by IDOC are a fact-finding exercise intended to allow the
appointing authority (AA) to assess any situation that could lead to possible disciplinary action.
These inquiries by IDOC take account of all aggravating and extenuating factors, which means that
all the facts are sought in an objective and impartial way. The inquiries are generally launched to
check whether the conduct in question is a breach of the Staff Regulations, but experience shows
that only a minority of these inquiries end up identifying breaches. Most detect no breach of the
rules and are closed without further action.
ADMINISTRATIVE INQUIRIES OPENED
17 administrative inquiries and 102 hearings
The AA gave IDOC
mandates to conduct
17 administrative inquiries, which gave rise to
102
hearings to establish the facts and, if necessary, determine if there was any breach of the
obligations to which officials and other agents of the Commission are bound.
CONDUCT CONCERNED
Physical aggression
Unauthorised outside activity
Unauthorised disclosure of confidential information
Falsification and use of false documents
Psychological harassment
Irregularities in relation to a competition procedure
Irregularities in relation to the payment phase of Community funds
Mistreatment of children in a Commission
crèche Improper language
Irregular use of the diplomatic bag
ADMINISTRATIVE INQUIRIES CLOSED
18 administrative inquiries and 17 files closed without further disciplinary action
18 administrative inquiries produced a final report, which was submitted to the AA for
appropriate action.
In
17 cases, the AA decided that no charge could be brought against the official concerned and that
the file therefore had
to be closed without further disciplinary action.
The duration of the administrative inquiries depends on various factors, such as the complexity of
the case, the number of hearings to be conducted and the availability of the persons to be heard.
Leaving aside all these differences, the average duration of the administrative inquiries closed
during 2008 was 7.7 months1. This average is considered reasonable, but IDOC aims to reduce it,
in particular by speeding up its investigations of the simplest cases.
ACTIVITIES LINKED TO DISCIPLINARY PROCEEDINGS
PRE-DISCIPLINARY HEARINGS
24 mandates issued by the appointing authority
IDOC received
24 mandates from the AA to carry out the preliminary hearing provided for in
Article 3 of Annex IX to the Staff Regulations before a decision is taken on whether to initiate
disciplinary proceedings or not. The majority of these hearings followed a final inquiry report from
OLAF or IDOC. In some cases, however, the facts had been established sufficiently to leave no
need for an administrative inquiry.
CONDUCT CONCERNED
Unjustified absences
Unauthorised outside activity
Physical aggression
Falsification and use of false documents
Inappropriate behaviour and breach of the duty of loyalty
Conflict of interest
Psychological harassment
Irregularities in the handling of medical expenses claims
Irregularities in the management of contracts
Improper language
Irregular use of the diplomatic bag
RESULTS
3 cases closed without follow-up
4 warnings
In the light of the reports on the preliminary hearings carried out by IDOC, the AA decided
to close
3 cases without further action because no charge could be brought again the official concerned
due either to lack of sufficient evidence of a breach of the Staff Regulations or to specific
circumstances which could clear the person concerned.
1 This means the actual duration of the inquiry, from issuing the mandate to IDOC to transmission of the final
inquiry report to the AA. The actual duration excludes any time during which the inquiry is suspended on
legitimate grounds, such as unavailability for medical reasons of the person concerned or of a key witness.
2
In
4 cases in 2008 the AA decided to issue a warning to the official concerned (in accordance with
Article 3 of Annex IX to the Staff Regulations). Although a warning is not a disciplinary penalty, it
confirms a minor violation of the obligations under the Staff Regulations. It is recorded in the
personnel file of the person concerned and remains on the record there for 18 months.
Conduct leading to a warning
Filing claims for undue reimbursement of medical expenses for a low amount
Financial irregularities in award and performance of study contracts
On-line advertising of consultancy services in a field of activities directly linked to the tasks
performed by the member of staff in the department where he is employed
Irregular use of the diplomatic bag to send undeclared personal belongings
Filing claims for undue reimbursement of medical expenses for a low amount. This conduct was
considered contrary to the obligations enshrined in Articles 11 and 12 of the Staff Regulations,
which require officials to conduct themselves solely with the interests of the Communities in mind
and to refrain from any action or behaviour which might reflect adversely on their position. The AA
decided, however, not to open disciplinary proceedings against the official concerned because the
medical claims in question concerned a very small amount (€150), which had been reimbursed, and
the official concerned had committed no previous breaches of the Staff Regulations.
Financial irregularities in award and performance of study contracts. The facts, which dated
back to a dozen years earlier, had been investigated by OLAF, which found that the procedures
established by the old Financial Regulation for selecting successful bidders and awarding contracts
had not been fully observed. However, the AA decided not to open disciplinary proceedings against
the official concerned because the facts dated back a long time, had no impact on the Community
budget and had led to no personal advantage for the person concerned and also because the rules
applicable at that time were not totally clear and were not backed up by a vade-mecum in the DG
concerned.
On-line advertising of consultancy services in a field of activities directly linked to the tasks
performed by the member of staff in the department where he is employed. This conduct by an
agent in active employment, who was mentioning his status in his on-line CV,
was considered to
reflect adversely on his position and, therefore, to be contrary to the obligation of loyalty which the
first sentence of Article 11 of the Staff Regulations imposes on all officials vis-à-vis their institution
and their hierarchy. However, the AA decided not to open disciplinary proceedings against the
person concerned, considering the apology made by him and that the website in question had never
really worked.
Irregular use of the diplomatic bag to send undeclared personal belongings. This misuse of the
immunity conferred on the diplomatic bag under the Vienna Convention of 18 April 1961,
following reminders contained in several notes sent to Commission staff, would normally have
triggered disciplinary proceedings due to breach of the obligation of loyalty provided for in the first
sentence of Article 11 of the Staff Regulations. However, the AA considered that it was not
appropriate to open a disciplinary proceeding against an official who had recently retired and whose
conduct in the service had always been irreproachable.
3
DISCIPLINARY PROCEEDINGS OPENED AND CLOSED
15 disciplinary proceedings, of which 8 before the Disciplinary Board
Following the preliminary hearing provided for by Article 3 of Annex IX to the Staff Regulations,
the AA decided,
in 15 cases, to open disciplinary proceedings against the officials concerned,
of
which 8 were before the Disciplinary Board.
CONDUCT CONCERNED
Unjustified absences
Unauthorised outside activity
Physical aggression
Inappropriate behaviour and breach of the duty of loyalty
Conflict of interest
Falsification and use of false documents
Three disciplinary proceedings opened in previous years
were
closed in 2008,
with a penalty
(see below).
One disciplinary proceeding against an official accused of psychological harassment was finally
closed with a warning.
In this case the AA chose not to impose a disciplinary measure due to the
lack of sufficient evidence of behaviour falling within the definition of psychological harassment in
Article 12a(3) of the Staff Regulations. However, the AA decided to issue a warning to the person
concerned because of inappropriate conduct in his relationships with some of his colleagues.
Another disciplinary proceeding, opened in 2007 against a probationer official, was closed
without penalty in 2008, since the person concerned was not established after the probation period.
The disciplinary proceeding had been opened following the arrest and conviction of the person
concerned for offences linked to child pornography. Based on established case law, the conduct of
an official during the probation period must be taken into account in assessing whether it is in the
interest of the service to establish the person concerned. Since Article 27 of the Staff Regulations
aims at
“securing for the institution the services of officials of the highest standard of ability,
efficiency and integrity (…)”, the conduct to be taken into account for this purpose is not limited
solely to the conduct of the probationer official during working hours.
Based on Article 27 of Annex IX to the Staff Regulations, minor disciplinary measures such as
written warnings are recorded in the personnel file of the individuals concerned for a three-year
period, whereas more serious measures remain on the record there for six years.
The duration of disciplinary proceedings depends on whether they involve the Disciplinary Board
or not. This is required when the penalty envisaged entails financial consequences for the person
concerned. The average length of disciplinary proceedings closed in 2008 was 15 months if the
Disciplinary Board was not involved and 34.5 months if it was2. In two cases, this average duration
was exceeded because of a parallel criminal prosecution for the same offences before a national
court, as the AA cannot adopt a final decision until a final judgment has been given by the court
hearing the case.
2 This means the actual duration of the procedure, from the time it is opened to the final decision closing it (imposing
a penalty, issuing a warning or closing the procedure without further action).
4
The lengthy duration of disciplinary proceedings is due to the procedural guarantees linked to
legitimate exercise of the rights of defence. To ensure good administrative practice, in 2008 IDOC
analysed the reasons for delays in the course of disciplinary proceedings, with the aim of
eliminating or considerably shortening any unnecessary delays. To this end, changes were decided
to facilitate tripartite AA meetings responsible for hearing the person concerned and deciding the
appropriate penalty. This simplification will apply from 2009 on and should considerably shorten
the average duration of disciplinary proceedings not involving the Disciplinary Board.
DISCIPLINARY DECISIONS TAKEN
3 disciplinary decisions
The AA adopted
3 disciplinary decisions, ranging from a written warning to removal from post.
CONDUCT SANCTIONED
Failure to inform the AA of a conflict of interest
False information provided at the time of recruitment and failure to inform the AA of a
conflict of interest
A prolonged irregular absence
The failure to inform the AA of a conflict of interest was punished by a
written warning to the
chairperson of an evaluation committee who, in the course of a procurement procedure, participated
in a selection process in which one of the bidders was a firm belonging to the chairperson’s partner.
This omission, which occurred before the reform of the Staff Regulations, was considered contrary
to Article 14 of the old version which stipulated that
“Any official who, in the performance of his
duties, is called upon to decide on a matter in the handling or outcome of which he has a personal
interest such as to impair his independence shall inform the appointing authority.” In 2004
Article 14 of the old version of the Staff Regulations was replaced by the new Article 11a. Since its
content is in any event similar, the offence has therefore not disappeared and the AA was still
empowered to punish it.
The circumstances that, in this particular case, the person concerned had no right to vote and had
participated neither in the opening of the submissions nor in the deliberations of the evaluation
committee were not considered grounds to exonerate him. Instead, in the light of the established
case law and bearing in mind the fundamental objectives of independence and integrity pursued by
Article 14 of the Staff Regulations (old version) and the obligation incumbent on the official
concerned to inform the AA as a precaution, that Article has wide scope. It covers any circumstance
which an official called upon to decide on a case should reasonably understand as being of a nature
which might appear, to any third party, to be a possible source of compromising his independence
in that case. Therefore, the question whether the person concerned was actually able to influence
the award of the contract or not was judged irrelevant.
The facts that the firm known by the person concerned was not awarded the contract, that the
offence had no financial impact, that the offence dated back a long way into the past and that the
person concerned was no longer working explain the low level of the penalty imposed by the AA.
False information provided at the time of recruitment and failure to inform the AA of a conflict
of interest led the AA to
downgrade one temporary agent by
three steps.
5
The temporary agent concerned had omitted, at the time of his recruitment, to declare his previous
activities within a State security service. His previous employer had dismissed him for the same
reason.
In accordance with Article 50(1) of the conditions of employment of other servants,
“The
employment of a member of the temporary staff shall be terminated by the institution without notice
if the authority referred to in the first paragraph of Article 6 finds: (a) that at the time of his
engagement he deliberately furnished false information as to either his professional ability or (…)
and (b) that the false information furnished was a determining factor in his being engaged.”
The Disciplinary Board considered, however, that even if the omission in question was equivalent
to false information, as provided for in Article 50(1), it was not proven that, had that information
been given to the authority authorised to conclude contracts, the authority would have not recruited
the person concerned. Therefore, according to the Disciplinary Board, the conditions set out in
Article 50(1) for terminating the contract of the person concerned were not met.
The person concerned used to work on research projects in which the following companies were
also participating: (i) as principal contractor, an enterprise in which his wife was working for the
director and (ii) as sub-contractor, an enterprise in which he used to work before being recruited as
a temporary agent. In this context, the person concerned had committed several irregularities, as
pointed out by the Disciplinary Board, in management of the contracts and projects involving the
two enterprises in question.
In accordance with Article 49(1) of the conditions of employment of other servants,
“… employment [of a temporary agent] may be terminated without notice on disciplinary grounds in
serious cases of intentional or negligent failure of temporary staff to comply with their obligations
….”
The Disciplinary Board considered, however, that although this double conflict of interests was in
breach of Article 14 of the old version of the Staff Regulations, this violation was not serious
enough to warrant termination of the contract. In this context, the Disciplinary Board pointed to
certain extenuating circumstances making a minor disciplinary penalty more appropriate, notably
the lack of knowledge, on the part of the person concerned, of the financial management rules at
that time, the fact that the offence dated back a long way into the past and the environment in which
it had been committed. The AA considered it appropriate to share that opinion.
A prolonged irregular absence led the AA to
remove from post an official who had been absent
from work, without explanation, for several years.
The person concerned had stopped providing medical certificates and had no longer been in touch
with the European Commission, without providing the slightest explanation, for a very long time.
In accordance with the first paragraph of Article 60 of the Staff Regulations, he had forfeited his
salary when his rights to leave had been used up.
The decision to remove him from his post took into account the opinion of the Disciplinary Board
and noted this persistent breach of the obligation of loyalty imposed by the first sentence of
Article 11 of the Staff Regulations.
6
OTHER ACTIVITIES
TRAINING AND PREVENTION
IDOC contributes to training on disciplinary matters for information and prevention purposes. In
the course of 2008, IDOC participated in around ten training and prevention activities.
ETHICS
IDOC has contributed actively to implementation of the Communication on ethical matters in the
Commission, adopted on 5 March 20083, in particular by coordinating and facilitating the network
of ethics correspondents, whose first meeting was held on 3 October 2008 and attended by
Vice President Kallas.
3 SEC (2008) 301.
7
STATISTICAL DATA REGARDING IDOC’S ACTIVITIES IN 2008
Pending cases on 31/12/2008 = 101
25
22
20
20
18
16
15
13
12
10
5
0
Administrative
Art. 3
Disciplinary
National authorities
OLAF
Administrative
inquiries
procedures
verifications
New cases opened in 2008
24
25
20
17
15
15
10
5
0
Administrative inquiries
Art. 3
Disciplinary procedures
8
Number of hearings in 2008
102
105
85
65
45
22
25
10
9
5
Administrative inquiries
Art. 3
Disciplinary board
AA triparty meetings
-15
Number of cases closed in 2008
24
25
23
19
20
15
10
7
5
0
Administrative inquiries
Art. 3
Disciplinary procedures
Non case
9