Impartiality and Staff Regulations

Art. 11 SR stipulates: “An official shall carry out his duties and conduct himself solely with the interests of the Union in mind. He shall neither seek nor take instructions from any government, authority, organisation or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Union.”

Impartiality and Charter of Fundamental Rights

At the same time, every civil servant can rely on Art. 41 of the Charter of Fundamental Rights (Charter), because the institutions, bodies, offices and agencies of the Union are required to respect the right to good administration enshrined in Art. 41 of the Charter. According to Art. 41(1) of the Charter, each person has a right to have their affairs handled impartially (…) by the institutions, bodies, offices and agencies of the Union, including in matters relating to the management of civil service, such as the appointment, assessment, promotion and disciplining of staff.

Impartiality in disciplinary proceedings

The applicant in Case UZ/Parliament, a head of unit, filed an application against the disciplinary decision to downgrade her and to reset the promotion points to zero, for reason of alleged harassment. Several of her colleagues had filed complaints against her. She challenged the disciplinary decision on the basis of an infringement of her right of impartiality. A disciplinary procedure is divided in two distinct stages.

The first stage consists in an impartial administrative investigation followed by the drafting of an investigation report, and closed, after the person concerned has been heard on the facts alleged against him or her, by conclusions drawn from that report. The second stage consists in the disciplinary proceedings proper, initiated by the Appointing Authority on the basis of that investigation report, and consists either in the initiation of disciplinary proceedings without consultation of the Disciplinary Board, or in the matter being referred to that board, on the basis of a report drawn up by the Appointing Authority in the light of the conclusions of the investigation and of the comments submitted by the person concerned in relation to that investigation.

The Court found in that case that at the time of his appointment, an investigator had already met one of the complainants and could already have held a negative opinion of the applicant. This called into question the objective impartiality of the investigator.

Lack of impartiality is a procedural irregularity that can justify the annulment of a measure only if, had it not been for such an irregularity, the outcome of the procedure might have been different. Yet, no strict evidence is required here: the Court applies this criterion in the sense that it cannot be ruled out that, if the administrative investigation had been conducted with care and impartiality, that investigation might have resulted in a different initial assessment of the facts and, thus, led to different consequences.

Particularly, an infringement of objective impartiality cannot be easily remedied, as it is likely to undermine the legality of the administrative procedure as a whole. Case Wolff/Commission was about the role of a rapporteur in an assessment committee. In its judgment, the Court refrained from examining whether or not the participation of a certain expert had influenced the decision adopted and instead confined itself to finding that there was a legitimate doubt as to objective impartiality, which could not be dispelled.

Similarly, in Case Kerstens/Commission an investigation leading to the disciplinary sanction of a reprimand was organised by a person who had already knowledge about the facts underlying the investigation before the procedure commenced. This raised legitimate doubts as to the objective impartiality of the investigation.

Impartiality in the appeal procedure against an appraisal report

In Case Pethke/EUIPO the Court treated the question whether a superior was an impartial appeal body for review of the appraisal report of a staff member, where the same superior had played an important role in setting up the respective appraisal report before, as of reporting officer. Prior knowledge of facts alone does not make a person partial. For example, reporting officers cannot be regarded as being biased and non-objective solely because as superiors they are involved in the professional activities of their staff. Quite the opposite, it is rather that involvement that enables them to give the most appropriate assessment of the activities of the staff member.

Here, however, the applicant’s former superior, in charge during three quarters of the period in question, was instrumental for drawing up the respective assessment. The fact that he decided again in the internal appeal procedure raised doubts as to his impartiality as appeal assessor.

The Court decided on this that the obligation of impartiality constitutes a fundamental guarantee which must be respected, since otherwise the staff member would be deprived of his effective right to a genuine review. This is also important with a view to the functionality of an institution: an internal appraisal review procedure can contribute to the objectivity of the assessment and thus prevent litigation.

In more general terms, the Court held in Case CJ/ECDC that an appeal assessment must not be entrusted to a hierarchical subordinate of the reporting officer. The staff member who challenges his appraisal report must be sure that a genuine review will be carried out. That presupposes that the appeal assessor is able to assess freely the merits of the staff member’s complaint and, where appropriate, uphold it by calling into question the reporting officer’s appraisal. It is doubtful whether that would be the case where an appeal assessor who is hierarchically subordinate to the reporting officer and who is, therefore, himself assessed by the reporting officer conducts the appeal.