Have you been IDOC(ed)?

You have probably already asked yourself: What is IDOC? What is a difference between an administrative inquiry and disciplinary procedure? What are possible sanctions? Will I be treated fairly?

IDOC stands for Investigation and Disciplinary Office of the Commission [1]. (Nearly) everything that the IDOC does is secret. You might be under an IDOC investigation at the very moment that you are reading this article. The 2022 IDOC report informs that in 2022 it registered 104 new cases. A notable 2021 example is that of a colleague who worked from abroad for a month without permission[2].

In this article you will find the replies to these and to other questions as well as some practical information.

What is IDOC for?

‘IDOC seeks to ensure that all staff members or former staff members [3] comply with their statutory obligations by conducting administrative inquiries, pre-disciplinary proceedings, disciplinary and suspension proceedings, in an impartial, transparent, and timely manner'(page 4, IDOC practical guide). [Bold and links are not present in original.]

What happens in the real world can differ. See the comments in italics.

Comment: These 3 elements that are the basis of IDOC code are not always applied as they should be. More details about real situation below. There is also an IDOC practical guide aimed at helping you to understand this complicated process.

How does an IDOC investigation work?

IDOC is activated upon information received on a potential breach of the staff regulations (SR) by a Commission staff member. The sources can be various: DGs, OLAF, PMO, Medical Service or even one of your colleagues. Cases may also be opened following requests for assistance filed by staff members (e.g. SR Article 24, Article 73 or Article 90(1)). Other sources are external and include complaints and media/press reports.

The IDOC will not carry out an administrative inquiry if OLAF is already investigating. At the end of the OLAF internal investigation, the case, with recommendations for disciplinary action, is handed over to the Secretary General. It is then transferred to DG HR who can give permission to (‘mandate’) IDOC to carry out a disciplinary procedure in order to impose administrative sanction, since these are not handled by OLAF. The procedure is the same as if the facts and the responsibility of the person concerned were established by a judgment of a national Court.  The conduct of OLAF’s investigations is governed by Regulation (EU, Euratom) No 883/2013, also called the ‘OLAF regulation’.

IDOC carries out first a preliminary assessment to see if there are grounds (a beginning of proof) to open an administrative investigation. If there is nothing found, the case can be closed at this stage by the director of HR.

Comment: At this stage there is no transparency which cases are opened or which cases are closed. Political considerations might also impact a decision – IDOC is hierarchically under DG HR and its independence, although theoretically guaranteed, is in practice limited. The staff representation complained about this during the revision of the disciplinary procedure in 2019, but their comments were not taken into consideration.

The assessment of what constitutes ‘a beginning of proof’ is totally subjective. In theory the information provided by a staff member is to be assessed according to the same standards as information coming from a Director General or the Secretary General. In practice a denouncement made by hierarchy will have a higher weight.

If the preliminary assessment confirms that there is a beginning of proof of a potential breach of the Staff Regulations by a staff member, the Director-General for Human Resources and Security may decide to mandate IDOC to open an administrative inquiry. The inquiry is opened after a mandate from DG HR and in agreement with the Secretary General.

Comment: Only when an administrative inquiry is opened, a person concerned will find out that IDOC was investigating on him/her. Your DG will be also informed about the enquiry, although your DG can already be in copy of a request to investigate. Again, there is no transparency for cases that are closed before that point.

If an administrative inquiry is opened, IDOC is supposed to do two things: (1) establish the facts and (2) determine the individual responsibility of the person(s) concerned with respect to the facts and circumstances of the case. A part of the procedure is a hearing, where the official is interrogated.

Comment: IDOC can be flexible with facts and circumstances to suit the planned report conclusion. There is recent case law on this subject (Cristescu vs Commission, T‑754/20, decision annulled), where for example, among many irregularities,  due to career changes, a Director General that signaled a case to IDOC was in the position to choose the follow-up of that very case, without this situation being considered as a conflict of interest, as at this point there is as yet no ‘adversely affecting act’ (‘acte faisant grief’ in French). According to existing  interpretation of case law ( see Obst v Commission, T-562/93, paragraphs 22 and 23 and Marcopoulos v Court of Justice, T-32/89 and T-39/89, paragraph 21) by the Administration or the Ombudsman , mentioned in the SR ‘adverse effect’ takes place only  at the end of the procedure, i.e. when a sanction is imposed. It gives free hand to IDOC and HR to impose various sanctions not envisaged in the SR: e.g. removal from the promotion list.

A person concerned can be accompanied by anyone at hearings. Being accompanied can be useful, to better take notes on what is being said, or for support in cases where the IDOC investigator my try to intimidate. Your colleagues and superiors might be interviewed too. A hearing is rather a formality as IDOC’s assumptions are, in practice, difficult to modify.

The investigation report is then sent by IDOC to the person accused for comments which are annexed to it. Based on the inquiry report the Appointing Authority (AIPN in French) decides whether to launch pre-disciplinary proceedings or to close the case without follow-up. Based on this investigation report, communicated to the official concerned which should contain all evidence the Appoint Authority (which happens to be the same person as HR DG) may:

  • close the case
  • not to impose any disciplinary measures even if there was failure to comply with obligations
  • address a warning,
  • initiate disciplinary proceedings with or without disciplinary board.

Comment: This practically ends an administrative procedure at IDOC.  As you can notice, nothing serious happens at this stage, not directly anyway. This will be the final stage for minor infractions or if politically convenient. There can be of course unofficial consequences, like absence on a promotion list (mentioned above). For financial sanctions a disciplinary procedure with a disciplinary board will be needed, as a disciplinary procedure without disciplinary board in the worst case, can only end with a reprimand.

Any failure by a staff member or former staff member to comply with their obligations under the Staff Regulations whether intentionally or negligently renders them liable to disciplinary proceedings and a potential disciplinary penalty. Where the appointing authority considers the alleged wrongdoing to be sufficiently serious as to warrant a financial penalty, the case is referred to the disciplinary board (disciplinary proceedings with referral to the disciplinary board).   A simplified procedure applies in cases where the appointing authority considers that the facts in principle do not merit a penalty more severe than a written warning or reprimand (disciplinary proceedings without referral to the disciplinary board).

The disciplinary board consists of a chair, usually a former judge of the Court of Justice of the European Union (ECJU) and two members selected by the Administration and two appointed by Staff Committee at minimum administrator (AD)14 grade, and AD16 for IDOC AD14 of higher level ‘IDOC customers’. If a person concerned has a grade below AD13, two additional members are added in the same grade (one from administration and one from the Staff Committee) who are in the same function group and grade as the person concerned. For contract agents, the two additional members are appointed via an ad hoc procedure agreed by the authority empowered to conclude contracts of employment and the staff committee. The disciplinary board is assisted in its proceedings by a secretary.

Comment: due to organisational and staff issues for which HR is responsible, it can take many months before an opinion of the board can be released. An additional problem is that the disciplinary procedures can easily stretch beyond one year, or much longer if a criminal investigation is handed over to national justice system. DG HR removes persons under investigations from promotion lists, which is an additional sanction not envisaged by the SR and violates the presumption of innocence principle, a principle clearly phrased in the Commission decision. This practice of ‘parallel justice’ for lack of any legal base is practically unjust for colleagues who were cleared from accusations yet their career was not restored. When finding out that the AIPN has removed a colleague from the promotions list for this reason, the colleague can and should appeal via an Article 90(2) complaint. However the complaint will eventually end up with the same person who took the decision in the first place so, good luck! But having a declined Article 90(2) is a necessary step to challenge the decision in court, which, so far, no one has yet done.

Before a case is sent to the Disciplinary board, the Appointing Authority/DG HR submits a report to the Disciplinary Board, stating clearly the facts complained of and, where appropriate, the circumstances in which they arose, including any aggravating or extenuating circumstances. The report is addressed in parallel to the person concerned.

Comment: The report is drafted by IDOC, and the same comments apply as for the administrative report. IDOC acts more like a prosecutor, trying to present a charging evidence and not particularly insisting on being objective and balanced. The reason for it may be a fact that IDOC director will act in an accusation role before the disciplinary board.

A procedure before Disciplinary Board beyond (a) a written warning and (b) a reprimand, can conclude with following sanctions:

(c) deferment of advancement to a higher step for a period of between one and 23 months;(d) relegation in step;

(e) temporary downgrading for a period of between 15 days and one year;

(f) downgrading in the same function group;

(g) classification in a lower function group, with or without downgrading;

(h) removal from post and, where appropriate, reduction pro tempore of a pension or withholding for a fixed period, of an amount from an invalidity allowance.

The effects of the penalty must not extend to dependents, and income must not go below the minimum subsistence figure, plus family allowances.

 

Comment: The legislator anticipated a possible inventiveness of the administration and stated that a person concerned can only be sanctioned with one of these sanction for a single case of misconduct (Article 10 of Annex IX (disciplinary proceedings) lists such grounds as impact on reputation of the institution, motivation, grade etc.).

When imposing a sanction the Appointing Authority (being in most cases DG HR, currently Ms Gertrud Ingestad) is not obliged to follow the sanction proposed in its opinion by the Disciplinary Board. There is nothing like a criminal code. The decision is therefore taken in an arbitrary way and usually harsher then proposed by the Disciplinary Board. The CJEU usually rubberstamps this approach because of a ‘tripartite’ element of Appointing Authority at deciding on sanction. The role played by DG HR in such body cannot be underestimated.

There is a particular approach and framework for harassment investigations. The outcome might not be all that a victim of harassment could dream of, but due to some specificities, it was a subject of a separate article.

In its 2022 annual report, IDOC presents the way it works, the procedures and some anonymised cases. The purpose it to warn you of which acts can be punished and what the sanctions may be.

Comment: You will also find some statistics on the cases, but because the procedures are very long, the statistics do not reflect the real length of cases. IDOC avoids mentioning how long the procedures last. The cases are definitely worth reading. The lecture will give you some views: even if Commission loses in Court, it still decides to impose a sanction, apparently ignoring the Court. The report warns you in this way: winning in court will not spare you from a sanction. The second conclusions is position of colleagues with temporary contracts. In their case it seems that even if cleared his/her contract might not be extended. This situation clearly shows double standards.

Time to conclude

There is evident need for an independent, transparent and impartial investigative and disciplinary authority, which the current situation does not seem to guarantee it. It might be surprising, but Article 90(2) complaints will be treated by the same person or service who has overseen the investigation and participated in selecting the sanction. The only independent review is possible with lodging the case at the CJEU, which can cost more than EUR 10 000. It is clearly not justice for all, and colleagues will think twice before going this path.

When analysing the IDOC activities it is very difficult to have a holistic view, because everything is secret. However secrecy should not serve as a cover for impunity. Change is needed. For example, contrary to IDOC investigations, in OLAF there is an independent Supervisory Committee consisting of five independent outside experts appointed by common agreement of the European Parliament, the Council of the EU and the European Commission. An additional control level in OLAF is the Controller of procedural guarantees, responsible for handling complaints regarding OLAF’s compliance with procedural guarantees and the rules applicable to its investigations, who acts in complete independence. Such independent review and control elements are absent in the case of IDOC investigations. Staff members being under investigations carried out by IDOC do not enjoy the same rights as those being under OLAF investigations.

For most of you this text will be a summary of what IDOC and disciplinary procedures are about. It is always better to avoid becoming a ‘customer’ of IDOC. However, if some of you after reading this text come to the conclusion that they were treated unfairly under these administrative and disciplinary procedures please contact Generation 2004 or your staff representative who has your confidence. You might help us improve the current status quo.

As always, we would love to hear from you. Please do not hesitate to get in touch with us or leave a comment below.

If you appreciate our work, please consider becoming a member of Generation 2004.


[1]The legal basis for its work is (1) Article 86 of the Staff Regulations and mainly (2) Annex IX to the Staff Regulations, together with (3) Commission Decision C (2019) 4231 of 12 June 2019 laying down general implementing provisions on the conduct of administrative inquiries and disciplinary proceedings.

[2] IDOC activity report 2021, page 12, oddly under ‘unauthorised absences’.

[3] Did you know that after retiring you should also behave, otherwise DG HR may decide to reduce you pension for some time? There is a case on it in the 2022 IDOC report (p.9).

 

 

 

 

 

One thought on “Have you been IDOC(ed)?

  1. Fake News:
    COMMISSION DECISION C(2019)4231 of 12.6.2019 laying down general implementing provisions on the conduct of administrative inquiries and disciplinary proceedings
    Principles, rights and obligations

    Article 3 – General principles
    1. IDOC shall carry out all its tasks objectively and impartially, in conformity with the principles of legality, proportionality and confidentiality, taking account of all circumstances brought to its knowledge.
    2. The presumption of innocence shall apply at all procedural stages.

    The truth

    Court of Justice: Case T 220/20 Petrus Kerstens against European Commission (See paragraphs 43, 48 and 49)

    In such circumstances, the applicant is justified in maintaining that the Commission did not organize the investigation procedure conducted when the three disciplinary proceedings were resumed in such a way as to offer him sufficient guarantees as to the objective impartiality of that procedure. This circumstance is likely to vitiate the disciplinary procedure as a whole.

    Consequently, it cannot be ruled out that, if the administrative inquiry had been conducted with all guarantees of impartiality, that inquiry could have led to a different assessment of the facts and, thus, led to different consequences (see, in that meaning, judgment of 14 February 2017, Kerstens v Commission, T 270/16 P, unpublished, EU:T:2017:74, paragraph 82).

    In those circumstances, the applicant could harbor legitimate doubts as to the objective impartiality of the investigation and, therefore, of the disciplinary proceedings to which he was subjected.

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