OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 7 December 2023 (1)

Case C‑587/21 P

European Union Agency for Fundamental Rights (FRA)

(Appeal – Civil Service – Temporary staff – Disciplinary procedure – Compliance with judgments of the Civil Service Tribunal and of the General Court of the European Union – Article 3 of Annex IX to the Staff Regulations of Officials of the European Union – Annulment of a reprimand – Non-material damage – Limitation period not prescribed by a provision of EU law – Concept of ‘reasonable period’ – Start of the reasonable period – Obligation on the Courts of the European Union to take account of the particular circumstances of each case – Article 32(2) of Regulation (EC) No 45/2001 – Duty of care – Contradictory statement of reasons)

I. Introduction

1. By his appeal, DD, the appellant seeks to have set aside the judgment of the General Court of 14 July 2021, DD v FRA (T‑632/19, ‘the judgment under appeal’, EU:T:2021:434), by which the General Court dismissed his action based on Article 270 TFEU seeking compensation for the non-material damage he allegedly suffered and annulment of the decision of the Director of the European Union Agency for Fundamental Rights (FRA) of 19 November 2018 rejecting his request for compensation.

2. The appeal, which falls within the scope of EU civil service law, contains eight grounds of appeal in which the appellant claims that the General Court committed various errors of law. In accordance with the request of the Court of Justice, this Opinion will focus on the second ground of appeal concerning, in essence, the extent of the discretion enjoyed by the EU administration when complying under Article 266 TFEU with a judgment having the effect of annulling a decision it has adopted in the context of disciplinary proceedings. That situation necessarily raises the question of the extent to which the administration is bound to respect the procedural rights of the official or other staff member concerned, in particular the right to be heard.

3. The present case gives the Court of Justice an opportunity to provide clarification of its case-law in this area, in the interests of legal certainty and of effective protection of the rights laid down in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) relating to good administration, in particular the right to be heard. In doing so, the Court should rule on the relevance of certain provisions of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), governing key aspects of disciplinary proceedings.

II. Legal framework

The Staff Regulations of Officials of the European Union

4. Article 86 of the Staff Regulations, contained in Title VI thereof, entitled ‘Disciplinary measures’, reads as follows:

‘1. Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.

2. Where the Appointing Authority or [the European Anti-fraud Office (“OLAF”)] becomes aware of evidence of failure within the meaning of paragraph 1, they may launch administrative investigations to verify whether such failure has occurred.

3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’

5. Article 3 of Annex IX to the Staff Regulations reads:

‘1. On the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the Appointing Authority may:

(a) decide that no case can be made against the official, in which case the official shall be informed accordingly in writing; or

(b) decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the official; or

(i) decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex, or

(ii) decide to initiate disciplinary proceedings before the Disciplinary Board.’

6. Article 22 of Annex IX to the Staff Regulations provides:

‘1. After hearing the official, the Appointing Authority shall take its decision as provided for in Articles 9 and 10 of this Annex within two months of receipt of the opinion of the Board. Reasons must be given for the decision.

2. If the Appointing Authority decides to close the case without imposing any disciplinary penalty, it shall so inform the official concerned in writing without delay. The official concerned may request that this decision be inserted in his personal file.’

7. Article 27 of Annex IX to the Staff Regulations provides:

‘An official against whom a disciplinary penalty other than removal from post has been ordered may, after three years in the case of a written warning or reprimand or after six years in the case of any other penalty, submit a request for the deletion from his personal file of all reference to such measure. The Appointing Authority shall decide whether to grant this request.’

8. Article 29 of Annex IX to the Staff Regulations reads as follows:

‘If no case has been made against the official pursuant to Articles 1(3) and 22(2) of this Annex, the official shall be entitled to request that the damage suffered should be made good through suitable publicity for the decision of the Appointing Authority.’

III. Background to the dispute, the proceedings before the General Court and the judgment under appeal

A. Background to the dispute

9. The appellant, DD, was recruited on 1 August 2000 by an agency of the European Union, the European Monitoring Centre on Racism and Xenophobia (EUMC), now the FRA, as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’). Initially employed under a fixed-term contract, he was given a contract of indefinite duration from 16 December 2006.

10. In 2009, and then in the context of the appraisal exercise relating to 2011 and, in particular, in bringing an appeal in accordance with the internal rules of the FRA against the draft appraisal report (‘the internal appeal’), the appellant claimed to be the victim of discrimination based on his race or ethnicity.

11. In the light of the words and tone used in the internal appeal, the Director of the FRA initiated an administrative inquiry on 9 November 2012.

12. Following a hearing held on 20 February 2013, the purpose of which was to hear the appellant in accordance with Articles 2 and 11 of Annex IX to the Staff Regulations, applicable by analogy to contract staff, the Director of the FRA imposed a reprimand on the appellant.

13. Finally, by letter of 13 June 2013, the Director of the FRA informed the appellant of his decision to terminate his contract of indefinite duration (‘the termination decision’).

14. By judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, ‘the annulment judgment’, EU:F:2015:118), the Civil Service Tribunal annulled the reprimand. The reason for that annulment was that the appellant’s right to be heard had been infringed, in that the Director of the FRA had omitted to communicate the conclusions of the administrative inquiry to him before the hearing on 20 February 2013 and had therefore not enabled him effectively to prepare his defence (the annulment judgment, paragraph 63).

15. In that judgment, the Civil Service Tribunal also annulled the termination decision on the ground that that decision was adopted without the Director of the FRA, beforehand, having expressly informed the appellant that he was envisaging the termination of the latter’s contract on the basis of various incidents and that he had not invited him to express any comments he might have on that matter (the annulment judgment, paragraph 90).

16. The Civil Service Tribunal, however, rejected the appellant’s claim for damages seeking compensation for the non-material damage caused by the administrative inquiry on three grounds: first, because the appellant could not reasonably claim that the complaints made against him were not adequately defined for the inquiry to be initiated (the annulment judgment, paragraph 74); secondly, because the fact that the administrative inquiry was conducted without the FRA having first adopted the general arrangements for implementing Article 2 of Annex IX to the Staff Regulations and thereby defined the procedural framework of the inquiry was not such as to vitiate that inquiry (the annulment judgment, paragraph 75); and, thirdly, because, although the appellant was heard without having been able effectively to prepare his defence, the fact remained that the appellant had merely referred in his application to stress and anxiety during the administrative inquiry without substantiating his claims in more detail (the annulment judgment, paragraph 76).

17. The Civil Service Tribunal also rejected the appellant’s claims for damages in respect of the non-material damage caused by the fact that the reprimand had unfairly affected his integrity, dignity and reputation within the FRA. The Civil Service Tribunal noted in particular in that regard that, since the annulment of the reprimand stemmed from a breach of the appellant’s right to be heard, it was not excluded that a different decision would have been adopted had he been heard. Consequently, the Civil Service Tribunal held that the claims for damages were premature, if it were not to prejudge the FRA’s execution of the annulment judgment (the annulment judgment, paragraphs 78 to 82).

18. The Civil Service Tribunal also rejected the appellant’s claim for damages in respect of the material and non-material damage caused by the illegality of the termination decision. As regards the non-material damage, the Civil Service Tribunal found that the appellant had merely stated that that decision had caused him deep psychological trauma and had adversely affected his reputation and dignity, without demonstrating that that damage could not be entirely remedied by the annulment judgment (paragraph 107).

19. The appellant brought an appeal against the annulment judgment, which was dismissed by the General Court in its judgment of 19 July 2017, DD v FRA (T‑742/15 P, ‘the judgment on appeal’, EU:T:2017:528).

20. In the meantime, from 1 March 2016, the FRA reinstated the appellant in his position and paid him the salary he had not received.

21. Furthermore, the appellant had filed, on 12 April 2013, a complaint with the European Data Protection Supervisor (EDPS) on the ground that the administrative inquiry had been conducted in breach of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1). The EDPS suspended the examination of that complaint pending the annulment judgment, then pending the judgment on appeal.

22. On 18 December 2017, the EDPS considered that, since it had not established a sufficient legal framework for the opening and the conduct of the administrative inquiries, the inquiry concerning the appellant had infringed Article 4, Article 5(a) and Articles 11 and 12 of Regulation No 45/2001. Those findings became final on 16 March 2018, following the EDPS’s rejection of requests for revision from the person concerned and the FRA.

23. On 19 July 2018, the appellant submitted a request, under Article 90(1) of the Staff Regulations, seeking payment of a sum of EUR 100 000 by way of financial compensation for a series of unlawful acts committed by the FRA (‘the request for compensation’). First, the appellant claimed that the administrative inquiry was opened without being based on a sufficiently serious suspicion based on evidence that he had accused his supervisor of racial discrimination and that the inquiry had rather been based on exaggeration and manipulation. Secondly, the appellant submitted that the administrative inquiry, the disciplinary proceedings, the reprimand and the termination decision constituted discrimination based on his ethnic origin. Thirdly, the appellant stated that the opening and the conduct of the administrative inquiry had infringed Article 4, Article 5(a) and Articles 11 and 12 of Regulation No 45/2001. Fourthly, the appellant asserted that the reprimand and the termination decision had been based on an unlawful administrative inquiry which contained offensive and defamatory language. Fifthly, the appellant claimed that the FRA had made offensive and defamatory remarks, that it had infringed his right to the presumption of innocence and that it acted in breach of his right to privacy and to data protection during the administrative inquiry, during the disciplinary proceedings, in the reprimand and in the termination decision, during the proceedings before the Civil Service Tribunal, the General Court and the European Parliament’s Committee on Budgetary Control, and as a result of the publication of articles in the press concerning the annulment judgment. According to the appellant, the abovementioned conduct, taken as a whole, constituted psychological harassment. Sixthly, the appellant took the view that the FRA had thus infringed its duty of care by failing to take into consideration all the factors which might have affected its decisions and its conduct and, in particular, by failing to inform him as early as possible of the allegations made against him. Finally, the appellant added that all those unlawful acts had caused him stress, anxiety, uncertainty and feelings of neglect and disregard. Humiliated, he claimed to have also suffered from the condescension and scorn with which he had been treated.

24. On 19 November 2018, the authority empowered to conclude contracts (‘the AECC’) rejected the appellant’s request for compensation on the ground, inter alia, that the annulment judgment had been complied with because he had been reinstated in his position and the reprimand had been removed from his personal file.

25. On 14 February 2019, the appellant lodged a complaint which the AECC rejected on 12 June 2019. In its rejection decision, the AECC stated, inter alia, that the FRA had decided not to recommence the disciplinary proceedings and that all acts related to the administrative inquiry had been removed from the appellant’s file.

B. Proceedings before the General Court and the judgment under appeal

26. By application lodged at the Registry of the General Court on 23 September 2019, the appellant brought an action under Article 270 TFEU seeking, first, compensation for the non-material damage he allegedly suffered, secondly, annulment of the decision of the Director of the FRA dated 19 November 2018 rejecting his request for compensation and, thirdly, if need be, annulment of the decision of the Director of the FRA dated 12 June 2019 rejecting his complaint against the abovementioned decision of 19 November 2018.

27. In support of his action, the appellant submitted six claims of unlawful conduct against the FRA (judgment under appeal, paragraphs 39, 51, 69, 80, 100 and 125) alleging:

– first, that, after the annulment judgment, the FRA did not hear the appellant and did not adopt a decision pursuant to Article 3(a) of Annex IX to the Staff Regulations;

– secondly, that the administrative inquiry and the initial disciplinary proceedings were opened irregularly;

– thirdly, that the FRA failed to compensate the non-material damage resulting from the reprimand annulled by the annulment judgment;

– fourthly, that the FRA failed to implement the annulment judgment and to conduct the disciplinary proceedings within a reasonable time and with due diligence;

– fifthly, that the opening and the conduct of the administrative inquiry infringed Regulation No 45/2001, the Staff Regulations and the right to respect for private life guaranteed by Article 7 of the Charter;

– sixthly, that the FRA did not compensate him for the damage resulting from unfounded, defamatory and offensive statements, in breach of the force of res judicata attaching to the annulment judgment, of the right to the presumption of innocence and of the duty of care, and of the obligation to refrain from any psychological harassment.

28. Furthermore, since the appellant was seeking compensation for the non-material damage he claimed to have suffered as a result of the FRA’s alleged unlawful conduct, he put forward a number of arguments concerning the actual damage and the causal link.

29. In the judgment under appeal, the General Court held that the conditions that must be satisfied in order for liability to arise on the part of an institution were not met. First, it did not uphold any of the heads of unlawfulness raised by the appellant. Secondly, the General Court held that the existence of non-material damage and of a causal link between that damage and the unlawful conduct alleged had not been established.

IV. Proceedings before the Court of Justice and forms of order sought

A. Proceedings before the Court of Justice

30. In accordance with Article 76(2) of its Rules of Procedure, the Court decided to proceed without a hearing.

B. Forms of order sought

31. The appellant claims that the Court should:

– set aside the judgment under appeal;

– consequently, annul the decision of the Director of the FRA of 19 November 2018 rejecting the appellant’s request under Article 90(1) of the Staff Regulations, if need be, annul the decision of the Director of the FRA dated 12 June 2019, received on 13 June 2019, rejecting the appellant’s complaint under Article 90(2) of the Staff Regulations against the above decision of 19 November 2018 and award the appellant compensation for the non-material damage he suffered, estimated ex aequo et bono at EUR 100 000; and

– order the FRA to pay all the costs.

32. The FRA contends that the Court should:

– dismiss the appeal; and

– order the appellant to pay all the costs.

V. Legal assessment

A. Preliminary observations

33. As I stated in the introduction, my Opinion will focus solely on the second ground of appeal. It should be noted that the present case is somewhat complex since other EU Courts have delivered judgments on the facts in this dispute. In order to have a better understanding of the legal issues at the heart of this case I think it appropriate to provide a concise summary of them before embarking on the actual legal assessment.

34. The legal issues involved concern essentially whether the General Court erred in law in considering that the FRA had acted in accordance with EU law when it decided to abandon the administrative inquiry in respect of the appellant, in order to comply with the annulment judgment of the Civil Service Tribunal, without first hearing the appellant, as is required under Article 3 of Annex IX to the Staff Regulations. The General Court starts from the premiss that the procedure referred to in that provision was not binding, and that there was an alternative way of ensuring proper compliance with the annulment judgment, which was to abandon the disciplinary proceedings.

35. I shall show in my assessment that that position is problematic from a legal point of view, since it offers the administration, in the context of disciplinary proceedings, an alternative that is not expressly laid down in the Staff Regulations and, consequently, makes no provision for the official (2) concerned to participate. The risk of the latter’s procedural rights being infringed cannot therefore be excluded. The General Court, however, holds that respect for the rights of the defence is not required, since the FRA withdrew from all proceedings against the appellant. The General Court bases its reasoning on the finding that the FRA did not adopt a measure affecting the appellant adversely within the meaning of Article 41 of the Charter.

B. Second ground of appeal

1. Arguments of the parties

36. The second ground of appeal divides essentially into four parts.

37. In the first part of the second ground, the appellant claims in essence that the General Court misinterpreted the judgment of 5 September 2014, Éditions Odile Jacob v Commission (T‑471/11, EU:T:2014:739), in stating that it is clear from that judgment that the annulment of an act allows the procedure to resume at the very point at which the illegality occurred. The appellant contends, however, that, according to a correct reading of that judgment, the procedure for replacing an annulled measure must be resumed at the very point at which the illegality occurred, the reason being that the annulment of a decision does not necessarily affect the preparatory acts.

38. The FRA considers that that part of the second ground is ineffective. In that regard, it states that the case-law cited in paragraph 45 of the judgment under appeal does not, contrary to what the appellant contends, mean that the appointing authority must resume disciplinary proceedings which turn out to be vitiated by a procedural error. It adds that, in any event, the appellant has no legitimate interest in arguing that the FRA was under an obligation to resume the disciplinary proceedings rather than abandon them.

39. In the second part of the second ground, the appellant complains that the General Court wrongly applied Article 3(a) of Annex IX to the Staff Regulations, in stating that that article does not apply where an administrative inquiry is withdrawn or abandoned and in circumstances like those in the present case, where the FRA has decided not to resume the procedure in question at the stage which had vitiated the reprimand. According to the appellant, Article 3(a) of Annex IX to the Staff Regulations contains an exhaustive list of options at the disposal of the defendant after an administrative inquiry report has been produced. In addition, he states that the purpose of that article must be read in conjunction with Article 29 of Annex IX to the Staff Regulations to enable the interests of the official concerned to be taken into account, so the withdrawal of an administrative inquiry report without any reasoning and without any publicity is an infringement of those articles. The appellant contends that the General Court created an artificial distinction between closing an administrative inquiry and withdrawing or abandoning it, which deprives Articles 3 and 29 of Annex IX to the Staff Regulations of much of their effect.

40. The FRA replies that neither Article 266 TFEU governing compliance with judgments, nor Article 3 of Annex IX to the Staff Regulations, prevented it from refraining from resuming the administrative procedure and removing from the appellant’s file all the earlier acts relating to the administrative inquiry. Therefore, Article 3 of Annex IX to the Staff Regulations is not applicable.

41. In the third part of the second ground, the appellant claims that the judgment under appeal contains an error of law and infringes the principle of legal certainty in so far as the General Court, in paragraph 49 of the judgment under appeal, held that in the present case respect for the rights of the defence was not required, ‘since the FRA withdrew from all proceedings against the [appellant] … and thus did not adopt a measure which affects him adversely within the meaning of Article 41 of the Charter’.

42. The FRA argues that it did not adopt a decision adversely affecting the appellant, which is why it was under no obligation to hear him beforehand. It considers that the appellant therefore disregards the context in which the judgment of the Civil Service Tribunal was complied with, which resulted in the appellant’s reinstatement. In addition, the FRA states that it did not ‘decide that no case can be made’, as required by Article 3 of Annex IX to the Staff Regulations, but abandoned the disciplinary proceedings, that is to say, without taking such a decision.

43. In the fourth part of the second ground, the appellant claims that the reasoning of the judgment under appeal is contradictory since, on the one hand, in paragraph 49 of that judgment, the General Court stated that Article 3(a) of Annex IX to the Staff Regulations was not applicable and, on the other hand, in paragraph 76 of that judgment, it stated the opposite.

44. The FRA takes the view that there is no contradiction between paragraph 49 and paragraph 76 of the judgment under appeal, since in the present case the competent appointing authority both refrained from resuming the disciplinary proceedings and removed from the appellant’s personal file all the earlier acts relating to the administrative inquiry.

2. Assessment

45. Since the four parts of the second ground are intrinsically linked, it is appropriate to examine them together, in a structured way and according to certain themes.

(a) Compliance with the Civil Service Tribunal’s annulment judgment

46. It is necessary to establish from the outset what the requirements are with regard to compliance with an annulment judgment in the present case. As is apparent from the observations of the parties, positions differ concerning the General Court’s assessment contained in paragraph 46 of the judgment under appeal, which states that the annulment judgment, based on an infringement of the appellant’s rights of defence at the end of the administrative stage of the procedure, required the FRA only to remove the reprimand from the appellant’s personal file, without the need for the FRA to hear the appellant in respect of the complaints which had led to the opening of the administrative inquiry or to notify him formally of a decision to abandon the case against him.

47. The first paragraph of Article 266 TFEU provides that ‘the institution, body, office or entity whose act has been declared void … shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union’ (emphasis added). That provision gives rise to obligations for institutions and – expressly since the entry into force of the Lisbon Treaty – bodies, offices and agencies of the European Union, against which judgments of invalidity have been delivered. That provision supplements Articles 263 to 265 TFEU, under which the EU Courts, within their respective areas of responsibility, can only declare an act void. Article 266 TFEU does not confer the power to impose specific obligations to act on institutions which are censured nor to order them to take the necessary measures. The institution censured must instead take the measures itself to comply with the judgment. (3)

48. From that point of view, the General Court was right to state in paragraph 45 of the judgment under appeal that the EU institutions and agencies have discretion to decide the measures to put into effect in order to give due effect to an annulment judgment. However, that does not mean that such discretion is unlimited, since if it were otherwise the administration would have the power to disregard the effect of such a judgment. In such a case, the judicial review exercised by the Courts of the European Union would be illusory, which would call into question its status as ‘a union based on the rule of law’. (4) As I shall explain below in this Opinion, there are several reasons why I consider that the General Court misinterpreted the limits which EU law imposed on the FRA in the present case.

49. First, it seems to me that the General Court misinterpreted the extent of the obligation stemming from Article 266 TFEU. In that regard, it should be noted that, according to settled case-law, annulment judgments delivered by the Courts of the European Union have, as soon as they are final, the force of res judicata with absolute effect. That covers not only the operative part of the annulment judgment but also the grounds which constitute its essential basis and are therefore inseparable from it. (5) The annulment judgment therefore implies that the author of the annulled measure must, when adopting another measure, comply not only with the operative part of the judgment but also with the grounds which led to the judgment and which constitute its essential basis, thus ensuring that the new measure is not affected by the same irregularities as those identified in the annulment judgment. (6)

50. Furthermore, it should be noted, for the purposes of examining this ground that the procedure for replacing an annulled act must be resumed at the very point at which the illegality occurred, the annulment of an act not necessarily affecting the preparatory acts. (7) The annulment of an act concluding an administrative proceeding which comprises several stages does not necessarily entail the annulment of the entire procedure prior to the adoption of the contested act regardless of the grounds, procedural or substantive, of the judgment pronouncing the annulment. The author of the act must, therefore, have reference to the date on which it had adopted the annulled act with a view to adopting the replacement act. It may, however, rely, in its new decision, on grounds other than those on which it based its first decision. In addition, it is not required to rule again on aspects of the initial decision which were not called into question by the judgment annulling that decision.

51. It is clear from the above that, contrary to what the General Court appears to suggest in paragraph 45 of the judgment under appeal, the annulment of an act does not ‘allow’ the administration to resume the procedure at the very point at which the illegality occurred. It is more a matter of a binding obligation, as is clear from the case-law cited by the General Court itself. Consequently, since the General Court seems to interpret that case-law as generally affording the administration the power to determine itself, when complying with an annulment judgment under Article 266 TFEU, at what stage it intends resuming a flawed procedure, it must be held that the General Court erred in law.

52. Secondly, I consider that the General Court’s interpretation in paragraph 45 of the judgment under appeal to the effect that the administration must be granted ‘broad discretion’, amounts to infringing the cardinal principle of the rule of law, as one of the values of the European Union under Article 2 TEU, by which the acts of the institutions, bodies, offices and agencies are subject to the law (emphasis added). (8) In that context, it should also be noted that, according to the principle of conferral of powers enshrined in Article 5(2) TEU, the European Union is to act only within the limits of the competences conferred upon it by the Treaties, including secondary legislation. In the specific area of the civil service, that includes an obligation on the administration to act in accordance with the Staff Regulations.

53. It follows logically that the administration’s discretion is limited by the provisions of the Staff Regulations designed to regulate the case in question. In that context, it is appropriate to refer to Article 86 of, but also to Annex IX to, the Staff Regulations, since that annex contains, among other provisions concerning disciplinary measures, the rules and procedures governing administrative investigations. The disciplinary proceedings as such consist of two separate phases, the first of which is opened by the decision to initiate disciplinary proceedings and closed by another decision, after the official concerned has been heard on the basis of the inquiry report. (9)

54. As I stated in my preliminary observations, this case raises the question of the applicability of Article 3 of Annex IX to the Staff Regulations, which is intended to govern what action will be taken by the administration at the end of the inquiry stage. That provision contains a list of options open to the administration and allows it to initiate the disciplinary proceedings, or not, after the inquiry report has been drawn up, provided the conditions laid down in that provision are met.

55. I consider there is no doubt that the FRA was at that very stage in the procedure when the annulment judgment, based on an infringement of the appellant’s rights of defence at the end of the administrative stage of the procedure, was delivered, as is clear also from paragraph 46 of the judgment under appeal. Consequently, it was incumbent on the FRA to apply Article 3 of Annex IX to the Staff Regulations, selecting the option which seemed to it to be relevant in view of the circumstances.

56. In other words, contrary to the findings of the General Court, the FRA was required to resume the procedure at the very point at which the illegality occurred, that is to say, at the time when it had to take a decision on whether to continue the disciplinary proceedings. I shall examine later on in this Opinion the specific consequences that involves for the FRA, in view of the requirements of Article 3 of Annex IX to the Staff Regulations. In any event, it should be borne in mind at this stage of the assessment that the General Court erred in law in wrongly assuming that the FRA was not required to apply that provision in the circumstances of the present case.

(b) Applicability of Article 3 of Annex IX to the Staff Regulations in the present case

57. That conclusion is all the more compelling if the function of Article 3 of Annex IX to the Staff Regulations is viewed taking into account the overall context of disciplinary proceedings. It has been stated above that those proceedings consist of two phases. The first phase involves the launch of an administrative investigation, the purpose of which is to enable the appointing authority to verify whether a failure to comply with the obligations of officials has occurred. The general provisions of Annex IX to the Staff Regulations, comprising four articles contained in Section 1, concern administrative investigations and their purpose is to lay down the detailed rules for implementing Article 86(2) of the Staff Regulations. Although the administration has broad discretion as regards conducting administrative investigations, it must nonetheless comply with certain procedural requirements, including the drafting of the final investigation report, which is referred to in Article 3 of Annex IX to the Staff Regulations.

58. That report sets out the relevant facts and circumstances, establishes whether the rules and procedures applicable to the situation have been complied with, lists any aggravating or extenuating circumstances, indicates the significance of the damage suffered by the institution and makes a recommendation regarding the action to be taken. (10) On the basis of that report, the appointing authority may, first, decide that no case can be made against the official concerned, in which event the official must be informed accordingly in writing. Secondly, even if there is or appears to have been a failure to comply with the obligations concerned, the appointing authority may decide that no disciplinary measure will be taken and, if appropriate, it may simply address a warning to the official. Thirdly, in the case of failure to comply with obligations, it may initiate disciplinary proceedings, either without consultation of the Disciplinary Board or before that board.

59. It is clear that, when adopting the Staff Regulations, the legislature intended to set out the administration’s powers with regard to officials in the context of that procedure, giving the maximum possible amount of detail. That approach is necessary not only in the light of the principles referred to in point 52 of this Opinion, but also in view of the need to respect the procedural rights of the official concerned. In the light of that finding, the General Court’s proposition that the FRA had ‘broad discretion’ in complying with the annulment judgment does not seem to me to be correct. That is why I consider that the General Court erred in law.

60. The same applies with regard to the General Court’s statement in paragraph 48 of the judgment under appeal that the FRA was not obliged to resume the proceedings at issue at the stage which vitiated the reprimand but was instead entitled to opt for ‘a different solution’, namely to abandon the proceedings whilst also removing from the appellant’s personal file all the earlier acts relating to the administrative inquiry. The wording, structure and purpose of Article 3 of Annex IX to the Staff Regulations clearly indicate that it contains an exhaustive list of options at the disposal of the administration. It is apparent from the wording of that provision that it lists a set of well-defined, mutually exclusive options.

61. Therefore, the administration is obliged to take a decision on the basis of one of those options, which will serve as the legal basis. In the light of that evidence, it is logical to infer that the legislature, when adopting the Staff Regulations, intended to exclude any other options. Consequently, the General Court’s contention that the administration would be able to choose a different option at the end of an administrative inquiry must be regarded as being based on a misinterpretation of Article 3 of Annex IX to the Staff Regulations.

62. That error of law seems to me to be particularly serious since the General Court does not call in question the terminology used by the FRA to describe its approach in the context of disciplinary proceedings. It is clear inter alia from paragraphs 43 and 48 of the judgment under appeal that the FRA had ‘abandoned’ the case against the appellant, and had thus ‘renounced’ the proceedings at issue. I should like to point out, however, that those terms do not appear in Article 3 of Annex IX to the Staff Regulations, which raises the question whether it is genuinely a different option not provided for in that provision, as the General Court seems to assume (‘a different solution’), or whether it is rather a synonym whose sole purpose is to describe the situation referred to in Article 3(a) of Annex IX to the Staff Regulations.

63. I consider that the fact of ‘abandoning’, or ‘renouncing’, proceedings against an official merely describes in essence the abovementioned situation. Indeed, as the appellant convincingly explains, if the administration renounces disciplinary proceedings, that means, in principle, that no case can be made against the official concerned. The terms used must therefore be understood as two different ways of expressing the same thing. That position seems to me to make good sense. If that assessment were to turn out to be correct, it would be necessary to ask the question why the FRA departed from the rules of Annex IX to the Staff Regulations. Although the written observations do not enable this question to be answered with certainty, the fact remains that such an approach does not by any means conform to the principles referred to in point 52 of this Opinion, which the administration must observe.

64. Furthermore, it seems to me that such an approach might infringe the procedural rights of the official concerned, as I shall explain in greater detail below. Consequently, it must be inferred that, since the General Court considered that the FRA had acted in accordance with EU law when it withdrew from all proceedings against the appellant without applying Article 3 of Annex IX to the Staff Regulations, it erred in law.

65. Despite the discretion enjoyed by any administrative authority, the latter has an obligation to observe the fundamental principles of procedural law. That obligation stems from Article 41 of the Charter, which enshrines the right to good administration in its various forms. (11) Observance of procedural safeguards is particularly important in the area of disciplinary matters, in view of the fact that an official is exposed to penalties of various levels of severity. The safeguards provided for in Annex IX to the Staff Regulations, which implement the right to good administration, have a dual purpose, namely, on the one hand, to enable the official charged to properly present his or her defence, and, on the other hand, to prevent any arbitrary behaviour on the part of the administration during disciplinary proceedings. (12)

66. Among those safeguards features the right to be heard, which is of prime importance, (13) as is shown by the fact that that right is mentioned in a number of provisions, including Article 3 of Annex IX to the Staff Regulations. That provision lays down the obligation to hear the official concerned before a decision is taken concerning the continuation of disciplinary proceedings, on the basis of the inquiry report and after sending him or her all the documents in the file. In that regard, it should be noted that no derogation is expressly provided for in that article. Failure to comply with that obligation therefore logically entails infringement of the official’s procedural rights. That seems to be precisely so in the circumstances of the present case, since the FRA did not apply Article 3 of Annex IX to the Staff Regulations.

67. As the safeguard of the right to be heard is unconditional, the General Court errs in law when it states, in paragraph 49 of the judgment under appeal, that ‘respect for the rights of the defence was not required either’. As I have stated above in my assessment, that error in law is based, first, on incorrect reasoning, namely that Article 3 of Annex IX to the Staff Regulations does not apply in the present case and, secondly, on the argument that the FRA did not adopt a measure affecting the appellant adversely within the meaning of Article 41 of the Charter. The latter argument calls for a few observations of a general nature.

68. It is apparent from Article 41(2) of the Charter that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. That being so, the General Court disregards the fact that Article 3 of Annex IX to the Staff Regulations fails to make any distinction, as regards the right to be heard between whether the decision to be taken by the administration will or will not affect the official adversely. In other words, that right is guaranteed in all cases, which is explained by the very nature of disciplinary proceedings. Article 3 of Annex IX to the Staff Regulations is therefore a lex specialis, which takes into account the special features of the disciplinary system.

69. In that regard, it should be noted that the initiation of disciplinary proceedings may inflict very serious damage to the integrity and professional reputation of the official concerned. (14) Therefore, the administration is obliged to examine the truth and gravity of the facts alleged against the official before taking a decision to open such proceedings. Likewise, the excessive duration of disciplinary proceedings is to be taken as giving rise to a presumption that the official has suffered non-material damage. (15) Disciplinary authorities are therefore under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable period following the previous step. Failure to comply with that period (which can be assessed only in the light of the specific circumstances of the case) may result in the measure being declared void. (16) That is why Article 22(1) of Annex IX to the Staff Regulations lays down a time limit of two months from the opinion of the Disciplinary Board for taking a decision where the appointing authority provides for the imposition of sanctions. In the interests both of the official and of the administration, the decision terminating the disciplinary proceedings must not be delayed without justification. (17)

70. Aware of the negative impact the unjustified initiation of disciplinary proceedings may have on an official’s reputation, the legislature, when adopting the Staff Regulations, provided in Article 22(2) of Annex IX to the Staff Regulations that if the appointing authority decides to close the case without imposing any disciplinary penalty it must so inform the official concerned in writing without delay. The official concerned may request that this decision be inserted in his or her personal file. Furthermore, Article 29 of that annex states that if no case has been made against the official pursuant to the abovementioned provision the official is entitled to request that the damage suffered should be made good through suitable publicity for the decision of the appointing authority. All that shows that the legislature, when drafting the Staff Regulations, considered that a set of measures was needed in order to offset the negative effects of unjustified proceedings.

71. Lastly, it should not be forgotten that, according to Article 27 of Annex IX to the Staff Regulations, even an official who has been the subject of a disciplinary measure may submit a request for the deletion from his or her personal file of all reference to such measure. The appointing authority will decide whether to grant this request. In my view, that mechanism symbolises ‘the right to be forgotten’ and complies with the principle that a disciplinary measure should not remain as a stain on a person’s CV indefinitely or prevent him or her from continuing his or her career. (18) It is clearly a mechanism designed to ensure that the official’s integrity and professional reputation are restored once a reasonable time has passed, namely after three years in the case of a written warning or reprimand, or after six years in the case of any other penalty.

72. It cannot however be inferred from those considerations that initiation of unjustified disciplinary proceedings alone may have negative consequences for the official. As the appellant rightly states, it is necessary to take into account the fact that, in a situation such as that in the present case, in which an administrative inquiry has taken place, the administration still has the inquiry report. The report itself is not a decision that may be removed but a fact that must be taken into account. In view of the fact that neither the annulment judgment nor the decision ‘abandoning’ the proceedings against the official have the effect of making that report disappear, the administration has in theory the option of resuming the disciplinary proceedings at a later date. It should be noted that Article 3(a) of Annex IX to the Staff Regulations does not allow the inquiry report to be removed or abandoned either.

73. Viewed from this angle, it seems to me that the appropriate way of restoring the integrity and professional reputation of the official concerned in those circumstances is to make provision for a hearing and adopt a decision under Article 3(a) of Annex IX to the Staff Regulations, whilst ensuring the necessary publicity, as required by Article 29 of that annex. In line with the foregoing, it would be necessary to ensure that the official could request that that decision be inserted in his or her personal file, in accordance with Article 22(2) of that annex. Such an approach, which leaves no doubt as to the administration’s intentions, would best respond to the official’s need for legal certainty.

74. Such an approach seems to me all the more necessary where, as in the present case, the disciplinary measure has been annulled by the Civil Service Tribunal due to a procedural defect. According to the case-law of the Court of Justice, if the decision has been annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, the annulment decision cannot be regarded as an ‘acquittal’ within the meaning given to that expression in criminal matters. (19) I consider that, following the annulment judgment, that entails an obligation on the FRA to adopt a decision clarifying the appellant’s legal situation, because the disciplinary proceedings initiated against him resume at the very point at which the illegality occurred. In the present case, however, as the FRA itself admits, it did not decide that no case could be made, as required by Article 3(a) of Annex IX to the Staff Regulations, but simply ‘abandoned’ the disciplinary proceedings without taking such a decision.

75. Like the appellant, I consider that the FRA’s course of action, consisting of ‘renouncing’ the disciplinary proceedings after the inquiry report was prepared, without any reasoning, hearing or publicity, constitutes circumvention of the procedural safeguards laid down in the abovementioned provisions. Consequently, it must be considered that since the General Court wrongly held that the rights of the defence guaranteed by the provisions of Annex IX to the Staff Regulations were not affected by the approach taken by the FRA, it erred in law. That error in law is due to a restrictive interpretation of Article 41 of the Charter, which, moreover, fails to take into account the special features of the disciplinary system.

76. The FRA’s decision to ‘abandon’ the proceedings against the appellant without making provision for a hearing for him constitutes a procedural defect. According to the case-law of the Court of Justice, infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different. (20) However, the Court has held that an appellant who relies on infringement of his or her rights of defence cannot be required to show that the decision of the EU institution concerned would have been different in content but simply that such a possibility cannot be totally ruled out. (21) The assessment of that question must, moreover, be made in the light of the factual and legal circumstances of each case. (22) I consider that the General Court ought to take that case-law into account if the case is referred back to it for a new ruling.

(d) The contradictory nature of the reasoning of the judgment under appeal

77. As is apparent from paragraphs 48 and 49 of the judgment under appeal, the line of reasoning followed by the General Court in finding that the appellant’s rights of defence were not infringed is based in essence on the argument that Article 3(a) of Annex IX to the Staff Regulations was not applicable on the ground that the FRA opted for ‘a different solution’, namely ‘abandoning’ proceedings against the appellant. In this Opinion, I have shown in detail that the General Court’s reasoning in that regard is vitiated by a number of errors of law.

78. However, it should be pointed out that that reasoning is, moreover, inconsistent, since the General Court states precisely the opposite in paragraph 76 of the judgment under appeal. Specifically, according to the General Court, in the present case, ‘the FRA … [decided] to abandon the proceedings against the [appellant] pursuant to Article 3(a) of Annex IX to the Staff Regulations’ (emphasis added). That statement seems to me to be particularly problematic in that context, since that passage contains a reference to paragraph 48 of the judgment under appeal, in which the General Court sets out its reasoning based on an alleged alternative approach taken by the FRA, which consists precisely in not applying the provisions of Annex IX to the Staff Regulations. The paragraphs cited above are drafted in the clearest terms, thus excluding any drafting error, so it must be presumed that they do indeed reflect the General Court’s reasoning.

79. It is clear that those two statements cannot coexist in the grounds of the judgment under appeal without seriously calling into question the logic underlying that reasoning of the General Court. That conclusion is not altered by the fact that the General Court ultimately adopted a legally correct point of view in paragraph 76 of the judgment under appeal. Indeed, as I stated in my assessment, ‘abandoning’ the proceedings against the official concerned is ultimately only another way of saying that the administrative inquiry was closed on the ground that no case could be brought, and thus in pursuance of Article 3(a) of Annex IX to the Staff Regulations. (23) The General Court seems to have become aware that it was impossible for the administration to depart from the provisions of that annex. Such a finding is, however, incompatible with its initial considerations.

80. The question therefore arises of how to deal with such a substantial contradiction in terms of the field of procedural law. In that regard, it should be noted that, according to settled case-law, the question whether the grounds of a judgment of the General Court are contradictory is a question of law which is amenable to judicial review on appeal. (24) In the light of the above considerations, it must be concluded that the General Court erred in law. In my view, that error is particularly serious, not only because of its manifest nature but also on the ground that it calls into question all the General Court’s reasoning, irrespective of the other errors of law that I have identified in my assessment. Consequently, it seems to me that it is sufficient in principle to find that the fourth part of the second ground is well founded in order to consider that the entire ground is well founded.

3. Interim conclusion

81. The General Court’s errors of law established in the context of the assessment contained in this Opinion may be summarised as follows. First, the General Court misinterpreted the extent of the FRA’s discretion when complying with the annulment judgment by relying on an incorrect interpretation of Article 266 TFEU and of the relevant case-law. Secondly, the General Court disregarded the fact that Article 3 of Annex IX to the Staff Regulations was applicable, in the present case, to the circumstances of the case and that the FRA was required to adopt a decision under that provision. Thirdly, the General Court disregarded the fact that failure to apply Article 3 of Annex IX to the Staff Regulations led to infringement of the procedural safeguards laid down in that annex. The error of law is based on a restrictive interpretation of Article 41 of the Charter which, moreover, fails to take into account the special features of the disciplinary system. Fourthly, the General Court adopted contradictory reasoning on the question of the applicability of the abovementioned provision.

VI. Conclusion

82. In the light of the above considerations, I propose that the Court declare the second ground of the appeal well founded.

1 Original language: French.

2 The term ‘official’ covers not only an official or a former official strictly speaking but also a member of contract or temporary staff, since Articles 50a and 119 of the CEOS make reference to the disciplinary measures laid down in Article 86 of and Annex IX to the Staff Regulations.

3 Cremer, W. in Calliess/Ruffert, EUV/AEUV Kommentar, 6th edition, Munich, 2022, Article 266 TFEU, paragraph 1.

4 Judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 61).

5 Judgments of 26 April 1988, Asteris and Others v Commission (97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 27 to 30), and of 3 October 2000, Industrie des poudres sphériques v Council (C‑458/98 P, EU:C:2000:531, paragraph 81).

6 See, to that effect, judgment of 6 March 2003, Interporc v Commission (C‑41/00 P, EU:C:2003:125, paragraphs 29 and 30).

7 Judgment of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391, paragraph 34).

8 See Opinion of Advocate General Cruz Villalón in Poland v Commission (C‑336/09 P, EU:C:2011:860, point 20).

9 Judgment of 14 October 2021, Bernaldo de Quirós v Commission (C‑583/19 P, EU:C:2021:844, paragraph 56).

10 Tomac, J., ‘Régime disciplinaire’, in Giacobbo, V., Perillo, E. and Picod, F., Statut de la fonction publique de l’Union Européenne: commentaire article par article, Bruylant, Namur, 2017, p. 316.

11 See my Opinion in Parliament v UZ (C‑894/19 P, EU:C:2021:497, point 66 et seq.) for a more detailed description of the right to good administration, as enshrined in Article 41 of the Charter.

12 Tomac, J., ‘Régime disciplinaire’, in Giacobbo, V., Perillo, E. and Picod, F., Statut de la fonction publique de l’Union européenne: commentaire article par article, Bruylant, Namur, 2017, p. 331.

13 Judgment of 14 October 2021, Bernaldo de Quirós v Commission (C‑583/19 P, EU:C:2021:844, paragraph 60).

14 Judgment of 12 July 2012, Commission v Nanopoulos (T‑308/10 P, EU:T:2012:370, paragraphs 167 and 168).

15 Judgment of 11 April 2016, FU v Commission (F‑49/15, EU:F:2016:72, paragraph 136).

16 Judgment of 13 October 2021, IB v EUIPO (T‑22/20, EU:T:2021:689, paragraph 85).

17 Judgments of 27 November 2001, Z v Parliament (C‑270/99 P, EU:C:2001:639, paragraph 21), and of 5 December 2002, Stevens v Commission (T‑277/01, EU:T:2002:302, paragraph 41).

18 Pilorge-Vrancken, J., Le droit de la fonction publique de l’Union européenne, Bruylant, Namur, 2017, pp. 243 and 244.

19 See, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 62), and order of 22 January 2019, Kerstens v Commission (C‑577/18 P, EU:C:2019:129, paragraph 39).

20 Judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics (C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79), and of 14 June 2018, Makhlouf v Council (C‑458/17 P, EU:C:2018:441, paragraph 42).

21 See judgments of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council (C‑141/08 P, EU:C:2009:598, paragraph 94), and of 18 June 2020, Commission v RQ (C‑831/18 P, EU:C:2020:481, paragraph 106).

22 Judgment of 18 June 2020, Commission v RQ (C‑831/18 P, EU:C:2020:481, paragraph 107).

23 See point 63 of this Opinion.

24 Judgments of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission (C‑385/07 P, EU:C:2009:456, paragraph 71), and of 29 July 2010, Greece v Commission (C‑54/09 P, EU:C:2010:451, paragraph 87).