Abstract;Judgment — ECLI:EU:T:2024:336
Date: 2024-05-29
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Staff cases - successful

summary of the investigators’ reasoning in the earlier parts of the investigation report. Cited out of context, the abovementioned passage is not capable of precisely identifying the allegations made against the applicant. 66 First, a general reference to ‘communications … by email in 2021’, which is not accompanied by any explanation as to the content of those communications, does not make it possible to understand which remarks made by the applicant concerning A were considered by the appointing authority to constitute an infringement of Article 12 or Article 21 of the Staff Regulations. Moreover, the use of the words ‘in particular’ suggests that the contested decision penalises the applicant for conduct other than solely the electronic communications to A in 2021, without providing any further information in that regard. 67 Nor did the appointing authority provide the applicant with any explanations concerning the allegations against her in the decision rejecting the complaint, even though, in her complaint, the applicant maintained that she was unaware of what specific conduct might constitute an infringement of Article 21 of the Staff Regulations, in so far as the quality of her work had never been called into question by A, and, furthermore, that her queries regarding the emails allegedly sent in breach of Article 12 of the Staff Regulations had remained unanswered. Apart from the fact that the decision rejecting the complaint does not address the applicant’s arguments in the complaint relating to the infringement of the obligation to state reasons concerning the failure to comply with Articles 12 and 21 of the Staff Regulations, as regards acts attributable to the applicant, that decision, in paragraph 7 thereof, also merely reproduces, in part, the wording of paragraph 105 of the investigation report. 68 As is clear from paragraph 23 above, the investigation report sets out a recommendation to the appointing authority on the conclusions to be drawn from the administrative investigation and does not prejudge the final position adopted by the appointing authority. The appointing authority is required to examine the investigation report and to take the measures it considers appropriate, giving reasons for its decision. However, since the contested decision refers to that investigation report, to which the applicant had access, it is necessary to ascertain whether the contested decision, read in conjunction with that investigation report, contains a statement of reasons which fulfils the requirements of the case-law referred to in paragraph 63 above. 69 In that regard, it should be noted that, as regards the email communications in 2021, the Council submits in its defence that it is apparent from paragraphs 36 to 38 of the investigation report that the acts attributed to the applicant consisted in the sending of the emails of 23 February and 13 March 2021, in which she used abusive and aggressive language against A, accusing the latter of harassment. 70 It should be noted that, in paragraph 36 of the investigation report, the investigators explain that ‘the tone, content, form and nature of [the applicant’s] communication with [A] were often inappropriate’ and cite a passage from the email of 23 February 2021 (sent at 2.31 p.m.) and a passage from the email of 13 March 2021 (sent at 11.49 a.m.). 71 Moreover, in paragraphs 37 and 38 of the investigation report, the investigators explain that they consider that the applicant made serious accusations of harassment against A and that such accusations, if improper, would be likely to lead to disciplinary penalties, in accordance with Article 3(4) of Decision 15/2015 of the Secretary-General concerning psychological and sexual harassment at work within the General Secretariat of the Council. 72 As regards the infringement of Article 12 of the Staff Regulations, it is apparent from paragraph 91 of the investigation report that the manner in which the applicant communicated with her immediate superior in 2021 was considered to be ‘impolite, vexatious and humiliating’ and to have ‘bordered on insubordination’ and, therefore, to constitute an infringement of Article 12 of the Staff Regulations. 73 As regards the infringement of Article 21 of the Staff Regulations, it is apparent from a combined reading of paragraphs 59 and 97 of the investigation report that, in so far as that provision imposes on officials an obligation to assist and tender advice to their superiors, it was considered ‘unacceptable for [the applicant] to accuse [A], lightly, of harassment – without providing real prima facie evidence having the slightest support; and [that] it [was] also unacceptable for [the applicant] to make such accusations a bargaining chip, by offering to withdraw them if [A] withdrew her management note’. 74 However, notwithstanding those various comments concerning the applicant’s inappropriate communication throughout her collaboration with A, it is not apparent from the investigation report which elements, specifically contained in the emails of 23 February and 13 March 2021, formed the basis of the investigators’ conclusions concerning the infringement of Articles 12 and 21 of the Staff Regulations. Consequently, even though the applicant was not entirely unaware of the context in which the contested decision was adopted, she rightly submits that the contested decision, read in conjunction with that investigation report, does not contain an adequate statement of reasons, within the meaning of the case-law cited in paragraph 63 above, concerning her electronic communications to A in 2021. 75 Moreover, as is apparent from paragraph 66 above, the use in the contested decision of the words ‘in particular’ suggests that that decision also penalises the applicant for conduct other than solely the electronic communications to A in 2021, without providing any further information in that regard. 76 It should be noted that it is apparent from paragraph 105 of the investigation report, contained in the section entitled ‘Final conclusions’, that, ‘in the light of the acts in question, and in particular [the applicant’s] communications to [A] by email in 2021, the investigators conclude that [the applicant] has infringed – at the very least – Articles 12 and 21 of the Staff Regulations’. Accordingly, like the contested decision, the final conclusions of the investigation report suggest that the applicant’s conduct alleged to infringe those provisions of the Staff Regulations comprises far more acts than solely the applicant’s email communications to A in 2021. At the same time, a reading of the investigation report as a whole does not make it possible to understand what comprised the ‘acts in question’, other than the email communications referred to in paragraph 105 of that report, which, according to the final conclusions of the investigation report, are alleged to constitute a failure by the applicant to fulfil her obligations under the Staff Regulations. 77 It should be noted that, according to the actual wording of the investigation report, the investigators were instructed by their terms of reference to conduct an administrative investigation with the intention of establishing ‘whether, in her conduct towards [A], by means of email communications in 2021, [the applicant] had failed to fulfil her obligations under the Staff Regulations’ (paragraphs 1, 8 and 75 of the investigation report). In that regard, paragraph 36 of the investigation report emphasises that ‘the terms of reference concern [A] alone and only: [i] in 2021 (not in 2020); and [ii] through email communications’. At the same time, the report refers on several occasions to the applicant’s aggressive attitudes and actions towards other colleagues and to the applicant’s conduct towards A other than the emails in 2021. 78 For example, in paragraphs 40 and 57 of the investigation report, the investigators refer to the applicant’s criticisms concerning A’s management of her unit and the way in which the applicant communicated with her in person. They argue, first, that the applicant’s attitude ‘very quickly turned to aggressive criticism of [A]’s management of her unit and to scorn for her decisions, instructions, requests and advice’ and, secondly, that ‘[the applicant] raised her voice very loudly against [A] and, on numerous occasions, did not give her the opportunity to express her points of view in a calm and composed manner’, but, ‘on the contrary, she prejudged her as being a manager who fails to get to the heart of a problem and tends to disregard the real reason for the dysfunction which characterises her unit’. 79 Moreover, in paragraph 59 thereof, the investigation report refers to the appraisals for 2019 and 2020 and concludes that it is ‘intolerable that [the applicant] should react to the appraisals for 2019 and 2020 with contempt and give herself licence to stop working on certain files (because they w[ould] be more suited to other colleagues) or to refuse to collaborate (because the instructions are not clear)’. 80 Finally, in paragraph 62 of the investigation report, the investigators find that the applicant ‘makes the work of her colleagues extremely difficult’ and that the file ‘contains abundant documentation showing that, from 2020 onwards, [the applicant] flooded the email inboxes of her superiors with (sometimes long) messages which unnecessarily complicate[d] file management; or messages in which she quarrelled with contacts in various departments’. 81 It is clear from paragraphs 59 and 60 of the investigation report that the investigators considered that, ‘on the strength of their terms of reference’, they were able to assess the conduct referred to, in particular, in paragraph 79 above. It is true that the findings made in various paragraphs of the investigation report as to the scope of the terms of reference may, as such, in the light of paragraphs 39 and 88 of that report, be explained as expressing the view that the fact that the terms of reference were limited to the applicant’s email communications with A in 2021 did not prevent the investigators from addressing other actions and communications by the applicant in order properly to assess the content of the emails in question. However, the contradiction between, on the one hand, the limits of the terms of reference thus defined and, on the other hand, the final conclusions of the report, as set out in paragraph 76 above, leaves room for uncertainty as to the determination of the acts covered in the final conclusions of that report and subsequently penalised by the contested decision. Accordingly, the contested decision does not allow a clear distinction to be drawn between the conduct penalised and the facts taken into account as contextual elements. 82 As regards the infringement of Article 21 of the Staff Regulations, it is true that paragraph 97 of the investigation report, read in conjunction with paragraphs 59 and 64 of that report, refers to the applicant’s conduct towards ‘others in the chain of command’ or to the fact that she ‘allow[ed] herself to disrupt normal working conditions’ by refusing, inter alia, ‘to carry out certain tasks’, that she took on the role of ‘sheriff’ and even that she reacted with ‘scorn’ to the appraisals for 2019 and 2020. However, those brief and general comments do not make it possible to identify with precision which conduct was capable of constituting an infringement of Article 21 of the Staff Regulations and for what reasons. 83 In the light of all the foregoing considerations, it must be held that, since the Court’s review of the merits of the contested decision can be carried out only if the facts alleged against an official to constitute a failure to fulfil his or her obligations under the Staff Regulations are identified, the absence of information concerning the facts alleged against the applicant prevents the Court from reviewing the merits of the contested decision. 84 The first and third parts of the fourth plea must therefore be upheld and the contested decision annulled, without there being any need to examine other pleas relied on by the applicant against that decision. Costs 85 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Tenth Chamber, Extended Composition) hereby: 1. Annuls the Decision of the Council of the European Union of 25 November 2021 imposing a reprimand on Ms Maria Canel Ferreiro; 2. Dismisses the action as to the remainder; 3. Orders the Council to pay the costs. Porchia Jaeger Madise Nihoul Verschuur Delivered in open court in Luxembourg on 29 May 2024. [Signatures] * Language of the case: French.