62016TJ0693(01)
JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
15 December 2021 (
*1
)
(Appeal – Civil service – Officials – Posting to a non-Member State – Family lodging provided by the administration – Non-compliance with the obligation to reside there with the family – Disciplinary proceedings – Disciplinary penalty of deferment of advancement to a higher step – Making good of any damage suffered by the European Union – Article 22 of the Staff Regulations – Dismissal of the action on the merits – Setting aside on appeal – Judgment on appeal re-examined by the Court of Justice and set aside – Referral back to the General Court)
In Case T‑693/16 P-RENV-RX,
HG, represented by L. Levi, lawyer,
appellant,
the other party to the proceedings being
European Commission, represented by T. Bohr, acting as Agent, and by A. Dal Ferro, lawyer,
defendant at first instance,
APPEAL brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155), seeking to have that judgment set aside,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and P. Nihoul, Judges,
Registrar: L. Ramette, Administrator,
having regard to the judgment of the Court of Justice of 26 March 2020,
further to the hearing on 17 June 2021,
gives the following
Judgment (
1
)
…
2
By his appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, HG, an official of the European Commission, asks the Court to set aside the judgment under appeal, by which the Civil Service Tribunal dismissed his action seeking, first of all, by way of principal claim, annulment of the decision of the Commission of 10 February 2015 imposing on him a disciplinary penalty of deferment of advancement to a higher step for a period of 18 months and ordering him to pay compensation for the damage allegedly suffered by the Commission as a result of his actions in the amount of EUR 108 596.35 (‘the decision at issue’) and, so far as necessary, annulment of the decision rejecting his complaint against the decision at issue, thereafter, in the alternative, reduction of the financial penalty contained in that decision and, finally, to have the Commission ordered to pay compensation for the non-material damage and reputational damage allegedly suffered by him, assessed at EUR 20000, and to have it ordered to pay the costs.
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Procedure and forms of order sought
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39
The first judgment on appeal, setting aside the judgment under appeal on the ground of an irregularity in the composition of the panel of judges of the Civil Service Tribunal which gave the ruling, was delivered following that procedure, but it was itself set aside by the Court of Justice, as set out in paragraphs 1 and 3 above, and the appeal was referred back to the General Court. As a result, the case which had been referred back to the General Court pursuant to the first judgment on appeal in order for it to rule on the action brought by the appellant before the Civil Service Tribunal (Case T‑440/18 RENV) was closed by decision of the Registry of 26 March 2020.
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45
The parties presented oral argument and answered the Court’s questions at the hearing on 17 June 2021. The oral part of the procedure was closed on the same day.
46
The appellant claims that the Court should:
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set aside the judgment under appeal;
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annul the decision at issue;
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so far as necessary, annul the decision rejecting the complaint;
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in the alternative, reduce the financial penalty contained in the decision at issue;
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order the Commission to pay compensation for his non-material and reputational damage in the amount of EUR 20000;
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order the Commission to pay all the costs at first instance and on appeal.
47
The Commission contends that the Court should:
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dismiss the appeal;
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order the appellant to pay all the costs.
Law
The appeal
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Grounds of appeal advanced against the judgment under appeal regarding the financial liability of the appellant as found in the decision at issue
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– Ground of appeal alleging errors of law committed by the court ruling on the substance of the case regarding the financial liability of the appellant as found in the decision at issue
83
The appellant states first of all, in paragraph 11 of the appeal, that, in examining his arguments ‘on the absence of evidence to substantiate the alleged breaches of the duty of loyalty’, the Civil Service Tribunal, in paragraph 151 of the judgment under appeal, took the view that, since the duty of loyalty of an EU official to the European Union is imposed in a general and objective manner, the reasons why the appellant infringed that duty, supposing those reasons to have been proved, were not important. However, according to the appellant, in applying Article 22 of the Staff Regulations, on the basis of which an official may incur financial liability to the European Union as a result of serious misconduct on his or her part in the course of or in connection with the performance of his or her duties, the appointing authority should take account of possible extenuating circumstances which may be found in the reasons explaining that official’s failure in his or her duties. If it does not do so, that amounts to a breach of the principle of proportionality. By holding that the reasons explaining his conduct were not important, the Civil Service Tribunal therefore committed an error of law, both with regard to Article 22 of the Staff Regulations and with regard to the principle of proportionality.
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86
The first paragraph of Article 22 of the Staff Regulations provides that ‘an official may be required to make good, in whole or in part, any damage suffered by the Union as a result of serious misconduct on his part in the course of or in connection with the performance of his duties’.
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90
The first sentence of the first paragraph of Article 11 of the Staff Regulations, according to which ‘an official shall carry out his duties and conduct himself solely with the interests of the Union in mind’, establishes the duty of loyalty of EU officials to the European Union. That duty is explicitly mentioned later in the same paragraph, in the third sentence, which specifies that an official is to carry out the duties assigned to him objectively, impartially and in keeping with his or her duty of loyalty to the European Union. That duty is also explicitly mentioned in Article 17a of the Staff Regulations, concerning the limits on the freedom of expression of officials. The rules for complying with the duty of loyalty are specified, in relation to certain aspects or circumstances, in a number of provisions of the Staff Regulations, such as Article 12, 12b or 17a.
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93
The question is therefore whether the reasons which may lead to conduct on the part of an official which is dictated in whole or in part by interests other than those of the European Union or even conduct which conflicts with those interests, for example the desire to harm, corruption, indifference, political motivation, the desire to procure an advantage for oneself or for others, insurmountable external pressure or personal imperative, must be taken into account in assessing whether or not such conduct constitutes a sign of disloyalty to the European Union.
94
In paragraph 151 of the judgment under appeal, the Civil Service Tribunal answered in the negative, relying on the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159). In that judgment, it was held, in essence, in paragraphs 65 and 66, that a finding of failure to comply with a number of obligations under the Staff Regulations seeking, inter alia, to ensure the loyalty of officials, was not dependent on the official concerned having caused harm to the European Union or his or her conduct having given rise to complaints. That finding was itself based on a judicial precedent (judgment of 3 July 2001, E v Commission, T‑24/98 and T‑241/99, EU:T:2001:175, paragraph 76) in which it was held that it was not necessary for the official concerned to have sought to benefit personally from his or her conduct, or for the conduct in question to have harmed the institution, in order for it to be found that a number of obligations of the same nature had been breached. In another case, which gave rise to the judgment of 19 March 1998, Tzoanos v Commission (T‑74/96, EU:T:1998:58, paragraph 66), itself invoked as a judicial precedent in the judgment of 3 July 2001, E v Commission (T‑24/98 and T‑241/99, EU:T:2001:175), regarding a possible breach of the obligation, for an official, to seek permission to engage in an outside activity, which is part of the duty of loyalty and is of general scope, it was held that, in assessing the existence of such a breach, it was not necessary to know whether that activity could cause a conflict of interests in the light of the duties performed by that official.
95
Contrary to the view taken by the Civil Service Tribunal, it is not apparent from such precedents that the reasons which led an official to engage in conduct which infringes certain of his or her obligations to the European Union must under no circumstances be taken into consideration in determining whether he or she has been disloyal to the European Union.
96
Indeed, whilst certain circumstances are, by nature, unimportant in that regard, such as the circumstances identified in the judgments mentioned in paragraph 94 above, the question of whether conduct was disloyal depends precisely on the context in which it occurred. For example, an official may believe that he or she is acting in the interests of the European Union in the performance of his or her duties but in reality may be acting against those interests because he or she is overwhelmed by a particularly complex and unprecedented situation, which does not necessarily represent a lack of loyalty on his or her part even if, at a given time, he or she lost sight of the interests of the European Union. A serious personal problem on the part of an official may cause him or her to momentarily regard the interests of the European Union as of secondary importance in terms of his or her behaviour, without, depending on the circumstances, it always being possible to accuse that official of a lack of loyalty because of that. Conversely, if an official argues that he or she disregarded the interests of the European Union because he or she was overwhelmed by the situation, or that he or she regarded the interests of the European Union as of secondary importance to serious personal problems, it is not unimportant to know, in assessing his or her loyalty to the European Union, whether he or she reported such difficulties to management and what attitude he or she adopted in that context.
97
Thus, to assess the loyalty of a person is to assess his or her conduct towards the entity or person to which or to whom that loyalty is due according to the context. The first sentence of the first paragraph of Article 11 of the Staff Regulations, which provides that ‘an official shall carry out his duties and conduct himself solely with the interests of the Union in mind’, prescribes, in that respect, general conduct which is characteristic of loyalty to the European Union, but does not constitute an absolute definition of that loyalty, excluding consideration of the context in which it is necessary to assess that loyalty, required on the basis of the third sentence of the first paragraph of Article 11 of the Staff Regulations, in which mention is made of the obligation of EU officials to carry out their duties in ‘keeping with [the] duty of loyalty to the Union’.
98
In that regard, in the judgments on which the Civil Service Tribunal relied, directly or indirectly, in paragraph 151 of the judgment under appeal, the finding that, in essence, various obligations under the Staff Regulations are imposed in a general and objective manner refers to those obligations themselves but does not mean that, from a more general point of view, the loyalty or disloyalty of an EU official must be assessed independently of the circumstances in which he or she engaged in given conduct and the reasons why he or she engaged in such conduct. The Civil Service Tribunal therefore committed an error of law by holding that the reasons behind the appellant’s conduct were unimportant in finding that there had been a breach of his duty of loyalty.
99
Moreover, the appellant is correct to maintain that, to classify, in applying Article 22 of the Staff Regulations, the conduct of an official as constituting serious misconduct, the appointing authority must take account of the circumstances and may not merely find that the official in question breached rules imposed on him or her or, in other words, may not merely find that he or she failed to comply with certain of his or her obligations.
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102
In reviewing the legality of acts, the court ruling on the substance of a case may, to reject pleas in law or arguments of the applicant, rely on findings, assessments and classifications made in the contested act, if they are legal, and use, in addition, its own legal considerations to provide reasons for the rejection of those pleas in law and those arguments (see, to that effect, order of 27 September 2004, UER v M6and Others, C‑470/02 P, not published, EU:C:2004:565, paragraphs 69 and 70, and judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 65). In contrast, in reviewing the legality of acts, the court ruling on the substance of a case cannot substitute its own assessment or reasoning for that of the author of the contested act to justify it (see, to that effect, judgments of 27 January 2000, DIR International Film and Others v Commission, C‑164/98 P, EU:C:2000:48, paragraph 38, and of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraphs 88 and 89). However, where it exercises unlimited jurisdiction, such as, on the basis of Article 91(1) of the Staff Regulations, in disputes of a financial nature between the European Union and its officials and, in particular, on the basis of the third paragraph of Article 22 of the Staff Regulations, in disputes relating to the financial liability of officials to the European Union, the court ruling on the substance of a case may itself take account of all of the circumstances of the case and, thus, provide in that regard its own assessment or reasoning to justify the payment of a sum by one party to the other party (see, to that effect, judgments of 27 October 1987, Houyoux and Guery v Commission, 176/86 and 177/86, EU:C:1987:461, paragraph 16, and of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 44 and the case-law cited).
103
In the present case, it must be observed that, in stating, in paragraph 159 of the judgment under appeal, that the appellant’s situation was unlawful from September 2008, the Civil Service Tribunal repeated an assessment appearing in the decision at issue, in recitals 22 and 37. However, the repetition of that assessment was intended, as is apparent from paragraph 160 of the judgment under appeal, only to refute the appellant’s arguments on the assessment of the damage which he had inflicted on the European Union, which he denied had existed in any form until September 2009, but was not intended, contrary to what the appellant maintains, to assert that the conditions for application of Article 22 of the Staff Regulations were met from September 2008. In so doing, the Civil Service Tribunal therefore neither classified the appellant’s conduct between September 2008 and December 2008 as serious misconduct nor, furthermore, gave the impression that the appointing authority had made a finding of serious misconduct for a period commencing in September 2008 and therefore did not distort the case file in that respect, as the appellant also maintains in paragraph 14 of the appeal.
104
In addition, in stating, also in paragraph 159 of the judgment under appeal, that the delegation had been deprived from January 2009 of the possibility of using the appellant’s staff accommodation for new purposes, the Civil Service Tribunal did, admittedly, even when account is taken of the decision rejecting the appellant’s complaint, add a ground not in the decision at issue, in which it was stated only that the damage resulted from the European Union bearing the cost of the unwarranted rental of the family apartment made available to the appellant. Nevertheless, that additional ground put forward by the Civil Service Tribunal merely states that the appellant’s conduct did not allow the damage identified in the decision at issue to be reduced, but does not identify any additional damage. What is more, that assessment can be made as part of the exercise of the Civil Service Tribunal’s power of unlimited jurisdiction concerning the appellant’s financial liability, a power which the appellant had, moreover, asked the tribunal to exercise. Consequently, the error of law, based on the allegation that the Civil Service Tribunal, in paragraph 159 of the judgment under appeal, identified new, hypothetical damage, not capable of giving rise to financial liability on the part of the appellant, is not established. It must also be found that the additional ground put forward by the Civil Service Tribunal is not capable of demonstrating distortion of the case file, as defined in paragraph 67 above.
105
The appellant then takes the view, in paragraphs 21 to 23 of the appeal, that in examining his arguments on the ‘breach of the five-year limitation period or the reasonable time requirement’, the Civil Service Tribunal committed an error of law by holding that the limitation period of five years provided for in the second paragraph of Article 85 of the Staff Regulations, invoked in the application, did not apply to his situation.
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107
In paragraphs 167 and 168 of the judgment under appeal, the Civil Service Tribunal, relying on the judgment of 27 January 2016, DF v Commission, (T‑782/14 P, EU:T:2016:29, paragraph 54), emphasised that Article 85 of the Staff Regulations covers the recovery of amounts overpaid to an official and that, in this case, the appellant had not received any amounts from the institution but had caused it financial damage and that the amounts paid by that institution to the landlord were not undue.
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109
On the substance, it must be emphasised that the judgment of 27 January 2016, DF v Commission (T‑782/14 P, EU:T:2016:29), relied on by the Civil Service Tribunal and mentioned in paragraph 107 above, does not support the conclusion that Article 85 of the Staff Regulations does not apply to a situation in which a benefit in kind is granted. Indeed, in paragraph 54 of that judgment, given in a case in which the official appealing, from whom reimbursement of an undue allowance was claimed, argued that he could not recover the part transferred to his ex-spouse as part of a maintenance allowance, the Court merely held that Article 85 of the Staff Regulations relates only to the financial relationship between an official who has received overpayments and the institution concerned, regardless of the possible consequences of the recovery for the official with regard to other persons who may have benefited directly or indirectly from the overpayments subject to recovery by that institution, as those are matters of private law. Consequently, that judgment does not decide on the question of whether a benefit in kind, such as the provision of a staff apartment, may be regarded as forming part of the financial relationship between an official and his or her institution and may be the subject of an action for recovery of overpayments. Furthermore, there is nothing to prevent an undue benefit in kind, which is equivalent to the indirect payment of an amount, from being the subject of recovery. Otherwise, the institutions would never be able to obtain reimbursement of those undue benefits unless they initiated the procedure provided for in Article 22 of the Staff Regulations and proved the serious misconduct of the officials concerned, which would be ill-suited to a number of circumstances and would lead to the unequal treatment of officials having received an undue benefit in the form of the direct payment of a sum of money and those having received an undue benefit in the form of a benefit in kind. Therefore, by holding that, since the appellant had not directly received any amounts from his institution, he could not rely on Article 85 of the Staff Regulations, the Civil Service Tribunal committed an error of law.
110
However, if the grounds of a judgment of the court ruling on the substance of a case reveal an infringement of EU law but the operative part appears well founded on other legal grounds, the appeal must be dismissed. The same approach applies in respect of the analysis by the court ruling on the substance of a case of a plea in law in the application, or part of a plea in law in the application, taken in isolation (see, to that effect, judgment of 9 June 1992, Lestelle v Commission, C‑30/91 P, EU:C:1992:252, paragraphs 27 to 29).
111
In this case, the Civil Service Tribunal also recalled, in paragraph 167 of the judgment under appeal, that, by his conduct, the appellant had caused financial damage to his institution. That reminder highlights the fact that the financial liability of the appellant was not established by the appointing authority on the basis of Article 85 of the Staff Regulations, concerning the recovery of overpayments, based on the finding of an undue benefit, but on the basis of Article 22 of the Staff Regulations, concerning the making good of damage suffered by the European Union as a result of serious misconduct on the part of its officials in the course of or in connection with the performance of their duties, based on the identification of damage caused to the European Union by the serious misconduct of the appellant.
112
It must be emphasised that the conditions for use of Article 85 and of Article 22 of the Staff Regulations are markedly different, as is their context. A decision to recover overpayments implies only, according to Article 85 of the Staff Regulations, that it has been shown that an amount or equivalent benefit was provided for no due reason to the official concerned and that that official was aware that there was no such due reason or that the fact of the overpayment was patently such that he or she could not have been unaware of it, whereas a decision to require damage to be made good on the basis of Article 22 of the Staff Regulations implies the demonstration of serious misconduct on the part of the official behind that damage. A decision to recover overpayments may be adopted, after, as applicable, having gathered the facts or obtained comments from the official concerned, as soon as the conditions provided for in Article 85 of the Staff Regulations are demonstrated, whereas a decision to require damage to be made good on the basis of Article 22 of the Staff Regulations may be adopted, under the second paragraph of that provision, only in accordance with the procedure laid down in regard to disciplinary matters, that is to say, in the light of the need to establish serious misconduct, in principle following an investigation, proceedings before the Disciplinary Board and the final, adversarial stage with the appointing authority, as provided for in Annex IX to the Staff Regulations. Those differences in the nature and in the substantive conditions and the conditions for the adoption of the decisions in question provide justification for the right of the appointing authority, according to the circumstances, to act pursuant to Article 22 of the Staff Regulations when it could have acted pursuant to Article 85 of the Staff Regulations, even though the rules or principles on time limits are not identical in the two cases, which can, moreover, also be justified by those differences.
113
In the light of the grounds appearing in paragraphs 111 and 112 above, the limitation rule specific to Article 85 of the Staff Regulations, invoked by the appellant, was correctly rejected by the Civil Service Tribunal.
114
The appellant goes on to submit, in paragraphs 24 and 25 of the appeal, that, in examining his arguments on the ‘breach of the five-year limitation period or reasonable time requirement’, the Civil Service Tribunal also committed errors of law by rejecting the alternative arguments in the application according to which, if the five-year limitation period provided for in the second paragraph of Article 85 of the Staff Regulations did not apply, account should be taken, ‘also as a parameter of reasonable time’ for the application of Article 22 of the Staff Regulations, of the five-year limitation period established in Article 81 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).
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127
It must be pointed out that, in the present case, both the appellant and the Civil Service Tribunal were mistaken as to the scope of the law in invoking, respectively, in paragraph 130 of the application, the provisions of Article 81 of Regulation No 966/2012 to plead limitation or failure to comply with the reasonable time requirement and, in paragraph 170 of the judgment under appeal, the provisions of Article 93(2) of Delegated Regulation No 1268/2012, which were adopted to implement the former provisions, to plead interruption of the period relied on.
128
In Regulation No 966/2012, which was the regulation setting the financial rules applicable to the general budget of the European Union at the time of the adoption of the decision at issue, Article 81 appears in the ‘Revenue operations’ chapter, and follows, in the same chapter, Articles 78, 79 and 80 which set out, respectively, the principles according to which amounts receivable are established, their recovery is ordered and their recovery is carried out. Article 81(1) provides, inter alia, 1 that, without prejudice to particular provisions, not relevant in the present case, entitlements of the European Union in respect of third parties are to be subject to a limitation period of five years and Article 81(2) provides that the Commission is to be empowered to adopt delegated acts concerning detailed rules on the limitation period. Article 80(3) of Delegated Regulation No 1268/2012, adopted to implement Article 78 of Regulation No 966/2012, provides that the authorising officer who established an amount receivable is to inform the debtor of that by means of a debit note, which must specify the deadline for payment starting from which default interest will be due if the debt is still to be honoured. Article 93(1) of Delegated Regulation No 1268/2012, adopted to implement Article 81 of Regulation No 966/2012, provides, inter alia, that the limitation period for entitlements of the European Union in respect of third parties is to begin to run on the expiry of that deadline for payment and Article 93(2) provides that that period is to be interrupted by any act of an institution, or a Member State acting at the request of an institution, notified to the third party and aiming at recovering the debt.
129
It is thus apparent that under the law applicable to the present case, the limitation relied on by the appellant, based on Article 81 of Regulation No 966/2012, can relate only to a stage following the establishment of the amount receivable, beginning, more precisely, on the expiry of the deadline for payment mentioned in the debit note sent to the third-party debtor and cannot, therefore, be argued with regard to the preceding stages resulting in the establishment of the amount receivable (see, by analogy, judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraphs 86 to 89). However, in the present case, it is the period between the occurrence of the events which gave rise to the amount receivable and the point when that amount was established by the decision at issue, thus before it was even established within the meaning of Article 78 of Regulation No 966/2012, that the appellant considers excessive. Consequently, whether it be by direct application or even as a parameter of reasonable time, the limitation period of five years provided for in Article 81 of Regulation No 966/2012 could not be applied for the benefit of the appellant.
130
The Civil Service Tribunal, consequently, incorrectly referred to the provisions of Article 93(2) of Delegated Regulation No 1268/2012, which implement Article 81 of Regulation No 966/2012, in response to the appellant’s argument concerning limitation based on the latter article. However, the conclusion reached by the Civil Service Tribunal, according to which the entitlement related to the rental payments in question was not time-barred under the rules of financial regulation, is nevertheless well founded by the legal grounds set out in paragraph 129 above.
131
In those circumstances, in the light of the considerations set out in paragraph 110 above concerning the possibility for an appeal court to substitute legal grounds, and of the fact that the appellant failed to advance, in his appeal, other arguments seeking to criticise the analysis by the Civil Service Tribunal of the plea in law in the application alleging breach of the five-year limitation period or the reasonable time requirement, the ground of appeal alleging errors of law with regard to the financial liability of the appellant must be rejected, in so far as it relates to the application of Article 81 of Regulation No 966/2012.
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Grounds of appeal advanced against the judgment under appeal regarding the procedural defects and breach of the rights of the defence alleged before the court ruling on the substance of the case
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– Ground of appeal alleging errors of law committed by the court ruling on the substance of the case regarding the procedural defects and breach of the rights of the defence alleged before it
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156
In paragraph 28 of the appeal, the appellant contests, first of all, the finding in principle made in paragraph 70 of the judgment under appeal, arguing that the claims made against an official cannot evolve in the course of proceedings by being adapted according to that official’s responses, not to reduce their seriousness but to maintain disciplinary proceedings in respect of him or her at any cost. That approach does not allow the official concerned to present a defence in good time. The Civil Service Tribunal therefore committed an error of law.
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159
Regarding the arguments in the appeal recounted in paragraph 156 above concerning the finding in principle cited at the end of paragraph 155 above, it is apparent from Annex IX to the Staff Regulations, related to disciplinary proceedings, that such proceedings are to be preceded by an investigation stage, conducted by OLAF or the appointing authority, which may have a specialist service for that purpose, such as IDOC at the Commission. It is only on conclusion of that investigation stage that, as provided in Article 3 of that annex, disciplinary proceedings are, where applicable, to be initiated, with or without consultation of the Disciplinary Board, depending on the level of penalty which may be considered. Consequently, in cases where the Disciplinary Board is consulted, it is in the report of the appointing authority accompanying the referral of the matter to the Disciplinary Board that the alleged misconduct on the part of the official in question is defined, as is confirmed by Article 12(1) of that annex, according to which that report ‘[must] stat[e] clearly the facts complained of and, where appropriate, the circumstances in which they arose, including any aggravating or extenuating circumstances’. It is in relation to the misconduct identified in that report, communicated to the official concerned pursuant to Article 12(2) of that annex, that his or her conduct will be assessed, both by the Disciplinary Board and the appointing authority, in view also of the additional evidence adduced during that disciplinary stage, and, where applicable, a penalty will be imposed on him or her. It is in relation also to that misconduct, of which the appointing authority accuses him or her following investigation, that the official concerned will be able to continue to exercise his or her rights of defence according to the rules provided for in Articles 12 to 22 of the same annex, including by familiarising himself or herself with the entire content of the case file and submitting observations in writing and orally to the Disciplinary Board and, after it has delivered its opinion, to the appointing authority. Consequently, any adjustments to the details of the misconduct during the investigation stage, in the course of which the services responsible for the investigation undertake it on the basis of possible misconduct, cannot constitute a breach of the rights of the defence, as the Civil Service Tribunal correctly held, including if, furthermore, in the light of the inquiries conducted, the misconduct identified at the end of the investigation is more extensive or more serious than the potential misconduct initially identified. In that regard, Articles 1 and 2 of Annex IX to the Staff Regulations, which both concern the investigation stage, state that where the possibility emerges of the involvement of an official in a case, that person is to be informed, provided this is not harmful to the investigation. That in no way requires that the possible misconduct be crystallised from the outset of the inquiries (see, to that effect, judgment of 15 May 1997, N v Commission, T‑273/94, EU:T:1997:71, paragraph 79). The error of law alleged in the appeal in respect of paragraph 70 of the judgment under appeal is therefore not established.
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162
Nevertheless, the grounds mentioned in paragraph 161 above do not meet the requisite legal standard to allow the rejection of the appellant’s criticism of the absence from the case file communicated by the appointing authority to the Disciplinary Board and from his personal file, to both of which he was given access, of the result of the inquiry made by IDOC related to the existence of that rule of not allocating staff accommodation in circumstances which the appellant encountered.
163
It must, in that regard, be emphasised that that inquiry was in fact carried out, as is apparent from the decision of 10 September 2015 whereby the appointing authority rejected the appellant’s complaint, which states that ‘the exchanges with the EEAS did not allow the existence of such a rule and practice within the EEAS to be confirmed with certainty’ and that ‘the existence of such a rule [is] not admitted’. The appellant himself mentioned, in his complaint against the decision at issue, a similar explanation given by the representatives of the appointing authority at the Disciplinary Board session. Article 13(1) of Annex IX to the Staff Regulations provides that on receipt of the appointing authority’s report to the Disciplinary Board, the official concerned is to have the right to obtain his complete personal file and take copies of all documents relevant to the proceedings. That provision seeks to ensure observance of the rights of the defence once the investigation stage is finished. It should be recalled that observance of the right to be heard is, in all proceedings in which sanctions may be imposed, a fundamental principle of EU law which must be respected even if the proceedings in question are administrative proceedings (judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 9). It has, moreover, been held that, in disciplinary proceedings, the official concerned must have the opportunity to comment on every document which an institution intends to use against him or her except, as far as the legality of the decision taken on conclusion of those proceedings is concerned, if that document, ultimately, is not decisive (see, to that effect, judgment of 3 July 2001, E v Commission, T‑24/98 and T‑241/99, EU:T:2001:175, paragraphs 92 and 93). Article 13(1) of Annex IX to the Staff Regulations also now contributes to compliance with the principle set out in Article 41(2)(b) of the Charter of Fundamental Rights, which seeks to guarantee the right to good administration, according to which every person has a right to have access to his or her file. It follows that an inquiry on the part of the investigating services, regardless of the result, must form part of the case file communicated to the Disciplinary Board and the interested party. In this case, it must, in addition, be observed: first of all, that the appointing authority used, at the Disciplinary Board session, the result of that inquiry, in stating that the existence of the rule invoked by the appellant was not confirmed, without having made the appellant aware of that result beforehand in the case file; next, that the Disciplinary Board, in essence, in recital 38 of its opinion, repeated that conclusion; finally, that that conclusion was again repeated in the decision of 10 September 2015 whereby the appointing authority rejected the appellant’s complaint. The possibility cannot be excluded that if the appellant had been able to find out, once the matter had been referred to the Disciplinary Board, the content of the inquiry made by IDOC, he might have been able, in particular if that inquiry had proved to be succinct, made in an informal manner or poorly documented, to further develop his argument in that respect and, for example, ask, in a more convincing manner than in his note to the Disciplinary Board of 23 September 2014, for the inquiries in that regard to be resumed, including by asking for the Disciplinary Board to order an investigation in which each side could submit its case and reply to the case of the other side, on the basis of Article 17(1) of Annex IX to the Staff Regulations.
…
169
By holding, in paragraph 80 of the judgment under appeal, that the appellant’s claims about the assessment of the facts by the Disciplinary Board were ineffective, the Civil Service Tribunal did commit an error of law.
170
Where disciplinary proceedings include the involvement of the Disciplinary Board, that is to say, in the light of the provisions of Articles 3 and 11 of Annex IX to the Staff Regulations, where the appointing authority initiates disciplinary proceedings envisaging that they may lead to the imposition of a more severe penalty than a written warning or a reprimand, that involvement constitutes an essential element of the procedure as it is the occasion for an in-depth, adversarial debate accompanied, potentially, by the conduct of an investigation supplementing those already initiated prior to that and as the appointing authority thereafter gives its decision taking account of the work of the Disciplinary Board, that is to say, taking account of its reasoned opinion adopted by majority vote and even of any divergent views which may have been expressed by certain of its members, as follows from Articles 12 to 18 of that annex. The appellant correctly emphasises in that regard that where the appointing authority departs from the opinion of the Disciplinary Board, it must give a detailed statement of the reasons for that, as the Civil Service Tribunal has held on a number of occasions (see, to that effect, judgments of 3 June 2015, Bedin v Commission, F‑128/14, EU:F:2015:51, paragraph 29; of 18 June 2015, CX v Commission, F‑27/13, EU:F:2015:60, paragraphs 57 and 58; and of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 147). Consequently, the involvement of the Disciplinary Board constitutes, where a matter must be referred to it as in the present case, an essential procedural requirement the opinion of which an official subject to a penalty on conclusion of those proceedings must in principle be able to contest where the appointing authority endorses the assessment of the facts by the Disciplinary Board. Furthermore, the Court of Justice has held that the opinion of the Disciplinary Board itself could be the subject of an admissible claim for annulment (judgment of 29 January 1985, F. v Commission, 228/83, EU:C:1985:28, paragraph 16). In the case of an action, as in the present case, seeking only the annulment of the final decision of the appointing authority imposing a penalty, it is consequently only if the appointing authority clearly departed from, or clearly did not take account, in its final decision, of an assessment by the Disciplinary Board or one of its members that it could be held that a plea in law or a claim brought against that assessment is ineffective since the contested act is the final decision, not the opinion of the Disciplinary Board or the opinion of some of its members. In any other case, it would be excessively formalistic to require the applicant to refer in his or her pleas in law and claims to specific passages of the decision at issue to contest an assessment given as part of the work of the Disciplinary Board when the appointing authority took account of that assessment in adopting its decision.
…
Action for annulment of the decision at issue and ancillary claims
…
First plea in law in the application, alleging procedural defects affecting the acts preparatory to the decision at issue
…
239
As previously stated in paragraph 147 above, the appellant criticises the Disciplinary Board, first, in paragraph 59 of the application, for having failed to adjudicate on the lawfulness of the referral of the matter to it and more generally on the procedural issues which he raised in the defence note, mentioned in paragraph 19 above, which he had sent to it.
240
In that regard, the Disciplinary Board was correct, in paragraphs 1 and 2 of its opinion, to state, in essence, that it was not for it to check the lawfulness of the investigation procedure but only the lawfulness of the conduct of the proceedings before it. As the Civil Service Tribunal pointed out in paragraph 78 of the judgment under appeal, under Article 18 of Annex IX to the Staff Regulations, the role of the Disciplinary Board is to deliver a reasoned opinion as to whether the facts complained of are established and as to any penalty to which those facts should give rise. It is for the appointing authority, which has the power to impose a penalty on the official concerned, to verify that the investigation procedure and the disciplinary proceedings as a whole were lawful and, where applicable, for the court before which an action against the decision adopted by the appointing authority is brought to do so also. For its part, the Disciplinary Board must, like any administrative or consultative body, ensure the lawfulness of the proceedings before it, which constitute one of the stages of the disciplinary proceedings. In addition, if it takes the view that prior to the referral of the matter to it, the investigation procedure was inadequate, it is for the Disciplinary Board to supplement that procedure, over and above the written or oral statements made before it by the official concerned and the appointing authority, with its own questions, or even an investigation in which each side can submit its case and reply to the case of the other side, as provided for in Article 17 of Annex IX to the Staff Regulations. In this case, in paragraphs 1 and 2 of its opinion, the Disciplinary Board stated that it did not have the power to condemn any irregularities affecting the procedure prior to the referral of the matter to it, but it satisfied itself that it had been possible for the appellant to comment on IDOC’s note of 31 October 2013, which had initiated the investigation related to the financial liability of the appellant and which was required to form part of the case file communicated to the Disciplinary Board, and it recalled that it had been able to familiarise itself with it in good time. It must, in addition, be observed that, in the application, the appellant does not criticise the Disciplinary Board for having failed to conduct supplementary inquiries, by means of questions or investigation. The appellant’s arguments set out in paragraph 59 of the application and recalled in paragraph 74 of the judgment under appeal, criticising the Disciplinary Board for having failed to adjudicate on certain alleged procedural irregularities, must therefore be rejected.
…
Pleas in law in the application concerning the financial liability of the appellant (fourth part of the fourth plea in law and sixth plea in law)
286
Article 22 of the Staff Regulations provides that an EU official may be required to make good, in whole or in part, any damage suffered by the European Union as a result of serious misconduct on his or her part in the course of or in connection with the performance of his or her duties.
…
295
The appellant knew that the situation whereby he and his family did not occupy a staff apartment of a size intended to accommodate his family, which he had requested, was one which could not continue, even though the head of administration of the delegation had not forced him to hand back his staff accommodation. He admitted, including at the second OLAF hearing, that the head of administration had insisted that his family join him in that apartment and he does not deny that staff accommodation intended to be occupied as a family should normally be so occupied. In that regard, the relevant provisions of Annex X to the Staff Regulations and the rules implementing them may be interpreted, together with the consideration of the interests of the European Union which is required of its officials under Article 11 of the Staff Regulations, only as meaning that an official who has asked for staff accommodation of a size suitable for the needs of his or her family is to occupy it with his or her family or to indicate that he or she is obliged to give it up where persistent difficulties prevent, beyond a reasonable period, such family from moving in. For the official concerned, it is a question of loyalty.
296
In the present case, if a problem involving the defective varnishing of the floor made a family living arrangement impossible, which would then have been the responsibility of the owner, the appellant should have refused to enter the premises or made another appropriate approach to the delegation in order that it could hold the owner accountable.
297
Finally, even if the presence of an ‘apartment-sitter’ friend was able to meet the appellant’s concern that his staff apartment should not be occupied in an untimely manner by third parties, it is purely because the appellant was not living there permanently, due to the fact that his family had not joined him there, that that arrangement of long term ‘apartment-sitter’ was justified.
298
Thus, none of the reasons linked to the health problems of his wife and child, to internal flaws in the apartment or to the attitude of the head of administration of the delegation can justify the personal conduct of the appellant and none of them can establish that he remained loyal to the European Union from January 2009, that is after the first four months of the lease, in failing to offer to give up the family sized apartment which he enjoyed and in keeping it for his own benefit, even if he displayed a certain degree of transparency regarding the situation towards the head of administration of the delegation.
…
300
At this point in the analysis, it must therefore be acknowledged, in the light of the unnecessary spending of public money caused by the attitude of the appellant and of the fact that he remained in his staff apartment beyond a reasonable period, that the appointing authority was correct to find that the appellant’s misconduct was of a serious nature, since from January 2009, four months after the beginning of the lease, until the end of the lease in August 2010, he prolonged the unlawful use of his staff apartment without in any way approaching the delegation with a view to handing it back. Misconduct capable of rendering the appellant financially liable under Article 22 of the Staff Regulations was therefore correctly established for that period.
…
302
With regard to the damage which the attitude of the appellant caused, it is necessary, first of all, to reject his argument, expressed in paragraphs 120 to 123 of the application, based on the fact that the lease could not be terminated in the first year without the rent nevertheless being due for all of that year, which allegedly ruled out any damage to the European Union during the first year of the lease from September 2008 to August 2009. There was indeed damage to the European Union throughout the period during which the appellant was found to be at fault in the decision at issue, that is from January 2009 to August 2010, therefore including from January to August 2009, since, during that time, the European Union was paying for a staff apartment suitable for a family for an official who was occupying it alone and on a part-time basis during the week, even though he had another family apartment nearby where his family had remained and where he himself lived on a part-time basis. Moreover, that damage was indeed caused by the appellant who, after having asked for such a staff apartment, failed to put an end to the abovementioned situation by failing to offer to give back that apartment after a few months. As pointed out in paragraph 296 above, if an ongoing problem involving the defective varnishing of the floor really made a family living arrangement in the staff apartment impossible, which would then have been the responsibility of the owner, the appellant should have refused at the outset to enter the premises or made another appropriate approach to the delegation in order that it could quickly and firmly hold the owner accountable. That damage has also been shown for the period until the end of the lease, inasmuch as, by failing to hand back his staff apartment to the delegation, the appellant prevented the Commission from enjoying that property when it was paying the rent for it, in particular by preventing it from using that apartment for other purposes, as the Civil Service Tribunal pointed out in paragraph 159 of the judgment under appeal, or at least from terminating the lease without penalty from September 2009, which could have reduced the damage actually suffered by the European Union. In that regard, the fact that the lease provided that the tenant may not terminate it during the first year, unless the rent was nevertheless paid during that period, cannot lead to the view that there is no damage for that period, contrary to what the appellant maintains. During that period, the delegation paid for a family sized staff apartment, further to a request by the appellant, without any justification for that and without being able to derive any usefulness from it.
303
Next, the appellant maintains, in paragraph 125 of the application, that, inasmuch as he would have been entitled to a smaller staff apartment, for a single person, the European Union’s damage was limited to the difference in rent between the staff apartment for a family which he occupied and such a smaller staff apartment. That argument could succeed only if the appellant had actually asked for a staff apartment for a single person during the lease arranged for the family apartment, but, in the absence of that circumstance, which is reduced to pure speculation, especially since his wife owned an apartment in New York in which his family lived, it must be found that over the whole period of the lease, the European Union in fact suffered damage corresponding to all the rental payments made for the staff apartment allocated to the appellant when it was not necessary to rent that apartment. That damage therefore extends, as the Commission pointed out in the decision at issue, over the period from January 2009 to August 2010 in respect of which it has been held, in paragraph 300 above, that there was serious misconduct on the part of the appellant.
…
307
As set out in paragraphs 106 and 114 above, the appellant invokes the five-year limitation period provided for in the second paragraph of Article 85 of the Staff Regulations and, in the alternative, as a parameter of reasonable time for the application of Article 22 of the Staff Regulations, the five-year limitation period established in Article 81 of Regulation No 966/2012. As has been held in paragraphs 113 and 129 above, neither of those two provisions is applicable to the present case. In fact, no provision of EU law specifies the period in which, in relation to the facts at issue, an investigation, disciplinary proceedings and a decision finding that an official is financially liable under Article 22 of the Staff Regulations must occur. Account may nevertheless be taken of the fact that the second paragraph of Article 85 of the Staff Regulations constitutes an example of a limitation period adopted by the legislature concerning certain relationships between the European Union and its officials, even though, in view of the differences characterising the application of Article 22 of the Staff Regulations in comparison with the application of Article 85 of the Staff Regulations, highlighted in paragraph 112 above, a period of a similar duration to be respected in the application of Article 22 of the Staff Regulations could not be an uninterruptible period such as that provided for in the second paragraph of Article 85 of the Staff Regulations.
308
It is clear from the case-law that, where the legislature has not provided for a limitation period, the requirement of legal certainty means that the EU institutions must exercise their powers within a reasonable time (see judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 96 and the case-law cited). It is therefore necessary to ascertain whether, in conducting an investigation, initiating disciplinary proceedings and ultimately making a finding of financial liability on the part of the appellant for the period from January 2009 to August 2010, the services of the Commission and the appointing authority breached, in the exercise of their authority, the principle of a reasonable time to act.
309
The reasonableness of a period of time is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity, the various procedural stages which the EU institution followed and the conduct of the parties in the course of the procedure. The reasonableness of a period cannot be determined by reference to a precise maximum limit determined in an abstract manner (see judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraphs 99 and 100 and the case-law cited).
310
In this case, the period in respect of which serious misconduct on the part of the appellant has been found runs from January 2009 to August 2010. OLAF informed the appellant that an investigation concerning him had been opened in relation to the use of his staff apartment in March 2012, that is, less than two years after the end of that continuous period. On conclusion of the investigation stage, involving OLAF and IDOC successively, the appointing authority initiated disciplinary proceedings against the appellant in July 2014 and adopted the decision at issue finding, inter alia, that the appellant was financially liable in February 2015. That decision was confirmed in September 2015 with the rejection of the appellant’s complaint. In view of that sequence of events, it must be found that the administrative authority did not exercise its powers in unreasonable periods of time.
…
New pleas advanced by the appellant in the appeal proceedings
…
315
The allegation, by the appellant, of fraudulent acts on the part of one of his colleagues in New York was made by means of an email from the appellant to IDOC dated 13 May 2013, produced in Annex 36 to the application. That mail was sent when the appellant was already the subject of the investigation concerning the use of his staff apartment and it sought, first, to cast doubt on the credibility of two witness statements made against him which had been taken into account by OLAF. It is in that context that the appellant reported the conduct which was potentially unlawful, in various respects, of that colleague, allegedly linked to the two persons who gave evidence. It is apparent from that mail that the allegation made by the appellant related partly to events about which the management of the delegation and the appellant himself had manifestly already known for some time and partly to events which had been brought to the attention of OLAF by other persons in the delegation before the appellant himself informed IDOC of them several months after having learned about them fortuitously. Consequently, the appellant’s allegation does not fall under whistle-blowing on facts which give rise to a presumption of the existence of illegal activity, which an official discovers, as provided for in Article 22a of the Staff Regulations, but it falls solely under the defence by an official of his own interests. The appellant cannot, therefore, avail himself of whistle-blower status, assuming that such status could amount to an extenuating circumstance in relation to facts which had nothing to do with those which he alleged, even if the alleged facts turned out to be true.
…
317
It follows from all of the foregoing that, as none of the pleas for annulment presented against the decision at issue has been successful, it is necessary to reject the claims for annulment brought by the appellant, including that directed against the decision rejecting his complaint. In that regard, the Court refers to the grounds set out by the Civil Service Tribunal in paragraphs 43 to 45 of the judgment under appeal.
Claim for reduction of the amount of the financial compensation required of the appellant
318
It must be found that the appellant, in asking in the form of order sought by him that the Court exercise the unlimited jurisdiction provided for in the third paragraph of Article 22 of the Staff Regulations to reduce the financial compensation required of him in the decision at issue, failed to advance any particular arguments to justify the reduction sought, apart from those set out in support of his pleas for annulment. Nevertheless, as Advocate General Kokott pointed out in point 60 of her Opinion in Gogos v Commission (C‑583/08 P, EU:C:2010:118), the Courts of the European Union do not have to confine themselves, in so far as the purely pecuniary aspects of a dispute between the European Union and one of its officials are concerned, to a review merely of the legality of the conduct in question, but have jurisdiction also to examine its appropriateness and may therefore substitute their own assessment for the assessment made by the appointing authority. In that regard, the second sentence of Article 91(1) of the Staff Regulations allows the Courts of the European Union, in disputes of a financial nature and in the exercise of their unlimited jurisdiction, to assess of their own motion, taking account of all of the circumstances of the case, damage suffered ex æquo et bono (see, to that effect and by analogy, judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 44 and the case-law cited). Moreover, such jurisdiction may be exercised even where there are no formal claims to that effect (see, to that effect, Opinion of Advocate General Kokott in Gogos v Commission, C‑583/08 P, EU:C:2010:118, point 61) and, a fortiori, in cases where such a claim is made, in the absence of any specific arguments raised in support of that claim. In the present case, in view of the requirements for compliance with the adversarial principle, the question of the role of the head of administration of the delegation was extensively debated both in the written pleadings of the parties and at the hearing, including by means of the questions posed by the Court on that occasion.
319
It is apparent from that debate and the documents in the case file that the head of administration of the delegation did not require the appellant to leave his staff accommodation but merely reminded him of the unlawful nature of his situation (see paragraph 274 above). Even though that circumstance does not call into question the existence of serious misconduct on the part of the appellant consisting of prolonging the unlawful use of his staff apartment from January 2009 until August 2010 (see paragraph 300 above), it shows that, as a result of the lack of appropriate initiative on the part of its representative on site when she was aware of the situation, the Commission contributed to the occurrence in full of the damage which it suffered when it could have reduced the extent of that damage, given that there did not appear to have been anything to prevent such an initiative, including if it had consisted of requiring the appellant to vacate his staff apartment as the conditions of his occupation were not met. Thus, and in the light of all of the circumstances of the present case, the Court takes the view ex æquo et bono that the appellant’s compensation for the damage suffered by the European Union must be reduced (see, to that effect, judgments of 7 November 1985, Adams v Commission, 145/83, EU:C:1985:448, paragraphs 53 and 54, and of 11 July 2007, Schneider Electric v Commission, T‑351/03, EU:T:2007:212, paragraphs 332 and 334).
320
In accordance with Article 22 of the Staff Regulations, the compensation owed by the appellant on account of the damage which he inflicted on the European Union as a result of serious misconduct on his part in failing to take any steps to hand back his staff apartment from January 2009 must therefore be set at EUR 80000 on the date of delivery of this judgment, which implies either that the sums, including any interest, which the appellant has already paid in excess of that amount are to be repaid to him by the Commission, or that the Commission is to require additional payments from the appellant up to that amount. In both scenarios, interest should be added to the payments or repayments required at the rate set by the European Central Bank (ECB) for its main refinancing operations, calculated with effect from the delivery of the present judgment.
…
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.
Sets aside the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 19 July 2016, HG v Commission (F‑149/15);
2.
Fixes the amount of compensation owed by HG to the European Union at the sum of EUR 80000 on the date of delivery of this judgment;
3.
Dismisses the action in Case F‑149/15 as to the remainder;
4.
Orders HG and the European Commission to bear their own costs in Cases F‑149/15, T‑693/16 P, T‑440/18 RENV and T‑693/16 P-RENV-RX.
Gervasoni
Madise
Nihoul
Delivered in open court in Luxembourg on 15 December 2021.
[Signatures]
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)	Language of the case: French.
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)	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.