JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
10 April 2024 (*)
(Civil service – Officials – Disciplinary proceedings – Disciplinary penalty – Removal from post – OLAF investigation – Principle of sound administration – Article 22 of Annex IX to the Staff Regulations – Obligation to state reasons – Manifest error of assessment – Article 10 of Annex IX to the Staff Regulations – Proportionality – Legitimate expectations – Duty to have regard for the welfare of officials)
In Case T‑22/22,
AL, represented by R. Rata, lawyer,
applicant,
v
Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200),
having regard to the written part of the procedure,
further to the hearing on 14 September 2023, at which the Court decided to dismiss the request for a stay of the proceedings brought by the applicant,
gives the following
Judgment
1        By his action based on Article 270 TFEU, the applicant, AL, seeks annulment of the decision of 27 September 2021 of the Council of the European Union, by which he was removed from his post (‘the contested decision’).
I.      Background to the dispute
2        The applicant has been an official in the General Secretariat of the Council since 1 December 2007.
3        Following a request made by the applicant, various allowances were granted to him between 2009 and 2019 in so far as his mother and four other persons were treated as dependent children within the meaning of Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
4        By letter of 7 September 2016, the appointing authority (‘the AA’) informed the European Anti-Fraud Office (OLAF) of its concerns regarding the applicant’s requests for family allowances.
5        On 8 November 2016, OLAF opened an investigation into suspected fraud on the part of the applicant concerning, inter alia, the composition of his family and the conditions required for obtaining family allowances.
6        On 23 December 2020, the applicant was informed about the closure of OLAF’s investigation. In its report, OLAF, inter alia, sent recommendations to the Council that it take all the appropriate measures for recovery of an amount unduly paid to the applicant and initiate disciplinary proceedings against him.
7        On 22 January 2021, the Director-General for Administration of the Council sent an internal note to the Office for the Administration and Payment of Individual Entitlements (PMO), which note contained a number of suggestions for the implementation of OLAF’s recommendations.
8        On 10 February 2021, the AA decided, in accordance with Article 3 of Annex IX to the Staff Regulations, to initiate disciplinary proceedings against the applicant.
9        In its reasoned opinion of 5 July 2021, the Disciplinary Board of the Council proposed by way of penalty that the applicant be classified in a lower function group with downgrading.
10      On 27 September 2021, at the end of the disciplinary proceedings, the AA adopted the contested decision providing for the penalty of removal from post in respect of the applicant, in accordance with Article 9(1)(h) of Annex IX to the Staff Regulations.
11      On 22 December 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision.
II.    Facts subsequent to the bringing of the action
12      Following the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), granting suspension of the operation of the contested decision, the applicant was reinstated in his post with effect from 1 October 2021.
13      On 6 April 2022, the Council rejected the complaint of 22 December 2021.
III. Forms of order sought
14      The applicant claims that the Court should:
–        annul the contested decision;
–        order the reinstatement of the applicant as an official of the General Secretariat of the Council in his previous post and duties;
–        in the alternative, order that the file be referred back to the General Secretariat of the Council with a view to reopening the disciplinary proceedings in accordance with Article 28 of Annex IX to the Staff Regulations;
–        order the Council to pay the costs.
15      The Council contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
IV.    Law
A.      Admissibility of the new plea, alleging infringement of Article 25 of Annex IX to the Staff Regulations and Article 48 of the Charter of Fundamental Rights of the European Union
16      By letter of 7 September 2023, the applicant put forward an additional plea in law, alleging infringement of Article 25 of Annex IX to the Staff Regulations, which provides that where the official is prosecuted for the acts which gave rise to the disciplinary proceedings, a final decision is to be taken only after a final judgment has been handed down by the court hearing the case. The applicant submits that the Council infringed that article and the presumption of innocence, provided for in Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in that it adopted the contested decision in respect of the same set of facts that were the subject matter of criminal proceedings before the national court hearing the criminal case handed down a final judgment.
17      The Council presented its observations on that new plea at the hearing held on 14 September 2023 and contested both the admissibility and the well-foundedness thereof.
18      Under Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
19      Under Article 84(2) of those rules of procedure, any new pleas in law are to be introduced in the second exchange of pleadings and identified as such. Where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned shall introduce the new pleas in law as soon as those matters come to his or her knowledge.
20      In the present case, the applicant states, first, that he was informed that criminal proceedings allegedly concerning the same facts as those which gave rise to the contested decision were under way by a letter of 27 September 2022 from the Direcția Națională Anticorupție (National Anti-Corruption Directorate, Romania) and, second,
that he was heard by that court on 19 October 2022. Moreover, it was only in October 2022 that his representative was authorised to access the criminal proceedings concerning him.
21      The applicant also submits that, since the reply was forwarded on 26 October 2022, at that precise moment, he was not in possession of all the information necessary to put forward that new plea, alleging infringement of Article 25 of Annex IX to the Staff Regulations and Article 48 of the Charter.
22      Since, as is apparent from paragraph 20 above, the applicant became aware that criminal proceedings were under way before the second exchange of pleadings, then under Article 84(2) of the Rules of Procedure, he was obliged to introduce that new plea at the time of lodging the reply.
23      Moreover, even if the applicant was not in possession of all the information he considered necessary to introduce that plea at the time of lodging the reply, he was obliged, under Article 84(2) of the Rules of Procedure, to put it forward as soon as possible. In the present case, the applicant failed to explain why he had waited several months after becoming aware of the criminal proceedings under way in Romania to introduce his request to put forward a new plea in law.
24      As a result, the new plea, alleging infringement of Article 25 of Annex IX to the Staff Regulations and Article 48 of the Charter, is inadmissible.
25      The Court nevertheless considers it appropriate to observe, as regards the well-foundedness of that plea, that when the Council adopted the contested decision, the national criminal investigation did not also involve the initiation of criminal prosecution in respect of the applicant. He was identified as being the subject of criminal proceedings in criminal proceedings before the Romanian courts only in September 2022.
26      Moreover, as observed by the applicant in his written pleadings, the competent Romanian anti-fraud and anti-corruption authorities have confirmed on several occasions that the applicant was not known to their services, that there was no ongoing case linked to his name and that he was neither a suspect nor an indicted person (see, to that effect, order of 31 March 2022, AL v Council, T‑22/22 R, not published, EU:T:2022:200, paragraph 56).
27      Moreover, it follows from the case-law that the concept of ‘criminal prosecution’ in Article 25 of Annex IX to the Staff Regulations cannot include the existence of a mere preliminary investigation (see, to that effect, judgment of 17 July 2012, BG v Ombudsman, F‑54/11, EU:F:2012:114, paragraph 70). In that regard, it should be noted that the administration is only obliged to suspend disciplinary proceedings if the official demonstrates that he or she is subject to criminal prosecution. This entails that the public mechanism for imposing punishment has been engaged, and thus cannot include an enquiry or judicial investigation, but presupposes that criminal proceedings have been instituted (see judgment of 19 June 2013, Goetz v Committee of the Regions, F‑89/11, EU:F:2013:83, paragraph 151 and the case-law cited).
28      It follows that the new plea in law, alleging infringement of Article 25 of Annex IX to the Staff Regulations and Article 48 of the Charter, is inadmissible and, in any event, unfounded.
B.      Substance
29      The applicant puts forward 13 pleas in law in support of his action: the first alleges infringement of Article 22(1) of Annex IX to the Staff Regulations; the second to fourth, infringement of Article 10(a) of Annex IX to the Staff Regulations; the fifth, infringement of Article 10(b) of Annex IX to the Staff Regulations; the sixth, infringement of Article 10(c) of Annex IX to the Staff Regulations; the seventh, infringement of Article 10(d) of Annex IX to the Staff Regulations; the eighth, infringement of Article 10(e) of Annex IX to the Staff Regulations; the ninth, infringement of Article 10(g) of Annex IX to the Staff Regulations; the tenth, infringement of Article 10(h) of Annex IX to the Staff Regulations; the eleventh, infringement of Article 10(i) of Annex IX to the Staff Regulations; the twelfth, infringement of the principle of the protection of legitimate expectations and of the principle of sound administration; and the thirteenth, infringement of the duty to have regard for the welfare of officials and their dependants.
30      As a preliminary point, the Court finds that the second to eleventh pleas, as relied on by the applicant, must be held to constitute, in essence, a single plea, which must be regarded the second plea. That plea comprises two parts, the first alleging infringement of Article 10 of Annex IX to the Staff Regulations, which breaks down into several complaints, themselves alleging infringements of various criteria listed in that article, and the second alleging infringement of the obligation to state reasons.
31      Moreover, the alleged infringements of Article 10(a) of Annex IX to the Staff Regulations, as regards the allowances received, first, in respect of the applicant’s mother as a dependent child (second plea), second, in respect of the foster family placement of two dependent children (‘A’ and ‘B’) (third plea) and, third, in respect of the treatment of two girls as dependent children (‘C’ and ‘D’) (fourth plea), constitute, in essence, one and the same complaint forming part of the first part of the second plea.
32      Lastly, the alleged infringements of Article 10(e) and (g) of Annex IX to the Staff Regulations constitute a single complaint forming part of the first part of the second plea and will be examined together, given that the applicant puts forward, in essence, the same arguments.
33      The Court takes the view that it is appropriate to examine, in the first place, the first plea, alleging infringement of Article 22(1) of Annex IX to the Staff Regulations; in the second place, the second part of the second plea, alleging a failure to state reasons; in the third place, the first part of the second plea, alleging infringement of Article 10 of Annex IX to the Staff Regulations, manifest error of assessment, infringement of the presumption of innocence and of the principle of proportionality. That part comprises a number of complaints concerning infringements of Article 10(a), (b), (c), (d), (e), (g), (h) and (i) of Annex IX to the Staff Regulations. In the fourth place, it is appropriate to examine the third and fourth pleas alleging, respectively, infringement of the principle of the protection of legitimate expectations and of the principle of sound administration, and infringement of the duty to have regard for the welfare of officials and their dependants.
1.      The first plea in law, alleging infringement of Article 22(1) of Annex IX to the Staff Regulations
34      By his first plea, the applicant submits that the Council infringed Article 22(1) of Annex IX to the Staff Regulations and the principle of sound administration in failing to comply with the two-month time limit between receipt of the reasoned opinion from the Disciplinary Board and the adoption of the contested decision, without providing any reasons for doing so.
35      In the applicant’s submission, the failure to comply with the time limit laid down for the adoption of a decision gave rise to an infringement of Article 22(1) of Annex IX to the Staff Regulations and the principle of sound administration. The contested decision also contained no substantive statement of reasons, in particular as regards the seriousness of the misconduct. The AA dismissed all mitigating circumstances, without providing any proper reasons for doing so. The AA also turned mitigating circumstances into aggravating circumstances, without producing any new evidence. That, too, is contrary to the principle of sound administration, as is apparent from the judgment of 29 January 1985, F. v Commission (228/83, EU:C:1985:28). The applicant further submits that the time limit for adopting the contested decision gave rise to a legitimate expectation that a less severe penalty than removal from post would be adopted.
36      The Council disputes the applicant’s arguments.
37      Article 22(1) of Annex IX to the Staff Regulations provides: ‘After hearing the official, the [AA] 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 [Disciplinary] Board. Reasons must be given for the decision’.
38      According to settled case-law, the time limit provided for in Article 22(1) of Annex IX to the Staff Regulations is not a mandatory time limit. That provision sets out a rule of sound administration, the purpose of which is to avoid, in the interests both of the administration and of officials, unjustified delay in adopting the decision terminating disciplinary proceedings (see judgments of 24 November 2021, CX v Commission, T‑743/16 RENV II, not published, EU:T:2021:824, paragraphs 339 and 340), and of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 121).
39      In the present case, the reasoned opinion of the Disciplinary Board was communicated to the AA and the applicant on 5 July 2021 and, on 27 September 2021, the AA adopted the contested decision.
40      In that regard, it should be noted that, on 26 July 2021, the applicant was heard pursuant to Article 22(1) of Annex IX to the Staff Regulations. The applicant then lodged his written observations on 6 August 2021 and was heard again on 7 September 2021.  The day following that hearing, namely on 8 September 2021, the applicant’s counsel sent written observations corresponding to those that had been set out orally by the applicant.
41      The Court accordingly finds that, although it is true that the AA did not take its decision within two months of receipt of the opinion of the Disciplinary Board, the complexity of the file, in particular the aspect that the facts of the case were spread out over a lengthy period and concerned a number of requests, the detailed nature of the applicant’s arguments and the concern that he be heard on a number of occasions justified the time lapsed. Those elements are apparent from, inter alia, the reasons stated for the contested decision.
42      As observed by the Council in its written pleadings, the delay of approximately three weeks in relation to the time limit provided for in Article 22(1) of Annex IX to the Staff Regulations is justified by the thorough examination of the applicant’s administrative file and by the fact that, in order to determine the penalty to be imposed, the AA allowed the applicant to be heard on a number of occasions, leaving him the time necessary to prepare his defence.
43      Lastly, as regards the potential harm arising from the fact that the delay in the adoption of the contested decision gave rise to a legitimate expectation on the part of the applicant that a less severe penalty than removal from post would be imposed and deprived him of the opportunity to defend himself properly in the proceedings concerning the recovery of the allowances received, it should be noted that, according to settled case-law, the right to claim protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU administration (see judgment of 19 April 2023, PP and Others v Parliament, T‑39/21, EU:T:2023:204, paragraph 119 and the case-law cited).
44      The applicant, however, starts with the supposition that no prosecution had been brought against him, in particular because of the Disciplinary Board’s proposal to impose a less severe penalty, his cooperation concerning the apartment owned by his mother, the claims procedure against the allowance recovery decision, the decision of Romanian courts concerning the foster family placement of the children A and B and the fact that no decision had been taken as at 5 September 2021.
45      The factors referred to in paragraph 44 above do not consist of precise, unconditional and consistent assurances originating from authorised and reliable sources and given to the person concerned by the competent EU authorities. Consequently, none of those factors is capable of giving rise to a legitimate expectation on the part of the applicant as held in the case-law cited in paragraph 43 above, given that the required conditions have not been satisfied.
46      In the light of the foregoing, the first plea must be rejected as unfounded.
2.      The second plea in law, alleging a failure to state reasons and infringement of Article 10 of Annex IX to the Staff Regulations
47      As a preliminary point, it should be recalled that Article 10 of Annex IX to the Staff Regulations provides as follows:
‘The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of:
(a)      the nature of the misconduct and the circumstances in which it occurred,
(b)      the extent to which the misconduct adversely affects the integrity, reputation or interests of the institutions,
(c)      the extent to which the misconduct involves intentional actions or negligence,
(d)      the motives for the official’s misconduct,
(e)      the official’s grade and seniority,
(f)      the degree of the official’s personal responsibility,
(g)      the level of the official’s duties and responsibilities,
(h)      whether the misconduct involves repeated action or behaviour,
(i)      the conduct of the official throughout the course of his career.’
48      In that regard, it should first be noted that, in disciplinary matters, the Staff Regulations do not specify any fixed relationship between the penalties listed by them and the various types of misconduct on the part of officials (judgment of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 126).
49      It should also be borne in mind that Article 10 of Annex IX to the Staff Regulations lists various categories of criteria that must be taken into account by the appointing authority in determining the seriousness of the misconduct and deciding on the penalty to be imposed (judgment of 1 June 2022, Cristescu v Commission, T‑754/20, not published, EU:T:2022:316, paragraph 216).
50      That provision expressly requires the disciplinary penalties imposed to be commensurate with the seriousness of the misconduct, in accordance with the general requirement of proportionality governing actions of the EU institutions, as provided by Article 5(4) TEU and the general principle recognised on that point by the case-law (judgment of 1 June 2022, Cristescu v Commission, T‑754/20, not published, EU:T:2022:316, paragraph 217).
51      The case-law has deduced from those factors, by way of proportionality, that the determination of the penalty had to be based on an overall assessment, to be carried out by the appointing authority, of all the specific facts and circumstances specific to each case (see judgment of 1 June 2022, Cristescu v Commission, T‑754/20, not published, EU:T:2022:316, paragraph 218 and the case-law cited).
52      As regards judicial review, once the facts have been properly established, in view of the broad discretion enjoyed by the appointing authority in choosing appropriate penalties in disciplinary matters, judicial review must be limited to ascertaining that there has been no manifest error of assessment and that there has been no misuse of powers (judgment of 6 October 2021, AV and AW v Parliament, T‑43/20, not published, EU:T:2021:666, paragraph 136; see also judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 180 and the case-law cited).
53      It is for the appointing authority to choose the appropriate penalty where the truth of the matters alleged against the staff member is established, and it is not open to the Courts of the European Union to criticise that choice unless the penalty imposed is disproportionate to the matters alleged against the person concerned (judgment of 26 June 2013, BM v ECB, F‑106/11, EU:F:2013:91, paragraph 51).
54      Moreover, although the Staff Regulations do not specify any fixed relationship between the disciplinary penalties listed therein and the various types of misconduct on the part of members of staff, and do not state the extent to which aggravating or extenuating circumstances are to be taken into account in the choice of penalty, compliance with Article 47 of the Charter presupposes that a ‘penalty’ imposed by an administrative authority which does not itself satisfy the conditions laid down in that article must be subject to the subsequent review of a judicial body which has the power to assess fully the proportionality between the misconduct and the penalty. In that connection, the EU judicature ascertains, inter alia, whether the weight attached by the disciplinary authority to the aggravating and extenuating circumstances is proportionate (see, to that effect, judgment of 9 June 2021, DI v ECB, T‑514/19, EU:T:2021:332, paragraph 197 and the case-law cited; see also, to that effect, ECtHR, 31 March 2015, Andreasen v. the United Kingdom and 26 other Member States of the European Union, CE:ECHR:2015:0331DEC002882711, § 73).
55      It is in the light of those considerations that it must be examined whether the contested decision contains a sufficient statement of reasons, having regard to the circumstances listed in Article 10 of Annex IX to the Staff Regulations, and whether the penalty imposed by the AA is proportionate to the facts alleged against the staff member.
(a)    The second part of the second plea in law, alleging failure to state reasons
56      The applicant submits, in essence, that the contested decision does not contain a sufficient statement of reasons pertaining to the analysis of the circumstances listed in Article 10(a) to (i) of Annex IX to the Staff Regulations (see paragraph 47 above).
57      In particular, in the first place, the applicant alleges that the AA failed to provide a statement of reasons in the contested decision, having regard to the circumstances in which the alleged misconduct occurred within the meaning of Article 10(a) of Annex IX to the Staff Regulations. The applicant further submits that the AA casts doubt on his loyalty towards his employer in finding that he has failed to express meaningful remorse.
58      In the second place, the applicant submits that the contested decision does not contain a proper statement of reasons about the alleged adverse effect caused by the alleged misconduct to the integrity, reputation or interests of the Council under Article 10(b) of Annex IX to the Staff Regulations; instead, it merely states that he failed to express meaningful remorse for his actions and concludes that he poses a serious risk to the reputation and interests of the Council.
59      In the third place, the applicant submits that the contested decision does not contain a sufficient statement of reasons regarding, first, the intentional nature of the misconduct under Article 10(c) of Annex IX to the Staff Regulations; second, the fact that, despite the reasoned opinion of the Disciplinary Board, the AA dismissed circumstances which, in his submission, were mitigating for the purposes of Article 10(d) of Annex IX to the Staff Regulations; third, circumstances relating to his grade and seniority for the purposes of Article 10(e) of Annex IX to the Staff Regulations; fourth, Article 10(g) of Annex IX to the Staff Regulations as regards his duties and responsibilities; fifth, Article 10(h) of Annex IX to the Staff Regulations as regards the repetition of the misconduct; and, sixth, Article 10(i) of Annex IX to the Staff Regulations as regards his conduct throughout his career.
60      The Council disputes the applicant’s arguments.
61      According to settled case-law, the obligation to state reasons laid down in Article 296 TFEU, recalled in Article 41(2)(c) of the Charter and reflected in the second paragraph of Article 25 of the Staff Regulations, is an essential principle of EU law, which is intended, first, to provide the person concerned with sufficient details to allow him or her to ascertain whether or not the decision adversely affecting him or her is well founded and, second, to make it possible for the decision to be the subject of judicial review (judgment of 19 November 2014, EH v Commission, F‑42/14, EU:F:2014:250, paragraph 130; see also, to that effect, judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22, and of 21 June 1984, Lux v Court of Auditors, 69/83, EU:C:1984:225, paragraph 16).
62      It follows that a statement of reasons does not need to be exhaustive, but, on the contrary, must be considered sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 119 and the case-law cited).
63      In particular, when the appointing authority imposes a penalty on an official, it must provide a statement of reasons for its decision in the light of, inter alia, the necessary proportionality between the misconduct and the penalty (judgment of 10 September 2019, DK v EEAS, T‑217/18, not published, EU:T:2019:571, paragraph 149).
64      In disciplinary matters, the question whether the statement of reasons for the appointing authority’s decision imposing a disciplinary measure satisfies those requirements must be assessed in the light not only of its wording but also in that of its context and all the relevant legal rules. In that regard, although the Disciplinary Board and the appointing authority are required to set out the elements of fact and law forming the legal basis for their decisions and the considerations which led to their adoption, they are not required to discuss all the factual and legal points which were raised by the person concerned during the proceedings (judgment of 5 December 2002, Stevens v Commission, T‑277/01, EU:T:2002:302, paragraph 71). In any event, a decision is sufficiently reasoned where it is adopted in a context known to the official concerned, which enables him or her to understand the extent of the measure taken against him or her (judgments of 1 April 2004, N v Commission, T‑198/02, EU:T:2004:101, paragraph 70, and of 19 November 2014, EH v Commission, F‑42/14, EU:F:2014:250, paragraph 131).
65      However, if the penalty imposed on the official concerned is ultimately more severe than that suggested by the Disciplinary Board, the appointing authority’s decision must clearly state the reasons which led that authority to depart from the opinion issued by that board (judgments of 29 January 1985, F. v Commission, 228/83, EU:C:1985:28, paragraph 35; of 1 April 2004, N v Commission, T‑198/02, EU:T:2004:101, paragraph 95; and of 19 November 2014, EH v Commission, F‑42/14, EU:F:2014:250, paragraph 132).
66      In the present case, first of all, the content of the contested decision should be borne in mind as regards the relevant facts established in respect of the applicant, as set out in the reasoned opinion of the Disciplinary Board.
67      More specifically, first, it was found to be established, in respect of how the applicant’s mother had been treated as a dependent child within the meaning of Article 2(4) of Annex VII to the Staff Regulations, that the applicant had demonstrated gross negligence in failing to verify the accuracy of the information provided by him concerning his mother’s assets. Second, it was found that the applicant had knowingly decided not to disclose income he was receiving in the form of a military pension and that that misconduct had commenced in September 2009. As regards the foster family placement of the children A and B, it was found that the applicant had provided incorrect information to the Romanian child protection authorities consisting in telling them, falsely, that he resided in Bucharest (Romania) and that his income was from a military pension, when in fact he resided in Brussels (Belgium) and was in paid employment as an official of the European Union. It is also apparent from the contested decision that, when the foster family placement ended, he failed to inform the relevant service of the General Secretariat of the Council. As regards the applicant’s conduct in 2014 in relation to the recognition of C and D as dependent children in order to be able to re-submit a request to that effect with the General Secretariat of the Council following the rejection of his initial request, it is apparent from the contested decision that the applicant prepared mediation agreements containing incorrect information about his status as godfather and lodged them with a Romanian court in order to have them recognised by that court so as to use the forthcoming decision in support of a new application for allowances lodged with the General Secretariat of the Council.
68      Next, the AA assessed those facts, held to be established, in the light of the conditions laid down in Article 10 of Annex IX to the Staff Regulations.
69      First, as regards the nature of the misconduct and the circumstances in which that misconduct took place for the purposes of Article 10(a) of Annex IX to the Staff Regulations, the AA stated that it was legitimate to think that the applicant, as a reasonably diligent official, would not have provided, directly or indirectly, incorrect information to the General Secretariat of the Council in order to obtain family allowances if his duty of loyalty had been at the forefront of his considerations and that the applicant, beyond admissions of negligence, had failed to express, in a meaningful way, remorse for his actions and behaviour. The AA further observed that the facts at issue in the disciplinary proceedings concerned actions which had commenced in the two years following the applicant’s entry into service and had spanned most of his career with the Council.
70      Secondly, the AA observed that the applicant represented a significant risk for the reputation and interests of the General Secretariat of the Council within the meaning of Article 10(b) of Annex IX to the Staff Regulations. Thirdly, as regards the extent to which the misconduct involves intentional actions or negligence within the meaning of Article 10(c) of Annex IX to the Staff Regulations, the AA stated that the applicant’s failure to verify his mother’s assets amounted to gross negligence on his part and that his conduct in the context of the other facts of the present proceedings amounted to wilful conduct on his part.
71      Thirdly, as regards the motives for the official’s misconduct within the meaning of Article 10(d) of Annex IX to the Staff Regulations, the AA stated that the mere absence of identifiable malicious intent and the concern for the children’s well-being could not excuse the applicant’s conduct, which took the form of misrepresentation of his personal situation to the national authorities of his Member State of origin and indirectly to the AA so that public funds could be specifically allocated to those children. It was further noted that the mere absence of identifiable malicious intent or a wish to enrich oneself was not a sufficient factor to mitigate the seriousness of the facts. On the contrary, the AA observes that the dishonesty of the means used by the applicant is an aggravating factor.
72      Fourthly, the applicant’s relatively low grade and seniority for the purposes of Article 10(e) of Annex IX to the Staff Regulations, and the fact that he did not hold a post of hierarchical significance within the General Secretariat of the Council, were taken into account by the AA, which nevertheless found that, given that the applicant was a reasonably diligent official, whose level of diligence, in particular given the familiarity he exhibited with the Staff Regulations and other legal provisions, exceeded the level which could normally be expected of an official of his grade and seniority, he could not be unaware of the grave consequences to which he was exposing himself.
73      Fifthly, the AA stated that, although the level of the applicant’s duties and responsibilities for the purposes of Article 10(g) of Annex IX to the Staff Regulations did not require the post-holder to exercise a significantly high level of judgement, it should nevertheless have been clear to him that the behaviour of which he was accused was unacceptable on the part of any Union official.
74      Sixthly, as regards whether the misconduct involves repeated action or behaviour for the purposes of Article 10(h) of Annex IX to the Staff Regulations, the applicant’s conduct in treating his mother as a dependent child commenced within a short time after his appointment as an official and was repeated by the lodging of eight similar applications over the course of a decade. As regards the allowances for the four dependent children, the applicant’s conduct fits a pattern of behaviour under which the ends are considered to justify the means and consists in a misrepresentation of his personal situation to the national authorities in order to procure decisions that he could use subsequently to convince the competent service of the General Secretariat of the Council to grant him family allowances.
75      Seventhly, the AA explained that the applicant’s consistent satisfactory performance in carrying out his assigned duties for the purposes of Article 10(i) of Annex IX to the Staff Regulations was not a sufficient factor as to mitigate significantly the seriousness of the facts. Indeed, the relationship of trust and loyalty between an official and his or her institution is not limited to the correct performance of the duties assigned to the official, but encompasses the overall behaviour of the official towards his or her institution, including on matters relating to his or her personal situation.
76      Lastly, in the light of all of those considerations, the AA concluded that the disciplinary penalty proposed by the Disciplinary Board, consisting in the classification of the applicant in a lower function group with downgrading, was not commensurate with the seriousness of the misconduct and that a more severe penalty was warranted, due to, inter alia, the seriousness of the applicant’s misconduct, the repetition of the misconduct throughout almost the entire time he was employed with the Council and his failure to express any remorse.
77      The Court accordingly finds that the AA did provide a sufficient statement of reasons for the contested decision and, inter alia, set out in detail the reasons that led it to impose a more severe penalty than the one proposed by the Disciplinary Board. It accordingly did not fail to comply with its duty to provide a statement of reasons.
78      In the light of the foregoing, the second part of the second plea in law must be rejected.
(b)    The first part of the second plea in law, alleging infringement of Article 10 of Annex IX to the Staff Regulations
79      The first part of the second plea in law is broken down into seven complaints, alleging manifest error of assessment by the Council in determining the seriousness of the misconduct and deciding on the disciplinary penalty to be imposed, in the light of the nature of the misconduct and the circumstances in which it took place; the extent to which the misconduct adversely affected the integrity, reputation or interests of the institutions; the extent to which the misconduct involved intentional actions or negligence; the motives for the official’s misconduct; the official’s grade and seniority; the level of the official’s duties and responsibilities; whether the misconduct involved repeated action or behaviour; and the conduct of the official throughout the course of his career.
(1)    The first complaint of the first part of the second plea in law, alleging infringement of Article 10(a) of Annex IX to the Staff Regulations
80      By his first complaint, the applicant submits, in essence, that the Council made a manifest error of assessment as regards the penalty imposed in relation to the nature of the alleged misconduct, in failing to take account of the nature of the misconduct and the circumstances in which it took place for the purposes of Article 10(a) of Annex IX to the Staff Regulations.
81      In particular, the applicant submits that it was only when he received OLAF’s final report on 23 December 2020 that he realised that his mother owned an apartment in Bucharest and he contacted the PMO immediately to inform it of that fact. He also submits that he did not maliciously fail to communicate that he was receiving a military pension. He believed that that pension was a gift or payment within the meaning of the second paragraph of Article 11 of the Staff Regulations and that it accordingly did not need to be declared in the applications to have his mother treated as a dependent child. He states that it would run counter to the principle of gratitude towards military personnel for their loyalty and sacrifices if that pension were to affect the calculation of the allowances in the applications in question.
82      As regards the children A and B, the applicant submits that, in annulling the recovery decision concerning the allowances that had been paid for the period from 1 August 2010 to 31 January 2013, the AA acknowledged three weeks after his removal from post that there had been no irregularity in respect of those allowances and accordingly ruled out any misconduct in that regard. Consequently, the contested decision cannot be based on any misconduct whatsoever on the part of the applicant. He adds that he had not been informed in due time that the Commission for Child Protection had ended the foster family placement of the children A and B earlier than scheduled.
83      As regards C and D, the applicant claims that he did not misrepresent the reality of his family situation to the Romanian court that had heard those children and their respective parents. When the AA considers that the Romanian court’s decision would have been different if the applicant had presented the reality of his family ties with C and D, it substitutes its own judgment for that of the Romanian court.
84      The Council disputes the applicant’s arguments.
85      In the present case, it is apparent from the case file that the Disciplinary Board and the AA examined the facts and circumstances in which the applicant acted.
86      In particular, in the first place, as regards the application for an allowance for the applicant’s mother, in the relevant application form, which was submitted on several occasions, he explicitly answered, for the period from 2009 to 2014, first, that he was not in receipt of other income, such as a pension and, second, that his mother did not own property. It is stated therein that the applicant declares on his honour that the information contained therein is correct and that he undertakes to inform the administration of any changes in that information.
87      As regards the apartment owned by the applicant’s mother, in its reasoned opinion the Disciplinary Board found that, for lack of sufficient evidence, the Board could not consider it established that the applicant had wilfully failed to declare that apartment. However, as regards the military pension income received by the applicant, the Disciplinary Board found that, when completing his application to have his mother treated as a dependent child, the applicant had wilfully withheld information relating to that income from the AA.
88      In that regard, the applicant claims that the fact that he did not declare a military pension does not prove that his alleged misconduct was wilful. He states that he was convinced that he was not required to make such a declaration on the ground that they were payments under the second paragraph of Article 11 of the Staff Regulations and not income for the purposes of Article 7 of the Council Decision of 29 April 2004 adopting the general implementing provisions concerning a person treated as a dependent child.
89      It should be noted, however, that the second paragraph of Article 11 of the Staff Regulations, found in Title II, entitled ‘Rights and obligations of officials’, prohibits an official from accepting from any source outside the institution to which he or she belongs, without authorisation from the AA, any favour, gift or payment of any kind whatsoever, except for services rendered either before his or her appointment or during special leave for military or other national service and in respect of such service.
90      It follows from the wording and context of the second paragraph of Article 11 of the Staff Regulations that it lays down an obligation for an official to submit the acceptance of certain income to the AA for prior authorisation and also the exceptions to that obligation, and that that article does not concern the declaration of his or her income in order to receive an allowance for a person treated as a dependent child for the purposes of Article 2(4) of Annex VII to the Staff Regulations. Accordingly, the second paragraph of Article 11 of the Staff Regulations is not relevant to the present case and could not relieve the applicant of his obligation to declare part of his income, such as his military pension, in the context of an application for an allowance. That article in fact concerns only the question whether or not the applicant’s military pension could be treated as gifts or payments and is not relevant to declarations of income which must be made in the context of applications submitted under Article 2(4) of Annex VII to the Staff Regulations.
91      Thus, although under the second paragraph of Article 11 of the Staff Regulations an official may receive pensions for past military service without prior authorisation from the AA, that does not relieve him or her of the obligation to declare that income in the context of an application for an allowance submitted under Article 2(4) of Annex VII to the Staff Regulations.
92      Yet, although he was receiving income in the form of a military pension, the applicant explicitly answered in the negative when asked whether he was in receipt of other income, such as a pension, declaring on his honour that the information provided was correct and undertaking to inform the administration of any change, for several years, in the context of submitting an application form for the allowance in question under Article 2(4) of Annex VII to the Staff Regulations. Given that, in addition, the text of that form leaves no margin for reasonable doubt that income must be declared, the AA was correct in finding that the applicant could not rely on the second paragraph of Article 11 of the Staff Regulations in order to justify the seriousness of the alleged misconduct.
93      That conclusion is not called into question by the applicant’s statement to the effect that a former official working in the Council’s Human Resources Directorate provided information on the application of Article 11 of the Staff Regulations during the training for the newcomers’ days in December 2007. First, the applicant has not stated or proven that such an explanation concerned the fact that his military pension came within the scope of Article 11 of the Staff Regulations and, for that reason, did not have to be declared in an allowance application under Article 2(4) of Annex VII to the Staff Regulations. Second, such explanations were general in nature and did not concern the specific situation of the applicant concerning the grant of that allowance, with the result that it was not capable of justifying the misconduct.
94      In the second place, as regards the applications for allowances for the children A and B, first, it is apparent from the case file that the fact that the applicant stated his former address in Bucharest, and not his place of residence in Belgium, and provided imprecise salary information when the application for foster family placement was made with the Romanian authorities, is a deliberate act of providing incorrect information to the Romanian authorities.
95      Secondly, the decision annulling the recovery decision regarding the allowances received for, inter alia, maintenance of his adopted son in the period from 1 August 2010 to 31 January 2013 is of no relevance for the purposes of the disciplinary proceedings, since the latter proceedings concern the applicant’s conduct in providing incorrect information.
96      Although the wrongful acts of which the applicant is accused are directly linked to the nature of the family allowances requested by the applicant as payments that were not due (see, to that effect, order of 31 March 2022, AL v Council, T‑22/22 R, not published, EU:T:2022:200, paragraphs 54 and 55), the contested decision is not based on the grant of those allowances, but on the fact that the applicant made false statements to both the Romanian authorities and the Council in order to obtain those allowances.
97      In the third place, as regards the applications in 2014 for allowances for C and D, in the contested decision, the AA, following the reasoned opinion of the Disciplinary Board, found that the applicant had provided incorrect information both to a Romanian court concerning his personal situation and the family ties with those two children and to the Council for the purpose of having them recognised as dependent children. In particular, the Council submits that the applicant, in stating that he was one of their godparents, brought an action before the Romanian court in order for it to take formal notice of the mediation agreements with the parents of C and D and to obtain official confirmation that they were living with him in Belgium. According to the AA, however, first, given that the applicant had not maintained a relationship with them, it was not possible to find that he had close family ties with them. Second, those mediation agreements were concluded outside of any dispute about the place of residence of C and D, between the applicant and their parents. Indeed, the sole objective of those agreements was to obtain a decision from a Romanian court that could be presented to the Council with a view to obtaining the grant of the allowances in question.
98      It was in the light of those factors that the Council assessed the intentional nature of the misconduct and the circumstances of the present case in which it was committed.
99      The applicant, however, disputes the AA’s assessment, in that it finds that the decision of the Romanian court taking note of the mediation agreements was based on incorrect information that had been deliberately provided by the applicant and, therefore, does not grant him entitlement to receive the allowances sought.
100    It should be noted in that regard that the Romanian court’s decision was delivered as part of proceedings brought to have the mediation agreements recognised. Although, under the applicable national legislation, mediation agreements are concluded when there is disagreement between the parties, it is apparent from the OLAF report and, in particular, from the email exchanges between the applicant and the parents of C and D, that they were in agreement that the children’s residence was in Belgium and on how they would proceed in order to have them considered dependants of the applicant. The lack of disagreement is also corroborated by the chronology of the facts. The applicant lodged his first allowance application on 28 July 2014 and, after having received a negative response, requested that mediation agreements be drawn up on 18 August 2014, stating that, henceforth, the parents of C and D were no longer in agreement.
101    It follows that the Council did not make a manifest error of assessment in finding that the applicant had intentionally provided incorrect information to the national and EU authorities.
102    Moreover, the fact that no allowance was granted in respect of C and D in 2014 is not relevant, given that the contested decision took account of the applicant’s conduct, not any financial harm for the Union budget.
103    In the light of the foregoing, the Court finds that the AA did not infringe Article 10(a) of Annex IX to the Staff Regulations.
104    Consequently, the first complaint of the first part of the second plea in law must be rejected as unfounded.
(2)    The second complaint of the second plea in law, alleging infringement of Article 10(b) of Annex IX to the Staff Regulations
105    By his second complaint, the applicant disputes the AA’s assessments relating to the adverse effect on the integrity, reputation or interests of the institution due to the misconduct of which he is accused, which is the criterion laid down in Article 10(b) of Annex IX to the Staff Regulations.
106    In particular, the applicant emphasises that the presence of an adverse effect on the integrity, reputation or interests of an institution has been recognised by the EU Courts in situations which are very different from that of the present case, characterised, inter alia, by aggressive, denigrating and often insulting statements, impugning the honour of the persons and institutions referred to and having been widely publicised.
107    The applicant adds that he does not have a representative role with the Council vis-à-vis the public, that he does not possess any internet social media account whatsoever, that he has always kept his family life details private, and that he has never spoken on behalf of the Council.
108    Moreover, the alleged damage to the Union’s financial interests is not considerable within the meaning of recital 18 or Article 7 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29).
109    The applicant further submits that the AA’s argument, to the effect that he failed to express meaningful remorse for his actions does not in itself adversely affect the integrity, reputation, or interests of the Council.
110    The Council disputes the applicant’s arguments.
111    Under Article 10(b) of Annex IX to the Staff Regulations, the institution may take into account, as an aggravating factor, the risk to which the official’s conduct exposed the integrity, reputation or interests of the institution, without being required to demonstrate whether and how many persons external to the institution were aware of the conduct of the official concerned which is at issue (see judgment of 19 April 2023, OQ v Commission, T‑162/22, not published, EU:T:2023:205, paragraph 33 and the case-law cited).
112    In that regard, an official must avoid all conduct which is liable objectively to affect the image of the institutions and undermine the public’s trust in them (see, to that effect, judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 204).
113    Moreover, in disciplinary proceedings under Article 10 of Annex IX to the Staff Regulations, it is irrelevant that the damage has given rise, in whole or in part, to compensation, such a circumstance being immaterial, as the purpose of the provision is not to arrange compensation, but to impose a penalty (see judgment of 15 July 2021, DK v EEAS, C‑851/19 P, EU:C:2021:607, paragraph 44 and the case-law cited).
114    The official’s obligation to avoid all conduct which is liable to affect the image or reputation of the institutions is a specific expression of the official’s fundamental obligation of loyalty and cooperation towards the European Union and his or her superiors. That duty includes, first and foremost, an obligation on the official to refrain from conduct likely to prejudice the dignity and respect due to the European Union. Thus, he or she must, inter alia, conduct himself or herself in a manner that is beyond suspicion in order that the relationship of trust between the European Union and the official may at all times be maintained (see, to that effect, judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 187 and the case-law cited).
115    Those rules, which express the duties and responsibilities incumbent on the EU civil service, find their justification in the tasks of general interest for which the European Union is responsible, which require that the citizens of the European Union and the Member States can have confidence in the institutions ensuring, through the agency of their officials and other members of staff, that those tasks are properly carried out. Thus, those obligations are intended principally to preserve the relationship of trust which must be present between the European Union and its officials and other members of staff (judgment of 23 October 2013, Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paragraph 62; see also, to that effect, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraphs 44 and 46).
116    Thus, by their conduct, officials and other members of staff of the European Union must present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (judgments of 7 March 1996, Williams v Court of Auditors, T‑146/94, EU:T:1996:34, paragraph 65, and of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 190).
117    In the present case, the misconduct of which the applicant is accused concerns the misrepresentation of his personal situation, both to the Romanian national authorities in order to obtain documents that would enable him to be granted allowances for dependent children, and to the Council in the allowance applications submitted by him in order to have the Council allow those applications.
118    The circumstances of the present case show that the applicant did not conduct himself in a manner that is beyond suspicion within the meaning of the case-law cited in paragraph 114 above, given that he was attempting to be paid allowances to which he was not entitled, thereby causing undue expense to the Union budget.
119    Moreover, as is apparent from the contested decision, the applicant’s conduct adversely affects the reputation of the General Secretariat of the Council.
120    As regards the applicant’s argument to the effect that the alleged damage to the Council’s financial interests does not arise from any criminal offence and the amount of the damage was substantially reduced as a result of the decision partially annulling the recovery decision, the Court notes that what was at issue in the disciplinary proceedings was the applicant’s conduct, not the amount of the allowances unduly received. Indeed, it is that conduct which is relevant for the purposes of determining whether the official is making himself liable to a disciplinary penalty pursuant to Article 86(1) of the Staff Regulations as regards the criteria for determining the seriousness of the misconduct and deciding upon the disciplinary penalty under Article 10 of Annex IX to the Staff Regulations.
121    It should also be noted that the AA considered that the absence of remorse on the part of the applicant suggested that he had not grasped the wrongful nature of his behaviour and that, for that reason, he continued to represent a real and significant risk to the interests of the European Union, since there was no guarantee that he would not repeat the same behaviour.
122    In that regard, it is apparent from the case-law that the lack of remorse on the part of the applicant, as regards inter alia the failure to understand the seriousness of the misconduct of which he was accused, may, in certain cases, be taken into account under Article 10 of Annex IX to the Staff Regulations (see, to that effect, judgment of 22 May 2014, BG v Ombudsman, T‑406/12 P, EU:T:2014:273, paragraph 70).
123    Accordingly, the second complaint of the first part of the second plea in law must be rejected as unfounded.
(3)    The third complaint of the first part of the second plea in law, alleging infringement of Article 10(c) of Annex IX to the Staff Regulations
124    The applicant refers, in essence, to his arguments concerning the alleged infringement of Article 10(a) of Annex IX to the Staff Regulations to show that his alleged misconduct in treating his mother as a dependent child, the foster family placement of the children A and B, and his 2014 application relating to C and D did not involve any intentional act, but was the result of negligence.
125    The Council disputes those arguments.
126    It should be noted that, in order to determine the seriousness of the misconduct and decide on the disciplinary penalty to be imposed under Article 10(c) of Annex IX to the Staff Regulations, account must be taken of the degree of intent or negligence involved in the misconduct.
127    In the present case, the AA found, in the contested decision, that the applicant was aware of his conduct and had intentionally provided false statements, both to the authorities of his Member State of origin and to the EU institutions, in order to attain a specific objective, that of being granted the allowances for which he had applied.
128    In that regard, in the first place, the Court finds that, as regards the allowance applications for his mother, in the form relating to that application, the question was specifically asked whether the official concerned was in receipt of other income, such as, inter alia, a pension. The applicant answered that question in the negative on a number of occasions for the period from 2009 to 2019, attesting on his honour to the accuracy of that information. If the applicant had doubts as to what was encompassed by the term ‘pension’ that had to be taken into account as other income in that form, he ought to have requested information on the point. Thus, the AA did not make a manifest error of assessment in determining the intentional nature of the applicant’s conduct in relation to his failure to declare his military pension in the form in which he sought to have his mother treated as a dependent child.
129    In the second place, as regards the decision of 30 January 2013 putting an end to the placement measures for the children A and B, the applicant denies having been aware of it because he did not receive notification and states that that is why he had not notified it to the Council.
130    In that regard, it should be noted that, in the absence of a notification of the decision ending the placement, the applicant could have requested information from the competent national authorities. Even if the applicant was not notified of that decision, he was aware that the placement of those children would eventually end. Before lodging an application for the allowances in question, his duty of diligence required him to check the status of the procedure ending the foster family placement, given that the receipt of those allowances was contingent on how that procedure progressed. Moreover, given that the applicant himself had, together with the parents of the children in question, requested the competent Romanian authorities to end the foster family placement, he was in a position to inform the Council of the change requested as it related to his personal situation and of the fact that there was a pending procedure in the matter.
131    It follows that the AA was correct in finding that the applicant had deliberately omitted to provide that information concerning the end of the foster family placement of the children A and B as from 1 February 2013.
132    It should also be noted, as observed by the Council, that when the applicant provided his former address in Bucharest, instead of his place of residence in Belgium, and also inaccurate information about his salary at the time of the application submitted to the competent Romanian authorities for foster family placement of the children A and B, he was aware that he was providing false information to the Romanian public authorities.
133    In the third place, as is apparent from paragraph 97 above, as regards the allowance applications for C and D, in the contested decision the AA found that, in drawing up mediation agreements and placing them before a Romanian judicial authority, the applicant had intentionally established a dossier that misrepresented his personal situation in order to obtain a judicial decision recognising C and D as his dependent children so as to lodge it with the competent service in the Council.
134    As follows from paragraph 100 above, it seems that the objective behind the mediation agreements, based as they were on inaccurate information, was to obtain official confirmation from a national authority, with the result that the Council, without making a manifest error of assessment, was able to find that the applicant had knowingly provided inaccurate information in order to obtain the allowances in question.
135    Consequently, the applicant’s conduct involved intentional actions within the meaning of Article 10(c) of Annex IX to the Staff Regulations, which were taken into account by the AA in order to determine the penalty imposed.
136    Consequently, the third complaint of the first part of the second plea in law must be rejected as unfounded.
(4)    The fourth complaint of the first part of the second plea in law, alleging infringement of Article 10(d) of Annex IX to the Staff Regulations
137    By his fourth complaint, the applicant disputes the AA’s assessments in that it failed to take account, by way of mitigating circumstance, of the fact that the motives for his alleged misconduct within the meaning of Article 10(d) of Annex IX to the Staff Regulations related principally to the primary interest and welfare of the children in question, namely A and B and also C and D.
138    The applicant claims, in particular, that he always acted in their primary interest. In that regard, he states that A suffers from a severe disability and that he covers his intensive treatments and university costs as a single parent and that C is studying at university.
139    The applicant states that the Disciplinary Board observed, in relation to A, the applicant’s generosity and the fact that, in the contested decision, the AA referred to that board’s reasoned opinion and noted that there was no evidence that his actions were motivated by malicious intent or a wish to enrich himself personally.
140    However, in finding that the mere absence of identifiable malicious intent or a wish to enrich oneself was not a sufficient element to mitigate the seriousness of the facts, the AA infringed the principle of proportionality. Such a position in effect amounts to finding that the lack of aggravating factors is not a mitigating factor but an aggravating one. Article 10(d) of the Annex IX to the Staff Regulations refers strictly to the motives for the alleged misconduct. Hence, in that regard, the contested decision is contradictory because, although it recognises that the applicant was not motivated by malicious intent, it ultimately imposed the most severe penalty on him. The applicant further refers to paragraphs 61 to 63 of the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), which are to the effect that the AA ought to have taken that factor into account as a motive which led him to commit the misconduct for the purposes of Article 10(d) of the Annex IX to the Staff Regulations.
141    The Council disputes the applicant’s arguments.
142    In the present case, the applicant provided inaccurate information both to the Romanian authorities and to the Council so that public funds would be granted to him for expenses relating to the care of certain children which he had requested to have placed in care with his host family or whom he had adopted. Although the AA must take into account the motive that led the applicant to commit the misconduct for the purposes of Article 10(d) of the Annex IX to the Staff Regulations, even though he did not have any malicious intent or a wish to enrich himself personally, the children’s welfare cannot in itself excuse the applicant’s behaviour (see, to that effect, order of 31 March 2022, AL v Council, T‑22/22 R, not published, EU:T:2022:200, paragraph 61).
143    Indeed, that factor was taken into account by the Disciplinary Board, which unanimously proposed that the applicant be classified in a lower function group, with downgrading. The AA found, by contrast, that the means employed by the applicant to achieve those ends had given rise to the misconduct, about which he had not expressed any remorse and that, accordingly, the children’s welfare could not excuse his behaviour.
144    It should be noted in that regard that a member of the staff who has breached his or her professional duty cannot rely on good faith to avoid a disciplinary penalty (see judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 134 (not published) and the case-law cited).
145    Moreover, even in the absence of identifiable malicious intent and even if the applicant’s ultimate goal was the welfare of those children, the Court notes that the primary reason why he engaged in the misconduct of which he stands accused was to obtain the payment of the family allowances for which he had applied, even though he was not eligible to receive them.
146    Thus, in view of those circumstances, the Court finds that the AA made no manifest error of assessment in examining the motives that led the applicant to commit the misconduct of which he stands accused and accordingly did not infringe Article 10(d) of Annex IX to the Staff Regulations.
147    Consequently, the fourth complaint of the first part of the second plea in law must be rejected as unfounded.
(5)    The fifth complaint of the first part of the second plea in law, alleging infringement of Article 10(e) and (g) of Annex IX to the Staff Regulations
148    By his fifth complaint, the applicant submits, in essence, that the AA made a manifest error of assessment as regards the assessment of his grade and seniority as well as the level of his duties and responsibilities, in order to determine the penalty to be imposed.
149    The applicant submits, in particular, that the fact that he did not hold a post of hierarchical significance within the General Secretariat of the Council ought to have counted as a mitigating factor in his favour. Furthermore, the contested decision not only contains an insufficient statement of reasons, but also a contradictory one, given that, although it recognised that his responsibilities were at a very low hierarchical level, it nevertheless imposed the most severe penalty on him.
150    The Council disputes the applicant’s arguments.
151    In the present case, the applicant performed duties relating to grades AST 1
to AST 4 during the period from 2009 to 2019.
152    Yet the Disciplinary Board and the AA found that, although the applicant did not hold a high grade or level of responsibility, it followed from the facts and circumstances of the case, and in the light also of his seniority as a member of Council staff, that he had a good level of knowledge of the provisions of the Staff Regulations and of the potential consequences of his conduct.
153    Moreover, the applicant’s alleged misconduct was not related to the exercise of his duties and responsibilities, but concerned his conduct relating to his statements about his personal situation, in respect of which he could not be unaware that the information provided was incorrect, or that such statements provided to the national authorities and the Council constituted a breach of his obligations as an official of an EU institution.
154    The Court also notes that the facts alleged against the applicant constitute serious misconduct by an EU official, irrespective of his grade or responsibilities. That seriousness was exacerbated by the fact that that misconduct commenced a relatively short time after the applicant’s entry into service and was not limited to a single incident or a limited period of time, but continued throughout most of his period of service within that institution.
155    Thus, the AA was correct in finding that, in the light of the circumstances of the case, the applicant’s low grade and level of personal responsibility could not count as mitigating factors.
156    It follows that the fifth complaint of the first part of the second plea in law must be rejected.
(6)    The sixth complaint of the first part of the second plea in law, alleging infringement of Article 10(h) of Annex IX to the Staff Regulations
157    The applicant reiterates, in essence, the arguments put forward previously in relation to the alleged infringement of Article 10(a) of Annex IX to the Staff Regulations in order to demonstrate that his misconduct did not involve any ‘repeated action or behaviour’ within the meaning of Article 10(h) of Annex IX to the Staff Regulations.
158    The Council disputes those arguments.
159    Under Article 10(h) of Annex IX to the Staff Regulations, in order to determine the seriousness of the misconduct and decide on the penalty to be imposed, account is taken of whether the action or behaviour is repeated.
160    According to the case-law, although repetition of misconduct may justify a more severe disciplinary penalty, Article 10(h) of Annex IX to the Staff Regulations does not allow for the lack of repetition to constitute a mitigating factor since, in principle, an official is required to refrain from any conduct which might reflect adversely upon his or her position (judgment of 22 May 2014, BG v Ombudsman, T‑406/12 P, EU:T:2014:273, paragraph 75).
161    It is, moreover, common ground that the misconduct at issue began within two years after the applicant entered the service and continued throughout most of his career. In particular, as regards the treatment of the applicant’s mother as a dependent child, that behaviour began with the lodging of his first application in September 2009 and was repeated through the lodging of eight similar applications over the course of a decade. As regards the four dependent children, the applicant knowingly provided incorrect information concerning his personal situation to the national authorities in order to obtain decisions which he could then use to be granted family allowances.
162    In fact, all of the misconduct alleged against the applicant involved his providing incomplete or incorrect information both to the EU institutions and the national authorities, sometimes by bringing actions before the competent national authorities in order to obtain decisions supporting his applications, with the inaccuracy of those statements being such as to make him eligible to receive allowances for the persons concerned.
163    Thus, the AA made no manifest error of assessment in finding that the misconduct was part of a certain pattern of repeated behaviour.
164    Consequently, the sixth complaint of the first part of the second plea in law must be rejected as unfounded.
(7)    The seventh complaint of the first part of the second plea in law, alleging infringement of Article 10(i) of Annex IX to the Staff Regulations
165    By his seventh complaint, the applicant submits that there has been an infringement of Article 10(i) of Annex IX to the Staff Regulations inasmuch as the AA made a manifest error of assessment in failing to take account of his conduct in the light of his career as a whole.
166    In particular, the applicant submits that, in the course of his career, he performed to the satisfaction of his superiors and that his consistently good performance has been reflected in his annual evaluation reports. Yet in the contested decision, the AA turns around what should normally be a positive factor and puts general and non-detailed assumptions over objective criteria.
167    The Council disputes the applicant’s arguments.
168    According to the case-law, even if the appointing authority takes the view that an official has had positive evaluations throughout his or her career, it may nevertheless legitimately find, even in such a scenario, that, in the light of the seriousness of the facts established, such a factor was not such as to lessen the penalty to be imposed (see, to that effect, judgment of 11 April 2016, FU v Commission, F‑49/15, EU:F:2016:72, paragraph 129).
169    In a case where there has been serious misconduct over a long period of time, such as here, it is not necessary to take account of the good conduct of the official being sanctioned by way of mitigating factor, with the result that any good conduct by that official does not preclude the imposition of a severe penalty, such as removal from post (see, to that effect, judgment of 19 April 2023, OQ v Commission, T‑162/22, not published, EU:T:2023:205, paragraph 55 and the case-law cited).
170    In the present case, the applicant’s conduct was found by the Disciplinary Board to constitute a mitigating factor. The AA took the view, however, that the applicant’s good conduct in the exercise of the duties with which he was entrusted did not constitute a sufficient factor to mitigate significantly the seriousness of the facts alleged. It added in that regard that the relationship of trust and loyalty between an official and his or her institution was not limited to the correct performance of the duties assigned to the official, but encompassed the overall behaviour of the official towards his or her institution, including on matters relating to his or her personal situation.
171    Such an assessment is consistent with the case-law cited in paragraph 169 above, in so far as, in order to determine the appropriate penalty to be imposed, account must be taken of the official’s behaviour and conduct as a whole, without being limited to his or her good conduct in performing his
or her duties within the institution, in view of the seriousness of the misconduct at issue in the present case.
172    The AA was correct in finding that the duty of loyalty required the official not just to refrain from conduct likely to prejudice the dignity and the respect due to the institution and its authorities, but also to conduct himself in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained. In particular, the AA stated that the applicant’s actions and behaviour had not satisfied those requirements and had caused serious harm to that relationship of trust in respect of both his institution and the authorities of his Member State of origin.
173    The Court notes in that regard that the positive assessments in the applicant’s evaluation reports regarding his conduct concern his behaviour in the service of the Council to which he was assigned and not his behaviour towards that institution in the treatment of his personal affairs.
174    Moreover, in substantiating the breakdown of the relationship of trust, the AA observed that the applicant had not expressed any remorse for his behaviour, which was an aggravating factor, given that, since he was an active official, there was no guarantee that he would not repeat that same behaviour, and that he did not have the integrity required of EU officials. The AA stated that, in its assessments of the facts at issue, it could have shown a certain degree of leniency towards the applicant if it had been able to find, even at a late stage of the disciplinary proceedings before the Disciplinary Board, that he intended to be transparent about his personal situation and his past actions and behaviour. However, the applicant, both before the Disciplinary Board and in his written observations in the course of the disciplinary proceedings, expressed his distrust of his institution and OLAF and criticised both the AA and OLAF for having tampered with the file so as to hamper his ability to defend himself properly against the accusations made against him. In those circumstances, the AA found that its relationship of trust with the applicant had been irreparably damaged.
175    In that regard, in view of the lack of remorse on the part of the applicant in the course of the disciplinary proceedings and, in essence, the lack of awareness of the seriousness of the misconduct of which he stood accused, even though his past performances might have constituted a factor liable to mitigate the seriousness of misconduct for the purposes of Article 10(i) of Annex IX to the Staff Regulations, and thus the penalty imposed, the Court finds that, in the present case, those performances were not such as to call into question the finding that the relationship of trust between the Council and the applicant had ended, in particular due to the deliberate and repeated nature of the applicant’s actions.
176    Consequently, the seventh complaint of the first part of the second plea in law must be rejected as unfounded.
177    In view of all the foregoing considerations, in particular those referred to in paragraphs 85 to 103, 117 to 123, 126 to 136, 142 to 147, 151 to 156, 159 to 164 and 168 to 176 above, the Court finds that the Council imposed a disciplinary penalty on the applicant that was proportionate to the seriousness of the misconduct committed, and carried out a correct assessment of the overall circumstances of the case, in particular those listed in Article 10 of Annex IX to the Staff Regulations. Consequently, the Council carried out a proportionate weighting of the aggravating and mitigating factors for the purposes of the case-law referred to in paragraph 54 above.
178    Moreover, as regards the applicant’s argument to the effect that the Council disregarded the right to be presumed innocent in that the circumstances in which the alleged misconduct occurred were contested in national proceedings, the Council in essence confined itself to penalising misconduct committed by an official towards an EU institution. That decision thus contains no finding of criminal guilt of the applicant and is part of the administration’s autonomy in determining the legal characterisation of a disciplinary offence as compared to the enforcement of the same facts under criminal law (see, to that effect, judgment of 9 June 2021, DI v ECB, T‑514/19, EU:T:2021:332, paragraph 120). It is also based on an overall assessment of all the actual facts specific to the applicant’s individual situation. Consequently, in adopting the contested decision, the Council did not infringe the applicant’s right to be presumed innocent.
179    In the light of the foregoing, the first part of the second plea in law and the second plea in law in its entirety must be rejected as unfounded.
3.      Third plea in law, alleging infringement of the principle of the protection of legitimate expectations and of the principle of sound administration
180    The applicant states that he was transparent with the AA from the beginning of their employment relationship. First, he provided the information to the effect that he was on early retirement as a military official. Second, he sought and obtained clarification during the training for the newcomers’ days in December 2007 concerning the application of the second paragraph of Article 11 of the Staff Regulations to gifts or payments for his past military service. Thus, the AA failed to fulfil its obligation of assistance in the OLAF investigation.
181    The Council disputes the applicant’s arguments.
182    By his third plea in law, the applicant submits, in essence, that the Council had to be aware that he was receiving a military pension and that it infringed the principles of the protection of legitimate expectations and sound administration in failing to assist him in avoiding the accusations of misconduct levelled at him by OLAF.
183    The Court notes that it is true that the applicant’s North Atlantic Treaty Organization (NATO) identity card mentioning that he was a member of the military staff was forwarded to the AA at the time of his entry into service with the Council, and that the applicant stated that he was an official who had resigned for early retirement. However, that does not mean that the Council was required to deduce, in the context of a procedure different from that relating to his entry into service in the course of which that information was provided, that the applicant was receiving a military pension.
184    The fact that the applicant obtained clarification during the training for the newcomers’ days in December 2007 concerning the application of Article 11 of the Staff Regulations does not give rise to any legitimate expectation in that regard. According to settled case-law, the right to claim protection of legitimate expectations requires three conditions to be satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 28 September 2022, Grieger v Commission, T‑517/21, not published, EU:T:2022:588, paragraph 81 and the case-law cited).
185    In the present case, those conditions have not been satisfied, given that the applicant has not received from the administration any precise, unconditional and consistent assurances originating from authorised and reliable sources within the meaning of the case-law cited in paragraph 184 above.
186    As regards the alleged infringement of the principle of sound administration, the Court notes that, in accordance with case-law, the administration is required, under that principle, which is enshrined in Article 41 of the Charter, to examine with care and impartiality all the relevant aspects of the individual case brought before it and to gather all the factual and legal information necessary to exercise its discretion and to ensure the proper conduct and effectiveness of the procedures which it sets in motion (see judgment of 30 March 2022, KF v EIB, T‑299/20, not published, EU:T:2022:171, paragraph 45 and the case-law cited).
187    As observed by the Council, it is apparent from the case file that the AA examined and dealt with all applications for allowances lodged by the applicant on the basis of his family situation. However, given that the applicant had explicitly stated that he was not in receipt of any other income and had not requested information from the administration regarding his military pension, the Council could not have been expected to question those statements or ask the applicant whether he was receiving a military retirement pension, contrary to what he had explicitly stated in his allowance application.
188    It has been held that the situation of an administration which is responsible for the payment of thousands of salaries and allowances of all kinds cannot be compared to that of an official, who has a personal interest in checking the payments made to him or her every month and reporting anything that might constitute an error, either to his or her disadvantage or advantage. An official exercising due care, who is aware of the provisions of the Staff Regulations under which a benefit is paid to that official at his or her request, in particular where those provisions are set out in the decision granting the benefit concerned, cannot simply continue to receive that benefit in silence when the conditions for receiving it are not satisfied. To accept such negligence on the part of the administration as an extenuating circumstance would be tantamount to encouraging officials and other staff to profit potentially from such errors (see judgment of 19 November 2014, EH v Commission, F‑42/14, EU:F:2014:250, paragraphs 106 and 107 and the case-law cited).
189    Consequently, those arguments must be rejected, as must the third plea in law.
4.      Fourth plea in law, alleging breach of the duty to have regard to the welfare of officials and their dependants
190    By his fourth plea in law, the applicant submits that the Council breached its duty to have regard to the welfare of officials in that, in adopting the contested decision, which entailed the termination of coverage under the Joint Sickness Insurance Scheme (JSIS), it failed to take account of the state of health of his adopted son.
191    The applicant submits, in particular, that the AA disregarded the welfare and medical needs of his adopted son. He observes that, in its reasoned opinion, the Disciplinary Board took account of that child’s situation and proposed his reinstatement in a lower grade. The AA, however, adopted the penalty of removal from post, which is not proportionate to the misconduct of which he stood accused and the alleged harm.
192    The Council disputes the applicant’s arguments.
193    It should be borne in mind that, according to the case-law, the duty of care reflects the balance of reciprocal rights and obligations in the relationship between the official authority and the civil servants. That balance implies, in particular, that when the relevant authority takes a decision concerning the position of an official, it should take into consideration all the factors capable of affecting its decision and that, when doing so, it should take into account not only the interests of the service but also, in particular, those of the official concerned. The latter obligation is also imposed on the administration by the principle of sound administration enshrined in Article 41 of the Charter (see judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 66 and the case-law cited).
194    It is also apparent from the case-law that the requirements of the administration’s duty to have regard for the welfare of officials cannot prevent the appointing authority from adopting the measures which it considers necessary in the interests of the service (see judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 190 and the case-law cited).
195    Although it is conceivable that the duty to have regard for the welfare of officials might, in certain circumstances, lead the appointing authority to reduce, or even cancel, the penalty envisaged, taking the official’s interests, including his or her state of health or the state of health of a member of his or her family, into account nevertheless may not go as far as to deprive it of the possibility of imposing a penalty, even one so serious as removal from post (see judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 68 and the case-law cited).
196    In the present case, as is apparent from the decision ruling on the claim, the Council does not dispute the seriousness of the handicap of the applicant’s adopted son and the latter’s need for medical support.
197    However, the applicant merely states that the end of coverage of care for his adopted son under the JSIS deprives his son of all the medical and educational support from which he had hitherto benefited. The evidence adduced in support of that argument is a letter of 4 December 2021 from a psychiatrist, which states that, as a result of adverse measures taken in 2021, the applicant’s adopted son lost an important part of his heavy support measures, including the recent loss of his adapted student accommodation as of October 2021, which could pose a vital risk or produce serious and irreversible deterioration of his physical and mental condition.
198    The Court notes that the applicant has not adduced evidence relating to the loss of that accommodation or indicated whether other, equivalent adapted accommodation has been found.
199    Moreover, although, as is apparent from paragraph 30 of the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), the medical support for the applicant’s son could be reduced by the loss of the financial allowances and benefits to which the applicant and his adopted son were entitled by virtue of the applicant’s status as an official, it is apparent from the case file that he has not established that the loss of support measures and JSIS membership exposed his adopted son to a genuine risk to his health and that he would be unable to obtain support measures elsewhere.
200    Moreover, in keeping with the duty to have regard for the welfare of officials, the Council extended the time limit for recovering claims arising from the adoption of the contested decision. Similarly, JSIS membership for the applicant’s adopted son was extended to 31 March 2022.
201    Thus, first, the applicant has not adduced specific evidence relating to the harmful effects of the contested decision on his son’s health and, second, as is apparent from paragraph 195 above, the administration’s duty to have regard for the welfare of officials does not prevent the AA from adopting the penalty it deems necessary in the interests of the service. In the light of the facts set out above, the AA was correct in finding, in the contested decision, that the seriousness of the applicant’s conduct merited a penalty such as removal from post.
202    Consequently, the fourth plea in law must be rejected as unfounded, as must the action in its entirety.
V.      Costs
203    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
204    Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council. Nevertheless, as far as concerns the costs of the proceedings for interim measures, since the Council has been unsuccessful in those proceedings before the Court, it must be ordered to pay those costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders AL to pay the costs of the present proceedings;
3.      Orders the Council of the European Union to pay the costs relating to the proceedings for interim measures.
da Silva Passos
Półtorak
Pynnä
Delivered in open court in Luxembourg on 10 April 2024.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.