JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
1 October 2025 (*)
( Civil service – Officials – Administrative investigation – Annex IX to the Staff Regulations – Disciplinary proceedings without consultation of the Disciplinary Board – Warning – Principle of impartiality – Regulation (EU) 2018/1725 – Protection of personal data – Reimbursement of costs – Article 21 of Annex IX to the Staff Regulations – Liability – Non-material damage )
In Case T‑1047/23,
AF, represented by A. Guillerme and F. Patuelli, lawyers,
applicant,
v
Council of the European Union, represented by M. Bauer and I. Demoulin, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberations, of R. da Silva Passos, President, N. Półtorak (Rapporteur) and I. Reine, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 20 March 2025,
gives the following
Judgment
1        By her action under Article 270 TFEU, the applicant, AF, seeks, first, annulment of (i) the decision of 16 December 2022, by which the General Secretariat of the Council of the European Union (‘the GSC’) addressed a warning to her pursuant to Article 3(1)(b) of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (‘the first contested decision’) and (ii) the GSC’s decision of 6 February 2023 refusing, pursuant to Article 21 of Annex IX to the Staff Regulations, reimbursement of the legal costs that she had incurred (‘the second contested decision’), and, secondly, compensation for the non-material and material damage which she claims to have suffered as a result of those decisions.
Background to the dispute
2        The applicant is an official and joined the [confidential] (1) within the GSC in 2011 (‘[confidential]’).
3        After several periods of medical absence, the applicant resumed work on 10 January 2022, under reasonable accommodations, and then under the medical half time regime.
4        In April 2022, the applicant consulted the grade of a colleague, A, through the staff management IT system Sysper.
5        On 3 May 2022, the applicant’s head of unit contacted A to make an appointment after the personal data protection officer (‘the DPO’) contacted her to inform her that a member of the [confidential] Unit may have accessed her personal data for purposes which were not covered by professional duties and that that member had allegedly shared that data with a person outside the GSC.
6        On 6 May 2022, the applicant’s head of unit met A in order to discuss the incident in question.
7        On 18 May 2022, the applicant’s head of unit drafted a note for the file according to which A had informed her that the applicant had accessed her personal file in order to verify information relating to her salary and to disclose it to her ex-partner.
8        On the same day, the authority entitled to conclude contracts of employment (‘the appointing authority’) decided to open an administrative investigation in respect of the applicant (‘the administrative investigation’) in order to establish whether she had failed to fulfil her obligations under, in particular, (i) Article 12 and Article 17(1) of the Staff Regulations, (ii) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision 1247/2002/EC (OJ 2018 L 295, p. 39), and (iii) the provisions governing the use of IT applications within the GSC, by retrieving personal information relating to A outside the scope of her professional duties and disclosing that information to a person outside the GSC.
9        On 10 June 2022, the applicant was heard by the investigators.
10      On 7 July 2022, the draft facts established by the investigators were submitted to the applicant. They stated that, in the second part of April 2022, for reasons unrelated to her professional duties, she had retrieved personal information regarding A in Sysper and had disclosed it to a person outside the GSC.
11      The Applicant was on sick leave from 9 July 2022 to 5 August 2022, then several times for short periods until the beginning of November and permanently from mid-November 2022 until she left the GSC.
12      On 19 July 2022, the final report of the administrative investigation was sent to the appointing authority. The investigators concluded that the applicant had infringed Articles 11 and 12 and Article 17(1) of the Staff Regulations and Article 4 of Regulation 2018/1725, and the rules governing Sysper and the Inter-building Office Local Area Network (IOLAN).
13      On 7 September 2022, the applicant was heard by the appointing authority at a pre-disciplinary hearing.
14      On 12 September 2022, the appointing authority informed the applicant that he had decided to open disciplinary proceedings without consultation of the Disciplinary Board and summoned her to an in-person hearing under Article 11 of Annex IX to the Staff Regulations.
15      By email of 19 October 2022, the applicant’s head of unit stated that the purpose of the disciplinary proceedings was not to determine whether the applicant had disclosed personal information to a third party outside the GSC, but only to determine whether she had failed to fulfil her obligations under Articles 11 and 12 of the Staff Regulations by using her access to Sysper to retrieve personal information for purposes not related to her tasks.
16      On 28 October 2022, the applicant was heard at the hearing in the disciplinary proceedings.
17      On 16 December 2022, the appointing authority adopted the first contested decision.
18      In February 2023, the applicant left her post in the [confidential] Unit and was seconded [confidential].
19      By email of 6 February 2023, the applicant’s head of unit adopted the second contested decision. The refusal to reimburse the legal costs which she had incurred was justified by the fact that Article 21 of Annex IX to the Staff Regulations was not applicable in the present case.
20      On 16 March 2023, the applicant lodged a complaint against the first and second contested decisions.
21      By decision of 7 July 2023, communicated to the applicant on 11 July 2023, the appointing authority rejected the complaint as unfounded.
Forms of order sought
22      The applicant claims that the Court should:
–        annul the first contested decision;
–        annul the second contested decision and order the Council to pay the amount of EUR 2 413.95, together with default interest at the rate set by the European Central Bank (ECB), increased by three and a half percentage points;
–        order the Council to pay compensation for the material and non-material damage suffered, assessed ex aequo et bono and on a provisional basis at EUR 140 000, together with default interest calculated at the rate set by the ECB, increased by three and a half percentage points;
–        order the Council to pay the costs.
23      The Council claims that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The claim for annulment of the first contested decision
24      The applicant submits that the first contested decision is unlawful on the ground that, first, it is vitiated by procedural irregularities; secondly, it is based on facts that have not been established; thirdly, it is vitiated by manifest errors of assessment and, fourthly, it is contrary to the principles of non-discrimination and proportionality.
25      The first plea is divided into three parts. By the first part of the plea, the applicant submits that the [confidential] Unit did not have competence to conduct an administrative investigation in the field of personal data protection on the basis of Annex IX to the Staff Regulations, having regard to Article 7(3) of Decision No 6/2021 of the GSC of 15 September 2021 adopting general implementing provisions on administrative investigations and disciplinary proceedings. By the second part of the plea, the applicant argues that the administrative investigation was not conducted impartially, in breach of Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 13 of Decision No 6/2021. By the third part of the plea, the applicant submits that the administrative investigation was not carried out in accordance with the principle of sound administration; she submits, in addition, that her rights of defence were not respected and that the obligation to examine the facts of the case taking due account of inculpatory and exculpatory evidence was not complied with.
26      As regards the consequences of those procedural irregularities, the applicant claims that, even though the appointing authority partially corrected those irregularities at the stage of the disciplinary proceedings by dropping the allegation relating to the disclosure of information to a third party outside the GSC, he was influenced by the incorrect content of the investigation report. It cannot therefore be ruled out that, without the irregularities referred to, the appointing authority would not have initiated disciplinary proceedings or imposed a warning.
27      It is appropriate to begin by examining the second part of the first plea, alleging that the administrative investigation was not conducted impartially, in breach of Article 41(1) of the Charter and Article 13 of Decision No 6/2021. In essence, the applicant argues that the members of staff who supervised and conducted the administrative investigation against her failed to act impartially.
28      The applicant submits that, first, several members of staff involved in the administrative investigation have obligations relating to personal data protection which they failed to fulfil. In that regard, the applicant submits that the Director-General of the Directorate-General (DG) Organisational Development and Services, who acted as the appointing authority in the investigation procedure, was also the delegate controller for data protection matters related to Sysper. The applicant submits that the Director-General, as delegate controller, has several obligations relating to personal data protection, including the obligation to ensure that there are technical and organisational measures in place to demonstrate compliance with Regulation 2018/1725 and that adequate instructions are given to staff concerning the use of Sysper, and the obligation to ensure that records of processing activities are maintained in accordance with Article 31 of Regulation 2018/1725. However, at the time of the investigation and until 10 July 2023 at the very least, the appointing authority did not fulfil those obligations.
29      The applicant submits, accordingly, that in response to A’s claim that an alleged data breach occurred within a unit that is part of DG Organisational Development and Services, and therefore under the responsibility of the Director-General and the delegate controller, those persons had an interest in preferring that the administrative investigation be conducted by their own services rather than by a different Directorate-General or the DPO, given that their own failures to comply with their obligations under Regulation 2018/1725 would be identified and also considered to form part of the causes of the alleged data protection breach. Indeed, the conduct of the inquiry by an independent person could have led to them becoming the subject of the inquiry instead of or alongside the applicant.
30      In addition, the applicant states that the lead investigator held the position of data protection coordinator within the [confidential] Unit and was responsible, in particular, for ensuring compliance with data protection rules and the appropriate training of the staff of the [confidential] Unit. He therefore could not be instructed to assist the controllers in complying with their obligation and, at the same time, to investigate impartially the alleged data breach when his own potential failures were at issue. According to the applicant, this explains, in particular, why that investigator had a personal interest in accelerating the procedure, making disproportionate accusations against her and evading any question as to his own responsibilities.
31      Secondly, the applicant submits that the impartiality of the head of unit of the [confidential] Unit is called into question by the fact that she had prior knowledge of the facts in question following contact with A.
32      Thirdly, the investigators were, at the time when the administrative investigation was conducted, her direct colleagues. In that regard, the applicant argues that there is necessarily a legitimate doubt as to the objective impartiality of the lead investigator when conducting an investigation against a direct colleague.
33      The Council challenges the applicant’s line of argument.
34      First, the Council argues that, contrary to the applicant’s claim, it is settled case-law that prior knowledge of the facts by those called upon to participate in the adoption of an administrative decision is not, in itself, capable of vitiating that decision by a procedural defect of lack of impartiality. According to the Council, the applicant does not adduce any evidence that the investigators had any knowledge of the facts examined prior to the administrative investigation, or that the investigators had a preconceived negative opinion of the applicant.
35      Secondly, the Council submits that the investigators had no personal interest in accelerating the procedure to attempt to conceal a data breach and that there is nothing to call into question their impartiality or that of the appointing authority. It argues that the allegation of an alleged lack of records is irrelevant, since it has no bearing on the legality of the first contested decision. It also submits that that claim is unfounded and refers to various records and confidentiality statements in support of its position. Moreover, it does not dispute that some of those registers were in the course of being updated. However, it states that the DPO was fully aware of and involved in that ongoing update and that, on 11 July 2023, the GSC published a record and privacy statement covering those processing operations conducted through Sysper.
36      As a preliminary point, it should be borne in mind that Article 41 of the Charter, which, pursuant to Article 6(1) TEU, has the same legal value as the Treaties, establishes the right to good administration. That right means, inter alia, that, under Article 41(1) of the Charter, every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.
37      According to the case-law, it is for the administration, in accordance with the principle of sound administration, to examine carefully and impartially all the relevant aspects of the case 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 that it implements (see judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 33 and the case-law cited).
38      The requirement of impartiality, which is binding on institutions, bodies, offices and agencies in the performance of their tasks, is intended to guarantee equal treatment, which is at the heart of the European Union. That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest on the part of officials or servants acting on behalf of those institutions, bodies, offices and agencies. Having regard to the fundamental importance of ensuring the independence and probity of the institutions, bodies, offices and agencies of the European Union as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or servant who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter (judgment of 7 May 2025, Hamers v Cedefop, T‑159/20 RENV, not published, EU:T:2025:444, paragraph 31 and the case-law cited).
39      In addition, it is incumbent upon those institutions, bodies, offices and agencies to comply with both components of the requirement of impartiality, which are, on the one hand, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice and, on the other, objective impartiality, under which that institution must ensure sufficient guarantees to exclude any legitimate doubt as to possible bias. Moreover, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled (see judgments of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 54 and the case-law cited, and of 7 May 2025, Hamers v Cedefop, T‑159/20 RENV, not published, EU:T:2025:444, paragraph 32 and the case-law cited).
40      Within the Council, the obligation on investigators to conduct the administrative investigation independently and impartially is enshrined in Article 13(1) and (2) of Decision No 6/2021, according to which, first, the investigation is to be conducted in an independent and thorough manner, in keeping with the principles of proportionality and confidentiality, and, secondly, the investigators must examine the facts of the case in an impartial manner, taking due account of incriminating and exonerating perspectives.
41      In the present case, the appointing authority decided to open an administrative investigation on 18 May 2022 to establish whether the applicant had failed to comply with her obligations under, in particular, Article 12 and Article 17(1) of the Staff Regulations, Regulation 2018/1725 or the provisions governing the use of IT applications within the GSC, by retrieving, outside the context of her professional duties, personal information concerning A and disclosing that information to a person outside the GSC. In the final report of the administrative investigation, the investigators concluded that the applicant had infringed Articles 11 and 12 and Article 17(1) of the Staff Regulations, Article 4 of Regulation 2018/1725 and the rules governing Sysper and the Inter-building Office Local Area Network (IOLAN).
42      At the end of the administrative procedure, the appointing authority decided, on 12 September 2022, to initiate disciplinary proceedings without consultation of the Disciplinary Board in order to determine whether the applicant had failed to fulfil her obligations under Articles 11 and 12 of the Staff Regulations by using her access to Sysper to retrieve personal information for purposes not related to her duties. At the end of that procedure and those proceedings, the appointing authority decided to address a warning to the applicant under Article 3(1)(b) of Annex IX to the Staff Regulations.
43      As regards, in particular, the administrative investigation, it is apparent from the file that the applicant’s head of unit had been given a mandate to conduct that investigation and that she appointed the two investigators, members of the same unit, who conducted the administrative investigation.
44      The arguments raised by the applicant in support of the lack of objective impartiality of the investigation procedure must be examined in the light of these considerations.
45      In the first place, as regards the argument that the objective impartiality of the procedure is called into question by the fact that the Director of the DG for Organisational Development and Services, as the delegate controller of Sysper, and the lead investigator, in his capacity as data protection coordinator within the GSC, had a conflict of interest, it must be borne in mind that a conflict of interest is merely a variant of the defect of bias, since the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence (judgment of 10 February 2021, Spadafora v Commission, T‑130/19, not published, EU:T:2021:74, paragraph 99).
46      It should be stated at the outset that there is no need to examine the allegations of lack of impartiality concerning the Director of Human Resources of DG Organisational Development and Services, in her capacity as operational controller; the allegations are not relevant in so far as it is not apparent from the file that that director took part in the administrative investigation.
47      As regards, first of all, the claim that the procedure was not conducted in an objectively impartial manner because the appointing authority accepted responsibility and failed to fulfil its obligation to ensure that a record and privacy statement relating to data protection in Sysper were produced, it should be noted that, according to Article 31(1) and (2) of Regulation 2018/1725, each controller is to maintain a record of the processing activities under its responsibility and each processor is to maintain a record of all categories of processing activities carried out on behalf of a controller.
48      Within the GSC, Article 8(1) of Council Decision (EU) 2021/1093 of 28 June 2021 laying down implementing rules concerning the Data Protection Officer of the Council, the application of Regulation 2018/1725, and restrictions of data subjects’ rights in the context of the exercise of the tasks of the Data Protection Officer of the Council, and repealing Council Decision 2004/644/EC (OJ 2021 L 236, p. 55), provides that delegate controllers, in this case the appointing authority, ‘shall be responsible for ensuring that all processing operations under their control comply with Regulation … 2018/1725’ and Article 8(2)(b) of the same decision states that it is for them to ‘maintain the records of processing activities under their responsibility and ensure that the records and the related privacy statement are submitted by the operational controller to the DPO to be entered into the register referred to in Article 12’.
49      Consequently, as the applicant submits, the appointing authority, as delegated controller for Sysper, was under an obligation to keep a record of Sysper processing activities and to ensure that the related privacy statement was produced.
50      However, when A’s grade was consulted, it is apparent from the file that no record of processing activities or a privacy statement had been published regarding the processing operations concerning personal data contained in Sysper. That is confirmed, inter alia, by two emails from the DPO to the applicant on 11 October and 11 November 2022. In those emails, the DPO states that the record and the privacy statement concerning Sysper would probably not be published before the beginning of 2023, given the amount of work within the unit.
51      Next, as regards the allegation that the lead investigator accepted responsibility and did not comply with his obligations as regards the protection of personal data, it should be noted that, in accordance with Article 10(6) and (7) of Decision 2021/1093, he performed the function of data protection coordinator within the [confidential] Unit and, to that effect, was responsible, inter alia, for ensuring compliance with the rules on personal data protection and the appropriate training of members within that unit.
52      More specifically, Article 10(6) of Decision 2021/1093 provides as follows:
‘The data protection coordinators shall raise awareness on data protection matters and assist the delegated controllers within their GSC directorate-general or other service in complying with their obligations, especially as regards:
(a)      the implementation of Regulation … 2018/1725;
(b)      the identification of the operational controllers, and the preparation of records of processing operations and privacy statements before they are submitted to the DPO …’
53      It follows that the lead investigator was responsible for ‘[raising] awareness on data protection matters’ and assisting the appointing authority in preparing the record of Sysper processing operations and the related privacy statement before they are submitted to the DPO.
54      The purpose of the administrative investigation was precisely to determine whether the applicant had retrieved or disclosed, outside the scope of her professional duties, personal information relating to A and whether, in so doing, she had failed to fulfil, inter alia, her obligations under Regulation 2018/1725 and the provisions governing the use of IT applications within the GSC.
55      In addition, the Court observes that, during the pre-litigation procedure, the applicant emphasised her concerns in that regard. In the complaint, she pointed out, first, that the appointing authority was the delegate controller for processing regarding Sysper, which was the subject of the administrative investigation, and, secondly, that the lead investigator held the position of data protection coordinator within the [confidential] Unit and that, faced with the alleged data breach within his own unit, it could not be ruled out that that investigator had had a personal interest in speeding up the procedure and concealing his failure to fulfil obligations.
56      In those circumstances, in view of the respective obligations of the appointing authority and the lead investigator in relation to personal data protection and the fact that the applicant claimed, at least during the pre-litigation procedure, the existence of infringements in that regard, the Court finds that she is justified in arguing that there is a legitimate doubt as to the objective impartiality of the investigation.
57      In the second place, the applicant calls into question the impartiality of the investigation procedure on the ground that the investigators were her direct colleagues. There is, in particular, a legitimate doubt as to the objective impartiality of the lead investigator in respect of the applicant, in so far as he was her colleague at the time when he conducted that investigation.
58      As the Court has stated in paragraph 39 above, in order to demonstrate that the organisation of the administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled.
59      In the present case, it is not disputed that the two investigators in charge of the administrative investigation, appointed by the applicant’s head of unit (see paragraph 43 above), belonged to the same unit as the applicant, that is, the [confidential] Unit.
60      Since the applicant has not put forward any other argument in that regard, the question is therefore whether the mere fact that those two investigators had a professional relationship with her before and during the investigation is liable to call into question their objective impartiality.
61      In that connection, the existence of a direct professional relationship between members of staff necessarily means that there have been prior contacts on a regular basis, which may give rise to doubt as to the existence of possible bias.
62      Further, the applicant expressed her doubts in that regard, during the investigation procedure, suggesting, inter alia, to her head of unit that the inquiry should not be conducted by direct colleagues. In addition, by email of 28 June 2022 to the second investigator, the applicant also complained of the lead investigator’s conduct towards her.
63      Thus, the fact that the two investigators who conducted the administrative investigation had a professional relationship with the applicant, in so far as they were her direct colleagues, as the applicant submitted during the administrative investigation, is sufficient to establish the existence of a legitimate doubt in the minds of third parties, including the applicant, as to their objective impartiality, without the applicant being required to adduce specific evidence of bias. Objective impartiality is to be assessed independently of the specific conduct of the person concerned (judgment of 14 March 2024, D & A Pharma v Commission and EMA, C‑291/22 P, EU:C:2024:228, paragraph 80; see also, to that effect, judgment of 7 May 2025, Hamers v Cedefop, T‑159/20 RENV, not published, EU:T:2025:444, paragraph 53).
64      Admittedly, it is apparent from Article 8(1) of Decision No 6/2021 that ‘administrative investigations shall be conducted by members of the [confidential] Unit’. However, it is nevertheless possible, under Article 8(4) of that decision, that a person outside the [confidential] Unit may be involved as an investigator if necessary. In those circumstances, it would have been open to the appointing authority and the applicant’s head of unit, who was given a mandate to conduct the investigation, to appoint one or more investigators who did not belong to the same unit as the applicant and who were not her direct colleagues.
65      It is for the appointing authority, given the responsibilities of the lead investigator, to be particularly vigilant in attributing that role in order to avoid giving rise to any legitimate doubt as to possible bias.
66      Accordingly, in the light of the circumstances characterising the administrative investigation and complained of by the applicant during that procedure, the Court finds that the applicant is justified in claiming that the Council did not organise the administrative investigation in such a way as to provide her with sufficient guarantees as to the objective impartiality of that procedure.
67      However, according to settled case-law, a procedural irregularity can justify the annulment of an act only if, without such an irregularity, the outcome of the procedure might have been different (see judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 44 and the case-law cited).
68      In the context of that examination, it is important to take account of all the circumstances of the case and, in particular, of the nature of the allegations and the scale of the procedural irregularities committed in relation to the guarantees which the official may have been given (see judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 45 and the case-law cited).
69      The disciplinary procedure laid down in Annex IX to the Staff Regulations contains two distinct stages. The first stage consists of an impartial administrative investigation, initiated by a decision of the appointing authority, followed by the drafting of an investigation report and closed, after the person concerned has been heard on the facts alleged against him or her, by conclusions drawn from that report. The second stage comprises the disciplinary proceedings proper, initiated by the appointing authority on the basis of that investigation report, and consists either in disciplinary proceedings being initiated without the Disciplinary Board being consulted, or in the matter being referred to that board, on the basis of a report drawn up by the appointing authority in the light of the conclusions of the investigation and of the comments submitted by the person concerned in relation to that investigation (judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 46).
70      It follows that the conduct and the results of the administrative investigation are such as to influence the disciplinary procedure. It is on the basis of that investigation and of the hearing of the official concerned that the appointing authority assesses, first, whether or not it is necessary to initiate disciplinary proceedings, secondly, whether or not those proceedings must, as the case may be, lead to the matter being referred to the Disciplinary Board and, thirdly, where it initiates proceedings before the Disciplinary Board, the facts to be referred to that board (judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 47).
71      Therefore, it cannot be ruled out that, had the administrative investigation been conducted with all the guarantees of impartiality, it would have led to a different assessment of the facts and, therefore, resulted in a different outcome (see, to that effect, judgment of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 48 and the case-law cited).
72      Consequently, the second part of the first plea and, therefore, the claim for annulment of the first contested decision must be upheld, without there being any need to analyse the other arguments and the other parts of the first plea or the other pleas relied on in support of the claim for annulment of that decision.
The claim for annulment of the second contested decision
73      In support of her claim for annulment of the second contested decision, the applicant raises two pleas in law, alleging, first, infringement of Article 21 of Annex IX to the Staff Regulations and, secondly, breach of the principles of good administration and non-discrimination.
74      As regards the first plea, in the first place, the applicant submits that the appointing authority unlawfully rejected her request for reimbursement of the costs incurred during the disciplinary proceedings. Article 21 of Annex IX to the Staff Regulations provides that expenses incurred in the course of those proceedings, in particular fees paid for the defence of the person concerned or to assist him or her, are to be borne by the official only where disciplinary proceedings result in the imposition of a disciplinary penalty. Otherwise, those costs are to be borne by the administration.
75      In the second place, if the Staff Regulations were to be interpreted as establishing a distinction between the right to reimbursement of lawyers’ fees according to whether the Disciplinary Board is consulted, that would affect the rights of defence of officials and other servants of the European Union in disciplinary proceedings, since members of staff would then hesitate to request the assistance of a lawyer in disciplinary proceedings that do not involve the Disciplinary Board, even though those proceedings could lead to the adoption of an act adversely affecting the applicant.
76      The Council disputes the applicant’s arguments, arguing, in essence, that Article 21 of Annex IX to the Staff Regulations is not applicable to disciplinary proceedings that do not involve the Disciplinary Board.
77      As a preliminary point, it should be borne in mind that Article 3 of Annex IX to the Staff Regulations provides as follows:
‘On the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the appointing authority may:
(a)      decide that no case can be made against the official, in which case the official shall be informed accordingly in writing; or
(b)      decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the official; or
(c)      in the case of failure to comply with obligations within the meaning of Article 86 of the Staff Regulations:
(i)      decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex, or
(ii)      decide to initiate disciplinary proceedings before the Disciplinary Board.’
78      In the present case, it should be noted that the proceedings initiated by the appointing authority on 12 September 2022 were disciplinary proceedings for the purposes of Article 11 of Annex IX to the Staff Regulations.
79      In the second contested decision, the appointing authority rejected the request for reimbursement of the representation costs incurred by the applicant during the disciplinary proceedings on the ground that Article 21 of Annex IX to the Staff Regulations, as included in Section 5, entitled ‘Disciplinary proceedings before the disciplinary board’, does not apply to the applicant, since she was the subject of disciplinary proceedings that did not involve the Disciplinary Board. That procedure is governed by Section 4 of Annex IX to the Staff Regulations, in which there is no comparable provision on which the reimbursement requested can be based.
80      Article 21 of Annex IX to the Staff Regulations provides as follows:
‘1. Expenses incurred on the initiative of an official concerned in the course of disciplinary proceedings, and in particular fees paid to a person chosen to assist the official or for his defence, shall be borne by the official where the disciplinary proceedings result in the imposition of one of the penalties provided for in Article 9 of this Annex.
2. However, the appointing authority may decide otherwise in exceptional cases where the burden on the official concerned would be unfair.’
81      It is therefore apparent from Article 21 of Annex IX to the Staff Regulations that the expenses incurred in the course of disciplinary proceedings on the initiative of the person concerned are to be borne by that person where the disciplinary proceedings result in one of the penalties provided for in Article 9 of Annex IX to the Staff Regulations. Conversely, where the disciplinary proceedings do not result in one of the penalties provided for in that article, the fees paid to the representative of the person concerned by the disciplinary proceedings must be reimbursed by the institution which initiated them.
82      That interpretation is also supported by case-law, since the Court has already held, as regards the provision applicable at the material time, that the payment by the Commission of expenses incurred by an official on his own initiative in the course of disciplinary proceedings, and legal fees in particular, can only be made on conclusion of such proceedings and, moreover, is only possible if no disciplinary measure or only a minor disciplinary measure is imposed at the end of the proceedings (judgment of 16 May 2000, Irving v Commission, T‑121/99, EU:T:2000:128, paragraph 82).
83      In the present case, the disciplinary proceedings concerning the applicant did not result in one of the penalties referred to in Article 9 of Annex IX to the Staff Regulations, but in a warning, that is to say, the minimum penalty provided for by the Staff Regulations.
84      It is true that Article 21 of Annex IX to the Staff Regulations is contained in Section 5 of Annex IX to the Staff Regulations, which relates to disciplinary proceedings before the Disciplinary Board. However, contrary to what the Council claims, it is clear that the wording of that article refers to ‘disciplinary proceedings’ and does not limit its application solely to disciplinary proceedings before the Disciplinary Board.
85      Accordingly, the appointing authority was wrong to conclude, in the second contested decision, that Article 21 of Annex IX to the Staff Regulations was not applicable to the present case and that there was therefore no need to reimburse to the applicant the representation costs which she had incurred during the disciplinary proceedings.
86      In the light of the foregoing, the first plea in law must be upheld and the second contested decision annulled, without it being necessary to examine the second plea.
The claim that the Council should be ordered to pay the costs incurred by the applicant in the course of the disciplinary proceedings
87      In her second head of claim, the applicant asks the Court, in exercising its unlimited jurisdiction in disputes of a financial character under Article 91(1) of the Staff Regulations, to order payment of the amount of EUR 2 413.95, corresponding to the costs incurred in the course of the disciplinary proceedings, together with default interest from the date of delivery of the judgment until full payment, at the rate set by the ECB for its main refinancing operations, increased by three and a half percentage points.
88      In that regard, it should be borne in mind that, pursuant to Article 91(1) of the Staff Regulations, the Court has unlimited jurisdiction in disputes of a financial character (see judgment of 6 November 2024, VO v Commission, T‑160/23, not published, EU:T:2024:791, paragraph 77 and the case-law cited).
89      The unlimited jurisdiction conferred on the EU Courts by Article 91(1) of the Staff Regulations entrusts those Courts with the task of providing a complete solution to the disputes brought before them, that is to say to rule on all the rights and obligations of the staff member, save for leaving to the institution in question, subject to review by the Courts, the implementation of such part of the judgment and under such precise conditions as those Courts are to determine (see judgment of 6 November 2024, VO v Commission, T‑160/23, not published, EU:T:2024:791, paragraph 78 and the case-law cited).
90      It is for the EU Courts to order an institution, where appropriate, to pay an amount to which the applicant is entitled under the Staff Regulations or another legal measure (see judgment of 6 November 2024, VO v Commission, T‑160/23, not published, EU:T:2024:791, paragraph 79 and the case-law cited).
91      In the present case, it is apparent from paragraph 85 above that the Council wrongly refused to grant the applicant the right to reimbursement of the representation costs incurred in the course of the disciplinary proceedings for the purposes of Article 21 of Annex IX to the Staff Regulations.
92      The Council must therefore be ordered to pay the applicant the sum of EUR 2 413.95, corresponding to the representation costs incurred by the applicant in the course of the disciplinary proceedings, together with default interest on that sum until full payment, default interest being fixed at the interest rate set by the ECB for its main refinancing operations and in force on the first day of the month in which payment is due, increased by three and a half percentage points.
The claim for damages
93      The applicant seeks payment of damages in respect of the non-material and material damage she claims to have suffered as a result of the administrative investigation and the disciplinary proceedings. She assesses those damages ex aequo et bono and on a provisional basis at EUR 140 000, together with default interest.
94      In the first place, in respect of the non-material damage, the applicant submits that the first contested decision seriously affected her dignity and professional reputation and her health.
95      First, the applicant criticises the appointing authority for having chosen the [confidential] Unit, and therefore her superiors and her colleagues, to conduct the investigation into the alleged data breach, which had a negative impact on her reputation. Moreover, false allegations that she had consulted information other than A’s grade were made, even though it was materially impossible for her to have retrieved that information.
96      Secondly, despite the Applicant’s specific request for the complaint to be handled directly by the legal service of the GSC, the decision was made to rely on a [confidential] to prepare the reply to her complaint; this is the very same unit which conducted the inquiry against the applicant and in which she was working.
97      Thirdly, the applicant submits that no investigation was conducted in respect of the controllers, even though they attempted to attribute to the applicant matters which came within the scope of their responsibilities.
98      Fourthly, the applicant claims that she did not receive any support from her superiors when she asked them to find a new position for her, in order to avoid psychological suffering.
99      For those reasons, the applicant’s state of health deteriorated. The appointing authority himself acknowledged, in the first contested decision, ‘the heavy emotional impact that the procedure as such [had had]’ on the applicant, to which the final report of the administrative investigation also refers. More specifically, the applicant submits that she had to take sick leave to recover and her doctor observed that her psychological and physical condition was deteriorating, in connection with the event at issue.
100    In that context, the applicant considers that she has suffered non-material damage which cannot be compensated for by the annulment of the first contested decision. She therefore seeks compensation for the non-material damage suffered in the context of the administrative investigation and the disciplinary proceedings, assessed ex aequo et bono at EUR 125 000.
101    In the second place, the applicant considers that she has suffered material damage as a result of the GSC’s conduct towards her.
102    First, the applicant submits that that material damage results from the vagueness of the accusations made in the first contested decision, which had a negative impact on her career. More specifically, her appraisal report for 2022 contains a negative appraisal that is related undoubtedly to the first contested decision. She therefore had no prospect of being promoted in 2023. The applicant seeks compensation for that damage, assessed ex aequo et bono at EUR 20 000.
103    Secondly, the applicant claims that she also suffered material damage as a result of the second contested decision, in that that decision rejected her claim for reimbursement of the lawyers’ fees incurred in the course of the disciplinary proceedings. She requests the Court, in the exercise of its unlimited jurisdiction in disputes of a financial character, to order the GSC to pay the amount of EUR 2 413.95, together with default interest.
104    The Council challenges the applicant’s line of argument.
105    The Council submits that the claims for compensation for material and non-material damage must be rejected in so far as they are closely linked to the claims for annulment which have themselves been rejected either as inadmissible or as unfounded, which should be the case here.
106    The Council further submits that the applicant adduces no evidence that the damage caused by the first contested decision could not be entirely remedied by the annulment of that decision, should the decision be annulled.
107    As regards the applicant’s claim that she did not receive any support for a transfer, the Council argues that this claim is wholly unfounded and unsupported by any evidence.
108    As regards the applicant’s claim that the fact that her complaint was dealt with by the [confidential] Unit increased her anxiety, the Council states that, as is usual practice within the GSC, the [confidential] responsible for handling her complaint worked closely with the Council’s Legal Service and that, as an additional safeguard in order to ensure that the applicant’s complaint was dealt with in an impartial and independent manner, her file was handled by a [confidential] who had not participated in the administrative investigation and who had joined the unit after the applicant’s departure.
109    It should be borne in mind that an action for compensation brought pursuant to Article 270 TFEU may succeed on its merits only if a number of factors are proven: the illegality of the allegedly wrongful act committed by the institutions; actual harm suffered; and the existence of a causal link between the act and the damage alleged to have been suffered. Those three conditions are cumulative, with the result that failure to satisfy one of them is sufficient for an action for damages to be dismissed (see judgment of 19 April 2023, PP and Others v Parliament, T‑39/21, EU:T:2023:204, paragraph 128 and the case-law cited).
110    Moreover, the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, except where the applicant shows that he or she has suffered non-material damage which is incapable of being entirely remedied by that annulment (see judgment of 7 June 2023, KD v EUIPO, T‑650/20, not published, EU:T:2023:305, paragraph 81 and the case-law cited).
111    In the first place, as regards the material damage allegedly suffered, first, the applicant disputes the refusal to reimburse the costs that she incurred in the course of the disciplinary proceedings. In that regard, it should be noted that the applicant is in fact repeating her request, made in the context of the second head of claim, that the Council be ordered to pay the sum of EUR 2 413.95 corresponding to the costs incurred in the course of the disciplinary proceedings. Since that claim for damages constitutes a repetition of the financial claim previously examined by the Court in paragraphs 87 to 92 above, it cannot be treated as a claim that is independent of the one previously analysed.
112    Secondly, as regards the claim that the applicant suffered material damage as a result of the content of her appraisal report for 2022, it should be noted that that alleged damage stems from an act adversely affecting the applicant, namely her appraisal report for 2022.
113    Actions for damages are governed by their own rules. The pre-litigation procedure required by the Staff Regulations differs according to whether the damage alleged by the official has been caused by an act adversely affecting him or her within the meaning of the Staff Regulations (judgment of 1 April 2009, Valero Jordana v Commission, T‑385/04, EU:T:2009:97, paragraph 84).
114    If an official wishes to challenge an act adversely affecting him or her, he or she must, in principle, submit a complaint directly to the appointing authority and then bring an action before the Court if his or her complaint is rejected. It is settled case-law that, by means of that same action, an official may also seek compensation for damage which is directly related to the act adversely affecting him or her, without having to initiate a specific pre-litigation procedure in that regard (see judgment of 1 April 2009, Valero Jordana v Commission, T‑385/04, EU:T:2009:97, paragraph 85 and the case-law cited). In the present case, it is clear that compensation for the alleged damage is not directly related to the acts adversely affecting the applicant, the legality of which is disputed in the present action, with the result that the claim for damages based on the alleged material damage resulting from the content of the 2022 assessment report must be rejected as inadmissible.
115    In the second place, as regards the alleged non-material damage, it is based on the claim that the first contested decision and the Council’s conduct adversely affected the applicant’s dignity, professional reputation and health.
116    According to the case-law referred to in paragraph 110 above, the annulment of a measure adopted by the administration and challenged by an official may in itself constitute adequate and, in principle, sufficient compensation for any non-material damage which he or she may have suffered.
117    However, the EU Courts have allowed certain exceptions to that rule and, in particular, the following exceptions. First, the annulment of the administration’s unlawful act cannot constitute full compensation for the non-material damage if that act contains an assessment of the abilities and conduct of the person concerned which is capable of offending him or her. Secondly, annulment of the contested act cannot constitute full compensation for the non-material damage suffered where the illegality committed is particularly serious. Thirdly, it has been held that, where the annulment of an unlawful act has no practical effect, it cannot in itself constitute adequate and sufficient compensation for any non-material damage caused by the annulled act (see judgments of 7 March 2019, L v Parliament, T‑59/17, EU:T:2019:140, paragraph 59 and the case-law cited).
118    First, as regards the non-material damage related to the applicant’s health as a result of the Council’s conduct in the proceedings brought against her, and in particular the fact that the investigation was conducted by members of the unit within which she performed her duties, it is apparent from the file that the applicant’s already fragile state of health deteriorated during the administrative and disciplinary proceedings and as a result of the adoption of the first contested decision.
119    The applicant was placed on sick leave from 9 July to 5 August 2022, on account, as is apparent from the medical certificate of 5 August 2022, of the fact that her mental and physical condition ‘was jeopardised again’ from ‘May 2022, following an incident in the performance of her duties’. It is also apparent from that certificate that the applicant’s medication was increased. The applicant also produced a medical certificate dated 3 October 2023 which established that she was suffering from psychological and physical anxiety and post-traumatic stress, after she had told her doctor that she suffered from a ‘deep feeling of injustice’, that she had been ‘traumatised by false accusations from her professional environment’ and had been subjected to ‘flashbacks to the incident at work on 18 May 2022’, the date on which the data at issue was consulted. The applicant’s doctor concludes that ‘the clinical findings are compatible with the patient’s anamnesis in relation to the reported events that took place at work on 18 May 2022’.
120    The Court also observes that the Council does not dispute the applicant’s stress and anxiety, on account of the circumstances surrounding the administrative procedure and disciplinary proceedings initiated against her. In the first contested decision, the appointing authority acknowledges, in particular, ‘the heavy emotional impact that the procedure as such had’ on the applicant.
121    The Court therefore finds that the applicant has established to the requisite legal standard that she had suffered non-material damage, which had been caused to her by the irregularity of the investigation procedure which led to the adoption of the first contested decision.
122    Although the first contested decision was annulled, that annulment cannot in itself constitute adequate and sufficient compensation for the non-material damage caused by that decision, having regard to the feeling of injustice and the applicant’s state of anxiety and uncertainty due to how the administrative investigation was conducted, which contributed to the deterioration of her state of health.
123    It follows that the annulment of the first contested decision cannot, as such, constitute adequate and sufficient compensation for the non-material damage linked to the applicant’s health as a result of the investigation procedure conducted against her, which the Court has concluded was vitiated by irregularities (see paragraph 72 above).
124    Although it is true that the applicant has not provided any information to quantify precisely the harm linked to her non-material damage, the Court considers that this does not prevent it from fixing ex aequo et bono an amount liable to compensate for such damage (see, to that effect, judgment of 7 May 2025, Hamers v Cedefop, T‑159/20 RENV, not published, EU:T:2025:444, paragraph 75).
125    Accordingly, in the circumstances of the present case, the Court considers it fair to award ex aequo et bono compensation in the amount of EUR 5 000 on account of the non-material damage suffered.
126    Secondly, regarding the damage allegedly suffered in connection with the applicant’s professional reputation, who submits that she could no longer work within the [confidential] Unit and had to change her career plans, the Court finds that, as the annulment removes the contested decision, that annulment constitutes, in principle, adequate and sufficient compensation for that head of damage (see, to that effect, judgment of 11 September 2002, Willeme v Commission, T‑89/01, EU:T:2002:212, paragraph 97). The applicant has not adduced evidence that her career was not progressing normally within the institution to which she had been seconded, at her request, since February 2023. Since the applicant has neither established nor alleged any particular circumstances establishing that the annulment of the first contested decision would not remedy adequately the alleged damage to her professional reputation, it must be held, even if that damage were established, that the annulment of the first contested decision constitutes adequate compensation for that damage.
127    Thirdly, as regards the damage linked to the handling of her complaint by a new member of the [confidential] Unit, within which the applicant performed her duties, it is clear that the applicant has not shown either that the damage which she claims to have suffered in that regard actually occurred or that damage which cannot be compensated in full by the annulment of the first contested decision has occurred.
128    Fourthly, as regards the applicant’s other claims that the controllers were not themselves the subject of any investigation, that her superiors did not provide her with any support in order to find her a new post and she suffered from allegedly false allegations being made, according to which she had consulted personal data other than A’s grade, it must be stated that the applicant has not shown that the conditions for the European Union to incur non-contractual liability are satisfied.
129    In the light of all the foregoing, the Council must be ordered to pay the applicant compensation of EUR 5 000 in respect of the non-material damage suffered.
Costs
130    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
131    Since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Annuls the decision of the European Council of 16 December 2022 addressing a warning under Article 3(1)(b) of Annex IX to the Staff Regulations of Officials of the European Union to AF;
2.      Annuls the decision of the European Council of 6 February 2023 refusing to reimburse AF for representation costs incurred in the course of the disciplinary proceedings;
3.      Orders the Council to pay AF the amount of EUR 2 413.95 and default interest on that amount from the date of delivery of the present judgment until full payment, default interest being fixed at the interest rate applied by the European Central Bank (ECB) for its main refinancing operations and in force on the first day of the month in which payment is due, increased by three and a half percentage points;
4.      Orders the Council to pay the amount of EUR 5 000 as compensation for the non-material damage suffered by AF;
5.      Orders the Council to pay the costs.
da Silva Passos
Półtorak
Reine
Delivered in open court in Luxembourg on 1 October 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.
1      Confidential information redacted.