JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
24 September 2025 (*)
( Civil service – Officials – Investigation conducted by OLAF – Transfer for the duration of the investigation – Article 7(1) of the Staff Regulations – Request for assistance – Request for the use of documents under Article 19 of the Staff Regulations – Action for annulment – Act not open to challenge – Preparatory measure – Failure to follow the pre-litigation procedure – Partial inadmissibility – Interests of the service – Equivalence of posts – Liability )
In Case T‑1083/23,
XH, represented by M. Stanek, lawyer,
applicant,
v
European Commission, represented by J.-F. Brakeland, L. Hohenecker and M. Brauhoff, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberations, of R. da Silva Passos (Rapporteur), President, N. Półtorak and T. Pynnä, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure and, in particular, the four offers of evidence made by the applicant on 3 June, 29 August and 7 October 2024 and on 22 February 2025,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 270 TFEU, the applicant, XH, seeks, in essence, first, the annulment (i) of the decision of the European Anti-Fraud Office (OLAF) of 24 March 2023, by which she was transferred on a provisional basis from a first unit to a second unit (‘the transfer decision of 24 March 2023’) given the ongoing internal investigation bearing the reference OC/2022/0394/A1 (‘investigation OC/2022/0394/A1’) in which she was one of the persons implicated, as is confirmed by the decision of the Director-General of OLAF of 17 October 2023 rejecting her complaint (‘the decision rejecting the complaint’), (ii) of the decision of the Director-General of OLAF of 17 October 2023 rejecting her request concerning the alleged irregularities vitiating investigation OC/2022/0394/A1 (‘the decision dismissing the irregularities vitiating investigation OC/2022/0394/A1’), (iii) of the decision of the Director-General of OLAF of 17 October 2023 refusing her request for assistance (‘the decision refusing the request for assistance’) and (iv) of the decision of the Director-General of OLAF of 17 October 2023 rejecting her request for permission to use the documents annexed to her complaint in legal proceedings before courts outside of the European Union (‘the decision to refuse the use of documents’), and, secondly, compensation for the damage she allegedly suffered as a result.
I.      Background and facts subsequent to the dispute
2        The applicant is an OLAF official. She was recruited and appointed to grade AD 5 in July 2014.
3        On 13 November 2018, the applicant was promoted to grade AD 6 in the 2018 promotion exercise, with effect from 1 January 2018.
4        On 4 February 2019, the applicant brought an action, registered as Case T‑511/18, seeking, in essence, the annulment of the European Commission decision of 13 November 2017 not to include her name on the list of officials promoted as part of the 2017 promotion exercise.
5        That action was upheld in part by judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), which annulled that decision not to promote the applicant in the 2017 promotion exercise, on the ground that the appointing authority had improperly taken into account, for the purposes of the consideration of the comparative merits carried out in the 2017 promotion exercise, the applicant’s interim probation report and end-of-probation report.
6        On 28 October 2020, the Head of Unit HR.AMC.5 of the Commission sent a note to that institution’s medical service requesting the opening of an invalidity procedure against the applicant. That request was based on the fact that, for the period from November 2017 until October 2020, the combined sick leave taken by the applicant had exceeded 12 months.
7        On 21 May 2021, the Director-General of the Directorate-General for Human Resources and Security of the Commission referred the applicant’s case to the Invalidity Committee and appointed a doctor to represent the Commission, in accordance with Article 7 of Annex II to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (‘the decision opening the invalidity procedure’).
8        On 31 May 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations challenging the decision opening the invalidity procedure. On 30 September 2021, the competent appointing authority adopted a decision rejecting her complaint against the decision opening the invalidity procedure.
9        On 19 October 2021, the applicant brought an action, registered as Case T‑613/21, seeking, inter alia, the annulment of the decision opening the invalidity procedure. In support of her claims, she submitted various documents which, according to her, showed a lack of impartiality on the part of the person who had informed her of the decision opening the invalidity procedure.
10      That action was dismissed by judgment of 22 November 2023, XH v Commission (T‑613/21, not published, appeal pending, EU:T:2023:739).
11      On 30 May 2022, OLAF opened investigation OC/2022/0394/A1, in accordance with Articles 4 and 5 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by [OLAF] and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1), aiming to gather evidence to prove or refute the allegations that the applicant had unauthorised access to confidential information relating to OLAF cases, in particular investigations conducted by Unit A.1, stored in the OLAF Content Management System (OCM), and that she had possibly processed that information unduly and disseminated it to third parties.
12      On 29 June 2022, the Director of Unit A. of OLAF, acting pursuant to a delegation of powers by the Director of the Directorate-General of OLAF, adopted decision OCM(2022)17707 authorising a digital forensic operation and examination concerning various digital media held by the Commission and used by the applicant in the course of her duties, and authorising and mandating the officials responsible for carrying out that operation.
13      On 21 March 2023, the Director of Unit A. of OLAF, acting pursuant to a delegation of powers by the Director of the Directorate-General of OLAF, adopted decision OCM(2022)9071 authorising an inspection of the office assigned to the applicant on the OLAF premises and authorising and mandating the officials responsible for carrying out that inspection.
14      The applicant was notified, by a letter dated 21 March 2023 and bearing the reference OCM(2023)8982, of the existence of investigation OC/2022/0394/A1, in which she was implicated.
15      On 24 March 2023, a team of OLAF officials with a mandate to that effect, composed of digital forensic examiners and investigators, carried out an inspection of the applicant’s office on the OLAF premises and a digital forensic operation concerning OLAF equipment, namely the mobile phone used by the applicant and her laptop.
16      During the operation and the inspection of her office, the applicant refused to give access to her work phone by declining to provide the password which would have granted access to it, invoking legal professional privilege in respect of the exchanges with her lawyers, which were saved on her phone, concerning ongoing cases before the Court in which she was implicated. Following that refusal, the mobile phone was seized and kept in a sealed box.
17      Furthermore, during the operation, the applicant expressed her disagreement with the participation of the Deputy Head of OLAF Unit A.1 in the investigation as lead investigator on account of her contribution to the applicant’s interim probation report which was held to be irregular in part in the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291) (see paragraph 5 above).
18      On the same day, the Director of the Directorate-General of OLAF, in his capacity as the competent appointing authority, adopted, in the interests of the service and as a provisional measure, the transfer decision of 24 March 2023, by which the applicant was transferred from a first unit to a second unit, in accordance with Article 7(1) of the Staff Regulations.
19      On 17 June 2023, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the transfer decision of 24 March 2023, registered under number R/351/23.
20      In addition to her complaint, the applicant submitted, first, a request for assistance on the basis of Article 24 of the Staff Regulations, claiming, in essence, that she was the victim of psychological harassment as a result of investigation OC/2022/0394/A1 and the transfer decision of 24 March 2023, secondly, a request concerning alleged irregularities vitiating investigation OC/2022/0394/A1 and, thirdly, a request for permission to use the documents annexed to that complaint in legal proceedings before courts outside of the European Union.
21      On 17 October 2023, the Director-General of OLAF, in his capacity as the competent appointing authority, first, adopted the decision rejecting the complaint bearing the reference R/351/23, therefore confirming the transfer decision of 24 March 2023, secondly, rejected as inadmissible the request concerning the alleged irregularities vitiating investigation OC/2022/0394/A1, thirdly, refused the request for assistance submitted by the applicant and, fourthly, rejected the applicant’s request for permission to use the documents annexed to the complaint in legal proceedings before courts outside of the European Union.
22      After the present action was brought, the applicant was invited, by a letter dated 23 July 2024, to take part in a meeting with OLAF on 24 July 2024, as a person concerned by investigation OC/2022/0394/A1, in order to present her comments regarding the investigation. By email dated 30 July 2024, the applicant stated that she was refusing to participate in that meeting.
23      On 31 August 2024, the applicant sent OLAF the password granting access to her work phone.
II.    Forms of order sought
24      The applicant claims that the Court should:
–        annul the decision rejecting the complaint, the decision dismissing the irregularities vitiating investigation OC/2022/0394/A1, the decision refusing the request for assistance and the decision to refuse the use of documents;
–        order the Commission to pay her the sum set provisionally at EUR 25 000 in compensation for non-material and material damage suffered;
–        order the Commission to pay the costs.
25      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
A.      Subject matter of the action
26      It should be noted that the applicant seeks annulment of the decision rejecting the complaint, without however referring to the transfer decision of 24 March 2023.
27      In that regard, it should be born in mind that the claims for annulment formally brought against the decision rejecting a complaint, where that decision has no independent content, has the effect of bringing before the Court the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33).
28      In the present case, although the decision rejecting the complaint confirms the transfer decision of 24 March 2023 and, therefore, does not alter the operative part of that decision, the former decision is nevertheless not entirely without independent content. Though confirming the transfer decision of 24 March 2023 as well-founded, the decision rejecting the complaint has independent content in so far as it, first, rejects the applicant’s request concerning the alleged irregularities vitiating investigation OC/2022/0394/A1, secondly, refuses the request for assistance made by the applicant on the basis of Article 24 of the Staff Regulations and, thirdly, rejects the request for permission to use the documents annexed to her complaint in legal proceedings before courts outside of the European Union (see, to that effect, judgment of 21 September 2022, Casanova v EIB, T‑266/21, not published, EU:T:2022:566, paragraphs 14 and 15).
29      The decision rejecting the complaint does, therefore, have some independent content when compared with the transfer decision of 24 March 2023.
30      In those circumstances, first, it is appropriate to rule on the claim for annulment concerning the transfer decision of 24 March 2023, without it being necessary to rule on the claim directed against the decision rejecting the complaint, in respect of the part of the latter which confirms the transfer decision of 24 March 2023 and which, as a result, has no independent content. In the present case, the statement of reasons given in the decision rejecting the complaint should, however, be taken into consideration, since that statement of reasons is deemed to be the same as that of the transfer decision of 24 March 2023 (see, to that effect, judgment of 21 September 2022, Casanova v EIB, T‑266/21, not published, EU:T:2022:566, paragraph 16 and the case-law cited).
31      Secondly, it is appropriate to rule on the claim for annulment concerning the decision rejecting the complaint in so far as that decision independently, in the first place, rejects the applicant’s request concerning the alleged irregularities vitiating investigation OC/2022/0394/A1 (see, to that effect, judgment of 21 September 2022, Casanova v EIB, T‑266/21, not published, EU:T:2022:566, paragraph 17 and the case-law cited), in the second place, refuses the request for assistance made by the applicant pursuant to Article 24 of the Staff Regulations and, in the third place, rejects the applicant’s request for permission to use the documents annexed to her complaint in legal proceedings before courts outside of the European Union.
32      Accordingly, the claims for annulment must be regarded as being directed against, first, the transfer decision of 24 March 2023, secondly, the decision dismissing the irregularities vitiating investigation OC/2022/0394/A1, thirdly, the decision refusing the request for assistance and, fourthly, the decision to refuse the use of documents.
B.      The admissibility of the offers of evidence made by the applicant, on 3 June, 29 August and 7 October 2024, after the present action was brought
33      The Commission contends that the evidence submitted by the applicant in her offer of evidence of 3 June 2024, namely a letter from the European Public Prosecutor’s Office (‘the EPPO’) of 22 April 2024 informing her of the close of an investigation to which she was subject following a complaint from OLAF and various documents relating to the payment and reimbursement of medical expenses are inadmissible. In that regard, the Commission notes, first, that those documents concern an investigation conducted by the EPPO against the applicant, which has since closed, and therefore bears no relation to the subject matter of the action and, secondly, that the applicant again makes reference to investigation OC/2023/0004, which concerned an alleged fraud linked to medical expenses, without, however, demonstrating its connection with the subject matter of the present dispute or its relevance with regard to that subject matter.
34      In addition, it contends, as regards the evidence submitted by the applicant in her offer of evidence of 7 October 2024, that all those documents, with the exception of a receipt relating to a payment made by the applicant which is dated 4 September 2024, predate the present action being brought and that, therefore, the applicant failed to comply with the requirements laid down in Article 84(2) and Article 85(3) of the Rules of Procedure of the General Court by not explaining why she was not in a position to submit those documents when the action was brought. Furthermore, the Commission states that that evidence concerns only alleged irregularities committed in the course of investigation OC/2023/0004 and in an EPPO investigation which concerned an alleged fraud linked to medical expenses (see paragraph 37 below), which has no connection with the subject matter of the dispute. Consequently, it concludes that the evidence in question must also be rejected as inadmissible.
35      The applicant disputes those arguments by claiming that the EPPO investigation and investigations OC/2023/0004 and OC/2022/0394/A1 are connected with the subject matter of the present action. In that regard, she submits, in essence, that the termination, for lack of evidence, of the EPPO investigation, which had been opened following a complaint submitted by OLAF, demonstrates biased treatment by OLAF, in particular given the participation of an OLAF official, who has a conflict of interests with regard to the applicant, in investigations OC/2023/0004 and OC/2022/0394/A1.
36      In that regard, first, as regards the first offer of additional evidence made by the applicant on 3 June 2024, it is not disputed that the documents in question were submitted within the time limit provided for in Article 85(3) of the Rules of Procedure, since the letter from the EPPO is dated 22 April 2024 and, consequently, the applicant was not aware of it until after the action was brought.
37      Furthermore, it is apparent from reading that evidence that it concerns, first, an investigation conducted by the EPPO against the applicant, following a complaint from OLAF relating to an alleged fraud linked to medical expenses and, secondly, an investigation conducted by OLAF registered under number OC/2023/0004, which was parallel and complementary to the EPPO investigation, which also concerned the alleged fraud linked to medical expenses.
38      Accordingly, in the light of the content of those documents, the Commission is correct to submit that that additional evidence has no connection with the subject matter of the present action. The applicant has not established how the termination of the EPPO investigation concerning an alleged fraud linked to medical expenses is connected with the alleged irregularities in the transfer decision of 24 March 2023 and in investigation OC/2022/0394/A1, which concerns the allegation that the applicant accessed confidential information unduly. Furthermore, she also does not explain how the fact that OLAF submitted a complaint to the EPPO, which led to the termination of the investigation for lack of evidence, shows that OLAF acted in a biased manner towards her when the transfer decision of 24 March 2023 was adopted and during investigation OC/2022/0394/A1.
39      Lastly, the applicant does not provide any explanation as to the relevance and the connection of the EPPO investigation with the conflict of interests which she claims as regards an OLAF official who participated in investigation OC/2022/0394/A1.
40      Consequently, it must be found that those documents are of no relevance to the present case, without it being necessary to rule on their admissibility.
41      Secondly, as regards the second offer of additional evidence made by the applicant on 29 August 2024, by which the latter submitted a letter from the President of the Advisory and Investigation Committee (French-speaking) of the Belgian High Council of Justice
(Commission d’avis et d’enquête francophone du Conseil supérieur de la Justice, Belgium), informing her that a case file had been opened following her complaint relating to alleged irregularities in the functioning of the Belgian legal system, that letter is, admittedly, dated 4 April 2024 and therefore postdates the present action being brought. However, the fact remains that the applicant does not provide any explanation concerning the alleged irregularities she invokes as to either the relevance of that evidence or its connection with the transfer decision of 24 March 2023 and investigation OC/2022/0394/A1 which are the subject matter of the present dispute.
42      Consequently, it must be found that that second request is of no relevance to the present case, without it being necessary to rule on its admissibility.
43      Thirdly, by the third offer of evidence of 7 October 2024, the applicant sought to add to the documents before the Court, in essence, documents relating to the investigations conducted with respect to her by OLAF and by the EPPO concerning an alleged fraud linked to medical expenses, namely the correspondence between OLAF and the EPPO and information about the investigative measures taken. In addition, she requested that the documents showing the payment and the reimbursement of the medical expenses be produced. In that regard, as the Commission correctly states, all the documents predate the present action being brought, with the exception of a receipt relating to a payment made by the applicant which is dated 4 September 2024.
44      In that regard, it must be borne in mind that, according to settled case-law, while, in accordance with the time-bar rule laid down in Article 85(1) of the Rules of Procedure, the parties must state the reasons for the delay in submitting or offering new evidence, the Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting or offering that evidence and, depending on the case, the content of that evidence, and also, if its belated production is not justified to the requisite legal standard or substantiated, jurisdiction to reject it. The belated submission or offer of evidence by a party may be justified, in particular, by the fact that that party did not previously have the evidence in question at its disposal, or if the belated production of evidence by the opposing party justifies the file being supplemented, in such a way as to ensure observance of the inter partes principle (see judgment of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraph 41 and the case-law cited).
45      In the present case, the applicant, in her observations of 7 October 2025, states that she was not officially notified of the EPPO investigation until 22 April 2024 and was not officially notified of the administrative investigation conducted by the Commission concerning the alleged fraud linked to medical expenses until 6 June 2024. However, it is clear that she does not provide any explanation as to why she was not in a position to submit that evidence at the stage of the reply and, accordingly, does not justify its late submission. Therefore, it must be found that the applicant infringed Article 85(2) and (3) of the Rules of Procedure and, consequently, that the submission of the documents in question must be rejected as out of time and, accordingly, inadmissible.
46      In addition, as regards the receipt of 4 September 2024, while it admittedly postdates the present action being brought, it should still be observed that the applicant does not explain how that document, which relates to a payment made, is connected with the subject matter of the present action. Accordingly, its submission has no relevance to the subject matter of the dispute and must be rejected, without it being necessary to rule on its admissibility. In those circumstances, the evidence submitted by the applicant on 7 October 2024 must be rejected in its entirety, first, on account of its late submission and, secondly, on account of its lack of relevance to and connection with the subject matter of the present dispute.
C.      The admissibility of the action
47      As a preliminary point, without formally raising a plea of inadmissibility, the Commission contends that the present action must be dismissed as inadmissible in its entirety, pursuant to Article 76(d) of the Rules of Procedure, since the application and the reply lack specificity as regards the subject matter of the dispute and the pleas in law raised are not sufficiently clear and precise to enable the Commission to prepare its defence.
48      In that regard, the Commission submits, in essence, that the applicant employs imprecise phrases and has structured her arguments in an unclear manner by referring to facts which have no connection with the subject matter of the action. In particular, it criticises the applicant, first, for making incorrect reference to ‘the termination of the employment’, even though the transfer decision of 24 March 2023 relates only to a provisional transfer to another post, secondly, for referring to investigation OC/2023/0004 in the application without explaining either its subject or its relevance to the present dispute and, thirdly, for citing case-law in a way that is unclear and without relevance to the present dispute.
49      The applicant disputes those arguments. She claims that that plea of inadmissibility has only technical merit, which undermines the legitimacy of her concerns as to the substance of the case regarding the fairness of the procedure, which is one of the aspects of access to justice. In addition, she criticises the Commission, first, for having dismissed certain claims as ‘difficult to understand’ without engaging with their content, which is inconsistent with the case-law, and, secondly, for not developing its legal reasoning regarding the admissibility of her claims.
50      In that regard, it must be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, the application initiating proceedings must, inter alia, contain the subject matter of the dispute and a summary of the pleas in law relied on. Those matters must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without further supporting information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly, in the application itself (see judgment of 3 February 2021, Moi v Parliament, T‑17/19, EU:T:2021:51, paragraph 28 and the case-law cited; see also, to that effect, judgment of 22 November 2023, XH v Commission, T‑613/21, not published, appeal pending, EU:T:2023:739, paragraph 155 and the case-law cited).
51      In the present case, it is true that the application and reply are not without ambiguity. The Commission is correct to contend, first, that the applicant employed confusing terminology and, secondly, that she referred to investigation OC/2023/0004 without explaining the connection between that investigation and the subject matter of the dispute. Furthermore, in the pleas in law put forward in the application and supplemented in the reply, the applicant’s various arguments appear disordered and repetitive.
52      That lack of rigour does not, however, prevent the Court from identifying, in essence, the arguments raised by the applicant in support of her application for annulment relating to, first, the irregular nature of investigation OC/2022/0394/A1 and the investigative measures adopted during that investigation, secondly, irregularities vitiating the transfer decision of 24 March 2023 and, thirdly, an alleged error made by the competent appointing authority, when that authority refused the request for assistance and rejected the request for permission to use the documents annexed to the complaint.
53      In addition, it is also apparent from the Commission’s pleadings that it was able to identify, in essence, the content of the applicant’s arguments and accordingly defend itself by responding to them in detail.
54      In the light of the foregoing, it must be found that the application meets the requirements laid down in Article 76(d) of the Rules of Procedure and, consequently, the plea of inadmissibility raised by the Commission against the application must be rejected in its entirety.
D.      Claims for annulment
1.      The admissibility of the claims for annulment
(a)    The admissibility of the claim for annulment directed against the decision dismissing the irregularities vitiating investigation OC/2022/0394/A1
55      The applicant claims, in essence, that, even though no definitive decision has been adopted with respect to that investigation concerning her, her complaints concerning the irregularities of that investigation must be found to be admissible since the errors which have already occurred in the course of that investigation justify, at this stage, calling into question its lawfulness as regards the right of access to justice provided for in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In that regard, she states that waiting for the investigation to end before bringing a complaint could have an irreversible impact on her situation in the light of, first, the potentially excessive length of that investigation and, secondly, the impossibility of addressing procedural irregularities which have occurred in the meantime. She also claims that the competent appointing authority should seek to correct these irregularities without waiting for the close of the investigation so that she is not deprived of protection since, first, Article 17(1) and 19 of the Staff Regulations enshrine the importance of confidentiality in the handling of information and, secondly, Articles 12, 12a and 24 of the Staff Regulations lay down the obligation for the institutions to assist officials facing threats. In addition, she submits that, even though the measures adopted by OLAF in the course of investigation OC/2022/0394/A1 were preparatory measures, they can be challenged where they affect the legal position of the party concerned.
56      The Commission disputes those arguments.
57      In that regard, the Commission contends that, according to the case-law, the alleged irregularities are inadmissible, because the measures connected with the investigation, which is still ongoing, do not constitute measures adversely affecting the applicant, in so far as they do not produce legal effects that are binding and of such a nature as to directly and immediately affect her interests by bringing about a distinct change in her legal position.
58      The Commission also contends that the preparatory measure, in the present case the decision to open investigation OC/2022/0394/A1, the outcome of which is, to this day, uncertain, cannot adversely affect the applicant in the context of the transfer decision of 24 March 2023, because the subject matter of that investigation is different from that of the transfer decision of 24 March 2023. In that regard, it submits that the case-law cited by the applicant in support of her argument that the preparatory measures can be challenged was misinterpreted and is irrelevant to the present case. It does not dispute that preparatory measures may, in certain cases, be challenged, but contends that, in the present case, the decision to open investigation OC/2022/0394/A1 cannot be challenged since the outcome of that investigation is in no way prejudiced by the decision to open it or by the transfer decision of 24 March 2023. Consequently, it concludes that all the applicant’s arguments relating to investigation OC/2022/0394/A1 and all the annexes to the reply, in so far as they are intended to support those arguments, must be rejected as inadmissible.
59      Lastly, the Commission submits that the arguments concerning the alleged procedural irregularities, which it is claimed occurred in the course of the investigation, are not supported by the evidence in the documents before the Court and that, in any event, the investigation is still ongoing, with the result that the applicant’s arguments are premature and must be found inadmissible.
60      It should be borne in mind that, in order for any action brought by an official against the institution by which he or she is or was employed to be admissible, it is a necessary condition that there be an act adversely affecting him or her within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations (see order of 18 December 2003, Gómez-Reino v Commission, T‑215/02, EU:T:2003:352, paragraph 46 and the case-law cited). Furthermore, according to settled case-law, an applicant is adversely affected, within the meaning of those provisions, only by measures which produce binding legal effects such as to directly and immediately affect his or her interests by bringing about a distinct change in his or her legal position and only those measures may be the subject of an action for annulment (see, to that effect, judgment of 14 October 2021, KF v SatCen, C‑464/20 P, not published, EU:C:2021:848, paragraph 26 and the case-law cited, and order of 18 December 2003, Gómez-Reino v Commission, T‑215/02, EU:T:2003:352, paragraph 46 and the case-law cited).
61      As regards actions brought by officials, measures that are preparatory to a final decision do not have an adverse effect and can therefore only be challenged incidentally in an action against acts capable of being annulled. Although some purely preparatory measures may adversely affect an official in so far as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged on the basis of an action brought against that act (see, to that effect, order of 18 December 2003, Gómez-Reino v Commission, T‑215/02, EU:T:2003:352, paragraph 47 and the case-law cited).
62      Furthermore, the preparatory measures which, for the party concerned, are constituted by the opening and conducting of an internal investigation, may not be the subject of a separate action, different from that which that party is entitled to bring against the authority’s final decision. Indeed, neither the existence, even if established, of infringements of the rights of the defence nor the fact that internal investigations are conducted show in themselves that a measure having an adverse effect, that is to say a measure open to appeal, has been adopted (see judgment of 14 October 2021, KF v SatCen, C‑464/20 P, not published, EU:C:2021:848, paragraph 27 and the case-law cited).
63      As regards an internal investigation conducted by OLAF, procedural irregularities and infringements of essential procedural requirements, which allegedly vitiate an OLAF investigation report, may be challenged only on the basis of an action brought against a subsequent challengeable act, in so far as they are claimed to have influenced its content, and not independently, in the absence of such an act
(see, to that effect, judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 367 (not published) and the case-law cited). That finding applies, a fortiori, to the decision to open an internal OLAF investigation and to the various measures taken to conduct it, including the alleged refusal of OLAF to notify certain measures relating to that investigation to the party concerned and to allow him or her to defend himself or herself during it (see judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 368 (not published) and the case-law cited).
64      As regards, in particular, the investigative procedures conducted by OLAF during the internal investigation, a separate action for annulment of those measures is inadmissible (see, to that effect, order
of the President of the Court of 8 April 2003, Gómez-Reino v Commission, C‑471/02 P(R), EU:C:2003:210, paragraphs 65 and 66).
65      In the present case, it is apparent from the documents before the Court that, first of all, investigation OC/2022/0394/A1, which is still ongoing, was opened by a decision taken by OLAF on 30 May 2022. Next, on 29 June 2022, OLAF authorised a digital forensic operation concerning various digital media used by the applicant in the course of her duties. Furthermore, on 21 March 2023, OLAF adopted a decision authorising an inspection of the office assigned to the applicant on the OLAF premises. That inspection was carried out on 24 March 2023 and the applicant was notified of the existence of investigation OC/2022/0394/A1 which concerned her. Lastly, the applicant was invited, by a letter dated 23 July 2024, to a meeting, as a person concerned by that investigation, in order to present her comments. By email dated 30 July 2024, the applicant stated that she was refusing to participate in that meeting.
66      Accordingly, nothing in the documents before the Court indicates that, at that stage, a final report containing OLAF’s findings had been adopted or that a final decision had been taken following that investigation. Furthermore, in so far as OLAF has not yet adopted definitive findings concerning that investigation, it is also clear that, as competent appointing authority, it has also not adopted a decision on the basis of those findings capable of having a legal effect on the applicant’s situation.
67      Consequently, in the light of the case-law cited in paragraphs 61 to 64 above, it must be found that the measures adopted by OLAF, namely the investigative measures taken, do not constitute measures adversely affecting the applicant and that they are not capable of being challenged in a separate action at this stage. So long as that investigation is currently ongoing, those measures are only preparatory acts the merit of which cannot be challenged by the applicant until a later stage, once a final decision relating to that investigation is adopted.
68      It follows that the action, directed against the preparatory measures in question, is not directed against measures adversely affecting the applicant. In those circumstances, the claim for annulment directed against the decision dismissing the alleged irregularities vitiating investigation OC/2022/0394/A1 must be rejected as inadmissible. Consequently, the fourth request for the disclosure of evidence made by the applicant on 22 February 2025, concerning investigation OC/2022/0394/A1, must be rejected as irrelevant to resolving the present dispute.
(b)    The admissibility of the claim for annulment directed against the decision refusing the request for assistance
69      The Commission disputes the admissibility of the claim for annulment directed against the decision refusing the request for assistance. It contends, in essence, that the applicant has misunderstood that decision. In that regard, it argues, the applicant drew incorrect conclusions from the illustrations, which were provided as examples by the Commission, of situations in which it was not bound by a duty to provide assistance in respect of EU officials. Furthermore, it contends that the refusal of the request for assistance had to be subject to a complaint, under Article 90(2) of the Staff Regulations, before an action could be brought before the Court.
70      The applicant claims that her arguments included in the present action, in so far as it is directed against the decision refusing the request for assistance, are admissible, even though she did not submit a prior complaint under Article 90(2) of the Staff Regulations. In that regard, the applicant criticises the Commission for not examining whether she could reasonably have believed that a direct action was permissible or whether she had been provided with sufficient guidance on the appropriate procedural steps.
71      In that regard, it should be borne in mind that the admissibility of an action brought before the Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and the prescribed time limits for that procedure being complied with. Under Article 91(2) of the Staff Regulations, an action against a measure having an adverse effect lies only if the appointing authority has previously had a complaint submitted to it within the prescribed period and if that complaint has been rejected by express decision or by implied decision (see judgments of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 64 and the case-law cited, and of 15 March 2023, TO v EUAA, T‑727/21, not published, EU:T:2023:136, paragraphs 28 and 29 and the case-law cited).
72      According to the case-law, the pre-litigation procedure is intended to allow, as a priority, an amicable settlement of the differences arising between officials or other servants and the administration. In order for such a procedure to achieve its objective, it is necessary that the appointing authority be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision (see judgment of 23 April 2002, Campogrande v Commission, C‑62/01 P, EU:C:2002:248, paragraph 33 and the case-law cited).
73      As regards, in particular, the obligation to submit a prior complaint against a decision refusing a request for assistance, it is also apparent from the case-law that a decision refusing a request for assistance constitutes a measure having an adverse effect against which the official may submit a complaint and, where appropriate, bring an action (see, to that effect, judgments of 19 June 2013, CF v EASA, F‑40/12, EU:F:2013:85, paragraph 93, and of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 106 and the case-law cited).
74      In the present case, it is apparent from the documents before the Court that the applicant did not submit a complaint under Article 90(2) of the Staff Regulations against the decision refusing the request for assistance. It follows that, in the light of the case-law cited in paragraphs 71 to 73 above, the applicant did not fulfil the obligation to submit a complaint as stems from Article 91(2) of the Staff Regulations.
75      Furthermore, the applicant’s argument that she could reasonably have believed that a direct action was permissible or that she had not been provided with sufficient guidance on the appropriate procedural steps cannot succeed since, in the present case, the decision refusing the request for assistance informs her explicitly that ‘the rejection of this request [for assistance] may be contested by way of a complaint under Article 90(2) of the [Staff Regulations].’
76      In those circumstances, the Commission is correct to contend that the applicant did not fulfil her obligation to submit a prior complaint against the decision refusing the request for assistance before bringing the present action and, accordingly, failed to comply with the pre-litigation procedure provided for in that regard by the Staff Regulations.
77      In the light of the foregoing, the claim for annulment directed against the decision refusing the request for assistance must be rejected as inadmissible.
(c)    The admissibility of the claim for annulment directed against the decision to refuse the use of documents
78      The Commission disputes the admissibility of the claim for annulment directed against the decision to refuse the use of documents in potential disputes outside of the jurisdiction of the European Union. It contends that that decision should have been subject to a prior complaint under Article 90(2) of the Staff Regulations. It therefore concludes that, in so far as the applicant has not submitted such a complaint, the arguments against that decision must be rejected as inadmissible.
79      The applicant maintains that her claim is admissible. She reiterates that the Commission should have examined whether she could reasonably have believed that a direct action was permissible or whether she had been provided with sufficient guidance on the appropriate procedural steps. She criticises the competent appointing authority for misinterpreting her request to use documents relating to OLAF investigations, which were annexed to her complaint, outside of the jurisdiction of the European Union, first, by classifying it as coming under Article 19 of the Staff Regulations, without specifying how, in the present case, that provision is relevant and, secondly, by incorrectly finding that that request concerned the use of those documents only in legal proceedings outside of the territory of the European Union, and not in legal proceedings before EU courts. Accordingly, in her view, the competent appointing authority incorrectly concluded that the Court of Justice of the European Union was the only body with jurisdiction to hear disputes concerning EU officials, in breach of her right of access to justice and to other courts.
80      In that regard, it should be borne in mind that, in accordance with the first paragraph of Article 19 of the Staff Regulations, an ‘official shall not, without permission from the appointing authority, disclose on any grounds whatever, in any legal proceedings, information of which he has knowledge by reason of his duties’, that ‘permission shall be refused only where the interests of the Union so require and such refusal would not entail criminal consequences as far as the official is concerned’ and that ‘an official shall continue to be bound by this obligation after leaving the service’.
81      In addition, according to the case-law, requests submitted by an agent or official seeking permission to send documents to courts cannot be examined by the appointing authority except in the light of that article (see, to that effect, judgment of 20 January 2011, Strack v Commission, F‑132/07, EU:F:2011:4, paragraph 65).
82      Furthermore, the legislature has not made the requests of officials seeking permission to use in legal proceedings information they gained knowledge of in the exercise of their duties subject to a specific procedure. Consequently, those requests, referred to in the first paragraph of Article 19 of the Staff Regulations, must be examined in the procedural conditions set by Article 90(1) thereof (see, to that effect, judgment of 20 January 2011, Strack v Commission, F‑132/07, EU:F:2011:4, paragraph 66). There is no formal requirement when an official requests permission to disclose, in legal proceedings, information which the official knows on account of his or her duties (see, to that effect, judgment of 23 March 2022, NV v eu-LISA, T‑661/20, EU:T:2022:154, paragraph 143).
83      In addition, as regards an action brought against a decision rejecting a request to use documents under Article 19 of the Staff Regulations, it is apparent from the case-law that, for such an action to be admissible, the official or agent concerned must submit a prior complaint in accordance with Article 90(2) of the Staff Regulations (see, to that effect, order of 10 June 1987, Pomar v Commission, 317/85, EU:C:1987:267, paragraphs 9 to 11).
84      In the present case, it should be noted that, in her request to use documents, the applicant ‘[sought] the permission to use the documents appended to [the present] complaint in … relevant proceedings in order to raise [her] complaint before competent jurisdictions outside [the] EU’. In addition, it is possible to discern from the decision to refuse the use of documents that that request concerned documents which formed part of the case file of two OLAF investigations and that, consequently, that request referred to documents containing information of which she had knowledge by reason of her duties, within the meaning of Article 19 of the Staff Regulations.
85      In those circumstances, and since it is apparent from the wording of Article 19 of the Staff Regulations and the case-law cited in paragraph 82 above that a request to use documents by an official seeking to obtain permission ‘to use in legal proceedings information [she] gained knowledge of in the exercise of [her] duties’ is not subject to either a specific procedure or particular formal requirement, it must be found that the competent appointing authority did not err in law by finding, in the decision to refuse the use of documents, that the applicant’s request came within the scope of that article, even if that request had been made following the request for assistance and without explicit reference to that article.
86      It is apparent from the documents before the Court that the applicant did not dispute the decision to refuse the use of documents or submit a complaint under Article 90(2) of the Staff Regulations against it. It follows that, in the light of the case-law cited in paragraphs 82 and 83 above, the applicant did not fulfil her obligation to submit a prior complaint in that regard and did not make her action subject to the proper conduct of the pre-litigation procedure and the prescribed time limits that procedure provides for in accordance with Article 91(2) of the Staff Regulations.
87      In that regard, the applicant cannot rely on the fact that she had not been put in a position to understand or had not been provided with sufficient guidance on the appropriate procedural steps, in so far as the decision rejecting the request to use the documents informed her explicitly that ‘the rejection of this request [could] be contested by way of a complaint under Article 90(2) of the [Staff Regulations].’
88      It follows from all of the foregoing that the action is inadmissible in so far as it is directed against the decision to refuse the use of documents.
2.      The merits of the claim for annulment directed against the transfer decision of 24 March 2023
89      The applicant submits, in essence, that the transfer decision of 24 March 2023 is unlawful and vitiated by several irregularities linked to the fact that the competent appointing authority did not respect the criteria laid down by the Staff Regulations for adopting a transfer decision and that, in her view, it wanted to punish her by transferring her to another post. In essence, in a first plea in law, she claims that the transfer decision of 24 March 2023 was not made entirely in the interests of the service as required by Article 7(1) of the Staff Regulations and that the Commission failed to fulfil its duty to have regard for the interests of officials with respect to her by not taking due account of her interests. In a second plea in law, the applicant submits, first, that the Commission infringed the principle of equivalence of posts and did not ensure that that transfer was not a disguised penalty, which infringed the principle of the presumption of innocence and the right to respect for private life, and, secondly, that the content of the decision was influenced by officials with a conflict of interests with regard to her, whom she alleges participated in the conduct of investigation OC/2022/0394/A1. In a third plea in law, she claims that the transfer decision of 24 March 2023 undermines her dignity and integrity, as protected by the Staff Regulations.
(a)    The first plea in law, alleging infringement of Article 7(1) of the Staff Regulations, breach of the duty to have regard for the interests of officials and disregard for the interests of the service
90      The applicant claims that the competent appointing authority infringed Article 7(1) of the Staff Regulations. In her view, the transfer decision of 24 March 2023 was not based solely on the interests of the service. In so far as the actions which she took, namely the alleged undue access, were intended only to ensure the justice, transparency and fairness provided for in Article 47 of the Charter, her transfer to another post, she argues, cannot serve the interests of the service. Furthermore, she submits that the transfer decision of 24 March 2023 is a measure adversely affecting her under Article 90(2) of the Staff Regulations and that, by classifying that measure as a ‘transfer decision’, the competent appointing authority sought to ‘[distort] the real impact’, namely the negative consequences of that decision.
91      In addition, the applicant claims, first, that the transfer decision of 24 March 2023 harmed her career, her reputation and her well-being and that the competent appointing authority made a manifest error of assessment by not recognising the lasting negative consequences of that decision and, secondly, that the Commission breached its duty to have regard for the interests of officials by not taking due account of her interests and personal situation. Lastly, she criticises the Commission for relying on the discretion granted to the administration as regards evaluating the interests of the service for the purpose of escaping review by the Court.
92      The Commission disputes those arguments.
93      As a preliminary point, as regards the applicant’s argument that the transfer decision of 24 March 2023 is a measure adversely affecting her, while the competent appointing authority sought to ‘[distort] the real impact’, namely the negative consequences of that measure, by classifying it as a ‘transfer decision’, it should be noted that the Commission in no way disputes in its pleadings the fact that the transfer decision of 24 March 2023 is a measure adversely affecting the applicant. In addition, it is clear that the applicant does not explain how the Commission had sought to ‘distort’ the allegedly negative impact of that decision by classifying it as a ‘transfer’, since a decision to transfer an official implies, according to the case-law, a transfer to another post (see, to that effect, judgments of 28 May 1998, W v Commission, T‑78/96 and T‑170/96, EU:T:1998:112, paragraphs 46 to 48 and 50 and the case-law cited, and of 6 July 2022, OC v EEAS, T‑681/20, not published, EU:T:2022:422, paragraph 52 and the case-law cited). Accordingly, since it is not sufficiently supported or well founded, that argument must be rejected.
94      As regards the argument that the competent appointing authority did not base its transfer decision of 24 March 2023 solely on the criterion of the interests of the service, it should be borne in mind that the first subparagraph of Article 7(1) of the Staff Regulations provides that ‘[the administration] shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his function group which corresponds to his grade.’
95      According to established case-law, the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. That broad discretion is exercised on condition, however, as follows from Article 7 of the Staff Regulations, that such assignment be in the interest of the service and the post in the function group correspond to the grade (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 195 and the case-law cited; see also, to that effect, judgment of 21 June 1984, Lux v Court of Auditors, 69/83, EU:C:1984:225, paragraph 17).
96      As regards the definition of the interests of the service, it must be recalled that that concept, within the meaning of Article 7(1) of the Staff Regulations, relates to the smooth running of the institution in general and, in particular, to the specific requirements of the post to be filled (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 196 and the case-law cited).
97      In addition, the obligation for the EU institutions to assign their staff solely in the interests of the service applies even where it is likely to entail a change in the place of employment not desired by the staff member concerned (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 197 and the case-law cited; see also, to that effect, judgment of 11 July 1996, Aubineau v Commission, T‑102/95, EU:T:1996:104, paragraph 28). Moreover, reassignment in the interest of the service does not require the consent of the official concerned (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 197 and the case-law cited; see also, to that effect, judgment of 22 January 1998, Costacurta v Commission, T‑98/96, EU:T:1998:6, paragraph 40).
98      Furthermore, having regard to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Court of whether the condition relating to the interests of the service has been respected must be confined to the question whether the administration remained within reasonable limits and did not use its discretion in a manifestly wrong way (judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 198; see also, to that effect, judgment of 28 October 2004, Meister v OHIM, T‑76/03, EU:T:2004:319, paragraph 64 and the case-law cited).
99      Lastly, as regards a decision of the competent appointing authority resulting in the transfer of an official to another post in the interests of the service for the duration of an investigation, it has already been held that, since the Commission has determined that the status quo could be prejudicial to the proper conduct of the investigation it had decided upon, it was entitled to consider, in the exercise of its broad discretion, that the interest of the service justified a transfer decision (see, to that effect, judgment of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 71 and the case-law cited; see also, to that effect and by analogy, judgment of 7 February 2007, Caló v Commission, T‑118/04 and T‑134/04, EU:T:2007:37, paragraph 113 and the case-law cited).
100    In the present case, it is apparent from the statement of reasons given in the transfer decision of 24 March 2023 that the competent appointing authority found that, in so far as that investigation concerns the allegation that the applicant accessed confidential OLAF information unduly, it was necessary to transfer her to a new post where she did not have access to either OLAF’s database or its internal secure network for the duration of the investigation. For that purpose, the competent appointing authority decided to transfer her to another unit, which involved moving her place of work to another office, close to that unit, while allowing her to continue working within OLAF without having the need to access either OLAF’s database or its secure network to complete her tasks.
101    Accordingly, it must be found that that decision establishes a measure that is purely preventative, as it seeks to ensure the proper conduct of investigation OC/2022/0394/A1, and temporary, as it lasts for the duration of that investigation.
102    Therefore, in the light of the statement of reasons in the transfer decision of 24 March 2023 (see paragraph 100 above) and the case-law cited in paragraphs 95 to 99 above, it must be found that the competent appointing authority was entitled to consider, within the limits of its broad discretion and in the interests of the service, that the serene and proper conduct of the investigation in question would be best guaranteed if the applicant relinquished her duties within her former unit for the duration of the investigation and that keeping her in that unit would constitute a situation prejudicial to the proper functioning of the service. In those circumstances, by assigning the applicant to a new office, the competent appointing authority acted with diligence and with a view to effectively managing available resources.
103    Furthermore, as regards the applicant’s argument that the transfer decision of 24 March 2023 did not serve the interests of the service, in so far as her alleged undue access to confidential OLAF information, which prompted investigation OC/2022/0394/A1, was intended to ensure the justice, transparency and fairness provided for in Article 47 of the Charter, it must be found that that argument is, in reality, closely linked to the challenge of the merits of investigation OC/2022/0394/A1, which is currently ongoing, and, accordingly, is inadmissible in the absence of a definitive measure having an adverse effect, in the same way that the present action is inadmissible in so far as it is directed against the decision dismissing the irregularities vitiating investigation OC/2022/0394/A1.
104    In addition, as regards the applicant’s argument that the transfer decision of 24 March 2023 harmed her career, her reputation and her well-being, the Commission is correct to contend that the applicant has not provided any specific explanation or any prima facie evidence which could demonstrate the existence of such harm. Accordingly, since it is not sufficiently supported, that argument must be rejected.
105    Lastly, as regards the alleged breach, by the Commission, of its duty to have regard for the interests of officials and the alleged failure to take into account the interests of the applicant, it should be borne in mind that, according to established case-law, the administration’s duty to have regard for the interests of its staff reflects the balance of reciprocal rights and obligations that the Staff Regulations have created in relations between the public authority and public service employees. That balance implies in particular that when the appointing authority takes a decision concerning the situation of a member of staff or an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (see judgment of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 80 and the case-law cited; see also, to that effect, judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22, and of 6 July 2022, OC v EEAS, T‑681/20, not published, EU:T:2022:422, paragraph 100).
106    In the context of the reassignment or transfer of an official, the authority has a duty to have regard for the interests of officials which requires it to conduct an effective, full and detailed review of the situation in the light of the interests of the service and of the official concerned, whose interests may be reflected in any comments he or she makes about the information submitted to him or her (judgments of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 81, and of 26 March 2014, CP v Parliament, F‑8/13, EU:F:2014:44, paragraph 82).
107    However, fulfilling the duty to have regard for the interests of officials cannot result in the assignment of officials according to their personal preferences alone since they are not granted, in any event, a right to exercise or retain specific duties. Accordingly, the requirements arising from the administration’s duty to have regard for the interests of officials cannot prevent it from adopting the reassignment or transfer measures which it considers necessary, since the filling of each post must be based primarily on the interests of the service (see judgment of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 81 and the case-law cited; see, to that effect, judgment of 25 November 1976, Küster v Parliament, 123/75, EU:C:1976:162, paragraph 10).
108    In the present case, as regards the taking into account of the applicant’s interests by the competent appointing authority, as referred to in the letter accompanying the transfer decision of 24 March 2023, namely her well-being and serene working conditions, it should be noted that investigation OC/2022/0394/A1 had led to an inspection of her former office, which resulted in various documents being seized, and that, in those circumstances, keeping her in that office while the investigation was ongoing could probably have impeded the exercise of her duties. It is also appropriate to note that her new office is, in the interests of the service, located close to her new unit, which allows for the completion of her tasks and her integration.
109    Accordingly, in the light of the case-law cited in paragraphs 105 to 107 above, since the transfer decision of 24 March 2023 was adopted in the interests of the service (see paragraph 102 above) while preserving the interests of the applicant, the competent appointing authority cannot be criticised for adopting the transfer measure at issue, particularly since the filling of each post must be based primarily on the interests of the service.
110    In those circumstances, it must be found that, by adopting the transfer decision of 24 March 2023, the competent appointing authority has not failed to fulfil its duty to have regard for the interests of officials with respect to the applicant.
111    Accordingly, it is necessary to reject the first plea in law in its entirety as unfounded.
(b)    The second plea in law, alleging the existence of both a disguised penalty and a conflict of interests and infringement of the principle of equivalence of posts
112    The applicant submits, first of all, that the competent appointing authority infringed, in the transfer decision of 24 March 2023, the principle of equivalence of posts. According to her, the competent appointing authority neglected to examine whether the transfer in question could entail a demotion, adversely affect her career progression or impede her ability
to exercise her duties effectively. She claims, next, that that decision represents a disguised penalty which infringes the principle of the presumption of innocence and her right to respect for her private life, as protected by Articles 4 and 9 of Regulation No 883/2013, and that the Commission failed to fulfil its duty to provide assistance with respect to her. Lastly, she submits that that decision might have been influenced by officials with a conflict of interests in investigation OC/2022/0394/A1 (see paragraph 17 above).
113    The Commission disputes those arguments.
(1)    The infringement of the principle of equivalence of posts
114    As regards the alleged infringement of the principle of equivalence of posts, it should be borne in mind that officials must be assigned in compliance with the conditions set by Article 7(1) of the Staff Regulations, solely in the interest of the service and in conformity with the principle of equivalence of posts (see, to that effect, judgments of 23 March 1988, Hecq v Commission, 19/87, EU:C:1988:165, paragraph 6 and the case-law cited, and of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 22 and the case-law cited).
115    In that regard, the rule of correspondence between grade and post, set out in particular in Article 7 of the Staff Regulations, necessitates, where the duties of an official or member of staff are changed, a comparison not between his or her current and previous duties, but between his or her current duties and his or her grade (see judgment of 4 December 2018, Schneider v EUIPO, T‑560/16, not published, EU:T:2018:872, paragraph 83 and the case-law cited; see also, to that effect, judgment of 28 May 1998, W v Commission, T‑78/96 and T‑170/96, EU:T:1998:112, paragraph 103).
116    Accordingly, the rule of correspondence between grade and post does not preclude a decision from entailing the assignment of new duties which, although they differ from those previously exercised and are perceived by the party concerned as bringing about a reduction of her responsibilities, are nonetheless consistent with a post corresponding to her grade. Therefore, an effective diminution of the responsibilities of an official infringes the rule of correspondence between grade and post only if, taken together, her new duties clearly fall short of those corresponding to her grade and post, taking account of their character, importance and scope (see judgment of 4 December 2018, Schneider v EUIPO, T‑560/16, not published, EU:T:2018:872, paragraph 84 and the case-law cited; see also, to that effect, judgment of 23 March 1988, Hecq v Commission, 19/87, EU:C:1988:165, paragraph 7).
117    Lastly, while the Staff Regulations aim to guarantee officials the grade obtained and also a post corresponding to that grade, they do not grant officials any right to a specific post, but, on the contrary, leave to the appointing authority the power to assign officials, in the interest of the service, to the various posts corresponding to their grade (see judgment of 4 December 2018, Schneider v EUIPO, T‑560/16, not published, EU:T:2018:872, paragraph 85 and the case-law cited; see also, to that effect, judgment of 28 May 1998, W v Commission, T‑78/96 and T‑170/96, EU:T:1998:112, paragraph 102). Furthermore, while it is true that the administration has every interest in assigning officials to posts which accord with their particular aptitudes and personal preferences, they are not granted a right to exercise or retain specific duties or to refuse any other duties relating to their type of post (see judgment of 4 December 2018, Schneider v EUIPO, T‑560/16, not published, EU:T:2018:872, paragraph 85 and the case-law cited; see also, to that effect, judgment of 28 May 1998, W v Commission, T‑78/96 and T‑170/96, EU:T:1998:112, paragraph 105 and the case-law cited).
118    In the present case, it is apparent from the transfer decision of 24 March 2023 that the applicant is an official at grade AD 7, step 1, initially assigned to a first unit of OLAF, who was transferred to another unit of OLAF. In that regard, due to that change of unit, the applicant no longer has access to OLAF’s database or its internal secure network (see paragraph 100 above).
119    In addition, while it follows from the transfer decision of 24 March 2023 that the applicant’s grade was not affected, that decision, nevertheless, led to her post being changed as a result of her change of unit. In that regard, it is clear from the job description that the applicant, formerly an ‘investigator’, became a ‘policy officer’ and that the ‘overall purpose’ of her post changed from ‘investigate cases … including financial irregularities and serious misconduct’ to ‘contribute to the implementation of the Commission Anti-Fraud Strategy’. It is also apparent from those descriptions that her previous post and her new post both come under the ‘generic domain’ of anti-fraud and each require prior experience and expertise in anti-fraud.
120    Accordingly, where, as in the present case, a change of post entails a change of duties, it should be recalled that it is apparent from the case-law cited in paragraphs 115 and 117 above that compliance with the principle of equivalence of posts means, in the present case, confirming whether the applicant’s current duties are consistent with a post corresponding to her grade.
121    In that regard, the new duties entrusted to the applicant, which are listed in the job description, include, first, policy implementation tasks, in particular advising Commission services in drawing up and implementing their anti-fraud
strategies, secondly, policy coordination, in particular advising Commission services on anti-fraud related issues linked to Member States, and, thirdly, policy analysis, in particular, contributing to the meetings of the Commission’s Fraud Detection and Prevention Network.
122    Accordingly, it is clearly apparent from the description of those new duties that they represent a set of tasks which require a high degree of technical competence and entail an elevated level of responsibility, which correspond to the applicant’s AD 7 grade.
123    In addition, as regards the fact that the applicant no longer has access to OLAF’s database or its internal secure network on account of that change of duties, it must be noted that, even if that loss of access may be perceived by her as a reduction of her responsibilities, in accordance with the case-law cited in paragraph 116 above, the applicant perceiving it as such cannot in itself establish infringement by the competent appointing authority of the principle of equivalence of posts. Moreover, her new duties, given their scope, their complexity and the level of responsibility they entail (see paragraphs 121 and 122 above), do not bring about a reduction of her responsibilities and do not clearly fall short of duties corresponding to her grade and post.
124    For all of those reasons, it must be found that the applicant’s argument alleging infringement by the competent appointing authority of the principle of equivalence of posts must be rejected as unfounded.
(2)    The existence of a disguised penalty
125    As regards the alleged equivalence of the transfer decision of 24 March 2023 to a disguised penalty, it should, first of all, be borne in mind that, according to settled case-law, where a transfer or reassignment decision is found to be in the interests of the service and in conformity with the rule of equivalence of posts, according to which an official may be assigned only to a post corresponding to his or her grade in his or her function group, it cannot constitute a disciplinary measure (see, to that effect, judgments of 28 October 2004, Meister v OHIM, T‑76/03, EU:T:2004:319, paragraph 63 and the case-law cited, and of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 24) or be vitiated by a misuse of powers (judgment of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 24; see also, to that effect, judgments of 14 July 1983, Nebe v Commission, 176/82, EU:C:1983:214, paragraph 25, and of 17 November 1998, Gómez de Enterría y Sanchez v Parliament, T‑131/97, EU:T:1998:263, paragraph 62).
126    It follows that, where a transfer or reassignment decision has been taken in the interests of the service and in conformity with the principle of equivalence of posts, it cannot be regarded as involving a disguised disciplinary penalty against the official (see, to that effect, judgments of 28 October 2004, Meister v OHIM, T‑76/03, EU:T:2004:319, paragraph 130, and of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 60).
127    Furthermore, an assignment decision adopted in the interests of the service cannot be regarded as being, at the same time, a disciplinary decision if, first, it does not objectively have an adverse effect on the staff member’s professional position and if, secondly, it is not intended to censure the official concerned for a failure to comply with the rules of the Staff Regulations capable of giving rise to a disciplinary measure
(judgment of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 24; see also, to that effect, judgment of 27 January 1983, List v Commission, 263/81, EU:C:1983:17, paragraph 9).
128    In the present case, in accordance with the case-law cited in paragraphs 125 and 126 above, the transfer decision of 24 March 2023 cannot be regarded as a disguised disciplinary penalty, since it was taken in the interests of the service, to ensure the proper conduct of the investigation and in compliance with the principle of equivalence of posts (see paragraphs 102, 103 and 122 to 124 above).
129    In any event, the applicant does not provide any explanation or evidence capable of demonstrating that that decision was adopted on the basis of particular circumstances, indicating discriminatory treatment or a misuse of powers with respect to her, or that that decision objectively adversely affected her professional position. Furthermore, the applicant does not explain how the transfer decision of 24 March 2023 would represent a disciplinary measure in accordance with the case-law cited in paragraph 127 above.
130    Moreover, contrary to what the applicant claims, the fact that the transfer decision of 24 March 2023 states that she was transferred due to the ongoing investigation OC/2022/0394/A1 does not constitute an infringement of the principle of the presumption of innocence provided for in Article 9 of Regulation No 883/2013. It has already been held that a decision to reassign an official temporarily, while an OLAF investigation is ongoing, was not intended to penalise the official, but was a precautionary measure, the duration of which was restricted to that of OLAF’s investigation, and that, consequently, it did not infringe the principle of the presumption of innocence (see, to that effect, judgment of 2 May 2007, Giraudy v Commission, F‑23/05, EU:F:2007:75, paragraphs 143 and 147).
131    In addition, it must be found that the statement of reasons given in that decision, from which it is apparent that the transfer is a provisional and precautionary measure, does not entail any value judgment regarding the conduct of the applicant which prompted the investigation in question and at no point prejudges a disciplinary offence on her part.
132    As regards the alleged failure by the Commission to fulfil its duty to provide assistance in respect of the applicant in the face of retaliation which she had allegedly suffered in the form of the transfer decision of 24 March 2023, it should be borne in mind that, according to the case-law, the duty to provide assistance implies intervening with all necessary energy in the presence of an incident incompatible with the orderly and smooth running of the service. The purpose of the duty to provide assistance referred to in Article 24 of the Staff Regulations is to provide officials and other staff members in active employment with security for the present and the future so that, in the general interest of the service, they can perform their duties to the best of their ability (see judgment of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 100 and the case-law cited).
133    In the present case, in the light of the fact that the transfer decision of 24 March 2023 cannot be classified as a disguised penalty (see paragraphs 128 to 131 above), that decision cannot be regarded as constituting a retaliation against the applicant. Accordingly, the applicant’s argument alleging a failure of the Commission to fulfil its duty of assistance must be rejected as unfounded.
134    Lastly, as regards the applicant’s claim that the transfer decision of 24 March 2023 infringed the right to respect for her private life, it must be found that the applicant merely invoked that infringement without supporting that claim or presenting any evidence in support thereof which was capable of demonstrating the harm allegedly caused. Consequently, since it is not sufficiently supported, that argument must also be rejected.
(3)    The existence of a conflict of interests
135    As regards the alleged conflict of interests vitiating the content of the transfer decision of 24 March 2023, it should be borne in mind, first of all, that the need for impartiality, required of institutions, bodies, offices and agencies in carrying out their missions, is intended to guarantee equality of 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 agents acting on behalf of the institutions, bodies, offices and agencies of the European Union. 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 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 in that matter (see judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 26 and the case-law cited).
136    It is in the light of the foregoing that it is necessary to examine whether, in the present case, the competent appointing authority has infringed the principle of impartiality on account of a conflict of interests alleged by the applicant which, she argues, led to the alleged participation in investigation OC/2022/0394/A1 of officials involved in the adoption of the transfer decision of 24 March 2023.
137    In that regard, it must be noted that the transfer decision of 24 March 2023 was adopted solely by the Director of OLAF and that he also signed a letter dated that same day, addressed to the applicant, explaining that that decision had been adopted as a preventative measure pending the conclusion of investigation OC/2022/0394/A1. Furthermore, those two documents were delivered by hand to the applicant on 24 March 2023 by an OLAF Human Resources official. In addition, it is not apparent from the documents before the Court or from the decision of 24 March 2023 that the Director of OLAF had, in so doing, demonstrated a bias or a personal prejudice with regard to the applicant or that he had participated in that investigation.
138    Accordingly, it is clearly apparent from that information that none of the officials involved in investigation OC/2022/0394/A1 and, in particular, none of the investigators or officials who participated in the inspection carried out in the applicant’s office was involved in the drafting or adoption of the transfer decision of 24 March 2023 and that, consequently, none of them could have influenced the content of that decision.
139    Moreover, in those circumstances, it must be found that the applicant has still failed to provide any evidence and, accordingly, demonstrate how that decision and the decision rejecting the complaint revealed the existence of prejudices with respect to her following that investigation.
140    Consequently, in the light of the specific circumstances which led to the adoption of the transfer decision of 24 March 2023 as set out above, it must be found that the competent appointing authority offered sufficient guarantees of impartiality.
141    Therefore, the argument put forward by the applicant in that regard must be rejected as unfounded.
142    It follows from all of the foregoing that the second plea in law must be rejected in its entirety as unfounded.
(c)    The third plea in law, alleging the undermining of the applicant’s dignity and integrity
143    The applicant claims that the transfer decision of 24 March 2023 undermines her dignity and integrity as an official, thus infringing Articles 1 and 12 of the Staff Regulations and Article 12a(3) thereof.
144    The Commission does not respond to that argument in its pleadings.
145    In that regard, it should be borne in mind that a transfer decision does not constitute psychological harassment or establish a strategy of professional isolation with regard to an official, to the extent that, by complying with the principle of equivalence of posts and responding to the interests of the service, the rationale of that decision cannot be regarded, in and of itself, as undermining the personality, dignity or physical or psychological integrity of the official (see, to that effect, judgments of 19 October 2017, Bernaldo de Quirós v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 63, and of 18 May 2009, Meister v OHIM, F‑138/06 and F‑37/08, EU:F:2009:48, paragraph 116).
146    In the present case, since the transfer decision of 24 March 2023 was taken in the interests of the service (see paragraph 102 above) and complied with the principle of equivalence of posts (see paragraph 124 above), that decision cannot, in accordance with the case-law cited in paragraph 145 above, be regarded as undermining the applicant’s integrity and dignity as an official.
147    It follows that the third plea in law must be rejected as unfounded.
148    In the light of the foregoing, it is necessary to reject in their entirety the claims for annulment directed against the transfer decision of 24 March 2023, as confirmed by the decision rejecting the complaint.
E.      The claim for compensation
149    The applicant seeks compensation for the non-material and material damage she claims to have suffered due, in particular, to the adoption of the decision rejecting the complaint and a negative impact on her career and well-being.
150    With regard to the non-material damage, the applicant estimates that damage at EUR 25 000. She relies, in essence, on the permanent stigmatisation within her work environment
and damage to her professional reputation, to the detriment of her well-being and mental health. This is allegedly the consequence, in essence, of the non-compliance, by the competent appointing authority, with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and of the transfer decision of 24 March 2023, as confirmed by the decision rejecting the complaint, allegedly vitiated by irregularities and terminating her employment by forcing her to be transferred to a post within OLAF.
151    As regards the material damage, the applicant does not specify the amount which corresponds to that prejudice. Nevertheless, she claims, in essence, to have suffered damage resulting from legal fees and potential losses in career progression. She submits that the transfer decision of 24 March 2023 and the ongoing investigation OC/2022/0394/A1 harmed her career progression, which had a negative impact on her financial situation. In that regard, she claims that the damage resulting from that investigation, although it is still ongoing, is not hypothetical, since the irregularities affecting it are already capable of causing her harm.
152    The Commission disputes those arguments.
153    It should be borne in mind that it follows from settled case-law regarding claims for compensation in staff cases that the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the institution’s conduct must be unlawful, (ii) actual damage must have been suffered, and (iii) there must be a causal link between the conduct and the damage alleged. Those three conditions are cumulative, which means that if one of them is not satisfied, the European Union cannot be held liable (see, to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42).
154    Moreover, it is settled case-law that claims for compensation for material or non-material damage must be rejected to the extent that they are closely linked to the claims for annulment which have themselves been rejected as inadmissible or unfounded (judgments of 5 February 1997, Ibarra Gil v Commission, T‑207/95, EU:T:1997:12, paragraph 88, and of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 171).
155    In the present case, since the applicant’s request for annulment of the transfer decision of 24 March 2023, as confirmed by the decision rejecting the complaint, has been rejected in its entirety, the condition relating to the unlawfulness of the Commission’s alleged conduct is not satisfied, in accordance with the case-law cited in paragraph 153 above.
156    In that regard, in accordance with the case-law cited in paragraph 154 above, since the claims for annulment raised by the applicant have been rejected, the claim for compensation for the non-material and material damage must also be rejected.
157    In any event, as regards, more specifically, the applicant’s claim relating to the ‘legal fees’ she claims to have incurred, it must be borne in mind that an application seeking compensation for damage allegedly caused by an EU institution must state the evidence from which the conduct alleged against the institution may be identified, the reasons why the applicant considers that a causal link exists between that conduct and the damage which she claims to have suffered, and the nature and extent of that damage (see judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 53 and the case-law cited, and of 22 November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph 219 and the case-law cited; judgment of 2 October 2024, XH v Commission, T‑11/23, not published, appeal pending, EU:T:2024:665, paragraph 151).
158    In that regard, it must be held that the damage which the applicant alleges in that respect is imprecise. It is not possible to determine with certainty, first, whether the use of the term ‘legal fees’ refers to the fees which she allegedly incurred for her defence in the course of her various pre-litigation procedures and legal proceedings and, secondly, to specifically which of the former such fees allegedly relate. The applicant also does not specify how those fees are delimited in time. In addition, in the present case, the applicant does not identify in a precise manner the scope of the material damage for which she seeks compensation, since she merely states in that regard that ‘a provisional amount is to be suggested, but this should be carefully examined’.
159    Therefore, in accordance with the case-law referred to in paragraph 157 above, the claim for compensation for material damage referred to in paragraph 151 above, concerning the damage allegedly suffered on account of alleged legal fees, must be rejected as inadmissible on account of the failure to identify, in the application, the nature and extent of the material damage allegedly suffered.
160    Accordingly, the claim for compensation made by the applicant must be rejected and, consequently, the action must be dismissed in its entirety.
IV.    Costs
161    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.
162    Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders XH to pay the costs.
da Silva Passos
Półtorak
Pynnä
Delivered in open court in Luxembourg on 24 September 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
Table of contents
I.
Background and facts subsequent to the dispute
II.
Forms of order sought
III.
Law
A.
Subject matter of the action
B.
The admissibility of the offers of evidence made by the applicant, on 3 June, 29 August and 7 October 2024, after the present action was brought
C.
The admissibility of the action
D.
Claims for annulment
1.
The admissibility of the claims for annulment
(a)
The admissibility of the claim for annulment directed against the decision dismissing the irregularities vitiating investigation OC/2022/0394/A1
(b)
The admissibility of the claim for annulment directed against the decision refusing the request for assistance
(c)
The admissibility of the claim for annulment directed against the decision to refuse the use of documents
2.
The merits of the claim for annulment directed against the transfer decision of 24 March 2023
(a)
The first plea in law, alleging infringement of Article 7(1) of the Staff Regulations, breach of the duty to have regard for the interests of officials and disregard for the interests of the service
(b)
The second plea in law, alleging the existence of both a disguised penalty and a conflict of interests and infringement of the principle of equivalence of posts
(1)
The infringement of the principle of equivalence of posts
(2)
The existence of a disguised penalty
(3)
The existence of a conflict of interests
(c)
The third plea in law, alleging the undermining of the applicant’s dignity and integrity
E.
The claim for compensation
IV.
Costs
*      Language of the case: English.