Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 29 September 2022 ( )

Case C‑640/20 P

PV

v

European Commission

(Appeal – Civil service – Psychological harassment – Medical opinions – Unjustified absences – Remuneration – Staff Regulations of Officials of the European Union – Article 11a – Conflict of interests – Articles 21a and 23 – National criminal law – Disciplinary proceedings – Revocation – Withdrawal – Interest in bringing proceedings – New disciplinary proceedings – Fresh revocation)





I. Introduction

1. By his appeal, PV seeks to have set aside the judgment of the General Court of the European Union of 30 January 2020, PV v Commission (T‑786/16 and T‑224/18, not published, EU:T:2020:17; ‘the judgment under appeal’), by which the General Court dismissed his applications seeking to have it declared that he was the victim of psychological harassment and the European Commission ordered to pay compensation for the material and non-material damage which he claims to have suffered when he was an official of the Commission.

2. That appeal, which falls within the scope of EU civil service law, contains 10 grounds of appeal which challenge, in essence, the majority of the essential findings made by the General Court in the judgment under appeal with regard to PV’s claims for annulment. In accordance with the request of the Court of Justice, this Opinion will focus on the first two grounds of appeal and on the eighth ground. In examining those grounds of appeal, I shall analyse a series of new legal issues, namely the applicability of the criminal law of the Member States to EU officials, the obligation of impartiality within the civil service and the possibility of bringing an action before the General Court for annulment of an administrative decision after its withdrawal.

II. Legal framework

3. Article 11a of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), provides:

‘1. An official shall not, in the performance of his duties and save as hereinafter provided, deal with a matter in which, directly or indirectly, he has any personal interest such as to impair his independence, and, in particular, family and financial interests.

2. Any official to whom it falls, in the performance of his duties, to deal with a matter referred to above shall immediately inform the Appointing Authority. The Appointing Authority shall take any appropriate measure, and may in particular relieve the official from responsibility in this matter.

3. An official may neither keep nor acquire, directly or indirectly, in undertakings which are subject to the authority of the institution to which he belongs or which have dealings with that institution, any interest of such kind or magnitude as might impair his independence in the performance of his duties.’

4. Article 12a of the Staff Regulations provides:

‘1. Officials shall refrain from any form of psychological or sexual harassment.

2. An official who has been the victim of psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution. An official who has given evidence on psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution, provided the official has acted honestly.

3. “Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.

…’

5. The first paragraph of Article 19 of the Staff Regulations states:

‘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. 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. An official shall continue to be bound by this obligation after leaving the service.’

6. Article 21a of the Staff Regulations is worded as follows:

‘1. An official who receives orders which he considers to be irregular or likely to give rise to serious difficulties shall inform his immediate superior, who shall, if the information is given in writing, reply in writing. Subject to paragraph 2, if the immediate superior confirms the orders and the official believes that such confirmation does not constitute a reasonable response to the grounds of his concern, the official shall refer the question in writing to the hierarchical authority immediately above. If the latter confirms the orders in writing, the official shall carry them out unless they are manifestly illegal or constitute a breach of the relevant safety standards.

2. If the immediate superior considers that the orders must be executed promptly, the official shall carry them out unless they are manifestly illegal or constitute a breach of the relevant safety standards. At the request of the official, the immediate superior shall be obliged to give such orders in writing.

3. An official who informs his superiors of orders which he considered to be irregular or likely to give rise to serious difficulties shall not suffer any prejudice on that account.’

7. The first paragraph of Article 23 of the Staff Regulations provides:

‘The privileges and immunities enjoyed by officials are accorded solely in the interests of the Union. Subject to the Protocol on Privileges and Immunities, officials shall not be exempt from fulfilling their private obligations or from complying with the laws and police regulations in force.’

8. Article 24 of the Staff Regulations reads as follows:

‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.

It shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’

9. Article 59(1) and (3) of the Staff Regulations provides:

‘1. An official who provides evidence of being unable to carry out his duties by reason of illness or accident shall be entitled to sick leave.

The official concerned shall notify his institution of his incapacity as soon as possible and at the same time state his current address. He shall produce a medical certificate if he is absent for more than three days. This certificate must be sent on the fifth day of absence at the latest, as evidenced by the date as postmarked. Failing this, and unless failure to send the certificate is due to reasons beyond his control, the official’s absence shall be considered as unauthorised.

The official may at any time be required to undergo a medical examination arranged by the institution. If the examination cannot take place for reasons attributable to the official, his absence shall be considered as unauthorised as from the date that the examination is due to take place.

If the finding made in the examination is that the official is able to carry out his duties, his absence shall, subject to the following subparagraph, be regarded as unjustified from the date of the examination.

If the official considers the conclusions of the medical examination arranged by the Appointing Authority to be unjustified on medical grounds, he or a doctor acting on his behalf may within two days submit to the institution a request that the matter be referred to an independent doctor for an opinion.

The institution shall immediately transmit the request to another doctor agreed upon by the official’s doctor and the institution’s medical officer. Failing such agreement within five days of the request, the institution shall select a person from a list of independent doctors to be established for this purpose each year by common consent of the Appointing Authority and the Staff Committee. The official may within two working days object to the institution's choice, whereupon the institution shall choose another person from the list, which choice shall be final.

The independent doctor’s opinion given after consultation of the official’s doctor and the institution’s medical officer shall be binding. Where the independent doctor’s opinion confirms the conclusion of the examination arranged by the institution, the absence shall be treated as unjustified from the date of that examination. Where the independent doctor’s opinion does not confirm the conclusion of that examination, the absence shall be treated for all purposes as having been justified.

…

3. Without prejudice to the application of the rules on disciplinary proceedings, where appropriate, any absence considered to be unjustified under paragraphs 1 and 2 shall be deducted from the annual leave of the official concerned. In the event that the official has no outstanding leave entitlement, he shall lose the benefit of his remuneration for the corresponding period.’

10. The first paragraph of Article 60 of the Staff Regulations is worded as follows:

‘Except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period.’

11. Article 6(5) of Annex IX to the Staff Regulations provides:

‘The official concerned shall be entitled to reject one of the Board members within five days of the Board’s establishment. The institution shall also be entitled to reject one of the Board members.

Within the same time limit, Board members may ask to be excused from duty for legitimate reasons and shall withdraw if a conflict of interests exists.

…’

III. Background to the dispute, the procedure before the General Court and the judgment under appeal

A. Background to the dispute

12. The background to the dispute is set out in paragraphs 1 to 33 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.

13. PV, who had been an official of the Commission since 16 July 2007, was assigned to the Commission’s Directorate-General (DG) for Employment, Social Affairs and Inclusion until 30 September 2009.

14. Considering himself to be a victim of harassment, PV submitted, on 5 August 2009, a request for assistance on the basis of Article 24 and Article 90(1) of the Staff Regulations. That procedure was closed on 9 June 2010 following an investigation conducted by the Investigation and Disciplinary Office of the Commission, which concluded that the conditions set out in Article 12a(3) of the Staff Regulations for classifying particular conduct as psychological harassment had not been satisfied, and after PV’s transfer to the Commission’s DG Budget on 1 October 2009.

15. On 1 April 2013, PV was assigned to the ‘Budget and Financial Management’ Unit of the Commission’s DG Interpretation.

16. On 12 November 2013, the head of that unit lodged a disciplinary complaint against PV for behavioural problems, the failure to apply procedures in force and unsatisfactory performance.

17. From 8 May 2014 onwards, PV no longer showed up for work, considering himself to be a victim of psychological harassment, and sent medical certificates issued by the doctor treating him.

18. On 27 June and 10 October 2014, the Commission’s medical officers issued medical opinions stating that PV was fit to return to work. Subsequently, PV was summoned to medical examinations but did not respond to those summons.

19. On 23 December 2014, PV lodged a second request for assistance under Article 24 of the Staff Regulations. By decision of 12 March 2015, the appointing authority decided that there was no evidence of any psychological harassment against PV and concluded that the application of urgent measures to remove PV from his post were therefore not justified.

20. Taking the view that PV’s absences were unjustified, the Commission adopted several decisions to withhold PV’s salary.

21. On 10 July 2015, the Commission initiated disciplinary procedure CMS 13/087 against PV for repeated insubordination in the performance of his duties, inappropriate behaviour and unjustified absences.

22. By decisions of 31 May and 5 July 2016, the appointing authority found that PV’s absences for the periods from 5 February to 31 March 2016 and from 4 April to 31 May 2016 were unauthorised.

23. By decision of 11 July 2016, the Office for the Administration and Payment of Individual Entitlements (PMO) decided to suspend payment of the applicant’s salary with effect from 1 July 2016.

24. By decision of the appointing authority of 26 July 2016, adopted in the wake of the findings in disciplinary procedure CMS 13/087, PV was removed from his post with effect from 1 August 2016 (‘the removal decision of 26 July 2016’). PV lodged a complaint against that decision which was rejected by decision of the appointing authority of 2 February 2017.

25. By memorandum of 31 July 2016, the Director-General of DG Interpretation informed PV of his intention to consider PV’s absences from 2 June to 31 July 2016 as unauthorised and to make the corresponding deductions from his salary. The complaint lodged by PV against that memorandum was rejected by decision of the appointing authority of 17 January 2017.

26. By pre-information letter of 21 September 2016, PMO informed PV that he owed the Commission a debt of EUR 42 704.74, corresponding to his unjustified absences. The complaint lodged by PV against that decision was rejected by decision of the appointing authority of 17 January 2017.

27. On 24 July 2017, the appointing authority withdrew its removal decision of 26 July 2016 and PV was informed, by memorandum from the Director-General of DG Human Resources and Security, that, on 16 September 2017, he would be reinstated within the ‘IT and conference systems’ Unit of DG Interpretation. The complaint lodged by PV against the decision withdrawing his removal from his post was rejected by decision of the appointing authority of 15 January 2018.

28. By memorandum of 12 September 2017, the Director of PMO offset the amounts owed to PV for the period during which he had been removed from his duties against his debts to the Commission, which resulted in a payment of EUR 9 550 to PV. The complaint lodged by PV against that compensation memorandum was rejected by decision of the appointing authority of 9 March 2018.

29. On 20 September 2017, PV was informed that his absences since 16 September 2017 were considered to be unauthorised.

30. On 6 October 2017, the Commission initiated disciplinary procedure CMS 17/025, in respect of the same complaints as those covered by disciplinary procedure CMS 13/087. The complaint lodged by PV against the initiation of the new disciplinary procedure was rejected by decision of the appointing authority of 2 May 2018.

31. On 13 October 2017, the Commission adopted a decision to set PV’s salary at zero with effect from 1 October 2017.

32. By email of 15 November 2017, PV was invited to participate in appraisal exercise FP 2016. The complaint lodged by PV against that invitation was rejected by decision of the appointing authority of 16 March 2018.

33. By email of 22 February 2018, PV was invited to participate in appraisal exercise FP 2017. The complaint lodged by PV against that invitation was rejected by decision of the appointing authority of 1 June 2018.

34. By decision of 21 October 2019, the Commission removed PV from his post, in the wake of the findings of disciplinary procedure CMS 17/025. That removal came into effect on 1 November 2019.

B. Procedure before the General Court and the judgment under appeal

35. By application lodged at the Registry of the General Court on 17 December 2017, after having been granted legal aid by the President of the General Court, PV brought an action before the General Court seeking annulment of several acts and an order that the Commission pay him EUR 889 000 and EUR 132 828.67 in compensation for the alleged non-material and material damage, respectively.

36. In support of that action, PV put forward five pleas in law inter alia alleging, first, infringement of Article 12a of the Staff Regulations, second, infringement of Articles 11a, 21a and 23 of the Staff Regulations and of the principles of legality and validity of administrative measures, third, infringement of the principle of the duty of care and of the duty to provide assistance laid down in Article 24 of the Staff Regulations and, fourth, infringement of Articles 59 and 60 of the Staff Regulations.

37. By application lodged at the Registry of the General Court on 11 April 2018, PV brought an action before the General Court seeking a declaration that he had been a victim of psychological harassment, the annulment of other acts and an order that the Commission pay him EUR 98 000 and EUR 23 190.44 in compensation for the alleged non-material and material damage, respectively.

38. In support of that action, PV put forward seven pleas in law inter alia alleging, first, infringement of Article 12a of the Staff Regulations, second, infringement of Articles 21a and 23 of the Staff Regulations and of the principles of legality and validity of administrative measures, third, infringement of Article 11a of the Staff Regulations and of Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), fourth, infringement of the principle of the duty of care and, fifth, infringement of the principle of non-performance and of the principle of legality.

39. By the judgment under appeal, the General Court dismissed the actions brought by PV in their entirety.

40. The General Court, in the first place, found that PV’s claims that the General Court should find that he had been the victim of psychological harassment and those seeking annulment of, inter alia, the removal decision of 26 July 2016 and the decisions challenged in the alternative in Case T‑786/16, including decisions to withhold his salary, decisions rejecting requests for assistance and medical opinions for unjustified absences were inadmissible.

41. The General Court, in the second place, dismissed as unfounded the claims for annulment in both actions.

42. It took the view, first of all, that the acts of psychological harassment alleged by PV had not been established to the requisite legal standard.

43. The General Court, in the third place, rejected PV’s arguments relating to the infringement of Articles 11a, 21a and 23 of the Staff Regulations and of the principles of legality and validity of administrative measures, the principle of the duty of care and of the duty to provide assistance laid down in Article 24 of the Staff Regulations, of Articles 59 and 60 of the Staff Regulations and of the principles of non-performance and of legality.

44. The General Court, in the fourth place, rejected PV’s claims for compensation, taking the view that they were based, in essence, on the alleged illegality of the decisions that were the subject of the actions for annulment and whose illegality had not been established.

IV. The procedure before the Court of Justice and the forms of order sought

A. The procedure before the Court

45. In accordance with Article 76(2) of the Rules of Procedure, the Court has decided to proceed without a hearing.

B. Forms of order sought

46. The appeal was lodged by PV on 23 November 2020 and was entered in the Court Register on 30 November 2020. PV claims that the Court should:

– set aside the judgment under appeal;

– rule on the dispute; and

– order the Commission to pay the costs of the proceedings at both instances.

47. The Commission lodged a response on 22 April 2021, entered in the Court Register on 23 April 2021, in which it contends that the Court should:

– dismiss the appeal; and

– order PV to pay the costs.

V. Legal assessment

A. Preliminary observations

48. As I have stated in the introduction, this Opinion will focus on the first two grounds of appeal and on the eighth ground of appeal. The legal issues to be examined concern, in essence, the applicability of the criminal law of the Member States to EU officials, the obligation of impartiality within the civil service and the possibility of bringing an action before the General Court for annulment of an administrative decision after its withdrawal. Examining those legal issues in the light of the specific context of the present case appears to be essential for the resolution of the dispute.

49. In view of the complexity of the facts of the present case, it seems sensible to recall, as a preliminary point, the rules governing the appeal procedure. In accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. As is confirmed by settled case-law, the General Court has exclusive jurisdiction, first, to establish the facts and, second, to assess those facts. By contrast, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Therefore, the appraisal of the evidence by the General Court does not constitute a point of law which is subject as such to review by the Court of Justice. ( )

50. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them. Exceptionally, the Court of Justice may review the General Court’s assessment of the facts where an appellant alleges distortion of the evidence by the General Court. ( ) In such a case, the appellant must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his or her view, led to such distortion. As is apparent from the case-law, there will be distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. ( )

51. Those preliminary remarks are particularly significant in the present context, given that PV is challenging the assessment of various facts as well as certain conclusions drawn by the General Court. I refer, in particular, to the alleged psychological harassment by other officials which PV claims to have suffered in the course of his duties, without however having succeeded in proving it at first instance. In that regard, it should be noted that the General Court found in its judgment, without erring in law, that the information provided by PV did not support a conclusion as to the existence of such psychological harassment. ( ) Moreover, I should point out that the General Court stated, rightly, that a number of the measures alleged against the Commission and perceived by PV as being capable of constituting harassment, such as the suspension of his salary on account of unauthorised absence and the appraisal of the ability, efficiency and conduct in the service of each official are expressly provided for in the Staff Regulations. ( ) It is clear that, in the absence of evidence to the contrary, the legality of those measures cannot seriously be called into question.

52. Consequently, while PV challenges the grounds of the judgment under appeal, the appeal procedure cannot however be appropriated in order to oblige the Court of Justice to reassess the facts itself. On the contrary, in view of the clear division of jurisdiction between the EU Courts, described in the preceding points, it is essential to limit the examination of the appeal to a strict analysis of the legal issues raised before the Court of Justice.

B. The first ground of appeal

1. Arguments of the parties

53. By his first ground of appeal, PV criticises the assessment made by the General Court, in paragraphs 184 and 185 of the judgment under appeal, of the arguments put forward at first instance concerning infringement of Articles 21a and 23 of the Staff Regulations.

54. In the first place, he claims that the General Court infringed Article 2 TEU and Article 67(3) and Article 270 TFEU by holding, in paragraph 185 of the judgment under appeal, that the employment relationship between an official and his institution is governed exclusively by the Staff Regulations, when other sources of law are relevant, in particular the criminal law of the Member State in which the staff member concerned works. Thus, any criminal offence committed by a staff member constitutes an infringement of Article 23 of the Staff Regulations. Psychological harassment, the forgery of public documents, false medical opinions and corruption constitute offences under the Belgian Criminal Code.

55. In the second place, he alleges that the General Court distorted the facts by omission by failing to take account of a number of crucial elements. PV cites, first of all, the orders of the Belgian investigating judge instructing the hearing, under the ‘Salduz III’ regime, of a number of Commission officials involved in the adoption of certain contested measures, which demonstrate that those persons are regarded as suspects in the acts complained of. He then refers to the seizure of disciplinary file CMS 17/025 by the investigating judge as evidence of the offence of ‘forgery of public documents’ which allegedly took place on 19 September 2018.

56. In the third place, PV claims that the General Court erred in law by finding, in paragraph 184 of the judgment under appeal, that only a conviction could establish acts of psychological harassment or forgery and by refusing to take account of the orders adopted in the context of the Belgian investigation relating to those acts.

57. The Commission submits, first, that PV’s complaint alleging that the General Court erred in law in paragraph 185 of the judgment under appeal stems from a misreading of that judgment. The General Court merely pointed out, in that paragraph, that the employment relationship between an official and his or her institution is governed by the Staff Regulations and that the General Court applies only civil service law and not any national law.

58. Second, it submits that the General Court noted, without any distortion of the facts, that the Belgian courts did not rule on the facts alleged by PV. In that regard, the summoning of a number of Commission officials to a hearing under the ‘Salduz III’ regime in no way constitutes an admission of their guilt. Moreover, it states that the General Court did not distort the facts by not drawing any conclusions from the alleged seizure of disciplinary file CMS 17/025 by a Belgian investigating judge, at PV’s initiative, which in no way supports the inference that a ‘forgery of public documents’ was established.

59. Third, the Commission contends that the General Court was right to find that criminal complaints under investigation did not demonstrate the existence of psychological harassment or forgery of documents.

2. Assessment

60. By his first ground of appeal, PV submits that the General Court erred in law in holding, in paragraph 185 of the judgment under appeal, that the employment relationship between an official and his or her institution is governed ‘exclusively’ by the Staff Regulations. The reasoning developed by the General Court in that paragraph consists in ruling out, on the basis of Article 270 TFEU, any relevance of national law and, in particular, of criminal law, in the examination of whether the appointing authority infringed Articles 21 and 23 of the Staff Regulations in adopting the decisions contested at first instance. According to PV, however, the General Court disregarded ‘the other sources of law’ governing the employment relationship and in particular the criminal legislation of the Member State in which the official is employed.

61. In that regard, it should be recalled that PV had maintained before the General Court that the decisions at issue are vitiated by illegality on the ground that they are based on acts constituting criminal offences committed by Commission officials and servants in Belgian territory. PV had argued that, under Article 21a(2) of the Staff Regulations, an official or servant of the European Union must refuse to commit unlawful acts and that, in accordance with Article 23 of the Staff Regulations, he or she is bound to comply with the police laws of the country in which he or she works. That is why PV takes the view that the appointing authority ought to have taken account of the decisions taken by the Belgian judicial authorities following the complaints brought in civil proceedings that he had lodged against many persons.

(a) The rules of civil service law in the EU legal order

62. At the outset, it should be noted that, as PV states in his observations, the rules of law governing the civil service are found at all levels of the hierarchy of norms of the EU legal order, namely in primary law, in general principles and in secondary law. In that context, the precious contribution which the case-law of the Court of Justice and the General Court makes to the rules applicable to officials and other servants must certainly not be forgotten. Their judgments are binding on the institutions under Article 266 TFEU. That being said, it is codified law and its interaction with national legal orders which is of paramount importance for the purposes of examining the first ground of appeal.

(1) Primary law and general principles of law

63. Primary law is composed mainly of the founding Treaties and their protocols, as well as the Charter. Many fundamental principles enshrined in the Treaties are binding on officials in the performance of their duties. These include, for example, the values and objectives of the European Union, set out in Articles 2 and 3 TEU respectively. Moreover, under Article 298(1) TFEU, the institutions, bodies, offices and agencies of the European Union are to have the support of an open, efficient and independent European administration in carrying out their missions. By contrast, other provisions of primary law require the adoption of secondary legislation by the institutions in order to find concrete expression. Such is the case with Article 336 TFEU, which provides that the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure and after consulting the other institutions concerned, are to lay down the Staff Regulations and the Conditions of Employment of other servants of the European Union.

64. Article 270 TFEU confers on the Court of Justice of the European Union jurisdiction in any dispute between the European Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the Conditions of Employment of other servants of the European Union. Article 340 TFEU provides that the European Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties and that the personal liability of its servants towards the European Union is to be governed by the provisions laid down in their Staff Regulations or in the Conditions of Employment applicable to them. More specifically, Article 339 TFEU places officials of the European Union under an obligation not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.

65. In accordance with Article 51 TEU, the protocols have the same legal value as the Treaties and therefore form an integral part of primary law. Of them, Protocol No 7 on the Privileges and Immunities of the European Union (‘Protocol No 7’) refers directly to officials and to other servants in several of its provisions and dedicates Chapter V to them. That protocol contains essential provisions for the civil service, in particular as regards tax and jurisdictional immunity, to which I shall return later in my analysis. ( )

66. The Charter, which, in accordance with Article 6(1) TEU, has the same legal value as the Treaties, applies to all secondary EU legislation, which includes in particular the Staff Regulations. Officials enjoy the rights protected by the Charter and must in turn respect the fundamental rights of citizens in the performance of their duties. In that regard, Article 41 of the Charter, which enshrines the right to good administration, is of particular importance. ( )

67. In the course of the European integration process, the Court has identified numerous general principles of EU law. In civil service matters, those principles essentially relate to the fundamental rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). Under Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the European Union’s law. Before the Charter entered into force, the ECHR was an essential source of protection for citizens, including officials.

68. While it is true that the Charter now plays a more prominent role, the fact remains that the EU Courts continue, where necessary, to refer to the ECHR and to the case-law of the European Court of Human Rights to interpret the provisions of the Charter or even to supplement the protection guaranteed by those provisions. The ECHR has not lost its importance for the development of EU law since Article 52(3) of the Charter provides that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights must be the same as those laid down by the said convention, without that preventing EU law from providing more extensive protection.

(2) Secondary legislation

69. The Staff Regulations lay down in detail the rules applicable to officials working within the EU institutions as regards, inter alia, recruitment, career progression, working conditions, rights and obligations, emoluments and disciplinary measures. ( ) The Staff Regulations have the legal form of a regulation, which means that they are binding in their entirety and are binding on the institutions and bodies of the European Union as well as on the Member States. As the Court of Justice has emphasised in its case-law, ‘it follows that, in addition to the effects of the Staff Regulations within the EU administration, they also place an obligation on the Member States to the full extent to which their cooperation is necessary for the implementation of those regulations’, ( ) which means that, where a provision of the Staff Regulations requires national measures for its application, ‘the Member States are bound … to adopt all appropriate measures, whether they be general or particular’. ( )

70. The legal rules which apply to the relationship between an official and his or her institution are determined by the provisions of the Staff Regulations laid down by regulation, which means that they may be amended by the Parliament and the Council if necessary. At issue, therefore, is an employment relationship governed by public law, the management of which by the relevant institution constitutes a case of direct administration, which means that all decisions likely to affect the official are adopted by it unilaterally, following the rules and procedures laid down by the Staff Regulations or by general implementing provisions, and constitute administrative measures. The Staff Regulations apply in their entirety to an official of the European Union, in other words, any person who has been appointed, as provided for in those regulations, to an established post on the staff of one of the institutions of the European Union by a written instrument of the appointing authority.

71. While the Staff Regulations are the central text of secondary EU civil service legislation, ( ) there are also other measures which implement the various provisions of the Staff Regulations and govern, inter alia, the tax regime, language rules, protection of personal data, arrangements for issuing laissez-passers and recruitment during enlargements. That area is characterised by a heterogeneity of norms implementing or interpreting the provisions of the Staff Regulations. In general, a distinction is made between measures expressly provided for by the Staff Regulations and sui generis measures. That being said, an exhaustive list of those measures would exceed the scope of this Opinion and go beyond my objective. However, it is important to bear in mind, at this stage of the analysis, that, notwithstanding the heterogeneity of normative measures, the principle of a single system of rules requires that implementing provisions be the same in all the institutions and that excessively divergent interpretations be avoided. That requirement is in the interest of guaranteeing a single European civil service, established as a principle by Article 9(3) of the Treaty of Amsterdam, ( ) of which Articles 1 and 1a of the Staff Regulations are the expression.

(b) The impact of national law on the European civil service

(1) The independence of the European Union in the management of the civil service

72. It is clear from the points I have just made that the EU legal order has its own rules governing the relationship between an official and his or her institution, which have for the most part been codified in the Staff Regulations. That is why several provisions, even of primary law, ( ) make reference to them, such as Article 270 TFEU specifically, cited by the General Court in the judgment under appeal in recalling the exclusive jurisdiction of the EU Courts to resolve disputes in civil service matters. ( )

73. By virtue of its organisational autonomy, the EU administration is largely independent of national legal orders, which does not preclude the possibility that certain norms may need to be implemented by the EU institutions themselves or by the Member States in order to ensure the proper functioning of the European Union as a supranational organisation. However, that aspect alone is not sufficient to be able to claim that national law determines in some way the functioning of the EU administration. Such a claim would be erroneous given the clear intention of the founders of the European Union to create an ‘independent’ European civil service within the meaning of Article 298(1) TFEU, which is also reflected in the legal nature of its rules and the institutional structure of that supranational organisation. ( )

74. Viewed from that perspective, the General Court’s assertion in paragraph 185 of the judgment under appeal, according to which ‘the employment relationship between an official and his or her institution is governed exclusively by the Staff Regulations’, is not legally incorrect. First, it is questionable whether, in view of the multitude of sources of civil service law, the use of the adverb ‘exclusively’ in that context is sufficiently precise from a legal point of view. Second, such an assertion appears to be perfectly justified in the light of the aforementioned principle of a single set of Staff Regulations, by virtue of which all officials of all EU institutions are subject to one set of Staff Regulations and, thus, to the same provisions. In the first place, it is indisputable that the Staff Regulations constitute the central element of a body of law composed of various legal norms. In the second place, it is clear that all Commission officials – PV included – are subject to the rules of the Staff Regulations. Consequently, I am of the view that paragraph 185 of the judgment under appeal must be understood as meaning that the General Court’s objective was to reiterate that the rules of the Staff Regulations are intended to apply to Commission officials, which cannot be disputed from a legal point of view.

75. PV complains that the General Court erred in law by failing to recognise the relevance of national criminal law. According to PV, the decisions contested at first instance could not have been adopted since they are not in conformity with Belgian criminal law. However, it should be noted that the General Court referred only to the ‘employment relationship between an official and his or her institution’ which, in fact, is governed by the Staff Regulations. The present case concerns a dispute which relates exclusively to the EU civil service and to PV’s professional activity within the Commission.

76. Therefore, the question to be examined is not whether Belgian criminal law might apply in the present case. The EU Courts have no jurisdiction to interpret Belgian criminal law. An action seeking the interpretation of national law would be manifestly inadmissible. It seems to me that that is precisely what the General Court wished to express by the reference to Article 270 TFEU. It should also be noted that national courts do not have jurisdiction to rule on the interpretation of the rules of the Staff Regulations, either, which underlines the independence of the European Union in the management of the civil service.

(2) The relationship between criminal and disciplinary proceedings

77. Notwithstanding those considerations, it is true that, in accordance with the first paragraph of Article 23 of the Staff Regulations, officials of the European Union are obliged to ‘[comply] with the laws and police regulations in force’, which clearly includes criminal law. A violation of the said laws and regulations of the State in which the institution has its seat may require the immunity of an official to be waived, in accordance with Article 17 of Protocol No 7, in order to allow criminal investigations to be carried out against him or her where appropriate. As the Court clarified in the judgment in Commission v RQ, ( ) ‘a decision to waive the immunity of an official … alters that official’s legal position, simply because it removes the protection conferred on that official by the immunity from legal proceedings provided for in Article 11(a) of Protocol No 7, re-establishing his or her status as a person who is subject to the general law of the Member States and laying him or her open, without the necessity for any intermediary measure, to measures, inter alia those ordering detention and the bringing of legal proceedings, imposed by the general law’. ( )

78. That being said, it should nevertheless be noted that the conduct of PV as an official, at issue in the present case, was not the subject of a criminal investigation by the Belgian judicial authorities. It is rather PV who is accusing his colleagues of having violated Belgian criminal law. Moreover, the General Court itself draws attention to that fact in paragraph 187 of the judgment under appeal. Consequently, it is not clear what impact the purported intention of Belgian criminal law to apply to third parties may have on his own status as an official.

79. In addition to those doubts as to the relevance of national criminal law in the present dispute, it should be noted that that law will generally have only an indirect impact on the employment relationship between an official and his or her institution by reason of its specific purpose. Criminal proceedings concern compliance with rules for the maintenance of law and order which are enacted in order to guarantee the proper functioning of society as a whole. ( ) However, they are not intended to govern the employment relationship of an official within an institution of the European Union.

80. It must however be recognised that a violation of criminal law may, in certain circumstances, have an impact on the employment relationship and give rise to a disciplinary penalty, in particular where the offence is committed by the official in the performance of his or her duties and adversely affects the interests of the European Union. In so far as the objective of disciplinary proceedings is to ensure compliance with the rules which guarantee the proper functioning of the institution, ( ) the initiation of such proceedings may prove justified due to the circumstances of the case.

81. In that regard, it must be noted, however, that, even though conduct may violate both criminal and disciplinary rules, it is the Staff Regulations that determine the consequences to be drawn from such conduct. The disciplinary penalty is assessed in relation to the disciplinary system and not in relation to the criminal penalty. Accordingly, the disciplinary authority cannot be obliged, when choosing the appropriate disciplinary penalty, to take into account without reservation the criminal penalties adopted in criminal proceedings involving the same person. ( ) That follows from the different purposes of criminal and disciplinary proceedings, but also from the independence of the European Union in the management of the civil service.

82. For the reasons set out above, it must be found at this stage of the analysis that national criminal law does not determine the functioning of the European civil service, contrary to what PV seems to imply in his written observations.

(3) The presumption of innocence in criminal proceedings

83. Moreover, I would like to point out that the question whether Belgian criminal law is intended to apply to other officials – who PV claims have committed offences – appears to be irrelevant to the resolution of the present dispute, as I shall explain below. First, it is common ground that the General Court did not establish any cases that could be considered as psychological harassment and there is nothing to support the conclusion that the General Court distorted the facts in its assessment of the evidence. ( ) Second, there is also nothing to indicate that the alleged criminal offences were actually committed, since the Belgian courts have not given a final ruling on those charges.

84. All that PV can present by way of evidence are orders for a hearing which the Belgian courts adopted in respect of certain officials. However, it should be noted that such a judicial measure does not constitute ‘evidence’ in the legal sense since the presumption of innocence persists in the absence of conviction. The presumption of innocence is enshrined in Article 48 of the Charter, which corresponds to Article 6(2) and (3) of the ECHR. ( ) At the level of secondary EU law, the presumption of innocence is enshrined in Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, ( ) which the Member States, including the Kingdom of Belgium, are obliged to transpose into their national legal orders.

85. The status of ‘suspect’ which PV’s colleagues have been given under Belgian criminal procedure law takes into account that presumption of innocence. More specifically, the status of ‘suspect’ generally confers on the person subject to an investigation certain rights in his or her defence vis-à-vis the judicial authorities, such as the right to the assistance of a lawyer and the right to be informed of the accusation made against him or her, as is established by Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. ( ) For that reason, the legal orders of the Member States have in common the fact that they make a clear distinction as to the status of the person concerned in criminal proceedings. That status changes according to the actual level of suspicion in respect of the person alleged to have committed an offence. ( )

86. For the sake of completeness, it should be noted in that context that civil service law takes account of the presumption of innocence in so far as Article 25 of Annex IX to the Staff Regulations expressly provides that, where the official is prosecuted for acts which justified the initiation of disciplinary proceedings, a final decision is to be taken only after a final judgment has been handed down by the court hearing the case. That rule is also explained by the fact that criminal courts have greater investigative powers than the appointing authority within the administration. It follows from the foregoing that the presumption of innocence as a guarantee of a fair trial must be taken into account in both criminal and disciplinary matters.

87. As far as the circumstances of the present case are concerned, everything appears to indicate that the criminal investigations are still at a preliminary stage such that it is not known whether the suspicions will be substantiated. The measures taken by the Belgian courts at this stage, to which PV refers, serve only to gather the necessary evidence. Moreover, it should be noted that the ‘Salduz law’, referred to by PV in his observations, affords rights and guarantees to any person heard by the judicial authorities in whatever capacity, in accordance with the principles of a fair trial. ( ) It follows that no conclusion as to the alleged guilt of the officials heard by the Belgian judicial authorities can be drawn from the application of the provisions of that law until the criminal proceedings have come to an end. Furthermore, I should emphasise that, contrary to what PV appears to suggest in his observations, he cannot ‘build’ that evidence simply by lodging complaints against the officials concerned, but it is rather the judicial authorities that must assess the facts and establish whether the evidence gathered constitutes valid proof.

88. In that regard, it should be noted that the judicial authorities, in general, are obliged to ensure that investigations aim to establish the truth and be carried out for the benefit of both the prosecution and the defence, in other words, they must seek evidence both of the innocence and of the guilt of the accused person. ( ) Accordingly, the judicial authorities will conduct prosecutions only if there is sufficient evidence at the end of the investigation. ( ) PV’s line of argument, which implies that the officials concerned are guilty solely on the ground that they are the subject of investigations, therefore, seems to me to be based on a misunderstanding of the principles of criminal procedure.

(c) Final observations

89. For the reasons set out above, relating in particular to the independence of the European Union in the management of the civil service and to the fact that national criminal law is of no relevance in the circumstances of the present case, I consider it necessary to reject PV’s line of argument according to which the decisions contested at first instance are vitiated by illegality on the ground that they are based on acts constituting criminal offences committed by Commission officials in Belgian territory and that the appointing authority was obliged, under Belgian criminal law, not to adopt them.

90. The statement by the General Court in paragraph 185 of the judgment under appeal that ‘the employment relationship between an official and his or her institution is governed exclusively by the Staff Regulations’ does not reveal any error of law in so far as it must be understood as rejecting PV’s line of argument claiming, in essence, that national criminal law takes precedence over EU civil service law or that national criminal law is, at the very least, a ‘source’ of EU civil service law. As that line of argument is based on a misunderstanding of EU law, it must be rejected.

3. Interim conclusion

91. In the light of the foregoing considerations, I propose that the first ground of appeal be rejected as unfounded.

C. The second ground of appeal

1. Arguments of the parties

92. By his second ground of appeal, PV criticises the assessment made by the General Court in paragraphs 184 and 192 of the judgment under appeal.

93. In the first place, PV submits that the General Court’s finding, in paragraph 184 of the judgment under appeal, that none of the acts described by PV as psychological harassment or intellectual forgery has been characterised as such or has been the subject of a criminal conviction by a Belgian national court, can be explained by the Commission’s ‘sabotage’ of the criminal investigations. He claims that the Commission abused functional immunity by systematically refusing to authorise the hearing of suspects, in breach of the principle of sincere cooperation laid down in Article 4 TEU, when no act of public authority was at issue.

94. In the second place, PV claims that the General Court distorted the file in paragraph 192 of the judgment under appeal, by basing its rejection of his complaint alleging infringement of Article 11a of the Staff Regulations on the finding that a mere complaint lodged by the official against the persons responsible for taking decisions in his regard could not in itself create a conflict of interests on their part, even though the complaints lodged by PV against two of the three members of the appointing authority were followed by criminal investigations. According to PV, that factor should have led the General Court to find that there was a conflict of interests on the part of those members of the appointing authority in disciplinary procedure CMS 13/087 and CMS 17/025 and the removal decision of 21 October 2019 at the end of the latter disciplinary proceedings. Therefore, the General Court should have found an infringement of Article 41 of the Charter, of Article 11a of the Staff Regulations and of Article 6(5) of Annex IX to the Staff Regulations.

95. According to the Commission, the complaint alleging a lack of sincere cooperation with the Belgian judicial authorities on account of its systematic refusal to authorise the hearing of suspects by an investigating judge is new and the General Court cannot therefore be criticised for not having ruled on that matter. In the alternative, the Commission considers that it was justified in refusing the requests of the Belgian judicial authorities based on Article 19 of the Staff Regulations.

96. With regard to the complaint alleging infringement of Article 11a of the Staff Regulations, the Commission submits that PV does not criticise the case-law on which the General Court relied, but relies on factual considerations which render that complaint inadmissible and which, in any event, are not capable of calling into question the conclusion reached by the General Court in paragraph 192 of the judgment under appeal. Moreover, that complaint is directed against two procedures which the General Court expressly excluded from its review, the first having resulted in a removal decision which was subsequently withdrawn and the second being the subject of separate litigation.

2. Assessment

97. The examination of the second ground of appeal will focus on the General Court’s reasoning, in paragraph 192 of the judgment under appeal, by which it rejected PV’s argument that two of the three members of the appointing authority who adopted the decisions contested at first instance had a conflict of interests since they were all implicated in the criminal proceedings initiated in Belgium for harassment or forged public documents. PV alleges infringement of the principle of impartiality guaranteed by Article 41(1) of the Charter and of Article 11a of the Staff Regulations. He also considers that the General Court’s finding, according to which the fact that the persons in question are implicated in the proceedings mentioned is not sufficient to call into question their impartiality, must be regarded as a distortion by misrepresentation of the facts, in so far as the General Court took the view that the proceedings in question stemmed from complaints lodged by the applicant in order to evade the disciplinary proceedings.

(a) The concept of ‘impartiality’ in civil service law

98. At the outset, it should be noted that Article 41(1) of the Charter states that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union. The requirement of impartiality is intended to guarantee the equality of treatment on which the European Union is founded. I would also like to recall that the Court of Justice has recently confirmed, in the judgment in Parliament v UZ, that the requirement of impartiality applies also in the context of the civil service. ( ) In that context, I should like to refer to my Opinion in that case, in which I stated that, ‘since both the internal functioning and external reputation of the institutions and bodies depend on compliance with that requirement, it must necessarily extend to all areas of activity of the EU administration, including matters relating to the management of the civil service, such as the appointment, promotion and disciplining of staff’. ( ) Therefore, there is no doubt in my mind that the requirement of impartiality applies in disciplinary proceedings such as those at issue in the present case.

99. Article 11a of the Staff Regulations, on which PV relies in his observations, contains specific rules designed to ensure that an official can carry out his or her duties without conflicts of interest interfering with the fulfilment of his or her mission. ( ) According to paragraph 1 of that article, an official must not, in the performance of his or her duties, deal with a matter in which, directly or indirectly, he or she has any personal interest such as to impair his or her independence, and, in particular, family and financial interests. In view of the fact that those rules are an expression of the requirement of impartiality in the broad sense, I consider it necessary to interpret them in the light of the concept of ‘impartiality’ as it is apparent from the case-law of the Court of Justice. That seems to me to be precisely the approach that the General Court took when it indicated, in paragraph 190 of the judgment under appeal, that Article 11a of the Staff Regulations ought to be given ‘a broad scope, having regard to the fundamental nature of the objectives of independence and integrity pursued by that provision and the general nature of the obligation imposed on officials and servants’ (emphasis added).

100. The Court of Justice relies in its case-law on a concept of ‘impartiality’ that has two components: on the one hand, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice and, on the other, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned. In that regard, the Court has made it clear that, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient that a legitimate doubt in that regard exist and cannot be dispelled. ( ) It is in the light of the foregoing considerations that the General Court’s reasoning should be assessed.

101. As regards objective impartiality, it should be noted that the General Court, after having set out in paragraphs 180 and 191 of the judgment under appeal the arguments put forward by the applicant concerning the existence of a conflict of interests on account of the implication in the criminal proceedings for harassment or forgery of public documents of the persons who had taken the decisions in the disciplinary proceedings initiated against him, found, in paragraphs 193 and 194 of that judgment, that those arguments were not supported by any evidence. Moreover, it should be noted that, in the present appeal, PV has not adduced any evidence to substantiate that aspect further.

102. Consequently, as I have already indicated, ( ) I consider it necessary to start from the premiss that no psychological harassment has occurred in this case. The same applies to the allegation of the commission of criminal acts made against the members of the tripartite appointing authority, given that the criminal proceedings initiated in Belgium did not lead to a criminal conviction, an aspect which the General Court rightly highlighted in paragraph 184 of the judgment under appeal. As the persons concerned are entitled to rely on the presumption of innocence, it is clear to me that the lodging of a mere complaint is not in itself sufficient to raise doubts as to the impartiality of the members, in the absence of other evidence indicating a conflict of interests. To conclude otherwise would amount to calling into question the right to the presumption of innocence, as a guarantee of a fair trial, and to reversing the burden of proof in criminal proceedings, which to me seems irreconcilable with the rule of law.

(b) Abuse of a right and the risks for the proper functioning of the administration

103. Taking those considerations into account, the majority of the arguments put forward by PV concerning the alleged distortion in the General Court’s reasoning in paragraph 192 of the judgment under appeal can already be rejected. Nevertheless, I consider it necessary to examine this complaint thoroughly in order to eliminate any doubt that might remain as to the lawfulness of the grounds set out in that judgment.

104. The General Court stated in the abovementioned paragraph that ‘the applicant’s argument that the lodging of a complaint, if it were accepted, would be sufficient to give rise to a conflict of interests, would have the effect of enabling any official to thwart the adoption of disciplinary measures against him or her’, adding that ‘an official who is the subject of disciplinary proceedings could simply lodge a complaint against the persons responsible for taking decisions in his or her regard and, subsequently, request that they be relieved under Article 11a of the Staff Regulations’. In that regard, PV submits that the proceedings pending before the Belgian courts cannot be interpreted as a ‘mere complaint’ that he lodged in order to avoid disciplinary proceedings. According to PV, it is the follow-up to the criminal investigation that determines the existence of a conflict of interests.

105. The General Court’s reasoning, reproduced in the preceding point, reveals a concern of guaranteeing the impartiality of disciplinary proceedings while ensuring the proper functioning of the administration. First, it is clear from paragraphs 189 and 190 of the judgment under appeal that the General Court was fully aware of the importance of Article 11a of the Staff Regulations, recalling that that provision ‘is intended to guarantee the independence, integrity and impartiality of officials and other servants’. Second, I would note that the General Court correctly recognised that interpreting the concept of ‘impartiality’ as meaning that the members of the appointing authority implicated in the criminal investigations should have refrained from participating in the disciplinary proceedings, as is argued by PV, was legally untenable, since not only was there no objective reason to call into question the impartiality of the persons concerned, but there was also a not insignificant risk of obstructing the work of the administration if such an interpretation were adopted.

106. More specifically, the General Court alluded to the risk that the lodging of a complaint might be used by an official – in a manner that could be described as ‘abusive’ – to create a conflict of interests and to request that the persons responsible for taking decisions in his or her regard be relieved, thereby enabling the purpose of the disciplinary proceedings to be frustrated. In that regard, attention should be drawn to the fact that PV has lodged numerous complaints that have led to the questioning of approximately 40 officials and servants of the Commission. Therefore, a considerable number of persons within that institution have been the subject of accusations of harassment and criminal behaviour by PV. That factor is remarkable and calls for legal comment.

107. In my view, it cannot be ruled out that there are circumstances in which the exercise of a right, such as that of requesting that an official be relieved from his or her responsibilities on account of an alleged conflict of interests, may be categorised as abusive. The Court of Justice has stated on several occasions that, by virtue of a general legal principle of EU law, EU law cannot be relied on for abusive or fraudulent ends. ( ) As is apparent from the case-law, proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it. ( )

108. While the General Court did not expressly describe PV’s conduct as ‘abusive’ in accordance with the criteria developed in the case-law, it is nevertheless clear from paragraph 192 of the judgment under appeal that it had serious doubts as to whether the complaints lodged by PV against the officials concerned were well founded. In that context, it seems to me that the General Court was entitled to express a certain level of concern about the risk that the interpretation advocated by PV entailed for the proper conduct of the disciplinary proceedings, particularly given the especially high number of complaints lodged against various officials within the Commission, on the one hand, and the absence of any evidence of psychological harassment and of criminal offences in the cases at issue, on the other.

109. Unless those complaints were lodged with the sole aim of obstructing the work of the appointing authority, PV could reasonably have been expected to be able to prove some instances of harassment, which is clearly not the case. In the absence of indications to the contrary, it is questionable whether PV genuinely acted in good faith, as EU law requires, or instead whether his aim was to take advantage of the protection conferred by Article 11a of the Staff Regulations, as interpreted in the light of the requirement of impartiality, in order to achieve objectives which are obviously not intended by the EU legislature, namely enabling an official to sabotage the work of the administration and to cause harm to his or her colleagues.

110. Should that be the case, such behaviour would undoubtedly fulfil the criteria required for categorisation as an abuse of rights, which would result in PV’s having to be denied the right conferred by the abovementioned provision. ( ) In other words, PV could not validly rely on Article 11a of the Staff Regulations. That being said, it should be noted that that is ultimately a question of fact to which the General Court appears to have given a sufficiently clear response on the basis of an assessment of the circumstances. The conservative approach adopted by the General Court in respect of PV’s attitude towards the administration, and in particular in the context of the disciplinary proceedings at issue, seems to me to be justified in the specific circumstances of the present case. On those grounds, I conclude that the General Court’s reasoning does not contain any error of law.

111. Notwithstanding the foregoing considerations, I do not consider it necessary for the Court of Justice to rule exhaustively on the question whether the General Court could have rejected PV’s line of argument by denouncing abusive behaviour on his part since, in any event, observance of the presumption of innocence and the lack of contrary evidence are, in themselves, solid arguments from which to conclude that there has been no breach of the requirement of impartiality on account of the participation in the taking of decisions of certain members of the appointing authority who were the subject of complaints lodged by PV. In my opinion, the need to prevent abusive behaviour in general, to which the General Court refers, is merely an additional argument intended to support a line of reasoning that is already sufficiently convincing.

3. Final observations

112. The examination of the second ground of appeal, more specifically with regard to the reasons set out in paragraphs 189 to 194 of the judgment under appeal, reveals no error of law. On the contrary, it must be stated that the General Court correctly established the scope of Article 11a of the Staff Regulations, as interpreted in the light of the principle of impartiality referred to in Article 41(1) of the Charter, and decided, rightly, that the participation of certain members of the appointing authority who were the subject of complaints lodged by PV did not give rise to a conflict of interests capable of rendering illegal the decisions taken in respect of PV in the disciplinary proceedings.

113. The risk mentioned by the General Court, in paragraph 192 of the judgment under appeal, that improper recourse to the principle of impartiality might cause administrative dysfunction, and in particular to the detriment of the proper conduct of the disciplinary proceedings at issue, is justified by the specific circumstances of the case, namely the fact that PV had lodged a particularly high number of complaints against various Commission officials despite the lack of evidence showing that they had committed psychological harassment and criminal offences. Consequently, I consider that PV’s line of argument alleging breach of the requirement of impartiality must be rejected.

4. Interim conclusion

114. Following that analysis, I consider that the second ground of appeal cannot be upheld. I propose that it be rejected as unfounded.

D. The eighth ground of appeal

1. Arguments of the parties

115. By his eighth ground of appeal, PV submits that the General Court’s assessment of the admissibility of his application for annulment of the removal decision of 26 July 2016 is vitiated by two errors of law.

116. In the first place, he submits that the General Court was not entitled to find, in paragraph 81 of the judgment under appeal, that the appointing authority had offset PV’s debts to the Commission against the amounts owed by the Commission to the applicant. He claims that the withdrawal of the removal decision has had the effect of eliminating all the consequences of that decision retroactively, in particular the findings of unjustified absences. It follows that the debts should have been cancelled and the deductions from his salary reimbursed following that withdrawal, with the result that they could not be offset.

117. In the second place, PV claims that the General Court erred in law in finding, in paragraph 82 of the judgment under appeal, that the financial effects of the removal decision had been neutralised before the action was brought in Case T‑786/16. He argues that the appointing authority did not offset the financial consequences of its removal decision since, to that end, it should have paid PV compensation for material and non-material damage.

118. According to the Commission, first, the annulment of the disciplinary proceedings for failure to investigate did not eliminate the decisions taken previously that justified the initiation of those disciplinary proceedings and that are entirely separable from and independent of those proceedings. Second, it states that the financial effects of the withdrawal of the removal decision were indeed neutralised.

2. Assessment

119. At the Court’s request, the examination of the eighth ground of appeal will focus on the General Court’s reasoning in paragraphs 81 and 82 of the judgment under appeal, concluding that PV’s action for annulment of the removal decision of 26 July 2016 was inadmissible. More specifically, PV challenges the General Court’s finding, in paragraph 82 of the judgment under appeal, according to which the application for annulment of the removal decision of 26 July 2016 is devoid of purpose since that decision was withdrawn and its financial effects neutralised prior to the bringing of the action in Case T‑786/16. According to PV, the appointing authority did not offset the financial consequences of its removal decision, since, to that end, PV should have received material and non-material compensation for the damage caused by that removal.

(a) The ‘interest in bringing proceedings’ required by procedural law

120. As Advocate General Kokott explained in her Opinion in Wunenburger v Commission, ( ) the requirement of an interest in bringing proceedings provides a procedural guarantee that the Courts do not have to give an opinion to clarify purely hypothetical points of law. The interest in bringing proceedings is therefore a mandatory requirement for admissibility that may become relevant at different stages of the proceedings. It must therefore indisputably exist at the stage of lodging the action. It must also persist, however, beyond the lodging of the action, until the final decision on the merits. ( )

121. If the interest in bringing proceedings ceases to exist only during ongoing legal proceedings, a decision on the merits by the court is no longer justified. However, the applicant equally could not be expected to tolerate his or her action, which was originally admissible, being dismissed out of hand and having to bear the costs. The only adequate solution in such a case is, on the contrary, to declare that the dispute has become ‘devoid of purpose’, thereby indicating that the basis for the action ceased to exist only after its lodging and avoiding negative financial consequences for the applicant.

122. In accordance with the case-law, an applicant may retain his or her interest in bringing proceedings, first of all, on account of the risk of a repetition of an (allegedly) illegal act emanating from an EU institution. The first paragraph of Article 266 TFEU requires the institution whose act has been declared void to ‘take the necessary measures to comply with the judgment of the Court’, which means in practice that that institution is obliged to take into account the grounds for invalidity set out in that judgment if it decides to replace the annulled act later. ( ) The interest in bringing proceedings may persist, second, where a decision on an action for annulment is important for any claim for damages made by the applicant. Third, the applicant may in certain cases, and in staff cases in particular, have an interest in having negative statements relating to him or her expunged in order to restore his or her reputation in the future.

(b) Examination of the General Court’s reasoning

123. The judgment under appeal concerns the second of those three scenarios, that is to say, a claim for compensation by the applicant. The Court of Justice has held that an applicant’s interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been suffered. ( ) It is in the light of those principles that PV’s situation in the present case must be examined. In the examination, it will also be necessary to ascertain whether the General Court’s reasoning takes account of those principles.

124. In that regard, attention should be drawn at the outset to the fact that PV is not in the situation referred to in point 121 of this Opinion. PV’s action for annulment is not ‘devoid of purpose’ on the ground that the interest in bringing proceedings ceased to exist during ongoing legal proceedings, but rather because the contested decision ceased to exist even before the action was lodged. It should be recalled that the appointing authority withdrew its removal decision on 26 July 2016, that is to say, at a date prior to that of the lodging of the action before the General Court. It is in that context that the General Court first of all recalled, in paragraph 80 of the judgment under appeal, the fundamental difference between the ‘repeal’ of a decision, which eliminates a decision only in respect of the future, ( ) and the ‘withdrawal’ of such a decision, which has retroactive effect. The General Court then established, in paragraph 82 of the judgment under appeal, that the withdrawal of the removal decision at issue had eliminated the decision with retroactive effect and, consequently, in so far as the contested decision no longer existed, it could no longer adversely affect PV. That finding appears to me to be legally flawless.

125. So far as concerns the existence of an interest in bringing an action for damages, it should be recalled that the Court of Justice has held that an action for damages is an ‘autonomous’ form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions for its use dictated by its specific purpose. ( ) Accordingly, bringing an action for annulment of a measure is not a necessary prerequisite for bringing an action for damages in order to obtain compensation for the harm resulting therefrom. ( ) In the context of the present case, it must be noted that PV in fact attached a claim for compensation to his action for annulment. Consequently, it seems to me that the absence of an interest in bringing proceedings in the action for annulment is not decisive in order to establish the admissibility of his claim for compensation. In contrast, I consider it imperative to determine whether the conditions for the admissibility of that action and those referred to in the second paragraph of Article 340 TFEU were satisfied in this case, specifically in view of its ‘autonomous’ nature.

126. As regards the conditions for claiming compensation, ( ) I have some hesitation in considering them to have been satisfied in the present case. In particular, it is doubtful to me whether there can exist a causal link between the removal decision, which was withdrawn by the appointing authority itself, and the material damage allegedly suffered by PV. As the General Court indicated in paragraph 81 of the judgment under appeal, the withdrawal of the removal decision on 26 July 2016 resulted, first, in PV’s reinstatement within the Commission as from 16 September 2017 and, second, in the retroactive grant to him of the remuneration and annual leave corresponding to the period from 1 August 2016 to 15 September 2017.

127. What is more, it should be noted that the appointing authority had offset PV’s debts to the Commission against the amounts owed by the Commission to PV for the abovementioned period, in order to pay PV the balance of EUR 9 550. Consequently, as the General Court rightly noted in paragraph 82 of the judgment under appeal, the removal decision of 26 July 2016 had been withdrawn and its financial effects neutralised. If PV is arguing in his appeal that that set-off was unjustified, I would retort that the withdrawal of the removal decision did not eliminate the previous decisions finding unjustified absences which formed the basis of the disciplinary proceedings. The General Court was therefore right to validate the set-off effected between the applicant’s debts following his unjustified absences and the amounts owed by the Commission to the applicant for the period in question. In those circumstances, it is difficult to understand how PV could have suffered material damage.

(c) Final observations

128. The examination of the General Court’s reasoning in paragraphs 81 and 82 of the judgment under appeal does not support a finding of an error of law. In the light of the foregoing considerations, I am inclined, like the General Court, to rule out an interest in bringing proceedings, particularly in the absence of a measure adversely affecting PV. Everything would appear to indicate that the removal decision which is contested by PV was withdrawn with retroactive effect before the action for annulment was lodged, meaning that it no longer produces effects that might adversely affect him. Therefore, the General Court was right to hold that the application for annulment was inadmissible.

129. With regard to PV’s claim for compensation, the line of argument he puts forward does not, to my mind, enable the extent to which he may have suffered material damage to be assessed, given that the set-off effected by the Commission was justified, as the General Court established in its judgment. Accordingly, I consider that PV’s line of argument in support of an alleged right to compensation must be rejected.

3. Interim conclusion

130. For the reasons set out above, I propose that the eighth ground of appeal be rejected as unfounded.

VI. Conclusion

131. In the light of the foregoing considerations, I propose that the Court declare the first, second and eighth grounds of appeal unfounded.