JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

19 July 2017 ( )

(Appeal — Civil service — Members of the temporary staff — Contract of indefinite duration — Disciplinary penalty — Reprimand — Termination of contract — Right to be heard — Non-material harm)

In Case T‑742/15 P,

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118), seeking to have that judgment set aside in part,

DD, residing in Vienna (Austria), represented initially by L. Levi and M. Vandenbussche, and subsequently by L. Levi, lawyers,

appellant,

the other party to the proceedings being

European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, assisted by B. Wägenbaur, lawyer,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, A. Dittrich and S. Frimodt Nielsen (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

1 By his appeal, lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, DD, a former member of the temporary staff of the European Union Agency for Fundamental Rights (FRA), seeks to have set aside in part the judgment of the European Union Civil Service Tribunal (Second Chamber) of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, ‘the judgment under appeal’, EU:F:2015:118), by which the Tribunal upheld the actions brought by the appellant in part, annulling the decision of 20 February 2013 of the Director of the FRA imposing a reprimand on him and annulling the decision of 13 June 2013 of the Director of the FRA concerning the termination of his temporary staff contract.

Background to the dispute

2 The facts giving rise to the dispute are set out as follows in paragraphs 9 to 35 of the judgment under appeal:

‘9 The applicant was recruited as a Legal Affairs Officer by the European Monitoring Centre on Racism and Xenophobia (EUMC), under a contract as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Communities and for a renewable four-year term beginning on 1 August 2000.

10 The applicant’s contract was renewed for another four-year term from 1 August 2004, and then converted into a contract of indefinite duration from 16 December 2006.

11 The FRA was established by Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1), replacing the EUMC.

12 On 1 June 2008, Mr A was appointed Director of the FRA (“the Director”).

13 By an e-mail of 18 May 2009, the applicant complained to the Director that he was the victim of “ethnic discrimination”, arguing that, in the context of the reorganisation of the FRA, he had been passed over for the position of Acting Head, and then Head, of the Freedoms and Justice Department as a result of his ethnicity.

14 On 4 and 8 May 2012, in the context of the appraisal exercise relating to 2011 and the compilation of the career development report (CDR) for that year (“the 2011 CDR”), the applicant carried out his self-assessment and forwarded this to his line manager and reporting officer, Ms B, Head of the Freedoms and Justice Department. In the “Conduct in the service” part of his self-assessment, the applicant remarked that Ms B’s management approach with regard to him “[was] not very motivating and quite discriminatory because [his colleagues] enjoy[ed] career perspectives and expectations of promotion which [he had] no access to”.

15 On 25 May 2012, Ms B drew up a first draft of the 2011 CDR, followed by a second draft of the 2011 CDR dated 7 June 2012.

16 On 13 June 2012, the applicant brought an internal appeal in accordance with the rules then in force at the FRA against the second draft of the 2011 CDR (“the internal appeal”). The internal appeal was reasoned as follows:

“I cannot agree to [the 2011 CDR]. [The 2011 CDR] is biased, affected by a conflict of interests, discriminatory, factually inaccurate. It does not fully reflect the [appraisal interview] and the procedure applied does not correspond to the [rules in the] Staff Regulations and valid implementing rules of the FRA. The assessment of my [Head of Department] is punitive as a reaction to complaints of discrimination reflected in [the 2011 CDR] and earlier CDRs and constitutes [an] abuse of power[s]. For all these reasons I appeal.”

17 On 18 July 2012, the Director invited the applicant to “substantiate [his] claims that the [2011] CDR [was] biased, discriminatory, and that it [did] not fully reflect the [appraisal interview]” and to explain in what way the 2011 CDR constituted an “abuse of power[s]”.

18 By note of 14 September 2012, the applicant provided the requested explanations. So far as concerns, in particular, the complaint alleging that the 2011 CDR was discriminatory, that note contained the following passage:

“B. The [2011] CDR is discriminatory

The reporting officer makes statements which are discriminatory. [His] key message during the CDR talk was discriminatory: [he] said that the jobholder should not expect any promotion for the foreseeable future [and that] if [he wanted] a promotion, he should apply for a job elsewhere …

Examples …:

…

2. … The workload of the jobholder is not equivalent to others; rather the reporting officer pays attention, for no objective reason, only to the workload of some staff members, but not to the workload of the jobholder. … This difference in the level of attention and care by the reporting officer is discriminatory. …

3. The negative assessment of the reporting officer is also a reprisal for complaints of discrimination by the jobholder and amounts to victimisation under [Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22)]. The jobholder complained about discrimination in his self-assessment and as a consequence negative statements were made by the reporting officer as a response and also to ex post justify [his] discriminatory treatment of the jobholder (the jobholder was passed over as team coordinator during a restructuring of the [FRA] and also [was] not allowed to participate in team coordinator meetings where important discussions take place and important decisions are taken and where the jobholder is forbidden to contribute). The reporting officer should explain why there were no similar negative statements made during the course of the year by the reporting officer, only after receiving the complaints contained in the self-assessment of the jobholder.”

19 By letter of 9 November 2012, the Director informed the applicant that, “in the light of the words used and their tone in [his internal] appeal”, he had decided to launch an administrative enquiry pursuant to Articles 50a of the CEOS and 86(2) of the Staff Regulations [of Officials of the European Union (“the Staff Regulations”)] and Articles 1 and 2 of Annex IX to those Staff Regulations (“the administrative enquiry”). According to the Director, the way in which the applicant’s internal appeal was phrased “could amount to a breach of [his] obligation … to act with due respect, dignity and loyalty, as provided in [A]rticle 11 of the [CEOS] and [A]rticles 11, 12 and 21 of the [Staff Regulations]”.

20 On 12 November 2012, the Director dismissed the internal appeal. In respect of, in particular, the complaint alleging that the 2011 CDR was discriminatory, the Director gave the following answer:

“Here again the accusation is very grave, all the more since, after some examples of alleged ‘discrimination’, you qualify the negative assessments of your [Head of Department] as … ‘victimisation under [D]irective [2000/43]’. [That] directive [is aimed] concretely at prohibiting discrimination based on … race and/or ethnic origin, in other words [at fighting] racism.

This is one of the more serious accusations, if not the most serious, that one can make.

However, I found no evidence supporting this claim in your [internal] appeal.

…”

21 By decision of 13 November 2012, the Director transferred the applicant, with effect from 1 January 2013, to the Equality and Citizen’s Rights department, directed by Mr C.

22 On 27 November 2012, the applicant was informed that the Director had appointed Mr D to conduct the administrative enquiry (“the enquirer”) and was invited to an interview with that enquirer on 5 December 2012.

23 By note of 30 November 2012 to the Director, the applicant requested the “annulment” of the administrative enquiry on the ground that it was vitiated by irregularities. In particular, according to the applicant, the decision opening the administrative enquiry, by simply referring to the words and tone used in the internal appeal, “could indeed appear vague considering the several pages of [the internal] appeal and not enable [him] to properly prepare [his] defence”.

24 By note of 3 December 2012, the Director informed the applicant of his refusal to annul the administrative enquiry. While explaining that it was exclusively for the enquirer to identify the passages of the internal appeal which constituted misconduct, the Director added the following remarks:

“However, if you are interested in my own personal opinion, since it is on the basis of such [an] opinion that I decided to launch the [administrative] enquiry, I invite you to re-read my reply to your [internal] appeal. While I consider racism one of the major flaws of our society, I am also very sensitive to unfounded and unsubstantiated accusations of racism. And my position, apparently contrary to yours, is that Article 9 of Directive 2000/43 may not be interpreted as [requiring] Member States to grant immunity for such accusations. But, here again, the issue will be addressed by the [e]nquirer.”

25 On 5 December 2012, the applicant’s interview with the enquirer took place.

26 On 12 February 2013, the enquirer delivered the report he had drawn up of the administrative enquiry to the Director.

27 At a hearing on 20 February 2013 whose purpose was to hear the applicant in accordance with Articles 2 and 11 of Annex IX to the Staff Regulations, the Director verbally communicated the conclusions of the administrative enquiry to the applicant and informed him that, according to the enquirer, the allegations of discrimination on grounds of race, made by the applicant against Ms B, were unsubstantiated and that the internal appeal contained statements which, by the words used and their tone, were in breach of the provisions of the Staff Regulations.

28 In response, after requesting the disclosure of a certain number of documents, in particular the report drawn up by the enquirer at the end of the administrative enquiry, the applicant read out a statement which he had prepared before the hearing and delivered a written copy of that statement to the Director. According to the applicant, the Director, at the end of the hearing, imposed a reprimand on the applicant and informed him that a written version of that penalty would be sent to him subsequently. According to the FRA, the Director informed the applicant merely that he was contemplating imposing a reprimand.

29 On 22 February 2013, the Director sent the applicant a letter headed “Investigation and disciplinary matters — Reply to your statement at the hearing held on February 20th, 2013”. In that letter, the Director again expressed his firm conviction that the applicant “[had] never been discriminated [against] on any basis by [Ms B], and in particular on the basis of [his] race and/or ethnicity”.

30 The same day, the Director adopted in writing a decision imposing a reprimand on the applicant. That decision was sent to the applicant on 25 February 2013.

31 On 7 May 2013, the applicant filed a complaint under Article 90(2) of the Staff Regulations against the decision to open the administrative enquiry, the procedure followed in the administrative enquiry itself, the disciplinary proceedings and the oral and written decisions of 20 and 22 February 2013 imposing a reprimand on him. That complaint was rejected by a decision of the Director, acting in his capacity as the authority authorised to conclude contracts of employment (“the AECE”), dated 17 July 2013, of which the applicant was notified the following day.

32 In the meantime, by letter of 13 June 2013, the Director informed the applicant of his decision to terminate his contract of indefinite duration (“the termination decision”) and requested him not to provide services during his notice period “beginning [that day] and finishing on 12 April 2014”.

33 As grounds for the termination decision, the Director stated that the applicant had breached “numerous rules and principles of [the Staff Regulations], including Articles 11, 12, 17a and 21 [thereof]”, leading to “a breach of the bond of trust, which is a prerequisite for a working relationship, concerning in particular an agent [of grade AD 9]”. The Director referred to several incidents involving a conflict between the applicant and his management since 2009, in particular the attitude shown by the applicant towards his Head of Department at a meeting on 27 May 2013 and the terms used by the applicant in an e-mail to his Head of Department the following day.

34 On 13 June 2013, the applicant was also asked by e-mail to collect his personal belongings and effects by the end of office hours on the following day, 14 June 2013.

35 On 6 September 2013, the applicant filed a complaint against the termination decision. That complaint was rejected by a decision of the Director, acting in his capacity as the AECE, dated 20 December 2013, of which the applicant was notified on 30 December 2013, stating that the notice period would end on 14 April 2014 and not on 12 April 2014.’

Proceedings at first instance and the judgment under appeal

3 By applications lodged at the Registry of the Civil Service Tribunal on 25 October 2013 and 24 March 2014 and registered as Cases F‑106/13 and F‑25/14, the appellant brought two actions.

4 In Case F‑106/13, the appellant claimed that the Tribunal should (paragraph 36 of the judgment under appeal):

– annul the Director’s decision of 20 February 2013 imposing a reprimand on him and, so far as necessary, the decision of 22 February 2013 confirming the reprimand in writing;

– so far as necessary, annul the Director’s decision of 17 July 2013 rejecting the complaint brought against the reprimand;

– order the FRA to pay him EUR 15 000 by way of compensation for the non-material harm caused by ‘the gross illegality and irregularity of the administrative enquiry and of the decision to impose a reprimand’;

– order the FRA to pay the costs;

– as a measure of organisation of procedure, order the FRA to produce the full administrative enquiry report, or at least the conclusions of that report.

5 In Case F‑25/14, the appellant claimed that the Tribunal should (paragraph 38 of the judgment under appeal):

– annul the decision terminating his contract of indefinite duration (‘the termination decision’);

– annul the Director’s decision of 20 December 2013 rejecting the complaint brought against the termination decision;

– grant the appellant compensation in respect of the material harm incurred, consisting in the difference between, on the one hand, the unemployment allowance received since April 2014 plus any potential replacement income or lack thereof and, on the other hand, his full salary, including all allowances, of EUR 7 850.33, until the date of his full reintegration within the FRA, plus default interest calculated at the rate set by the European Central Bank (ECB) increased by three points;

– grant the appellant adequate compensation for the non-material harm caused by the termination decision, assessed on equitable principles at EUR 50 000;

– order the FRA to pay the costs.

6 The FRA contended that the actions in Cases F‑106/13 and F‑25/14 should be dismissed and that the appellant should be ordered to pay the costs.

7 By decision of the President of the Second Chamber of the Tribunal of 22 January 2015, Cases F‑106/13 and F‑25/14 were joined for the purposes of the oral procedure and the final judgment.

8 In the judgment under appeal, the Tribunal held, as a preliminary point, that, since the decisions rejecting the complaints lack, in the present case, any independent content (paragraphs 44 and 45 of the judgment under appeal), the claims seeking the annulment of those decisions had to be considered as being directed against the decisions against which the complaints were brought and which are challenged in the present actions.

9 In the first place, with regard to the claims seeking annulment of the decisions of 20 and 22 February 2013 imposing a reprimand on the appellant, the Tribunal noted, first, as a preliminary point that, at the end of the hearing held on 20 February 2013, the Director informed the appellant that he was imposing on him the disciplinary penalty of a reprimand (‘the reprimand decision’) and added that a written version of that disciplinary penalty would subsequently be sent to him and, second, found that, consequently, the written decision of 22 February 2013 imposing the disciplinary penalty of a reprimand on the appellant merely confirms the reprimand decision. Consequently, the Tribunal found that the claims for annulment of the decision of 22 February 2013 had to be dismissed as inadmissible (paragraphs 46 to 48 of the judgment under appeal).

10 As regards the examination of the substance of the claim seeking the annulment of the reprimand decision, the Tribunal took the view that the second plea in law raised before it should be examined first, which alleged the irregular nature of the disciplinary proceedings (paragraph 50 of the judgment under appeal).

11 The Tribunal upheld that plea on the ground that the reprimand decision had been taken following an irregular procedure, in breach of the appellant’s right to be heard (paragraphs 55 to 67 of the judgment under appeal):

‘55 It follows from Article 2(2) of Annex IX to the Staff Regulations that, following an administrative investigation, the Appointing Authority is required to inform the official concerned when the investigation ends and to communicate to him the conclusions of the investigation report.

56 It also follows from Article 3 of Annex IX to the Staff Regulations that, where, on the basis of the investigation report, the Appointing Authority decides, in the event of a failure by an official to comply with his obligations, to initiate the disciplinary proceedings, with or without the involvement of the Disciplinary Board, it may do so only “after having notified the official concerned of all evidence in the files and after hearing the official concerned”.

57 Those provisions oblige the Appointing Authority, where it is envisaging the initiation of disciplinary proceedings on the basis of a report drawn up following an administrative enquiry, to communicate the conclusions of the enquiry report and all the evidence in the files to the official concerned beforehand to enable him, by having a reasonable period within which to prepare his defence, to make any relevant comments.

58 The Tribunal notes that, as is shown by the wording of the letter of 22 February 2013, which confirms the reprimand decision, the Director relied upon the administrative enquiry report to initiate the disciplinary proceedings and immediately adopt the reprimand decision, even though it is not disputed that the conclusions of the enquiry report had not been communicated to the applicant beforehand.

59 Although the FRA submits that the conclusions of the administrative enquiry report were brought to the applicant’s knowledge verbally at the hearing of 20 February 2013, that step was not sufficient to comply with the provisions of the Staff Regulations.

60 Besides the fact that Article 2(2) of Annex IX to the Staff Regulations expressly requires the administration to “communicate” the conclusions of the enquiry report to the official or staff member concerned, the communication of the conclusions of the administrative enquiry report solely by verbal means at the meeting of 20 February 2013 was not such as to guarantee that the applicant was adequately informed and to enable him to exercise his right to be heard in an effective manner. It is sufficient to note that the applicant, being ignorant of the conclusions reached by the enquirer and unable to answer the criticisms made against him at the hearing, simply read out a statement concerning the conduct of the enquiry. Furthermore, it is apparent from the note of 14 September 2012, drafted by the applicant at the Director’s request to explain certain criticisms of the 2011 CDR made in the internal appeal (see paragraphs 17 and 18 above), that the applicant had put forward several grounds in support of his contention that he was treated differently from his colleagues by his Head of Department and the victimisation within the meaning of Directive 2000/43 to which he claimed to have been subject was only one of those grounds. However, the enquirer chose solely that last ground as a basis on which to conclude that the applicant had made a completely gratuitous accusation of racism and that the applicant’s statements in the internal appeal were defamatory and offensive.

61 Given that the purpose of the hearing of 20 February 2013 was also to hear the applicant in accordance with Article 11 of Annex IX to the Staff Regulations, the Tribunal further observes that, where disciplinary proceedings without consultation of the Disciplinary Board have been initiated, Article 11 provides that the administration may decide on the penalty of a written warning or reprimand after the official concerned has been “heard before[hand]”.

62 In order to give practical effect to the right to be heard guaranteed by Article 11 of Annex IX to the Staff Regulations, the administration is required, where it envisages imposing the penalty of a written warning or reprimand, to place the official or staff member concerned in a position enabling him to prepare his defence, which means that the person concerned must have access to all the information concerning him included in the files within the meaning of Article 3(1) of Annex IX to the Staff Regulations. Consequently, where, in a situation such as that in the present case, the administration decides to initiate disciplinary proceedings and then to impose a penalty at the end of a single specific hearing, the failure to comply with the requirements laid down in Articles 2 and 3 of Annex IX to the Staff Regulations constitutes a breach of the right to be heard, as guaranteed by Article 11 of Annex IX to the Staff Regulations.

63 The applicant is therefore justified in claiming that, by omitting to communicate the conclusions of the administrative enquiry to him before his hearing on 20 February 2013, a hearing intended in fact to allow the applicant to comment on those conclusions and at which the Director adopted the reprimand decision without enabling the applicant effectively to prepare his defence, the Director failed to comply with his obligations under Articles 2, 3 and 11 of Annex IX to the Staff Regulations.

64 In those circumstances, it must be found that the reprimand decision was taken following an irregular procedure, in breach of the applicant’s right to be heard.

65 Admittedly, case-law provides that, in order for the infringement of the right to be heard to justify the annulment of the decision at issue, it is also necessary to examine whether, had it not been for such an irregularity, the outcome of the procedure might have been different … In this regard, it must be ascertained whether the FRA has adduced adequate evidence for the Tribunal to find that the reprimand decision would have been adopted in any event even if the applicant had been heard. Having regard to the fundamental nature of the right to be heard, as enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, it is for the FRA, which adopted the reprimand decision and which is therefore best informed as to the factors underlying the adoption of that decision, to prove that, even if the applicant had been properly heard, it could not have adopted a different decision.

66 It is sufficient, in the present case, to note that the FRA has not firmly established that the Director would have adopted the reprimand decision had the provisions of Annex IX to the Staff Regulations not been infringed. It is possible that, if the applicant’s right to be heard had been respected, the latter would have been able to prepare effectively for his hearing and to substantiate in more detail his criticisms in the internal appeal, so as to challenge the conclusions adopted unilaterally by the enquirer as to the gratuitous nature of the alleged accusations of racism.

67 On any view, to hold that, in the circumstances of the case, the Director would necessarily have adopted the same decision as that taken, even after hearing the applicant on the conclusions of the administrative enquiry report as properly communicated to him and the envisaged reprimand, would render meaningless the fundamental right to be heard, since the very content of that right implies that the person concerned have the possibility of influencing the decision-making process at issue …’

12 Consequently, the Tribunal decided to annul the reprimand decision, without it being necessary to examine the other pleas raised, including the pleas calling into question the substantive legality of that decision (paragraph 68 of the judgment under appeal).

13 In the second place, with regard to the claims for damages in respect of the non-material harm caused by the illegality and irregularity of the administrative enquiry and of the reprimand decision, the Tribunal distinguished the non-material harm caused by the administrative enquiry and the irregularity of the hearing of 20 February 2013 from the non-material harm caused by the illegality of the reprimand decision.

14 The Tribunal thus found that the claim seeking that the FRA be ordered to compensate the appellant for the non-material harm caused by the administrative enquiry and the irregularity of the hearing of 20 February 2013 had to be dismissed as unfounded (paragraphs 73 to 77 of the judgment under appeal):

‘73 It is settled case-law that the [European] Union can incur non-contractual liability only if a set of conditions relating to the illegality of the conduct alleged against the institutions, the occurrence of actual damage and the existence of a causal link between the conduct complained of and the harm alleged are fulfilled ... It follows that, even on the assumption that wrongful conduct on the part of the administration is established, it is still for the applicant to demonstrate that he has incurred actual harm and that there is a causal link between the administration’s wrongful conduct and that harm.

74 First, as regards the initiation of the administrative enquiry, it is apparent from the file that the internal appeal contained several accusations, including accusations of discrimination, against Ms B. Although the letter of 9 November 2012, in which the Director informed the applicant of his decision to initiate an administrative enquiry, referred only to “the words used and their tone” in the internal appeal, the Director dismissed that internal appeal on 12 November 2012 by refuting each of the five complaints raised in it by the applicant. Furthermore, as the applicant himself has observed in the application, the Director, in a note to the applicant of 3 December 2012, stated that he was “very sensitive to unfounded and unsubstantiated accusations of racism”. Likewise, the enquirer explained at the interview with the applicant on 5 December 2012 that the administrative enquiry had been initiated because of the applicant’s allegations of discrimination on Ms B’s part. The applicant consequently cannot reasonably claim that the complaints made against him were not adequately defined.

75 Secondly, the fact that the administrative enquiry was conducted without the FRA having first adopted the implementing arrangements for Article 2 of Annex IX to the Staff Regulations and thereby defined the procedural framework of the enquiry is not such as to vitiate that enquiry on grounds of irregularity. Admittedly, Article 2(3) of Annex IX to the Staff Regulations requires the appointing authority of every institution to adopt implementing arrangements for that article, in accordance with Article 110 of the Staff Regulations. However, contrary to what the applicant claims, the fact that such arrangements have not been adopted does not in itself preclude the initiation and conduct of an administrative enquiry, since that enquiry must in any event be carried out in accordance with the provisions of Annex IX to the Staff Regulations and general principles of law such as respect for the rights of the defence.

76 Thirdly, the Tribunal has found that the reprimand decision was adopted following disciplinary proceedings which were conducted irregularly. As stated in paragraph 63 above, the Director failed to comply with his obligations under Articles 2, 3 and 11 of Annex IX to the Staff Regulations and did not allow the applicant to effectively prepare his defence. Having thus established the irregular nature of the applicant’s hearing on 20 February 2013, it is still necessary to ascertain whether the applicant has proved that he incurred actual harm. The fact remains, however, that the applicant merely refers in his application to stress and anxiety during the administrative enquiry without substantiating his claims in more detail.’

15 Furthermore, the Tribunal decided to reject the claim for damages in respect of the non-material harm caused by the illegality of the reprimand decision as premature (paragraphs 78 to 82 of the judgment under appeal):

‘78 It is settled case-law that the annulment of an illegal act in itself constitutes appropriate and, in principle, sufficient compensation for any non-material harm which that act may have caused …

79 In the present case, the applicant submits that the annulment of the reprimand decision could not adequately and sufficiently compensate him for the harm caused by that decision since the disciplinary penalty which was imposed on him, in the absence of any misconduct on his part, has unfairly affected his integrity, dignity and reputation within the FRA.

80 It must be pointed out that the Tribunal has upheld the plea alleging the irregularity of the disciplinary proceedings and the breach of the applicant’s right to be heard, the applicant having been denied the opportunity to state his views effectively on the criticism against him. In the Tribunal’s opinion, it is not excluded that the Director, had he heard the applicant, would have adopted a different decision.

81 Thus, if it is not to prejudge the FRA’s execution of the present judgment, the Tribunal takes the view that it is premature to rule on the present claim seeking damages in respect of the non-material harm caused by the reprimand decision.’

16 In the third place, with regard to the claim for annulment of the termination decision, the Tribunal took the view that it was appropriate to begin by examining the first plea raised before it, which alleged infringement of the appellant’s rights of defence (paragraph 85 of the judgment under appeal).

17 The Tribunal upheld that plea on the grounds that the termination decision was taken following an irregular procedure, in breach of the appellant’s right to be heard (paragraph 88 to 99 of the judgment under appeal).

‘89 It follows from the general principle of EU law of respect for the rights of the defence, and in particular for the right to be heard enshrined in Article 41(2)(a) of the Charter [of Fundamental Rights of the European Union], that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make known his views effectively as to the truth and relevance of the facts and circumstances on which that decision was based. Furthermore, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement …

90 In the present case, the documents in the file show that the Director relied, in order to adopt the termination decision, on a series of incidents of which the applicant was accused which constituted, in his view, a breach of “numerous rules and principles of [the Staff Regulations]”. However, it is not disputed that the termination decision was adopted without the Director, beforehand, having expressly informed the applicant that he was envisaging the termination of the latter’s contract on the basis of those incidents and invited the applicant to express any comments he might have on that matter. Moreover, even assuming that, as the FRA contends, the Director had drawn to the applicant’s attention the seriousness of the incidents at issue after each of them had taken place, that approach does not mean that the applicant was put in a position to understand the measure envisaged with regard to him.

91 The FRA’s argument that the applicant was properly heard because he was already aware of the facts of which he was accused and had been given the opportunity to make known his views effectively as to the incidents resulting in the adoption of the termination decision must be rejected, since the right to be heard must in fact allow the applicant not only to provide explanations as to his conduct and the reasons for it, but also to put forward arguments in relation to the measure envisaged with regard to him, which was clearly not the case in the situation under consideration.

92 In those circumstances, the applicant is justified in claiming that the Director infringed the principle of respect for the rights of the defence, in particular the right to be heard before the adoption of the termination decision.

93 Although the FRA also submits that the plea alleging infringement of the right to be heard cannot result in the annulment of the termination decision since the procedure could not have led to a different result in the absence of that irregularity, such an argument must be rejected. The onus is on the FRA to prove that, even if the applicant’s right to be heard had been respected, the termination decision would still have been adopted. The argument simply alleging a breakdown in the relationship of trust with the applicant, put forward by the FRA “on a subsidiary basis” in its statement in defence, in no way rules out the possibility that, had the applicant’s right to be heard not been infringed by the Director, the explanations which the applicant might have provided could have persuaded the Director to refrain from terminating his contract.

94 Admittedly, as the FRA points out in defence, in the judgment of 5 December 2012, Z v Court of Justice (F‑88/09 and F‑48/10, EU:F:2012:171) the Tribunal refused to annul a decision to re-assign an official notwithstanding the infringement of the right of every official to be heard, particular[ly] before the adoption of an act liable to have appreciable consequences for his career development. However, the Tribunal justified its refusal to annul the contested re-assignment decision by holding, in particular, that it had been adopted “in order to end a situation of interpersonal tension which, considered objectively, had become unsustainable, and not on account of the conduct [of the official concerned]” (judgment of 5 December 2012, Z v Court of Justice, F‑88/09 and F‑48/10, EU:F:2012:171, paragraph 149, not set aside on this point by the judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393). In the present case, the Director first imposed a reprimand on the applicant because of accusations of “racism” made against his line manager, before terminating his contract following two incidents which occurred on 27 and 28 May 2013, taking the view that such behaviour constituted insubordinate conduct on the part of the applicant in breach of his obligations under the Staff Regulations. Those circumstances cannot on any view be described as “a situation of interpersonal tension which, considered objectively, had become unsustainable”.

95 Moreover, the termination decision constitutes an act of extreme seriousness for the applicant, who has suddenly found himself to be unemployed and whose career might be negatively affected for many years. Besides the fact that it is a fundamental right of the applicant to be heard before the adoption of an individual measure which would affect him adversely, the exercise by the latter of the right to state his views effectively on the termination decision envisaged falls within the AECE’s responsibility, a responsibility which it must scrupulously comply with.

96 On any view, as stated in paragraph 67 above, to hold that the Director would necessarily have adopted the same decision as that taken, even after hearing the applicant, would render meaningless the fundamental right to be heard, as enshrined in Article 41(2)(a) of the Charter [of Fundamental Rights of the European Union], since the very content of that right implies that the person concerned must have the possibility of influencing the decision-making process at issue.

97 Lastly, although the FRA submits that the applicant’s rights of the defence were nevertheless observed on an ex post basis on the ground that the applicant was able to submit his arguments against the termination decision in the framework of the complaints procedure under Article 90(2) of the Staff Regulations, the Tribunal must reject such a line of argument.

98 A complaint brought under Article 90(2) of the Staff Regulations does not have the effect of suspending the execution of the contested decision …, so that, despite the complaint brought by the applicant against the termination decision, that decision, which moreover was accompanied by an order to the applicant to desist from providing services as of the following day, had an immediate negative impact on the situation of the applicant, who was not in a position to influence it. Thus, it is apparent that adopting the termination decision without hearing the applicant beforehand clearly might have affected the essence of the applicant’s rights of the defence.’

18 Consequently, on account of the infringement of the principle of respect for the rights of the defence and, in particular, of the appellant’s right to be heard, the Tribunal decided to annul the termination decision without examining the other pleas raised, ruling on the requests for the adoption of measures of inquiry or, lastly, ruling on the new offers of evidence made by the FRA during the proceedings (paragraph 99 of the judgment under appeal).

19 In the fourth place, with regard to the claims for damages in respect of the material and non-material harm caused by the illegality of the termination decision, the Tribunal distinguished the material harm from the non-material harm.

20 The Tribunal thus found that the claim seeking that the FRA be ordered to compensate the appellant for the material harm which he claimed to have suffered on account of the illegality of the termination decision had to be dismissed as premature (paragraphs 103 and 104 of the judgment under appeal):

‘103 The annulment of a measure by the courts has the effect of retroactively eliminating that measure from the legal system and, where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted … Moreover, pursuant to Article 266 TFEU, it is for the institution whose act has been declared void to take the necessary measures to comply with the judgment addressed to it.

104 In the present case, the termination decision must be annulled due to the infringement by the Director of the applicant’s right to be heard before the adoption of an act adversely affecting him. In that regard, as the Tribunal has stated, it is possible that, had the applicant been given an opportunity to state his views on the envisaged termination decision, he might have persuaded the Director not to adopt that decision. In that context, the Tribunal cannot prejudge the decision which the FRA will be required to adopt in the light of this judgment. Consequently, the claim seeking that the FRA be ordered to compensate the applicant for the material harm which he claims to have suffered on account of the illegality of the termination decision must be dismissed as premature.’

21 Moreover, the Tribunal decided to dismiss the claim for damages in respect of the non-material harm caused by the termination decision as unfounded (paragraphs 105 to 108 of the judgment under appeal):

‘105 As observed in paragraph 78 [of the present judgment], the annulment of an unlawful act in itself constitutes appropriate and, in principle, sufficient compensation for any non-material harm that act may have caused. That is, however, not the case where the applicant demonstrates that he has suffered non-material harm which, without being separable from the act itself, is separable from the illegality of the act justifying its annulment and not capable of being entirely remedied by that annulment …

106 In the present case, the termination decision, which was accompanied by the order to the applicant not to continue providing services during his notice period and to collect his personal belongings by 14 June 2013 at the latest, that is to say, the day after the termination decision was adopted, was taken in breach of the applicant’s right to be heard.

107 Nevertheless, the applicant has merely stated that the termination decision caused him “deep psychological trauma” and affected his reputation and dignity, yet not demonstrated that such harm could not be entirely remedied by the annulment of that decision by the present judgment.

108 Thus, the claim for damages in respect of the non-material harm caused by the termination decision must be dismissed as unfounded.’

Procedure before the General Court and forms of order sought by the parties

22 By application lodged at the Court Registry on 16 December 2015, the appellant brought the present appeal.

23 On 9 June 2016, the FRA lodged its response at the Court Registry.

24 On 22 June 2016, the appellant submitted a request to lodge a reply, which the President of the Appeal Chamber allowed. On 23 August 2016, the appellant lodged his reply. On 17 October 2016, the FRA lodged its rejoinder.

25 On 21 November, the appellant submitted a reasoned application under Article 207(1) of the Rules of Procedure of the General Court to be heard in the oral part of the procedure. On a proposal from the Judge-Rapporteur, the General Court (Appeals Chamber), considering that it had sufficient information available to it from the material in the file, decided to rule on the present appeal without an oral part of the procedure.

26 The appellant claims that the Court should:

– set aside the judgment under appeal in part;

– consequently, annul the two decisions of the FRA, not only on grounds of procedure, but also on the basis of the other pleas put forward in the proceedings at first instance;

– grant the appellant adequate compensation for the non-material harm, estimated on equitable principles at EUR 15 000, caused by the gross illegality and irregularity of the administrative enquiry and the decision to issue a reprimand;

– grant the appellant adequate compensation for the non-material harm, estimated on equitable principles at EUR 50 000, caused by the irregular procedure and decision of termination of contract;

– order the FRA to pay the costs.

27 The FRA contends that the Court should:

– dismiss the appeal as inadmissible;

– in the alternative, dismiss the appeal as unfounded and rule according to the FRA’s pleas sought at first instance;

– order the appellant to pay the costs.

The appeal

28 In support of his appeal, the appellant puts forward two grounds of appeal. The first ground of appeal alleges errors of law that it claims the Tribunal committed by refusing to examine the pleas other than the plea relating to the infringement of the right to be heard in order to justify the annulment of the reprimand decision and the termination decision. The second ground of appeal, divided into three parts, alleges errors of law that the appellant claims the Tribunal committed by refusing to examine the claims for damages in respect of the non-material harm.

Admissibility

29 Without formally raising an objection of inadmissibility, the FRA argues that the appeal is inadmissible; that is disputed by the appellant.

30 The FRA submits that the appeal is inadmissible since the reprimand decision and the termination decision contested by the appellant were annulled at first instance and since the pleas and arguments raised in support of the claims for compensation were found to be premature or were rejected as unfounded. The appellant cannot therefore claim to have been unsuccessful, in whole or in part, in its submissions, within the meaning of Article 9(2) of Annex I of the Statute of the Court of Justice of the European Union.

31 In that regard, it should be recalled that it is clear from Article 9(2) of Annex I of the Statute of the Court of Justice of the European Union that an appeal may be brought against a decision of the Tribunal which closes the proceedings by any party which has been unsuccessful, in whole or in part, in its submissions.

32 At first instance, the appellant sought, in particular, first, the annulment of the reprimand decision and an order that the FRA compensate for the non-material harm caused by the ‘gross illegality and irregularity of the administrative enquiry and of the decision to impose a reprimand’ and, second, annulment of the termination decision and compensation in respect of the material harm suffered, as well as adequate compensation for the non-material harm caused by that decision.

33 Before the Tribunal, the appellant was unsuccessful, in part, in its submissions. In the judgment under appeal, the Tribunal decided, first, to annul the reprimand decision and the termination decision due to the infringement of the appellant’s right to be heard and, second, to dismiss the actions as to the remainder.

34 Nevertheless, in respect of the present appeal, it should be recalled that the appellant’s claims seek the partial annulment of the judgment under appeal on the basis that, in particular, the Tribunal should have annulled the reprimand decision and the termination decision not only due to the infringement of his right to be heard, but also on the basis of the other pleas put forward at first instance which it erroneously did not examine. That claim seeks to obtain a further set of reasons, since the Tribunal found, in the judgment under appeal, that it was not necessary to examine those other pleas.

35 In the first ground of appeal, which specifically supports that claim, the appellant alleges, in essence, that the Tribunal was obliged to rule on the pleas which called into question the substantive legality of the reprimand decision and the termination decision and that the choice taken in the judgment under appeal not to take a position on those pleas constitutes an error of law which is reviewable by the Court in the context of an appeal.

36 In so far as it seeks to set aside the judgment under appeal, in that the Tribunal annulled the reprimand decision and the termination decision not just on grounds of procedure, but also on the basis of the other pleas put forward by the appellant in the proceedings at first instance, that application is inadmissible. Since the Tribunal upheld the appellant’s application for annulment of those decisions at first instance, that application is not capable of having any effect on the operative part of the judgment under appeal or of procuring an advantage for the appellant. An appeal, within the meaning of Article 9 of Annex I of the Statute of the Court of Justice of the European Union, may only be brought against the points of the operative part in which the party at issue has been unsuccessful, in whole or in part, in its submissions (see, to that effect, judgment of 21 September 2015, De Nicola v EIB, T‑848/14 P, EU:T:2015:719, paragraph 35 and the case-law cited). Consequently also, it is unnecessary to examine the first ground of appeal raised in support of that application.

37 By contrast, the claim that the judgment under appeal be set aside is admissible in so far as it seeks that the judgment be set aside to the extent that the Tribunal dismissed the action as to the remainder.

Substance

38 By its second ground of appeal, the appellant argues that the Tribunal erred in law in refusing to examine its claims for compensation for non-material harm.

39 The second ground of appeal comprises three parts.

40 At the outset, it should be noted that, in each of those branches, the appellant puts forward the infringement of Article 15 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22). By that complaint, the appellant merely states that, in so far as the present case concerns, essentially, an infringement of that directive, the Tribunal erred in law by ignoring it, since Article 15 of that directive requires that infringements of those provisions receive an ‘effective, proportionate and dissuasive’ sanction and that mere annulment of an unlawful act without the award of compensation in respect of the non-material harm is neither effective nor proportionate nor dissuasive.

41 In that regard, it should be recalled that it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 194 of the Rules of Procedure that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground concerned is inadmissible. An appeal or a plea which is too obscure for a response to be given does not satisfy those requirements and must be declared inadmissible (see judgment of 22 September 2016, Weissenfels v Parliament, T‑684/15 P, not published, EU:T:2016:525, paragraph 39 and the case-law cited).

42 In the present case, it should be recalled that Article 15 of Directive 2000/43 provides that ‘Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied’ and that ‘the sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive’. In that regard, the argument put forward by the appellant in support of the present complaint does not reveal, with sufficient clarity, the legal reasoning aimed at calling into question the finding of the Tribunal. In particular, in the absence of any information making it possible to understand on what basis the Tribunal had to consider, in the judgment under appeal, that Article 15 of Directive 2000/43, which is addressed to the Member States, was also such as to concern the FRA, it is necessary to declare the appellant’s complaint alleging the infringement of that provision inadmissible.

The first part of the second ground of appeal, alleging errors of law committed by the Tribunal in rejecting the claim for compensation for the non-material harm caused by the administrative enquiry.

43 By the first part, the appellant submits that, by rejecting of the claim for compensation for the non-material harm caused by the administrative enquiry, the Tribunal distorted the evidence, carried out an incomplete examination of the facts, committed a manifest error of assessment, violated the notion of proof with respect to the existence of harm as a condition for non-contractual liability, misapplied the principle of the rights of the defence and Article 86(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), breached the duty to state reasons and infringed the principle of the protection of legitimate expectations.

44 First, the appellant submits that the Tribunal erred in law in finding, in paragraph 74 of the judgment under appeal, that, as regards the initiation of the administrative enquiry relating to him, he cannot reasonably claim that the complaints made against him were not adequately defined.

45 Secondly, the appellant argues that the Tribunal erred in law in finding, in paragraph 75 of the judgment under appeal, that the fact that the administrative enquiry was conducted without the FRA having first adopted the implementing arrangements for Article 2 of Annex IX to the Staff Regulations and thus without defining the procedural framework of the enquiry is not such as to vitiate that enquiry on grounds of irregularity. Such an assessment does not correspond to the established case-law put forward at first instance, according to which a decision adopted in the absence of valid implementing rules was invalid when such rules are mandatory, when the rules of the Staff Regulations are so imprecise that their imprecision by itself leads to arbitrary decision making or when an applicant adduces evidence of arbitrary decision making.

46 Third, the appellant submits that, taking account of the seriousness of the disciplinary penalty, the nature and repetitiveness of the illegality and of its circumstances and the evidence adduced at first instance, the Tribunal should, in the present case, have granted him compensation for the non-material harm suffered on account of the administrative enquiry and the irregularity of the hearing. The Tribunal cannot therefore reject such a claim, as it did in paragraph 76 of the judgment under appeal, on the basis that ‘the applicant merely refers in his application to stress and anxiety during the administrative enquiry without substantiating his claims in more detail’. In any event, the Tribunal completely ignored the doctor’s certificate in Annex 86 to the application lodged in Case F‑25/14 which substantiates the damage.

47 The FRA contests the appellant’s arguments.

48 As a preliminary point, it must be recalled that, in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied as regards the illegality of the wrongful conduct alleged against the institutions, actual harm and the existence of a causal link between the conduct and the harm alleged to have been suffered (judgment of 14 May 1998, Lucaccioni v Commission, T‑165/95, EU:T:1998:105, paragraph 56). In setting out that case-law, the Tribunal was therefore entitled to make the finding, as it did in paragraph 73 of the judgment under appeal, that, even on the assumption that wrongful conduct on the part of the administration is established, it was still for the appellant to demonstrate that he has incurred actual harm and that there is a causal link between the administration’s wrongful conduct and that harm.

49 As noted in paragraphs 69 and 70 of the judgment under appeal, in Case F‑106/13, the appellant submitted that the administrative enquiry and the reprimand decision caused him significant non-material harm for which the FRA should be required to pay compensation of EUR 15 000. The appellant asserted more specifically that the initiation of the administrative enquiry in the absence of adequately defined complaints and without the prior adoption of any procedural framework, as provided for in Article 2(3) of Annex IX to the Staff Regulations, together with his hearing under irregular conditions, placed him in a ‘situation of great anxiety’. That anxiety was exacerbated by the feeling of not having been heard and having been treated unfairly by the Director.

50 In the first place, the Tribunal stated, in paragraph 74 of the judgment under appeal, that, as regards the complaints put forward to justify the initiation of the administrative enquiry, it was apparent from the file that ‘the internal appeal contained several accusations, including accusations of discrimination, against Ms B’. On this question, first, the Tribunal indicated that, although the letter of 9 November 2012, by which the Director had informed the appellant of his decision to initiate an administrative enquiry, made reference to ‘the words ... used and their tone’ in the internal appeal, it was necessary to note that the Director had dismissed that internal appeal on 12 November 2012 by refuting each of the five complaints raised in it by the appellant. Second, the Tribunal pointed out that, as the appellant himself observed in his application, the Director, in a note to the appellant of 3 December 2012, stated that he was ‘very sensitive to unfounded and unsubstantiated accusations of racism’. Thirdly, the Tribunal observed that, at the interview with the appellant on 5 December 2012, the enquirer had explained that the administrative enquiry had been initiated due to the appellant’s allegations of discrimination on the part of Ms B. Consequently, the Tribunal found that it was clear from the various documents and explanations provided during the administrative enquiry that the appellant cannot reasonably claim that the complaints made against him were not adequately defined.

51 With regard to that reasoning, first, the appellant merely submits that the documents and explanations referred to by the Tribunal did not allow it to understand the concrete and precise reasons for the breach of professional duty of which he was accused. However, it must be stated that such an argument in no way proves that the Tribunal erred in finding that ‘the internal appeal contained several accusations, including accusations of discrimination, against Ms B’, which constituted, according to the judgment under appeal, the purpose of the administrative enquiry initiated to establish whether or not the appellant had breached his professional duty. The references made by the Tribunal to various documents and explanations present in the file was such as to allow it to conclude that the appellant was properly able to understand what the complaints made against him were.

52 Second, the appellant’s argument that the Tribunal implied that the alleged accusations of discrimination constituted by themselves a serious suspicion of a disciplinary offence cannot be accepted. There is no evidence to suggest that the Tribunal proceeded on the basis of such an implication in the judgment under appeal. In paragraph 74 of the judgment under appeal, the Tribunal did not express a view on whether the complaints made by the administration towards the appellant were well founded or not, but merely recalled the content and specified that the appellant cannot legitimately claim to be unaware of them.

53 The argument put forward by the appellant challenging what is indicated in paragraph 74 of the judgment under appeal must therefore be rejected.

54 In the second place, in paragraph 75 of the judgment under appeal, the Tribunal indicated that the fact that the administrative enquiry was conducted without the FRA having first adopted the implementing arrangements for Article 2 of Annex IX to the Staff Regulations and thereby without having defined the procedural framework of the enquiry is not such as to vitiate that enquiry on grounds of irregularity. The Tribunal explained in that regard that, admittedly, Article 2(3) of Annex IX to the Staff Regulations requires the appointing authority of every institution to adopt implementing arrangements for that article, in accordance with Article 110 of the Staff Regulations. However, the Tribunal correctly stated that, contrary to what the appellant claimed, the fact that such arrangements have not been adopted does not in itself preclude the initiation and conduct of an administrative enquiry, since that enquiry must in any event be carried out in accordance with the provisions of Annex IX to the Staff Regulations and general principles of law such as respect for the rights of the defence.

55 None of the arguments put forward by the appellant is capable of calling that assessment into question in the context of the appeal. The appellant merely states that the initiation and conduct of the administrative enquiry are ineffective, in particular because the rules of the Staff Regulations, for which the implementing measures were lacking, are so imprecise that their imprecision leads to arbitrary decision making. In order to substantiate his claims, the appellant alleges that ‘arbitrary procedural arrangements of the inquiry to which the appellant referred in his application [are] evidently neither based on general principles of law nor on respect for the rights of the defence, both of which are in any case not sufficiently precise’. An appeal must however indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and the legal arguments specifically advanced in support of the appeal. However, first, the appellant does not indicate which provisions of Annex IX to the Staff Regulations or general principles of law he criticises for a lack of precision, but refers to ‘arbitrary procedural arrangements of the inquiry’. Second, the appellant does not explain in the appeal how the Tribunal could have erred in not finding, as he submitted in his application in Case F‑106/13, that the implementation of the rules referred to in the judgment under appeal was such ‘that any application of them must be arbitrary’.

56 The argument put forward by the appellant challenging what is indicated in paragraph 75 of the judgment under appeal must therefore be rejected.

57 In the third place, in paragraph 76 of the judgment under appeal, the Tribunal found that the reprimand decision was adopted following disciplinary proceedings which were conducted irregularly. As the Tribunal stated, in paragraph 63 of the judgment under appeal, the Director failed to comply with his obligations under Articles 2, 3 and 11 of Annex IX to the Staff Regulations and did not allow the appellant to effectively prepare his defence. Having thus established the irregular nature of the appellant’s hearing on 20 February 2013, the Tribunal therefore assessed whether the appellant had proved that he incurred actual harm and found that, in his application, the appellant merely refers to stress and anxiety during the administrative enquiry without substantiating his claims in more detail.

58 In that regard, the appellant argues that the Tribunal distorted the evidence presented at first instance and infringed the concept of proof required to show the harm suffered. However, as regards the claim for compensation for non-material damage linked to the administrative enquiry, the appellant limited himself, in point 125 of the application lodged in Case F‑106/13, to submitting that ‘the inquiry, conducted without clearly defined allegations and legal framework and without a proper hearing, [had] caused a lot of stress and anxiety … [that he] did not know what he was accused of, why and what his rights and obligations were [and that that] stress and anxiety was increased due to the feeling of not being heard and being treated unfairly by the [Director]’. As was noted without distortion by the Tribunal, those claims were not substantiated in more detail. It follows that the Tribunal did not err in finding that the claims seeking compensation in respect of the harm allegedly suffered by the appellant on account of the administrative enquiry should be rejected as being unfounded.

59 As to the appellant’s assertion that, in the context of an irregular administrative enquiry, it is not necessary to substantiate the allegations of stress and anxiety since that harm is evident from the circumstances of the case and from the nature of the irregularity itself, it must be recalled that the case-law cited by the Tribunal in paragraph 73 of the judgment under appeal shows that, even on the assumption that wrongful conduct on the part of the administration was established, it was still for the appellant to demonstrate that he had incurred actual harm and that there was a causal link between the administration’s wrongful conduct and that harm. Contrary to what the appellant claims, in the absence of such proof, it is not possible to infer automatically, from the irregularities found in Case F‑106/13, the right to be compensated ‘for the moral damage caused by the gross illegality and irregularity of the administrative inquiry and of the decision to issue a reprimand’.

60 Moreover, the appellant referred before the Court to the content of point 126 of the application lodged in Case F‑106/13, in which it made reference to the damage to his reputation and image which had been caused by ‘the allegations of breach of professional duties [which were] discussed in a department meeting to which he did not participate’. It should however be noted that such an allegation does not fall within the scope of this dispute, for which the appellant lodged a ‘claim for adequate compensation for the moral damage caused by the gross illegality and irregularity of the administrative inquiry and of the decision to issue a reprimand’.

61 In the fourth place, with regard to the appellant’s contention that the Tribunal ignored the doctor’s certificate in Annex 86 to the application lodged in Case F‑25/14, it must also be stated that that case was not concerned with a ‘claim for adequate compensation for the moral damage caused by the gross illegality and irregularity of the administrative inquiry and of the decision to issue a reprimand’, but rather a claim for compensation for the non-material harm caused by the irregular procedure and decision to terminate the contract. The Tribunal cannot therefore be criticised for not having taken into consideration evidence relied on by the appellant in order to substantiate the existence of another claim for compensation.

62 Consequently, since the appellant has failed to demonstrate that he has incurred actual harm and that there is a casual link between the administration’s wrongful conduct and that harm, the Tribunal was entitled to reject his claim for non-material harm caused by the administrative enquiry as unfounded for the reasons set out in the judgment under appeal.

The second part of the second ground of appeal, alleging errors of law committed by the Tribunal in rejecting the claim for non-material harm caused by the reprimand decision

63 In the context of the second part of the second ground of appeal, the appellant argues that, by rejecting as premature, in paragraphs 80 to 82 of the judgment under appeal, the claim for compensation for the non-material harm caused by the reprimand decision, the Tribunal distorted the evidence, committed a manifest error of assessment, carried out an incomplete examination of the facts, erred in law in the context of the assessment of the harm and infringed the duty to state reasons. Regardless of whether or not the FRA adopts the same or a different decision, as a result of the execution of the judgment under appeal, the reprimand decision, which was annulled by the judgment under appeal, has already caused actual harm to the appellant.

64 First, as stated at first instance, the reprimand decision was a shock in itself and adversely affected the integrity, dignity and reputation of the appellant. That decision made him appear guilty in the eyes of his colleagues and his superiors. Such allegations could not be dismissed a priori by the Tribunal on the basis that it would prejudge the execution of the judgment or was premature. The Tribunal should have determined whether they were well founded, regardless of the possibility that another decision would be adopted by the FRA after a regular procedure.

65 Second, the Tribunal failed to take account of the fact that, even if the right to be heard had not been infringed, the reprimand decision would have been declared illegal in any event if the Tribunal had examined the other pleas calling into question its substantive legality. The Tribunal failed to state any reason for its qualification of the harm as premature and created the impression that the reality of the harm depends on the outcome of the hearing, whereas it should have arrived at the conclusion that the reprimand decision was illegal, irrespective of that hearing.

66 Third, the Tribunal disregarded the particularly serious irregularities already committed in the context of the reprimand decision, with the consequence that the annulment of the illegal act could not constitute full reparation for the non-material harm suffered. The reprimand decision, in itself, contained an assessment of the appellant’s abilities and his conduct which was capable of causing him harm. In those circumstances, the Tribunal should have upheld the appellant’s claim for compensation.

67 The FRA contests the appellant’s arguments.

68 As set out in paragraphs 69, 71 and 79 of the judgment under appeal, in Case F‑106/13, the appellant submitted that the administrative enquiry and the reprimand decision caused him significant non-material harm for which the FRA had to be required to pay compensation of EUR 15 000. As regards the reprimand decision alone, the appellant argued that, since he was not guilty of any misconduct personally, that decision adversely affected his integrity, dignity and reputation within the FRA.

69 In response to that argument, the Tribunal stated, in paragraph 80 of the judgment under appeal, that it had upheld the plea alleging the irregularity of the disciplinary proceedings and the infringement of the appellant’s right to be heard since the appellant was denied the opportunity to state his views effectively on the criticisms levelled against him. In the Tribunal’s opinion, it was not excluded that the Director, had he heard the appellant, would have adopted a different decision.

70 Consequently, the Tribunal found, in paragraphs 81 and 82 of the judgment under appeal, that, if it was not to prejudice the FRA’s execution of the judgment under appeal, it was premature to rule on the present claim seeking compensation in respect of the non-material harm caused by the reprimand decision itself. For that reason, the Tribunal decided to dismiss the claims for compensation stemming from the illegality of the reprimand decision as premature.

71 In order to challenge that finding, the appellant argues, in essence, that, irrespective of the effect given to the judgment under appeal, the reprimand decision, which has been annulled, already caused him actual harm. In the present case, the Tribunal should have ascertained whether the allegations made by the appellant in that respect were justified, without even waiting for the decision likely to be adopted by the Director if he had heard the appellant. For the appellant, the reprimand decision is illegal not only due to the infringement of his right to be heard, but also on account of the other pleas put forward in the application lodged in Case F‑106/13. Those other pleas should have been examined by the Tribunal, taking account inter alia of the particular severity of the illegalities committed. In those circumstances, the Tribunal should have upheld the appellant’s claim for compensation.

72 As a preliminary point, it must be recalled that, according to the case-law, the annulment of an unlawful act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, unless the appellant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment (see judgment of 8 June 2011, Commission v Marcuccio, T‑20/09 P, EU:T:2011:257, paragraph 73 and the case-law cited).

73 In the present case, it must be stated that the appellant does not provide any evidence to substantiate his claim that the Tribunal erred in law in finding that he had not shown that the reprimand decision, annulled in the judgment under appeal, caused shock by itself and adversely affected his integrity, dignity and reputation.

74 Thus, while the appellant claims that the reprimand decision made him seem guilty in the eyes of his colleagues and superiors, he does not provide any evidence capable of establishing that the Tribunal erred in law by finding that he had not shown that the annulment of that decision was not such as to compensate him in that regard.

75 Similarly, the appellant does not present any evidence at all making it possible to identify which are the assessments of his abilities or his conduct which were made in the reprimand decision and which are likely to injure him and on which the Tribunal erred in law.

76 In any event, the absence of evidence substantiating the appellant’s claims that the Tribunal erred in law in its analysis of the existence of the non-material harm suffered cannot be compensated for by the response as to the possibility that the extent of that harm would differ according to whether the illegality found by the Tribunal was based solely on the plea alleging the irregularity of the disciplinary procedure and the infringement of the appellant’s right to be heard, as in the judgment under appeal, or was also based, as the appellant claims, on the other pleas put forward at first instance, and in particular the pleas calling into question the substantive legality of that decision.

77 As has already been noted, in order for the Union to incur non-contractual liability, a number of conditions must be satisfied as regards the illegality of the wrongful conduct alleged, actual harm and the existence of a causal link between the conduct and the harm alleged to have been suffered. Those three conditions are cumulative, which means that where one of them is not met, there can be no Union liability (see judgment of 12 September 2007, Combescot v Commission, T‑249/04, EU:T:2007:261, paragraph 49 and the case-law cited).

78 Consequently, in the absence of any argument provided by the appellant allowing the Court to understand on what basis the Tribunal could be criticised for its failure to compensate for non-material harm that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment, it is necessary to reject the argument presented in the context of the second part of the second ground of appeal, without it being necessary to rule on the illegality of the second ground of appeal.

The third part of the second ground of appeal, alleging errors in law committed by the Tribunal in rejecting the claim for compensation for the non-material harm caused by the termination decision

79 In the context of the third part of the second ground of appeal, the appellant argues that, by rejecting, in paragraphs 107 and 108 of the judgment under appeal, the claim for compensation for the non-material harm caused by the termination decision on the basis that the appellant merely indicated that the decision caused him psychological trauma and affected his reputation and dignity, yet did not demonstrate that such harm could not be entirely remedied by the annulment of that decision, the Tribunal distorted the evidence, committed a manifest error of assessment, carried out an incomplete examination of the facts, erred in law in the context of the assessment of the harm and infringed the duty to state reasons.

80 First, the appellant argues that, in order to determine whether the annulment of the termination decision was likely to constitute full compensation for the non-material damage suffered, the Tribunal should have taken into account the seriousness of the illegality committed and the fact that the annulled measure contained an assessment of his abilities or his conduct likely to injure him. The Tribunal should have found that the appellant had shown that the harm suffered could not be entirely remedied by the annulment of the termination decision. That error also affected the reasoning of the judgment under appeal since the Tribunal did not properly give reasons for the dismissal of the appellant’s claim due to the total absence of the legally-required assessment.

81 Second, the appellant argues that he substantiated, to the requisite legal standard, the non-material harm suffered because of the termination decision. The description provided in that regard at first instance was more detailed than that adopted by the Tribunal. That description was also supported by a doctor’s certificate produced in Case F‑25/14, which the Tribunal did not make reference to in the judgment under appeal. Furthermore, there is no doubt that the termination decision, in itself, had serious consequences. The Tribunal distorted the evidence by holding that the appellant merely stated that the termination decision had caused him deep psychological trauma which he did not actually demonstrate.

82 The FRA disputes the appellant’s argument.

83 As a preliminary point, it must be recalled that, according to case-law, the annulment of an unlawful act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, unless the appellant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based that cannot be compensated in full by that annulment (see judgment of 8 June 2011, Commission v Marcuccio, T‑20/09 P, EU:T:2011:257, paragraph 73 and the case-law cited).

84 Furthermore, it is clear from settled case-law that the court at first instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. The assessment of the facts by the first instance court therefore does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the appeal court. Where the court at first instance has found or assessed the facts, the appeal court has jurisdiction to review the legal characterisation of those facts and the legal inferences drawn by the court at first instance (see judgment of 15 March 2017, Fernández González v Commission, T‑455/16 P, not published, EU:T:2017:169, paragraph 24 and the case-law cited).

85 It should be noted moreover that, when an appellant alleges a distortion of the evidence by the court at first instance, the appellant must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 195(2) of the Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led the court at first instance to such distortion. Furthermore, it is settled case-law that a distortion of the evidence must be obvious from the documents before the Court, without there being any need to carry out a new assessment of the facts and the evidence (see judgment of 15 March 2017, Fernández González v Commission, T‑455/16 P, not published, EU:T:2017:169, paragraph 25 and the case-law cited).

86 As stated in paragraph 101 of the judgment under appeal, in Case F‑25/14 the appellant requested that the FRA be ordered to compensate him for the non-material harm he has incurred, assessed on equitable principles at EUR 50 000, stating, in particular, that the termination decision had caused him ‘deep psychological trauma’ in so far as it had, inter alia, ‘affected his reputation, dignity and self-esteem’. The appellant adds that those feelings were exacerbated by the decision not to let him work through his notice period and by the extremely short notice which he was given to ‘clear … his office space’.

87 In response to that argument, the Tribunal stated, in paragraph 106 of the judgment under appeal, that the termination decision, which was accompanied by the order to the appellant not to continue providing services during his notice period and to collect his personal belongings by 14 June 2013 at the latest, that is to say, the day after the termination decision was adopted, had been taken in breach of the appellant’s right to be heard.

88 In order to reject the claim for damages in respect of the non-material harm caused by the termination decision as unfounded, the Tribunal found, moreover, in paragraph 107 of the judgement under appeal, that the appellant had merely stated that the termination decision caused him psychological trauma and affected his reputation and dignity, yet had not demonstrated that such harm could not be entirely remedied by the annulment of that decision.

89 In that regard, the arguments put forward by the appellant are not capable of demonstrating that the Tribunal was wrong to conclude that the appellant had not shown, at first instance, that the harm caused by the termination decision could not be entirely remedied by the annulment of that decision.

90 It is clear from the application lodged in Case F‑25/14 that the appellant limited himself on that point to stating that ‘this prejudice cannot be repaired by the sole annulment of the decision as it understandably caused a deep psychological trauma’. The Tribunal therefore did not err in finding that such a statement could not be sufficient to show the existence of non-material harm that can be separated from the illegality on which the annulment is based that cannot be compensated in full by that annulment within the meaning of the case-law referred to in paragraph 83 above.

91 Similarly, in order to substantiate the existence of the alleged deep psychological trauma, the appellant merely stated that the termination decision and its context had caused a ‘total shock’ and that it had, alongside the conditions in which that decision was notified to him, ‘caused him a lot of pain, stress and anxiety’ and ‘affected his reputation, dignity and self-esteem’. Here again, in light of the case-law cited in paragraphs 83 to 85 above, the Tribunal cannot be said to have erred by finding that such arguments were not sufficient to show that such harm could not be entirely remedied by the annulment of the termination decision.

92 Lastly, in relation to the doctor’s certificate produced in Annex 86 to the application lodged in Case F‑25/14, it must be stated that the appellant put forward that certificate in the body of that application only in order to confirm that it ‘show[ed]’ the alleged non-material damage. No argument provided in that regard by the appellant at first instance was capable of establishing the impact that the certificate could have in order to determine the existence of non-material harm that can be separated from the illegality on which the annulment is based that cannot be entirely remedied by that annulment.

93 In this appeal, the appellant moreover limits himself, once again, to arguing that his allegations at first instance were substantiated by a doctor’s certificate, without indicating how that certificate allowed him to show the existence of that separate non-material harm. The appellant does not therefore indicate precisely the evidence alleged to have been distorted by the Tribunal and does not show before the Court the errors of appraisal which, in his view, led the court at first instance to that distortion within the meaning of the case-law referred to in paragraph 85 above.

94 Accordingly, it follows from the foregoing that the Tribunal did not err in finding that the appellant had not, in the present case, shown that the harm caused by the termination decision could not be entirely remedied by the annulment of that decision.

95 As a result, the argument presented in the context of the third part of the second ground of appeal must be rejected.

96 It follows from the foregoing that the second ground of appeal must be rejected. Consequently, the appeal must be dismissed in its entirety.

Costs

97 In accordance with Article 211(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives judgment in the case, the Court shall make a decision as to costs.

98 Under Article 134(1) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 211(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

99 Moreover, Article 211(4) of the Rules of Procedure states that the Court may, in appeals brought by officials, decide to apportion the costs between the parties where equity so requires.

100 In the present case, the appellant has been unsuccessful in his claims and the FRA has applied for costs. However, in equity, the Court considers that an equitable assessment of the circumstances in the present case, with regard in particular to the questions raised by the present appeal, is satisfied by ordering each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

1. Dismisses the appeal;

2. Orders DD to bear his own costs;

3. Orders the European Union Agency for Fundamental Rights (FRA) to bear its own costs.

Jaeger Frimodt Nielsen Dittrich

Delivered in open court in Luxembourg on 19 July 2017.

E. Coulon A. M. Collins

Registrar President