1 By his appeal, DD seeks to have set aside the judgment of the General Court of the European Union of 14 July 2021, DD v FRA (T‑632/19, EU:T:2021:434; ‘the judgment under appeal’), by which the General Court dismissed his action based on Article 270 TFEU and seeking, first, compensation for the non-material harm which DD allegedly suffered, second, annulment of the decision of the Director of the European Union Agency for Fundamental Rights (FRA) of 19 November 2018 rejecting his request for compensation and, third, annulment, if necessary, of the decision of 12 June 2019 rejecting the complaint against the abovementioned decision of 19 November 2018.
2 Title VI of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) is entitled ‘Disciplinary measures’. Title VI of the Staff Regulations includes Article 86, under which: ‘1. Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action. 2. Where the Appointing Authority or [the European Anti-fraud Office (OLAF)] becomes aware of evidence of failure within the meaning of paragraph 1, they may launch administrative investigations to verify whether such failure has occurred. 3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’
3 Article 1 of Annex IX to the Staff Regulations, entitled ‘Disciplinary proceedings’, provides: ‘1. Whenever an investigation by OLAF reveals the possibility of the personal involvement of an official, or a former official, of an institution, that person shall rapidly be informed, provided this is not harmful to the investigation. In any event, conclusions referring by name to an official may not be drawn once the investigation has been completed without that official concerned having been given the opportunity to comment on facts concerning him. The conclusions shall make reference to these comments. … 3. If, following an OLAF investigation, no case can be made against an official about whom allegations have been made, the investigation in question shall be closed, with no further action taken, by decision of the Director of OLAF, who shall inform the official and his institution in writing. The official may request that this decision be inserted in his personal file.’
4 The first paragraph of Article 2 of that annex provides: ‘The rules set out in Article 1 of this Annex shall apply, with any necessary changes, to other administrative enquiries carried out by the Appointing Authority.’
5 Under Article 3 of Annex IX: ‘On the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the Appointing Authority may: (a) decide that no case can be made against the official, in which case the official shall be informed accordingly in writing; or (b) decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the official; or (c) in the case of failure to comply with obligations within the meaning of Article 86 of the Staff Regulations: (i) decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex, or (ii) decide to initiate disciplinary proceedings before the Disciplinary Board.’
6 Article 11 of Annex IX reads as follows: ‘The Appointing Authority may decide on the penalty of a written warning or reprimand without consulting the Board. The official concerned shall be heard before such action is taken by the Appointing Authority.’
7 Article 29 of Annex IX to the Staff Regulations provides: ‘If no case has been made against the official pursuant to Articles 1(3) and 22(2) of this Annex, the official shall be entitled to request that the damage suffered should be made good through suitable publicity for the decision of the Appointing Authority.’
8 The background to the dispute is set out at paragraphs 1 to 17 of the judgment under appeal, as follows: ‘1 The [appellant], DD, was recruited on 1 August 2000 by an agency of the European Union, the European Monitoring Centre on Racism and Xenophobia (EUMC), now [the FRA], 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 … Initially employed under a fixed-term contract, he was given a contract of indefinite duration from 16 December 2006. 2 In 2009, and then in the context of the appraisal exercise relating to 2011 and, in particular, in bringing an internal appeal in accordance with the internal rules of the FRA against the draft appraisal report …, the [appellant] claimed to be the victim of discrimination based on his race or ethnicity. 3 In the light of the words and tone used [by the appellant in the exercise of that legal remedy], the Director of the FRA initiated an administrative inquiry on 9 November 2012. 4 Following a hearing held on 20 February 2013, the purpose of which was to hear the [appellant] in accordance with Articles 2 and 11 of Annex IX to the [Staff Regulations], applicable by analogy to contract staff, the Director of the FRA imposed a reprimand on the [appellant]. 5 Finally, by letter of 13 June 2013, the Director of the FRA informed the [appellant] of his decision to terminate his contract of indefinite duration (“the termination decision”). 6 By judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118; “the annulment judgment”), the Civil Service Tribunal annulled the reprimand. The reason for that annulment was that the [appellant]’s right to be heard had been infringed, in that the Director of the FRA had omitted to communicate the conclusions of the administrative inquiry to him before the hearing of 20 February 2013 and had therefore not enabled him effectively to prepare his defence (annulment judgment, paragraph 63). 7 In the same judgment, the Civil Service Tribunal also annulled the termination decision on the ground that that decision was adopted without the Director of the FRA, beforehand, having expressly informed the [appellant] that he was envisaging the termination of the latter’s contract on the basis of various incidents and that he had not invited him to express any comments he might have on that matter (annulment judgment, paragraph 90). 8 The Civil Service Tribunal, however, rejected the [appellant]’s claims for damages seeking compensation for the non-material harm caused by the administrative inquiry on three grounds: first, because the [appellant] could not reasonably claim that the complaints made against him were not adequately defined for the inquiry to be initiated (annulment judgment, paragraph 74); secondly, because the fact that the administrative inquiry 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 inquiry was not such as to vitiate that inquiry (annulment judgment, paragraph 75); and, thirdly, because, although the [appellant] was heard without having been able effectively to prepare his defence, the fact remained that the [appellant] had merely referred in his application to stress and anxiety during the administrative inquiry without substantiating his claims in more detail (annulment judgment, paragraph 76). 9 The Civil Service Tribunal also rejected the [appellant]’s claims for damages in respect of the non-material harm stemming from the fact that the reprimand had unfairly affected his integrity, dignity and reputation within the FRA. The Civil Service Tribunal noted in particular in that regard that, since the annulment of the reprimand stemming from a breach of the [appellant]’s right to be heard, it was not excluded that a different decision would have been adopted, had he been heard. Consequently, the Civil Service Tribunal held that the claims for damages were premature, if it is not to prejudge the FRA’s execution of the annulment judgment (annulment judgment, paragraphs 78 to 82). 10 The Civil Service Tribunal also rejected the [appellant]’s claims for damages in respect of the material and non-material harm caused by the illegality of the termination decision. As regards the non-material harm, the Civil Service Tribunal found that the [appellant] had merely stated that that decision had caused him deep psychological trauma and had adversely affected his reputation and dignity, without demonstrating that that harm could not be entirely remedied by the annulment judgment (paragraph 107). 11 The [appellant] brought an appeal against the annulment judgment, which was dismissed by [the General Court in the judgment of 19 July 2017, DD v FRA (T‑742/15 P, EU:T:2017:528)]. 12 In the meantime, from 1 March 2016, the FRA reinstated the [appellant] in his position and paid him the salary he had not received. 13 Furthermore, the [appellant] had filed, on 12 April 2013, a complaint with the European Data Protection Supervisor (EDPS) on the ground that the administrative inquiry had been conducted in breach of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1). The EDPS suspended the examination of that complaint pending the annulment judgment, then pending the judgment [of the General Court of 19 July 2017, DD v FRA (T‑742/15 P, EU:T:2017:528)]. 14 On 18 December 2017, the EDPS considered that, since it had not established a sufficient legal framework for the opening and the conduct of the administrative inquiries, the inquiry concerning the [appellant] had infringed Article 4, Article 5(a) as well as Articles 11 and 12 of Regulation No 45/2001 … Those findings became final on 16 March 2018, following the EDPS’s rejection of requests for revision from the person concerned and the FRA. 15 On 19 July 2018, the [appellant] submitted a request, under Article 90(1) of the Staff Regulations, seeking payment of a sum of EUR 100000 by way of financial compensation for a series of unlawful acts committed by the FRA (“the request for compensation”). First, the [appellant] claimed that the administrative inquiry was opened without being based on a sufficiently serious suspicion based on evidence that he had accused his supervisor of racial discrimination and that the inquiry had rather been based on exaggeration and manipulation. Secondly, the appellant submitted that the administrative inquiry, the disciplinary proceedings, the reprimand and the termination decision constituted discrimination based on his ethnic origin. Thirdly, the [appellant] stated that the opening and the conduct of the administrative inquiry had infringed Article 4, Article 5(a) as well as Articles 11 and 12 of Regulation No 45/2001. Fourthly, the [appellant] asserted that the reprimand and the termination decision had been based on an unlawful administrative inquiry which contained offensive and defamatory language. Fifthly, the [appellant] claimed that the FRA had made offensive and defamatory remarks, that it had infringed his right to the presumption of innocence and that it acted in breach of his right to privacy and to data protection during the administrative inquiry, during the disciplinary proceedings, in the reprimand and in the termination decision, during the proceedings before the Civil Service Tribunal, the General Court and the European Parliament’s Committee on Budgetary Control, and as a result of the publication of the press release concerning the annulment judgment. According to the [appellant], the abovementioned conduct, taken as a whole, constituted psychological harassment. Sixthly, the [appellant] took the view that the FRA had thus infringed its duty of care by failing to take into consideration all the factors which might have affected its decisions and its conduct and, in particular, by failing to inform him as early as possible of the allegations made against him. Finally, the [appellant] added that all those unlawful acts had caused him stress, anxiety, uncertainty and feelings of neglect and disregard. Humiliated, he claimed to have also suffered from the condescension and scorn with which he was treated. 16 On 19 November 2018, the [appointing authority] rejected the [appellant]’s request for compensation on the ground, inter alia, that the annulment judgment had been implemented because he had been reinstated in his position and the reprimand had been removed from his personal file [(“the decision of 19 November 2018”)]. 17 On 14 February 2019, the [appellant] lodged a complaint which the [appointing authority] rejected on 12 June 2019 [(“the rejection decision of 12 June 2019”)]. In [that] rejection decision, the [appointing authority] stated, inter alia, that the FRA had decided not to recommence the disciplinary proceedings and that all acts related to the administrative inquiry had been removed from the [appellant]’s file.’
9 By application lodged at the Registry of the General Court on 23 September 2019, the appellant brought the action referred to in paragraph 1 of the present judgment.
10 By its action, the appellant asked the Court, inter alia, to order the FRA to pay compensation for the non-material harm caused by the disciplinary proceedings which led to the reprimand, by the termination decision and by the failure to implement correctly the annulment judgment annulling those two decisions. In support of his request, the appellant relied on six heads of unlawfulness alleging unlawful conduct on the part of the FRA (together, ‘the unlawful conduct’), stemming from: - as far as the first head is concerned, the fact that, after the annulment judgment, the FRA did not hear the appellant and did not adopt a decision pursuant to Article 3(a) of Annex IX to the Staff Regulations; - so far as concerns the second head, the fact that the administrative inquiry and the initial disciplinary proceedings were opened irregularly; - concerning the third head, the FRA’s failure to compensate the non-material harm resulting from the reprimand annulled by the annulment judgment; - so far as concerns the fourth head, the FRA’s failure to implement the annulment judgment and to conduct the disciplinary proceedings within a reasonable time and with due diligence; - as far as the fifth head is concerned, the fact that the opening and the conduct of the administrative inquiry infringed Regulation No 45/2001, the Staff Regulations and the right to respect for private life guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’); and - as regards the sixth head, the FRA’s failure to compensate him for the damage resulting from unfounded, defamatory and offensive statements, in breach of the force of res judicata attaching to the annulment judgment, of the right to the presumption of innocence and of the duty of care, and of the obligation to refrain from any psychological harassment.
11 In addition, in so far as the appellant sought compensation for the non-material harm which he claims to have suffered as a result of the unlawful conduct, he put forward, to that end, several arguments concerning the actual existence of that harm and the existence of a causal link between that harm and that conduct.
12 By the judgment under appeal, the General Court held that the conditions for the FRA to incur liability had not been satisfied in the present case. First, it did not uphold, on the basis that they were well founded, any of the heads of unlawfulness raised by the appellant. Second, the General Court held that the existence of non-material harm and of a causal link between that harm and the unlawful conduct alleged had not been established by the appellant.
13 The appellant claims that the Court should: - set aside the judgment under appeal; - consequently, annul the decision of 19 November 2018 and, if necessary, the rejection decision of 12 June 2019; - award him compensation for the non-material harm he suffered, estimated ex aequo et bono at EUR 100000; and - order the FRA to pay all the costs.
14 The FRA claims that the Court should: - dismiss the appeal; and - order the appellant to pay all the costs.
15 In support of his appeal, the appellant relies on eight grounds of appeal, alleging errors on the part of the General Court in each of the eight parts of the judgment under appeal, respectively, namely in the statement of facts, in the examination of the first to sixth heads of unlawfulness and in the part relating to the examination of the existence of actual harm and a causal link.
16 By the second ground of appeal and the first part of the fifth ground, which must be analysed at the outset, the appellant submits that the General Court, first, wrongly concluded that, in the present case, Article 3(a) of Annex IX to the Staff Regulations was not applicable and, therefore, that respect for the rights of the defence was not required, and, second, provided contradictory reasoning in that regard.
17 By the first part of the second ground of appeal, the appellant complains, in essence, that the General Court wrongly held that the annulment of an act did not oblige the institutions and bodies of the European Union to resume the procedure at the very point at which the illegality occurred, since they have a broad discretion to decide the measures to put into effect in order to give due effect to an annulment judgment. It is apparent from the judgment of 5 September 2014, Éditions Odile Jacob v Commission (T‑471/11, EU:T:2014:739), cited in paragraph 45 of the judgment under appeal, that the procedure for replacing an annulled act must be resumed at the very point at which the illegality occurred, since the annulment of a decision does not necessarily affect the preparatory acts.
18 In the second part of the second ground, the appellant complains that the General Court wrongly applied Article 3(a) of Annex IX to the Staff Regulations, by ruling that that article does not apply where an administrative investigation is withdrawn or abandoned in circumstances, like those in the present case, where the FRA has decided not to resume the disciplinary proceedings from the point in time at which the reprimand had been vitiated. According to the appellant, Article 3(a) of Annex IX to the Staff Regulations lists exhaustively the options at the FRA’s disposal after an administrative investigation report has been produced. In addition, the purpose of that article must be read in conjunction with Article 29 of Annex IX to the Staff Regulations to enable the interests of the official concerned to be taken into account; accordingly, the withdrawal of an administrative investigation report without any reasoning and without any publicity amounts to an infringement of those articles. The appellant submits that the General Court created an artificial distinction between closing an administrative inquiry and withdrawing or abandoning it, which deprives Articles 3 and 29 of Annex IX to the Staff Regulations of much of their effect.
19 The FRA contends that the first and second parts of the second ground should be rejected.
20 So far as concerns the first part, that body considers that it is ineffective. In that regard, the FRA states that the case-law cited in paragraph 45 of the judgment under appeal does not, contrary to what the appellant claims, mean that the appointing authority must resume a disciplinary procedure which is found to be vitiated by a procedural error. It adds that, in any event, the appellant has no legitimate interest in arguing that the FRA was under an obligation to resume the disciplinary procedure rather than abandon it.
21 As regards the second part, the FRA submits that it did not abandon the administrative inquiry report, but that it abstained from resuming the administrative inquiry procedure in relation to the appellant and removed from its file all the earlier acts relating to that inquiry. Article 266 TFEU, which governs the implementation of annulment judgments, does not preclude it from deciding to abandon the disciplinary procedure and the fact that Article 3 of Annex IX to the Staff Regulations does not mention such a possibility means only that that provision is not applicable.
22 It must be recalled that it follows from Article 266 TFEU that the institution, body, office or agency whose act has been declared void is required to take the necessary measures to comply with the judgment annulling that act and, in order to comply with that judgment and to implement it fully, to have regard not only to its operative part but also to the grounds which constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in that operative part (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 35 and the case-law cited).
23 It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled act (see, to that effect, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 29).
24 Since Article 266 TFEU does not specify the nature of the measures to be taken by the author of the annulled act in order to comply with that obligation, it is for the author to identify those measures, whilst having, in the choice of those measures, a wide discretion, provided that it complies with the operative part of the judgment which annulled that act and with the grounds that constitute its essential basis (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 102).
25 More particularly, the procedure for replacing an annulled act must be resumed at the very point at which the illegality occurred (see, to that effect, judgment of 3 July 1986, Council v Parliament, 34/86, EU:C:1986:291, paragraph 47), since the annulment of an act does not, in principle, affect the validity of measures preparatory to that act, which were adopted before the stage at which that defect was observed (judgment of 6 July 2017, Toshiba v Commission, C‑180/16 P, EU:C:2017:520, paragraph 24).
26 It is in the light of those considerations that it must be ascertained whether the General Court erred in law in finding, in paragraphs 45 to 49 of the judgment under appeal, that compliance with the annulment judgment entailed only the obligation, for the FRA, to withdraw the reprimand from the appellant’s personal file on the ground that Article 3 of Annex IX to the Staff Regulations was not applicable in the present case.
27 In that regard, it should be noted that, by the annulment judgment, the Civil Service Tribunal annulled the reprimand imposed on the appellant on the ground that his right to be heard had been infringed, in that the Director of the FRA had relied on the conclusions of the administrative inquiry report in order to initiate the disciplinary proceedings and immediately adopt the decision to impose a reprimand on him, but had failed to communicate those conclusions to him prior to the hearing of 20 February 2013 and had therefore not enabled him to prepare his defence effectively.
28 Accordingly, the Civil Service Tribunal held that the reprimand decision had been taken at the end of an irregular procedure, in breach of the requirements laid down in Articles 2, 3 and 11 of Annex IX to the Staff Regulations, which enshrined, inter alia, the appellant’s right to be heard.
29 In those circumstances, it is common ground that the procedural defect established in the annulment judgment by the Civil Service Tribunal occurred at the final stage of a prior administrative investigation and therefore did not affect the disciplinary proceedings ab initio, in particular as regards the validity of the administrative inquiry report.
30 It should be borne in mind, first, that disciplinary proceedings within the meaning of Annex IX to the Staff Regulations consists of two separate phases, the first being the administrative investigation in which incriminating and exonerating evidence is investigated, initiated by a decision of the appointing authority and closed, after the official concerned has been heard concerning the alleged facts, by an investigation report, and the second being the disciplinary proceedings themselves, initiated by the appointing authority on the basis of the investigation report and which require that the official be heard before a penalty is imposed on him or her by the appointing authority (judgment of 14 October 2021, Bernaldo de Quirós v Commission, C‑583/19 P, EU:C:2021:844, paragraph 56).
31 Second, as the Advocate General observed, in essence, in point 50 of his Opinion, the annulment of an act concluding an administrative procedure which comprises several stages does not necessarily entail the annulment of the entire procedure preceding the adoption of the contested act regardless of the grounds, procedural or substantive, of the annulment judgment. The author of the act must, therefore, have reference to the date on which it had adopted the annulled act with a view to adopting the replacement act.
32 In the present case, it must therefore be held, as the Advocate General observed in point 56 of his Opinion, that, since the annulment of the reprimand did not affect the preparatory acts which preceded that decision, the FRA had to resume the disciplinary procedure against the appellant at the very point at which the illegality established by the annulment judgment had occurred, namely at the time of the adoption of the decision on the action to be taken following the administrative inquiry.
33 It is also apparent from paragraph 47 of the judgment under appeal that the General Court itself recalled that, following the annulment judgment, the FRA could have relied again on the administrative inquiry report of 12 February 2013 in order to resume the disciplinary procedure against the appellant at the stage at which it had been vitiated by the breach of his rights of defence, in compliance with the procedural requirements arising from Article 3 of Annex IX to the Staff Regulations.
34 While the appointing authority has a broad discretion in relation to the conduct of administrative investigations, the fact remains that it must comply with those procedural requirements.
35 Consequently, the provisions of Annex IX to the Staff Regulations, and in particular Article 3 of that annex, set the framework of the exercise by the appointing authority of its discretion as to the action to be taken in response to the first stage of the disciplinary proceedings, during which the impartial administrative investigation relating to the person concerned is conducted.
36 More specifically, Article 3 of Annex IX to the Staff Regulations, which is intended to govern the action of the appointing authority at the end of the administrative investigation stage, lists exhaustively the three options available to that authority on the basis of the administrative investigation report. It is apparent from the clear and unequivocal wording of that article that, after having notified the EU official concerned of all evidence in the files and after hearing him or her, the appointing authority may, first, decide that no case can be made against that official, in which case it must inform that official accordingly in writing. Second, even if there is or appears to have been a failure to comply with the obligations concerned, the appointing authority may decide that no disciplinary measure will be taken and, if appropriate, it may merely address a warning to the official. Third, where an official or former official fails to comply with obligations under the Staff Regulations, whether intentionally or through negligence, the appointing authority may decide to initiate disciplinary proceedings and, where appropriate, to refer the matter to the Disciplinary Board for that purpose.
37 In the present case, as the Advocate General observed, in essence, in points 55 and 56 of his Opinion, following the annulment judgment, based on a breach of the appellant’s rights of defence at the end of the administrative stage of the procedure, the FRA was at that very stage in the procedure, that is to say, at the stage where it was incumbent on the FRA to choose between those three options, laid down exhaustively in Article 3 of Annex IX to the Staff Regulations.
38 As the General Court noted in paragraph 48 of the judgment under appeal, the FRA did not opt for any of the three possibilities set out in that provision, but opted for a ‘different solution’ consisting of abandoning the disciplinary proceedings by removing from the appellant’s personal file all the earlier acts relating to the administrative inquiry.
39 By holding, in paragraphs 46, 48 and 49 of the judgment under appeal, that, in so doing, the FRA acted in accordance with the case-law referred to in paragraph 24 of the present judgment and did not infringe Article 3 of Annex IX to the Staff Regulations, on the ground that that provision was not applicable, since the annulment judgment required the FRA only to withdraw the reprimand from the appellant’s personal file, since it was deemed never to have existed, the General Court erred in law.
40 Contrary to what the General Court held, the FRA’s discretion, in the context of the implementation of the annulment judgment, did not allow it to depart from the three options exhaustively laid down in Article 3 of Annex IX to the Staff Regulations, with the result that, by deciding to abandon the disciplinary proceedings by removing from the appellant’s personal file all the earlier acts relating to the administrative inquiry, that body infringed that provision and exceeded the limits of its discretion, such as they arise from the case-law cited in paragraph 25 of the present judgment.
41 Furthermore, it must be borne in mind that, in accordance with Article 29 of Annex IX to the Staff Regulations, if no case has been made against the official, he or she is entitled, where appropriate, to have the damage suffered made good through suitable publicity for the decision of the appointing authority. For that reason also, contrary to what the General Court held in paragraphs 48 and 49 of the judgment under appeal, the FRA was required to resume, in accordance with Article 3 of Annex IX, the disciplinary proceedings against the appellant and to find, where appropriate, that no case should be made against him, so as to enable him possibly to assert his right to compensation.
42 Consequently, the first and second parts of the second ground of appeal must be upheld.
43 By the third part of the second ground of appeal and the first part of the fifth ground, the appellant disputes the merits of the General Court’s finding that, for the purposes of the correct implementation of the annulment judgment, the FRA was not required to hear him before adopting a new decision on the further course of the disciplinary proceedings, in accordance with Article 3 of Annex IX to the Staff Regulations.
44 In the third part of the second ground, the appellant claims, in essence, that the judgment under appeal contains an error of law and breaches the principle of legal certainty in that the General Court, in paragraph 49 of the judgment under appeal, held that, in the present case, respect for the rights of the defence was ‘not required’, ‘since the FRA withdrew from all proceedings against the [appellant] … and thus did not adopt a measure which affects him adversely within the meaning of Article 41 of the Charter’.
45 By the first part of the fifth ground, the appellant complains that the General Court erred in law in paragraphs 83 and 84 of the judgment under appeal by failing to take into consideration the fact that the proper implementation of the annulment judgment required a hearing before closing the administrative inquiry on the ground that no case could be made against him, and that such a hearing never took place.
46 The FRA argues that it did not adopt a decision adversely affecting the appellant, which is why it was under no obligation to hear him beforehand. The appellant therefore disregards the context of the implementation of the annulment judgment, which resulted in the appellant’s reinstatement. In addition, the FRA states that it did not ‘decide that no case can be made’, as required by Article 3 of Annex IX to the Staff Regulations, but abandoned the disciplinary proceedings, that is to say, without taking such a decision.
47 In addition, in its view, so far as concerns the first part of the fifth ground, the appellant merely repeats his arguments set out in the context of his first ground.
48 It should be recalled, first, that Article 266 TFEU requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the annulment judgment (see, to that effect, judgments of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 30, and of 29 April 2004, IPK-München and Commission, C‑199/01 P and C‑200/01 P, EU:C:2004:249, paragraph 83).
49 In the present case, as has been noted in paragraphs 27 and 28 of the present judgment, the Civil Service Tribunal held that, by failing to communicate to the appellant the conclusions of the administrative inquiry prior to his hearing on 20 February 2013 - the purpose of which was precisely to hear him on those conclusions - and during which the FRA decided to initiate the disciplinary proceedings and subsequently to impose a penalty following a single hearing, without having allowed him to prepare his defence effectively, the FRA had failed to fulfil its obligations under, inter alia, Article 3 of Annex IX to the Staff Regulations.
50 As regards, second, respect for the rights of the defence, of which the inter partes principle is a corollary, it must be noted that an official against whom an EU institution has opened an administrative procedure must be put in a position during that procedure to make known his or her views on the reality and the relevance of the facts, the alleged circumstances and the documents which that institution intends to use against him or her in support of its allegation that there has been an infringement of the provisions of the Staff Regulations. It follows from the foregoing that the right to be heard pursues a dual objective. First, it serves to enable the case to be examined and the facts to be established in as precise and correct a manner as possible and, second, it ensures that the person concerned is in fact protected (see, to that effect, judgment of 14 October 2021, Bernaldo de Quirós v Commission, C‑583/19 P, EU:C:2021:844, paragraphs 63 and 64).
51 Article 3 of Annex IX to the Staff Regulations expressly enshrines the right of the official concerned to be heard, in order to enable him or her effectively to put forward his or her point of view on the establishment of the facts in the administrative investigation before the appointing authority adopts, on the basis of the investigation report, one of the decisions listed in that provision (see, to that effect, judgment of 14 October 2021, Bernaldo de Quirós v Commission, C‑583/19 P, EU:C:2021:844, paragraph 43).
52 In the present case, it is common ground that the appellant was not heard before the FRA took the decision to abandon the proceedings and to erase all the acts relating to the administrative inquiry from his file, without, however, deciding that no case could be made against him, as required by Article 3(a) of Annex IX to the Staff Regulations.
53 It is apparent from the examination of the first and second parts of the second ground of appeal that, in order to implement the annulment judgment, the FRA should have resumed the disciplinary proceedings at the very point at which the illegality occurred, in accordance with Article 3 of Annex IX to the Staff Regulations.
54 It is therefore sufficient to note that, by holding, in paragraphs 49 and 83 of the judgment under appeal, in essence, that the FRA, by taking the decision to abandon the disciplinary proceedings by removing from the appellant’s personal file all the earlier acts relating to the administrative inquiry, did not adopt a measure adversely affecting him, within the meaning of Article 41 of the Charter, with the result that respect for the rights of the defence was not required, the General Court erred in law, since such a decision, taken in disregard, as is apparent from the examination of the first and second parts of the second ground of appeal, of Article 3 of Annex IX to the Staff Regulations, deprived him of the right to be heard, expressly laid down in that provision, before the adoption of one of the decisions referred to therein.
55 It follows from all those considerations that the third part of the second ground of appeal must be upheld.
56 By the fourth part of the second ground of appeal, the appellant claims that the judgment under appeal is vitiated by contradictory reasoning since, on the one hand, in paragraph 49 of that judgment, the General Court stated that Article 3(a) of Annex IX to the Staff Regulations was not applicable and, on the other hand, in paragraph 76 of that judgment, it stated the opposite.
57 The FRA takes the view that there is no contradiction between paragraph 49 and paragraph 76 of the judgment under appeal, since in the present case the competent appointing authority both refrained from resuming the disciplinary procedure and removed from the appellant’s personal file all the earlier acts relating to the administrative inquiry.
58 It should be borne in mind that the question whether the grounds of a judgment of the General Court are contradictory is a question of law which is amenable to judicial review on appeal (judgment of 29 July 2010, Greece v Commission, C‑54/09 P, EU:C:2010:451, paragraph 87 and the case-law cited).
59 In the present case, the General Court held, in paragraph 76 of the judgment under appeal - in the context of the examination of the third head of unlawfulness, alleging that the FRA failed to compensate the non-material harm resulting from the reprimand annulled by the annulment judgment - that the FRA decided to abandon the proceedings against the appellant pursuant to Article 3(a) of Annex IX to the Staff Regulations. Furthermore, the General Court appears to suggest, in paragraph 76 of that judgment under appeal, that the solution chosen by the FRA, in order to implement the annulment judgment, went beyond what was necessary to comply with the requirements of Article 3 of Annex IX to the Staff Regulations.
60 However, it is apparent from paragraph 48 of the judgment under appeal, to which paragraph 76 thereof refers, that, according to the General Court, the FRA ‘opted for a different solution’ than those offered by Article 3 of Annex IX to the Staff Regulations, taking the view, in paragraph 49 of that judgment, that that provision, in particular point (a) thereof, was not applicable in the present case.
61 Accordingly, the reasoning of the judgment under appeal is vitiated by contradiction in that regard.
62 Consequently, the fourth part of the second ground must be upheld.
63 In the light of all of the foregoing considerations, and without it being necessary to examine the other grounds of appeal, which cannot result in the judgment under appeal being set aside to a greater extent, the second ground of appeal and the first part of the fifth ground must be upheld and, consequently, the judgment under appeal must be set aside.
64 Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
65 In that regard, it must be held that, as is apparent from paragraph 10 of the present judgment, the appellant’s claims for damages seek compensation for the harm which he alleges to have suffered as a result of the FRA’s failure to duly implement the annulment judgment, which is expressed by the unlawful conduct.
66 However, that aspect of the dispute involves the examination of complex questions of fact, on the basis of evidence which was not assessed by the General Court in the judgment under appeal, since it considered that the FRA had correctly implemented the annulment judgment and, therefore, did not analyse whether the situation of the appellant - who had been deprived of the possibility of invalidating the allegations made in the administrative inquiry report and, in particular, of obtaining that the FRA decide that no case could be made against him - could be the cause of harm suffered by him as a result of the FRA’s wrongful conduct.
67 Consequently, since the state of the proceedings does not permit final judgment to be given in the matter, the case must be referred back to the General Court.
68 As the case is to be referred back to the General Court, it is appropriate to reserve the costs relating to the present appeal proceedings.