1 By his appeal, DD seeks to have set aside the judgment of the General Court of the European Union of 21 December 2021, DD v FRA (T‑703/19, EU:T:2021:923; ‘the judgment under appeal’), by which the General Court dismissed his action based on Article 270 TFEU and seeking, in essence, compensation for the non-material damage allegedly suffered by the appellant estimated ex aequo et bono at EUR 50000, caused by the initiation and conduct of an administrative procedure within the European Union Agency for Fundamental Rights (FRA).
2 The first paragraph of Article 11 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides: ‘An official shall carry out his duties and conduct himself solely with the interests of the [European] Union in mind. He shall neither seek nor take instructions from any government, authority, organisation or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the [European] Union.’
3 Article 12a(1) of the Staff Regulations provides: ‘Officials shall refrain from any form of psychological or sexual harassment.’
4 Article 17 of the Staff Regulations provides: ‘1. An official shall refrain from any unauthorised disclosure of information received in the line of duty, unless that information has already been made public or is accessible to the public. 2. An official shall continue to be bound by this obligation after leaving the service.’
5 The second paragraph of Article 25 of the Staff Regulations provides: ‘Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’
6 Article 86 of the Staff Regulations provides: ‘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.’
7 Article 1 of Annex IX to the Staff Regulations 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.’
8 Article 2(1) of Annex IX to the Staff Regulations 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.’
9 Article 3 of Annex IX to the Staff Regulations states: ‘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.’
10 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.’
11 Article 47 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides: ‘Apart from cessation on death, the employment of temporary staff shall cease: … (c) where the contract is for an indefinite period: … (i) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than one month for each completed year of service, subject to a minimum of three months and a maximum of 10 months. … …’
12 Article 4(1) 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), provides: ‘Personal data must be: (a) processed fairly and lawfully; …’
13 The background to the dispute is set out in paragraphs 1 to 26 of the judgment under appeal in the following terms: ‘1 The applicant, DD, was recruited on 1 August 2000 by the European Monitoring Centre on Racism and Xenophobia (EUMC), now the European Union Agency for Fundamental Rights (FRA), as a member of the temporary staff within the meaning of Article 2(a) of the [CEOS]. He was initially employed under a fixed-term contract and was given a contract of indefinite duration as from 16 December 2006. 2 By letter of 13 June 2013, the FRA Director informed the applicant of his decision to terminate the applicant’s contract of indefinite duration and requested him not to provide services during the notice period “beginning [that day] and finishing on 12 April 2014”. 3 The 10-month notice period provided for in Article 47(c)(i) of the CEOS expired on 13 April 2014. During the notice period, the applicant was relieved of his obligation to provide his services and to go to the FRA premises. 4 By emails of 5 March and 9 October 2014 (together, “the emails at issue”), the applicant sent A, a former FRA official, from his private email address, certain internal information of a confidential nature belonging to FRA. These were documents containing, inter alia, a list of payments made by FRA to B, its former legal advisor. 5 On 20 March 2015, the FRA Director initiated an administrative inquiry under Article 2 of Annex IX to the Staff Regulations …, concerning, in essence, the circumstances in which FRA internal documents were released (… “the administrative inquiry”). 6 The [administrative] inquiry was conducted on the basis of three decisions (together, “the decisions relating to the initiation of the administrative inquiry”), namely, first, Decision DIR/003/2015 of 20 March 2015 concerning the initiation of the administrative inquiry (“the decision to initiate the administrative inquiry”), second, Decision DIR/004/2016 of 3 March 2016 extending the scope of the administrative inquiry (“the decision to extend the administrative inquiry” … ) and, third, Decision DIR/005/2016 of 18 March 2016 on the appointment of an investigation panel. 7 By judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118), the Civil Service Tribunal annulled the termination decision referred to in paragraph 2 above. By contrast, it rejected the applicant’s claim for compensation for non-material damage suffered. 8 The applicant brought an appeal against the judgment of the Civil Service Tribunal, which was dismissed by judgment of 19 July 2017, DD v FRA (T‑742/15 P, …, EU:T:2017:528). 9 On 29 February 2016, FRA reinstated the applicant in his post, in the context of complying with the judgment of 8 October 2015, DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118). 10 On 30 March 2016, FRA sent the applicant a note informing him, first, of the initiation of the administrative inquiry and, second, that a hearing was to be held on 5 April 2016. 11 In an exchange of emails of the same date, the applicant asked FRA to provide him with the evidence against him. In response to his request, the investigators sent him certain documents on the same day, including a copy of his email of 9 October 2014. 12 By email of 4 April 2016, in addition to sending the email referred to in paragraph 11 above, FRA sent the applicant additional evidence, including a copy of his email of 5 March 2014. 13 On 5 April 2016, FRA investigators heard the applicant and seven other witnesses. 14 On 10 October 2016, the applicant was informed that the inquiry report [“the inquiry report”] had been completed. 15 On 12 October 2016, the applicant asked FRA to forward to him the conclusions of the inquiry report, the conclusions of the inquiry and any other document directly related to the allegations made against him. 16 By email of 20 October 2016, in response to the email referred to in paragraph 15 above, FRA sent the applicant the conclusions of the inquiry report. 17 On 17 November 2016, the applicant was invited to a hearing, within the meaning of Article 3 of Annex IX to the Staff Regulations, which was to take place on 6 December 2016. On that occasion, the applicant also received a copy of the inquiry report with its annexes. 18 On 5 December 2016, FRA informed the applicant that the hearing referred to in paragraph 17 above had been postponed until a later date. 19 The hearing took place on 12 January 2017. At that hearing, the applicant produced a written statement in which he claimed that the email of 9 October 2014 had been leaked within FRA and requested that an internal inquiry be initiated in that regard. 20 On 13 January 2017, the applicant received the record of the hearing referred to in paragraph 19 above. 21 On 20 January 2017, the applicant sent the FRA Director his final comments on the inquiry report. 22 On 28 April 2017, the FRA Director decided to close the administrative inquiry with no further action. The applicant was notified of that decision on 4 May 2017. 23 On 27 August 2018, the applicant submitted a request … within the meaning of Article 90(1) of the Staff Regulations, by which he requested, first, access to certain documents, namely the decisions relating to the initiation of the administrative inquiry and the letter from the Head of Human Resources and Planning of 20 March 2015 to the Director …, second, the initiation of an inquiry into a breach of the confidentiality of the administrative inquiry and, third, compensation for the non-material damage he allegedly suffered on account of the unlawful conduct of FRA in the course of the administrative inquiry. 24 On 21 December 2018, the FRA Director partially upheld the request of 27 August 2018 and granted the applicant access to certain documents requested by him, referred to in paragraph 23 above (“the decision of 21 December 2018”). The documents sent to the applicant included the decisions relating to the initiation of the administrative inquiry. The remainder of the request was rejected. 25 On 5 March 2019, the applicant lodged a complaint against the decision of 21 December 2018 under Article 90(2) of the Staff Regulations … 26 By decision of 24 June 2019, the FRA Director sent the applicant the note of 20 March 2015 and rejected the remainder of the complaint referred to in paragraph 25 above (“the decision of 24 June 2019”).’
14 By application lodged at the Registry of the General Court on 11 October 2019, the appellant brought the action referred to in paragraph 1 of the present judgment.
15 In support of his first head of claim, by which he requested the Court to order FRA to pay compensation for the non-material damage which he had allegedly suffered as a result of the unlawful acts committed by FRA both when the administrative inquiry was initiated and during that inquiry, the appellant had put forward nine pleas of unlawfulness based on instances of unlawful conduct on the part of FRA (together, ‘the unlawful conduct’), resulting from the fact: - (i) that the investigators did not have a mandate to investigate, first, an infringement by the applicant of Articles 11 and 17 of the Staff Regulations and, second, the email of 5 March 2014, so that the administrative inquiry has no legal basis and infringes Article 86(2) of the Staff Regulations and Article 2 of Decision 2013/01 of the FRA Executive Board of 22 May 2013 on the conduct of administrative inquiries and disciplinary procedures (‘the first plea of unlawfulness’); - (ii) that the decision to initiate the administrative inquiry was not based on the existence of a reasonable suspicion (‘the second plea of unlawfulness’); - (iii) that FRA did not inform him in due time of the initiation of the administrative inquiry and did not communicate to him the decisions relating to it (‘the third plea of unlawfulness’); - (iv) that the duration of the administrative procedure was excessive and unreasonable (‘the fourth plea of unlawfulness’); - (v) that the decision closing the inquiry was not reasoned (‘the fifth plea of unlawfulness’); - (vi) that the inquiry report contains an error of law and a manifest error of assessment; - (vii) infringement of the confidentiality of the administrative inquiry by FRA; - (viii) infringement of Article 4(1)(a) and point (a) of the first subparagraph of Article 5 of Regulation No 45/2001 (‘the eighth plea of unlawfulness’); and - (ix) breach of the duty of care, lack of objectivity and impartiality and misuse of powers.
16 By the judgment under appeal, the General Court held that the third and fourth pleas of unlawfulness were well founded. However, it considered that the conditions necessary for an EU institution or body to incur liability were not met in the present case. It considered that neither the existence of non-material damage suffered by the appellant as a result of the unlawful conduct nor the causal link between that unlawful conduct and that alleged damage had been established by the appellant.
17 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - consequently grant him compensation for the non-material damage he suffered, estimated ex aequo et bono at EUR 50000, and if necessary to annul the decision of 21 December 2018 and the decision of 24 June 2019; and - order FRA to pay all the costs.
18 FRA contends that the Court should: - dismiss the appeal; and - order the appellant to pay all the costs.
19 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, second and fifth to ninth pleas of unlawfulness and in the part relating to the examination of the existence of the actual damage and the causal link.
20 By his first ground of appeal, by the second part of his third ground of appeal and by his fifth ground of appeal, which it is appropriate to examine together, the appellant complains that the General Court distorted the evidence and erred in law in holding that, in the present case, the 10-month notice period had to be regarded as a period of normal employment, which was not such as to exempt the appellant from the duty of loyalty and of confidentiality imposed on him by Articles 11 and 17 of the Staff Regulations respectively.
21 The appellant submits, in particular, that, in paragraphs 3 and 78 of the judgment under appeal, the General Court distorted the evidence and wrongly classified the facts, by holding that, during the notice period, the appellant was not merely ‘relieved of his obligation to provide his services’, but was asked not only to desist from performing his professional tasks but also not to go to the FRA premises. Consequently, contrary to what the General Court stated in paragraphs 77 and 78 of the judgment under appeal, the notice period cannot be regarded as a period of normal employment. Accordingly, the General Court erred in law in considering that that period was not such as to exempt the appellant from the duty of loyalty and of confidentiality imposed on him by Articles 11 and 17 of the Staff Regulations respectively. The appellant adds, in his reply, that that distortion of the evidence is the basis for the findings of the General Court in paragraphs 58, 63, 86, 155, 174, 229, 243 and 245 of the judgment under appeal.
22 The appellant also submits that the General Court erred in law in paragraphs 77 to 80 of the judgment under appeal in finding that that duty of loyalty and of confidentiality applied during the notice period. First, a notice period during which the appellant, unlike any other member of staff, did not have access to the FRA premises cannot be classified as a ‘period of normal employment’. Second, the General Court interpreted Article 17 of the Staff Regulations broadly, as meaning that the person concerned is, during that period, a member of staff as long as there is a contractual relationship. Furthermore, according to the appellant, it is apparent from the German and French-language versions of that provision that, for the purposes of the application of Article 17 of the Staff Regulations, the mere existence of that relationship during the notice period is not sufficient. Similarly, all the language versions of Article 11 of the Staff Regulations indicate, as a requirement for its application, the existence of active status as a member of staff.
23 Lastly, the appellant submits, in essence, that the General Court erred in law in paragraph 154 of the judgment under appeal by holding that, on 5 March 2014, when one of the emails at issue was sent, the appellant was still a member of staff subject to the Staff Regulations.
24 According to FRA, first, by claiming that the 10-month notice period did not constitute, in the present case, a ‘period of normal employment’, the appellant seeks to call into question the General Court’s assessment of the facts, which is inadmissible at the appeal stage. In any event, during that notice period, the appellant continued to enjoy all his financial rights, while remaining bound by his obligations as a member of staff, with the exception of the obligation to provide his professional services during the notice period.
25 Second, FRA submits that the appellant, in maintaining that the obligations laid down in Articles 11 and 17 of the Staff Regulations were not applicable during the notice period, merely repeats the arguments which he put forward in his application and in his reply at first instance and which were rejected by the General Court. In any event, it follows from the case-law that the obligations under the Staff Regulations are imposed during a period of leave on personal grounds, so that the same applies to the notice period.
26 As regards, first, the appellant’s argument relating to the alleged distortion of the evidence by the General Court in paragraphs 3 and 78 of the judgment under appeal, it should be recalled that, in accordance with the settled case-law of the Court of Justice, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. It follows that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 25 April 2024, NS v Parliament, C‑218/23 P, EU:C:2024:358, paragraph 58 and the case-law cited).
27 There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect or manifestly at odds with its wording. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Furthermore, where an appellant claims that the evidence has been distorted, it must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (judgments of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, EU:C:2023:340, paragraph 73 and the case-law cited, and of 11 January 2024, Foz v Council, C‑524/22 P, EU:C:2024:23, paragraph 38 and the case-law cited).
28 In the present case, it should be noted that the General Court, in paragraphs 3 and 78 of the judgment under appeal, refers to the email of 13 June 2013 by which FRA informed the appellant of its decision to terminate his employment contract. As the General Court found in paragraph 2 of the judgment under appeal and as the appellant himself acknowledges, it is clear from that email that the FRA Director asked him not to report to his place of work during the notice period.
29 The appellant does not put forward any argument capable of demonstrating a substantive inaccuracy in the General Court’s reading of that email. The appellant does not explain, with the requisite clarity and precision, how the General Court distorted the content of that email by finding, in paragraphs 3 and 78 of the judgment under appeal, that, during the notice period, the appellant was relieved of his obligation to provide his services and to report for work at the FRA premises. That argument must therefore be rejected as unfounded.
30 Second, as regards the argument alleging that the General Court erred in law in finding that the notice period had to be classified as a ‘period of normal employment’, the General Court found, in paragraphs 77 to 80 and 154 of the judgment under appeal, in essence, that during the 10-month notice period which the appellant was required to observe, even though he was exempt from the obligation to provide the services under his employment contract and to report for work at the FRA premises, he remained, however, subject to the rights and obligations arising from the Staff Regulations, in particular the duty of loyalty and of confidentiality.
31 In that regard, it is apparent from Article 47(c)(i) of the CEOS that, apart from cessation on death, the employment of a member of the temporary staff is to cease, where the contract is for an indefinite period, at the end of the period of notice stipulated in the contract, that period of notice not being less than one month for each completed year of service, subject to a minimum of 3 months and a maximum of 10 months.
32 It follows that a member of the temporary staff does not lose his or her status as a member of EU staff during the notice period and therefore remains subject to the obligations incumbent upon every official of the European Union, unless express provision is made to the contrary (see, by analogy, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 69).
33 Therefore, the General Court did not err in law in holding, in paragraphs 77, 79 and 154 of the judgment under appeal, that, during the notice period preceding the end of his employment contract with FRA, the appellant retained the status of member of EU staff, subject to the rights and obligations arising from the Staff Regulations.
34 More specifically, as regards the argument that the General Court wrongly held that the duty of loyalty and of confidentiality arising from Articles 11 and 17 of the Staff Regulations respectively applied during the notice period, it must be pointed out that, contrary to what the appellant claims, there is nothing in the scheme, context and purpose of those articles to suggest that, in the absence of specific provisions, they require, for the purposes of their application, that the staff member or official of the European Union concerned be in an ‘active’ position in which he or she is required to carry out his or her professional duties, with the result that those articles cease to apply from the time when that notice period starts to run.
35 First, as regards Article 11 of the Staff Regulations, the duty of loyalty laid down therein applies at least during the period in which the person concerned has the status of official or other member of staff, since that obligation is intended primarily to preserve the relationship of trust which must exist between the latter and the EU institution concerned (see, to that effect, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 44).
36 Second, as regards the duty of confidentiality which, in accordance with the first paragraph of Article 17 of the Staff Regulations, requires any official or other member of EU staff to refrain from any unauthorised disclosure of information received in the line of duty, unless that information has already been made public or is accessible to the public, it is sufficient to note that it is apparent from the second paragraph of that provision that such an official or other member of EU staff remains subject to that obligation after leaving the service.
37 Thus, that principle applies a fortiori to the notice period which precedes, where appropriate, the termination of the service of an official or other member of EU staff.
38 Those considerations cannot be invalidated by the arguments put forward by the appellant, alleging that, in the present case, during his notice period, the FRA Director ordered him not to perform his professional services and denied him access to the premises of that body, with the result that his employer would not have treated him, during that period, as a member of staff.
39 In that regard, it must be stated that, although Article 47(c)(i) of the CEOS does not expressly provide that the working conditions of a staff member whose contract has been terminated may be adjusted during the notice period, so that that period is presumed to constitute a period of normal employment, the fact remains that the institutions, bodies, offices and agencies of the European Union have a wide discretion in the organisation of their departments and in assigning their members of staff, provided that that assignment is carried out in the interest of the service and in conformity with the equivalence of posts, including for staff members who are serving a notice period.
40 Therefore, the decision to release a member of the temporary staff, whose contract of employment has been terminated, from his or her obligation to provide the services arising from that contract and to prohibit him or her from reporting to the premises of the EU institution or body to which he or she is attached during the notice period may, in principle, constitute a measure taken in the interests of the service and cannot necessarily preclude, contrary to what the appellant essentially claims, the classification of that period as a ‘period of normal employment’.
41 In those circumstances, the General Court did not err in law in finding, in paragraph 80 of the judgment under appeal, that the fact that, during the notice period, the appellant was released from the obligation to provide his professional services and to go to the premises of FRA was not such, in the present case, as to exempt him from the duty of loyalty and of confidentiality imposed on him by Article 11 and Article 17 of the Staff Regulations respectively, with the result that the appellant’s arguments in that regard must be held to be unfounded.
42 Consequently, the first ground of appeal, the second part of the third ground of appeal and the fifth ground of appeal must be rejected as unfounded.
43 By his second ground of appeal and by the first and third parts of his third ground of appeal, which it is appropriate to examine together, the appellant criticises the General Court for having committed, in paragraphs 49 to 84 of the judgment under appeal, several errors of law and manifest errors of assessment, as well as a distortion of the evidence, in its assessment of the first and second pleas of unlawfulness, concerning the initiation of the administrative inquiry and the extension of the scope of that inquiry, and for failing to provide an adequate statement of reasons in that regard.
44 First, according to the appellant, the General Court distorted the evidence and erred in law in finding that the decision to initiate the administrative inquiry covered the emails at issue, that is to say, also the email of 5 March 2014, whereas only the email of 9 October 2014 was referred to in that decision. The appellant submits that the General Court did not examine his line of argument alleging that that decision concerned the leak of a single document, namely the document attached to the email of 9 October 2014, and not the content of the email of 5 March 2014. In that regard, he submits that the General Court failed to take account, first, of the wording of that decision and, second, of the context in which it was adopted. Similarly, according to the appellant, in paragraphs 52 to 61 of the judgment under appeal, the General Court erred in law in its interpretation of the scope of the decision to extend the administrative inquiry, by ignoring both its express wording and the context in which it was adopted, in particular the requirements arising from Regulation No 45/2001, and the wording of the operative part of the decision concerning the appointment of an investigation panel.
45 Second, the appellant alleges that in its analysis, the General Court did not sufficiently distinguish between the initiation of the administrative inquiry and the extension of the scope of that inquiry. Although the appellant acknowledges that, as is apparent from paragraph 66 of the judgment under appeal, the second plea of unlawfulness is closely linked to the first, he considers that, as regards the latter, the decision to initiate the administrative inquiry concerned the leak of a single document, whereas the question of law raised in the context of the second plea of unlawfulness was whether the evidence available to FRA at the time when the administrative inquiry was initiated met the conditions to be regarded as constituting prima facie evidence necessary for the purpose of initiating an administrative inquiry. Consequently, according to the appellant, the General Court did not draw sufficient distinction between the emails at issue and did not state that the email of 9 October 2014, which was the only email initially referred to when the administrative inquiry was initiated, could be regarded as such prima facie evidence.
46 Third, the appellant alleges that the General Court distorted the evidence, provided an inadequate statement of reasons and erred in law in finding, contrary to what is apparent from the particularly broad wording of the decision to extend the administrative inquiry, adopted in March 2016, that the appellant’s argument that FRA had launched a ‘fishing operation’ against him was a mere assertion, which was not supported by any concrete evidence.
47 FRA contends that the second ground of appeal and the first and third parts of the third ground of appeal are inadmissible, arguing that the appellant merely challenges the findings of fact made by the General Court, and adds that, in any event, the appellant’s arguments are manifestly unfounded.
48 First, since the appellant claims that the General Court distorted evidence by misreading the decisions relating to the initiation of the administrative inquiry, it should be pointed out that, while a distortion of the evidence may consist in an interpretation of a document contrary to its content, it is not sufficient, in order to establish such a distortion, to show that that document could have been interpreted differently from the interpretation adopted by the General Court. To that end, it is necessary to establish that the General Court manifestly exceeded the limits of a reasonable assessment of the said document, in particular by reading it in a manner contrary to its wording (judgment of 23 March 2023, PV v Commission, C‑640/20 P, EU:C:2023:232, paragraph 134).
49 In the present case, it should be noted, first, that it is apparent from the very wording of the operative part of the decision to initiate the administrative inquiry, as reproduced in paragraph 50 of the judgment under appeal, which is not challenged in the context of the present appeal, that that inquiry had sought to determine the facts and circumstances in which the appellant had been put in possession of FRA internal documents even though he had no access to such documents since 14 June 2013. Second, by the decision to extend the administrative inquiry, FRA decided, in accordance with the terms of that decision, as reproduced in paragraph 53 of the judgment under appeal, which is equally unchallenged in the context of the present appeal, to extend the scope of that inquiry both ratione temporis and ratione personae, by also referring to external actors and former FRA staff members, for the purpose of determining the persons involved and identifying the sources of the leak.
50 Therefore, the finding made by the General Court, in paragraphs 51, 55 and 58 of the judgment under appeal, that the decisions relating to the initiation of the administrative inquiry were formulated in sufficiently broad terms to be regarded as encompassing all factors relating to the leak at issue, with the result that that inquiry could have necessarily covered any other document that may have been the subject of unauthorised disclosure linked to the emails at issue, namely both the email of 9 October 2014 and the email of 5 March 2014, does not appear to be manifestly incorrect in the light of the wording and context of those documents.
51 The line of argument alleging distortion of the decisions relating to the initiation of the administrative inquiry must therefore be rejected as unfounded.
52 As regards, second, the line of argument alleging that the General Court did not draw, in paragraphs 64 to 85 of the judgment under appeal, sufficient distinction between the initiation of the administrative inquiry and the extension of its scope, in so far as the email of 5 March 2014 could not have constituted prima facie evidence enabling the administrative inquiry to be initiated, it should be recalled, as is apparent from the case-law cited in paragraph 26 of the present judgment, in an appeal, that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts.
53 Provided that the evidence has been properly obtained and the general principles of law and the Rules of Procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it, save where that evidence has been distorted (judgment of 11 January 2024, Foz v Council, C‑524/22 P, EU:C:2024:23, paragraph 37 and the case-law cited).
54 By his line of argument, as summarised in paragraph 45 of the present judgment, the appellant seeks, in reality, to obtain a re-examination by the Court of Justice of the evidence produced at first instance and analysed in the judgment under appeal, without relying on any distortion of that evidence by the General Court, which, for the reasons set out in the preceding paragraph, goes beyond the jurisdiction of the Court of Justice.
55 The appellant’s line of argument must therefore be rejected as inadmissible.
56 In the third and last place, the appellant complains that the General Court erred in finding, in paragraph 85 of the judgment under appeal, that the argument that FRA had launched a ‘fishing operation’ in March 2016 was a mere assertion which was not corroborated by any concrete evidence.
57 In that regard, it must be stated that the arguments put forward in support of that complaint do not demonstrate that the findings made by the General Court in that paragraph of the judgment under appeal are based on a distortion of the evidence put forward at first instance, since that line of argument thus seeks, in reality, to call into question the General Court’s definitive assessment of the facts for that purpose.
58 In accordance with the case-law referred to in paragraph 26 of the present judgment, that line of argument must therefore be rejected as inadmissible.
59 Accordingly, the second ground of appeal and the first and third parts of the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
60 By his fourth ground of appeal, the appellant submits that, in paragraphs 145 to 149 of the judgment under appeal, the General Court erred in law, provided an inadequate statement of reasons and carried out an incomplete examination of the action at first instance.
61 The appellant submits, first of all, that the General Court wrongly held, in paragraph 146 of the judgment under appeal, that the second paragraph of Article 25 of the Staff Regulations dealt with the obligation to state reasons, in particular as regards decisions adversely affecting an EU official. Next, he claims that the General Court erred in law in holding that he could not legitimately rely on an infringement of Article 3 of Annex IX to the Staff Regulations on the ground that the decision closing the administrative inquiry lacked a statement of reasons. Furthermore, according to the appellant, the General Court failed to state the reasons why the appellant could not rely on Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
62 Finally, the appellant alleges that the General Court examined the fifth plea of unlawfulness only in part and, in paragraph 149 of the judgment under appeal, failed to state to the requisite legal standard the reasons for its decision that there was no need to examine the other arguments relied on by the appellant in that regard, in particular as regards an alleged breach of the principle of legal certainty.
63 According to the appellant, by closing the administrative inquiry without choosing a specific option, FRA breached the principle of legal certainty. The exercise of the right to compensation for damage suffered by an official or other member of EU staff in respect of whom no case has been made, as provided for in Article 29 of Annex IX to the Staff Regulations, is subject to the appointing authority having decided to opt for the solution referred to in Article 3(a) of Annex IX to the Staff Regulations. In the present case, by failing to opt for one of the solutions referred to in Article 3, FRA circumvented that provision and Article 29 of Annex IX to the Staff Regulations, and substantially deprived those provisions of meaning and any effect. In so doing, FRA breached the principle of legal certainty, given that the appellant had a legitimate interest in benefiting from the rights conferred upon him by Article 29 of Annex IX to the Staff Regulations, read in conjunction with Article 3 thereof.
64 FRA contends that the fourth ground of appeal is inadmissible and adds that, in any event, it is manifestly unfounded.
65 It notes, first, that in accordance with Article 41(2)(a) of the Charter, paragraph (c) of that provision applies only to decisions adversely affecting the addressee. According to FRA, the General Court was right in holding, in paragraphs 145 and 147 of the judgment under appeal, that a decision to close disciplinary proceedings without further action does not constitute an act adversely affecting the person concerned and that it had provided an adequate statement of reasons in that regard.
66 Second, it contends that, contrary to what the appellant claims, the decision to close the administrative inquiry without further action does not breach the principle of legal certainty.
67 Third, it contends that, in the present case, even if the General Court had erred in law in finding that the decision closing the inquiry without further action should have been reasoned, that would not procure any advantage for the appellant. Accordingly, the appellant cannot have a legitimate interest in criticising, on grounds of a failure to state reasons, a decision by which an administrative inquiry concerning him was closed without further action.
68 It should be recalled that, in accordance with the second sentence of the second paragraph of Article 25 of the Staff Regulations, any decision relating to a specific individual which is taken under the Staff Regulations and which ‘adversely affect[s]’ the official concerned, must be reasoned. That obligation to state the reasons on which an act adversely affecting an individual is based is intended, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested and, second, to enable the EU Courts to review the legality of that act (order of 23 July 2019, UC v Parliament, C‑196/19 P, EU:C:2019:653, paragraph 5 (View of Advocate General Saugmandsgaard Øe, point 6 and the case-law cited)).
69 In the present case, the General Court concluded, in paragraphs 147 and 148 of the judgment under appeal, without ruling on the other arguments put forward by the appellant in that regard, that he could not legitimately rely on the infringement of Article 3 of Annex IX to the Staff Regulations, alleging that the decision closing the administrative inquiry without taking further action did not contain a statement of reasons, on the ground that such a decision did not constitute, for the purposes of Articles 90 and 91 of the Staff Regulations, an ‘act affecting [an official] adversely’.
70 It is therefore necessary to consider, first, whether that decision closing the administrative inquiry constitutes an act having adverse effect within the meaning of Article 90(2) of the Staff Regulations.
71 Under that provision, any person to whom the Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him or her adversely. Article 91(1) of the Staff Regulations states that the Court of Justice has jurisdiction in any dispute between the European Union and any person to whom the Staff Regulations apply concerning the legality of an act adversely affecting that person within the meaning of Article 90(2). Those provisions are applicable by analogy to actions brought by other members of staff under Article 117 of the CEOS (see, to that effect, judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 94).
72 According to the case-law of the Court of Justice, only acts or measures which produce binding legal effects capable of directly and immediately affecting the appellant’s interests by bringing about a distinct change in his or her legal position are acts adversely affecting him or her within the meaning of Article 90(2) of the Staff Regulations (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 95 and the case-law cited).
73 In order to determine whether an act produces such effects, it is necessary to examine the substance of that act and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 96 and the case-law cited).
74 The concept of an ‘act affecting [an official] adversely’, within the meaning of Article 90(2) of the Staff Regulations, must be interpreted broadly and must be understood as any act capable of directly affecting a particular legal position (see, by analogy, judgment of 21 December 2023, Scuola europea di Varese, C‑431/22, EU:C:2023:1021, paragraph 64).
75 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, closed without further action in the present case, 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 the 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 (judgment delivered today in C‑587/21 P, DD v FRA, paragraph 36).
76 In so far as a decision to take no further action is capable of constituting a decision to the effect that the appointing authority considers that no case can be made against the person concerned, within the meaning of Article 3(a) of Annex IX to the Staff Regulations, it should be noted that such a decision entails a change in his legal position by conferring on him certain rights.
77 First, as is apparent from Article 29 of Annex IX to the Staff Regulations, read in conjunction with Article 1(3) and Article 2(1) of that annex, if no case has been made against the official, he or she may be entitled, where appropriate, to have the damage suffered made good through suitable publicity for the decision of the appointing authority.
78 Second, under Article 1(3) of Annex IX to the Staff Regulations, read in conjunction with Article 2(1) of that annex, if 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 a decision of the appointing authority, notified in writing to the official, who has the right to request that that decision be inserted in his or her personal file.
79 Therefore, a decision to close without further action the administrative inquiry to which an official or other member of EU staff was subject must be regarded as constituting an act capable of directly affecting that official’s or that staff member’s legal position and, therefore, as an ‘act affecting him [or her] adversely’ within the meaning of Article 90(2) of the Staff Regulations, a fortiori where the wording of that act and the context in which it is adopted do not, as in the present case, enable it to be established, with sufficient certainty, that no charge could be made against that official or that staff member within the meaning of Article 3 of Annex IX to the Staff Regulations. If the appellant is not to be deprived of the effective judicial protection enabling him or her to assert his or her rights under the Staff Regulations, he or she must be able to know precisely the exact reasons why the administrative procedure concerning him or her has been brought to an end.
80 In the light of those factors, the General Court erred in law in holding, in paragraphs 147 and 148 of the judgment under appeal, that FRA’s decision to close the administrative procedure against the appellant without further action did not constitute an act adversely affecting him, with the result that the appellant could not legitimately rely on the infringement of Article 3 of Annex IX to the Staff Regulations on the ground that that decision did not contain a statement of reasons.
81 Consequently, the fourth ground of appeal must be upheld and the judgment under appeal set aside in so far as the General Court rejected the fifth plea of unlawfulness raised by the appellant.
82 By his sixth ground of appeal, the appellant alleges, in essence, that, in paragraphs 169 to 173 of the judgment under appeal, the General Court made several errors of law and carried out an incomplete examination of his arguments in support of the eighth plea of unlawfulness. Furthermore, the General Court failed to comply with its obligation to state reasons in that regard.
83 By the first part of his sixth ground of appeal, the appellant claims that the errors committed by the General Court in its assessment of the first and second pleas of unlawfulness have repercussions on its assessment of the eighth plea of unlawfulness, with the result that his line of argument overlaps in part with that relied on in support of his first two grounds of appeal. In that context, the appellant submits, in essence, that the General Court failed to state to the requisite legal standard the reasons for its decision that Article 4(1)(a) of Regulation No 45/2001 had not been infringed in the present case. According to the appellant, the General Court was also required to examine whether the administrative inquiry complied with the requirements relating to the protection of personal data.
84 By the second part of his sixth ground of appeal, the appellant submits that the General Court wrongly held that, in the light of the fact that the administrative inquiry had been initiated on the basis of sufficient evidence, the appellant could not validly rely on an infringement of Regulation No 45/2001. According to the appellant, the initiation and conduct of the administrative inquiry and all the subsequent acts resulting from the administrative inquiry were in breach of Regulation No 45/2001. The appellant alleges that FRA was in possession of the personal data concerning the appellant contained in the emails at issue, as attachments to a request for access to documents from a third party, and decided to further process those data in a manner incompatible with that purpose. He complains, in that regard, that the General Court failed to rule on those arguments, submitted in the context of his observations of 15 February 2021 on FRA’s replies to the General Court’s questions.
85 FRA contends that the sixth ground of appeal is manifestly inadmissible. In any event, that ground of appeal is unfounded. It observes, in essence, that the appellant merely repeats the statements he made at first instance.
86 In accordance with the case-law cited in paragraph 26 of the present judgment, it is necessary to reject at the outset as inadmissible the arguments put forward in the first part of the sixth ground of appeal by which, in essence, the appellant, by claiming that there was no legal basis justifying the inclusion of the email of 9 October 2014 in the administrative inquiry or, therefore, justifying that there was ‘prima facie evidence’ for the purposes of initiating that inquiry, challenges the General Court’s assessment of the facts, without alleging any distortion of those facts.
87 As regards the alleged failure to state reasons for the judgment under appeal in that respect, it is important to recall that, according to the settled case-law of the Court of Justice, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and its reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 9 November 2023, XC v Commission, C‑527/21 P, EU:C:2023:850, paragraph 99 and the case-law cited).
88 In the present case, after finding, in paragraph 170 of the judgment under appeal, that the arguments put forward by the appellant, relating to FRA’s alleged infringement of Article 4(1)(a) and Article 5(1)(a) of Regulation No 45/2001 when the administrative inquiry was initiated, were closely linked to the arguments which he put forward in support of the second plea of unlawfulness, the General Court held, in paragraphs 171 to 173 of that judgment, that it follows from the analysis carried out in the context of that second plea of unlawfulness that the administrative inquiry conducted with regard to the appellant had been initiated on the basis of sufficient evidence of a failure to comply with obligations under the Staff Regulations, in accordance with Article 86(2) of those regulations. In those circumstances, the General Court held, in essence, that the appellant’s arguments alleging that FRA had infringed the provisions of Regulation No 45/2001 had to be rejected on the ground that they were based on an incorrect premiss.
89 That statement of reasons is sufficient to enable the appellant to understand why his line of argument was dismissed and the Court of Justice to exercise its power of review. The appellant’s allegation that the statement of reasons was inadequate must therefore be dismissed as unfounded.
90 It follows that the first part of the sixth ground of appeal must be rejected.
91 As regards the second part of the sixth ground of appeal, it is sufficient to note, in the first place, that, in so far as the arguments in support of that part must be understood as alleging that the General Court did not examine the appellant’s line of argument, made in his observations of 15 February 2021 and amplifying the arguments which he had put forward in support of the eighth plea of unlawfulness, which alleged infringement of Article 4(1)(a) of Regulation No 45/2001, it is apparent from paragraph 88 of the present judgment that the General Court, in holding, in paragraphs 172 and 173 of the judgment under appeal, that FRA had lawfully initiated the administrative inquiry, implicitly but necessarily considered that the appellant’s personal data in the emails at issue had been processed lawfully, in accordance with that provision. Accordingly, the General Court cannot be criticised on the grounds that it infringed the obligation to state reasons in that regard.
92 In the second place, as regards the alleged error of law based on infringement of Article 4(1)(a) of Regulation No 45/2001 on the ground that the General Court disregarded the fact that the emails at issue containing personal data concerning the appellant had been received by FRA in error and, therefore, had not been obtained legally, it is sufficient to recall that the prevailing principle in EU law is that of the unfettered production of evidence, meaning that the parties have, in principle, the right to rely on any form of evidence in order to prove a particular fact (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 73).
93 It must be recalled, in that regard, that Article 4(1)(a) of Regulation No 45/2001 provides that personal data must be processed fairly and lawfully. However, it cannot be inferred from that provision, contrary to what the appellant claims, that it is the expression of a more general rule which, in the present case, should have prevented FRA from using, in the context of the administrative inquiry, information sent to that body by a third party, on the sole ground that that information had been obtained for other purposes and that its transmission to that body was obtained in error.
94 In those circumstances, the second part of the sixth ground of appeal must be rejected as unfounded.
95 Consequently, the sixth ground of appeal must be rejected in its entirety.
96 By his seventh ground of appeal, the appellant claims, in essence, that the General Court erred in law in its analysis set out in paragraphs 223 to 229 of the judgment under appeal, in rejecting his assertions concerning alleged psychological harassment as being formulated in vague terms. He submits, in essence, that the third and fourth pleas of unlawfulness, which the General Court considered to be established on the part of FRA in paragraphs 98, 111 and 139 of the judgment under appeal, relate to the administrative inquiry and meet the criteria, stemming from the case-law, that must be satisfied in order for unlawful conduct to be classified as harassment. Therefore, contrary to what is apparent from paragraph 227 of the judgment under appeal, they cannot be regarded as forming part of the normal conduct of an administrative inquiry.
97 FRA contests the appellant’s line of argument. It submits, in essence, that the seventh ground of appeal is manifestly inadmissible and, in any event, unfounded, since the appellant merely challenges the General Court’s assessment of the evidence relied on at first instance.
98 By the seventh ground of appeal, which is directed against paragraphs 223 to 229 of the judgment under appeal, the appellant submits, in essence, that the General Court erred in law in finding that, notwithstanding the fact that it held, in paragraphs 98, 111 and 139 of the judgment under appeal, that the third and fourth pleas of unlawfulness could actually be attributed to FRA, that was not however sufficient to establish the existence of psychological harassment of which the appellant was allegedly a victim in the context of the administrative inquiry.
99 In that regard, it should be noted that that finding of the General Court is based on its definitive assessment of the facts and evidence concerning the gravity of the third and fourth pleas of unlawfulness found to have been established on the part of FRA. Consequently, the General Court held, in paragraphs 227 to 229 of the judgment under appeal, that those pleas of unlawfulness were not such, even taken as a whole, and in the absence of other evidence adduced by the appellant, as to constitute psychological harassment within the meaning of Article 12a of the Staff Regulations.
100 Before the Court of Justice, the appellant does not put forward any specific legal arguments capable of demonstrating how, in particular, in paragraph 228 of the judgment under appeal, the General Court, by disregarding the case-law cited in paragraphs 223 to 225 of the judgment under appeal relating to the concept of ‘psychological harassment’ within the meaning of Article 12a of the Staff Regulations, erred in its legal classification of facts.
101 Consequently, it appears that under the guise of an alleged error of law, the appellant is in fact seeking to obtain from the Court of Justice a mere re-examination of the facts which he put forward in support of his action at first instance, without any distortion of those facts by the General Court being alleged, which, in accordance with the case-law cited in paragraph 26 of the present judgment, falls outside the jurisdiction of the Court of Justice.
102 In the light of those considerations, the seventh ground of appeal must be rejected as inadmissible.
103 By his eighth ground of appeal, the appellant criticises the General Court for having misinterpreted, in paragraphs 237 and 240 to 242 of the judgment under appeal, the case-law applicable to the non-contractual liability of the European Union, as regards, more specifically, the evidence which must be adduced in order to establish the existence of non-material damage. He claims, referring to the case-law of the General Court, that the submission of evidence is not necessarily regarded as a requirement for the recognition of non-material damage and that it is sufficient for the applicant to establish that the conduct alleged against the EU institution or body concerned was capable of causing him such damage. In addition, the appellant submits that it follows from the case-law of the Court of Justice that the existence of damage and of a causal link does not need to be specifically proven in case of non-material damage, as they may also be deduced from the nature of the illegality and from the circumstances.
104 Furthermore, the appellant submits that the judgment under appeal does not contain any statement of reasons as to why FRA’s failure to communicate all the documents requested and FRA’s refusal to acknowledge its unlawful conduct during the pre-litigation procedure were not capable of causing him stress, anxiety and a feeling of injustice.
105 Lastly, the appellant alleges infringement of Article 47 of the Charter establishing the right to effective judicial protection on the ground that the General Court did not award him compensation for the non-material harm which he claims to have suffered, despite the acknowledgement of the unlawful acts committed by FRA during the administrative inquiry. According to the appellant, the General Court’s reasoning deprives him of an effective remedy which would enable compensation to be provided for the damage linked to that kind of illegality.
106 FRA considers that the arguments by which the appellant challenges paragraph 242 of the judgment under appeal are, first, manifestly unfounded, in so far as the appellant thus merely reiterates the arguments set out in paragraph 134 of his application at first instance and, second, manifestly inadmissible in so far as he claims to have suffered non-financial prejudice.
107 As regards the appellant’s argument alleging infringement of Article 47 of the Charter, FRA argues that the right to an effective remedy concerns access to justice, but offers no guarantee of success. In addition, FRA contends that EU law does not release the appellant from his burden of proof and nor does it allow a claim for compensation for an alleged non-financial prejudice to be successful where it is based on pure speculation.
108 According to the case-law of the Court of Justice, any EU institution or body may incur liability for its conduct, provided that the conditions relating to the unlawfulness of such conduct, the fact of damage and the existence of a causal link between that conduct and the damage complained of are satisfied (judgments of 4 June 2020, Schokker v EASA, C‑310/19 P, EU:C:2020:435, paragraph 54, and of 2 June 2022, EM v Parliament, C‑299/21 P, EU:C:2022:429, paragraph 122).
109 As regards the conditions relating to the fact of damage and the existence of a causal link, such liability can be incurred only if the applicant has genuinely suffered actual and certain damage and the damage must flow sufficiently directly from the alleged unlawfulness of the conduct in question. Consequently, it is for the applicant to adduce evidence before the EU Courts to establish the existence and extent of the damage it alleges and the existence of a sufficiently direct causal link between that unlawfulness and the alleged damage (see, to that effect, judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 135 and the case-law cited).
110 In that regard, it also follows from the case-law of the Court of Justice that the submission of evidence is not necessarily regarded as a condition for recognition of non-material damage. It is, however, for the applicant to establish, at the very least, that the conduct alleged against the institution concerned was such as to cause him or her damage of that kind (see, to that effect, judgment of 16 July 2009, SELEX Sistemi Integrati v Commission, C‑481/07 P, EU:C:2009:461, paragraph 38).
111 It follows that, even in the absence of evidence capable of demonstrating the existence and extent of non-material damage, the condition relating to the existence of such damage may be satisfied if the applicant establishes that non-material damage necessarily resulted from the conduct of which he complains.
112 In the present case, as regards the existence of non-material damage based on the fourth plea of unlawfulness, alleging the excessive length of the administrative procedure, it must be held that, since the General Court considered, in its definitive assessment of the facts, that the existence of that damage could not be presumed, since, before having been informed of that inquiry, the appellant could not have been exposed to a risk of stress or anxiety, whereas, after having been informed, the procedure took place within a reasonable time, it was fully entitled to conclude, in paragraphs 234 to 236 of the judgment under appeal, that it was for the appellant, in accordance with the case-law referred to in paragraph 110 of the present judgment, to adduce evidence demonstrating a level of stress and anxiety going beyond what would be acceptable in the context of an administrative procedure, which he had failed to do.
113 By contrast, as regards the two other forms of unlawful conduct found, in paragraphs 89 to 111 of the judgment under appeal, to be well founded by the General Court in the context of the examination of the third plea of unlawfulness, namely, first, breach of the obligation to have informed the appellant, in good time, of the existence of an administrative inquiry in his regard and, second, the failure to communicate to him the documents directly related to the allegations made against him, the General Court held, in paragraphs 237 and 238 of that judgment, that the mere fact that the appellant relied on unlawful conduct allegedly committed by FRA during the administrative inquiry undermining his dignity and integrity, and on its particularly harmful nature in that that conduct had profoundly harmed him psychologically, was insufficient to demonstrate the actual and certain nature of the non-material damage which he claimed to have suffered as a result, since he had not adduced any evidence in support of his allegations.
114 However, by those reasons, the General Court did not establish, in disregard of the case-law referred to in paragraph 110 of the present judgment, that the breach of the obligation to inform the appellant, in good time, of the existence of an administrative inquiry and the failure to communicate to him the documents directly related to the allegations made against him was not, in itself, such as to cause him the alleged damage, namely stress, anxiety and a feeling of injustice.
115 It follows from the foregoing that, in paragraphs 237 and 238 of the judgment under appeal, the General Court erred in law in holding that the appellant could not be regarded as having proved the actual and certain nature of the non-material damage which he claims to have suffered as a result of the breach of the obligation to inform him, in good time, of the existence of an administrative inquiry and of the failure to communicate to him the documents directly related to the allegations made against him, on the sole ground that he did not submit evidence in support of his claim for damages.
116 Accordingly, the eighth ground of appeal must be upheld and the judgment under appeal set aside in so far as the General Court rejected the claim for damages in the action, to the extent to which that claim sought compensation for the damage which the appellant claims to have suffered as a result of the unlawful conduct alleged in the third plea of unlawfulness.
117 In accordance with 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.
118 In the present case, it is apparent from paragraphs 230 and 231 of the judgment under appeal that, since the General Court upheld the pleas in the action at first instance concerning the third and fourth pleas of unlawfulness, it ruled, in paragraphs 232 to 243 of that judgment, only on the alleged damage resulting from the unlawful conduct covered by those pleas of unlawfulness, namely, first, the unreasonableness of the duration of the administrative procedure and the breach of the obligation to inform the appellant, in good time, of the existence of an administrative inquiry and, second, the failure to communicate to him the documents directly related to the allegations made against him.
119 As has been found in paragraph 80 of the present judgment, the General Court erred in law, in paragraphs 147 and 148 of the judgment under appeal, by holding, in essence, that FRA’s decision to close the administrative procedure against the appellant without further action was not an act capable of adversely affecting him, with the result that there was no need to examine the substance of his line of argument relating to the fifth plea of unlawfulness, alleging a failure to state reasons for that decision, nor to ascertain whether the other conditions which must all be met in order for the European Union to incur non-contractual liability were satisfied in the present case.
120 In those circumstances, the Court of Justice considers that the state of the present proceedings concerning the claim for compensation for the non-material damage allegedly suffered by the appellant as a result of the unlawful conduct on which he relied in support of the fifth plea of unlawfulness of his action at first instance does not permit final judgment to be given, and that the case must be referred back to the General Court so that it may examine the substance of that plea of unlawfulness.
121 Similarly, it will be for the General Court to examine whether the unlawful conduct which it held to be established in the context of the third plea of unlawfulness of the action at first instance was such as to cause the non-material damage alleged by the appellant.
122 Since the case has been referred back to the General Court, the costs relating to the present appeal proceedings must be reserved.