DD v FRA (Civil service - temporary staff - Claims for damages - Judgment) [2021] EUECJ T-632/19 (14 July 2021)

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(Civil service – Members of the temporary staff – Claims for damages – Non-material damage – Implementation of the judgments of the Civil Service Tribunal and of the General Court)

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

ACTION under Article 270 TFEU seeking, first, compensation for the non-material harm allegedly suffered by the applicant, secondly, annulment of the decision of the Director of the FRA dated 19 November 2018 rejecting his request for compensation and, thirdly, if need be, annulment of the decision of 12 June 2019 rejecting the complaint against the abovementioned decision of 19 November 2018,

composed of L. Madise, acting as President, P. Nihoul and J. Martín y Pérez de Nanclares (Rapporteur), Judges,

1 The applicant, 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 European Union Agency for Fundamental Rights (FRA or ‘the Agency’), 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 (‘the CEOS’). 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 internal appeal’), the applicant claimed to be the victim of discrimination based on his race or ethnicity.

3 In the light of the words and tone used in the internal appeal, 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 applicant in accordance with Articles 2 and 11 of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to contract staff, the Director of the FRA imposed a reprimand on the applicant.

5 Finally, by letter of 13 June 2013, the Director of the FRA informed the applicant 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 applicant’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 applicant 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 applicant’s claims for damages seeking compensation for the non-material harm caused by the administrative inquiry on three grounds: first, because the applicant 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 applicant was heard without having been able effectively to prepare his defence, the fact remained that the applicant 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 applicant’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 applicant’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 applicant’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 applicant 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 applicant brought an appeal against the annulment judgment, which was dismissed by a judgment of 19 July 2017, DD v FRA (T‑742/15 P, not published, EU:T:2017:528; ‘the judgment on appeal’).

12 In the meantime, from 1 March 2016, the FRA reinstated the applicant in his position and paid him the salary he had not received.

13 Furthermore, the applicant 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 on appeal.

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 applicant had infringed Article 4, Article 5(a) as well as Articles 11 and 12 of Regulation No 45/2001 (‘the EDPS findings’). 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 applicant submitted a request, under Article 90(1) of the Staff Regulations, seeking payment of a sum of EUR 100 000 by way of financial compensation for a series of unlawful acts committed by the FRA (‘the request for compensation’). First, the applicant 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 applicant submitted that the administrative inquiry, the disciplinary proceedings, the reprimand and the termination decision constituted discrimination based on his ethnic origin. Thirdly, the applicant 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 applicant asserted that the reprimand and the termination decision had been based on an unlawful administrative inquiry which contained offensive and defamatory language. Fifthly, the applicant 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 applicant, the abovementioned conduct, taken as a whole, constituted psychological harassment. Sixthly, the applicant 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 applicant 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 authority empowered to conclude contracts (‘the AECE’) rejected the applicant’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.

17 On 14 February 2019, the applicant lodged a complaint which the AECE rejected on 12 June 2019. In its rejection decision, the AECE 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 applicant’s file.

18 By application lodged at the Court Registry on 23 September 2019, the applicant brought the present action.

20 By decision of 20 January 2020, the President of the Fourth Chamber fixed the time limit for lodging the reply, inviting the applicant to focus on certain paragraphs of the defence, in accordance with the second sentence of Article 83(3) of the Rules of Procedure of the General Court.

21 On 3 March 2020, the applicant lodged a reply, and on 21 April 2020 the FRA lodged a rejoinder.

22 As the President of the Fourth Chamber was prevented from sitting, Judge L. Madise was designated to replace him and Judge P. Nihoul was designated to complete the formation of the Chamber.

23 On 8 May 2020, the applicant submitted a request for an opportunity to comment, in accordance with Article 85(4) of the Rules of Procedure, on the new evidence, numbered D 1 to D 3, submitted by the FRA as annexes to the rejoinder. On 19 May 2020, the President of the Fourth Chamber decided to place that request on the file and to grant it.

24 On 19 June 2020, the applicant lodged his observations on the new evidence submitted by the FRA as annexes to the rejoinder.

25 On a proposal from the Judge-Rapporteur, the Court (Fourth Chamber), by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, invited the FRA to reply to the applicant’s observations on the new evidence. The FRA lodged its observations within the prescribed time limit.

26 On a proposal from the Judge-Rapporteur, the Court (Fourth Chamber), first, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, put written questions to the parties, to be answered in writing and, secondly, decided, pursuant to Article 106(3) of those rules, to rule without an oral part of the procedure. The parties replied within the prescribed time limit.

– order the FRA to pay compensation for the non-material harm suffered, estimated ex aequo et bono at EUR 100 000;

– annul the decision of the Director of the FRA dated 19 November 2018 rejecting his request for compensation;

– if need be, annul the decision of the Director of the FRA dated 12 June 2019 rejecting his complaint;

– as a measure of organisation of procedure, order the FRA to produce all correspondence with media representatives, professionals or other contacts concerning articles published in Kronenzeitung, Profil, Politico, Telegraph or Stern in any manner mentioning or in any way related to the annulment judgment;

28 In his observations on the new evidence submitted by the FRA as annexes to the rejoinder, the applicant also claims that the Court should at least order the FRA, even if the action is dismissed, to pay the costs relating to the late submission of evidence as annexes to the rejoinder.

A. Admissibility of the documents numbered D 1 to D 3 annexed to the rejoinder

30 In his observations of 19 June 2020 (see paragraph 24 above), the applicant submits that the FRA did not justify, under Article 85(2) of the Rules of Procedure, the delay in submitting the annexes to the rejoinder numbered D 1 to D 3.

31 However, it is apparent from the rejoinder that the FRA lodged those annexes in support of its argument that the first and third heads of unlawful conduct in the application are inadmissible. There is therefore no need to rule on the admissibility of those annexes, since those heads of unlawfulness are to be dismissed on the merits, without first ruling on their admissibility (see paragraphs 41, 42, 50, 71 and 79 below).

32 The applicant, while submitting claims for damages, seeks annulment, first, of the decision of 19 November 2018 rejecting his request for compensation and, secondly, of the decision of 12 June 2019 rejecting his complaint.

33 It is settled case-law that a decision of an institution rejecting a claim for compensation is an integral part of the administrative procedure which precedes an action to establish liability before the Court. The measure setting out the position adopted by the institution during the pre-litigation stage has the sole effect of allowing the party who has suffered damage to apply to the court for compensation, and consequently, claims for annulment of such a decision cannot be assessed in isolation from the claims relating to compensation (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 42 and the case-law cited).

34 Accordingly, it would not be appropriate to rule separately on the second and third heads of claim.

35 By his first head of claim, the applicant asks the Court 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.

36 It should be recalled at the outset that, generally speaking, in order for liability to arise on the part of an institution, body, office or agency of the European Union, a number of conditions must be satisfied. Thus, the conduct of which the institution, body, office or agency is accused must be unlawful, actual damage must have been suffered, and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 47 and the case-law cited; annulment judgment, paragraph 73).

37 It is therefore necessary to examine whether those conditions are satisfied, starting with that relating to the unlawfulness of the alleged conduct.

38 In the present case, the applicant attributes to the FRA six instances of unlawful conduct, alleging respectively:

– first, that, after the annulment judgment, the FRA did not hear him and did not adopt a decision pursuant to Article 3(a) of Annex IX to the Staff Regulations;

– secondly, that the administrative inquiry and the initial disciplinary proceedings were opened irregularly;

– thirdly, that the FRA failed to compensate the non-material harm resulting from the reprimand annulled by the Civil Service Tribunal;

– fourthly, that the FRA failed to implement the annulment judgment and to conduct the disciplinary proceedings within a reasonable time and with due diligence;

– fifthly, 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’);

– sixthly, that the FRA did not 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, of the duty of care and of the obligation to refrain from any psychological harassment.

(1) The first head of unlawfulness, alleging that, following the annulment judgment, the FRA did not hear the applicant and did not adopt a decision pursuant to Article 3(a) of Annex IX to the Staff Regulations

39 The applicant claims that the FRA infringed Article 3(a) of Annex IX to the Staff Regulations in that, in the context of the implementation of the annulment judgment, it did not hear him and did not adopt a new decision on the disciplinary proceedings. He maintains that he was thus not in a position to understand the reasons why the decision to remove the reprimand from his file was taken.

40 The FRA disputes the admissibility of the action in so far as it is based on that first head of unlawfulness, in that the request for compensation of 19 July 2018 was not lodged within a reasonable period of time, with the result that it was out of time, and in that the applicant has shown no legitimate interest in obtaining compensation for the alleged damage. In the alternative, the FRA also submits that the first head of unlawfulness is unfounded.

41 It should be recalled, in this connection, that the EU judicature is entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of an action or the allegation of misconduct on the merits, without first ruling on their admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52; of 11 July 2014, Telefónica de España and Telefónica Móviles España v Commission, T‑151/11, EU:T:2014:631, paragraph 34; and of 15 December 2015, Guittet v Commission, F‑141/14, EU:F:2015:149, paragraph 49).

42 In the circumstances of the present case, it is appropriate to consider at the outset the merits of the applicant’s allegation, since it is, in any event, unfounded.

43 As the applicant claims, after the annulment judgment, the FRA did not hear him on the complaints which had led to the opening of the administrative inquiry and did not formally notify him of a decision to abandon the case against him.

44 It should be noted in that regard that the purpose of Article 3(a) of Annex IX to the Staff Regulations is, in essence, to enable the appointing authority to decide, following the administrative inquiry, not to initiate disciplinary proceedings where no case can be made against the official concerned.

45 It should also be recalled that, in order to comply with the obligation imposed on it by Article 266 TFEU, it is for the institution or agency that issued the act annulled by the EU judicature to determine the measures required to comply with the annulment judgment (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 48 and the case-law cited), bearing in mind that, while the annulment of an act allows the procedure to resume at the very point at which the illegality established occurred (judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 58), the institutions and agencies nonetheless have broad discretion to decide the measures to put into effect in order to give due effect to an annulment judgment (see judgment of 11 December 2017, Léon Van Parys v Commission, T‑125/16, EU:T:2017:884, paragraph 49 and the case-law cited).

46 Consequently, in the present case, the annulment judgment, based on an infringement of the applicant’s rights of defence at the end of the administrative stage of the procedure, required the FRA only to withdraw the reprimand from his personal file, since it was deemed never to have existed.

47 In accordance with the case-law referred to in paragraph 45 above, the FRA could have relied again on the administrative inquiry report of 12 February 2013 in order to resume the procedure at the stage at which it had been vitiated by the infringement of the applicant’s rights of defence. In such a case, it should have complied with Article 3 of Annex IX to the Staff Regulations.

48 It is apparent, however, from the rejection of the complaint of 12 June 2019 that, in accordance with the case-law cited in paragraph 45 above, the FRA opted for a different solution. It did not resume the proceedings at issue at the stage which vitiated the reprimand, but abandoned it and also withdrew from the applicant’s personal file all the earlier acts relating to the administrative inquiry.

49 In those circumstances, Article 3(a) of Annex IX to the Staff Regulations was not applicable. More generally, it should be noted that respect for the rights of the defence was not required either, since the FRA withdrew from all proceedings against the applicant, as the applicant indeed acknowledges, and thus did not adopt a measure which affects him adversely within the meaning of Article 41 of the Charter.

(2) The second head of unlawfulness, alleging that the administrative inquiry and the initial disciplinary proceedings were opened irregularly

51 The applicant claims that the FRA acted wrongfully by opening the administrative inquiry and the disciplinary proceedings without reasonable suspicion of a disciplinary offence based on evidence to the requisite legal standard as required by Article 86(2) of the Staff Regulations and Article 3(c) of Annex IX thereto.

52 The FRA contends that the allegation made in that head of unlawfulness is inconsistent with the force of res judicata attaching to the annulment judgment, since the Civil Service Tribunal found, in essence, that the applicant could not reasonably claim that the complaints made against him were not adequately defined.

53 The applicant submits, however, that the Civil Service Tribunal did not examine the question whether the administrative inquiry was opened in the light of a reasonable suspicion of a disciplinary offence based on evidence to the requisite legal standard.

54 According to settled case‑law, a judgment’s status as res judicata is such as to bar the admissibility of an action if the judgment in question was between the same parties and had the same purpose and the same legal basis, those conditions necessarily being cumulative (see judgment of 25 June 2010, Imperial Chemical Industries v Commission, T‑66/01, EU:T:2010:255, paragraph 197 and the case-law cited).

55 In the present case, the annulment judgment was delivered by the opposing parties in the present action.

56 The subject matter of actions, for its part, corresponds to the claims of the person concerned (see, to that effect, judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 84). In the case which gave rise to the annulment judgment, the applicant requested, inter alia, that the FRA be ordered to compensate him for the non-material harm he had suffered as a result of the ‘gross illegality and irregularity of the administrative inquiry and of the decision to impose a reprimand’. It follows that the subject matter of the present action was already included in the first action and that both of them therefore have the same subject matter. The applicant does not dispute this.

57 The cause of action, for its part, corresponds to the legal and factual basis of the claims relied on (see, to that effect, judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 84).

58 The applicant submits in that regard that, in order to reject his claims for damages for the non-material harm resulting from the irregularity of the administrative inquiry, the Civil Service Tribunal simply held that he had been correctly informed of the case against him. He claims that, in so doing, the EU judicature did not rule on the plea alleging that that inquiry was opened without reasonable suspicion of a disciplinary offence based on evidence to the requisite legal standard.

59 It must be observed, in that regard, that, in his claim seeking compensation, the applicant had stated before the Civil Service Tribunal that the administrative inquiry had been conducted without clearly defined allegations, without a procedural framework and without a proper hearing.

60 The applicant was thus referring to the first three pleas which he had put forward in support of his claim for annulment. The first plea alleged specifically that there were no specific and concrete allegations of a breach of professional duties on his part. The applicant claimed, in essence, that Article 86(2) of the Staff Regulations required specific evidence of failure to comply with obligations to be adduced before opening an administrative inquiry and that respect for the rights of the defence required the authority to inform the person concerned, as soon as that inquiry was opened, of the concrete and precise allegations made against that person. The second plea alleged that the administrative inquiry had been conducted without a procedural framework, contrary to Article 2(3) of Annex IX to the Staff Regulations. The third plea alleged failure to communicate the conclusions of the inquiry report prior to the hearing and the penalty, in breach of Articles 2, 3 and 11 of Annex IX to the Staff Regulations.

61 In paragraph 63 of its annulment judgment, the Civil Service Tribunal held that the third plea in law above was well founded and decided to annul the reprimand on that basis (paragraph 68). Turning next to the claims for damages, the Civil Service Tribunal, in paragraph 75 of its annulment judgment, held that the complaint corresponding to the second plea in the claim for annulment was unfounded.

62 In paragraph 74 of its annulment judgment, the Civil Service Tribunal held that, ‘as regards the initiation of the administrative [inquiry], it is apparent from the file that the internal appeal [of the applicant in the context of drawing up his appraisal report for 2011] contained several accusations, including accusations of discrimination, against Ms B’. In paragraph 74 still, the Civil Service Tribunal added that, ‘although the letter of 9 November 2012, in which the Director informed the applicant of his decision to initiate an administrative [inquiry], referred only to “the words … used and their tone” in the internal appeal, the Director dismissed that internal appeal on 12 November 2012 by refuting each of the five complaints raised in it by the applicant. Furthermore, as the applicant himself has observed in the application, the Director, in a note to the applicant of 3 December 2012, stated that he was “very sensitive to unfounded and unsubstantiated accusations of racism”. Likewise, the [inquirer] explained at the interview with the applicant on 5 December 2012 that the administrative [inquiry] had been initiated because of the applicant’s allegations of discrimination on Ms B’s part. The applicant consequently cannot reasonably claim that the complaints made against him were not adequately defined.’

63 It thus follows, first, from the structure of the annulment judgment as a whole; secondly, from the wording used at the end of paragraph 74 mentioned above, which referred to that used by the applicant himself in his claims for damages to refer to his first plea in support of his claim for annulment; thirdly, from the fact that that plea was part of the general perspective of an infringement of the rights of the defence; and, fourthly, that the applicant himself linked the obligation for the administration to have specific evidence of the failure to comply before opening the administrative inquiry to the obligation to inform, as soon as the inquiry is opened, the person being investigated that an inquiry has been opened, that, by stating ‘… as regard the initiation of the administrative [inquiry] … the applicant cannot reasonably claim that the complaints made against him were not adequately defined’, the Civil Service Tribunal considered that the conditions necessary for the opening of the administrative inquiry were satisfied. Accordingly, the Civil Service Tribunal has already ruled on the existence of the head of unlawfulness on which the applicant relies in the present action.

64 It follows that the second head of unlawfulness is identical to one of the pleas already relied on by the applicant, which the Civil Service Tribunal has already rejected in the annulment judgment.

65 The second head of unlawfulness thus runs counter to the force of res judicata attaching to that annulment judgment, so that the action is inadmissible in so far as it is based on that head.

66 That head of unlawfulness is unfounded in any event. In support of that head, the applicant submits that, contrary to the FRA’s view, the sole purpose of his reference, in a letter of 14 September 2012 concerning the internal appeal against his appraisal report for 2011, to Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) was to complain of the victimisation to which he was subject, and not to complain of discrimination.

67 However, as the FRA observes, the purpose of Directive 2000/43 is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin. Consequently, to maintain that the appraisal report amounted to victimisation within the meaning of that directive necessarily means, for the applicant, that he admits that he had previously complained about the discriminatory attitude of his reporting officer.

68 The second head of unlawfulness must therefore be rejected as inadmissible and, in any event, as unfounded.

(3) 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

69 The applicant submits that, if, in the annulment judgment, the Civil Service Tribunal held that his claim seeking compensation for the non-material harm caused by the reprimand was premature, the FRA should have awarded him such compensation when it decided not to recommence the disciplinary proceedings. The FRA thus failed to implement the annulment judgment correctly.

70 The FRA contends that the applicant is late in raising that ground for complaint and is of the opinion that it is unfounded in any event.

71 For the same reasons as those set out in paragraphs 41 and 42 above, it is appropriate to consider at the outset the merits of the applicant’s complaint, since the action is, in any event, unfounded.

72 In that regard, it should be recalled that the Civil Service Tribunal held, in paragraphs 80 and 81 of the annulment judgment, that it was premature to rule on the applicant’s claim seeking compensation in respect of the non-material harm caused by the reprimand himself, because the reprimand was annulled solely on account of the infringement of the right to be heard and it was not excluded that the Director of the FRA would have adopted a different decision, had he heard the applicant first.

74 First, following an annulment judgment, which operates ex tunc, the measure annulled is eliminated retroactively from the legal system and is deemed never to have existed (judgment of 2 April 2014, Ben Ali v Council, T‑133/12, not published, EU:T:2014:176, paragraph 83).

75 Secondly, the institutions and agencies have broad discretion to decide the measures to put into effect in order to give due effect to an annulment judgment (see paragraph 45 above), in particular when the annulment is based on a procedural defect.

76 Thirdly, in the present case, the FRA did not only decide to abandon the proceedings against the applicant pursuant to Article 3(a) of Annex IX to the Staff Regulations (see paragraph 48 above). It is also apparent from the rejection of the complaint of 12 June 2019 that it went as far as to withdraw by removing all acts related to the administrative inquiry from the applicant’s file.

77 Fourthly, a reprimand is a minor penalty (judgment of 16 October 1998, V v Commission, T‑40/95, EU:T:1998:243, paragraph 52).

78 In the light of the foregoing, it does not therefore appear that the FRA did not implement the annulment judgment correctly by failing to award the applicant compensation for the non-material harm allegedly caused by the annulled reprimand.

(4) The fourth head of unlawfulness, alleging that the FRA failed to implement the annulment judgment and to conduct the disciplinary proceedings within a reasonable time and with due diligence

80 The applicant claims that the FRA failed to implement the annulment judgment, as the FRA did not hear him and did not adopt a new decision on the disciplinary proceedings pursuant to Article 3 of Annex IX to the Staff Regulations. According to the applicant, even if the decision of 12 June 2019 rejecting his complaint and stating that the FRA had decided not to recommence disciplinary proceedings were consistent with Article 3 of Annex IX to the Staff Regulations, that decision was communicated to him almost four years after the annulment judgment, that is to say within a period of time that is unreasonable, given that the proceedings were disciplinary in nature and that the allegations made were serious.

81 The FRA considers that the request for compensation brought on the basis of the complaint alleging late communication of the decision provided for in Article 3 of Annex IX to the Staff Regulations is inadmissible on the ground that it was out of time.

82 For the same reasons as those set out in paragraphs 41 and 42 above, it is appropriate to consider at the outset the merits of the applicant’s allegation, since it is, in any event, unfounded.

83 The fourth head of unlawfulness, in so far as it is based on the argument that the FRA did not implement the annulment judgment, since the FRA did not hear the applicant and did not adopt a new decision on the disciplinary proceedings pursuant to Article 3 of Annex IX to the Staff Regulations, must be rejected on the merits for the same reasons as the first head of unlawfulness (see paragraphs 48 and 49 above).

84 In so far as the applicant also seeks to complain of the late compliance with Article 3(a) of Annex IX to the Staff Regulations, that complaint fails also in law for the same reasons.

85 Moreover, it should be borne in mind that any institution, body, office or agency is allowed a reasonable period within which to comply with a judgment annulling one of its decisions. The reasonableness of such a period must be appraised in the light of the circumstances specific to each case and, in particular, according to the nature of the measures to be taken, the various procedural stages that have been followed, the context of the case, its complexity and its importance for the various parties involved (see, to that effect, judgment of 11 December 2017, Léon Van Parys v Commission, T‑125/16, EU:T:2017:884, paragraph 51 and the case-law cited).

86 In the present case, the implementation of the annulment judgment with regard to the reprimand did not require, a priori, the adoption of administrative measures requiring considerable preparation.

87 The FRA contends, in that regard, that the applicant was reinstated with effect from 1 March 2016 and maintains that that decision, adopted shortly after the annulment judgment, implicitly comprised the decision not to implement the other part of that judgment relating to the reprimand.

88 However, the annulment judgment did not prevent the FRA from adopting a new disciplinary measure after having complied with the rights of the defence. Moreover, even if the reprimand is of secondary importance compared with the termination of the contract, the applicant’s reinstatement could be regarded as a prerequisite for resuming disciplinary proceedings.

89 Furthermore, the rejoinder lodged by the FRA in the appeal proceedings against the annulment judgment shows that on 17 October 2016, that is to say after the applicant’s reinstatement, the FRA still did not exclude adopting a new decision replacing the annulled reprimand.

90 The FRA’s assertion that the applicant’s reinstatement on 1 March 2016 also meant that it would not implement the part of the annulling judgment relating to the disciplinary proceedings is thus clearly inconsistent with the file and cannot, therefore, be taken into consideration.

91 It is therefore necessary to examine, in the light of the case-law referred to in paragraph 85 above, whether the FRA was late in communicating to the applicant, on 19 November 2018 and 12 June 2019 respectively, first, that the reprimand had been withdrawn from his personal file and, secondly, that it had decided not to recommence the proceedings and had removed from the file all acts related to the administrative inquiry.

92 In that regard, and despite the fact that the applicant’s reinstatement did not, as such, mean that all disciplinary proceedings would be abandoned, it is appropriate, first, in the context of the case, to take account of the fact that, following the annulment judgment, the applicant recovered his position and the remuneration attached to it, so that he found himself, from that point of view, in the situation of any member of staff.

93 Secondly, it should be observed that the applicant’s appeal before the Court sought the annulment in part of the annulment judgment on two grounds. First, because the Civil Service Tribunal should have annulled the reprimand not only due to the infringement of the right to be heard, but also on the basis of the other pleas which called into question the substantive legality of that decision. Secondly, because the judge at first instance erred in law in refusing to examine the claims seeking compensation for non-material harm (judgment on appeal, paragraphs 34, 35 and 38). In that context, where the applicant sought to obtain a judgment on the substance of his claims for annulment and for compensation, the reading of the FRA’s rejoinder set out in paragraph 89 above indicates that it made the implementation of the annulment judgment subject to whether the reprimand was ultimately justified or not, in other words subject to the judgment on appeal.

94 Thirdly, account should be taken of the fact that, on 12 April 2013, the applicant lodged a complaint with the EDPS challenging the compatibility of the administrative inquiry with Regulation No 45/2001. He cannot be criticised for lodging that complaint since it is a legal remedy provided for in Article 32 of that regulation. Nevertheless, it conferred the case a certain degree of complexity, as he itself acknowledges in its written pleadings. The institutions, bodies, offices and agencies of the European Union have no discretion when applying Regulation No 45/2001 (see, to that effect, judgment of 20 July 2016, Oikonomopoulos v Commission, T‑483/13, EU:T:2016:421, paragraph 101) and the EDPS’s reply to the arguments put forward by the applicant before it were such as to determine the conditions in which an administrative inquiry, prior to any penalty, could be opened and conducted. Those arguments, on which no decision was made in the annulment judgment because they were not brought before the Civil Service Tribunal, were not the subject of a definitive position from the EDPS until 16 March 2018.

95 The referral to the EDPS is an objective fact which, while the applicant cannot be criticised for it, is not attributable to the FRA either, with the result that, as maintained by the FRA, the FRA does not have to bear the consequences thereof. Nonetheless, in so far as the FRA argued, in the appeal against the annulment judgment, that it might still resume the disciplinary proceedings once it knew whether or not the reprimand was justified, the referral to the EDPS can be regarded as having also frustrated those proceedings. The applicant’s arguments in support of his referral to the EDPS called into question the lawfulness of the administrative inquiry opened in his regard and, in turn, the possibility to resume the disciplinary proceedings against him. In fact, they even called into question more broadly the possibility for the FRA to initiate any disciplinary proceedings against any staff member or official in the absence of implementing arrangements for Article 2 of Annex IX to the Staff Regulations.

96 Moreover, contrary to what the applicant suggests, in the absence of clear abuse, the FRA cannot be criticised for requesting a review of the first EDPS findings of 18 December 2017 pursuant to Article 35 of the decision of the EDPS of 17 December 2012 on the adoption of rules of procedure, in the version applicable at the time. That criticism can even less be made of the Agency since the applicant himself had also submitted a request for review a few days earlier.

97 Fourthly, it should be observed that the applicant did not hasten to urge the FRA to implement the annulment judgment as regards the reprimand either after the dismissal of his appeal on 19 July 2017 or after the final decision of the EDPS on 16 March 2018, even though he claims to have found himself in a situation of stress, anxiety, uncertainty and feelings of neglect and disregard due to that failure to implement. It was only in his request for compensation of 19 July 2018 and then in his complaint of 14 February 2019 that the applicant mentioned that the FRA’s conduct had put him in that state (see paragraphs 15 and 17 above).

98 In the light of all the foregoing, it must be held that the FRA was not unreasonably late in implementing the annulment judgment in so far as it concerned the reprimand.

(5) Fifth head of unlawfulness, alleging 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

100 The applicant claims that it is apparent from the EDPS findings of 16 March 2018 that the opening and the conduct by the FRA of the administrative inquiry concerning him infringed Article 4, Article 5(a) as well as Articles 11 and 12 of Regulation No 45/2001, in that the Agency had no implementing rules governing that type of inquiry.

101 The FRA contends that the action is inadmissible in so far as it is based on that head of unlawfulness, on the ground that the request for compensation made on the basis of that head of claim was out of time and even time-barred pursuant to the principle laid down in Article 46(1) of the Statute of the Court of Justice of the European Union.

102 It should be recalled that Article 46(1) of the Statute of the Court of Justice of the European Union is not applicable to disputes seeking compensation for damage under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations (see, to that effect, judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 40 and the case-law cited). However, it is for officials or other staff members to bring before the institution or the agency any request seeking compensation payable by the European Union for loss alleged to be attributable thereto within a reasonable period, running from the point in time when they became aware of the situation they complain of. In that regard, the reasonableness of that period is to be appraised in the light of all of the circumstances specific to each case (judgment of 20 November 2019, Missir Mamachi di Lusignano and Others v Commission, T‑502/16, EU:T:2019:795, paragraph 77; see also order of 25 February 2014 in Marcuccio v Commission, F‑118/11, EU:F:2014:23, paragraph 87 and the case-law cited).

103 In this context, the five-year limitation period provided for in Article 46(1) of the Statute of the Court of Justice of the European Union may serve as a point of comparison, but it does not follow from this that the fact that a request was lodged within the five-year period would be sufficient to consider that it was submitted within a reasonable period (see, to that effect, orders of 23 March 2010, Marcuccio v Commission, T‑16/09 P, EU:T:2010:111, paragraph 37, and of 9 July 2010, Marcuccio v Commission, F‑91/09, EU:F:2010:87, paragraph 35).

104 In the present case, in accordance with the case-law cited in paragraph 102 above, it must be held that the applicant became aware of the situation he complains of during the administrative inquiry which ended with the submission of a report on 12 February 2013.

105 The applicant lodged a complaint with the EDPS on 12 April 2013. He specifically complained that the FRA had infringed Regulation No 45/2001. In the light of the complaints raised, the EDPS considered that that complaint was based on Article 4, Article 5(a) as well as Articles 11 and 12 of that regulation.

106 According to the first subparagraph of Article 32(2) of Regulation No 45/2001, provision is made for the possibility to lodge a complaint with the EDPS ‘without prejudice’ to any judicial remedy. Following on from that provision, Article 31(2) of the decision of the EDPS of 17 December 2012 on the adoption of rules of procedure provided that complaints submitted to the EDPS did not affect time limits for appeals in parallel administrative or judicial proceedings.

107 It follows from those provisions that, unlike other administrative procedural time limits such as the reasonable period within which disciplinary proceedings must be completed, the periods for bringing an administrative or judicial remedy, such as an action for damages in the present case, cannot be suspended or interrupted by a complaint to the EDPS.

108 The complaint to the EDPS and the time taken by the EDPS to adjudicate therefore do not justify the five years and three months after which the applicant submitted his request for compensation on 19 July 2018 seeking compensation for the harm resulting from the FRA’s conduct which he considered to be incompatible with Regulation No 45/2001.

109 The applicant argues that the case was important to him, to no avail, because the importance of a case justifies, instead, special diligence and not procrastination on the part of the person concerned.

110 In its replies to the measures of organisation of procedure of 20 October 2020 (see paragraph 26 above), the applicant maintains that an administrative inquiry is only a preparatory measure and that, in that case, a staff member is entitled to challenge its legality only indirectly in an action against the final decision producing adverse effects.

111 It is important to note, however, that, although the applicant could challenge the legality of the administrative inquiry in his action against the reprimand, he did not put forward any pleas alleging that the opening and the conduct of that inquiry infringed Article 4, Article 5(a) as well as Articles 11 and 12 of Regulation No 45/2001, as he now maintains in the fifth head of unlawfulness.

112 Moreover, the case-law according to which preparatory acts may be challenged only indirectly in an action against the final decision concerns the action for annulment and not the action for compensation. The latter is in fact an independent legal remedy, in that it has its own purpose within the framework of legal remedies, namely not to have a specific decision set aside but to make good the harm caused by an institution or an agency in the exercise of its functions (see, to that effect, judgments of 13 July 1972, Heinemann v Commission, 79/71, EU:C:1972:67, paragraph 7, and of 18 December 2009, Arizmendi and Others v Council and Commission, T‑440/03, T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04, EU:T:2009:530, paragraph 64). Thus, an action for damages may be brought on the basis of a measure or conduct which contains nothing in the nature of a decision.

113 The applicant also submits that it is only when he became aware of the fact that the disciplinary proceedings were being abandoned that the period for lodging his request for compensation on account of the infringement of Regulation No 45/2001 began to run, namely from 12 June 2019. In his view, that is a substantive new fact.

114 However, the fact that the AECE stated, on 12 June 2019, in the rejection of the complaint, that it had decided not to recommence the proceedings cannot constitute a new fact justifying the fact that the request for compensation was not lodged until 19 July 2018, since the applicant had submitted it before that decision.

115 For the same reason, the applicant’s argument that in order to act he had to wait for confirmation that no new reprimand would be adopted, otherwise his request for compensation could be construed as an attempt to circumvent the inadmissibility of an action for annulment against a preparatory measure, is irrelevant.

116 In his replies to the measures of organisation of procedure of 20 October 2020, the applicant also claims that the principle of effective protection by the courts must be taken into account in order to assess whether a claim was made within a reasonable period and that the latter cannot begin to run until the claimant has sufficiently clear and precise information.

117 However, it is apparent from the case-law cited by the applicant himself that the court must weigh the applicant’s entitlement to effective protection by the courts, which implies that those subject to its jurisdiction must have a sufficient period of time available to them to assess the lawfulness of the act about which they have submitted a complaint and if necessary prepare their case, against the need for legal certainty which requires that, after a certain time, measures taken by EU agencies become definitive (order of 13 July 2010, Allen and Others v Commission, F‑103/09, EU:F:2010:88, paragraph 38). In addition, it follows from the circumstances of the case and paragraphs 102Error! Reference source not found., 105 and 112 to 115 above that the applicant had sufficient information to submit his request for compensation earlier than 19 July 2018.

118 In order to justify the period within which he submitted his request for compensation, the applicant further submits that the FRA still processed his data unfairly in the statements of a FRA representative at the sitting of the Parliament’s Committee on Budgetary Control on 28 January 2016.

119 However, the applicant does not specify which data were processed on that occasion and in what way they were processed in a manner which cannot be reconciled with Regulation No 45/2001. Moreover, before submitting his request for compensation, the applicant allowed two and a half years to elapse since the sitting of the Parliament’s Committee on Budgetary Control in question.

120 The applicant also claims that the FRA continued to process his data unfairly in the rejection of his request for compensation, then in the rejection of his complaint which gave rise to the present case and lastly in its defence before the Court.

121 Those objections cannot, however, justify the time taken by the applicant to submit his request, since they concern facts subsequent thereto.

122 Lastly, the applicant claims that the opening and the conduct of the administrative inquiry in breach of Regulation No 45/2001 are factors constituting psychological harassment which he alleges to have suffered. However, he submits, in the event of harassment, the reasonable period of time for submitting a request within the meaning of Article 90(1) of the Staff Regulations only starts to run once the harassment has ended.

123 The applicant thus refers to the sixth head of unlawfulness in which he specifically relies on harassment in order to substantiate his claim seeking damages. That allegation, however, is unfounded (see paragraph 182 below). Therefore, the applicant cannot rely on such harassment in order to circumvent the obligation to submit his request for compensation within a reasonable period.

124 In the light of all of the foregoing, the action must be dismissed as inadmissible on the ground that it was out of time in so far as it is based on the fifth head of unlawfulness.

(6) The sixth head of unlawfulness, alleging that the FRA did not 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, as well as the obligation to refrain from any psychological harassment

125 The applicant submits that the annulment of the reprimand by the annulment judgment means that he can no longer be criticised for having made unfounded accusations of racism or discrimination on the grounds of racial or ethnic origin against his supervisor. He claims that the FRA has repeatedly acted as if it still considered him guilty of the facts. The applicant maintains that the FRA acted in that way in the rejection of the internal appeal, on 12 November 2012, in the refusal of 3 December 2012 to annul the administrative inquiry, during the disciplinary proceedings, in the reprimand, in the termination decision, in the subsequent pre-litigation procedure, in its pleadings lodged in the course of the proceedings which gave rise to the annulment judgment, in the statements of one of its staff members before the Parliament’s Committee on Budgetary Control on 28 January 2016, in the refusal of the AECE, on 19 November 2018, to grant his request for compensation and in the rejection on 12 June 2019 of his complaint against that refusal. He finds all those accusations defamatory and offensive.

126 There are three parts in the applicant’s claims. The first part alleges that the FRA’s accusations prior to the annulment judgment were in breach of the duty of care. The second part alleges that the FRA’s statements and conduct after that judgment infringed the right to the presumption of innocence, the principle of the force of res judicata and once again the duty of care. The third part alleges psychological harassment prohibited by Article 12a of the Staff Regulations.

(i) The first part, alleging infringement by the FRA of the duty of care on account of its conduct prior to the annulment judgment

127 The applicant claims that the FRA infringed its duty of care by not compensating him for the damage caused, first, by the accusations made against him in the steps prior to the annulment judgment and, secondly, by the unfair nature of the disciplinary proceedings which he had to suffer.

128 The FRA contends that the request for compensation for the harm resulting from those steps was made outside of any reasonable time limit and that it is even time-barred under Article 46 of the Statute of the Court of Justice of the European Union.

129 However, for the same reason as that set out in paragraph 41 above, it is appropriate, in the interests of procedural economy, to consider at the outset the merits of the applicant’s complaint, since it is, in any event, unfounded.

130 It should be borne in mind, in that regard, that the duty to have regard for the welfare of staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations and, by analogy, the CEOS, in the relationship between the public authority and its civil servants. That duty implies in particular that when the authority takes a decision concerning the position of a member of staff, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the staff member concerned (see judgment of 7 May 2019, WP v EUIPO, T-407/18, not published, EU:T:2019:290, paragraph 58 and the case-law cited).

– The first complaint, based on the allegations made by the FRA in the rejection of the internal appeal and in the refusal to annul the administrative inquiry

132 The applicant claims that the FRA infringed its duty of care by failing to compensate him for the damage caused to him by the Director of the Agency when, in the rejection of his internal appeal and in the refusal to annul the administrative inquiry, he alleged that the applicant had accused his supervisor of racial discrimination.

133 In the rejection of the internal appeal, the Director of the FRA provided, inter alia, the following reply to the applicant’s complaint alleging that his reporting officer had discriminated against him:

‘Here again the accusation is very grave, all the more since, after some examples of alleged “discrimination”, you qualify the negative assessments of your [supervisor] as … “victimisation under Directive [2000/43]” [whereas] this directive aims concretely at prohibiting discrimination based on … race and/or ethnic origin, in other words [at fighting] racism. This is one of the more serious accusations, if not the most serious, that one can make.’

134 Next, the Director of the FRA justified his refusal to annul the administrative inquiry by stating that it was for the appointed inquirer to identify the passages of the internal appeal which constituted misconduct and by adding the following:

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

135 It must be borne in mind that, in assessing merits, reporting officers have a very broad discretion and, accordingly, the review carried out by the EU courts must be limited to verifying that there has been no error of fact, manifest error of assessment or misuse of powers (judgments of 14 December 2018, UC v Parliament, T‑572/17, not published, EU:T:2018:975, paragraph 99, and of 18 July 2016, SD v EUIPO, F‑48/15, EU:F:2016:149, paragraph 35). Similarly, according to settled case-law, the AECE has a broad discretion in evaluating the interests of the service, so that review by the EU judicature in that regard must also be confined to the question whether it remained within reasonable limits and did not use its discretion in a manifestly incorrect way (see judgment of 13 December 2017, CJ v ECDC, T‑692/16, not published, EU:T:2017:894, paragraph 82 and the case-law cited).

136 In the present case, it is apparent from the findings of the annulment judgment (paragraphs 13, 14, 16 and 18), first, that, by an email of 18 May 2009, the applicant had already complained to the Director of the FRA that he was the victim of ‘ethnic discrimination’; secondly, that in his self-assessment as part of the appraisal report for 2011, the applicant had noted that his supervisor’s management approach in his regard ‘[was] not very motivating and quite discriminatory’; thirdly, that, in his internal appeal, he had claimed that that report was biased and discriminatory and that his supervisor’s assessment was punitive in nature as a reaction to his complaints of discrimination; and, fourthly, that in an additional note of 14 September 2012, he had stated that ‘the negative assessment of [his superior was] also a reprisal for complaints of discrimination [made by him] and [that it] amount[ed] to victimisation under Directive [2000/43]’.

137 In order to assess whether the FRA committed the wrongful conduct alleged by the applicant, it is necessary to put the statements of the applicant and the disputed documents of the Director of the FRA into context.

138 It is important, in that regard, to recall that the FRA succeeded the EUMC and that its work should, inter alia, continue to cover the fight against racism as one of the essential elements for the protection of fundamental rights, as is apparent from recital 10 of Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1).

139 Thus, in view of the problems to which unfounded accusations of racial or ethnic discrimination could give rise, if established, in particular in the context of the FRA’s tasks, the Director of the Agency did not commit a manifest error of assessment in considering that such allegations within his administration justified the opening of an administrative inquiry.

140 Similarly, in view of FRA’s task of combating discrimination in particular and in view of the fact that protection against victimisation is a crucial element in that regard, its Director cannot be regarded as having adopted a manifestly unreasonable attitude when he considered that the applicant’s allegation that his appraisal report constituted victimisation within the meaning of Article 9 of Directive 2000/43 constituted a particularly serious accusation.

141 Therefore, even if the facts referred to are, for procedural reasons, deemed not to have been penalised, the FRA did not fail to comply with its duty of care by not compensating him for the alleged damage caused by the assessments of its Director in the rejection, on 12 November 2012, of the internal appeal and in the refusal, of 3 December 2012, to annul the administrative inquiry. Moreover, it must be borne in mind that the FRA removed from the applicant’s file all acts related to that inquiry.

– The second complaint, based on the fact that the FRA repeated its allegations

142 The applicant claims that the Director of the FRA infringed his duty of care by repeating, on several occasions, after the rejection of the internal appeal and the refusal to annul the administrative inquiry, the allegation that he had accused his supervisor of racial discrimination.

143 First, the applicant criticises the fact that the Director of the FRA repeated his allegations during the disciplinary proceedings.

144 However, the Civil Service Tribunal held, in paragraph 74 of the annulment judgment, that the complaints made against the applicant were adequately defined. Accordingly, it cannot be considered that the decision to open the administrative inquiry was taken lightly. In addition, it must be recalled that the reprimand was only annulled on the ground of procedural defects and that, for the reasons set out in paragraphs 136 to 140 above, the Director of the FRA did not commit a manifest error of assessment in considering that the applicant’s allegations against his supervisor were serious accusations. Consequently, the opening of the administrative inquiry and the disciplinary proceedings cannot be regarded as defamatory and offensive, as the applicant claims.

145 Secondly, the applicant complains that the Director of the FRA repeated his allegations in the termination decision.

146 Nevertheless, the Civil Service Tribunal found, in paragraph 33 of its annulment judgment, that, in order to justify that decision, the Director had stated that the applicant had infringed ‘numerous rules and principles of [the Staff Regulations], including Articles 11, 12, 17a and 21 [thereof]’, leading to ‘a breach of the bond of trust …, which is a prerequisite for a working relationship, concerning in particular an … agent [of grade AD 9]’. In that regard, the Civil Service Tribunal found that the Director of the FRA had not confined himself to the accusations of racial discrimination made by the applicant in his email of 18 May 2009 and in the drawing up of his appraisal report for 2011, but that he had referred to other incidents involving the applicant and his management, alluding in particular to his attitude towards his head of department at a meeting on 27 May 2013 and the terms used by the applicant in an email sent to his head of department the following day.

147 In the light of paragraphs 136 to 140 above and the variety of the allegations which justified the termination decision, the applicant has not established that the FRA failed to comply with its duty of care by not compensating him for the damage caused by the mere reminder of his accusations of racial discrimination in that decision.

148 Thirdly, the applicant criticises the fact that the Director of the FRA repeated that allegation in the pre-litigation procedure following the reprimand and the termination decision.

149 However, in the rejections, on 17 July and 20 December 2013, of the applicant’s complaints against the reprimand and the termination decision, the AECE replied to the applicant’s arguments alleging that the FRA had been wrong to claim that he had accused his supervisor of racial discrimination. In so far as Article 90 of the Staff Regulations requires the AECE to state the reasons for its decisions, in so far also as the extent of that obligation depends on the specific circumstances of the case and, finally, in so far as, in order to be adequate, the reasons must be put into context (judgments of 21 November 2013, Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 83, and of 14 January 2016, Ntouvas v ECDC, T‑94/13 P, EU:T:2016:4, paragraph 80), the FRA cannot be criticised for having justified its decisions in relation to the applicant’s claims.

150 More specifically, no wrongful act can be attributed to the FRA for countering the applicant’s arguments in the statement of reasons for the rejection of his complaints, without rendering the pre-litigation procedure meaningless and upsetting the balance of reciprocal rights and obligations established by the Staff Regulations and the CEOS, which underlies the duty to have regard for the welfare of officials. The pre-litigation procedure was established not with the aim of systematically prompting the appointing authority or the AECE to uphold the complainant’s claims, but in order to enable the latter better to inform the authority in order to encourage a possible amicable settlement of the dispute.

151 Fourthly, the applicant complains of the FRA’s refusal to compensate him for the damage resulting from the fact that it repeated the allegations made by its Director in the written pleadings which it submitted through its lawyer during the procedure which gave rise to the annulment judgment.

152 However, the prospect of an order for damages as a result of written pleadings lodged in court proceedings is liable to deter the parties from exercising either their right to effective protection by the courts or their rights of defence. Thus, in so far as those rights, now guaranteed by Article 47 of the Charter, lend themselves to limitations under Article 52(1) thereof (see, to that effect, judgment of 15 September 2016, Star Storage, Joined Cases C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 49), only very specific circumstances, in which the written pleadings would prove to be unlawful and disproportionate, could justify such an order.

153 Furthermore, lawyers’ freedom of expression is guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 and by Article 11 of the Charter. This freedom protects not only the substance of the ideas and information expressed by lawyers in their written and oral submissions but also the form in which they are conveyed, so that, although it is not unlimited, it is only in exceptional circumstances that a restriction of the freedom of expression of defence counsel can be accepted as necessary in a democratic society (see, by analogy, ECtHR, 15 December 2005, Kyprianou v. Cyprus, CE:ECHR:2005:1215JUD 007379701, § 174).

154 In the present case, in its written pleadings, the FRA, through its lawyer, confined itself, first, to reiterating its view that the reprimand and the termination decision were justified and, secondly, to defending the legality of its decisions in the light of the circumstances, the relevant provisions and the case-law.

155 The passages complained of by the applicant were thus drafted in the context of the legitimate protection of the FRA’s interests. They cannot, therefore, give rise to an award of damages.

– The third complaint, based on the fact that the FRA did not compensate him for the harm resulting from the unfairness of the disciplinary proceedings

156 The applicant claims that the FRA infringed its duty of care by failing to compensate him for the harm which he claims was caused by the disciplinary proceedings which the EDPS allegedly found to be unfair.

157 That complaint overlaps with the first, second, fourth and fifth heads of unlawfulness attributed to the FRA by the applicant, the assessment of which should be referred to.

158 Moreover, in its decision of 18 December 2017, the EDPS did not consider that the disciplinary proceedings were unfair. The EDPS merely concluded that there had been a breach of Article 4, Article 5(a) as well as Articles 11 and 12 of Regulation No 45/2001 on account of the irregular nature of the proceedings, as found by the EU judicature and because the FRA had not first established a sufficient legal framework for the opening and the conduct of administrative inquiries.

160 In the light of all of the foregoing, the first part of the sixth head of unlawfulness is unfounded.

(ii) Second part, alleging infringement of the right to the presumption of innocence, of the principle of the force of res judicata and of the duty of care by the statements and the conduct of FRA after the annulment judgment

161 The applicant complains that the FRA maintained its allegations after the annulment judgment and thus infringed his right to the presumption of innocence, the principle of the force of res judicata and of the duty of care, first, by statements made by its representative before the Parliament’s Committee on Budgetary Control, secondly, in the pre-litigation procedure prior to the present action and, thirdly, on account of articles published in the press.

– The first complaint, based on statements made by the FRA’s representative before the Parliament’s Committee on Budgetary Control

162 According to the applicant, a representative of the FRA infringed his right to the presumption of innocence, the force of res judicata attaching to the annulment judgment and the duty of care by his statements before the Parliament’s Committee on Budgetary Control on 28 January 2016.

163 It should be recalled that the task of the Parliament’s Committee on Budgetary Control is, inter alia, to scrutinise the implementation of the EU budget, including by the agencies. At its sitting of 28 January 2016 devoted to the latter, a member of that committee questioned the FRA about information, some of which appeared in the press, stating that it was not treating its staff properly and was losing cases. In response, the FRA’s representative reviewed several cases and then stated as follows:

‘So now the case that you mentioned that is in the press. We are talking about the case where some two, three years ago, a member of the staff complained about racism from his superior. So, the first thing that we did was to ask an external [inquirer] to arrive and to make an inquiry. And the [inquiry], as you can see in the [annulment judgment], it says that the external [inquirer] found that the allegations they were gratuitous and defamatory. So we did what we had to do during this period. Unfortunately, we had an oversight where the right to be heard has not been respected within this procedure. This is what we try to remedy for the moment.’

164 As the FRA contends, its representative remained within the confines of the questioning to which he was subject and his statement was a mere reminder of the facts and of the annulment judgment as well as the statement that it was seeking to implement it. Moreover, neither the member of the Committee on Budgetary Control nor the FRA representative cited the applicant’s name during the exchange at issue.

– The second complaint, based on statements made by the AECE in the pre-litigation procedure prior to the present action

166 The applicant criticises the fact that, in the AECE’s refusal to grant his request for compensation and in the rejection of his complaint against that refusal, the FRA maintained the allegation that he had accused his supervisor of racial discrimination.

167 The applicant refers, first of all, to the following passage from the AECE’s decision refusing to grant his request for compensation:

‘In so far as you criticise the reprimand, which sanctioned the accusations of racism you had made without providing evidence, the [annulment judgment] did not quash [the] said decision because its contents would not be accurate. [The Civil Service Tribunal] quashed it for procedural reasons, i.e. without ruling whether it was justified or not to impose a reprimand on you.’

168 The applicant then refers to the following extract from the AECE’s decision of 12 June 2019 rejecting his complaint against the abovementioned refusal:

‘As for the statements made by […] before the [Budgetary Control] Committee […], I see them as mere factual declaration that does not entail any judgment on your person or questioning of the outcome of the judgment which [the] FRA considers to be final. [The] said statement relates to a fact, summarised in paragraphs 19 and 20 of the [annulment judgment].’

169 The AECE was thus responding to the applicant’s arguments. Therefore, for the reasons already set out in paragraph 149 above, the grounds at issue cannot constitute a breach of the duty of care.

170 Nor do the grounds at issue constitute an infringement of the force of res judicata attaching to the annulment judgment or of the right to the presumption of innocence in so far as the AECE confined itself in those grounds to recalling correctly the scope of that judgment and to describing also correctly the scope of the statements of the FRA’s representative before the Parliament’s Committee on Budgetary Control, which were not themselves in any way wrongful either (see paragraph 164 above).

– The third complaint, based on the FRA’s conduct towards articles published in the press

171 The applicant claims that articles published in the press disclosed that the annulment judgment had annulled his reprimand on procedural grounds without the merits of the case having been examined. Those articles thus suggested to the public that he was still guilty of the allegations made against him, in a context in which he was identifiable, despite the anonymity which he had enjoyed during the court proceedings.

172 In that context, the applicant submits that the FRA is responsible for the negative content of the articles in question, because they relate to the annulment judgment, which itself reflects the Agency’s conduct. He also claims that the FRA was not to give any publicity to accusations beyond what is strictly necessary and which might tarnish his integrity. It ought, in his view, to have taken corrective measures capable of offsetting the negative publicity given to the facts by the press.

173 As the applicant points out, the duty to have regard for the welfare of staff members requires the administration not to give any publicity to serious accusations which might tarnish an official’s professional integrity. This means that, as a rule, the administration must, inter alia, avoid giving the press information which might harm the official in question. It has therefore been held that, by issuing on its own initiative a press release, the content of which suggests that an official is personally involved in possible irregularities and by failing to take corrective measures which might offset the abnormal negative publicity created by the dissemination of that press release, the institution employing the person concerned infringes its duty to have regard for the welfare of its officials (judgment of 2 May 2007, Giraudy v Commission, F‑23/05, EU:F:2007:75, paragraphs 164 and 180).

174 Similarly, it has been held that the administration must compensate the official where leaks within the administration to the press have affected the official’s reputation and professional integrity (judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraphs 168 to 170).

175 In the present case, the press articles in question report the fact that a staff member of the FRA had received a reprimand and was then dismissed for complaining of being ‘the victim of ethnic discrimination’. Those articles, citing an email from the FRA’s press service, also mention that the annulment judgment annulled the reprimand due to a procedural oversight, that the judgment did not rule on the applicant’s allegations that he had personally been the subject of ‘racial discrimination’ and that the Agency itself had not been found guilty of discrimination. Lastly, the press articles refer to the FRA’s refusal to answer questions other than by sending that email which stated, moreover, that it would comply with and implement the judgment in question.

176 The press articles at issue thus do not make any accusation against the applicant and have no negative connotations in so far as he is concerned. They recall the facts, the exact scope of the annulment judgment and the FRA’s undertaking to implement it. Those articles, read as a whole, are even rather critical of the Agency. This is shown by the titles of some of those articles, namely ‘Accusations of racism against the Bureau of the [European Union] in Vienna’, ‘Atmosphere of fear – the Agency for Fundamental Rights of the [European Union] in Vienna faced with multiple accusations of being unfair with its employees. The convictions accumulate’, or ‘[The Civil Service Tribunal] convicts the Agency for Human Rights of the [European Union] for allegations of racism’. The articles in question also refer to cases other than that concerning the applicant and, finally, criticise the FRA for hiring a former judge.

177 Moreover, it should be recalled that it is apparent from paragraphs 136 to 141 above that the Director of the FRA did not act wrongfully in considering that accusations of racial discrimination within his administration were sufficiently serious to justify the opening of an administrative inquiry and then refuse to close it.

178 In those circumstances, in the absence of a negative element harmful to the applicant, the latter cannot validly complain that the FRA failed to comply with its duty of care, his right to the presumption of innocence and the force of res judicata attaching to the annulment judgment by failing to take corrective measures which might offset the publicity given to the facts by the press.

179 That said, in the context of that complaint, the applicant asks the Court to order the FRA to produce all correspondence with media representatives, professionals or other contacts concerning the articles at issue and in any manner mentioning or in any way related to the annulment judgment.

(iii) The third part, alleging psychological harassment prohibited by Article 12a of the Staff Regulations

181 The applicant considers that the repetition of unfounded, offensive and defamatory statements by the FRA since 2012 and, in any case, after the annulment judgment, amounts to psychological harassment within the meaning of Article 12a of the Staff Regulations.

182 That third part is, however, linked to the first two examined above. It must therefore be rejected, in so far as it is not apparent from their examination that the FRA’s attitude was offensive or defamatory and in so far as the applicant sets out no other specific reasons capable of establishing the existence of harassment, whereas, under Article 12a of the Staff Regulations, harassment is to be understood as improper conduct that takes place over a period of time, is repetitive or systematic.

(7) Conclusions on the alleged unlawfulness of the FRA’s conduct complained of

183 It follows from all of the foregoing that none of the heads of unlawfulness raised by the applicant can be upheld.

184 Although the conditions referred to in paragraph 36 above are cumulative, it is appropriate, in the circumstances of the present case, also to rule on the actual damage alleged by the applicant and on the causal link between the damage and the unlawful conduct of which he complains.

185 The applicant seeks compensation for the non-material harm which he claims to have suffered as a result of the FRA’s alleged misconduct. First, he draws attention to the fact that the Agency repeatedly criticised him for having made unfounded and unsubstantiated accusations of racism against his supervisor. Secondly, he refers to the excessive duration of the disciplinary proceedings. Thirdly, he argues that, in the context of the implementation of the annulment judgment, the FRA did not adopt a decision pursuant to Article 3 of Annex IX to the Staff Regulations. Fourthly, he refers to the fact that he had yet again to initiate proceedings before the EU judicature.

186 The applicant adds that the FRA’s conduct damaged his dignity, his reputation and his integrity and was particularly damaging from a psychological point of view, because a reprimand presupposed a negative and damaging assessment of his abilities, because the AECE never heard him and he therefore did not have the opportunity to prove that the allegations made against him were unfounded, because the FRA displayed a lack of regard for the welfare of its staff members and a lack of empathy, and because the case was made public. The applicant then attributes some degree of stress and anxiety to the excessive duration of the disciplinary proceedings and to the absence of a decision taken pursuant to Article 3 of Annex IX to the Staff Regulations when implementing the annulment judgment. Finally, the obligation yet again to initiate proceedings before the EU judicature also caused him stress and feelings of anxiety as well as injustice.

187 As regards, first of all, the harm which the applicant claims to have suffered as a result of the wrongful failure to implement the annulment judgment which led him to have to bring a new action, it should be recalled that the case-law is laid down to the effect that the refusal to implement a judgment of the General Court, which will adversely affect the confidence that litigants must have in the EU judicial system, which is based, in particular, on respect for the decisions made by its courts, will, in itself, involve non-material damage for the party which has obtained judgment in its favour (judgments of 12 December 2000, Hautem v EIB, T‑11/00, EU:T:2000:295, paragraph 51; of 2 July 2014, Psarras v ENISA, F‑63/13, EU:F:2014:177, paragraph 63; and of 18 November 2015, Diamantopoulos v EEAS, F‑30/15, EU:F:2015:138, paragraph 47).

188 However, even if, in the event of a wrongful failure to implement a judgment, the non-material damage resulting from the need to bring a new action is presumed, it is apparent from the examination of the heads of unlawfulness raised by the applicant that the FRA did in fact implement the annulment judgment.

189 Next, as regards the harm which the applicant claims was caused by the excessive duration of the disciplinary proceedings, it should also be recalled that, according to the case-law, all disciplinary proceedings place the official concerned in a situation of uncertainty about his or her professional future, inevitably causing some degree of stress and anxiety. If that uncertainty persists for an inordinate period, the intensity of the stress and anxiety caused to the official goes beyond what may be considered justifiable (judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 147) and can, in principle, constitute non-material harm.

190 However, also in the present case, it is apparent from the examination of the fourth head of unlawfulness that, in the light of the circumstances, the FRA closed the disciplinary proceedings within a reasonable time.

191 As regards, lastly, the other harm alleged by the applicant, it should be noted that, according to the case-law, all damage must be actual and certain and that purely hypothetical and indeterminate damage does not give a right to compensation (judgment of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraph 118). It is for the party seeking to establish the European Union’s liability to adduce proof as to the existence or extent of the damage alleged. That obligation applies even with regard to non-material damage. A mere assertion unsupported by any evidence is insufficient (judgment of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraphs 119 and 121).

192 In the present case, in order to establish that he has suffered actual harm, in respect of which he seeks an order that the FRA pay him EUR 100 000 in damages, the applicant submits a medical certificate diagnosing depression with sleeping disorders, lack of drive and associated symptoms since June 2013.

193 That medical certificate, dated 14 February 2014, is isolated, succinct and, in particular, does not contain any medical history. Nor is it supported by any other document.

194 Moreover, as the applicant himself states, he had already submitted that certificate to the Civil Service Tribunal. However, the Civil Service Tribunal did not find it sufficient to demonstrate that the non-material harm resulting from the termination decision could not be entirely remedied by the annulment of that decision (annulment judgment, paragraph 107). The force of res judicata attaching to that judgment therefore precludes a ruling to the contrary in the present case as regards any damage arising from that decision.

195 A reprimand being a minor penalty, in particular as compared with the termination decision (see paragraph 77 above), the medical certificate cannot, a fortiori, constitute proof that the non-material harm resulting from it was not adequately and sufficiently compensated by the annulment judgment, by the fact that the FRA decided not to resume the disciplinary proceedings and by the withdrawal of the documents relating to them from the applicant’s personal file. That is all the more so since the annulment of an unlawful act already in itself constitutes, in principle, sufficient compensation for any non-material harm which that act may have caused (annulment judgment, paragraphs 78 and 105).

196 Moreover, the liability of an institution or agency can be upheld only where there is a direct causal nexus between the wrongful act and the damage pleaded. It is settled case-law that the damage must be a sufficiently direct consequence of the conduct complained of (judgments of 25 June 1997, Perillo v Commission, T‑7/96, EU:T:1997:94, paragraph 41, and of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraph 123). It is for the party seeking to establish the European Union’s liability to establish the existence of that link (judgment of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraph 119).

197 In that regard, the medical certificate of 14 February 2014 does not constitute sufficient proof of that link, since it does not specify what might be the cause of the depression established therein. That applies all the more so to the damage which the applicant attributes to conduct occurring after the date on which that certificate was issued.

198 It is true that the applicant also attempts to substantiate the causal link between the FRA’s conduct and the harm he suffered by arguing, first, that, if the FRA had opened and conducted the administrative inquiry and the disciplinary proceedings lawfully, it would have reached a different conclusion with regard to the reprimand and the termination decision and, secondly, that if it had then implemented the annulment judgment correctly, it would have ended the uncertainty which was damaging to the applicant and would have given him the opportunity to establish that he had not acted improperly. However, this is mere unsubstantiated speculation.

199 It follows that the existence of non-material harm and of a causal link between that damage and the unlawful conduct alleged has not been established in the present case.

200 It follows from all of the foregoing that none of the conditions referred to in paragraph 36 above is satisfied and that the applicant’s claims for damages must therefore be rejected. The same applies consequently to the action as a whole.

201 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

202 In the present case, since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the FRA, in accordance with the form of order sought by the FRA.

2. Orders DD to bear his own costs and to pay those incurred by the European Union Agency for Fundamental Rights (FRA).

(2) The second head of unlawfulness, alleging that the administrative inquiry and the initial disciplinary proceedings were opened irregularly

(3) 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

(4) The fourth head of unlawfulness, alleging that the FRA failed to implement the annulment judgment and to conduct the disciplinary proceedings within a reasonable time and with due diligence

(6) The sixth head of unlawfulness, alleging that the FRA did not 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, as well as the obligation to refrain from any psychological harassment

(i) The first part, alleging infringement by the FRA of the duty of care on account of its conduct prior to the annulment judgment

– The first complaint, based on the allegations made by the FRA in the rejection of the internal appeal and in the refusal to annul the administrative inquiry

– The second complaint, based on the fact that the FRA repeated its allegations

– The third complaint, based on the fact that the FRA did not compensate him for the harm resulting from the unfairness of the disciplinary proceedings

(ii) Second part, alleging infringement of the right to the presumption of innocence, of the principle of the force of res judicata and of the duty of care by the statements and the conduct of FRA after the annulment judgment

– The first complaint, based on statements made by the FRA’s representative before the Parliament’s Committee on Budgetary Control

– The second complaint, based on statements made by the AECE in the pre-litigation procedure prior to the present action

– The third complaint, based on the FRA’s conduct towards articles published in the press

(iii) The third part, alleging psychological harassment prohibited by Article 12a of the Staff Regulations

(7) Conclusions on the alleged unlawfulness of the FRA’s conduct complained of

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> DD v FRA (Civil service - temporary staff - Claims for damages - Judgment) [2021] EUECJ T-632/19 (14 July 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T63219.html Cite as: ECLI:EU:T:2021:434, [2021] EUECJ T-632/19, EU:T:2021:434

Court of Justice of the European Communities (including Court of First Instance Decisions)